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#Post#: 23--------------------------------------------------
Estates Outline
By: SunsetSailor Date: January 27, 2011, 9:59 pm
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Fee Simple Absolute
* Duration
+ Largest estate recognized
+ Included all incidents of ownership
+ Potentially infinite duration
+ Once cannot have a remainder after a fee
simple absolute
* Transferability
+ By deed (gift or sale)
+ By will (devise)
+ By intestacy (descent)
* Magic Languatge
+ Traditional Common Law: ONLY use “To A and his
heirs”
* Just had one that said “To A”,
only created a life estate (G has a reversion in a fee simple
absolute)
+ Current Law: You can use “To A and his heirs”,
“To A”, or “To A and his assigns forever”
* Critical HINT: Identify (classifying) present and future
interests will be easier if you look at the characteristics of
the interests
4 Defeasible Estates
(1) Fee Simple Determinable (FSD)
* Duration
+ Defeasible fee simple which expires naturally
be operation of a special limitation stipulated by grantor
(property goes back to the grantor)
* Transferability
+ By deed (gift or sale)
+ By will (devise)
+ By intestacy (descent)
+ And next owner gets a FSD too—B/c you can’t
pass a better title than you have
* If properly drafted, three badges:
1. Special Limitation Language
o “so long as”, “while”, “until”, “during”
2. Automatic Termination (Reverter) Language
3. Next Taker = G (or his heirs) (Expressly or by
implication)
o Example: To A so long as (1) she remains
unmarried to B, however, if she marries B then A’s possession of
the premises terminates and possession of the premises
automatically reverts (2) to G (3)
o If B dies, then A’s interest is bumped up to a
FEE SIMPLE ABSOLUTE, and G has no possibility of reverter
# Characteristics: PP(present possessory)/FS (fee simple) /SCD
(subject to complete defeasance)/SL (special limitation)
# Associated Future Interests:
o Possibility of Reverter
# Reversionary  G
# Automatic
(2) Fee Simple Subject to a Condition Subsequent (FSSCS)
* Duration
+ Defeasible Fee Simple which is cut short by
operation of a condition subsequent stipulated by grantor
* Transferability
+ By deed (gift or sale)
+ By will (devise)
+ By intestacy (descent)
+ Taker gets the same title as grantor b/c you
can’t give a better title then you have.
* 3 badges:
1. Conditional Language
o “Upon the condition that, provided that,
provided however, but if”
2. Non-automatic termination language—gives Grantor the
power to enter and take possession of the premises
3. Next taker = G (or his heirs)
o Example: TO A on condition that (1) she
remains unmarried to B, however, if she marries B then the
grantor (3) may enter and take possession (2) of Blackacre.
* Characteristics
+ PP/FS (fee simple)/SCD (subject to complete
defeasance)/CS (condition subsequent)
* Associated Future Interests
+ Power of Termination (POT) aka Right of entry
(3) Fee Simple Subject to an Executory Limitation (FSSEL)
* Duration
+ Defeasbile Fee simple that expires naturally
which expires naturally by operation of a special limitation
which shifts possession to someone other than the grantor
* Transferability
+ By deed
+ By will
+ By intestacy
* 3 badges
1. Special Limitation Language
2. Automatic Termination Language
3. Next Taker = 3rd Party (not G) (expressly stated)
o Example: To A while (1) she remains unmarried
to B, however if she marries B, then Blackacre automatically
vests (2) in C (3)
* Characteristics: PP/FS/SCD/SL (special limitation)
+ An Executory Limitation is defeased by a
special limitation
* Associated Future Interests:
+ Executory Interest (EI)
+ Non-reversionary C (3rd Party)
+ Automatic
(4) Fee Simple Subject to an Executory Interest (FSSEI)
* Duration
+ Defeasible Fee Simple which is cut short by
operation of a condition subsequent that shifts possession to
someone other than the grantor
* Transferability
+ By Deed
+ By Will
+ By Intestacy
* 3 badges
1. Conditional Language
2. Non-Automatic Right of Entry Language
3. Next Taker = 3rd Party (not G)
o Example: To A on condition (1) that she
remains unmarried to N, however if she marries N then C(3) may
enter and take possession (2) of the premises.
# Characteristics: PP/FS/SCD/CS (condition subsequent)
# Associated Future Interests
o Executory Interest (EI)
o Non-reversionary interest
o Non-Automatic
Constructional Preferences
Constructional Pref 1: Limitation Language standing alone is
usually construed as a FSD or if there is a definite 3rd party,
a FSSEL
* Example: To A so long as liquor is not sold on the
premises (LIMITATION LANG. ONLY; Badge 2 is missing
(automatic/natural reversion)
+ A = FSD (PP/FS/SCD/SL)
+ G = (Implied) Possibility of Reverter to a FSA
Constructional Pref 2: Automatic reverter language alone will
be construed as a FSD
* Example: To A and if liquor is sold on the premises then
BA shall automatically revest in G and his heirs (Reverter
language ONLY, limitation is missing “so long as”)
+ A = FSD (PP/FS/SCD/SL)
+ G = Possibility of Reverter to a FSA
Constructional Pref 3: Conditional Language alone is usually
construed as a covenant(promise with respect to the property of
land)—estate holder gets FSA
* Exapmle: To A on condition that liquor is not sold on the
premises (CONDITIONAL LANG. ONLY, NO NON-AUTOMATIC REVERTER
LANG)
+ A = FSA (PP/FS/-/-) (probably burdened by a
covenant if other requirements are met)
+ G = Nothing
Constructional Pref 4: Conditional language with automatic
termination language – is usually construed as FSSCS not as a
FSD
* Example: To A on condition that (conditional interest)
liquor is not sold on the premises, and should liquor be sold,
then BA shall automatically (limitational interest) revert to
the grantor
+ A = FSSCS (PP/FS/SCD/CS)
+ G = ROE or POT to a FSA
Constructional Pref. 5: Words of purpose or covenant do not
create a deafeasible estate—takers get FSA
* Example: To A and A covenants and agrees that the
premises shall be used for a school
+ A = FSA (burdened by a covenant) (PP/FS/-/-)
* If covenant is breached A will
have to pay money for the breach of the covenant but he doesn’t
have to forfeit the covenant
+ G = NOTHING
The Fee Tail
Be able to recognize common law fee tail & the defeasible fee
tails in common law
Duration
* For life of the first taker (tenant-in-tail) thereafter to
succeeding generation of lineal descendants. Expiring when there
are no living descendant of the first tenant-in-tail
* Magic Language: To A and the heirs of his body (words of
limitation)
+ Examples:
1. To A and the heirs of his body
2. To A and the issue of his body
3. To A and the heirs of his body, then to
B (b has a vested remainder)
# PP/FT/SCD/GLThird Party
o More Examples:
1. To A and the male heirs of his body (MALE
TAIL)
2. To A and the female heirs of his body (Fee
Tail Female)
3. To A and the heirs of his body born of the
marriage of Jane Seymour (Fee Tail Special)
Main Theme
+ Fee Tail Sparked a battle b/w BARONS and
JUDGES
* Barons wanted an estate that kept
landing the family
* Judges (and land entrepreneurs)
wanted an estate that was freely alienable
Transferability: US law varies by jurisdiction
+ OPTION 1: Few states construe FT language to
create a FEE SIMPLE CONDITIONAL—may transfer to a FSA upon birth
of a child
+ OPTION 2: Some states recognize FT but allow
dis-entailing by deed—taker gets FSA
+ OPTION 3: Some states abolished FT
+ OPTION 4: Some states convert FT into a life
estate for the 1st taker, issue have a remainder in FSA
+ OPTION 5: Some states enforce the FT for one
generation then convert it into a FSA
+ OPTION 6: Some states convert the FT into a
FSA from first taker
+ (DON’T HAVE TO KNOW THIS!!!!!)
COMMON LAW
PP/FT/SCD/GL
+ Associated Future Interests:
* If it goes back to the
grantor—Reversion
* If it goes back to a 3rd
party—Vested Remainder
Life Estate
Duration:
+ Length of a “measuring life”
* Usually the life of the grantee
(Garden variety LE)
* Can be the life of another (LE Pur
Autre Vie)
Transferability
+ LE transferable by deed (gift or sale)
+ Transferee gets a LE Pur Autre Vie (LE-PAV)
+ LE-PAV—itself is transferable by deed, will or
inheritance
Magic Language
+ To a for life (or functional equivalent)
+ To A until death, then to B
+ To A for life, then to B for life, then to C
for life
+ To A for the life of C (LE-PAV)
Characteristics
+ PP/LE/SCD/GL
+ Associated Future Interests:
1. ReversionGrantor (if it goes
back to grantor)
2. Remainder3rd Party (if it goes
to a 3rd party)
LED & LESEL (limitational estates)
Duration
# Defeasible estate which operates on 2
levels:
1. An estate restricted in duration
by a general limitation—that terminates upon the end of a
measuring life
2. A life estate that expires by
operation of a special limitation stipulated by grantor
Transferability
* LE/LEDLE-PAV & LED-PAV
* LE/LESELLE-PAV & LESEL-PAV
Magic Language
* LE language
* Limitational Language
* Automatic Reverter Language
* Language sending property back to
G or to a 3rd party
Example: To a for life (LE), while
(SL), she remains unmarried to B, if she marries B then
Blackacre automatically(AUTO REVERTER LANG) reverts to G
* A = LE, LED
* G = Reversion, Posibility of
Reverter in a FSA
Example: TO A during her lifetime,
while she remains unmarried to B, if she marries B, then
Blackacre automatically vests in C, otherwise upon A’s death,
remainder to C
- A = LE (layer 1), LESEL (layer 2)
- C = vested remainder in FSA (layer
1), Executory interest in FSA (layer 2)
FESEL
Characteristics: PP/LE/SCD/GL (layer 1)
PP/LE/SCD/SL (layer 2)
Future Interests: Remainder to C after
Garden variety LE & remainder to C (after layer 1 & 2)
LESCS & LESEI
Duration:
* Defesabile estate which operates
at 2 levels
1. An estate restricred in
duration by a general limitation—that the estate terminates upon
the end of a measuring life
2. A LE that is cut short by
operation of a condition subseqnent stipulated by grantor
Transferability
Magic Language
o LE language
o Conditional Language
o Non-automatic termination
language
o Shifting estate to G or to a
3rd party
Example: To A for life, provided
that she remains unmarried to B, however if she marries B, then
G can enter and take possession of Blacklake
A = LE (PP/LE/SCD/GL (layer one))
LESCS (PP/LE/SCD/CD (layer 2))
G = Reverstion (layer 1), Power of
Termination/Right of Entry in FSA (layer 2)
LESEI
Example: TO A for life, provided
that she remains unmarried to B, if she marries B then C may
enter and possess Blackacre, otherwise upon A’s death, remainder
to C
Differences from FS
1. All examples have 2 layers
2. For a LESEL, the interest
held by the 3rd party is classified as a remainder
Reversionary Future Interests
Non-Reversionary
(remainder)3rd Party
Reversionary
(reversion)Grantor
B. Future Interests in the
Transferor
Reversion
o ANY INTEREST THAT IS
RETAINED BY THE GRANTOR WHEN THE GRANTOR TRANSFERS AN ESTATE OF
LESS QUANTUM THAN HE ORIGINALLY HAD.
Example(s):
1. To a for 10 years
o Modern View: G =
Reversion in a FSA—after a tenancy for a period
2. To A For Life
o G = Reversion in
a FSA—after LE
o G has granted a
Life Estate to A & reserved the property right for himself
3. To A for Life, then if
B survives C (condition precedent), to B and his heirs
o G =
Reversion—sometimes merely a ‘technical reversion’ in a FSA
after C’s remainder in a FSA.
Possibility of Reverter
# WHEN THE GRANTOR TRANSFERS A
DETERMINABLE ESTATE (FSD, FTD, LED)
Example: O conveys Blackacre to Town Library
Board so long as used for library purposes. O has a possibility
of reverter.
Right Of Entry
# CREATED WHEN A GRANOTR TRANSFERS A
CONDITIONAL ESTATE AND STIPULATES THAT UPON BREACH OF A
CONDITION THE GRANTOR MAY ENTER THE PREMISES (FSSCS, LESCS,
FTSCS)
# When an owner transfers an estate
subject to condition subsequent and retains the power to cut
short or terminate the estate, the transferor has a RIGHT OF
ENTRY
Example: O conveys Blackacre to Town Library
Board, but if it ceases to use the land for library purposes, O
has the right to re-enter and retake the premises.
Non-Reversionary Interests
Remainders
Remainder—A future interest given to a
transferee after interest less than a fee simple has been given
to others and it becomes possessory upon the expiration (Gl/SL)
of preceding estates
# Expires on General Limitation 3d
party = remainder
# Expires on Special Limitation3d
part life estate/fee tail = remainder, FS = executory interest
Types: Contingent
Vested (3 types)
Vested Remainder
3 Types of Vested Remainder
1. Indefeasibly Vested Remainder
1. Example: To A for life, remainder
to B
o A = LE
PP/LE/SCD/GL3rd party
o B = Vested Remainder in a
FSA
o G = NOTHING
o It is indefeasible b/c there
is no condition at all attached to it. B’s interest is
absolutely certain to become possessory
2. Characteristics:
o Held by an ascertainable
person
o Not subject to a condition
precedent
o Not subject to a condition
subsequent
o Certain to become possessory
upon the natural expiration of prior estates
2. Vested Remainder Subject to Complete
Divestment
1. Example: To A for life, remainder
to B (grant to B), provided however (condition subsequent) that
if B does not survive A, then to C.
o A = LE
PP/LE/SCD/GL3rd party
o B = Vested Remainder Subject
to Complete Divestment/Defeasance by a Condition Subsequent in a
FSA
o C = Shifting Executory
Interest in a FSA
o G = NOTHING
2. Held by an ascertainable person
3. Not subject to a condition
precedent
4. Can be cut off by a condition
subsequent of expire by a special limitation
o Vested Remainder Subject to
Complete Divestment by a condition subsequent/special limitation
in a FSA
5. Associated Future Interests
o A reversion if it goes back
to G
o An executory interest if it
moves on to a 3rd party
3. Vested Remainder—Vested Subject to Open
(Partially Defeased)—Only used in one circumstanceWhen
you are making a class gift (a group of people that may not all
be defined yet)
1. Example: To a for life, remainder
to B’s children
o A = LE
PP/LE/SCD/GL3rd Party
o B = NOTHING
o B’s kids = If there is 1
kid: Vested Remainder Subject to Open in a FSA (each member
gets less and less as more children are born); If there are no
children: Contingent Remainder
o G = NOTHING (If there are
children); If there are no children, G = reversion in FSA.
o B’s children DO NOT have to
survive A in order to have the grant (grantor can expressly (not
inferred) make survival a requirement)
2. Characteristics:
o Held by an ascertainable
person (Note: if B has no children—all the unborn have
contingent remainders)
o Not subject to condition
precedent
o Can be cut off by a
condition subsequent
o Class closes when: 1) A”s LE
ends or 2) B dies—which ever occurs first
1. If A’s life estate
ends before B dies—later children born to B are not (usually)
included in the class. They take NOTHING
2. If B dies first—all
his children and any posthumous children are included in the
class. They take EQUAL shares
3. MAIN POINT:
+ WHILE THE CLASS
IS OPEN—MEMBERS HAVE A VESTED REMAINDER SUBJECT TO OPEN (and may
enjoy smaller shares as new members are admitted to the class)
+ AFTER CLASS
CLOSES EACH MEMBER HAS A INDEFEASIBLY VESTED REMAINDER
Contingent Remainders
Example: To A for life, and if B attains age 25,
remainder to B
- A = LE PP/LE/SCD/GL3rd person
- B= Contingent Remainder in a FSA
- G = Reversion in a FSA
Characteristics:
+ HALLMARK: Uncertain to Vest in Possession
+ Possession not certain to occur upon the
natural expiration of prior estates.
+ Disfavored @ Common Law b/c it limited the
alienability of land
1. Limited as to transferability (couldn’t
sell contingent remainders)
2. Destructible (destroys contingent
remainders to land could become more alienable)
+ Limited Transferability:
1. Early Common Law
# Transferable by death transfer
# But not alienable by intervivous
conveyance
# DESTRUCTABLE BY COMMON LAW
2. Current Law: On the whole, contingent
remainders are alienable in all but a few states
# If A dies before B reaches 25,
then the property goes to G until B reaches 25. (G=FSSEI &
B=Springing Executory Interest)
Rule of Destructability: If condition precedent creating
contingency was not resolved when prior estates expired, then
the contingent remainder was destroyed [vesting possession in
the holder of the next future interest]
Example: To a for life, and if B attains age 25,
remainder to B
o Supposed that A dies when B is only 23.
o Contingency attached to B’s interest has not
resolved
o B’s contingent remainder is destroyed
o Property moves on to next taker in line (here = G)…
Loophole = TRUST
 If destructability doctrine doesn’t apply, and A
died before B was 25, g gets the property (FS Subject to an
executory interest/FSSEI)
o For the time he is waiting, B has a springing
executory interest (b/c it comes from the grantor) in a FSA,
once he turns 25, B has a FSA
 2nd Scenario: Destruction by Merger
o Contingent remainders may also be destroyed by a
“merger”—if the same person acquires a vested present interest
and a vested future interest with the contingent remainder
caught in between.
o Example: TO a for life, then if B attains age 25,
remainder to B
1. A = LE
2. B = Contingent remainder in FSA
3. G = reversion in a FSA
Later, G transfers her reversion in a FSA to A
* A = Vested LE [B = contingent
remainder] A = vested FSA
* A’s interests merge & B’s
contingent remainder is destroyed
+ NEVER apply the verger principle if all
interests were simultaneously created in the same grant
* Merger does not occur if when the
critical sequence is created simultaneously in the same
instrument.
 Destructabilty by Merger—Shelter Doctrine
(blocking interest)
+ Contingent remainders may also be destroyed
by “merger” – if the same person acquires a vested present
interest and a vested future interest with the contingent
remainder caught in between.
+ Destructibility by Merger Illustrated:
1. To A for life, then if B attains age 25,
remainder to B.
# [A: LE] [B: C-Rem-FSA] [G:
Rev-FSA]
2. Later G transfers her Rev-FSA to A.
# [A: vested LE] [B: C-Rem] [A:
vested Rev FSA]
# A’s interests “merge”.
# B’s contingent remainder is
destroyed.
- Destructibility by Merger – One Exception
1. No merger if all interests were simultaneously
created in the same grant
 Merger does not occur if when the critical
sequence:
[vested present interest][C-remainder][vested
interest]
is created simultaneously in the same instrument.
o Destructabillity by Merger—Shelter Scenario
# Merger may not occur if C-Rem is
protected (sheltered) by an intervening vested interest.
# Example: G conveys Blackacre: To A for
life, then to B for life, then to C if C attains age 25.
o [A: LE] [B: V-Rem LE] [C:
C-Rem FSA] [G: Rev FSA]
# Later G sells his reversion to A.
o [A: LE] [B: V-Rem LE] [C:
C-Rem FSA] [A: Rev FSA]
o No merger - B’s vested
interest shelters the
o C-Rem held by C.
Destructability Doctrine—Current Statuts
o Abolished by statute or by judicial decision in
about half of the states
o An unintended consequence: contingent remainders
became subject to the Rule Against Perpetuities (RAP)
OVERALL
(FUTURE INTERESTS)
FSD
LED = POR (Possibility of Reverter)
FTD
FSSCS
LESCS = ROE (Right of Entry)
FTSCS
EVERYTHING ELSE
REVERSION (FOR GRANTOR)
REMAINDER (FOR 3RD PARTY)
Distinguishing Vested from Contingent Remainders
Identifying Vested & Contingent Remainders
o Conditions define the remainder
o V Remainder = Condition subsequent
o C Remainders = Conditions precedent
o Where is the CONDITION in realation to the GRANT?
(RULE)
1. Vested Remainders
+ Conditional Clause AFTER GRANT
1. [GRANT], [COND]Condition
subsequent
o Contingent Remainders
+ Conditional clause BUILT INTO grant to
describe takers OR
1. [GRANT COND]Condition Precedent
+ Conditional Clause BEFORE grant
1. [COND], [GRANT]Condition
Precedent
ALWAYS FOR ALL QUESTIONS, TELL WHAT THE
GRANTOR HAS (EVEN IF HE HAS NOTHING)
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