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52 Cards in this Set
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- Back
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"To A and his heirs"" "To A" |
Fee Simple Absolute Absolute ownership of potentially infinite duration Devisable, descendable and alienable No future interests |
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"To A and the heirs of his body" |
Fee Tail Grantee's lineal blood descendants get the land no matter what Today, this instead creates a fee simple absolute Historically, O got reversion or third party got remainder |
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Defeasible Fees include |
Fee Simple determinable fee simple subject to condition subsequent fee simple subject to an executor limitation |
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"To A so long as" "To A until..." to A while...." |
Fee simple determinable potentially infinite duration so long as the event does not occur Transferability - Devisable, descendable and alienable subject to condition Future Interest = possibility of reverter held by grantor IF CONDITION OCCURS, FORFEITURE IS AUTOMATIC!!! |
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"To A but if X event happens, grantor reserves the right to reenter and retake" |
Fee simple subject to condition subsequent Potentially infinite duration as long as condition not breached and then holder of right of reentry exercises power of termination FI = right of entry/power of termination Transferability - Devisable, descendable and alienable subject to condition NOT AUTOMATICALLY ENDED - AT HIS OPTION, O CAN REENTER AND RETAKE (could also ignore) |
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"To A, but if X event occurs then to B" |
Fee simple subject to an executor limitation potentially infinite in duration as long as contingency doesnt occur Transferability = Devisable, descendable and alienable subject to condition FI = executory interest held by 3rd party AUTOMATIC FORFEITURE TO THIRD PARTY |
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"To A but if X event occurs, then to B" |
A has fee simple and B has shifting executory interest (third party benefits from forfeiture rater than O) if condition is broke, estate is automatically forfeited in favor of someone other than O (here, B) |
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"To A for life" "To A for the life of B" |
life estate measured by life of transferee or some other life (per autre vie) Transferability = Devisable, descendable and alienable if pur autre vie life is still alive FI = reversion (if held by grantor); Remainder (if held by 3rd party) |
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Devisable means |
can pass by will
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descendible means |
will pass by the statutes of intestacy if its holder dies intestate |
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alienable means
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it is transferable intervivos (during holder's life time) |
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Two important rules of construction:
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1) Words of desure, hope or intention are insufficient to create a defeasible fee - must have clear durational language ex. "for the purpose of" "To A with the hope that" "To A with the expectation that" - all are not binding conditions 2) Absolute restraints on alienation are void ex. To A so long as she never attempts to sell - cannot ban power to sell of transfer so void |
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O conveys "To A for life" - |
A has a life estate O has a reversion - means at end of A's lifetime, estate reverts back to O or O's heirs |
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"To A for the life of B' |
Life estate pur autre vie A has a life estate pur autre vie O has reversion - at the end of B's life, the estate reverts back to O or O's heirs |
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Three types of waste: |
1) Voluntary/affirmative waste 2) Permissive waste/neglect 30 Ameliorative waste |
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For voluntary waste, a life tenant must now consume or exploit natural resource on the property (timber, oil, etc) unless one of 4 exceptions applies: |
PURGE 1) Prior use - ex. open mines doctrine - if mining done on land before LE began, the life tenant may continue to mine but is limited to mines already open 2) Repairs - life tenant may consume natural resources for repairs and maintenance 3) Grant - life tenant may exploit if granted that right 4) Exploitaton - the land is only suitable to exploit |
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Permissive waste/neglect rule.... |
Life tenant must simply maintain the premises in reasonably good repair - no duty to do more, but can't do less life tenant is obligated to pay all taxes on land to extent of income or profits derived from the land if no income or profit, the life tenant must pay all ordinary taxes to extent of premises fair rental value |
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with regard to ameliorative waste.... |
life tenant must not engage in acts that will enhance the property's value unless all FI holders are known and consent |
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Possibility of reverter accompanies |
fee simple determinable |
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right of entry accompanies |
fee simple subject to condition subsequent |
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reversion |
arises when grantor transfer estate of lesser quantum then she started with other than FSD or FSSCS |
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Remainder is... |
a future interest created in a grantee that is capable of becoming possessory upon the expiration of a prior possessory estate created in SAME conveyance in which remainder is created The preceding is of fixed duration - usually a term of years or a life estate (never follows a defeasible fee) |
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Remainders are either.... |
vested or contingent |
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A remainder is contingent when.... two types |
1) It is created in an unascertained person OR "To A for life then to B's first child" A is alive and B as yet has no kids - No ascertainable takers 2) It is subject to a condition precedent A condition is precedent when it appears BEFORE the language creating the remainder "To A for life, then, if B graduates from college to B" A is alive and B in HS. Before B can take he must graduate from college B has a contingent remainder O has reversion - if B never graduates from college, O or O's heirs take OR BOTH |
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The rule of destructibility at common law.... |
A contingent remainder was destroyed if it was still contingent at the time preceding life estate ended "To A for life and if B has reached age of 21, to B." A has died leaving B behind who is only 19. At CL, B's CR was destroyed and O/O's heirs would take in FSA |
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The rule of destructibility TODAY.... |
This rule has now been abolished - if B is still under 21 when A dies, o or O's heirs hold estate until B reaches 21 - B has springing executory interest` |
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Rule in Shelley's Case |
At CL, this said where "A for life, then on A's death to A's heirs" - the present and future interests merge giving a an FSA Today, this rule has been virtually abolished - A has LE and A's yet unknown heirs have a CR and O has reversion (since A could die without heirs) |
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Doctrine of Worthier Title |
This applies where O who is alive conveys to "A for life then to O's heirs" This makes the contingent in O's heirs void - A has life estate and O has reversion Note: this is not a rule of law but rule of construction; grantor's intent controls so if he clearly intends to create contingent remainder in his heirs, that intent is binding |
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Three kinds of vested remainders |
1) Indefeasibly vested remainder 2) Vested remainder subject to complete defeasance 3) vested remainder subject to open |
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"To A for life, remainder to B" A is alive and B is alive |
A has Life estate B has indefesibly vested remainder |
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"To A for life, reaminder to B, provided however that if B dies under age 25, to C" |
A has LE B has aVested remainder subject to complete defeasance [has language that taken alone and set off by commas would created vested remainder] C has shifting executory interest O has reversion (possible neither C or C's heirs will exist when condition breached) |
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"To A for life, then to B's kids" A is alive and B has 2 kids C and D |
C and D have a vested remainder subject to open a class is open when others can join |
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The class closes whenever... |
any member can demand possession |
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"To A and her heirs but if B returns from Canada sometime next year, to B and his heirs" |
B has a Shifting executory interest - always follows a defeasible fee and cuts short someone other than the grantor (remainders follow LEs) A has a fee simple subject to B's shifting EI doesnt violate the RAP |
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O conveys "To a, if and when he marries" A is unmarried |
A has a springing executory interest O has fee simple subject to A's springing exec int doesnt violate the RAP |
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RAP says.... |
Any interest that vests more than 21 years after the death of a measuring life is void |
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RAP ONLY applies to... |
contingent remainders, executory interests and certain vested remainders subject to open |
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RAP does NOT apply to |
1) Any future itnerest in O 2) Indefeasibly vested remainders 3) Vested remainders subject to complete divestment |
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Two bright line rules for RAP.... |
1) A gift to an open class conditioned on the members surviving to an age beyond 21 violates RAP "To A for life then to such of A's kids as live to attain age of 30." A has two kids, B and C ages 35 and 40. A is alive -- violated RAP Left with LE in A and reversion in O 2) Many shifting executory interests violate the RAP. An EI with no limit on time within which it must vest violates RAP. "To A and his heirs so long as the land is used for farm purposes and if the land ceases to be so used, to B and his heirs" B has shifting EI and a is measuring life Condition might not be breached for 100s of years so void A now has FSD and O has possibility of reverson |
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T or F A gift from one charity to antoher does NOt violate the RAP |
true |
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Wait and See Doctrine |
majority reform effort that says instead of striking RAP violation at the beginning by guessing, we wait and see what has occurred after measuring life has ended |
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Uniform Statutory RAP provides |
for an alternative 90 year vesting period |
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both Uniform Stat RAP and wait and see doctrine use... |
cy pres - if given disposition violates RAP, court may reform it in a way that most closely matches the grantor's intent while complying with the RAP |
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Joint tenancy |
2 or more own with right of survivorship alienable (can transfer share while alive) but not devisable or descendable (after one tenant dies, land automatically goes to other live tenants) |
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tenancy by entirety |
btween married partners with right of survivorship creditors can't touch this tenancy neither spouse can unilaterally convey it |
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tenancy in common |
2 or more with no right of survivorship each co-tenant owns an individual part with a right to possess the whole each itnerest is freely devisable, descendable, and alienable |
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creation of joint tenancy requires the 4 unities: |
1) at the same time 2) in same title 3) with identical itnerests AND 4) rights to possess the whole Also Grantor must clearly express right of survivoship JT is disfavored (TinC is more favored) Must use straw to create |
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Severance of joint tenancy |
joint tenancy can transfer her interest during her life time without other's consent - buyer becomes tenant in common NOTE: the mere act of entering into a contract for sale of her share will sever joint tenancy via doctrine of equitable conversion |
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Three ways of severing JT: |
1) by voluntary agreement 2) partition in kind - if in best interest of all 3) Forced sale - if in best itnerests of all |
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Does a mortgage by one JT sever the interest? |
minority of states - yes, under title theory majority - no under lien theory |
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if a co-tenant has wrongfully excluded another co-T from possession of the whole or any part he has committed |
wrongful ouster |
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A repairing cotenant enjoys right to contribution for______ (contribute based on %) BUT no right of contribution for _____ |
reasonable and necessary repairs if she told co-T of the need BUT NOT for improvements |
