Real Property Module 3: Estates in Land

4 Present Possessory Estates- ways to hold interest in land

1. Fee Simple Absolute: absolute ownership

a. “to A” or “to A and his/her heirs”
i. A has fee simple absolute
ii. A’s heirs have nothing. A living person has no heirs.
b. freely alienable (transferable)
c. freely divisible (can be transferred by will)
d. freely descendible (can be passed by statute to heirs via intestate=w/o a will)
2. *Defeasible Fees: three fee simples to A w/ a catch
a. The fee simple determinable:
i. created by clear determinable language: “so long as,” “until”, “unless”
1. to A so long as she remains a lawyer
2. if the stated the condition is violated, forfeiture of the estate is
automatic
3. freely alienable, freely divisible, freely descendible but always subject
to the stated condition
4. Possibility of Revertor: only applies to fee simple determinable.
5. FSDPOR- fee simple determinable w/ possibility of revertor
b. The fee simple subject to condition subsequent
i. Clear durational language and clear statement of the right of re-entry (not
automatically terminated)
1. Ross to Rachel but if coffee is ever consumed on site, grantor reserves
the right to re-enter
a. Rachel has fee simple subject to condition subsequent
b. Ross has future interest called right of re-entry (power of
termination)
c. Fee simple subject to executory limitation
i. To A but if x event occurs, then to B
1. A has fee simple subject to executor limitation
2. B has future interest called shifting executory interest
3. Forfeiture automatic to third party
d. Words of mere hope, desire or intention are inadequate. Courts loathe restrictions on free
land use and will avoid finding a defeasible fee unless grantor used clear durational
language.
e. Absolute restraints on alienation (absolute ban on the power to sell or transfer not linked
to a reasonable time purpose) are unenforceable (repugnant to public policy)
i. Ex. To A so long as she does not attempt to sell fails. A has fee simple
absolute. O has nothing
ii. Restraint on alienation linked to reasonable time limited purpose are valid.
iii. To A so long as she does not attempt to sell within next 18 months as clouds on
titles are resolved gives fee simple determinable, O has possibility of revertor

3. Fee Tail: historic relic. Requires very specific language. To A and her body’s. will pass to grantors
lineal blood descendants. Virtually abolished in the United States. Attempted creation creates fee
simple absolute.
4. Life Estate: estate that must be measured in specific life time terms and never in terms of years
a. To A for life
b. To A for 50 years is a term of years (leasehold interest)
c. Pur autre vie: life estate measured in terms of the lifetime of another
i. To A for the life of B. when B passes, goes back to O
d. Waste doctrine: life tenant is entitled to all reasonable uses and profits from the land. Life
tenant must not commit waste to injure the future interest holders
i. Voluntary/affirmative waste: willful destruction
 ii. Permissive waste: neglectfulness.
iii. Ameliorative waste: life tenant must not engage in acts that enhance property
value unless all future interest holders are known and consent.
1. Respecting sentimental value.
iv. Future Interests to accompany life estate
1. Reversion: if held by O.
a. to A for life. O has future interest called reversion
2. Remainder: if held by third party
a. to A for life then to B. B has future interest called a remainder
6 Future Interests

- 3 Future Interest created in O

1. Possibility of Revertor: accompanies only fee simple determinable (FSDPOR)
2. Right of Entry: accompanies fee simple subject to condition subsequent (option to terminate)
a. A has fee simple subject to condition subsequent
b. O has right of entry
3. The Reversion: leftover, future interest that arises in a grantor who transfer an estate of lessor
duration than she started with other than a fee simple determinable which would yield
possibility of determinable or fee simple subject to condition subsequent which would grant O
right of entry/power of termination. future interest created in grantor who transfer an estate of
lessor duration than she started with other than a defeasible fee
a. O holder of a fee simple absolute conveys to A for life or to A for 50 years. O has
carved an estate for lessor duration than she started with. O has a leftover called a
reversion.
- 3 Future Interest in a Transferee
o Remainder: future interest created in a third party (other than O). Never follow defeasible fees.
Remainders patiently wait there term.
 Vested Remainder: when it is BOTH created in a known taker who is not subject to a
condition precedent to their entry on the land
 1. The indefeasible vested remainder: reamainderman is known w/ no
strings/conditions attached to his taking
o To A for life then to B. A has life estate. B has a indefeasible
vested remainder.
 2. Vested remainder subject to complete defeasance: defeasance means
forfeiture. Vested remainder subject to condition subsequent if manifest will
work forfeiture of the remainder. Remainderman is known but known
remaindermans time with the land is subject to forfeiture.
o To A for life then to B, but if B leaves the legal profession then to
C. B has a vested remainder subject to condition subsequent
 3. Vested remainder subject to open: remainder is vested in category of
takers
o To A for life then to A’s children. A has two children C and D. C
and D have vested remainder subject to open b/c as long as A is
alive, the category is still open to have more children.
 Contingent Remainder: when it is created in either an unknown taker or subject to an
unmet condition for entry on to their land or both.
 To A for life and then to A’s first child. A is alive but as of yet he has no
children. Unborn child has a condition remainder on becoming known.
 To A for life and then if he graduates law school then to B. B is in high
school. Has not yet met prerequisite/condition precedent of graduating from
law school and therefore has a contingent remainder

o Executory Interest: future interest created in a grantee that takes effect by cutting short
another (typically follows a defeasible fee)
 Springing executory interest: divests/cuts short the grantor, O
  O conveys blackacre to A when he marries
o O has a fee simple subject to A’s springing executory interest
o If/when A marries she divests O
 Shifting- cuts short another transferee (someone other than )
 To A but if A ever uses the land for nonresidential purposes than to B
 B is potential executioner- he pounces when A messes up.
 A has a fee simple subject to B’s shifting executory interst
 Rule against perpeturities (RAP)- certain future interests are void if they vest too
quickly. Have to be capable of being possessory within 21 years within the death of
the measuring life
 Step 1: determine which future interest you have: only applies to contingent
remainders, executory interest, and executory interests subject to open
 Step 2: will not ever apply to indefeasible vested remainder, vested
remainders subject tot complete defeasance, or any of 3 interest that could
be created in O, no possibliy of revertor/remainder
 Will not apply to
 To A for life, then to A’s childrens. A has no children
o A has a life estate. Unborn children have contingent remainder
 Step 2: Ask what has to happen for the future interest holder to take? A
must die leaving behind a child
 Step 3: find a measuring life
o A is measuring life here
 Step 4: dispositive inquiry will we know for sure within 21 years of the
death of that measuring life if we will know someone has to take. Yes after
A’s death immediately we will know if he has any children.
 Executory interest with no time limit in which it might vest will violate the
rule against perpetuities
o Ex) to A so long as alcohol is never consumed on site, then to B
 A has a fee simple subject to B’s springing executing
interest that runs a foul of the rule against perpetuities and
therefore wipes out that executory interest. This executory
interest is too remote. Therefore we now have it becomes
to A so long as alcohol is never consumed on site and A
has a fee simple determinable. Remember FSDPOR and
therefore O has possibility of revertor.
 Bad as to one is bad to all: To be valid it has to be shown condition
precedent w/ regards to every member of the class is certain to come within
perpetuity period.
o O conveys to A for life then to such of A’s children as live to the
age of 30.
 A is alive. Class is still alive. This is example of gift to an
open class conditioned upon the members surviving
beyond an age of 21 years.
3 Types of Concurrent Estates
1. Joint tenancy- 2 or more own Blackacre with the right of survivorship (when one joint tenant
dies his share goes automatically to surviving joint tenants)
a. Alienable- can be transferred in his lifetime
b. Neither divisible (cant transfer interest by will) or descendible (cant be transferred by
intestate)
c. T by the same time
d. T by the same title (in same legal instrument i.e deed, will etc)
e. I with Identical shares
f. P rights to Possess the whole
g. Must specifically state the right of survivorship
 h. Joint tenancy is disfavored and hence difficult and require 4 units above because
avoid probate (system doesn't like to be avoided)
i.
2. Tenancy by the entirety- between married partners with the right of survivorship
3. Tenancy in common- 2 or more own with no right of survivorship