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Property II
University of South Carolina School of Law
Eagle, Joshua Gary

Estates allow owners to divide ownership in land across time.

Present Interests in Land

Present Interest

Future Interest in Grantor

Future Interest in 3rd Party

Fee Simple Absolute

n/a

None

Fee Tail

Reversion

Remainder

Life Estate

Reversion

Remainder

Fee Simple Determinable

Possibility of Reverter

Fee Simple Subject to a Condition Subsequent

Right of Entry (or Power of Termination)

Fee Simple Subject to an Executory Limitation

Executory Interest

Leasehold

Reversion

Remainder

Words of Purchase – Identifies who takes the estate
Words of Limitation – Identifies what type of estate is taken

Estate

Words of Limitation

Fee Simple

“to A and his heirs”

Fee Tail

“to A and the heirs of her body”

Life Estate

“to A for life”

Fee Simple Determinable

“to A so long as A uses the property as specified” (durational language)

Fee Simple Subject to Condition Subsequent

“to A, provided that A uses the property as specified” (conditional language)

Fee Simple Subject to Executory Limitation

“to A, so long as A uses the land as specified, then to B”

Leasehold

“to A for 10 years”

Fee Simple Absolute
The whole damn thing forever.
“to A and his heirs”
A’s heirs by will (devisee’s and legatee’s)
A’s heirs by intestancy
Spouse
Children
Grandchildren (per stirpes)
Per stirpes – Grandchildren’s portion is determined by parents generation
Parents
Siblings
Nieces/Nephews
Grandparents
Aunts/Uncles
Etc.
Escheats – If there are no heirs, property goes back to the state.
At common law, Children born out of wedlock could not inherit from their father, only their mother. Supreme Court has ruled this restriction unconstitutional.
Fee Tail
Limits inheritance to blood relatives
Only recognized in a few states. Never recognized in SC.
Fee tail can generally be converted to a fee simple.
Life Estate
Present interest whose duration is defined by a life.
Life estates can be transferred
Holder of a transferred life estate holds a Life estate pur autre vie – Estate held based on life of third party
Person cannot transfer more than they own.
Defeasible Fees
Fee Simple Determinable – “automatically terminated upon occurrence of some event”
So long as…
As long as…
Possibility of reverter on event
Executory interest in third party
Adverse possession runs as soon as the event occurs and the estate terminates
Fee Simple Subject to condition subsequent – Requires s

emainders – One party or the other will get the remainder.
“A to B for life, then to C if C survives B, otherwise to D”
Remainder to C is contingent on C surviving B.
Remainder to D is contingent on C NOT surviving B.
Either C or D, but not both will take the property.
Vested Remainders
Most vested remainders are indefeasibly vested.
Vested Remainder Subject to Complete Defeasement
“A to B for life, then to C, but if C does not survive B, then to A”
C’s remainder is vested. However, if she does not survive B, then loses possession of the land.
“A to B for life, then to C if she survives B”
C has a contingent remainder.
VRSCD preferred as a way around RAP and destruction.
Vested Remainder Subject to Partial Divestment (a.k.a. Vested Remainder Subject to Open)
“A to B for life, then to B’s children.
B has no children. Remainder is contingent.
B has one child C. C holds Vested Remainder Subject to Partial Divestment.
B can have more children, who would proportionally reduce C’s interest in the property.
If time of vestment is ambiguous, how do the courts interpret the conveyance?
Majority rule is that interests vest as soon as possible
Minority rule is that interests vest as late as possible.
Minority rule is to look for the interest of the grantor.
Transferability of contingent remainders
Traditional Rule is that they were not transferrable
Some states will allow transfer.
More likely to allow transfer if dependent on an event (when B reaches his 25th birthday) as opposed to not knowing who will take possession (to B’s children)
Destruction of Contingent Remainders
“A to B for life, then to C when she turns 21”
At common law, if B dies before C turns 21, C’s interest is destroyed, even if she later turns 21!