Select Page

Property I
Villanova University School of Law
Sirico, Louis J.

Villanova University School of Law

Professor Sirico


Spring 2014

Creating Interests in Land:

I. Freehold Estates: The Dead Hand of the Past

A. The Estate System

· Feudal Era Notion: purpose of property to express and cement interdependent social relationships, wealth determined by land, kept in the family – static notion of property/dynastic motivation:

o Primogeniture: descending of property through the oldest male heir of the lineal descendants

· “Dead Hand of the Past”: old, outdated property rules affecting the transfer and usage of modern property :

o Negative impacts on future generations because things change.

· Kings support alienation by the lords:

o Lords would have less property and wealth

o The sale of property was a tax event, money goes to King

Ways to transfer property:

· Inter vivos: “Among the living”:

o Donor: Grantor

o Donee: Grantee

· Death:

o Will (die testate):

§ Testator: Grantor/Executor

§ Devisee: Person who inherits real property

§ Legatee: Person who inherits personal property

o No will (die intestate):

§ Heirs: Recipients by intestacy statute

§ Intestacy Statute: Determines which heirs inherit, if no valid will

§ No heirs: Property escheats to the state

o All successors (devisees/heirs) must go through probate process

Alienation of property: transfer of property by giving it away, selling it, passing it by will:

· Alienable: Property can be sold or given away while grantor is alive (inter vivos)

· Devisable: Like alienable, but under a will

· Descendible: Like alienable, but under intestacy statute

· Seisin: Someone has to be seized of property – someone has to own the property at any time

Interests in property:

· Present Interest: interest that gives owner the right to immediate enjoyment of property

· Future Interest: no right to present enjoyment, right to enjoyment to begin at some point in the future

· Reversion: future interest either in original grantor or his heirs

· Remainder: future interest in a third party

Four Corners Rule: when ambiguous, don’t go outside document.

· Four Canons of Construction:

o Keep property in bloodline

o To promote alienability

o To avoid intestacy

o To avoid interpreting the law so that it is invalid under common law rules

B. Fee Simple Absolute (Fee Simple)

· A To B

· A to B and his heirs

· Greatest degree of ownership possible, formal legal ownership of title

· Strong presumption in favor of fee simple today

· Belief land should be freely alienable

· A has no present interest – B has present interest

C. Fee Tail

· A to B and his bodily heirs

· A to B and the heirs of his body

· Bodily Heirs: oldest child (primogeniture), lineal descendants

· Dynastic motivation: keep wealth in the family, can’t transfer outside of family in any permanent way

· Comes to a natural end at some point

· Statute De Donis (1285): Authorized fee tail

· Common Recovery: Permits a person with a fee tail to sell property, collusive lawsuit where people lied

o Not used today

D. Life Estate

· A to B for life

· Ownership of land for his life, all rights extinguished by death of life tenant.

· Life Estate pur Autre Vie: For the life of another

o Life estate ends when the person named dies:

§ A to B for life (B’s life is the measuring life)

§ A to B for the life of X (X is the measuring life)

§ A to B for life, B sells to C (B’s life is the measuring life)

o Grantor retains a future interest or reversion

· Maintenance and Repair: Life tenant is responsible for necessary repairs and normal maintenance during a life estate.

o For improvements that are necessary to protect estate (long-term/high costs), life tenant can make remainderman pay the difference

· Waste: Any act of the life tenant which does permanent harm to real property to the prejudice of the heir

o Traditional notion: Any action that increases or decreases property value constitutes waste

§ See Brookav: Brother George conveyed residence to his brother after his death. If George destroys the building, fails to make necessary repairs, or even increased property value, George has made waste.

o Modern view: Only decreases in property/economic value constitute waste

§ Doctrine of Equita

dom (opposes US culture).

· A restraint on the user is invalid – restraint on the use is valid:

o A to B, so long as B owns and operates the property (invalid, restriction on A).

o A to B, so long as the property is used as church (valid, restriction on property).

Fee Simple Subject to Condition Subsequent

Fee Tail

Fee Simple Determinable

Fee Simple

“Provided that”

“On the occasion that”

“But if”

“A to B and his bodily heirs”

“A to B and the heirs of his body”

“So long as”



“A to B”

“A to B and his heirs”

“To B in fee”

F. Wills

1540 – Statute of Wills:

· Created wills if certain requirements met (two witnesses and signatures).

· Rebuttable presumption that formalities were complied with.

Per Capita: by the head

· Divides equally among heads (i.e. grandchildren).

Per Stirpes: by the root

· Divides equally among (i.e. children):

o X’s children share one half and Y’s children share the other half).

In Terrorem Clause: If an heir contests the will, the heir is cut off – courts only interpret this to apply if an heir raises frivolous challenges.

Codicil – addendum to a previous will.

G. Remainders and Executory Interests

Reversion: Estate reverting back to grantor upon life tenant’s death, only at the natural termination of the prior estate:

· “A to B for life.”

o A has a reversion (future interest).

· “A to B and his bodily heirs.”

o A has a reversion (future interest).