1. Possessory Estates
  2. Types of estates
  3. Fee simple absolute – largest estate (“fee simple”)
  4. Duration – theoretically forever
  5. Creation
  6. Language: “To A and his heirs”
  7. No future interest – no present right to possess the estate in the future
  8. Rather, just gives rise to an expectancy of the heirs to possess estate in the future
  9. Fee simple defeasibles
  10. All could be forever, unless . . . conditional interests
  11. Three types
  12. Fee simple determinable
  13. Language: “To A and his heirs as long as . . .”
  14. Automatic return to O in fee simple if condition is not met
  15. Nature of condition requires it to take place after party takes possession
  16. Possibility of reverter in fee simple
  17. Fee simple subject to a condition subsequent
  18. Language: “To A and his heirsas long as/but if . . .”
  19. No automatic return, but O has the right of re-entryin fee simple
  20. Fee simple subject to an executory limitation
  21. Different from the other two future interest held by 3rd-party, rather than O
  22. Two different types of 3rd-party interests
  23. Shifting – goes from 3rd-party to 3rd-party
  24. Springing – goes from O directly to 3rd-party
  25. Finite estates – must end at some point
  26. Three types
  27. Life estate
  28. Duration  last for grantee’s life
  29. Language: “To A for life.”
  30. Fee tail
  31. Duration  theoretically forever (??)
  32. Language: “To A and the heirs of his body”
  33. Assigned to a line of heirs
  34. Term of years have to be able to calculate last day of term on the first day
  35. Termination of finite estates with future interests
  36. Premature termination  three ways at common law
  37. Forfeiture
  38. Renunciation
  39. Merger into larger successive vested interest
  40. If future interests are contingent, they are destroyed
  41. If future interest is vested, not lost
  42. In the end, can go back to grantor (reversion) or to third-party (remainder)
  43. Vested
  44. Born
  45. Ascertainable
  46. No express condition precedent in the same clause creating remainder or in the preceding clause (read comma to comma)
  47. If in the subsequent clause, creates condition subsequent, makes the remainder a vested remainder subject to divestment
  48. If condition precedent, typically talking about contingent remainder
  49. Contingent  will be contingent unless test for vested is met
  50. Interest must vest, if at all, before or at the moment that the finite estate ends or else it is destroyed.
  51. If contingent, goes back to grantor
  52. Alternative contingent remaindercan only follow another contingent remainder
  53. O always has possibility of reversion
  54. Becomes possessory only if finite estate ends prematurely
  55. Rule in Shelley’s case only applies when “heirs” is expressly stated
  56. “If a life estate is given to a party, and in the same instrument a remainder is given to the life tenant’s heirs, give the remainder to the life tenant (and check for merger).”
  57. Example: O  To A for life, then to the heirs of A and their heirs.
  58. A has a life estate
  59. A’s heirs have a contingent remainder in fee simple
  60. O has a reversion in fee simple
  61. Under rule, give remainder to A  A then has a vested remainder
  62. Vested remainder is in fee simple, so reversion to O is destroyed
  63. A also now holds two successive vested interests  life estate merges into the vested remainder in fee simple
  64. Important elements to remember
  65. Only applies if remainder is given in the same instrument as the instrument creating the life estate
  66. Only applies if a remainder is given
  67. Only applies to situations in which heirs hold remainder
  68. Merger doctrine often applies, but not always
  69. Doctrine of worthier title
  70. If an instrument conveys a possessory interest to a third party and in the same instrument purports to give a remainder or executory interest to the grantor’s heirs, give the future interest to the grantor (and check for merger).
  71. Rule against perpetuities
  72. Future interest must vest, if at all, during the life in being plus 21 years
  73. If there is even one scenario where future interest would not vest, then violates the rule against perpetuities
  74. Create, kill, count approach
  75. Create a person in whom interest could vest
  76. Kill all lives in being who have been named
  77. Will the interest vest within 21 years?