I. FREEHOLD ESTATES
Estates Generally – One does not really “own” land. Instead, one owns an “estate in land.” Two types of estates: 1) freehold 2) non-freehold
1) Freehold Estates – The three freehold estates are 1) the fee simple(absolute or indefeasible) 2) the fee tail3) the life estate
2) Non-Freehold Estates – The non-freehold estates are 1) the tenancy for years 2) the periodic tenancy 3) tenancy at will
A.THE FEE SIMPLE
– the most unrestricted and longest estate (forever)
1) Inheritable – The FSA is inheritable, thus, if the owner of a fee simple absolute dies, the property passes his “heirs” under the intestacy statute of the state where the land is located
2) Words to Create – Generally, a FSA is created by using the words “and his heirs.” Thus at CL, the only way for A to convey a FSA to B is for A to convey “to A and his heirs.”
a. Abolished. Most states have abolished the requirement that the phrase “and his heirs” be used. Thus in most states, if A conveys “to B,” this will give B a FSA
3) If you have don’t have a will and no heirs, (intestate) goes to the state, if you have a will or heirs, (testate) goes to them.
B. FEE SIMPLE DEFEASIBLE
– The holder of a fee simple defeasible may hold or convey the property, but he and those who take from him must use the property subject to a restriction
1) Three Types – 1) Fee Simple Determinable 2) Fee Simple Subject to a Condition Subsequent 3) Fee Simple Subject to an Executory Limitation
2) Determinable – A fee simple determinable is a fee simple that automatically comes to an end when a stated event occurs (or fails to occur)
a. Restriction On Uses – Usually, the fee simple determinable is used to prevent the property from being put to a certain use which the grantor opposes. The limitation controls even after the property changes hands numerous times.
Example: A owns Blackacre in fee simple. He sells the property “to B and his heirs so long as the premises are not used for the sale of alcoholic beverages.” B then conveys a fee simple absolute to C, who builds a bar. When the first alcoholic beverage is sold, C’s interest automatically ends, and the property reverts to A (or his heirs)
b. Possibility of Reverter – The creator of a fee simple determinable is always left with a “possibility of reverter,” i.e. the possibility that title will revert to him if the stated event occurs
Example: In the above example, A, following the conveyance, is left with a possibility of reverter if alcohol is sold.
c. Statute of Limitations – Many states have enacted statutes of limitation which bar a possibility of reverter after a certain period. Some statutes begin to run after the FSD is created, others don’t start to run until the stated event occurs
d. Words Creating – A fee simple determinable is usually created by words that make it clear that the estate is to end automatically upon the occurrence of the stated event. Such words include “so long as…” or “until…” or “during…” Also, if the conveyance says that the property is to “revert” to the grantor, that’s a sign of a fee simple determinable.
3) Fee Simple Subject to Condition Subsequent – This fee simple is also geared to the happening of a particular event, but unlike the fee simple determinable, this fee simple does not automatically end when the event occurs. Instead, the grantor has a right of entry, i.e. a right to take back the property – but nothing happens until he affirmatively exercises that right.
a. Words Creating – T
side the family tree.
D. THE LIFE ESTATE
1) Life Estate Generally – A life estate is an interest which lasts for the lifetime of a person. Ordinarily, the lifetime by which the life estate is “measured” is that of the holder of the estate.
Example: A conveys “to B for his lifetime, then to C in fee simple.”
2) Words Creating – A life estate is usually created by the words “to A during his life” or “to A for life.”
3) Defeasible – A life estate may be defeasible just like the fee simple
Example: A conveys “to B, for so long as she shall remain my widow, then to my son B.” A has a life estate determinable
4) Powers – The life tenant cannot convey a fee simple, or any other estate greater than the life estate he holds. But he may convey the interest which he does hold, or a lesser one.
Example: If A holds a life estate, he may convey to B either for the life of A, or for a term of years
II. FUTURE INTERESTS
– There are 5 future estates 1) the possibility of reverter; 2) the right of entry; 3) the reversion; 4) the remainder; and 5) the executory interest
1) THE POSSIBILITY OF REVERTER
When the owner of a fee simple absolute transfers a fee simple determinable, the grantor automatically retains a possibility of reverter. All states allow this possibility of reverter to be inherited, or to be devised by will; most but not all states also allow it to be conveyed inter vivos.