2009 Mbe Property -- Future Interests

Front 1

Estate Language: To A and the heirs of his body.

Back 1

Fee Tail

Front 2

Estate Language: So long as / Until / While

Back 2

Fee Simple Determinable
Forfeiture is automatic.
Deviseable, descendible, alienable, but ALWAYS subject to condition.

Front 3

NYS Distinction: Fee Simple Determinable

Back 3

Called a fee on limitation

Front 4

Rule: Fee Simple Determinable

Back 4

Forfeiture is automatic.
Deviseable, descendible, alienable, but ALWAYS subject to condition.
Future Interest: Possibility of Revertor

Front 5

Estate Language: but if X, grantor reserves right to reenter and retake

Back 5

Fee Simple Subject to Condition Subsequent

Front 6

Rule: Fee Simple Subject to Condition Subsequent

Back 6

MUST carve out the right to re-enter and retake
Forfeiture is NOT AUTOMATIC, but is grantor’s OPTION
Future Interest: right of Re-Entry

Front 7

NYS Distinction: Right of Reentry

Back 7

Right of Reentry is called RIGHT OF REACQUISITION

Front 8

Rule: Fee Simple Subject to Executory Limitation

Back 8

Forfeiture is AUTOMATIC
Future Interest: Shifting Executory Interest

Front 9

Estate Language: but if X, then to A

Back 9

Fee Simple Subject to Executory Limitation

Front 10

Rule: Precatory Language

Back 10

Words of mere desire, hope, or intention are insufficient to create a defeasible fee

Front 11

Rule: Restraints on Alienation

Back 11

Absolute Restraints on Alienation are VOID

Front 12

Define: Life estate pur autr vie

Back 12

Life Estate measured by a life other than the grantees.

Front 13

Rule: Rights of a life tenant

Back 13

Entitled to ordinary uses and profits.
MUST NOT commit WASTE

Front 14

Waste

Back 14

Voluntary/Affirmative Waste—overt conduct that causes a drop in value.
Permissive Waste—allowed to fall into disrepair
Ameliorative Waste—acts to enhance the property’s value

Front 15

Rule: Waste and natural resources

Back 15

Must not consume or exploit natural resources, UNLESS:
1: Prior Use/ Open mines doctrine
2: Reasonable Repairs
3: Express Grant
4: Land is ONLY suitable for exploitation

Front 16

Rule: Permissive Waste and Maintanence

Back 16

Must maintain the premises in reasonably good repair.
MUST pay all ordinary taxes.

Front 17

Future Interests in the Grantor (3)

Back 17

1: possibility of reverter
2: right of entry
3: reversion (follows a life estate)

Future interests of the GRANTOR are NOT SUBJECT to RAP

Front 18

Future Interests of Transferees (3)

Back 18

1: Vested Remainder
2: contingent remainder
3: executory interest

Front 19

Remainder

Back 19

A future interest created in a grantee that is CAPABLE of becoming possessory upon the expiration of a prior possessory estate created in the SAME CONVEYANCE in which the remainder is created.

***cannot follow a defeasible fee—if after a defeasible fee, it is an EXECUTORY INTEREST***

Front 20

Define: vested remainder

Back 20

1: Created in an ascertained person
2: Not subject to condition precedent

Front 21

Define: vested remainder subject to open

Back 21

1: vested remainder
2: created in a class that is certain to possess, but may be diminished (e.g. “to the children of. . .”)

Front 22

Define: vested remainder subject to total divestment (complete defeasance)

Back 22

1: vested remainder
2: subject to condition subsequent

Front 23

Define: contingent remainder

Back 23

1: remainder in unborn or unascertained persons
OR
2: remainder subject to condition precedent

Front 24

DISTINGUISH: remainder vs. executory interest

Back 24

1: remainder follows life estate or term of years – executory interest follows defeasible fee.

2: remainder follows immediately – executor interest may follow a gap.

Front 25

Rule: Destruction of contingent remainders

Back 25

Historically, contingent remainders were destroyed if they were still contingent when the preceding estate ended.

NOW, grantor or heirs will hold the estate subject to a springing executory interest (e.g. when the contigent factor is met, the original holder of the contingent remainder will take under the executory interest.

Front 26

Rule in Shelley’s Case

Back 26

Prohibited creating a life estate in A, with the contingent remainder in A’s heirs—turned the whole thing into a fee simple.

ABOLISHED IN NYS

Front 27

Doctrine of Worthier Title

Back 27

Prohibited a living grantor creating a contingent remainder in his own heirs. Turned it into a reversion back to the grantor instead.

Rule of Construction ONLY—clear intent still prevails.

ABOLISHED IN NYS for transfers after September 1, 1967.

Front 28

NYS Distinction: Remainders and Executory Interests

Back 28

NYS has abolished the difference between contingent remainders and executory interests.

Both are called a “remainder subject to a condition precedent.”

Front 29

DISTINGUISH: shifting and springing executory interests

Back 29

Shifting executory interest: cuts short a defeasible fee.
Springing executory interest: follows a gap, or cuts short the grantor.

Front 30

RAP does NOT apply to…

Back 30

1: future interests held by grantor
2: vested remainder subject to complete defeasance

Front 31

Bright Line RAP Rule: Open Classes

Back 31

A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates the RAP.

Front 32

Bright Line RAP Rule: Executory Interests

Back 32

An executory interest with no limit on the time within which it must vest violates the RAP.

Front 33

Wait and See / Second Look Doctrine

Back 33

Majority Reform Effort

Validity of suspect future interest is determined at the END of the measuring life.

Reduce offensive age contingencies to 21 years.

Front 34

Uniform Statutory Rule Against Perpetuities

Back 34

90 years in place of RAP

Front 35

Cy Pres Doctrine and RAP

Back 35

reform a violating disposition in a way that most closely fits grantors intent.

Front 36

NYS Distinction: New York Perpetuities Reform Statute

Back 36

NYS has rejected wait and see and cy pres.

Under Statute:
1: reduce offensive age contingencies to 21
2: woman over 55 cannot have a child (ignore adoption)
3: applies common law RAP to restriction on power to sell or transfer (trusts/wills)