Villanova University School of Law
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· “Dead Hand of the Past”: old, outdated property rules affecting the transfer and usage of modern property :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
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 Simple Determinable
“On the occasion that”
“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”
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).