Property (Present/future Estates)

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PRESENT POSESSORY ESTATES: what are they?

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an interest gives holder the right to present possession

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Fee Simple Absolute

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The largest estate recognized by law; can be sold, divided, devised, or inherited and has indefinite or potentially infinite duration.
Presumed in the absence of express contrary intent.
To A & his heirs...

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what are Defeasible Fees?

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Fee simple estates (of uncertain or potentially infinite duration) that can be terminated upon the happening of a stated event.

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3 types of defeasible fees:

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(1) fee simple determinable (and poss of reverter)
(2) fee simple subj to condit subsequent (& right of entry)
(3) fee simple subjc to an exec interest

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Fee simple determinable

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Terminates upon happening of a stated event and AUTO reverts to the grantor. Created by durational language: for so long as, while, during, or until.
Correlative future interest: possibility of reverter

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possibility of reverter

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Whenever a grantor conveys a fee simple determinable, he automatically retains a possibility a reverter (reversionary future interest) that is transferable, descendible and devisable.

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Fee Simple Subj. to condition subsequent

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an estate in which the grantor reserves right to terminate estate upon the happening of a stated event; created by use of conditional words, such as “upon condition that” provided that, but if, and if it happens that.” Correlative future interest in grantor – right of entry

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right of entry

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Right to terminate, reserved by the grantor, is called a right of entry. It must be expressly reserved; unlike poss of reverter, it doesn’t arise automatically.
• Some states hold rights of entry are not transferable inter vivos, but most states agree they are devisable and all states agree they are descendable.

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Fee Simple Subj to an executory interest

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If a fee simple estate terminates upon the happening of a stated event (b/c it is determinable or subject to a condition subsequent) and then passes to a 3rd party rather than reverting to the grantor or giving the grantor a right to terminate, the 3rd party has an executor interest.

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What is the correlative future interest in Grantor for a fee simple subjc to an executory interest?

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if it is for as long as a condition is met (for so long as) then possibility of reverter.
if it is until the happening of an event then right of interest.

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Fee Tail

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An estate where inheritability is limited to linear heirs.
Created by the words “to A and the heirs of his body” Most jurisdictions have abolished the fee tail, and attempt to create one results in fee simple”

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Life Estate

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Measured by the life or lives of one or more persons.
Can last until the end of the measuring life or the happening of the named event.
Correlative future interest in grantor: reversion.

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Life Estate Pur vie (life of another)

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Measured by a life other than the grantee’s (ex to A for the life of B); also results when the life tenant conveys his life estate to another (ex: A the holder of a life estate conveys his interest to B, B gets life estate for the life of A).

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Rights & Duties of Life Tenant – Doc of Waste

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A life tenant is entitled to any ordinary uses and profits of the land, but cannot do anything that inures the interests of a remainderman or reversioner. A future interest holder may sue for damages or to enjoin such acts.

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When is voluntary waste of natural resources by a life tenant ok?

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i) necessary for repair or maintenance of the land,
(ii) the land is suitable only for such use; or
(iii) it is expressly or impliedly permitted by the grantor.

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Permissive Waste

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Occurs when a life tenant fails to protect or preserve the land.

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A life tenant is obligated to protect and preserve the land by:

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(i) preserve the land and structures in a reasonable state of repair;
(ii) pay interest on mortgages (not principal)
(iii) pay ordinarily taxes on the land; and
(iv) pay special assessments for public improvements of short duration (long duration apportion btwn the life tenant and future interest holder).

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A life tenant is NOT obligated to do the follow to protect or perserve the land:

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NOT obliged to insure the premises for the benefit of remaindermen NOT respons for damages caused by a 3rd party tortfeaser.
long duration improvements are apportioned btwn the life tenant and future interest holder.

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Ameliorative Waste

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A change that benefits the property economically

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A life tenant may make changes to the prop including alter/demolish bldgs if:

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(i) market value of the future interests is not diminished; AND either
(ii) the remaindermen do not object; OR
(iii) a substantial and permanent change in the neighborhood condition (eg change from residential to 90% industrial) has deprived the property in its current form of reasonable productivity or usefulness.

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Renunciation of Life Estate

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If a life tenant who receives the estate by will or intestacy renounces his interest, the future interest following the life estate is generally accelerated so that it becomes immediately possessory.