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Property I
SUNY Buffalo Law School
Steinfeld, Robert J.

a.       Fee Simple Absolute
                                                              i.      Fee simple absolute = invests the holder of the fee with full possessory rights, now and in the future
                                                            ii.      Incidents:
1.      Alienable
2.      Divisable
3.      Heritable
                                                          iii.      Rule = a fee simple title is presumed to be intended to pass by a grant of real property unless it appears from the grant that a lesser estate was intended – White v. Brown
1.      Old rule: “to A and his heirs” (words of limitation)
2.      The intent of the testator is always important – White v. Brown
                                                          iv.      Rule = OàA for life and remainder to the heirs of B = this gives the heirs of B a fee simple absolute
                                                            v.      Rule = if a transfer is unclear as to the type of estate – if there was no indicated gift over, the court will likely read it as transferring a fee simple absolute – White v. Brown
                                                          vi.      Rule = if testator demonstrated he knew how to make an absolute gift, anything that looks like something less is probably something less – White v. Brown
                                                        vii.      Rule = there may be a statutory presumption against partial intestacy – White v. Brown
                                                      viii.      Rule = indicating withholding rights can point to no fee simple absolute
b.      Fee Tail
                                                              i.      Fee tail = limits the right of inheritance to lineal descendants
1.      “to A and heirs of his body”
                                                            ii.      There remains a fee simple absolute interest after a fee tail – even though a fee tail could go on for generations (reversion or remainder)
                                                          iii.      Rule – only available in DE, MA, ME and RI; in other jurisdictions, the language attempting to make a fee tail creates a fee simple absolute
1.      Way around this: “to A for life, then to A’s issue from time to time living forever” – need to watch out for Rule against P.
                                                          iv.      Rule = a person wwith a fee tail can give away his interest to another party – the interst in a life estate and ends at the grantors death and the land goes back to heirs of grantor’s body.
c.       Life Estate
                                                              i.      Life estate = is measured by the life of the grantee
1.      “to A for life”
                                                            ii.      There is always a future interest after a life estate
                                                          iii.      Rule – can alienate a LE during the life tenant’s life and the estate will then end when the life tenant dies
                                                          iv.      Rule of necessity – a court will only order the sale of land with reminder interest in FSA after a LE against the will of the remaindermen “with caution and evident need” – Baker v. Weedon
                                                            v.      LE should be avoided in favor of a trust (legal LE)
                                                          vi.      Valutation of a LE
1.      Use of a mortality talbe
2.      Lump sump is then divded by the LE and remaindermen
3.      LE is entitled to the interest thrown off by the asset and the money remaining at the LE’s death goes to the remaindermen
d.      Leasehole Estate
                                                              i.      3 types
1.      Term of years
2.      The periodic tenancy
3.      Tenancy at will
                                                            ii.      Landlord hold seisen, tenant holds possession
II.                INHERITANCE TERMS
a.       Heirs= if a person dies intestate, the decendent’s real property descends to his heirs
                                                              i.      Are those persons remaining alive and designated by statute: includes issue, ancestors and collaterals
                                                            ii.      Right of representation = the heirs of an heir who has died can take the dead party’s interest
b.      Issue= blood descendants – if a person leaves issue, the issue take to the exclusion of anyone else
c.       Ancestors = by statutes, parents usually take as heirs if the decedent leaves no issue
d.      Collaterals = all persons related by blood to the decedent who are neither decedents or ancestors
e.       Escheat= property can go to the state if no other person has a claim to take
                                                              i.      Rule = if B owns a future fee simple absolute and dies without heirs, the state takes over his future interest
f.       Rule – a will has no legal effect until the testator dies
a.       Reasons:
                                                              i.      Make estate unmarketable
                                                            ii.      Perpetuate concentration of wealth
                                                          iii.      Discourages improvements on land
                                                          iv.      Prevents owners creditors from reaching the property
b.      Types
                                                              i.      Disabling restraint = withholds the power of transferring the interest
                                                            ii.      Forfeiture restraint = an attempted transfer results in a forfeiture of the interest
                                                          iii.      Promissory restraint – an attempted transfer breaches a covenant
c.       Restraints on a fee simple
                                                              i.      Total = any total restraint is VOID – White v. Brown
                                                            ii.      Partial = a restraint that purports to restrict the power to transfer to specific persons, or by a specific method, or until a specific time
1.      Reasonable restraints doctrine –  a court will evaluate purpose, duration and consequences to determine whether or not to void a direct partial restraint on alienation
                                                          iii.      Rule = if a use restriction and a restraint on alienation appear in the same transfer, the court may separate the conditions and only strike the restraint on alienation – Mountain Brow Lodge v. Toscano
a.       Doctrine of waste- a holder of a present possessory interest is entitled to all ordinary use of the land; but he cannot do anything that injures the interests of the person who owns the future interest
                                                              i.      Remedies: damages or injunction
                                                            ii.      Rule= the longer the present possessory estate, the more freedom the holder will have
                                                          iii.      Cannot unreasonably interfere with the expectations of the future interest
                                                          iv.      Rule – it matters the amount of interest each person has – Woodrick v. Wood
b.      Types of Waste
                                                              i.      Affirmative waste= affirmative act that consumes or exploits the land leaving it damaged – e.g. strip mining
                                                            ii.      Permissive waster = when the possessor allows the land to fall into disrepair or fails to take reasonable steps to protect the land
                                                          iii.      Ameliorative waste = any change to the land that consists of an economic benefit to the property – a substantial physical change that increases the value
1.      Not available in most US jurisdictions – Woodrick v. Wood.
V.                DEFEASIBLE FEES
a.       Defeasible fees – estate of potentially infinite duration that can be terminated by the happening of a specified event – language must be very clear
b.      Type of defeasible fees
                                                              i.      Fee simple determi

are vested and not subject to Rule against P.
c.       Future Interests in Transferee
                                                              i.      Vested Remainder
1.      Indefeasibly vested remainder
a.       Can only be created in an ascertained person in being
b.      No condition that may prevent it becoming possessory
c.       Is not subject to divestment
d.      Is not subject to open
2.      Vested remainder subject to divestment
a.       Language condition subsequent = condition is apart from the gift and divests the grantee when the condition occurs (outside the commas)
b.      Subject to open= when agift is made to a class and the class is not yet closed it is subject to partial divestionment
                                                            ii.      Contingent Remainder
1.      Unascertained person OR
2.      Made contingent upon some event occurring other than the natural termination of the preceding estate
a.       MUST BE condition precedent= condition is included as part of the gift
3.      Rule – contingent interest DO NOT need to be divested
4.      Rule – if there is more than 1 contingent remainder, they are alternative contingent remainders, and none of them are subject to divestment or executor interests
5.      Rule where there is a contingent remainder, there is also a REVERSIOn
a.       If the condition has not been met at the termination of the previous estate, grantor takes vested possession and the CR becomes a springing executor interest
6.      Rule – contingent remainders are NOT destroyed if not ready to vest at the end of the preceding freehold estate
                                                          iii.      Notes
1.      Remainders almost always follow life estates
2.      Remainders must be expressly created in the instrument creating the intermediate possessory estate
3.      A remainder can never cut short a fee simple
4.      Cannot have a remainder that follows a vested fee simple
5.      Any interest that follows a fee and is held by a 4rd person in an executor interest
6.      EIs are not considered vested
7.      Rule- if the language is unclear, courts favor vested remainders subject to divestment over contingent remainders
8.      Rule – once a future interest can be created in another, it does nto ever change its name – e.g. transferee gives vested remainder to transferor- stays a remainder and does not become a reversion
                                                          iv.      Executory interest
1.      Executor interest – future interest created in transferee that takes effect by CUTTING SHORT the interest in another
2.      2 types of executor interests:
a.       Shifting executor interest – cuts short an interest in the transferee (follows a defeasible fee) – cuts short prior estate created by the same conveyance
b.      Springing executor interest – cuts short grantor
                                                                                                                                      i.      Look for “if and when” language
                                                                                                                                    ii.      Can also follow a gap in possession, usually divesting the reversion
c.       Rule –an executor interest cannot follow a contingent remainder because an EI is a divesting interest and contingent remainder does not need to be divested
d.      Rule – f the preceding interest is vested, the following interest MUST be an EI