I. The Right to Exclude
a. “Property” describes a relationship between a person and an object (land).
b. Can be Divided:
i. Spatial – (space) Height, Width, Length
ii. Temporal – Time
c. Bundle of Sticks
d. To “own” property means the legal right to exclude others from it.
e. Minors can own property, but they cannot control property. Must have guardian.
f. Seisin – The ultimate right of possessing property
g. Usufructuary – A person who has the use and enjoyment of something, especially property
h. Bailee – a person who’s rights in the property is to mere possession. They have an absolute duty to return the property upon the demand of the bailor.
II. Present and Future Estates
a. Estate – the amount, degree, nature and quality of a person’s interest in land or other property
b. When conditions are placed – they last forever (until we get into RAP)
c. No one in a will has any interest until the testator has died.
d. Heirs
i. Issue
1. Children
2. Grandchildren
ii. Ancestors
1. Parents
2. Grandparents
iii. Collateral
1. Neices/Nephews
2. Aunts/Uncles
3. Cousins
4. Etc.
e. Escheat – the State – all assets are transferred to the State if there are no identifiable heirs.
f. Present Estates / Interests
i. Freehold Possessory Estates
1. Fee Simple
2. Fee Tail
3. Life Estate
ii. Non-Freehold Possessory Estates –
1. Leaseholds – (Term of Years, Periodic Tenancy, At Will)
2. Defeasible Estates – Any estate that may be cut short upon the happening of a future event.
a. Defeasible Fee – may end upon the occurrence of a future event.
b. Fee Simple Determinable
i. “so long as X…” à **violation of X** à reverts to Grantor
3. Fee Simple Subject to Condition Subsequent
a. “but if…” à reverts to Grantor
4. Fee Simple Subject to Executory Limitation –
a. “but if…” à Third Part gets interest
g. Future Interests – Present interest in future possession.
i. Creation –
1. Inter Vivos (by deed)
2. Testamentary (by will – gift)
3. Intestate succession (by statute, when no will to follow)
ii. Reversion – (To Transferor)
iii. Remainder – (To Transferee) “waits out”
1. Vested Remainder– A guaranteed property interest
a. Two pronged test:
i. Discernable
ii. No Pre-conditions
b. A party can be vested, but still be subject to divestment
i. Partial Divestment
ii. Complete Divestment
2. Non-Vested Remainder – A remainder that fails either of the prongs in the above two prong test.
3. Contingent Remainder (Non-Vested Remainder) – Fails the vested remainder Two Prong Test
a. Alternative Contingent Remainder – When a grantor designates that a transfer can go to X or to Y – but will never go to both.
i. Be careful of “titles.”
ii. “voting age” –generally assumed to be 18 years old.
c. Rule of Convenience
i. Rule of Convenience under RAP closes a ‘class’ when two things have occurred.
1. Someone has qualified for the distribution or gift
a. (is ascertainable w/ no preconditions)
2. The gift is available at that time.
d. Cy Pres – In past times, courts would find that a grant violated RAP, and so they would step in and try to interpret the actual intent of the grantor – and would re-form the grant.
i. Many people felt courts were overstepping their bounds, so this was scaled back in large amounts.
IV. USRAP – (Uniform Statutory Rule Against Perpetuities)
a. The ninety year wait and see period
i. If a condition is made that violates RAP à USRAP gives 90 years from conveyance for the condition to occur.
1. If it does not occur, it is stricken, just as it would be under RAP.
ii. A non-vested interest is invalid unless:
1. Re-states RAP (L + 21)
OR
2. The interest either vests (condition occurs) or terminates (does not occur) within 90 years after its creation
Ex. Conveyance is made such that property will pass under a condition. Property must become eligible (conditions must be met) within 90 years for the property to pass – or else it becomes void.
