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PRESENT POSSESSORY INTERESTS
Overview—4 major types
1. Fee simple absolute
2. Fee tail
3. Defeasible fees
4. Life estate
Things to know about each
- Language needed to create
- Duration of interest
- Transferability
- Future interest?
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PRESENT POSSESSORY INTERESTS
Fee simple absolute
1. Created by what language?
2. Duration?
3. Transferable?
4. Future interest?
1. "To A" or "To A and his heirs"
2. INFINITE potentially—(absolute ownership)
3. Devisable, descendible, alienable
4. NONE, except in holder of interest
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PRESENT POSSESSORY INTERESTS
Fee tail
1. Created by what language?
2. Duration? (hint: blood lines)
3. Transferable?
4. Future interest?
1. "To A and the heirs of his body"
2. BLOOD LINE—Lasts only as long as there are lineal blood descendants of grantee
3. AUTOMATICALLY passes to grantee's lineal descendants—not freely alienable
4. REVERSION (for grantor); or Remainder (if for TP)
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PRESENT POSSESSORY ESTATES
DEFEASIBLE FEES—what types?
1. Fee simple d_____
2. Fee simple subject to c_____ s_____
3. Free simple subject to an e_____ l_____
1. fee simple DETERMINABLE
2. fee simple subject to CONDITION SUBSEQUENT
3. fee simple subject to an EXECUTORY LIMITATION
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PRESENT POSSESSORY ESTATES
Interpreting language re: defeasible fees
1. Clear durational language
2. Absolute restraints on alienation
1. CLEAR DURATIONAL LANGUAGE needed to create a defeasible fee
- courts disfavor restrictions on free use of land
- no defeasible fee created unless there is clear durational language
2. ABSOLUTE RESTRAINS ON ALIENATION ARE VOID
- cannot impose absolute ban on sale or transfer of property
- restraints must be linked to a reasonable time/purpose limitation to be enforceable
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PRESENT POSSESSORY ESTATES
Fee simple determinable
1. Language
2. Duration
3. Transferability
4. Future interest
1. SPECIFIC EVENT reverts land to grantor
- "To A so long as . . . "
- "To A until . . . "
- "To A while . . . "
2. INFINITE, if stated event never occurs
3. Devisable, descendable, alienable subject to the condition
4. REVERTER possible (to grantor)
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PRESENT POSSESSORY ESTATES
Fee simple subject to condition subsequent
1. Language
2. Duration
3. Transferability
4. Future interest
1. "to A, but if X event happens, grantor reserves the right to RENTER and RETAKE"
2. INFINITE (potentially), so long as
- NO BREACH of condition, and
- if breach occurs, until GRANTOR TERMINATES (timely) upon breach of condition
3. Devisable, descendable, an alienable subject to condition
4. RE-ENTRY, or power of TERMINATION (held by grantor)
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PRESENT POSSESSORY ESTATES
Fee simple subject to executory limitation
1. Language
2. Duration
3. Transferability
4. Future interest
1. "to A, but if X event occurs, THEN TO B"
2. INFINITE (potentially), so long as stated contingency does not occur
3. Devisable, descendible, and alienable subject to condition
4. EXECUTORY INTEREST (held by TP)
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PRESENT POSSESSORY ESTATES
Life Estate
1. Language
2. Duration
3. Transferability
4. Future interest
1. LANGUAGE that creates
- "to A for life"
- "to A for the life of B"
2. LIFE of transferee, or another's life (pur autre vie)
3. Alienable, devisable, and descendible (if pur autre vie and measuring life is still alive)
4. REVERSION (for grantor), or REMAINDER (for TP)
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PRESENT POSSESSORY INTERESTS
Life Estates: Doctrine of WASTE
1. LT entitled to all ordinary uses and profits from land, BUT
2. LT must NOT commit WASTE
Bottom line: Life tenant must not HARM future interest holders
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PRESENT POSSESSORY INTERESTS
Life Estates: Doctrine of WASTE
1. Voluntary/affirmative waste
2. Permissive waste
3. Ameliorative waste
1. LT must not EXPLOIT natural resources on land unless PURGE
- PU: Prior Use (prior to grant of LE, land was used for exploitation)
- R: Reasonable repairs
- G: Grant (granted right to exploit)
- E: Exploitation (is the only suitable use of land)
2. LT must MAINTAIN premises in good repair
3. LT must not "improve" land's value, unless ALL FUTURE INTEREST HOLDERS are known and CONSENT
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