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Property II
Rutgers University, Newark School of Law
Sclar, Diana

I. Up from Feudalism
II. The Fee Simple
A. Fee Simple– (to “A and his heirs”), an interest in land that may endure forever; was created b/c the estate no longer escheated to O, unless A died w/o heirs.
i. The fee simple is absolute ownership, to convey at will, and to be reached by creditors.
ii. The heirs have no interest in the land until A dies.

B. Inheritance of Fee Simple
i. Heirs: persons who survive the decedent and are designated as heirs by state’s statute of descent. Until person dies, he only has “heirs apparent.”
ii. Issue: Descendants (at C/L, must be born in wedlock, and not adopted; today—not so).
iii. Ancestors: Parents usually take as heirs if no issue.
iv. Collaterals: Persons related by blood to the decedent (not including issue or ancestors).

C. Fee Simple Absolute—largest estate in which all present and future interest are granted to one person w/o restraints.
i. Created by including “and his heirs” in grant (C/L)
ii. Grant of real property is presumed to transfer, absent specific language to the contrary (modern majority rule)
iii. Characteristics: absolute ownership, potentially infinite duration (fee), no limitation on its inheritability (simple)

D. Rise of Alienability—w/ increase demand to land Ts began to convey fees to others (not their heirs) w/o lord’s consent.
i. Alienable—conveyable openly & w/o the lord’s consent

E. Rise of the Fee Simple Estate: After 1290, a fee which began as a holding now became a freehold estate b/c it was not terminable at the will of the lord (it’s inheritable).
i. Freehold Estate—possessory estate hold in fee tail, fee simple, or for term of life
ii. Escheats only when current T dies w/o heirs

F. Creation of Fee Simple: C/L fee simple was a conveyance to “A and his heirs.” Then, A’s son had no interest during his lifetime for he would inherit the land when his father, A, passed (future interest). Today, no longer necessary to use words of inheritance in deed so grant by O “to A” conveys a fee simple.
i. “to A and his heirs”—such language not always req’d
ii. “and his heirs”—words of limitation
iii. “to A”—words of purchase

G. Cole v. Steinlauf (Buying a Lawsuit)
i. D and P entered into K for sale of property. K indicated that if title was not free and clear of any defects, P could reject the K and all fees would be repaid. Title mistakenly said “and assigns forever” instead of “heirs” (the defect) which would make the conveyance a fee simple.
ii. Issue: did deed convey the real est

and if A dies without issue to my daughter, B and her heirs”
1. creates a fee simple in A and the gift over on A’s death without issue is void; statute automatically disentails a fee tail. OR
2. creates a fee simple in A and B will take if A leaves no surviving issue; not when A’s whole line of issue runs out (i.e. A’s kids die before A dies).

C. Public Policy Considerations: bad for alienability; lazy kids who assume they will inherit parent’s land; inefficient use of the land; concentration of wealth continues, BUT also want to consider the intent of the grantor, do we want to frustrate that intent?

D. Pro Fee Tail: It’s the intent of the grantor and the grantor’s intent must be respected.

E. Con Fee Tail: The state wants the land to be as alienable as possible.

F. The Straw Transaction: Easy way to get around many laws that allow conveyance by deed only (and then it becomes fee simple). If strawman runs away with title, ct will call this a constructive trust and this estate still belongs to rightful owner.