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

 
PROPERTY OUTLINE SIRICO SPRING 2015
 
FREEHOLD ESTATES
I.     Fee Simple Absolute
A.   Definition: the absolute right to property ownership that goes on forever if nothing is done to change it.
B.   Language creating a Fee Simple Absolute:
1.    “To B.”
2.    “To B and his heirs.”
3.    “To B in fee.”
 
II.  Fee Tail
A.   Definition: ownership of property passed down through lineal descendants; a series of lineal life estates
B.   Authorized by STATUTE DE DONIS
C.   Language creating Fee Tail:
1.    “To B and the heirs of his body.”
2.    “To B and his bodily heirs.”
 
III.        Defeasible Estates
A.   Definition: a fee simple estate of potentially infinite duration that can be defeated by the happening of a specific event
1.    defeasible = able to be defeated
B.   Two Types of Defeasible Estates:
1.    Fee Simple Determinable = ends automatically/when the condition is broken
a)    Future interest = possibility of REVERTER
(1)  alienable
(2)  devisable
(3)  descendible
b)    Language used to create FSD — durational terms:
(1)  “while”
(2)  “during”
(3)  “so long as”
2.    Fee Simple Subject to Conditions Subsequent = different from FSD because it is not automatic, grantor must exercise the right to regain the property.
a)    Future interest = POWER of TERMINATION/ RIGHT of RE-ENTRY
(1)  alienable
(2)  devisable
(3)  descendible
C.   Type of Defeasible Estate Favored by Courts = FSSCS
 
IV. Life Estates
A.   General:
1.    Definition: An estate held for the duration of someone’s life
2.    Life Estate per autre vie = An estate held for the duration of a life of someone other than the grantee
3.    can be either defeasible or indefeasible
B.   Relationship between life tenant & future interest holders:
1.    Maintenance/Repairs — LIFE TENANT
2.    Major/high-cost improvements — BOTH
C.   Ambiguities:
1.    Grantor to son and daughter for life.                                                               
a)    Measuring life: whoever lives longest;   interest — windfall,                              
b)    Measuring life: whoever dies first;  interest — forfeiture/ reverts to granter,                      
c)    Measuring life: Both (50/50);   interest — both keep their half for their life.
2.    Grantor to son and daughter for their joint lives.                                  
a)    Measuring life: whoever dies first;   interest — forfeiture
D.   Rules of Construction:
1.    four corners rule = courts must interpret document based only on what is located between the four corners of the document
2.    4 Canons of Construction —
a)    promote alienability
b)    keep the property in the bloodline
c)    avoid intestacy
d)    avoid interpretation that would invalidate the will
 
V.   Doctrine of Waste
A.   Traditionally — change in the physical nature of the property = waste
B.   Modern — change in the economic nature of the property
1.    Active waste v. Passive Waste:
a)   active = decreasing value of property by direct action

1.    Deadline: life in being + 21 years
a)    measuring life = Any ascertained person who is implicitly/explicitly mentioned in the grant
 
C.   SAVING CLAUSE:
1.    included to ensure that the trust conforms with the rule of perpetuities
a)   Prolific figure — easy to track down lineal descendants
(1)  i.e., Queen Elizabeth or John F. Kennedy
b)   12 Healthy Babies Rule — all persons in the maternity ward of the hospital on the day the grant was written
(1)  unmanageable
 
D.   Common pitfall cases:
1.    Executory interests following defeasible estate violates the rule (O to A and her heirs, so long as the land remains a farmland, then to B and his heirs)
2.    Age contingency beyond age 21 in open class (To A for life, then to such of A’s children as live to attain the age of 25. A has two children who are 25.)
3.    Fertile Octogenarian – woman can always have more children, regardless of age
4.    Unborn widow or widower – You don’t know who a person’s widow or widower is until he dies (O grants to A for life, then to his widow for life, then to A’s surviving children – widow might be unborn at the time of the grant and might live for more than 21 years after the death of all lives in being