I. Possessory Estates
A. Definitions
1. Heir
a. persons who survive decedent & designated as intestate successors under state’s statute of descent
b. no one is heir of living person
1.) presumptive heirs – people who may be heirs after death
2. Issue (descendants)
a. take to the exclusion of all other kindred
b. includes further descendants
1.) ex: children of deceased daughter by right of representation
3. Primogeniture
a. Eldest son & his issue take all
b. abolished in U.S. by end of 18th century
4. Child born out of wedlock
a. Inherits from mother
b. from father if paternity acknowledged or proved
c. adopted children from adopted parents & sometimes natural
5. Ancestors – Parents
6. Collateral
a. related by blood, not issue or ancestor (brother, sister, etc.)
7. Escheat
a. if dies w/ no heir, property goes to state
8. Words of Purchase
a. describes who gets property under conveyance
b. (O to A and his heirs) A is word of purchase
9. Words of limitation
a. define exactly what purchaser got (and his heirs) describes F.S.A.
B. Present Possessory Estates
– Six of them under common law
1. Fee Simple Absolute
2. Fee Tail
3. Life Estate
4. Fee Simple Determinable
5. Fee Simple Subject to Condition Subsequent
6. Fees Simple on Executory Limitation
1. Fee Simple Absolute
a. Conveyance
1. O to A, O to A and his heirs (old requirement)
b. Attributes
1.) alienable
2.) devisable
3.) descindible
a. If no will devises interest, then B passes to O’s heirs, potentially infinite
c. Ways F.S.A. can be controlled
1.) By Gov’t
a.) Power of Imminent Domain, (condemning, forcing O to sell] to gov’t)
b.) Regulation of Use
i.) state may leave O w/ possession but regulate use
ii.) Police Powers – enable state to pass laws promoting health, safety, & morals
2.) By Other Landowners
a.) ex: if they claim O’s polluting actions are a nuisance
3.) By Other’s who previously used land
a.) ex: easement
2. Fee Tail
a. Conveyance
1. O to A & heirs of his body
b. Attributes
1.) Descindability/ Inheritability Restricted
a.) only to direct lineal descendants (children)
1.) not other heirs
2.) expires when line dies out & title goes elsewhere
2.) Not Devisable
a.) Any conveyance in a will void, title conveyed to direct lineal descendants
3.) Alienability
a.) before 15th century
1.) O could to X, but upon death of O title transferred to O’s direct lineal descendants
c. Largely Obsolete
1.) May be considered flawed (incomplete) title
a.) through process of Common Recovery (p. 217) may become fee simple absolute
b.) Disentailing
i.) a lineal descendant could cut of the tail by a lawsuit or straw man
2.) In some jurisdictions still possible to convey a fee tail to A
a.) but, if A conveys to B during his life, B gets a fee simple absolute
3.) In other jurisdictions it is abolished
a.) if O tries to convey fee tail to A, A gets F.S.A.
4.) In the rest (including KS) Kan. Stat. Ann. § 58-502
a.) if O conveys to A a fee tail, A gets a life estate, after A’s death, A’s children get F.S.A.
b.) Seen as fee simple subject to condition subsequent that grantee have children,
once children born, becomes a F.S.A.
5.) Any conveyance made before statutes continue under original common law rules
3. Life Estate
a. Conveyance
1.) O to A for life
b. Attributes
1.) Alienability Restricted
a.) purchaser only has right to possess land during rest of A’s life
b.) life pur autre vie (p.221)
2.) Not Devisable
a.) nothing to convey upon death
3.) Not Descindible
a.) nothing to convey upon death
c. Two Types
1.) Life of Grantee as measuring life
2.) Pur Autre Vie (Fo
ssibility or reverter or right of entry
1.) would ignore “but” clause in above conveyance
C. Rules used for Interpreting Conveyances (White v. Brown)
1.Rules of Construction
a. When the intent of the testator is so ambiguous or obscure that it cannot be ascertained from the language of
the instrument or the surrounding circumstances,
rules of construction must be applied to interpret the instrument. (White v. Brown)
2. Current Law favors conveyance of All Property (Fee Simple Absolute)
a. Common Law presumed that life estate is intended unless the intent to pass a fee simple is clearly expressed in an instrument
b. Doubts should be resolved against limitation and in favor of the absolute estate
3. Public Policy restricts restraints on alienation
a. may be stricken from a conveyance
1. ex: if O conveys land “to A, but if A ever attempts to sell the land, then to B,”
a. court would find the restraint void; thus, A owns fee simple absolute and B has no interest.
b. However, restricting who uses property may be permitted even though it impedes alienation
1.) (Mountain Brow Lodge v. Toscano)
4. Dividing Property; Defeasible Estates & Future Interests
a. Under imminent domain (Ink v. City of Canton)
1.) If a grant was a gift, subject to a condition or determinable, the grantee is entitled to the
value of the property under the condition.
2.) Grantor is entitled to difference in value between conditional use and actual value
D. Law of Waste
1. A possessor shouldn’t be able to use property in a manner that unreasonably interferes w/ B’s expectation if B has a future interest
2. Today, holder of any future interest can assert waste cause of action against any present possessory estate holder
a. Before it was only: Reversion, Vested Remainder in F.S.A, & Landlord
3. One cotenant can bring against other cotenant
E. Remedies for Holders of Future Interests
1. Sue for damages
a. amount by which holder’s activities reduce value of future interest
b. some states award multiple damages (3x actual)
2. Sue for Injunction
3. Sue for accountant
a. forces holder to pay any profit wrongfully gained from activity
4. Forfeit present possessory estate making future interest present
a. ex: if possessor fails to pay property tax
5. Future Interest not a mere expectancy, Gives Legal Rights to owners
a. presently existing property interest, protected by the court as such
