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32 Cards in this Set

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What are 3 types of freehold estates?
1. Fee Simple (FS)- including defeasible fees
2. Life Estate (LE)
3. Fee Tail (modern presumption = FSA, UNLESS Bar Exam Q. asks you to apply common law rule)
FSA
potentiall infinite DURATION

MUST be fully ALIENABLE
Hypo #1: John will shte farm in upstate NY to Yoko, but provides that if Yoko tries to sell the farm, it goes to Shaun.
Yoko: FSA
Shaun: Nothing

GENERAL RULE: ANY attempt to put a direct on alienation is VOID - thus ignore the restriction

CONDITIONS however, may be imposed on the exercise of a FS
Hypo #2: John will shte farm in upstate NY to Yoko, but provided that if Yoko allows Paul onto the property, then the farm goes to Shaun.
OK- b/c no language of condition on use of property.
Hypo #2: John will shte farm in upstate NY to Yoko, but provided that if Yoko tries to sell the farm during her lifetime, then Shaun has the RIGHT OF FIRST REFUSAL, that is, Shaun has the option to buy the land before Yoko can sell the land before Yko can sell the land to anyone else. Is this restriction on alienation ok?
Yes- the modern EXCEPTION upholds the validity of RIGHTS OF REFUSAL.
How do you create a FSA...

@ common law?

majority change?
@ common law to create a FSA: "To A and her heirs"
IF the language was to "A", then @ common law A took a LE

TODAY, MAJORITY CHANGE: Cts will presume a FSA was granted- UNLESS language shows clear intent to do something else to do otherwise.
Hypo #3: John wills the farm to Yoko. What estate does Yoko receive?
FSA
Present Estates -
4 Broad Types
Answer Note/Hint
Present Estates -
4 Broad Types 1) Fee Simple Absolute
2) Defeasible Fees (3 Kinds)
3) Fee Tail
4) Life Estate
Fee Simple Absolute
• “To A” = enough
• = absolute ownership of potentially infinite duration
• Divisible (can leave it in your will), Descendible & alienable
•Future Interest? = A’s heirs have NOTHING (only A has ownership)
Fee Tail
• “To A & the heirs of his body”
• Historically would pass directly to lineal blood descendants NO MATTER WHAT
• About preserving dynasties
• If try to create it today it's made into a Fee simple Absolute
Defeasible Fees -

Fee Simple Determinable
• “To a so long as”, “To A during”
• = looking for clear durational language
• Forefeiture is automatic if stated condition is violated - very harsh
• = divisible, descendible & alienable
• BUT always subject to the condition!!!!!! Condition is carried w/ it.
• Future interest = possibility of reverter (FSDPOR)
Deafeasible Fees -

Fee Simple Subject to Condition Subsequent
• “To A but if X occurs, grantor reserves the right to reenter & retake”
• This estate is NOT automatically terminated BUT can be cut short at the grantors option if the stated condition occurs
• Accompanying future interest = RT of reentry (syn w/ power of termination)
• Future Interest = Executory interest held by O
Present Estates -
4 Broad Types
Answer Note/Hint
Present Estates -
4 Broad Types 1) Fee Simple Absolute
2) Defeasible Fees (3 Kinds)
3) Fee Tail
4) Life Estate
Fee Simple Absolute
• “To A” = enough
• = absolute ownership of potentially infinite duration
• Divisible (can leave it in your will), Descendible & alienable
•Future Interest? = A’s heirs have NOTHING (only A has ownership)
Fee Tail
• “To A & the heirs of his body”
• Historically would pass directly to lineal blood descendants NO MATTER WHAT
• About preserving dynasties
• If try to create it today it's made into a Fee simple Absolute
Defeasible Fees -

Fee Simple Determinable
• “To a so long as”, “To A during”
• = looking for clear durational language
• Forefeiture is automatic if stated condition is violated - very harsh
• = divisible, descendible & alienable
• BUT always subject to the condition!!!!!! Condition is carried w/ it.
• Future interest = possibility of reverter (FSDPOR)
Deafeasible Fees -

Fee Simple Subject to Condition Subsequent
• “To A but if X occurs, grantor reserves the right to reenter & retake”
• This estate is NOT automatically terminated BUT can be cut short at the grantors option if the stated condition occurs
• Accompanying future interest = RT of reentry (syn w/ power of termination)
Defeasible Fees -

Fee Simple Subject to Executory Limitation
• “To A but if X occurs then to B”
• Potentially infinite, so long as stated contingency does NOT occur
• Alienable, devisable, descendible all subject to the condition
• = if condition broken estate is AUTOMATICALLY forfeited in favor of someone other than grantor
• Future Interest = Executory Interest held by 3rd P (who = beneficiary)

• Words of mere desire/hope/intent = NOT enough (insufficient to create)
• CT requires clear language b/c disfavored
• NOT ENOUGH = "To a for the purpose of constructing a day care center" OR "To A w/ the hope that she becomes a lawyer" OR "to A w/ the expectation that..."
• In these examples, A has a fee simple absolute
What is the Rule on Restraint on Alienation?
• An Absolute restraint on alienation is an absolute ban on the power to sell or transfer that is not linked to any reasonable time-limited purpose
• E.g. "To A so long as she never attempts to sell"
• = VOID & A has a fee simple absolute
• BUT "To A so long as she does not attempt to sell until 2008 when clouds on title will be resolved"
• = OK (A has a fee simple determinable & O has POR)
What is a life estate and what is a life estate pur autre vie?
• = must be measured in explicit life time terms & NEVER in terms of years
• = the romantic estate -“will love you all the days of your life” or “all the days of my life”
• A = has life estate & A known as the life tenant
• O has a reversion, meaning at end of A’s lifetime will revert back to O or O’s heirs
• Pur Autre Vie = life estate measured by a life other than the grantee’s
“To A for the life of B”
• Alienable, devisable & descendible if pur autre vie & measuring life is still alive
• Future Interest = reversion if held by O & remainder if held by 3rd P
• A is known as the "Life Tenant"
Doctrine of Waste
(When does it apply + what are the 2 General Rules)
•Applies whenever more than one entity has an interest in Blackacre
• Life Tenant is entitled to ALL ordinary uses & profits from the land
• BUT Life tenant must NOT commit waste (= do anything to harm future interest holders)
What are the 3 strands of Waste?
1) Voluntary or Affirmative Waste
2) Permissive Waste
3) Ameliorative Waste
Voluntary or Affirmative Waste

What is is it & what is it referring to?
• = actual overt conduct that causes a decrease in value
• General Rule – thinking about natural resources like timber, oil, etc.
Exceptions to Voluntary Waste

What is the acronym & what does it stand for?
PURGE

PU = Prior Use (but Open Mines Doctrine = limited to mines already open)

R = Reasonable Repairs (may consume natural resources for reasonable repairs & maintenance of the premises)

G = Grant (life tenant may exploit if expressly granted RT to do so)

E = exploitation (land is suitable ONLY FOR exploitation, such as w/ a quarry)
Permissive Waste

What is is it & what is it referring to?
• =land is allowed to fall into disrepair OR the life tenant fails to reasonably protect the land
• Syn. w/ neglect
• Duty to Repair = life tenant must simply MAINTAIN in reasonably good repair (doing no more & no less than ordinary maintenance would require)
o E.g. Russell Crowe required to patch up leaking holes but not replace the entire roof/ceiling
• Life Tenant also required to pay ALL ordinary taxes to the extent of the premises fair rental value
Ameliorative Waste
• May not engage in acts that will enhance the property’s value – unless future interests holders consent
• Have to demonstrate consultation of interest holders that are known & their consent
• About nostalgic value (don’t want Blackacre turned into a multi-Cineplex)
6 Categories of Future Interest & How They Are Classified
In Grantor:
1) Possibility of Reverter
2)RT of Entry (aka Power of Termination)
3)Reversion

In Transferees
4) Vested Remainder (3)
5) Contingent Remainder
6)Executory Interest (2)
Future Interests Retained by Transferees
(Characteristics)
Vested remainder
• Indefeasibly remainder
• Vested Remainder subject to complete defeasance (vested remainder subject to total divestment)
• Divested remainder subject to open

Contingent Remainder

Executory Interest
• Shifting
• Springing
Remainder Definition
• Remainder = future interst created in a grantee
Never by themselves – always accompanies a preceding estate of KNOWN FIXED DURATION (usually a life estate OR a term of years)
• “To A for life & then to B” OR “To A for 10yrs & then to B”

REMAINDERMAN NEVER FOLLOWS A DEFEASIBLE FEE
• Doesn’t have it in him to be the beneficiary of another’s misfortune
• Remainderman waits patiently for preceding estate to run its natural course
• Instead future interest in these cases would be an executory interest if held by someone other than grantor
Vested Remainders vs. Contingent Remainders
Vested =
BOTH created in a known ascertained person AND
NOT subject to any condition precedent

Contingent =
Unascertained person OR Subject to condition precedent OR Both

Remember, while B is alives, B's heirs are unknown
so
"To A for life, then to B's heirs" - if & while B is alive = CR

"To A for life & then to B's heirs who survive A" = CR

"To A for life, then, if B graduates college, to B" (B in high school now)
- B has CR & O has a reversion
- If B graduates it becomes an indefeasibly VR
Executory Interest
Executory Interest = future interest created in a transferee & takes effect by either “cutting short” some interest in another person (shifting) or in the grantor/heirs (springing)
Rule Against Perpetuities

(what is it?)
• = certain kinds of future interest or void if given interest may vest 21yrs after the death of a measuring life

1) Determine which future interests have been created by the contingency
2) Indentify the conditions precedent to the vesting of the subject future interest
3) Find a measuring life (alive at the time & relevant)
4) Ask "will we know w/ certainty w/in 21yrs from death of measuring life if future holder can take?"