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What is a present possessory estate?
Interest that gives the holder the right to present possession.
What is a fee simple absolute?
Estate that: 1) can be sold, divided, devised, or inherited 2) is presumed to continue indefinitely. * *Presumed absent contrary intent.
What is a fee simple defeasible?
Fee Simple Estate that can be terminated upon the happening of some stated event.
What are the 3 types of fee simple defeasible?
1) Fee simple determinable 2) Fee simple subject to condition subsequent 3) Fee simple subject to as executory limitation
What is a fee simple determinable?
A fee simple which automatically reverts to the grantor when a stated event occurs or fails to occur.
Can a fee simple determinable be conveyed?
Yes, but grantee takes subject to the possible termination.
How is the fee simple determinable created?
Only by words limiting the duration of the state, such as \"while,\" \"so long as,\" or \"until.\" * *eg, terms such as \"to be used for\" are simply expression of motive not limits of duration.
What is the possibility of reverter?
A reversionary future interest, which the grantor automatically retains when he conveys a fee simple determinable.
What is a fee simple subject to condition subsequent?
An estate in which the grantor reserves the right to terminate the estate upon the happening of a stated event. * *i.e., does not automatically terminate - grantor must take some action.
What is the right of entry?
Future interest reserved by the grantor of fee simple CS, giving the grantor the right to terminate the estate on the happening of the event. * *Not automatic, must be expressly reserved.
What is the fee simple subject to executory limitation?
A fee simple estate that terminates upon the happening of a state event and then passes to a third party. * *Correlative future interest is an executory interest.
What is a fee tail?
An estate where inheritability is limited to lineal heirs. * *created by the words \"to B and heirs of his body\"
Are fee tails still recognized?
Most states have abolished them, and an attempt to create one will result in a fee simple.
What is a life estate?
Estate that is measured by the lives of one or more persons. * *Correlative future interest is either a reversion, remainder, executory interest.
What is a life estate pur autre vie?
Life estate measured by a life other than the grantee\'s (eg, to B for the life of C).
Can life estates be defeasible?
Yes, although they generally are not. (eg, to A for life, but if A is divorced, to B).
What are the rights and duties of a life tenant - doctrine of waste?
1) A life tenant is entitled to ordinary use and profits from the land, BUT 2) Cannot do anything that injures the remainderman or reversioner. (eg, waste) * *Future interest holder may sue for damages or enjoin such acts.
What is affirmative waste?
Exploitation of natural resources by the life tenant constitutes waste except when: 1) Necessary for repair or maintenance of land, 2) Land is suitable for such use, OR 3) It expressly or impliedly permitted by the grantor.
What is permissive waste?
Occurs when the life tenant fails to: 1) preserve the land and structure, 2) pay the interest on mortgages, 3) pay ordinary taxes on the land, OR 4) pay special assessments of a short duration * *Not responsible to insure or for the damages of a 3rd party tortfeasor. * *Duty to repair or pay taxes is only to the extent of rents/profits or FMV rent if T occupies
What is ameliorative waste?
A change that benefits the property economically.
When may a life tenant alter or demolish the existing buildings?
1) The market value of the future interest is not diminished, AND EITHER 2) The remaindermen do not object, or 3) A substantial and permanent change in the neighborhood has deprived the property of usefulness.
What happen if a life estate is renounced?
The future interest following the estate become immediately possessory.
What is a future interest?
Gives the holder the right or possibility of future possession of an estate. * *It is a present, non-possessory, legally protected right in property.
What are the five types of future interests?
1) The possibility of reverter, 2) The right of enter 3) The reversion 4) The remainder 5) The executory interest
What is the possibility of reverter?
Follows a fee simple determinable, and is automatically retained by the grantor. Property automatically reverts to grantor on occurrence of the condition.
What is the right of entry?
Follows a fee simple condition subsequent, and gives grantor the right reclaim the property upon occurrence of the condition. * *can be retained only by the grantor.
What is a reversion?
Estate left in the grantor who conveys less than he owns. (eg, \"to B for life\", A has a reversion.) * *Arises by operation of law and is alienable, devisable, and inheritable.
What is a remainder?
A future interest in a 3rd person that can become possessory on the natural expiration of the prior possessory interest. * *Cannot divest a prior estate and cannot follow a time gap. * *eg, \"G to A for life, then to B.\" B has a remainder.
How is a remainder created?
By express words in the same instrument that conveys the possessory interest. (eg, \"to B for life, then to C and his heirs\")
What is the difference between a remainder and a reversion?
The remainder is created in a 3rd party. Reversion is in the grantor. * *i.e., they\'re the same thing except for who the interest goes to.
What is a vested remainder?
Remainder created: 1) In an existing and ascertained person, AND 2) Not subject to a condition precedent. * *The vested remainder is indefeasible if not subject to divestment or diminution.
What is a vested remainder subject to open?
Vested remainder in a class of persons that is certain to become possessory but subject to diminution (by adding members to the class).
What is a vested remainder subject to total divestment?
Vested remainder subject to condition subsequent. * *Not a condition precedent - that would mean the remainder is not vested.
What is a contingent remainder?
Remainder that is: 1) created in unborn or unascertained persons, and/or 2) subject to condition precedent. * *i.e., a remainder that is not yet vested.
What happens if a contingent remainder fails to vest before or upon the termination of the preceding freehold estate?
Under the CL doctrine of destructibility, contingent remainders are destroyed if they fail to vest before or upon termination of the preceding estate. * *Most states have abolished the destructibility rules and the interest becomes executory.
What is the doctrine of merger?
When one person acquires all of the present and future interest in land except a contingent remainder, the contingent remainder is destroyed, eg, to A for life, then to A\'s child if he reaches 21, remainder to B. If A sells to B, the contingency is destroyed.
What is the importance of vested v. contingent remainders?
It makes a difference for: 1) RAP - Vested remainders are not subject to it 2) Transferability - At CL, contingent remainders were not transferable inter vivos 3) Destruction
What is the \"Rule in Shelly\'s Case\"?
At CL, if the same instrument creates a life estate in A and gave a remainder only to A\'s heirs, the remainder was not recognized and A took the life estate and remainder. * *Abolished in most states.
What is the \"doctrine of worthier title\"?
A remainder in grantor\'s heirs is void and becomes a remainder to the grantor. * *Eg, \"G to A for life, remainder to G\'s heirs.\" Creates an alienable remainder in G.
What is an executory interest?
Future interest in 3rd parties that either divests a transferee\'s preceding freehold estate or follows a gap or cuts short grantor\'s estate.Eg, In a grant from A \"to B and his heirs when B marries C\", B has a springing executory interest because it cuts short the grantor\'s estate.
What is the difference between an executory interests and a remainder?
A remainder never cuts off a prior interest, where as a executory interest does divest or cut off prior to natural termination.
What is the transferability of remainders and executory interest?
1) Vested remainders are fully transferable and devisable. 2) Contingent remainders and executory interest were not transferable inter vivos at common law 3) Contingent remainders and exec interests are devisable. * *Today, most courts hold CRs and EIs are freely transferable.
What is a class gift?
A gift to a group of persons having common characteristics. * *Share is determined by the number in the group.
What is the Rule of Convenience?
In absence of contrary intent, a class closes when some member of the class become entitled to call for distribution of his share. (Person in gestation at the time the class closes are included). * *eg, to then B\'s children upon turning 21. Only children living are when the first child turns 21 are included in the class.
Is survivorship of class member necessary to share in a future gift?
No, unless survival was made an express or implied (eg, widow, heirs, issue) condition.
What interest do class members usually hold when a gift of future interest becomes effective?
Existing members have a remainder subject to open. * *Watch for a condition precedent that will prevent the remainder from opening. eg, A for life, remainder to B\'s children who survive A.
What is the Rule Against Perpetuities?
A future interest is invalid unless it will either vest or fail to vest w/in a period equal to: 1) A life in existence at the time the interest in created PLUS 2) An additional 21 years. * *life in existence is anyone named in the conveyance
What interests does the RAP apply to?
1) Contingent remainders 2) Executory interests 3) Vested remainders subject to open 4) Options to purchase
When does the perpetuities period begin to run?
1) For interests granted by will, it runs from the date of testator\'s death 2) For deeds, its the date of delivery 3) For an irrevocable trust, it is from the date created 4) For a revocable trust, it is from the day it becomes revocable * *Eg, for a Will the lives in being will be determined on date of Testator death.
What does \"Must Vest\" mean?
When it becomes: 1) Possessory, or 2) An indefeasibly vested remainder or vested remainder subject to total remainder.
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