Glossary of MBE: Property
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- What are the four categories of freehold estates?
- (1) fee simple absolute
(2) fee tail
(3) defeasible fees
(4) life estate
- What language is used to create a fee simple absolute?
- "To A" or "To A and his heirs"
- Is the fee simple absolute freely divisable, descendible, or alienable?
- Yes to all three.
- How long does the fee simple absolte last for?
- Infinite duration.
- Are there any accompanying future interests to the fee simple absolute?
- No. A living person has no heirs.
- What language is used to create a fee tail?
- "To A and the heirs of his body."
- Fee tails are virtually abolished in the US today. Thus, what happens when one tries to create a fee tail?
- A fee simple absolute is created.
- What are the two accompanying future interests in the fee tail?
- In O, a reversion.
In 3d party, a remainder.
- What language is used to create a fee simple determinable?
- "To A for so long as..."
"To A during...."
"To A until..."
- Is the fee simple determinable divisable, desendible, or alienable?
- Yes, BUT always subject to a condition.
- Can it pass by will?
- Will it pass by the statutes of intestacy?
- Transferable during O's lifetime?
- Is there any accompanying future interest in the fee simple determinable?
possibility of reverter in O
Fee Simple Determinable w/ Possibility of Reverter (Frank Sinatra Does Not Prefer Orville Redenbacher)
- What language is used to create a fee simple subject to condition subsequent?
What MUST O do?
- "To A, but if X even occurs, O reserves the right to reenter and retake."
MUST use clear durational language
MUST careve out the right to reenter for O to keep power of reentry or termination.
- In a fee simple subject to condition subsequent, is the estate automatically terminated when the condition occurs? What CAN happen?
- No. BUT it can be cut short at O's option if the condition occurs.
- Is there an accompanying future interest to the feel simple subject to condition subsequent?
- Yes. Right of reentry/power of termination.
- What language is used to create a fee simple subject to executory limitation?
- "To A, but if X event occurs, then to B."
- In a fee simple subject to executory limitation, what happens when the condition is broken?
- The estate is automatically forgeigted in favor of someone other than O.
- Is there an accompanying future interest to a fee simple subject to executory limitation?
- Yes: shifting executory interest.
- Do words of desire, hope, or intention create a defeasible fee?
- No: clear durational language MUST be used.
- What's the deal with absolute restraints on alientation in the context of defeasible fees?
- An absolute ban on power to seel or transfer that's not linked to any reasonable time-limited purpose is VOID.
- What language is used to create a life estate?
- "To A for life."
Must measure in lifetime terms, NOT terms of years.
- What the hell is a life estate pur autre vie?
- Measure the life by a life other than O's. Ex: "To Joe for the life of Becca."
- Can a life tenant commit waste? He IS the life tenant, after all.
- Life tenant is entitled to all ordinary uses and profts from the land.
Life tenant must NOT commit waste; cannot hurt future interest holders.
- Voluntary or Affirmative Waste
- actual ownder conduct that causes decrease in value; willful acts of destructiveness
- A life tenant may not consume or exploit resources on the property unless one of four exceptions occurs.
What are these four exceptions?
- (1) Prior use (prior to grant, land used for exploitation)
(2) reasonable repairs
(3) grant (if granted the right)
(4) exploitation (the land is ONLY suitable for exploitation)
- Permissive Waste or Neglect
- land allowed to fall into disprepair
- Ameliorative Waste
- can't engage in acts to enhance property value UNLESS all the future interest holder are known and consent
- Is there an accompanying future interest to the life estate?
- Yes: reversion in O or remainder in 3d party
- Future interest created in O that is capable of becoming possessory upon expiration of prior possessory estate created in the same conveyance in which the remainder is created
- Does a remainder ever follow a defeasible fee?
- Vested Remainder
- if it is BOTH created in an acertained person AND not subject to a condition precedent
- Congingent Remainder
- If it is created in an unacertained person OR subject to condition precedent OR both
- What happens if a condition for a contigent remainder is satisfied?
- it is automatically transformed into an indefeasibly vested remainder
- The Rule of Destructibility of Congingent Remainders: Common Law
- destroyed if it was still contingent at the time the estate ended; would be destoyed and O or O's heirs would take in fee simple absolute
- The Rule of Destrctibility of Contingent Remainders: Today
- O or O's heirs hold the estate subject to a springing executory interest; when the condition occurs, the grantee takes
- When does the Rule in Shelley's Case apply?
- O conveys "To A for life, then to A's heirs." A is alive
- The Rule of Shelley's Case: Historically
- present and future interest merge, giving A fee simple absolute, even if this was contrary to O's intent (rule of law, not of construction)
- The Rule of Shelley's Case: Today
- A has a life estate; A's unknown heirs have congingent remainder; O has reversion since A would die w/o heirs
- Indefeasibly Vested Remainder
- holder is certain to acquire an estate in the future with no conditions attached
- Vested Remainder Subject to Complete Defeasance
- remainderman exists and is NOT subject to condition precedent, BUT his right could be cut short by condition subsequent
when conditional langauge follows language that, taken alone and set of by commas, would create a vested remainder, the condition is subsequent
ex: "To A for life, reaminder to B, provided, however, that if B dies under the age of 25, to C."
- What happens when conditional language appears BEFORE language creating a remainder?
- There is a condition precedent, so there is a contingent remainder
- Vested Remainder Subject to Open
- remainder vested in a group, at least one of whom is qualified to take possession
- Open Class
- if it's possible for others to enter
- Closed Class
- maximum membership has been met so that people after are shut out
- Rule of Convenience (re: class membership)
- Class closes when any member can demant possession
Exception: womb rule (period of gestation)
- Executory Interest
- future interest created in transferee (3d party), which is not a remainder and which takes effect either by cutting short (shifting) or in the grantor's heirs (springing)
- Shifting Executory Interest
- ALWAYS follows defeasible fee and cuts short someone other than O
- Rule Against Perpetuities (RAP)
- void if there is any possibility (however remote) that the interest may vest more than 21 years after the death of a measuring life
- Measuring Life
- the relevant life at the time of conveyance
- Which future interests do RAP apply to?
- congintient remainders
vested remainders subject to open
- Which future interests do RAP NOT apply to?
- future interest created in O
indefeasibly vested remainders
vested remainders subject to complete defeasance
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