Estates

What does "Fee Simple" and "absolute" mean?

"Fee Simple" means it can be passed at death (no time limits). "Absolute" means there are no conditions attached.

Give Jimmy Fallon a FSCS and a FSD!

"to Jimmy Fallon on condition the land is farmed for 10 years and so long as alcohol is not consumed on the land for 10 years. If the farming condition is breached, the grantor can choose to terminate the estate. Breach of the alcohol condition, on the other hand, automatically ends the estate."

What are the four fee simple estates?

(0ne os absolute, 3 are defensible) Free Simple Absolute (FSA) 2. Free Simple Determinable (FSD) 3. Fee Simple Subject to a Condition Subsequent (FSCS) 4. Fee Simple Subject to an Executory Limitation (FSEL)

Grantor future interest labels

(1) possibility of reverter; (2) power of termination; or (3) reversion

What are the three types of defeasible estates?

1. Determinable - right of posession after breach goes automatically back to grantor (or his/her successor) 2. Subject to condition subsequent - right of possession goes back to grantor (or successor) if (1) there is a breach (2) grantor (or successor) affirmatively "terminates" and takes over 3. Subject to executory limitation - right of possession after breach goes automatically to someone named by the grantor (or the named person's successor)

FSD vs. FSA with "use" conditions Otto sells 10 acres of his land "to Anna so long as Anna never has a pet cat; if Anna has a pet cat, her ownership ends and possession returns to Otto." Otto sells 10 acres of his land "to Anna. Anna agrees to never have a pet cat. If Anna has a pet cat, Otto may sue for an injunction or damages."

1. FSD 2. FSA

FSD vs. FSA with "suggested" conditions 1. Otto sells 10 acres of his land "to Anna so long as Anna never has a pet cat; if Anna has a pet cat, her ownership ends and possession returns to Otto." 2. Otto sells 10 acres of his land "to Anna. I would really, really like Anna to never have a pet cat."

1. FSD 2. This is a FSA with a "suggested condition." The suggestion is not enforceable.

Anna owns, but if she serves alcohol on her land, Otto can terminate her estate if he acts within 5 years of the breach. 1. Anna breached in 2000. Otto sent a termination letter in 2003. Who owns what? 2. Anna breached in 2000. Otto sent a termination letter in 2007. Who owns what?

1. Otto has FSA. Anna has nothing. 2. Untimely termination. Anna still has FSCS (she may breach again!). Otto still has a POT in FSA.

The twelve estates?

1. Term for years (absolute) (TFY) 2. Term for years determinable (TFY-D) 3. Term for years subject to a condition subsequent (TFY-CS) 4. Term for years subject to executory limitation (TFY-EL) 5. Life estate (absolute) (LE) 6. Life estate determinable (TYF-D) 7. Life estate subject to condition subsequent (LE-CS) 8. Life estate subject to executory limitation (LE-EL) 9. Fee simple absolute (FSA) 10. Fee simple determinable (FSD) 11. Fee simple subject to a condition subsequent (FSCS) 12. Fee simple subject to an executory limitation (FSEL)

Otto to Anna for life, then to Ben if the Buffalo Bills win it all. Ben has a CR in FSA. What is the vesting event? Who impacts vesting? Could the CR in FSA vest remotely?

2000 Ben got his CR in FSA 2001 Many more people are born 2002 All persons alive in 2000 die 2023 The Perpetuities Period ends 2024 The Bills win (in overtime)! Q: Who is playing for the Bills (and their opponents) in 2024? A: People born in 2001 and thereafter.

Is Khloe the validating life?

2000 Conveyance 2001 Kourtney has Chris 2002 K, M, and Khloe die 2023 It is 21 years after K died 2026 Chris turns 25 Khloe is not the validating life. Is anyone the validating life?

Is Kourtney the validating life? Not if a child of Kourtney can turn 25 more than 21 years after Kourtney is dead. Is that possible?

2000 Conveyance 2001 Kourtney has Chris 2002 Kourtney dies 2023 21 years after K died 2026 Chris turns 25 So Kourtney is not the validating life. What about Mason?

Does Alonzo's EI violate RAP? What is the vesting event? Who impacts vesting?

3 year old Alonzo turning 25 Alonzo's EI does not violate the RAP! Alonzo is the only validating life. Three year old Alonzo will either make it to 25, or not, within his lifetime. Katy Perry is not a validating life. Do you see why?

Does Shaq's EI violate RAP? What is the vesting event? Who impacts vesting?

5 year old Shaq turning 25 Shaq's EI does not violate the RAP! Shaq is a validating life. Five year old Shaq will either make it to 25, or not, within his lifetime. Katy Perry is also a validating life for Shaq's EI. Do you see why?

Otto conveys land to city "so long as used as a park for white males only." This is an invalid condition. So who owns the land, Otto in FSA or the city in FSA?

?

Subject to Divestment

A (contingent or vested) remainder in an estate is "subject to divestment" if the estate is a defeasible estate (in other words, an estate that is subject to a divesting condition)

Otto conveys Blackacre "to BEN and his heirs." What does BEN own?

A Fee Simple Absolute that immediately (presently) entitles BEN to possession. Let's use a descriptive adjective and call it a possessory FSA.

Jason conveys Black Briar Estates "to Marie for 5 years, then to Nicky for her life." What does Nicky own? Jason had the FSA. Did he give it away?

A non-possessory life estate (a vested remainder in a life estate) No! He had a possessory FSA, but now he has a non-possessory FSA (a reversion in FSA).

CONTINGENT REMAINDER

A remainder is contingent if (1) the holder is yet unascertained; or (2) there is a condition precedent; or (3) both. [A condition precedent is something that has to happen for the estate in question to vest.]

Vested Remainder

A remainder is vested if (1) the holder is ascertained and (2) there is no condition precedent.

Subject to open

A remainder is vested subject to open if (1) it is given to an expandable group (such as "children"); (2) someone in the group is "vested"; but (3) others may still join the group.

Otto conveys land "to Anna on condition that the land is farmed for the next 20 years; if not, to Ben." What does Anna own?

ANNA owns a possessory FSEL. What if ANNA dies, as a farmer, a year from now? Her heir or devisee gets the possessory (and defeasible) FSEL!

14(a) Otto conveys "To Anna for life, then Ben and his heirs." ANNA? BEN? OTTO?

ANNA: Possessory life estate BEN: Vested Remainder in FSA OTTO:Nothing

(c) KURT conveys "to ARTIE for life, and then to FINN and his heirs if FINN has married RACHEL before ARTIE dies."

ARTIE Possessory life estate Finn Contingent Remainder in FSA Rachel Nothing Kurt Reversion in FSA

(e) KURT conveys "to ARTIE for life, and then to FINN and his heirs if FINN has married RACHEL before ARTIE dies." Finn dies the next day without marrying Rachel.

ARTIE Possessory life estate Finn Nothing (his "CR" failed) Rachel Nothing Kurt Reversion in FSA

(d) KURT conveys "to ARTIE for life, and then to FINN and his heirs if FINN has married RACHEL before ARTIE dies." Finn later marries Rachel while Artie is alive.

ARTIE Possessory life estate Finn Vested Remainder in FSA Rachel Nothing Kurt Nothing ("reversion failed")

Otto "to Anna for life, then if Ben turns 30 before Anna dies, to Ben, but if Ben ever lives in Indiana, to Carl."

Anna has a life estate. Ben has a CR in FSEL. Carl has an Executory Interest (EI) in FSA. Otto has a reversion in FSA (because Ben might not turn 30 before Anna dies). Here there is both a condition precedent (turning 30) and a divesting condition (moving to Indiana).

Otto "to Anna for life, then to Ben, but if Ben ever lives in Indiana, to Carl."

Anna has a life estate. Ben has a VR in FSEL. Carl has an Executory Interest (EI) in FSA. Here there is a divesting condition (moving to Indiana) but no condition precedent.

Owen conveys "to Anna for life, then to Anna's children." Anna is alive, with one child, named Burt.

Anna has a life estate. Burt has a VRSTO in a FSA. Owen has nothing.

Ben has a daughter in 2008, named Jill. His son Jack is 10. Who owns?

Anna has a life estate. Jack has a CR in FSA. Jill has a CR in FSA. Ozzie has a Reversion in FSA.

Ozzie in 2000 conveyed to Anna for life, then to Ben's kids who reach 18. Ben has one child, Jack, age 2. Who owns?

Anna has a life estate. Jack has a CR in FSA. Ozzie has a Reversion in FSA.

In 2016 Jack is the first child of Ben to turn 18. Jill is 8. Who owns the property in 2016?

Anna has a life estate. Jack has a VR STO in FSA. Jill still has a CR in FSA. Ozzie has nothing.

Otto conveys Blackacre "to ANNA for life, then to BEN and his heirs." What does Anna and Ben own?

Anna has a possessory life estate, and Ben owns a non-possessory FSA. Even though Ben is not currently entitled to possession, Ben currently owns a FSA! He can sell it now or pass it at his death.

Otto "to Anna until Ben dies, then to Carol." Anna thereafter dies. Prior to death, Anna had a possessory life estate pur autre vie; Carol had a vested remainder in a FSA; and Otto had nothing. But who owns what now that Anna is dead?

Anna's LE PAV passes to her heir or devisee.

PUR AUTRE VIE

Another's life

Otto "to Anna for life, then to Ben."

BEN HAS A VESTED REMAINDER IN FSA. Ben is a grantee. There is no condition precedent (other than the natural termination of preceding life estate). The owner of the remainder is ascertained (Ben). The VR in FSA will definitely become a possessory FSA.

OTTO conveys to ANNA for life, then to BEN and his heirs if BEN ever marries. What is the vesting event? Who impacts vesting?

BEN has a CR in FSA subject to the RAP. What is the vesting event? Ben getting married. Who impacts vesting? Ben

ANNA, age 98, owns a life estate in Blackacre measured by her life. She conveys it to BEN, age 22. What result?

BEN owns a life estate in Blackacre, that will end when ANNA dies.

ANNA, age 98, owns a fee simple absolute estate in Blackacre. She conveys it to BEN, age 22. What result?

BEN owns fee simple absolute. He can sell or transfer the land at death. Anna's age is irrelevant.

ANNA conveys Blackacre to "BEN until RILEY dies" or "BEN for the life of RILEY."

BEN received a life estate measured by RILEY's life. This is called a life estate pur autre vie.

Anna has FSA. What does BEN get if ... ANNA in 2016 conveys: "all I have to BEN." "to BEN." "to BEN until he drops."

BEN receives: FSA FSA A life estate measured by Ben's life

14(b) Otto conveys "To Anna for life, then to the children of Ben and their heirs." Ben is childless, but dating.

BEN's KIDS: Contingent Remainder in FSA (contingent on being born!) OTTO: Reversion in FSA (will become possessory only if Ben has no kids)

14(d) Otto conveys "To Anna for life, then to Ben and his heirs if Ben graduates from college."

BEN: Contingent Remainder in FSA (it will vest if Ben graduates) Otto: Reversion in FSA

14(e) Otto conveys "To Anna for life, then to Ben and his heirs, but if Ben marries Greer, to Doug and his heirs."

BEN: Vested remainder in FSEL (or VR in FS subject to divestment) DOUG: Executory Interest in FSA Otto: Nothing

Jackson Browne conveys Plumwood "to Barry White for life." What does Barry White own? What, if anything, does Jackson Browne own?

Barry: A possessory life estate Jackson Browne: A non-possessory FSA (a reversion in FSA)

Otto conveys "to Bernie for life, then to Hillary's grandchildren." Hillary has a daughter, Chelsea, and a granddaughter, Charlotte. What is the vesting event? Who impacts the vesting event?

Be a grandchild of Hillary Chelsea and any future kids of Hillary [here: the class of determiners is an expandable group]

Does the class gift violate RAP? What is the vesting event? Who impacts vesting?

Be a grandkid of Lebron and turn 25 Shaq, Alonzo, and Lebron's two kids (Carmelo and Kevin) Could a grandchild of Lebron turn 25 more than 21 years after the deaths of everyone who was alive when Lebron died? 2000 Lebron died 2001 Carmelo has a son, Kobe [create] 2002 All persons alive in 2000 die [kill] 2023 Perpetuities period ends [count] 2026 Kobe turns 25 and vests [vest] Class gift fails. L's heir/devisee has the FSA.

Yogi is dead. Yogi devised his land "to Reggie for life, then to my grandchildren." Yogi is survived by a son, Dale, and a grandson, Micky. What is the vesting event? Who impacts the vesting event?

Being Yogi's grandchild Dale (Dale is the only possible "determiner" of Yogi's grandkids)

What does "Ben and his heirs" mean?

Ben got (1) the right to the land during his life and (2) the right to sell while alive and (3) the right to have the land pass at his death to his heir.

Otto conveys Blackacre "to ANNA for life, then to BEN and his heirs." What does BEN own?

Ben got a Fee Simple Absolute, but it is a FSA that does NOT presently entitle BEN to possession. (Anna has possession). It a non-possessory FSA. (We will be more precise later and use a "future interest" label to describe how Ben holds his FSA)

Alternative Contingent Remainders! Otto to Anna for life, then to Ben if Ben marries before Anna dies, or to Connie if Ben does not marry before Anna dies.

Ben has a CR in FSA. Connie has a CR in FSA. Does Otto have a reversion in FSA? Yes, even though it appears that possession will go to either Ben or Connie (and not Otto).

Variation: Otto to Anna for life, then to Ben if the Buffalo Bills win it all. Ben has a CR in FSA. What is the vesting event? Who impacts vesting?

Ben has a CR in FSA. What is the vesting event? Bills winning it all. Who impacts vesting? The Bills

Otto to Anna for life, then to Ben if the Buffalo Bills win it all before Anna dies. What is the vesting event? Who impacts vesting?

Ben has a CR in FSA. What is the vesting event? The Bills winning it all before Anna dies. Who impacts vesting? The Bills and Anna

Otto conveys "to Anna for life, then to Ben for life." Otto conveys "to Anna so long as she farms the land.

Ben has a remainder in a life estate. Otto has a reversion in FSA. " Otto does not have a reversion in FSA. Otto instead has a "possibility of reverter" in FSA.

Otto to Anna for life, then to Ben's kids. Ben has no kids. A year later Ben has a son, Joe. Joe owns... Ben later dies. Joe now owns ...

Ben's unborn kids have a CR in FSA. We do not use the "subject to open" language until at least one member of the class is "vested." Joe: a VR STO in FSA. Joe: a VR in FSA (that is not subject to open).

Barry White, who has a life estate, conveys "my property to Jack Black for the life of Al Green." Black, White, Brown?

Black has a possessory life estate pur autre vie. Black's life estate ends when either Green or White dies. WHY? White has a non-possessory life estate (a reversion in a life estate). Browne has a non-possessory reversion in FSA.

True/False At common law, action by the possessor that improved the land's value was waste. Today, action by the possessor that improves the land's value is not waste.

Both true

Is Kourtney the validating life?

Can a child of Kourtney turn 20 more than 21 years after Kourtney is dead? No! 2000 Conveyance 2001 Kourtney has Chris 2002 Kourtney dies 2021 Chris turns 20 (and vests) 2023 It is 21 years after K died Kourtney is the validating life! All her kids must vest, or fail, within 21 years of her death. Class gift does not violate RAP.

Is anyone the validating life?

Can a child of Kourtney turn 25 more than 21 years after all alive in 2000 are dead? 2000 Conveyance 2001 Kourtney has Chris 2002 All alive in 2001 die 2023 Perpetuities period ends! 2026 Chris turns 25 and vests *Class gift violates RAP. Result? Khloe got a life estate. Kim has a reversion in FSA.

Otto devises "to Anna for life, then to Ben's kids who turn 18." Ben has a son, Carl (22) and a daughter Sue (13). How do we describe the interests of Carl & Sue after Anna dies 1 day later?

Carl has a FS subject to a "partial" EL; and Sue has a "partial" executory interest (EI) in a FSA. WHY PARTIAL?

Otto devises "to Anna for life, then to Ben's kids." Ben has a son, Carl.

Carl has a VR STO in FSA. If Ben is the first to die, the class closes "naturally" (no more kids of Ben) But if Anna is first to die, the class closes under the ROC (excluding future kids)

Otto devises "to Anna for life, then to Ben's kids who turn 18." Ben has a son, Carl (22) and a daughter Sue (13).

Carl has a VR STO in FSA. Sue has a CR in FSA. What result if Anna is first to die? Class closes under the ROC. Carl and Sue are "in" but for now only Carl has possession. Sue will share the FSA if she turns 18. Any additional kids of Ben, born after Anna dies, are excluded from the class gift!

14(c) Otto conveys "To Anna for life, then to the children of Ben." Ben has one child, named Carl. Carl Otto

Carl: Vested Remainder Subject to Open in FSA (Carl is vested, but he may have to share the FSA with future siblings) Otto: Nothing (it is not coming back)

Grantee future interest labels

Contingent remainder - if (1) the holder is yet unascertained; or (2) there is a condition precedent; or (3) both. [A condition precedent is something that has to happen for the estate in question to vest.] Vested remainder - A remainder is vested if (1) the holder is ascertained and (2) there is no condition precedent. Vested remainder subject to open - if (1) it is given to an expandable group (such as "children"); (2) someone in the group is "vested"; but (3) others may still join the group. Executory Interest

Laufer-Ukeles conveys Greenacre "to Cox for life, then to the heirs of Seielstad and their heirs."

Cox has a life estate; the (unknown) heirs of Seielstad have a CR in FSA; Laufer-Ukeles has a Reversion in FSA

Laufer-Ukeles conveys Greenacre "to Cox for life, then to the heirs of Seielstad and their heirs." Seielstad thereafter dies.

Cox still has a life estate; the (now ascertained) heir of Seielstad has a VR in FSA; Laufer-Ukeles has nothing (this assumes that Seielstad died with next of kin)

Otto conveys "to Anna for life, then to Doug if Doug is a dentist before Anna dies." What is the vesting event? Who impacts the vesting event?

Doug being a dentist before Anna dies Doug and Anna

Molly in 1989 had Fred & George. Arthur in 1990 conveyed "to Harry for life, then to Molly's kids." Harry died in 1992. Ron is born in 1994. Who owns after Ron is born?

FRED and GEORGE co-own FSA. The class gift closed in 1992 under the ROC. RON is excluded.

Molly in 1989 had Fred & George. Arthur in 1990 conveyed "to Harry for life, then to Molly's kids." Harry died in 1992. Who owns?

FRED and GEORGE co-own FSA. The class gift closed under the Rule of Convenience (ROC).

Power of Termination

FSCS > POT If the possessory estate is a Fee Simple Condition Subsequent, then the grantor has a Power of Termination in his/her retained estate.

Which are limited by condition only?

FSD FSCS FSEL

Possibility of Reverter

FSD >POR If the possessory estate is Fee Simple Determinable, then the grantor has a Possibility of Reverter in his/her retained estate.

Phrases are helpful, but the best way to be clear is to add another clause! FSD "reverter" clause FSCS "termination" clause

FSD: "and if the condition is breached, ownership automatically ends" FSCS: "and if the condition is breached, the grantor may choose to terminate the estate."

Alice conveys "to George and his heirs, and Alice earnestly desires that George use the property only for residential purposes."

GEORGE HAS FSA. THE SUGGESTION IS NOT ENFORCEABLE.

Molly in 1989 had Fred & George. Arthur in 1990 conveys "to Harry for life, then to Molly's kids." Who owns after the conveyance?

HARRY has a life estate. FRED and GEORGE each own a VR STO in FSA. ARTHUR has nothing. The class gift is still "open."

14(b) variation -- Otto conveys "To Anna for life, then to the children of Ben who graduate from college." Ben is childless, but dating. Ben's unborn kids:

Have a contingent remainder in FSA (contingent on being born and contingent on graduating from college)

O to A for life, then to B, but if ... then to ...

Here the condition ("but if ...") is set off by a comma and follows the grant ("to B"). This is like the "Michonne" problem. Here B does not have a CR in FSA. In this example, B owns a VR in a "defeasible

O to A for life, then to B if ....

Here the condition ("if ...") is incorporated into (or part of) the grant ("to B"). There is no divesting condition here. B has a CR in FSA (and O has a Reversion in FSA).

is O to A for life, then if ..., to B.

Here the condition ("then if ...") precedes the grant ("to B") in the sentence. There is no divesting condition here. B has a CR in FSA (and O has a Reversion in FSA).

O to A for life, then to B, but if ..., then back to O or his successor if they choose to end the estate.

Here: B has a VR in FSCS and O has a Power of Termination (POT) in FSA. [Some say O has a "Right of Reentry" in FSA. That is just a different way of saying POT in FSA.]

O to A for life, then to B, but if ..., then automatically back to O or his successor.

Here: B has a VR in FSD and O has a Possibility of Reverter (POR) in FSA.

O to A for life, then to B, but if ... then back to X.

Here: B has a VR in FSEL, and X has an EI in FSA (this is like the Michonne problem).

Otto conveys "to Donald, but if Hillary wins the 2016 election, to Bernie." What is the vesting event? Who impacts the vesting event?

Hillary winning the 2016 election Hillary

Otto conveys Blackacre "to ANNA for life, then to BEN and his heirs." What happens if Ben dies before Anna, and Ben has no will?

His non-possessory FSA passes to his heir or heirs as determined by statute.

What does it mean to "possibly vest remotely"?

If the Executory Interest in FSA can possibly vest beyond the perpetuities period, it is no good from the beginning!

"shifting" executory interest

If the holder of the executory interest takes possession from a grantee → it is a "shifting" executory interest

"springing" executory interest

If the holder of the executory interest takes possession from the grantor → it is a "springing" executory interest

Mark conveys to Brett for life, then, if Michael is a lawyer before Brett dies, to Michael.

In the 2nd conveyance, Mark has a Reversion in FSA (returns if Mike is not a lawyer before Brett dies).

Mark conveys to Brett for life, then to Michael, so long as Michael lives on the land.

In the 3rd conveyance, Mark has POR in FSA (returns if Mike is a lawyer before Brett dies, but does not live on the land after Brett dies).

Mark conveys to Brett for life, then, if Michael is a lawyer before Brett dies, to Michael so long as Michael lives on the land.

In the 4th conveyance, Mark has Reversion in FSA and a POR in FSA (Mike might not be a lawyer before Brett dies, and even if he is, Mike might not live on the land after Brett dies).

Otto conveys "To Anna for life, then to Ben and his heirs, but if Ben marries Greer before Anna dies, to Doug and his heirs."

In the conveyance #5, Ben has a VR in FS STD (or a VR in FSEL). Doug has an executory interest (EI) in FSA.

Otto conveys "To Anna for life, then, if Ben does not marry Greer before Anna dies, to Ben; but if Ben does not marry Greer before Anna dies, to Doug and his heirs."

In the conveyance #5, Ben has a VR in FS STD (or a VR in FSEL). Doug has an executory interest (EI) in FSA. In conveyance #6, Ben has a CR in FSA (contingent on Ben not marrying Greer before Anna dies); and Doug has a CR in FSA (contingent on Ben marrying Greer before Anna dies). It really is an issue of word choice. Use word formulation #5 and Ben has a VR in FSEL and Doug has an EI in FSA. Use word formulation #6, and Ben has a CR in FSA and Doug has a CR in FSA. Yet the end result is the same. It makes no difference today, so the classification of the interests is purely an academic exercise. But in England "way back then" the word choice might have been important. The DOCTRINE OF DESTRUCTIBILITY OF CONTINGENT REMAINDERS only applied to contingent remainders, so you could avoid the Doctrine if you wished simply by using word formulation #5. [To my knowledge, all states have abolished the Doctrine of Destructibility of Contingent Remainders. What a shame.] A Harvard law professor (John Chipman Gray) once said "if the condition precedes or is incorporated into the grant, it is a condition precedent." In conveyance #5, the grant comes first, then the condition. Thus, in conveyance #5, the condition neither precedes the grant nor is it incorporated into the grant. It is therefore a divesting condition that turns the FS into a FSEL. But in conveyance #6, the condition precedes the grant ("then if ..., to ....). It is a condition precedent.

Suppose Otto in 2000 conveyed "to Anna so long as the land is farmed, if not, to Ben." Could Ben's EI in FSA possibly "vest" more than 21 years after the deaths of all persons alive in 2000?

It could vest in the year 2525 when farming finally stops. It is no good!

Example: Otto "to Anna so long as the land is farmed, if not, then to Ben." When does the perpetuities period end for Ben's EI in FSA?

It ends 21 years after the death of the last person who was alive when Ben's executory interest in FSA was created!

In 2019 Anna dies. Jack is 21 and Jill is 11. Who owns?

Jack has possessory FSA "subject to open". Jill is in the class but not vested. Jack has a partial FSEL and Jill has a partial EI in a FSA (Jill will dilute Jack, not divest Jack, if she turns 18).

Elaine "to Jerry for life, then, if George becomes a marine biologist before Jerry dies, to George and his heirs."

Jerry has a possessory life estate, George has a contingent remainder in FSA, and Elaine has a reversion in FSA. The FSA given to George is a "remainder" because it follows a life estate. It is a "contingent" remainder because there is a condition precedent other than the natural termination of the preceding life estate [George must become a marine biologist before Jerry dies.] The FSA retained by Elaine is a reversion because it will become possessory following Jerry's life estate (if George fails to become a marine biologist before Jerry dies.]

Elaine "to Jerry for life, then if George becomes a marine biologist before Jerry dies, to George and his heirs on condition that the land is always used as a restaurant; if the land is ever not used as a restaurant, Elaine or her successors can choose to terminate the estate."

Jerry has a possessory life estate, George has a contingent remainder in a FSCS, and Elaine has both a Reversion in FSA and a Power of Termination (POT) in FSA. George got a non-possessory FSCS because of the "restaurant" condition and the fact that the breach of the "restaurant" condition triggers the power retained by the grantor Elaine (or her successor) to choose to terminate the estate. The nonpossessory FSCS given to George is a "remainder" because" it follows a life estate. It is a "contingent" remainder because there is a condition precedent other than the natural termination of the preceding life estate. George's nonpossessory FSCS will only become a possessory FSCS if George becomes a marine biologist before Jerry dies. Notice that the "marine biologist" condition is a condition precedent that determines whether George's nonpossessory FSCS will only become a possessory FSCS, whereas the "restaurant" condition makes George's estate a FSCS (instead of a FSA). Here there is a condition to "get" it ("marine biologist") and a condition to keep it ("restaurant"). The condition precedent ("marine biologist") makes the remainder a contingent remainder. The divesting condition ("restaurant")makes the estate a FSCS instead of a FSA. Elaine has a reversion in FSA because her nonpossessory FSA will become a possessory FSA at Jerry's death if George is not a marine biologist. Elaine also has a Power of Termination (POT) in FSA because her nonpossessory FSA will become a possessory FSA if (1) George is a marine biologist at Jerry's death; (2) the land is thereafter not used as a restaurant;and (3) Elaine or her successor exercises the power to terminate.

Elaine "to Jerry for life, then to George and his heirs."

Jerry has a possessory life estate, George has a vested remainder in FSA, and Elaine has nothing. [The FSA given to George is a "remainder" because it follows a life estate. It is a "vested" remainder because the recipient is ascertained (it's George!) and there is no condition precedent other than the natural termination of the preceding life estate. Elaine has nothing because there is no way it is coming back to her. If George predeceased Jerry, George's VR in FSA will pass at his death to his heir(s) or devisee(s).

Elaine "to Jerry for life, then to George and his heirs on condition that the land is always used as a restaurant; if the land is ever not used as a restaurant, Elaine or her successors can choose to terminate the estate."

Jerry has a possessory life estate, George has a vested remainder in a FSCS, and Elaine has a Power of Termination (POT) in FSA. George got a non-possessory FSCS because of the "restaurant" condition and the fact that the breach of the "restaurant" condition triggers the power retained by the grantor Elaine (or her successor) to choose to terminate the estate. The nonpossessory FSCS given to George is a "remainder" because" it follows a life estate. It is a "vested" remainder because the recipient is ascertained (it's George!) and there is no condition precedent other than the natural termination of the preceding life estate. [Note: the "restaurant" condition is not a "condition precedent" but rather a "divesting" condition. It is not a condition that must be met to "get" possession, but rather is a condition that must be satisfied to avoid "losing" the estate.] Elaine does not have a reversion in FSA here, but she does have a Power of Termination (POT) in FSA. The only way it can return to Elaine is if, after Jerry's death, the land is not used as a restaurant and the power to terminate is exercised.

Elaine "to Jerry for life, then, if George becomes a marine biologist before Jerry dies, to the heirs of George and his heirs."

Jerry has a possessory life estate, the heirs of George have a contingent remainder in FSA, and Elaine has a reversion in FSA. The FSA given to the heirs of George is a "remainder" because it follows a life estate. It is a "contingent" remainder for two reasons: (1) there is a condition precedent other than the natural termination of the preceding life estate [George must become a marine biologist before Jerry dies]; and (2) the recipient(s) is/are currently unascertained. The FSA retained by Elaine is a reversion because it will become possessory following Jerry's life estate (either because George failed to become a marine biologist before Jerry dies or because George died with no heirs.

Elaine "to Jerry for life, then to the heirs of George and their heirs."

Jerry has a possessory life estate, the unascertained heirs of George have a contingent remainder in FSA, and Elaine has a reversion in FSA. [The FSA given to the unascertained heirs of George is a "remainder" because it follows a life estate. It is a "contingent" remainder because the recipient(s) is/are currently unascertained. The FSA retained by Elaine is a reversion because it will be possessory following Jerry's life estate (if it turns out George dies with no heirs).

Elaine conveyed Blackacre "to Jerry for life, then to the heirs of George and their heirs." A month later, George died, survived only by his dad. In his will, George gave everything to Cosmo. Who owns Blackacre after George died?

Jerry has a possessory life estate. George's dad (his heir at law) has a vested remainder in FSA. Elaine and Cosmo have no interest in Blackacre.

Today's issue: what was granted? FSD or a FSCS?

Look to see if the grantor intended breach to cause an automatic loss of ownership

Uter, who got a 4 year term for years from Otto, conveys to Milhouse for 5 years so long as IU beats OSU in football. MILHOUSE? UTER? OTTO?

M: Four year Term For Years Determinable (Uter cannot convey more than he owns) U: Non-possessory Possibility of Reverter in a 4 YR Term For Years (rooting for OSU) O: Non-possessory Reversion in FSA (gets possession in 4 years no matter what)

Power of Termination = Right of Entry KARA conveys "to MORGAN provided Morgan never dyes her hair blue. If MORGAN dyes her hair blue, KARA or her successors have the right to reenter and take the estate."

MORGAN has a FSCS. KARA has a "Right of Entry" in a FSA (or a "Right of Re-Entry in a FSA; or a Power of Termination in a FSA).

Kim conveys "to Khloe for life, then to Kourtney's kids when they reach 25." Kourtney has one child, Mason, age 26. Who owns what? Is the RAP triggered here?

Mason has a VRSTO in FSA. [The ROC does not close the class because Mason is not yet entitled to possession] This class gift is subject to the RAP. If anyone in the class can vest remotely, the entire class gift fails!

Mark conveys "to Brett for life, then if Michael is a lawyer before Brett dies to Michael so long as Michael lives on the land." Advise Michael.

Michael owns a CR in FS STD (or CR in FSD)

Mark conveys "to Brett for life, then to Michael so long as Michael lives on the land." Advise Michael.

Michael owns a VR in FS STD (or VR in FSD)

Zink conveys "to Miller and his heirs so long as the land is farmed, then to Dean Strauss." Who owns what? Is the RAP triggered here?

Miller has a FSEL. Strauss has a shifting EI in FSA. The EI in FSA is subject to the RAP. Yes, and there is a RAP problem! The EI in FSA could vest 500 years from now!

Could the CR in FSA remotely vest? Could Ben marry beyond the Perpetuity Period?

NO! We cannot kill all persons alive when the CR was created (which includes BEN), and then have BEN marry more than 21 years thereafter. Dead men don't marry

Lebron is dead. Lebron devised his land "to my grandchildren who reach age 25." Lebron is survived by 2 children (Carmelo and Kevin) and two grandkids (Shaq, age 5 and Alonzo, age 3). Who owns?

Neither Shaq (5) nor Alonzo (3) are entitled to possession. The class stays open. So who has possession? Lebron's heir (or devisee) has a possessory FSEL. Shaq has an EI in FSA. Alonzo has an EI in FSA. Both EI's are subject to RAP! [It is a class gift]

Lebron is dead. Lebron devised his land "to my grandchildren who reach age 25." Lebron's kids (Carmelo and Kevin) predeceased Lebron. His grandkids are Shaq, age 5, and Alonzo, age 3. Who owns?

Neither Shaq nor Alonzo are entitled to possession. However, the class closed "naturally" because there can be no more grandkids. Who has possession? Lebron's heir of devisee has a possessory FSEL. Shaq has an EI in FSA. Alonzo has an EI in FSA. Both EI's are subject to RAP.

In 2020 Ben has a 3rd child named Velma. Jack is 22 and Jill is 12. Who owns?

No change. The ROC closed the class in 2019 when Anna died. This excluded Velma from the class gift. [Because Jill was born before the class closed, Jill has a chance to meet the condition, whereas Velma is excluded.]

FEE Simple Absolute (FSA)?

No time limit and no conditions.

FEE Simple Subject to an Executory Limitation (FSEL?)

No time limit, but there is a condition. KEY: If the condition is breached, a "third party" previously named by the grantor automatically takes over possession.

FEE Simple Subject to a Condition Subsequent (FSCS)?

No time limit, but there is a condition. KEY: If the condition is breached, the grantor (or his successor) can elect to take action to terminate the estate (the FSCS is not automatically ended)

Is Mason the validating life?

No, because a child of Kourtney can turn 25 more than 21 years after Mason is dead 2000 Conveyance 2001 Kourtney has Chris 2002 Kourtney and Mason die 2023 It is 21 years after K died 2026 Chris turns 25 So Mason is not the validating life. What about Khloe?

Could Ben's CR in FSA remotelyvest?

No. We cannot kill all persons alive when the CR was created (which includes Anna) and thereafter have the Buffalo Bills win it all before Anna dies. Once Anna is dead, we will know whether the CR vested (the Bills did it) or failed (the Bills still have not won)

The clause "trumps" the phrase! Otto "to Anna on condition that Anna farms the land. Ownership immediately ends if Anna stops farming."

Note: even though the phrase "on condition that" usually indicates FSCS, this is a FSD due to the "immediately ends" language!

TOM to "DREW for life, then to PEYTON and any other future children of ARCHIE, so long as they farm the land. If they do not farm the land, then to JAY."

PEYTON has a VRSTO in FSEL. (JAY has a shifting EI in FSA).

Phil wants to give Rickie a springing EI in a TFY and Jason a CR in a FSD

PHIL conveys to RICKIE for 5 years if RICKIE wins the British Open. If RICKIE gets possession, after his 5 years the land goes to JASON if JASON is married, on condition that the land is farmed for 10 years. If farming stops during the 10 year period, possession shall automatically return the grantor, PHIL, or his successor.

Pam "to Sandy if Sandy marries before Anna marries, but if Anna marries before Sandy marries, to Anna; however, if Sandy thereafter marries, then to Sandy."

Pam has a possessory FSEL. Sandy has a springing EI in FSA. Anna has a springing EI in FSEL. Sandy has a shifting EI in FSA.

Polk "to Tyler for life, then if Pierce is president when Tyler dies, to Pierce."

Pierce is a grantee. His non-possessory FSA follows a life estate, so he has a "remainder" in FSA. But is it a vested remainder? No! There is a condition precedent here, so Pierce does not have a vested remainder in FSA. [Pierce has a contingent remainder in FSA.]

Grantor future interest labels

Reversion Possibility of Reverter Power of Termination (sometimes called a Right of Re-entry)

Otto conveys "to the school board so long as it uses the property for a school."

SCHOOL BOARD HAS FSD. OTTO HAS A POR IN FSA.

Lebron is dead. Lebron devised his land "to my grandchildren who reach age 25." Lebron is survived by 2 children (Carmelo and Kevin) and two grandkids (Shaq, age 28 and Alonzo, age 21). Who owns?

Shaq (28) has possession. The class closes under the ROC. Alonzo (21) is "in" but other future grandkids are "out". Shaq has a FSEL (partial) and Alonzo has a partial EI in FSA. Does the EI violate the RAP? The vesting event is that 21-year old Alonzo must reach age 25. Alonzo is a validating life! Justin Bieber is also a validating life. So are all of you. Do you see why?

Lebron is dead. Lebron devised his land "to my grandchildren who reach age 25." Lebron is survived by 2 children (Carmelo and Kevin) and two grandkids (Shaq, age 28 and Alonzo, age 27). Who got what?

Shaq and Alonzo co-own the possessory FSA! Even though there could be more grandchildren of Lebron, the class closed under the Rule of Convenience because members of the class (here: Shaq and Alonzo) are entitled to possession.

Doug conveys Blackacre "to Skeeter for the life of Patty." Advise Skeeter, Patty, and Doug.

Skeeter has a possessory life estate pur autre vie! Patty has nothing, but is the "measuring life" for Skeeter. Doug had a possessory FSA. Now Doug has a non-possessory FSA (or, more precisely, a reversion in FSA).

What is consequence of RAP violation? Otto in 2000 thought he conveyed "to Anna so long as the land is farmed, if not, to Ben." But Ben's EI in FSA violates the RAP! The EI in FSA is no good. It is "void ab initio." Otto in 2000 actually conveyed "to Anna so long as the land is farmed, if not, to Ben."

So: Anna actually got a FSD, and Otto has a POR in FSA!

Which are limited by time and conditions?

TFY Determinable LE-D TFY Subject to a LE-CS Condition Subsequent TFY Subject to an LE-EL Executory Limitation

Reversion

TFY or LE > Reversion If possessory estate is a Term for Years or a Life Estate, then the grantor has a Reversion in his/her retained estate.

In 1990 ROBERT conveyed "to TONY on condition that TONY not serve alcohol on the land prior to his 27th birthday. If this condition is breached, ROBERT may enter and terminate the estate." TONY served alcohol on the land on his 25th birthday in 2000, but ROBERT never terminated, and the statute of limitations is 5 years. Who owns what now?

TONY has FSA

Which are limited by time only?

Term Absolute LE Absolute

The Twelve Estates?

Term Absolute LE Absolute FSA TFY Determinable LE-D FSD TFY Subject to a LE-CS FSCS Condition Subsequent TFY Subject to an LE-EL FSEL Executory Limitation

What are the three absolute estates?

Term for Years (Absolute) - limited in time (10 months, 6 years, etc.) but no conditions Life Estate (Absolute) - limited in time ("life) but no conditions Fee Simple Absolute - no time limits and no conditions

A grantor can "release" a POR or POT. What result if a POT is released to the grantee?

The FSCS becomes a FSA

In some states, there are limits on transferring a POR or a POT. If Otto owns a POR in FSA that state law says he cannot transfer, what happens when Otto dies?

The FSD becomes a FSA

What future interests are subject to the Rule Against Perpetuities?

The RAP applies to (1) contingent remainders, (2) executory interests; and (3) vested remainders that are subject to open (class gifts)

What future interests are not subject to the Rule Against Perpetuities?

The RAP does not apply to vested remainders (that are not subject to open), and future interests retained by a grantor (Reversion, POR, or POT)

Elaine conveys "to Jerry for life, then to the heirs of George and their heirs."

The heirs of George own a non-possessory FSA. It follows a life estate so it is a remainder. The owners are currently unascertained, so it is a contingent remainder in FSA.

Otto conveys to Susie for life so long as Susie lives on the land.

The possessory life estate will end. Otto has (1) a reversion in FSA. The possessory life estate might automatically end before Susie dies. Otto also has (2) a possibility of reverter in FSA.

Otto "to Anna for 5 years so long as the Titans beat the Bengals."

There are two ways possession can return to Otto: (1) in 5 years if Titans keep winning; or (2) sooner than 5 years if the Bengals win. Otto owns two property rights: (1) a reversion in FSA; and (2) a "possibility of reverter" in FSA. Otto will sell 1 of his 2 nonpossessory estates. Grant Snyder, which one do you want?

FEE Simple Determinable (FSD)?

There is no time limit, but there is a condition. KEY: If the condition is breached, the possession goes automatically back to the grantor (or her successor)

Do owners of non-possessory estates have current rights?

They can sue the holder of the possessory estate for waste They can sell their non-possessory estate or pass it at death

Owners of non-possessory estates have current rights!

They can sue the holder of the possessory estate for waste They can sell their non-possessory estate or pass it at death

"Ben and his heirs" - identify the "words of purchase" and "words of limitations."

To Ben: Words of Purchase -- identifies the RECIPIENT of the estate (property right) conveyed His Heirs: describes the type of ESTATE conveyed (here: fee simple absolute)

"To Zoe for life" - identify the "words of purchase" and "words of limitations."

To Zoe: WORDS OF PURCHASE -- identifying THE RECIPIENT OF THE ESTATE conveyed "for life": WORDS OF LIMITATION - describing THE TYPE OF ESTATE conveyed (here: a life estate)

Variation: Kim conveys "to Khloe for life, then to Kourtney's kids when they reach 20." Kourtney has one child, Mason, age 26. What is the vesting event? Who impacts vesting?

To vest, you must be Kourtney's kid and turn 20. Kourtney and Kourtney's kids impact vesting.

Kim conveys "to Khloe for life, then to Kourtney's kids when they reach 25." Kourtney has one child, Mason, age 26. What is the vesting event? Who impacts vesting?

To vest, you must be Kourtney's kid and turn 25. Kourtney and Kourtney's kids impact vesting.

How to say fee simple absolute?

Today, courts presume an owner of a fee simple absolute (FSA) intends to grant the FSA instead of a life estate. If a current owner of a FSA wants to grant a life estate, she must use language that makes her intention clear.

Otto in 1990 conveys to Tom for life, then to Jerry's kids. A year later, in 1991, Jerry has a son, Charley.

Tom has a life estate. Charley has a VR STO in FSA. Otto has nothing.

Otto in 1990 conveys to Tom for life, then to Jerry's kids. In 1991 Jerry had a son, Charley. In 1992, Jerry dies.

Tom has a life estate. Charley has a VR in FSA. Otto has nothing. The class gift to Jerry's kids closed "naturally" due to the death of the "determiner" of the class (Jerry). This problem does not concern the Rule of Convenience.

Otto in 1990 conveys to Tom for life, then to Jerry's kids. In 1991 Jerry had a son, Charley. In 1992 Jerry died. In 1993, Charley died.

Tom has a life estate. Charley's (now ascertained) heir has a VR in FSA. Otto has nothing

Otto in 1990 conveys to Tom for life, then to Jerry's kids. Jerry has no kids.

Tom has a life estate. Jerry's unborn kids have a CR in FSA. Otto has a reversion in FSA.

Determinable

Type of defeasible estate right of posession after breach goes automatically back to grantor (or his/her successor)

Subject to executory limitation

Type of defeasible estate right of possession after breach goes automatically to someone named by the grantor (or the named person's successor)

Subject to condition subsequent

Type of defeasible estate right of possession goes back to grantor (or successor) if (1) there is a breach (2) grantor (or successor) affirmatively "terminates" and takes over

Our first rule: THE RULE OF CONVENIENCE (ROC) (page 72)

Under the Rule of Convenience, a "class gift" closes when any member of the class is entitled to possession. The closing of the class excludes persons born thereafter from joining the class.

Create hypothetical events to show the possibility of remote vesting

Use dates to show Ben's EI could vest remotely: 2000 Anna gets FSEL. Ben gets an EI in FSA 2001 Ben has Hank. Anna has Susie. 2002 All persons alive in 2000 die 2023 Perpetuity period ends (2002 + 21) 2024 Susie stops farming. Hank's EI vests

Merle devised his property "to Daryl for life, then to Michonne and her heirs, but if Michonne does not marry before Daryl dies, to Rick and his heirs."

We are told on page 70 that Michonne has a vested remainder in FSEL and Rick has an Executory Interest (EI) in FSA.

LIFE ESTATE

We must make clear it is a life estate Life estates can be absolute or defeasible A defeasible life estate is limited in time (life) and subject to a condition. It can end by death or sooner by breach. A life estate can be possessory or non-possessory. Awesome!

The Rule Against Perpetuities The RAP is a rule against possible remote vesting. If certain future interests can possibly vest "remotely" they are no good from the beginning!

What is the vesting event? Who impacts vesting? Can we kills everybody and have this thing vest after 21 years? Create Kill Count Vest

Otto "to Anna for 5 years so long as the Titans beat the Bengals." Anna has a possessory defeasible (5 yr.) term for years estate. Looks like a term for years determinable (TFY-D) instead of TFY-CS or TFY-EL. Why?

Wording suggests the breach of the condition will return possession to the grantor Otto automatically. (Automatic back to grantor = "determinable")

Do we still tax alienability and inheritability today?

Yes! In the form of local transfer taxes and state and federal inheritance (death) taxes

Burt conveys "to Ernie for life, then to my children who turn 25.". Burt has a daughter, Maria, age 12. What is the vesting event? Who impacts the vesting event?

You must be Burt's child and turn 25. Maria and Burt (Burt may have more kids)

IF YOU ARE ZOE, WOULD YOU RATHER HAVE A LIFE ESTATE OR A FEE SIMPLE ABSOLUTE ESTATE?

ZOE's life estate is measured by ZOE's life. It is over when ZOE dies. An estate limited in time is not as valuable as an estate that is not limited in time.

Zink conveys "to Miller and her heirs so long as the land is farmed." Who owns what? Is the RAP triggered here?

Zink has a POR in FSA. The POR in FSA is not subject to the RAP. There is no problem.

Voluntary Waste

affirmative actions that significantly devalue the land

Permissive Waste

failure pay taxes, assessments, or mortgage payments or to make "important" repairs

Grantee Future interest label

is one of the future interest labels used to describe a grantee's non-possessory estate. If the estate at issue is held by another grantee, the appropriate future interest will be either a remainder or an executory interest If the estate at issue follows a life estate or a term for years, we use the "remainder" label. Otherwise, we use the executory interest label

FSCS phrases

provided that but if on condition that

If waste has occurred, and may continue, the court can award damages and issue an injunction.

true

On the bar exam a vested remainder subject to open may be called a

vested remainder subject to partial divestment, or a vested remainder subject to partial defeasance

FSD phrases

while during until so long as