Class 11: More Possessory Estates

1
Class 11 More Possessory Estates Future
Interests

• Property Law
• Fall 2006
• Professor Petherbridge

2
Overview

• Review Reinforce
• Fee Simple Defeasibles
• Rules of Construction
• More on Future Interests
• Vested Remainders
• Contingent Remainders
• Executory Interests

Petherbridge
3
Owner conveys to Andrew for life, then to Bonnie
and her heirs.

• Andrew has the possessory estate
• A Present Right to Present Possession
• Bonnie has the future interest (as we shall see,
  a remainder in fee simple absolute)
• A Present Right to Future Possession

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The Possessory EstatesAll but the FSA have a
corresponding future interest

• The Fee Simple Absolute
• The Finite Estates
• Life Estate
• (The Fee Tail)
• Term of Years
• The Fee Simple Defeasibles
• Fee Simple Determinable
• Fee Simple Subject to Condition Subsequent
• Fee Simple Subject to Executory Limitation

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Fee Simple Absolute

• Theoretically lasts forever, it is the largest
  and grandest of all the possessory estates
• To A and his heirs
• To A
• To A in fee simple
• To A forever
• All to A
• (To A and the heirs of her body)
• The fee simple absolute is freely transferable,
  devisable, and inheritable.

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The Possessory EstatesAll but the FSA have a
corresponding future interest

• The Fee Simple Absolute
• The Finite Estates
• Life Estate
• (The Fee Tail)
• Term of Years
• The Fee Simple Defeasibles
• Fee Simple Determinable
• Fee Simple Subject to Condition Subsequent
• Fee Simple Subject to Executory Limitation

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Finite Estates

• Life Estate
• To Charlie for Life
• Term of Years
• To Charlie for 25 years
• To Charlie from October 5, 2005 to October 5,
  2030
• Conveyability
• A life estate is transferable, but not devisable
  or inheritable
• A term of years is transferable, devisable, and
  inheritable
• Future interest is
• A reversion if held by the grantor
• A remainder if held by anyone else

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8
O conveys Whiteacre to Charlie for life, then to
Darlene and her heirs. (cf. prob 1(a) page
227).

• What does Charlie have?
• A life estate
• What does Darlenes have?
• A future interest which is a remainder in fee
  simple absolute
• What does O have?
• O has no interest she has given away the entire
  estate

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O conveys Redacre to Ethan for life.

• What does Ethan have?
• Ethan has a life estate
• Is there a future interest, and if so, what is
  it?
• O has a future interest which is a reversion in
  fee simple absolute

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10
Olivia conveys Appleacre to Appleseed for life,
then to Bernard and his heirs. Thereafter,
Appleseed conveys Appleacre to Paul Bunyon. At
this point

• What interest does Appleseed have in Appleacre?
• No interest
• What interest does Paul Bunyon have in Appleacre?
  
• A life estate pur autre vie (measured by
  Appleseeds life)
• What interest does Bernard have in Appleacre?
• A future interest which is a remainder in fee
  simple absolute

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11
O conveys Blackacre to Alan for life, then to
Kim for life. O subsequently dies, leaving a
will devising all of Os property to Ellen. Alan
dies, then Kim dies. Who owns Blackacre? (prob
2, p227)

• State the title
• Alan has a life estate
• Kim has a remainder in life estate
• O has a reversion
• A reversion is devisable, and therefore Ellen
  owns Blackacre

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The Possessory EstatesAll but the FSA have a
corresponding future interest

• The Fee Simple Absolute
• The Finite Estates
• Life Estate
• (The Fee Tail)
• Term of Years
• The Fee Simple Defeasibles
• Fee Simple Determinable
• Fee Simple Subject to Condition Subsequent
• Fee Simple Subject to Executory Limitation

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Fee Simple Determinable

• Automatically ends at the happening or
  nonhappening of an event
• Created by
• The language of a fee simple
• Limited by durational language
• so long as while until during
  unless
• Future Interest is a possibility of reverter
  (to the GRANTOR) transferable, inheritable,
  devisable.
• Note!! If the estate looks like a Fee Simple
  Determinable, but the future interest is in
  anyone other than the Grantor, the estate is a
  Fee Simple Subject to Executory Limitation.

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Fee Simple Subject to Condition Subsequent

• May be cut short or divested at the transferors
  electionIt does not terminate automatically
• Created by
• Language of a fee simple
• Limited by words that do not require that the
  estate terminate
• but if provided that provided, however
  on the condition that
• Sometimes contains language expressing the
  transferor's right of reentry.
• Future Interest is the Right of Reentry or the
  Power of Termination (to the GRANTOR)
  inheritable and devisable, not transferable.
• Note!! If the estate looks like a Fee Simple
  Subject to Condition Subsequent, but the future
  interest is in anyone other than the Grantor, the
  estate is a Fee Simple Subject to Executory
  Limitation.

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O conveys Goldenacre to Frank, but if Frank
allows hunting on the property, then O has the
right to reenter and retake the premises.

• What does Frank have?
• A fee simple subject to condition subsequent
• State the future interest?
• O has a right of reentry or power of termination
  

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O conveys Goldenacre to Frank, unless Frank
allows hunting on the property.

• What does Frank have?
• A fee simple determinable
• State the future interest?
• O has the possibility of reverter

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O conveys Goldenacre to Frank, provided that
hunting is not allowed on the land.

• What does Frank have?
• A fee simple subject to condition subsequent
• State the future interest?
• O has a right of reentry or power of termination
  

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O conveys Wineacre to A and her heirs, so long
as no alcohol is sold on the land. After the
conveyance, A opens a restaurant and begins
serving dishes cooked in wine or flamed with
brandy. On Sundays the restaurant offers a
brunch with complimentary champagne.

• What does A have?
• A fee simple determinable (so long as)
• State the future interest?
• O has the possibility of reverter
• Will the fee determine?
• If it does, what happens if O takes no action for
  25 years.
• What if the conveyance had stated provided
  that instead of so long as?

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Henry Paul conveys Henryacre to Kenneth and his
heirs, but if Kenneth fails within ten years to
produce and name a son Henry Paul, then to
Edward.

• What does Kenneth have?
• A possessory estate in fee simple subject to
  executory limitation
• What does Edward have?
• A (shifting) executory interest
• If Kenneth fails to meet the condition, will
  title vest in Edward automatically?
• Yes. Note that this is different from the POR
  and RRE.

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The Possessory EstatesAll but the FSA have a
corresponding future interest

• The Fee Simple Absolute
• The Finite Estates
• Life Estate
• (The Fee Tail)
• Term of Years
• The Fee Simple Defeasibles
• Fee Simple Determinable
• Fee Simple Subject to Condition Subsequent
• Fee Simple Subject to Executory Limitation

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Fee Simple Subject to Executory Limitation

• Shifting
• Looks like a FSD or FSSCS, but the future
  interest is not in the grantor
• Automatically cuts off or divests the right to
  possession of a transferee
• Springing
• Is most commonly seen in the future interest
  only or the gap conveyance
• Automatically cuts off or divests the right to
  possession of the grantor

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O conveys Goldenacre to Frank and his heirs,
unless Frank allows hunting on the property, then
to Gerard.

• What does Frank have?
• A fee simple subject to executory limitation
• Describe Gerards future interest?
• Gerard has a shifting executory interest in fee
  simple

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Greg conveys Almanacre to Duane for life, then
to Cher and her heirs if Cher attends Duanes
funeral.

• State the title?
• Duane has a life estate
• Chers interest is a springing executory interest
  
• Greg has a reversion

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Neil conveys to David and his heirs if David is
released from prison.

• State the title?
• Neil has a fee simple subject to executory
  limitation
• David has a springing executory interest

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The Possessory EstatesAll but the FSA have a
corresponding future interest

• The Fee Simple Absolute
• The Finite Estates
• Life Estate
• (The Fee Tail)
• Term of Years
• The Fee Simple Defeasibles
• Fee Simple Determinable
• Fee Simple Subject to Condition Subsequent
• Fee Simple Subject to Executory Limitation

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Organizing Future Interests

• By who has the right
• Retained by Grantor
• Reversion
• Possibility of Reverter
• Right of Reentry
• Created in a Transferee
• Remainder
• Executory Interest

• By what possessory estate they follow
• Fee Simple Absolute
• No Future Interest
• Finite Estates
• Reversion (Grantor)
• Remainder (Transferee)
• Fee Simple Defeasibles
• FSD Possibility of Reverter (Grantor)
• FSSCS Right of Reentry (Grantor)
• FSSEL Executory Interest (Transferee)

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Overview

• Review Reinforce
• Fee Simple Defeasibles
• Rules of Construction
• More on Future Interests
• Vested Remainders
• Contingent Remainders
• Executory Interests

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Not everyone uses the proper language, see White
v. Brown, 559 S.W. 2d 938 (1977).

• I WISH EVELYN WHITE TO HAVE MY HOME TO LIVE IN
  AND NOT TO BE SOLD. s/ Jessie Lide
• Does the conveyance (1) create a life estate or
  (2) a fee simple with a restraint on alienation?
  
• When Interpreting a Will (or any conveyance)?
• Give effect to the testators intent.
• Presumption against partial intestacy
• Absolute restraints on alienation are contrary to
  public policy

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O conveys Goldenacre to A and his heirs, so long
as the land is used for school purposes, in which
case grantor has the right to re-enter and retake
the premises

• What does A have?
• Could be either an FSD (so long as) or a FSSCS,
  (grantor has the right to re-enter and retake).
  
• If there is ambiguity, the court will interpret
  the conveyance to create a FSSCS, --disfavoring
  automatic forfeiture.
• If this is a FSSCS, then what does O have?
• A RRE

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Overview

• Review Reinforce
• Fee Simple Defeasibles
• Rules of Construction
• More on Future Interests
• Vested Remainders
• Contingent Remainders
• Executory Interests

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Types of Remainders

• Vested
• Contingent

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Vested Remainder

• A remainder is vested if the remainderman is
• Born,
• ascertainable, (can recognize by name) and
• there is no express condition precedent in (1)
  the clause creating the remainder or (2) the
  preceding clause.

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Contingent Remainder

• A remainder is contingent if
• IT IS ANY OTHER KIND OF REMAINDER
• Other tips for identifying a contingent remainder
• The person to whom the conveyance gives the
  remainder cannot be identified by name.
• There is a condition precedent. Some event
  (other than the termination of the preceding
  estate) that might (or must) occur before the
  party has the right to take actual possession.

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Prob 1(c), page 227. O conveys to A for life,
then to B and her heirs if B attains the age of
21 before A dies. B is 15.

• State the title
• A has a life estate
• B has a contingent remainder (a condition (age
  of 21) in the clause creating the remainder)
• O has a reversion
• If B turns 21?
• B has a vested remainder

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O conveys to George for 10 years, then to
whomever is President of the United States.

• State the title
• George has a term of years
• President has a contingent remainder (born yes,
  ascertainableno)

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O conveys to A for life, then to B and her heirs
if B survives A, but if B does not survive A then
to C and his heirs.

• State the title
• A has a life estate
• B has a contingent remainder
• C has an (alternative) contingent remainder

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O conveys to A for life, then to B and her
heirs, but if B does not survive A then to C and
his heirs.

• State the title
• A has a life estate
• B has a vested remainder (in fee simple) subject
  to divestment
• C has a shifting executory interest

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Prob 1, page 230. O conveys to A for life, and
in the event of As death to B and her heirs.

• State the title
• A life estate
• B vested remainder in fee simple
• If conveys her interest to O, what does O have?
• A vested remainder in fee simple

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Prob. 2, page 230. O conveys to A for life, to
B for life, then to C and her heirs if C survives
A and B.

• State the title
• A life estate
• B remainder in life estate
• C contingent remainder (condition in clause
  creating the remainder)
• O reversion

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Prob 4, page 230. O conveys to A for life, then
to As children who shall reach 21. As oldest
child B is 17.

• State the title
• A life estate
• As child at 17 has a contingent remainder in fee
  simple
• What is the state of the title after As child
  turns 21?
• A vested remainder subject to partial
  divestmentor subject to open (by possible future
  siblings).
• Do not destroy this remainder

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Prob 1 page 238. O conveys Blackacre to A for
life, then to As children and their heirs, but
if at As death he is not survived by any
children, then to B and her heirs. A is alive
with no children.

• State the title
• A life estate
• As children have a contingent remainder in fee
  simple
• B has an (alternative) contingent remainder in
  fee simple
• A has two children C and D?
• A life estate
• CD vested remainder in fee simple (partial
  divestmentor open)
• B has a (shifting) executory interest
• C dies, then A dies?
• Cs estate and D own equal shares of Blackacre in
  fee simple
• B has nothing

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Prob 2, page 238. T devises 10,000 to My
cousin Don Little, if and when he survives his
wife.

• State the title
• Don Little has . . .
• An executory interest

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State the Title

• O conveys to Clifford and his heirs, unless Alma
  fails to preserve the Redwoods.
• O conveys to Alma for life, then to Clifford and
  his heirs, but if Alma fails to preserve the
  redwoods on the property, then to Gordon and his
  heirs
• O conveys to Alma for life, then if Alma
  preserves the redwoods on the property, to
  Clifford and his heirs, but if Alma fails to
  preserve the redwoods on the property, then to
  Gordon and his heirs

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Supplemental Assignment

• For Supplemental Information see Wendel, pp.
  49-56, 62-67, pp. 87-107 problem set 7

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