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Fee simple determinable
classic words to create : “so long as” “while” “during” “until”
Ends automatically upon stated event.
associated future interest: possibility of reverter retained by TRANSFEROR
Fee simple subject to condition subsequent
classic words to create - "but if" , "provided however" , "on condition that"
Continues until election by transferor after stated event
associated future interest: right of entry (AKA power of termination) retained by tranferor.
Fee Simple subject to executory limitation
NO classic words to create
ends automatically upon stated event
associated future interest: executory interest created in transferee
What are defeasible fees used for?
- 1. Sometimes to control land use
- . " to my daughter Jane for use only as an organic farm, but if the land is no longer used for that purpose, to the Valley Land Trust, a non-profit conservation organization.
Difference between types of defeasible fees
Running of S/L for adverse possession:
- . Theoretically, it should begin to run at different times for the fee simple determinable and the fee simple subject to condition subsequent.
- But in practice in many states, the two defeasible fees are treated the same.
Most created in context of family wealth transfers transactions - especially through a trust.
Possibility of reverter
Right of entry
Terminology for a Typical Transfer
Are interests retained
by the transferor....
- when O transfers a vested estate of a lesser quantum...
- a contingent estate of the same quantum.
"Lesser quantum" (or lesser estate) determined by the hierarchy we already know.
What is Vested?
definition - pg 259
- 1. it is given to an ascertained person
- 2. it is NOT subject to a condition or precedent.
What is contingent -
definition pg. 259
- 1. it is given to an unascertained person
- 2. it is made contingent on some event occurring other than the natural termination of the preceding estates.
A rule to identify reversions
O, owner of a fee simple, will not have a reversion if O transfers a possessory fee simple or a vested remainder in fee simple.
In all other cases in which O transfers a present possessory interest, O will have a reversion.
- The justification for or
- principle supporting a legal rule;
- The objective of a rule;
- A desirable or wise reason for
- Note: these policies take the place of legal
- precedent if case of first impression
First Possession: Acquisition of Property by Discovery and Capture
- of land (plus conquest)
- of existing things, previously unowned
- of personal or intellectual property (not responsible for)
- Rule: original acquisition
- requires having “first in time” “possession” of things previously unowned
Rule of Capture
- The rule of capture holds
- that to obtain possession of a wild animal on unowned land, “certain control,” is
- required. Certain control includes one of three things: actual bodily seizure, mortally wounding while
- continuing pursuit, or capturing it so escape is impossible
Doctrine of Waste
- of Waste: current possessor may not “unreasonably
- interfere” with interest of co-owner or future possessor
- § (1) Nature of
- the respective interests, i.e. whether likely to become possessory, and how
- long they may last;
- § (2) Type of
- conduct: affirmative, permissive, or ameliorative; and
- § (3) Remedy
- sought by subsequent possessor (damages, injunction, or forfeiture)
- to prevent waste à uses of
- property that fail to maximize the property’s value
- between competing interest of life tenants and remaindermen
3 Categories of Waste
- 1. Affirmative waste: arising from
- voluntary acts
- 2. Permissive waste: arising from a
- failure to act
- 3. Ameliorative waste: uses by the
- tenant that increase rather than decrease the value of the land
- arising from voluntary acts
- Results from injurious acts that have more than trivial effects§
Injurious: acts that substantially reduce the property’s value – with some exceptions
Ex. minerals can be extracted even though it would reduce the property’s value
- arising from a failure to act
- Essentially a question of negligence§
Failure to take reasonable care of the property§
Ex. life tenant lets water pump fall into disrepair resulting in loss of law, shrubs, and trees§
Ex. failure topay real estate taxes is waste, resulting in forfeiture of the life estate
uses by the tenant that increase rather than decrease the value of the land
Rule: There must be a reduction in the net value of the property to constitute waste and create a cause of action.
Woodrick v. Wood
Ameliorative waste is an improvement to an estate that changes its character even if the change increases the land's value. Under English common law, when ameliorative waste occurs, the interested party can recover from the tenant the cost of restoring the land to its original condition. This is based on traditional common law jurisprudence presuming that the grantor intended the property to be kept in its original condition.
- possessor estates
- tenants don’t have seisin (possession)
- regarded as personal Ks between lessor and lessee outside the tenurial system
- were classed as personal property
- regarded freeholder as still seised of the land, even after he’d granted a term
- of years and given up physical possession to the leasing agent
- a lease is involved, the landlord holds seisin; the tenant merely has
- a term of years (for a fixed period of time)
- also periodic tenancies, tenancies at will
The duration of a person’s ownership is called an ?????
In other words, an estate is ownership of property for a period of time
An estate that entitles the owner to possession in the present.
An estate that entitles the owner to take possession sometime in the future
Present Estates - 3 Types
Is the estate that continues indefinitely. Even when the owner dies, the estate doesn’t end; it passes to her devisees by will or to her heirs by intestate succession.
Is a present estate that lasts only until the owner of the estate — or someone else specified in the instrument creating the life estate — dies. If the life estate is for the life of the owner of the life estate, then her estate ends at her death, and she obviously has no more estate to give away by will when she dies.
Is a present estate that lasts for a definite period of time, for recurring periods, or until either the landlord or the tenant chooses to terminate it.
When a life estate or leasehold ends, someone else owns the right to take possession of the property. Because that person owns the right to possess in the future, her right is called ...
If the grantor of the life estate or leasehold retains for herself the right to take possession when the life estate or leasehold ends, the grantor’s future estate is called ???
If instead the grant gives the future estate to someone else, the future estate that follows the life estate or leasehold is called a???
e.g., it is created by express language; is capable of becoming possessory immediately upon the termination of the prior estate; this interest does not cut short a preceding interest in a transferee
Present Possessory Estates
1. Fee simple determinable;
2. Fee simple subject to condition subsequent;
Fee simple subject to executory limitation
Sale - conveyance by deed
Lease - Lease agreement
Git - Inter vivos / Will (Causa Mortis)
Inheritance - Intestate
No will / no heirs - reverts to the State
to remove one from land owned by another - Ie an action to quiet title.
1. Plaintiff has title to the land
2. Plaintiff has been wrongfully dispossess or ousted; and
3. Plaintiff has suffered damages
The connection between parties
Owner of property, who dies without a will, property transferred by intestacy statutes
- named in the will of the decedent to carry out
- directions in will and pay creditors
- person making (who has a possible future interest) will gives (Devising) to Devisee (real property)
- Bequeathed (personal property) (who has
- present possessory estate) and potentially giving to a second (future
- interest). “ O devises to A”
- -(who has a possible future interest) transferring (conveys) land
- by deed to Grantee “O conveys to A.” who has (present possessory estate) and
- possibly a (future interest)
the power to transfer resources to another person
Resnullius/terra nullius-a thing or territory belonging to no one
a. Acquisition by Find
(start by classifying the parties:true owner, a possessor or a subsequent possessor? Goal to protect True owners)
Elements of Adverse Possession (AP)
1. “An actual entry” for the Statutory Period SoL
- that is-determines the area that is APed. Limit on claim
- APer, Triggers statute of limitations
- Means: requires a physical act on the land,
- actual physical entry onto some part, actual not constructive. To provide
- notice to TO.
- of Title: instrument defective writing granting title. Not
- required for all AP, needed for constructive AP. Deed/Will/ Court
- Actual possession of lands granted thru AP under color of title
- only a part of the land covered by the defective writing is constructive
- possession of all that the writing describes.
- Constructive Possession If
- the APer has actual possession of part of the land described in the writing,
- he/she will be deemed to have possession of the rest of the land described in
- the writing.
- i. By
- Statute-if one exists can limit the type of activities that would satisfy the
- S/L requirements.
- Actual occupy the land
- ii. Fence
- and cultivate land- very narrowed ability of constructive possession.
- possession of part of the land described in the invalid instrument- neutralizes
- constructive possession of the part TO possesses.
- Separate owners and you don’t have
- actual entry as against all the owners by the APer.
- Boundary Disputes- most frequent type
- of AP lawsuit.
- a. Majority
- View: apply AP elements without modification.
- Krona v Brett (intro materials)
2. “Open and Notorious”
- to give TO a chance to find out someone is on their land/a
- chance to eject the trespasser, needs to actually check land at time of yr most
- likely to be used, not required actually tell). Acts of an AVG Owner
- Does not require actual knowledge of TO.
- for “Statutory Period” gives
- them a period of time to respond to it (do something about it) 5-21yrs
- Means: Not literally continuous; depends on
- the nature and location of the land. (type) Again often satisfied by use of the
- property in the manner that an average
- owner degree of occupancy (seasonal ok)
- by successive APers:
- i. Privity of estate- voluntarily
- transferred not ousted.
4.“Adverse” and “under claim of right”
- of the matter usually treated separately. Is the APer claiming for themselves,
- 1. Means:
- without the owner’s consent; not
- subordinate to the owner.
- 2. Found:
- Most likely a “judicial gloss” added by case law. (not expressly stated
- anywhere in statutes, just common law)
- Objective (the clear majority view)-means we do not care about the mental
- state of subject, don’t care about intent, just acts of APer that are similar
- to what the TO would do.
- Subjective good faith- looking into their (APer) state of mind,
- it does count.
Aggressive trespasser or subjective bad faith
- they won’t protect someone who’s not in good faith. They try to protect good faith
- 1. All remainders which are NOT vested are “contingent” remainders. Permits the
- transferor to let future events determine who is to take the property.
1.Cannot become possessory so long as it remains contingent.
2. CRs are destroyed if they do not vest upon the termination of the preceding estate.
ALWAYS retained by the Grantor
Always retained by someone OTHER THAN the grantor.
Types of Defeasible Fees
i. Fee simple determinable
ii.Fee simple subject to condition subsequent
iii.Fee simple subject to executory limitation-
Fee Simple Determinable
only until a specific future event happens
Classic words to create: “so long as,”“while,” “during,” “until”ii.
Ends automatically upon stated event
- Associated future interest: possibility of reverter retained bytransferor
Fee Simple Subject to Condition Subsequent
- Classic words to create:
- “but if,” “provided however,” “on condition that”
Continues until election by transferor after stated event
Associated future interest: right of entry (a/k/a power oftermination) retained by transferor
Fee Simple Subject to Executory Limitation
a fee simple that is divested or shifted from one transferee to another upon the occurrence of some future event
No classic words to create
Ends automatically upon stated event
Associated future interest: executorinterest created in another transferee
The term "________" means the estate is set up to expire or be divested if some specific event occurs.
5 basic kinds of future interests
Only for persons other than the Grantor:
- For Grantors Only:
- possibilities of reverter
- rights of re-entry
- executory interests
Future Interest of Fee Simple Determinable
Possibility of Reverter - back to the Grantor
A person who currently possess is sometimes said to have.....?
A person who has a RIGHT to possess land in the future is said to have .....?
Non-possessory ownership of land. An interest in land or a right to use the some or all of the land but NOT ownership....?
An interest in land that gives the owner a right to
In the future
Potentially in the future
Fee Simple (Absolute)
Greatest Possible duration of ownership
Devisee - Devise
A person that takes control of land under a WILL
An heir that takes control of land.
Tenancy in common
Created when a conveyance is given to 2 or more people.
...to A & B or ...to A & B as tenants in common
Like tenancy in common - but right of survivorship applies - meaning rights revert to surviving tenant - unless severed
Sometime - to A , B & C as joint tenants
Better - to A B C as joint tenants NOT tenants in common
A will that is written in a persons own hand writing. Does not need witnesses.
Inter vivos gift
1. Must be intent to give gift
2. Must be delivery (can be symbolic)
3. Must be acceptance