Tuesday, December 13, 2005

Outline - Property - III - Possessory Estates

Property (2005-2006)


  1. Fee Simple Absolute
    1. Largest estate; includes all rights to property
    2. Creation – "to 'A' and heirs"
    3. Heirs
      1. Issue (children and direct descendants)
      2. Ancestors (parents and direct ancestors)
      3. Collaterals (siblings, cousins, uncles, aunts, nieces, nephews)
      4. Escheat - If no heirs, property escheats to state.
  2. Finite Estates
    1. Types
      1. Life Estate
      2. Term of Years
    2. Creation
      1. Life estate - "to 'A' for life"
      2. Term of years - "to 'A' for 25 years"
      3. Term of years - "to 'A' from October 5, 2005 to October 5, 2030"
    3. Future Interest
      1. Reversion (grantor)
      2. Remainder (anyone else)
  3. Defeasible Estates
    1. Fee Simple Determinable
      1. Automatically ends upon satisfaction of condition
      2. Created by durational language
        1. "so long as"
        2. "while"
        3. "until"
        4. "during"
        5. "unless"
      3. Future interest - "possibility of reverter" (to grantor)
    2. Fee Simple Subject to Condition Subsequent
      1. May end upon satisfaction of condition; transferor's discretion, not automatic
      2. Created by limiting language
        1. "but if"
        2. "provided that"
        3. "on the condition that"
      3. Future interest – "right of reentry" (to grantor)
    3. Fee Simple Subject to Executory Limitation
      1. Looks like either of the other defeasible estates, but future interest is in a third party
      2. Springing - cuts off grantor
      3. Shifting - cuts off anyone else
  4. Cases
    1. White v. Brown – Where language unclear as to life estate or fee simple with restraint on alienation, policy is to avoid limits on alienation, and prefer fee simple absolute.
    2. Baker v. Weedon – Where the identity of remaindermen is clear, law of waste implies life tenant may not sell property without consulting remaindermen. (Note similarity to joint tenancy.)
    3. Mahrenholz – Conveyance to transferee "to be used for school purposes only" creates fee simple determinable, not fee simple subject to condition subsequent; future interests transferable.
    4. Toscano - A conditional restriction on a conveyance creates a defeasible fee instead of a simple fee with restraint on alienation.

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