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27 Cards in this Set

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Define fee simple absolute
The largest estate. Holder has full posessory rights. "To A and his heirs" To A are words of purchcase, "And his heirs" are words of limitation. Can sell, divise or divide it. Cannot be cut short.
Define Defeasible Fees
Any fee that can be cut short. Includes fee simple determinable, fee simple subject to a condition subsequent and executory interests.
Define Fee Simple Determinable
Estate automatically terminates on the happening of a stated event and goes back to the grantor, called a possibility of reverter. Uses words of duration such as: as long as, while, during, until. Possibility of reverter is left in the grantor.
Define Fee Simple Subject to a Condition Subsequent
Grantor retains the power to terminate the estate of the grantee upon the happening of a specified event, Right of entry (re-entry). The grantor must exercise his power of termination/right of entry by bringing suit or making re-entry to discontinue the estate of the grantee. Language: “upon condition that” “provided that” “but if” “if it happens that”
Define Fee Simple Subject to an Executory Interest
Can be fee simple determinable or subject to a condition subsequent. An estate upon the happening of a stated event is divested in favor of a 3rd person rather than the grantor.
Fee Tail
Language: “to A and the heirs of his body." To A - words of purchase. And the heirs of her body - words of limitation. Can have fee tail female, fee tail male, fee tail special.
Jurisdictional Splits on Fee Tail
1) Most US jurisdictions have abolished fee tail and have enacted statutes where any attempt to create a fee tail results in the creation of a fee simple in the first grantee. 2) Minority – convert the fee tail into a life estate in the first grantee with a fee simple to the descendants of the first taker. 3) Minority – fee tail in first taker, lineal descendants acquire a fee simple 4) A few states still allow fee tail as it was at common law (Delaware, Maine, Massachusetts and Rhode Island) However, they can convey away, called disentailing.
Define Life Estate
The right to occupy, possess or otherwise use a property during one's life time. The right in the property exists so as the right holder is alive. Can be for the life of the grantee or for the life of another (per autre vie). To A – words of purchase. For Life – words of limitation. Can only transfer the amount you own – until your death. If no executory interest is state it reverts to the owner.
Duties of Life Tenant
Doctrine of Waste: Tenant for life is entitled to all the ordinary uses and profits of the land; but he can’t lawfully do any act that would injure the interests of the person who owns the remainder or the reversion. If he does, the future interest holder may sue for damages and/or to enjoin such acts. Court can order sale to prevent waste. Baker v. Weedon: Judicial Sale of property is drastic and will only be done if it is the best interest of the parties. When there is waste and when there is injury to the property.
What are the two types of waste?
Affirmative waste (purposeful) and Permissive Waste (failure to act-- negligence)
What are the future interests in both grantors and 3rd parties?
In the grantor: remainder, possibility of reverter, right of reentry. In a 3rd party: vested remainder, contingent remainder, executory interest
Define Reversion
Property goes back to the grantor, usually follows a life estate.
Define Right of entry
Applies to fee simple subject to a condition subsequent, must be exercised.
Define Possibility of reverter
Applies to when simple determinable, automatic
What is a remainder?
Remainders are capable of becoming possessory at the termination of the preceding estate. Remainders do not cut short the prior estate, they are polite.
What is a vested remainder? Define the three types of vested remainders
Vested remainders are remainders in an ascertained person and no condition precedent. 1.) Indefeasibly vested: certain to become possessory in a specific individual 2) Vested remainder subject to complete divestment: is certain to become possessory unless some specified event occurs 3) Vested remainder subject to open: a class gift that may be enlarged by presently unascertained persons.
What is a contingent remainder?
A remainder that is either (a) created in an unascertainable person or (b) subject to a condition precedent other than the natural termination of the preceding estates
Define Executory Interests. What are the two types of executory interests?
The prior estate is cut short, interest goes to a third party. – not polite. 1) Shifting - gos from one grantee to another upon the occurrence of some condition. 2) Springing - Future interest that divests the transferor of the estate following a gap in possession, it springs out of the transferor’s reversion. From grantee – revert to grantor – springs to another grantee.
Policies regarding future interests
1) vested remainder over a contingent remainder 2) contingent remainders over executory interests 3) remainder cannot follow a fee simple, if something cuts it short, it is an executory interest. 4) After a life estate, if the first future interest is a contingent remainder, the second one is also a contingent remainder. 5) After a life estate, if the first future interest is a vested remainder, then the second remainder is an executory interest.
Define Destructibility of contingent remainders
If the preceding estate ends while the contingent remainder still remains, the contingent remainder is destroyed
Doctrine of merger
The present interest and future successive estates will merge if they are held by the same person, so long as there is no intervening vested interest.
Rule in Shelley’s case
When a conveyance purports to convey from “O to A for life, remainder to A’s heirs” the remainder is destroyed and the conveyance is rewritten to be a life estate to A and a remainder if fee simple absolute to A’s heirs.
Doctrine of Worthier Title
When a conveyance purports to convey “O to A for life, remainder to O’s heirs” the doctrine operates to destroy the remainder to O’s heirs. It becomes simple a life estate with a reversion.
Rule Against Perpetuities: State the Rule
No interest is good unless it must vest if at all not later than 21 years after some life in being at the creation of the interest.
RAP Attack
1) Analyze each estate that has been created. 2) Determine when those interests are created. (Is it a conveyance or a will?) 3) Does the RAP apply? Make sure the interest is a contingent remainder, an executory interest or vested remainders subject to open (class gifts.) If so, the rule applies. If not, it isn’t a RAP Problem. 4) Narrow to the interests where the rule may be violated. (Throw out any interests that aren’t subject to the RAP.) 5) Identify the life in being for the interest that may be violated. (Intervivos, someone alive when grant was made. Will, life of a person when testator died. 6) Will the interest vest or become certain to fail in the life in being plus 21 years? To vest means to become either a present possessory interest or a vested interest. If you can identify any circumstance when the interest might vest after the deadline, then the RAP has been violated. If no such series exists, the interest is valid. You may need to go back to another life in being. 7) If you strike the interest, it is as if the interest never existed.
Special Rules for RAP
1) Fertile Octogenarian: A legal fiction which means that, for the purposes of the, a woman in her eighties can conceive and give birth. Actually both males and females. 2) Precocious Toddler: A legal fiction, which assumes that a living person is fertile at birth. 3) Unborn Widow: widow is not born at the time of the interests and so cannot be a life in being - the grantor could get married again, can’t determine widow until he dies, she may not be a life in being. 4) Slothful Executor: a situation where the executor of the estate does not probate the will for many years after the testator's death. So, gift explicitly conditioned on distribution violate RAP.
Four Jurisdictional Splits for RAP
1) Common law RAP - apply the RAP as of the date of the creation or attempted creation of the contingent future interest. 2) Wait and see: You wait and see for the perpetuities period, life in being plus 21 years. You actually wait and see what happens – whether the interest will need to be stricken after the life in being plus 21 years. 3) USRAP: CL rule or wait and see for 90 years 4) Cy Pres- Texas statute: Allows courts to reform the interests so that they do not violate the rule to the fullest extent consistent with the creator’s interest.