Hildreth
Property
Spring 2013
Present Possessory Freehold Estates
(1) Fee Simple Absolute
a. Absolute ownership
b. “To A, and his heirs”
c. Best present possessory estate one could hope for
i. Freely divisible (capable of passing by will)
ii. Freely descendible (passes to one’s heirs if one dies intestate w/o a will)
iii. Freely alienable (transferable inter vivos – to be transferrable during one’s lifetime)
d. There is no future interest to accompany the fee simple absolute b/c it is absolute ownership
(2) Fee Tail
a. Product of history; virtually abolished in the US today
b. Depended on the grantor’s use of very specific language
c. “To A, and the heirs of his body”
i. Pass directly to grantee’s lineal blood descendants
d. Rooted in the desire to preserve family dynasties
e. The feel tail could be accompanied by a future interest
i. Reversion in O
ii. Remainder in some third-party
(3) Defeasible Fees
a. Three Kinds
i. 1) Fee Simple Determinable
1. Grantor must use clear durational language
a. “To A so long as…”
b. “To A during…”
c. “To A until…”
2. If the condition is violated, forfeiture is automatic
3. Only one accompanied future interest
a. Fee simple determinable must be accompanied by the possibility of reverter in the grantor
ii. 2) Fee Simple Subject to Condition Subsequent
1. Grantor must use clear durational language and explicitly carve out the right to re-enter
a. “To A, but if X happens, grantor reserves the right to re-enter and re-take”
2. If the condition occurs, it is not automatically terminated, but it can be cut short at the grantor’s option
3. Accompanied by a future interest
a. Right of Entry – The power of termination
iii. 3) Fee Simple Subject to Executory Limitation
1. Someone other than the grantor stands to take as a consequence of the conditions occurring
a. “To A, but if X event occurs, then to B”
2. If the condition is violated, forfeiture is automatic
a. But, that forfeiture works in favor of someone other than the grantor
3. Accompanied by a future interest
a. Shifting Executory Interest
(4) Life Estate
a. Must be measured in explicit lifetime terms
i. Never in terms of finite years
b. “O conveys to A for life”
i. A – Life Tenant
c. Accompanied by a future interest
i. Reversion in O
1. At the end of A’s lifetime, this estate reverts back to O
2. If O is dead, then to O’s heirs
d. Life Estate Pur Autre Vie
i. Life estate measured by a life other than the grantee’s
1. “To A for the life of B”
e. Life Tenant and Waste Doctrine
i. Life tenant must not commit waste
1. Life tenant must not do anything that would hurt the future interest holders
ii. At the end of life tenant’s lifetime, some other entity stands to take
1. Future interest holder’s entitlement should not be compromised b/c of wasteful conduct of life tenant
iii. Three Kinds of Waste
1. Commissive/Voluntary Waste – affirmative waste
a. Overt conduct on the part of the life tenant that causes a drop in value
b. Willful acts of destruction
2. Permissive Waste – neglect
a. Land is allowed to fall into disrepair
b. Life tenant is under a pattern of remiss and failing to keep up with the premises
c. Life tenant must simply maintain black acre (baseline/benchmark)
i. Merely keep up with the premises
3. Ameliorative Waste
a. Life tenant must not engage in conduct that will enhance the premises’ value unless all future interests consent
b. Recognizing sentimental value
i. Black acre is the beloved homestead
ii. Preserving the future i
o A is alive
§ The present and future interest merge, giving A a fee simple absolute
§ Today, this rule has been abolished
· “To A for life, then to A’s heirs”
o A has a life estate
o A’s heir have a contingent remainder
o (3) Doctrine of Worthier Title
§ Applies when O, who is alive, tries to create a future interest in his heirs
· O, who is alive, conveys to A for life, then to O’s heirs
§ If the doctrine of worthier title did not apply, A has a life estate, and O’s heirs have a contingent remainder
§ Instead, under this doctrine, the contingent remainder in O’s heirs is void
· A has a life estate
· O has a reversion
§ Exists to promote the free transfer or alienability of land
· O is alive, so giving him a reversion
· Presumably, A and O can team up and sell in fee simple absolute
§ Is applied today in most states
· Vested Remainders
o Three Categories
§ (1) Indefeasibly Vested Remainders
· Best kind of remainder to have
· The taker is known and not subject to any conditions
o “To A for life, then to B”
§ (2) Vested Remainder Subject to Complete Divestment
· Vested remainder subject to complete defeasance
· the remainder man exists and he is not subject to a condition precedent, but is rather subject to a condition subsequent
o A condition subsequent is some eventuality that, if it manifests, divests the remainder man of his interest
§ “To A for life, then to B, but if B dies under 25, then to C”
