Real Property 1: Present Estates

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Author:
TheoneandonlyMJ
ID:
93706
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Real Property 1: Present Estates
Updated:
2011-07-11 21:20:27
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NY Bar Exam Handout
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Real Property Freehold (a.k.a. present) Estates
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  1. What are the FOUR types of freehold estates?
    1. Fee Simple Absolute

    • 2. Fee Tail
    • (NY: ABOLISHED)

    3. Defeasible Fees

    4. Life Estates
  2. What are THREE types of defeasible fees?
    • 1. Fee simple determinable
    • (NY: Fee on limitation)

    • 2. Fee simple subject to condition subsequent
    • (NY: Fee on condition)

    3. Fee simple subject to executory limitation
  3. What language creates the fee simple absolute?
    "To A" or To A and his heirs"
  4. What is the duration of the fee simple absolute?
    Absolute ownership, of potentially infinite duration
  5. What is the transferability of the fee simple absolute?
    Devisable

    Descendible

    Alienable
  6. What is the accompanying future interest of the fee simple absolute?
    Nothing
  7. What language creates the fee tail?
    "To A and the heirs of his body."
  8. What is the duration of the fee tail?
    It lasts only as long as there are lineal blood descendants of grantee.
  9. What is the transferability of the fee tail?
    It passes automticaly to grantee's lineal descendants.
  10. What is the future interest accompanying the fee tail?
    Reversion (if held by grantor)

    Remainder (if held by third party)
  11. What language creates the fee simple determinable?
    (language providing that upon the happening of a stated event, the land is to revert to the grantor)

    "To A so long as...."

    "To A until...."

    "To A while...."
  12. What is the duration of the fee simple determinable?
    Potentially infinite, so long as event does not occur.

    If event does occur, forfeiture is AUTOMATIC.
  13. What is the transferability of the fee simple determinable?
    Devisable

    Descendible

    Alienable

    but ALWAYS subject to the condition
  14. What is the future interest accompanying a fee simple determinable?
    Possibility of Revertor (held by grantor)
  15. What language creates the fee simple subject to condition subsequent?
    (grantor must carve out right of reentry)

    "To A, but if X event happens, grantor reserves the right to reenter and retake."
  16. What is the duration of the fee simple subject to condition subsequent?
    Potentially infinite, so long as the condition is not breached and, thereafter, until the holder of the right of entry timely exercises the power of termination.

    Even if condition is breached, estate is NOT automatically terminated.
  17. What is the transferability of the fee simple subject to condition subsequent?
    Devisable

    Descendible

    Alienable

    but ALWAYS subject to the condition
  18. What is the future interest accompanying the fee simple subject to condition subsequent?
    Right of Entry/Power of Termination (held by grantor)

    NY: Right of Reacquisition
  19. What language creates the fee simple subject to an executory limitation?
    "To A, but if X event occurs, then to B."
  20. What is the duration of the fee simple subject to an executory limitation?
    Potentially infinite, so long as stated contingency does not occur.

    If contingency occurs, termination is AUTOMATIC
  21. What is the transferability of the fee simple subject to an executory limitation?
    Devisable

    Descendible

    Alienable

    but ALWAYS subject to the condition
  22. What is the future interest accompanying the fee simple subject to an executory limitation?
    Shifting executory interest (held by third party)
  23. What language creates the life estate?
    "To A for life."

    "To A for the life of B."
  24. What is the duration of the life estate?
    Measured by life of transferee or by some other life (pur autre vie).
  25. What is the transferability of the life estate?
    Devisable

    Descendible if pur autre vie and measuring life is still alive.
  26. What is the future interest accompanying the life estate?
    Reversion (if held by grantor)

    Remainder (if held by third party)
  27. What are TWO important rules of construction concerning the defeasible fees?
    1. Words of mere desire, hope or intention are INSUFFICIENT to create a defeasible fee. Need CLEAR DURATIONAL LANGUAGE.

    2. Absolute restraints on alienation are VOID.
  28. What are TWO general rules as applies to the life tenant?
    1. The life tenant is entitled to all ordinary USES AND PROFITS from the land.

    2. The life tenant must NOT COMMIT WASTE; she must not harm the future interest holders.
  29. What are the THREE species of WASTE?
    1. Voluntary or affirmative waste: willful destruction of overt conduct that causes a drop in value.

    2. Permissive waste, or neglect: land is allwoed to fall into disrepair OR the life tenant fails to protect the land.

    3. Ameliorative waste: acts that will enhance the property's value.
  30. What is the general rule for VOLUNTARY or AFFIRMATIVE WASTE?
    The life tenant must not consume or exploit natural resources on the property (such as timber, oil, or minerals), unless one of four exception applies (PURGE):

    Prior Use: prior to the grant, the land was used for exploitation (note: Prior Use and the Open Mines Doctrine)

    Repairs: life tenant may consume natural resources for reasonable repairs and maintenance

    Grant: life tenant may exploit if granted the right

    Exploitation: the land is suitable ONLY to exploit
  31. What is the PRIOR USE AND THE OPEN MINES DOCTRINE?
    If mining was done on the land before the life estate began, the life tenant may continue to mine, but is limited to the mines already open. Thus, the life tenant must not open any new mines.
  32. What is the general rule concerning PERMISSIVE WASTE?
    The life tenant must simply MAINTAIN the premises in reaosnably good repair.

    In addition, the life tenant is obligated to pay all ORDINARY TAXES on the land, to the extent of income or profits from the land. If there is no income or proit, the life tenant is required to pay all ordinary taxes to the extent of the premises' fair rental value.
  33. What is the general rule concerning AMELIORATIVE WASTE?
    The life tenant must not engage in acts that will enhance the property's value unless all future interest holders are KNOWN and CONSENT.

    NY: Life tenant may make improvements UNLESS the remaindermen object.

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