Fee Simple Absolute Largest Estate ( Fee Simple )
- Possessory Estates
- Types of estates
- Fee simple absolute – largest estate (“fee simple”)
- Duration – theoretically forever
- Creation
- Language: “To A and his heirs”
- No future interest – no present right to possess the estate in the future
- Rather, just gives rise to an expectancy of the heirs to possess estate in the future
- Fee simple defeasibles
- All could be forever, unless . . . conditional interests
- Three types
- Fee simple determinable
- Language: “To A and his heirs as long as . . .”
- Automatic return to O in fee simple if condition is not met
- Nature of condition requires it to take place after party takes possession
- Possibility of reverter in fee simple
- Fee simple subject to a condition subsequent
- Language: “To A and his heirsas long as/but if . . .”
- No automatic return, but O has the right of re-entryin fee simple
- Fee simple subject to an executory limitation
- Different from the other two future interest held by 3rd-party, rather than O
- Two different types of 3rd-party interests
- Shifting – goes from 3rd-party to 3rd-party
- Springing – goes from O directly to 3rd-party
- Finite estates – must end at some point
- Three types
- Life estate
- Duration last for grantee’s life
- Language: “To A for life.”
- Fee tail
- Duration theoretically forever (??)
- Language: “To A and the heirs of his body”
- Assigned to a line of heirs
- Term of years have to be able to calculate last day of term on the first day
- Termination of finite estates with future interests
- Premature termination three ways at common law
- Forfeiture
- Renunciation
- Merger into larger successive vested interest
- If future interests are contingent, they are destroyed
- If future interest is vested, not lost
- In the end, can go back to grantor (reversion) or to third-party (remainder)
- Vested
- Born
- Ascertainable
- No express condition precedent in the same clause creating remainder or in the preceding clause (read comma to comma)
- If in the subsequent clause, creates condition subsequent, makes the remainder a vested remainder subject to divestment
- If condition precedent, typically talking about contingent remainder
- Contingent will be contingent unless test for vested is met
- Interest must vest, if at all, before or at the moment that the finite estate ends or else it is destroyed.
- If contingent, goes back to grantor
- Alternative contingent remaindercan only follow another contingent remainder
- O always has possibility of reversion
- Becomes possessory only if finite estate ends prematurely
- Rule in Shelley’s case only applies when “heirs” is expressly stated
- “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).”
- Example: O To A for life, then to the heirs of A and their heirs.
- A has a life estate
- A’s heirs have a contingent remainder in fee simple
- O has a reversion in fee simple
- Under rule, give remainder to A A then has a vested remainder
- Vested remainder is in fee simple, so reversion to O is destroyed
- A also now holds two successive vested interests life estate merges into the vested remainder in fee simple
- Important elements to remember
- Only applies if remainder is given in the same instrument as the instrument creating the life estate
- Only applies if a remainder is given
- Only applies to situations in which heirs hold remainder
- Merger doctrine often applies, but not always
- Doctrine of worthier title
- 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).
- Rule against perpetuities
- Future interest must vest, if at all, during the life in being plus 21 years
- If there is even one scenario where future interest would not vest, then violates the rule against perpetuities
- Create, kill, count approach
- Create a person in whom interest could vest
- Kill all lives in being who have been named
- Will the interest vest within 21 years?