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Property- MBE - Estates in Land


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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)
potentiall infinite DURATION

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 #3: John wills the farm to Yoko. What estate does Yoko receive?
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?

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)

In Transferees
4) Vested Remainder (3)
5) Contingent Remainder
6)Executory Interest (2)
Future Interests Retained by Transferees
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”

• 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
"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?"

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