Present Possessory Estates And Future Interests; Rap

Front 1

Fee Simple

Back 1

to A; to A and his heirs

Absolute ownership; freely devisable, descendible, and alienable

No accompanying future interest

Front 2

Fee Tail

Back 2

to A and the heirs of his body

At common law, pass directly to grantee's lineal blood descendants no matter what

abolished in NY (and almost everywhere) - creates fee simple absolute

Front 3

Fee Simple Determinable

Back 3

to A for so long as...

automatic forfeiture if condition is violated

Freely divisible, descendible, alienable, but always subject to the condition

possibility of reverter in grantor

FSDPOR

called "fee on limitation" in NY

Front 4

Fee Simple Subject to a Condition Subsequent

Back 4

to A, but if X occurs, grantor may re-enter and retake

not automatically terminated, but terminable at grantor's option if stated condition occurs

called "fee on condition" in NY

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Fee Simple Subject to Executory Limitation

Back 5

To A, but if X occurs, then to B

if condition is broken, estate is forfeited to someone other than the grantor

Front 6

Defeasible Fees - rules of construction

Back 6

-Words of aspiration are inadequate
-Absolute restraints on alienation are void

Front 7

Life Estate

Back 7

to A for life; to A for B's life

Life tenant entitled to all ordinary uses and profits of the land, but Life tenant must not commit waste

Front 8

Possibility of Reverter

Back 8

Interest capable of creation in grantor, accompanies only fee simple determinable

Front 9

Right of Entry

Back 9

also known as Power of Termination

Interest capable of creation in grantor, accompanies only fee simple subject to condition subsequent

Front 10

Reversion

Back 10

Arises in the grantor who transfers an estate of lesser quantum than she started with other than fee simple determinable or fee simple to condition subsequent

Front 11

Three types of vested remainders

Back 11

1. Indefeasibly vested remainder
2. Vested remainder subject to complete defeasance
3. Vested remainder subject to open

Front 12

Shifting executory interest

Back 12

To A and his heirs, but if B does X, then to B and his heirs; to A but if A uses land for nonresidential purposes during the next 20 years, to B.

Always follows a defeasible fee and cuts short someone other than the grantor

Front 13

Springing executory interest

Back 13

To A, if and when X

Cuts short O, the grantor

Front 14

New York Executory Interests

Back 14

Merged into "remainders subject to a condition precedent"

Front 15

Rule of convenience

Back 15

Class closes whenever any member can demand possession.

To A for life, then to B's children; class closes when A dies

Womb rule

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Remainder: distinguishing characteristics

Back 16

Accompanies preceding estate of known, fixed duration, usually life estate or term of years.

Does not cut short another estate, allows it to run its natural course.

Front 17

When is a remainder vested?

Back 17

Created in ascertained person; not subject to condition precedent.

If not vested, then contingent

Front 18

Future interests subject to condition precedent in NY

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Called "Remainder subject to condition precedent."

Includes common law executory interests and contingent remainders.

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Destructibility of contingent remainders

To A for life, and if B has reached the age of 21, to B.

Back 19

At common law, a contingent remainder was destroyed if it was still contingent at the time the preceding estate ended.

Abolished; under modern rule grantor holds subject to springing executory interest until contingency fulfilled (or not).

Abolished in NY

Front 20

Rule in Shelley's Case

To A for life, then, on A's death, to A's heirs." A is alive

Back 20

At common law: Present and future interests would merge, giving A a fee simple absolute.

Rule of law which applies even in face of contrary grantor intent.

Virtually abolished today
Abolished in NY

Where abolished, this conveys life estate in A, contingent remainder in A's unascertained heirs, and reversion in O.

Front 21

Doctrine of Worthier Title

to A for life, then to O's heirs

Back 21

This doctrine applies to render the contingent remainder in O's heirs void. Thus, A has a life estate, and O has a reversion.

Rule of construction, not applicable in face of contrary grantor intent

Abolished in NY for transfers after 9/1/67.

Where abolished, A has a life estate, and O's heirs have a contingent remainder.

Front 22

Indefeasibly vested remainder

Back 22

Holder certain to acquire in future, no strings attached.

Front 23

Vested remainder subject to complete defeasance (or subject to total divestment)

Back 23

NY: Remainder vested subject to complete defeasance

Right to possession could be cut off by condition subsequent.

Distinguish from contingent remainder subject to condition precedent!

Front 24

Vested remainder subject to open

Back 24

Vested in a group of takers at least one of whom is qualified to take possession but subject to partial diminution because additional takers not yet ascertained can still qualify as class members

Apply rule of convenience to determine when class closes.

Front 25

Rule of convenience

Back 25

The class closes whenever any member can demand possession.

Example: To A for life, then to B's children. Class closes on A's death.

Front 26

Common law rule against perpetuities

Back 26

certain kinds of future interests are void if there is any possibility, however remote, that the given interest may vest more than 21 years after the death of a measuring life.

Front 27

Rule against perpetuities: applicability

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RAP potentially applies ONLY to contingent remainders, executory interests, and certain vested remainders subject to open.

Front 28

Bright-line rules for common law RAP

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1. A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates the common law RAP
2. Many shifting executory interests violate the RAP.

Front 29

RAP reforms

Back 29

1. "Wait and see" - determined on the basis of facts as they now exist at conclusion of measuring life.
2. Uniform Statutory RAP - common law RAP with alternative 90-year vesting period

Both allow cy pres

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Cy pres

Back 30

If a given disposition violates the RAP, a court may reform it in a way that most closely matches grantor's intent while still complying with the RAP.

Front 31

New York Perpetuities Reform Statute

Back 31

Rejects wait and see and cy pres.

1. Age contingencies reduced to 21 years
2. Presumption that woman over age 55 cannot have a child.
3. Suspension rule. RAP applies to restrict the power to sell or transfer for longer than perpetuities period