Property Law I Outline
Elon School of Law – Fall 2013
Professor Rivers-James
Estates in the Bundle of Rights
· When you inherit land, you get all of the sticks in the bundle
1. Possess
· Control occupancy on land?
2. Use
· Control activities on land?
· Ex: I give you land under the condition that you don’t cut down apple trees.
3. Exclude
· Control occupancy or activities on land
· Ex: I give you land on the condition that your daughter cannot enter it.
3. Transfer
· Alienability (transfer/sell)
· Inherit
· Devise (Will)
· Dead Hand Control: Dead people have limited control for limited amount of time.
Definition of Estate
· A form of interest in property
· A set of rights (not just dirt or land)
· Property is relationship between people about things
Tenant Status in Freehold Estates
· Unlimited tenure
o Tenant of the fee (land)
· Limited tenure
o Tenant for life
o Tenant for a term
Rights to Transfer Land
· Heritable
o Future
o Passed from one generation to the next
· Devisable
o Future
o Owner gives property through will
· Alienable
o Present (owner has right to transfer estate during life)
o Property is capable of sale/transfer
Inheritance Vocabulary:
· Decedent
o Person who died
· Convey
o To transfer land to someone else by sale OR gift
· Escheat
o If a decedent has no heirs or devisees, the interest escheats (passes) to the state
· Testate
o Decedent who dies with a will
· Testator
o Person who creates a will
· Executor
o Person named by testator to carry out provisions in will
· Devise
o To pass real property by will
· Devisee
o Person who receives property under a will
· Interest
o Right, claim, or privilege that person has toward estate
o A will does not create any interest in property until the testator dies because testator can always change mind about what he wants to do with land
· Intestate
o Decedent who dies without a will
· Quitclaim deed
o Formal release of one’s claim or right
· Seisin
o Possession of a freehold estate in land; ownership
· x
o People who survive the decedent and are entitled to inherit property of a decedent through the intestacy statute
· Issue:
o Lineal descendants (down)
o Children, grandchildren, etc.
· Ancestors
o Biological forbearers (up)
o Parents, grandparents, great grandparents, etc.
· Collaterals
o All other blood relatives of the deceased (out)
o Siblings, aunts/uncles, cousins, etc.
o Spouses are not heirs in common law because they aren’t blood relatives, but may take a portion by dower/courtesy or “forced share” statutes
· Primogeniture
o First born son inherits estate
· Adopted Children
o Adopted children can be heirs
o Began in US in late 1800s
· Children Born out of Wedlock
o Can be heirs
o Began in US in late 1970s
· Contingent remainder
o If there’s one contingent remainder, the rest are contingent remainders
· ”Down, up, and out” for determining who gets land
I. Freehold Estates Overview
= Possessory Estates
· 1. Fee simple
o “To A and her heirs”
· 2. Life estate
o “To A for life”
· 3. Fee tail
o “To A and the heirs of her body”
· Estates are characterized by
o Identifying words
o Nature
o Duration
o Rights
· Fee simple > fee tail > life estate
1. Fee Simple
· Identifying words:
o Common Law: “and her heirs”
§ Owner isn’t required to give land to heirs. Owner can just devise land or pass it onto the heirs.
§ “And her heirs” is not the heirs’ RIGHT of inheritanc
d isn’t “inherited” by intestacy, is not received by devise
o For a fee tail, there doesn’t have to be a will. You can’t will away a fee tail or let it go by intestacy
· Duration:
o Inherently limited estate that ended when bloodline expires
When it does eventually run out, it goes back to grantor
· Future Interests:
o Always a reversion or remainder
o Land is never available for sale
· Rights:
o Possessor cannot sell, give away, or devise the right to possess the land after his death
· State Approaches
o Fee tail still exists in: Maine, Delaware, Mass., Rhode Island
§ “Straw man” transaction to disentail
§ Flipping conveyance to get rid of condition
§ Majority: statute disentails (extinguish the tail)
o SC and Iowa
§ Fee Simple Conditional
§ If A dies without issue, estate reverts to the grantor
Doctrine of Waste
· Affirmative Waste:
o Voluntary acts that substantially reduce property value
o Decreases value of what remaindermen can get out of land
o Remaindermen have some say in what current tenant is doing
o Ex: Opening mine for extraction of minerals
§ Allowed if already open
o Ex: Over-timbering
§ Normal timbering = good husbandry
· Permissive Waste
o Failure to take reasonable care of property which falls into disrepair
o Arises from negligence
· Ameliorative Waste
o Common law:
§ Any change = waste
o Modern law:
§ Life tenant may be permitted to make changes if action increases value of the property
