Possessory Estates
o o an ‘estate’ is a bundle of rights ‘Estate’ is a word denoting legal relations between persons with respect to thing absolute ownership ‘to A and his heirs’ o ‘to A’ words of purchase o ‘and his heirs’ words of limitations indicate fee simple necessary under CL for fee simple modern statutes assume, unless something else is said, ‘to A’ implies the simple may still be inserted by lawyers out of habit
Examples/Notes
Fee Simple
o o
Fee Tail
o ‘to A and the heirs of his body’ o Create only for real property (land only) o Can not be created in personal property Heir
o o o o o
Persons who survive the decedent and are designated intestate successors under the state statute of descent. Under common law a spouse was not a heir. o Today a spouse is an intestate successor Synonymous with descendents - includes children and further descendents Child born out of wedlock: inherits from mother; if maternity acknowledged or proved, inherits from father as well. Adopted: inherits from adoptive parents and sometimes natural parents Related by blood but neither descendents no ancestor Ex: Brother, sister, aunt, nephew, uncles, cousins if a person dies in intestate and without heirs, his property goes to the state
Issue
Collateral
o o o
Escheat
Law of Waste
o o o o Relevant when two or more have rights to possess concurrently or consecutively A should not be able to use the property in a manner that unreasonably interferes with expectations of B reconcile the competing interests of life tenants and remaindermen variables to consider o nature of the property interests of the competing parties o the conduct in question o remedy sought Categories Ex: A wants to maximize value during his life by cutting down immature timber. The greater A’s interest, the more freedom A has in using the property in question The more tenuous B’s interest, the less protection given B
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o o o
affirmative waste: arising from voluntary acts substantially reduce property value (with exceptions) o permissive waste: arising from failure to act question of negligence failure to take reasonable care of property Life Tenant cannot sell unless all others having interest consent bank usually does not lend money if security is life estate not fee simple Life tenant is under no duty to insure buildings on land person creating life estate can draft so as to give life tenant power to the specific acts not otherwise permitted the life tenant any estate can be made Defeasible o Most common is Fee Simple Defeasible May last forever or May come to an end at happening of a future event Must be distinguished from covenants made by GEE. o If defeasible, GEE looses land (results in forfeiture) o If Promise, GOR (PEE) can sue for injunction or damages Always followed by either o Executory interest o Possibility of Reverter o Right of re-entry. Fee Simple Determinable o Ends automatically Grantor has to do nothing to get it back o ‘so long as’, ‘while’, ‘until’ (words of duration) o Stating purpose does not create fee determinable o Must be accompanied by a future interest. If back to grantor ‘possibility of reverter’ If to transferee ‘executory interest’ o Transfer of possibility of reverter: CL: not transferable inter vivos; not devisable by will Now: possibility of reverter can be transferred or devised. Descends to heirs if intestate Fee Simple Subject to Condition Subsequent o May be cut short at the TOR’s election when stated condition happens o Not automatically terminated at the happening of the event o ‘But if’, ‘provided, however, that when…’, ‘on condition that if’ o Right of entry = power of termination
o
Not waste to change property but increase value Ex Exceptions: extracting minerals; trees cut down if regarded as good husbandry Ex: life tenant let water pump fall in disrepair resulting loss of lawn, shrubs, trees
If did insure, and bldgs on fire, he keeps insurance $. Remaindermen get $0. Ex: can sell fee simple; can lease beyond the nation of life estate
Defeasible Estates
o o o Ex: L to A on condition that A uses L for church reasons. A executes a oil and gas lease. This is OK (no waste)– as long as A continues to use L for church as well.
Ex: A promises to O that L will be used as residential area. A instead erects a slaughter house. O can have A remove slaughter house or pay damages.
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Ex: L to A as long as used for church purposes. If A uses L for casino, L reverts to grantor. Non Ex: L to A ‘school purposes’ not fee simple determinable.
Ex: O assigns L to A. But if X happens, O has the right to re-enter and re-take.
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Transfer of right of entry: CL: Not devisable; not transferable; Descends to heirs Now: Not transferable; Devisable; Descends to heirs
Ex: O conveyed land to A with right to re-enter. Condition was broken. But before acting to reclaim land, O conveyed right to re-enter land to B. Doesn’t work! Land wasn’t his after the condition was broken. He must act to reclaim land. Ex: ‘land to be used for school purposes ONLY; otherwise to revert to GOR.’
The difference between possibility of reverter and right of re-entry is a matter of judicial interpretation.
A grant of exclusive use followed by express provision for reverter when that use ceases, creates a fee simple determinable.
Clauses that prohibit the selling or transferring the land under penalty of forfeiture is an absolute restraint against alienation and is void. o Even though the condition restricting land use hampers or completely destroys the ability to alienate the land, it is valid. No express language is necessary to create a fee simple subject to condition subsequent o as long as the intent of the GOR is clear.
Use: (of property) a right which a person has to use or enjoy the property of another according to his necessities. Ex: L to A. But if L does not use land for his purposes or tries to sell, it reverts. Restriction on sale (alienation) is void. Restriction on use is valid and enforceable (even though it hampers sale)
If GEE pays GOR nothing, the amount, if any, by which the value of an unrestricted fee exceeds the value of the restricted fee, is something that should go to the GOR. o GOR gets = value of land – value of land for specific use o In case of eminent domain, the court may divide the award between GOR and GEE.
Ex: L conveyed to city to build a park named after GOR. L acquired by eminent domain. $ to GOR = any use of land – use of land as Park.
o
Where GEE has fiduciary duty, GOR has rights of reverter on all $ (received from eminent domain proceeding) and land.
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