Real Property 2

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Terms

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FEE SIMPLE DETERMINABLE: Fee that terminates upon happening of stated event AUTOMATICALLY REVERTS back to grantor.

"For so long as," "While," "During," "Until".
POSSIBILITY OF REVERTER: A reversionary future interest.

Comes from fee simple determinable, Grantor automatically retains possibility of reverter.

Descendable and Devisable, and Transferable. (DDT)
DOCTRINE OF MERGER: When person acquires all PRESENT and FUTURE interests in land except contingent remainder, then Merger destroys contingent remainder.

NO merger if LE and next vested interest is created in the same instrument.

ONLY when one person ACQUIRES immediately successive estates.
VESTED REMAINDER SUBJECT TO OPEN: Created in CLASS of persons, certain to become possessory but SUBJECT TO DIMUNITION.

"all of A's kids" while A is still alive
REMAINDERS: Future interest in a 3rd person.

Becomes possessory on natural experation of preceding Estate.

CANNOT divest prior estate
CANNOT have time gap

Must be expressly created in instrument creating preceding prossessory estate.
FEE SUBJECT TO CONDITION SUBSEQUENT: Fee where Grantor RESERVES the right to terminate estate upon happening of event.

"Upon condition that" "Provided that" "But if" "If happens that"

(BUIP w/ 2 thats)
CONTINGENT REMAINDER: Remainder for UNBORN or UNASCERTAINED persons.

OR

Reaminder subject to Condition Precedent.
DOCTRINE OF WORTHIER TITLE ("DOWT"): Under common law, A remainder in grantor's heirs is ineffective.

"To B for life then to my heirs"

Under common law, If this happens then Grantor has a reversion.

MODERN RULE: rule of construction only, grantors heirs have contingent remainder.
INDEFEASIBLY VESTED REMAINDER: Created in:
1. Existing and ascertained person

2.NOT subject to condition precedent (right to immediate possession after normal termination of preceding estate)

3. Indefeasible = NO divestment, and NO dimunition.
FEE TAIL: Common Law Estate where inheritability is limited to lineal heirs.

Most states have abolished this to a Fee Simple.
PERMISSIVE WASTE: When Life Tenant fails to protect and preserve the land.

The L.T. is obligated to:

1. Preserve the land and structures in a REASONABLE STATE OF REPAIR.

2. Pay INTEREST on morgages

3. Pay ORDINARY TAXES on the land.

4. Pay SPECIAL ASSESSMENTS of SHORT DURATION.

NO need to pay insurance and not liable for the damges caused by 3rd party tortfeasor.
RIGHT OF ENTRY: A Reversionary Future Interest

Grantor must EXPRESSLY RESERVE.

Descendable and Devisable, but some courts hold not transferable inter vivos
FEE SIMPLE ABSOLUTE: Largest estate recognized in Real Property.

Can be sold, devised, divided, inherited, and of infinite duration. (IIDDS)

Presumed in absense of express contrary intent "To A and heirs"
DESTRUCTABILITY OF CONTINGENT REMAINDERS: Common Law: Contingent Remainder destoryed if it failed to vest before the termination of the preceding Freehold estate.

"To B for life, then to C if she reacehes 21." If B dies before C reaches 21, then C's reaminder is destoyed and reverts back to grantor.

MODERN RULE: Most courts now say Property reverts back to gantor and C has sringing executory interest.
RIGHTS AND DUTIES OF LIFE TENANT: Life tenant is entitled to the ORDINARY use of the land but cannot injure the future interests of the remaindermen or reversioner.

Doctrine of Waste (responsibilities)

1. Affirmative (Voluntary) Waste
2. Permissive Waste
3. Ameliorative Waste
AMELIORATIVE WASTE: Change that benefits property economically. Actionable at common law, but now you can alter and even demolish buildings IF:

1. Market Value of future interest is not diminished.

AND

1. Remaindermen don't object.
OR
2. There has been a substantial change in the neighborhood that deprives property of its productivity or usefulness.

Leashold tenants still liable for AW if no consent from owner.
AFFIRMATIVE (VOLUNTARY) WASTE: Natural Resources

Exploration limited to situations when:

1. necesary for REPAIR and MAINTENANCE of the land.

2. labnd SUITABLE ONLY FOR SUCH USE.

3. expressly or impliedly PERMITTED BY GRANTOR.
RULE IN SHELLEY'S CASE: Common Law rule against remainders in grantees' heirs.

"To A for life and remainder to A's heirs" then A takes LE and the remainder.

MODERN RULE: abolished in most states.
LIFE ESTATE: An estate measured by the life or the lives of one or more persons.

1. Life estate by Marriage Right: Dower, or Courtesy. (abolished to statutory right to part of spouses estate)

2. For life of Grantee

3. Pur Autre Vie (life of another)
VESTED REMAINDER SUBJECT TO TOTAL DIVESTMENT: Remiander that is subject to CONDITION SUBSEQUENT
DEFEASIBLE FEES: Fee simple estates that terminate upon the happening of stated event.
EXECUTORY INTEREST: Future interests that:

1. DIVEST a transferee's preceding freehold estate (shifting interest)
"to B to life, then to C but if C predeceases B, then to D" D=Shifting interest

2. FOLLOW A GAP in possession

3. CUT SHORT a grantor's estate (springing interest)
"to B then B marries C"
TRANSFERABILITY OF REMAINDERS AND EXECUTORY INTERESTS: Vested remainders are DDT

Under CL executory interests and contingent remainers were DD but no inter vivos transfers

MODERN RULE: both totally transfeable, ALSO descendable, and devisable as long as survival is not a condition.

Any future interest subject to transfer is subject to involuntary transfer (creditors)
RULE OF CONVENIENCE: When a Class Closes.

In the absense of express contrary intent a class closes WHEN ONE MEMBER OF THE CLASS CAN CALL FOR DISTRIBUTION of her share of the class gift.

"To A to life, then to B's children." what ever children alive at A's death thats the class.
TRUSTS: Created by will, inter vivos transer of the res, or inter vivos declaration.

Charitable Trusts= Indefinite Beneficiaries, Perpetual, and Cy Res
THE RULE AGAINST PERPETUITIES: No interest in property is valid unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.

Does not apply to Indefeasibly vested remainders and Vested reaminders subject to total divestment.

ALSO grantors interest exempt.
WHEN PERPETUITY PERIOD BEGINS TO RUN: For a will = testator's death

For deeds = Date of Delivery

For irrevocable trust = date it was created.

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Deck Info

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