(10) Ambiguities - Covenants vs Conditions, Estate for Years, Fee Tail, Dower, Curtesy

What do courts use to resolve ambiguities in deeds?

Rules of construction.

What principle do courts generally follow when interpreting ambiguous conveyances?

Courts avoid and abhor forfeitures.

What is a forfeiture in real property law?

The automatic loss or reversion of an estate because a condition has been violated.

What is a covenant?

A promise to do or refrain from doing something relating to the land.

What is the remedy for breach of a covenant?

An action for damages.

Does breach of a covenant cause the grantee to lose title to the land?

No. The grantee retains ownership of the land.

How does a covenant differ from a fee simple determinable?

A covenant results in damages if breached, while a fee simple determinable automatically terminates the estate.

How does a covenant differ from a fee simple subject to a condition subsequent?

A covenant results only in damages, while a condition subsequent may allow the grantor to terminate the estate.

What is an estate for years?

A tenancy with a fixed beginning and ending date.

Is an estate for years a freehold estate?

No.

Does an estate for years include seisin?

No.

Must the ending date of an estate for years be known at the time it is created?

Yes.

Can an heir complete the remaining term of an estate for years if the tenant dies before the lease expires?

Yes.

What is a fee tail?

An estate that may endure forever but is limited to the lineal descendants of the grantee.

What language traditionally creates a fee tail?

"To A and the heirs of his body."

What does "lineal descendants" mean?

Direct bloodline descendants.

How many states still recognize the fee tail?

Only four states.

What usually happens if a grantor attempts to create a fee tail in most jurisdictions?

The conveyance is treated as creating a fee simple absolute or a life estate in the grantee with a fee simple remainder in the grantee's descendants.

If a fee tail is recognized, what future interest remains in the grantor?

A reversion.

What is dower?

A surviving wife's right to a life estate in one-third of the lands of which her husband was seised in fee simple or fee tail.

When should you think of dower on an exam?

When the husband dies before the wife.

Does dower apply to a husband's life estate?

No.

Under the modern rule, to what property is dower generally limited?

Property of which the husband is seised at the time of his death.

What is curtesy?

A surviving husband's right to a life estate in all of his wife's lands.

Who benefits from curtesy?

The surviving husband.

What type of estate does curtesy give the surviving husband?

A life estate.

Testable Issue: What is the difference between a covenant and a condition?

A covenant gives rise to damages upon breach, while a condition may terminate or divest the estate.

Testable Issue: Why do courts favor construing ambiguous language as a covenant rather than a condition?

Because courts disfavor forfeitures.

Testable Issue: What distinguishes an estate for years from a life estate?

An estate for years ends on a fixed date, while a life estate ends upon the death of a measuring life.

Testable Issue: What language creates a fee tail?

"To A and the heirs of his body."

Testable Issue: What usually happens when an attempt is made to create a fee tail in a jurisdiction that has abolished it?

The conveyance is generally treated as creating a fee simple absolute or a life estate with a remainder.

Testable Issue: What is the difference between dower and curtesy?

Dower gives the surviving wife a life estate in certain lands of her deceased husband, while curtesy gives the surviving husband a life estate in his deceased wife's lands.

Essay Rule: How should you analyze a present possessory estate when the conveyance language is ambiguous?

Determine whether the language creates a covenant or a condition, apply the rules of construction favoring the avoidance of forfeitures, identify the estate created, and determine the rights retained by the grantor or surviving spouse.

Master Synthesis: What is the overall framework for identifying present possessory estates?

Determine the type of estate created, whether it is absolute or defeasible, identify any conditions or future interests, apply rules of construction to ambiguous language, and recognize any statutory marital interests such as dower or curtesy.