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I. Overview of Present vs. Future Interests

A. Basic Framework

  • O = Owner/Grantor (presumed fee simple absolute holder)
  • A = Present possessory interest holder (who has it NOW)
  • B, C, D, etc. = Future interest holders

B. Key Concept

  • Present possessory interests focus on who has the property right now
  • Future interests concern who gets it later (covered in subsequent sessions)

II. Fee Simple Estates

A. Fee Simple Absolute (FSA)

1. Common Law Conveyance

  • Formula: “O to A and his/her heirs”
  • MUST contain the word “heirs” under common law
  • Without “heirs” = problem under common law

2. Modern Law Conveyance

  • Formula: “O to A” (that’s it!)
  • Presumption: O transfers everything
  • No need for additional language (“heirs” not required)
  • Maximum ownership interest possible
  • A can freely assign, sell, or do whatever A wants

B. Fee Tail

  • Common Law Only - does NOT exist modernly
  • Formula: “O to A and the heirs of her body”
  • Limits interest to lineal descendants of grantee (DNA/blood)
  • Only ~3 states still follow it
  • Modern Treatment: Creates a fee simple absolute instead

C. Defeasible Fees

Three types of defeasible fees - all can potentially last forever and ever until breach:

1. Fee Simple Determinable (FSD)

Characteristics:
  • Uses words of duration: “so long as,” “while,” “until,” “during”
  • Automatic forfeiture upon breach
  • O doesn’t have to do anything - property automatically reverts
Formula: “O to A so long as Blackacre is used for residential purposes only” Breakdown:
  • O: Retains possibility of reverter (future interest, by operation of law)
  • A: Has fee simple determinable
  • If breach occurs: Property automatically forfeits from A and goes back to O (or O’s heirs)
  • If no breach: Goes to A’s heirs, then their heirs, forever (all subject to same restriction)
Key Rule: Anytime a fee simple determinable is conveyed, O will ALWAYS, by operation of law, hold a possibility of reverter

2. Fee Simple Subject to Condition Subsequent (FSSCS)

Characteristics:
  • Uses restrictional/contractual language: “on condition that,” “provided that,” “but if”
  • NO automatic forfeiture
  • Discretionary - O (or O’s heirs) may elect to re-enter and take back
Formula: “O to A on condition that Blackacre is used for residential purposes, otherwise O reserves the right to re-enter and retake Blackacre” Breakdown:
  • O: Retains right of entry (also called “power of termination”)
  • A: Has fee simple subject to condition subsequent
  • If breach occurs: O has the right to re-enter (but must exercise it)
  • Right of entry must be expressly reserved in the conveyance
Adverse Possession Timing:
  • Clock does NOT start ticking until O exercises right of re-entry
  • Continuous use, even if in breach, is presumed valid until O acts
  • Once O tries to re-enter and divest A, adverse possession clock begins
Why Use FSSCS vs. FSD?:
  • Sometimes the conveyance is complicated
  • Grantor may not want to automatically punish someone for breach
  • Allows flexibility when conditions may be ambiguous

3. Fee Simple Subject to Executory Limitation (FSSEL)

Characteristics:
  • Can use either duration OR conditional language (“so long as” OR “on condition that”)
  • Key difference: Upon breach, property goes to B (third party), NOT back to O
  • Language typically includes “then to B” or “otherwise to B”
Formula: “O to A so long as Blackacre is used for residential purposes, otherwise to B” Breakdown:
  • O: Conveys and has no future interest (unless specified)
  • A: Has fee simple subject to executory limitation
  • B: Has executory interest (future interest that divests A)
  • Upon breach: Property goes to B (not O)
  • B gets property: In fee simple absolute (NO restrictions carry over to B unless explicitly stated)
Important Distinction:
  • First two defeasible fees go back to O upon breach
  • FSSEL goes to B (third party) upon breach

III. Life Estates

A. Basic Life Estate

1. Common Law

  • Formula: “O to A for life”
  • Still creates a life estate

2. Modern Law

  • Formula: “O to A for life”
  • MUST contain “for life” - that’s how we know it’s a life estate
  • A has present possessory interest in a life estate with A being the measuring life

3. Future Interest

  • When life estate conveyed, O retains a reversion
  • Reversion: Property automatically goes back to O (or O’s heirs) when A dies

4. Three Types of Life Estates

  • Life estate (regular)
  • Life estate pur autre vie (measured by another’s life)
  • Defeasible life estates (3 types - see below)

B. Defeasible Life Estates

Similar structure to defeasible fees, but maximum duration = grantee’s life

1. Determinable Life Estate

Formula: “O to A for life, so long as Blackacre is used for residential purposes” Breakdown:
  • A: Has determinable life estate
  • O: Retains TWO future interests:
    • (1) Reversion (gets it back when A dies)
    • (2) Possibility of reverter (gets it back if A breaches)
  • Maximum duration: A’s lifetime
  • Automatic forfeiture upon breach (goes back to O)

2. Life Estate Subject to Condition Subsequent

Formula: “O to A for life, on condition that Blackacre is used for residential purposes, otherwise O reserves the right to re-enter” Breakdown:
  • A: Has life estate subject to condition subsequent
  • O: Retains TWO future interests:
    • (1) Reversion (when A dies)
    • (2) Right of entry (discretionary if A breaches)
  • No automatic forfeiture - O must exercise right to re-enter

3. Life Estate Subject to Executory Limitation

Formula Ambiguity Issue:
  • “O to A for life, so long as used for residential purposes, then to B” = PROBLEMATIC
    • Unclear if B gets it (a) upon A’s death, OR (b) upon breach
    • Should specify: “But if not used for residential purposes, then to B” (breach trigger)
    • OR: Different conveyance for death vs. breach scenarios
Key Distinction:
  • If B gets property upon A’s death = NOT executory interest (it’s a vested remainder)
  • If B gets property upon breach = Executory interest
Maximum Duration: A’s life only
  • If A dies without breach → goes back to O (via reversion)
  • If A breaches → goes to B (via executory interest)

IV. Restraints on Alienation

A. Overview

  • NOT a type of estate
  • A provision that withholds the power to sell, transfer, gift, or mortgage property
  • Land is freely alienable (law favors free transfer for tax revenue)
  • Commonly tested on exams and bar

B. Spotting Restraints

Example: “O to A so long as Blackacre is used for residential purposes and that A and A’s heirs never sell Blackacre”
  • The “never sell” provision = restraint on alienation

C. Analysis Framework

1. Identify the restraint provision

  • Look for language restricting sale, transfer, gift, or mortgage

2. Determine validity (case-by-case, no formal rule)

Factors to Consider:
  • Duration: How long does restraint last?
    • Forever = likely invalid
    • Limited term (e.g., 30 years) = possibly valid
  • Intent/Purpose: What are grantor’s intentions?
    • Good faith purpose (e.g., preserve wildlife) = possibly valid
    • No explanation/arbitrary = likely invalid
    • Discriminatory (race, gender, national origin) = invalid
  • Reasonableness: Is it reasonable overall?
    • Blanket restraint with no explanation = invalid
    • Limited duration + legitimate purpose = possibly valid

3. Remedy if Invalid

  • Strike/void the restraint provision
  • Read conveyance as if restraint doesn’t exist
  • Use a pencil and cross it out

D. Effect on Estates

Example: “O to A so long as used for residential purposes, and that Blackacre is never sold, otherwise to B” Analysis:
  • Initial classification: A has FSSEL (or FSSCS)
  • Restraint = “never sold”
  • Restraint is indefinite (forever), no stated purpose, not reasonable
  • Remedy: Cross out “and that Blackacre is never sold, otherwise to B”
  • Result: A has fee simple absolute
Key Point: Restraint based on use = different from restraint on alienation
  • “Used for residential purposes” = valid limitation on USE
  • “Never sell Blackacre” = restraint on ALIENATION (likely invalid if indefinite)

E. Exam Tips

  • 25-30% of essay questions contain restraints
  • Always check validity of interests created
  • Look for “validity” language in interrogatories
  • Discuss even if not explicitly asked

F. Three Types of Restraints

  1. Disabling restraint - (see rule statement materials)
  2. Forfeiture restraint - (see rule statement materials)
  3. Promissory restraint - (see rule statement materials)

V. Doctrine of Waste

A. Overview

  • NOT an estate type
  • A remedy that future interest holders can assert
  • Primarily applicable to life estates (not fees)
  • Future interest holder must be nearly guaranteed to get property

B. When It Applies

Scenario: “O to A for life, then to B”
  • A = present possessory interest holder (life estate)
  • B = future interest holder (will get property when A dies)
  • If A harms the property, B’s future interest is prejudiced

C. Three Types of Waste

1. Affirmative Waste

  • Intentionally damaging the land permanently
  • Example: A is present interest holder, land has oil
    • A cannot extract all oil, reap all profits, and leave B with nothing

2. Negligent Waste (Permissive Waste)

  • Omissions in upkeeping the property
  • Failure to maintain property
  • Example: Not fixing foundation, allowing property to become dilapidated, weeds everywhere

3. Ameliorative Waste

  • Changing the character of the property
  • Even if it increases value, it may burden future interest holder
  • Example: Converting residential Newport Beach home into commercial clown circus
    • Property value may increase
    • BUT: Changes nature from residential to commercial
    • Future interest holder now burdened with managing business, taxes, etc.
    • Goes beyond what grantor contemplated
Not Ameliorative Waste:
  • Cosmetic changes (e.g., remodeling bathroom)
  • Changes that don’t alter fundamental character (residential to residential)
  • Must change from residential → commercial, or commercial → industrial

D. Remedies for Future Interest Holder

Three potential remedies:
  1. Sue for damages
  2. Seek an injunction to stop the activity
  3. Possibly divest present interest holder (unclear - research question)

E. Important Limitations

  • Must act before A dies
  • After A dies, may only be able to sue A’s estate for damages
  • Most applicable when future interest is nearly certain (life estates)
  • Less applicable to fees (A could have fee forever, may never go to B)

VI. Key Exam Strategies

A. Systematic Approach

  1. Is it fee or life? (First question always)
  2. What kind? (Absolute? Tail? Defeasible?)
  3. If defeasible, which type? (Look at language)
  4. Check for restraints (Spot “never sell/transfer” language)
  5. Assess validity (Duration, intent, reasonableness)

B. Language Cues

  • Words of duration → Determinable (“so long as,” “while,” “until”)
  • Conditional words → Condition Subsequent (“on condition that,” “provided that”)
  • “Then to B”/“otherwise to B” → Executory limitation
  • “Never sell/transfer/convey” → Restraint on alienation (analyze validity)

C. Remember

  • This material is heavily tested
  • Know your rule statements (see materials provided)
  • Practice multiple examples (explanations are always the same)
  • This is “another language” - requires repetition
  • Material gets harder in coming weeks
  • Use charts/tables provided in emails

VII. Additional Concepts

A. Heirs

  • Determined at death (NOT before)
  • You don’t know who your heirs are while alive
  • Common mistake: calling living children “heirs”
  • Heirs of B are unascertainable until B dies

B. Modern Law vs. Common Law

  • Professor uses “iPhone law” = modern law
  • O to A = fee simple absolute (modern)
  • O to A and his heirs = fee simple absolute (common law)
  • Most examples use modern law unless specified

C. Conveyance Can Pass Through Generations

  • Fee simple: Can pass to A’s heirs, then their heirs, forever
  • Life estate: Stops at A’s death (or measuring life’s death)
  • Restrictions travel with property through successive owners (unless struck down)