Property Outline – Spring 2008 – Fisher
Part 2 – The System of Estates
Ch. 3 – Possessory Estates
Keys to Remember: (1) Look for technical language. (and his heirs, heirs of his body)
(2) Consider how long the estate endures. (forever, life, etc)
Forfeiture – In the old days if you committed treason or breached your loyalty you forfeited your land to the king.
Passing on Land – Most of the time in old days, land was passed to older male heir upon father’s death. The 2nd oldest son could only get land by marring a female who’s father had land but had no sons.
Feudal Incidents – A form of inheritance tax.
Escheat – If you die have no heirs, the property would escheat (pass on with death) to the king.
Issues – Lineal desendants
Intestate – Without a will.
State of Title – Shows who owns what.
Reversion – Land goes back to original conveyor.
Holographic will – Entirely handwritten by the person not trained in law. Courts try to determine intent.
Legally operative – Will becomes legally operative when the person dies.
Vested – Having rights to something.
Divested – Give up something.
Adoption – Adopted kids count just like regular kids.
Gestation – If wife is pregnant when Father dies, that kid counts if born alive.
Seisin – Legally possessing the land. There could never be an abeyance of seisen.
Separates Freehold Estate (must be seised) from Nonfreehold Estates (can only use land).
Statute Quia Emptores (1290)—Did two important things.
o a.) Established the principle of alienability—the ability to transfer resources to another person.
Determinable Term of Years—Means they have no Seisin (nonfreehold).
Six Types of Estates
Freehold: (1) Fee Simple, (2) Fee Tail, (3) Life Estate.
These have some possessory ownership rights
Nonfreehold: (1) Periodic Tenancy, (2) Term Tenancy, (3) Tenancy at Will.
Have no rights to ownership
Fee Simple – “O conveys land to A and his heirs.”
The whole ownership (Full Pie). It endures forever. This is real property – land.
Conveying this way makes you pay the Inheritance Tax.
If you Die w/o heirs—land escheats to state—42-1-3(c)
Primogeniture — Under common law, it meant that the land would successively descend to eldest sons if A died before devising it. This has been abolished.
Kept land together—easier to collect rent, keep tract together.
Words of Purchase — “to A”—identifies grantee or person it is given to.
Words of Limitation — “and his heirs”—tells us what kind of estate is transferred.
Ability to Transfer – You can sell or give away the fee simple, thus depriving the heirs from getting it.
Heirs – A person living does not have heirs. They ae not identifiable until the death of the owner. Also, the heirs have no legal claim to land until death of the owner. Heirs are those who succeed real property of an intestate decedant (without a will).
Spouse at Common Law – Could not be an heir. But today they are heirs.
Next of Kin – Used for personal property.
Share of Spouse — If decedent leaves spouse, the spouse takes ½. Other half goes to issues, if not issue to decedent’s parents, if no parents then last half to spouse.
Share of Issues (Lineal Decendant) – Issues are children, grandchildren, great-grandchildren and so-on. The children divide ½ of decedent’s estate.
If child dies before decedent, then that child’s issues will get his share.
Grandchildren do not take if their parent is alive. Adopted children
Adopted children are treated as a child. Stepchildren do not.
Ancestors – Going up the chart. Parents, grand parents, great grand parents
Collateral Relatives – included all blood kin except ancestors and descendants. (Ex: Brothers, sisters, aunts, uncles, cousins). If decedent leaves no spouse, issue, or parent, the collateral relaties take.
Escheat – If a fee simple owner dies without a will and without heirs, the fee simple escheats to the state.
Heirs – Take if no will
Devisees and legatees – Take if there is a will.
West Virginia Laws
Real Property (Devise – Who takes real property)
Until 1992 – 1st rung (Children & their kids) , 2nd rung (Spouse)
Current Law – You use the law that is currently in effect.
Personal Property (Legaity – Who takes personal property)
Until 1992 – If children and spouse then children 2/3, spouse 1/3
Current Law – You use the law that is currently in effect.
Fee Simple Absolute – Absolute ownership. Can endure forever. No limitations. It can’t be divested.
Fee Tail – “O
raint
Absolute (Disabling) Restraint – You can own it forever but can’t sell it. (Court finds this unacceptable).
Forfeiture Restraint – If I try to sell it, my interest in the land ends and goes to someone else.
Promissory Restraint – Grantee promisees not to transfer his interest. Breach of contract if you try to transfer it.
Restraints on Free Simple – Are normally not valid if they say you can’t sell.
Restraints on Life Estate – Can be valid.
Restricting Use of Land – Must be reasonable (defeasible estates)
Waste – Person with the life estate can only do certain things with it. You can’t devalue the land. If the life estate holder has devalued the land, the remainder has a claim.
General Rule — Remainderman is entitled to the property in the same general condition, subject to normal wear and tear, as the life tenant received.
Types of Waste
1. Affirmative Waste – Doing something affirmatively to devalue the property (Tearing down a structure, cutting timber).
2. Permissive Waste – You don’t do anything, and because of that the property deteriorates. (Allowing land to fall into disrepair).
Open Pit – If something is being used at the time (oil and gas pumping) interest is created, then they knew it and intended for this practice to continue.
Increasing Value – Don’t have right to make substantial alterations.
Life Estates as Trusts – Allows us to split title
Legal Title (Trustee) – Own property. Must use it for the benefit of the equitable owner.
Equitable Title – Receive the benefit of the legal title.
Leasehold Estates – a.) Term of Years (term)—a landlord-tenant relationship that
occurs for a fixed period of years and then it ends.
b.) Periodic—a designated period of time that will renew itself
over time until it is terminated (month-to-month)
c.) Tenancy-at-Will—relatively rare. A landlord-tenant
relationship exists, but no term. Can end any time.
