dividing the right to possess (last updated 9.22)

6 ways to possess property in the present

• Fee simple absolute

• Leasehold

• Life estate

• Fee simple determinable

• Fee simple subject to condition subsequent

• Fee simple subject to executory limitation

Fee Simple Absolute

The most complete form of ownership. The owner has the right to possess the land from now until eternity. It has no natural end date.

Leasehold

right to possess property for a strictly defined, limited period of time

• EG: O grants Blackacre "to A for one year". This is the legal estate you hold if you are a tenant renting an apartment

Life Estate

The right to possess property only for the duration of a specific person's lifetime

• EG: O grants Blackacre "to A for life".

Fee Simple Determinable

The right to possess the property until a specified event occurs, at which point ownership automatically transfers back to the original grantor

• EG: O grants Blackacre "to A so long as the land is used as a farm" (or "until A marries"). If A stops farming or gets married, A’s estate instantly ends, and O automatically regains full ownership

Fee Simple Subject to Condition Subsequent

same rule as fee simple determinable, BUT transfer not automatic

Fee Simple Subject to Executory Limitation

same rule as fee simple determinable, BUT auto transfers to 3rd party

• O grants Blackacre "to A until A marries, and then to B". If A marries, B immediately and automatically becomes the owner

future interest attached to fee simple absolute

No future interest bc that ownership already lasts forever

future interest attached to Leasehold

same as life estate — Reversion (if future interest held w grantor), Remainder (if future interest held w 3rd party)

future interest attached to life estate

same as leasehold — Reversion (if future interest held w grantor), Remainder (if future interest held w 3rd party)

• remainder EG: O grants Blackacre "to A for life, and then to B." B is a third party. Therefore, B holds a remainder

  
  

future interest attached to Fee simple determinable

Possibility of reverter (held by Grantor)

• EG: In a grant "to A so long as the land is used as a farm," A has a fee simple determinable, and O has a possibility of reverter. If A stops farming, the land instantly belongs to O

future interest attached to Fee Simple Subject to Condition Subsequent

Right of Entry - after specified event happens, grantor must take some affirmative action to assert their right and legally reclaim the property

• EG: If O grants "to A, but if A stops farming, I reserve the right to reclaim the land," A has a fee simple subject to condition subsequent, and O has a right of entry. If A stops farming, A keeps the land until O actively steps in to reclaim it

  
  

future interest attached to Fee Simple Subject to Executory Limitation

Executory interest - once specified event happens, auto transfers to 3rd party

• EG: If O grants "to A until A marries, and then to B," A has a fee simple subject to executory limitation, and B holds an executory interest. The moment A marries, B automatically becomes the owner

  
  

Vested vs. Contingent Remainders

Vested Remainder: It is 100% certain that the holder will eventually get to possess the property

• EG: "To A for life, then to B."  A is guaranteed to die eventually, so B has a vested remainder

Contingent Remainder: It is uncertain whether the condition will ever be met, meaning the holder might never get to possess the land

• EG: "To A for life, then to the oldest of A's children who is then living."  If A has no surviving children when A dies, that remainder never vests

Retention of Non-Granted Interests Rule

When a grantor conveys less than their full estate, they automatically retain whatever they did not give away

• If O owns a fee simple absolute and grants a life estate to A, O automatically retains a reversion

All estates are freely transferable, but can you transfer more than you actually own?

no

• EG: O conveys land to A for A’s lifetime. A sells this present lifetime estate to E. If A dies, E's right to the land instantly evaporates

rule against perpetuities (RAP)

APPLIES ONLY TO contingent remainders and executory interests

RULE: No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest

RAP Steps (4)

1. Check if the RAP even applies — must be contingent remainder OR executory interest

2. Identify the contingency

3. At the latest, when will the uncertainty/contingency definitely be resolved?

4. Find a "Measuring Life" — Look for any person alive at the creation of the interest about whom you can say with absolute mathematical certainty: "Within 21 years of this person's death, we will know for sure whether the interest vests.”

   1. NOTE: measuring life doesn’t need to be of recipient, just of someone alive when the interest is created! (think of wills as eg)

• If you can find such a person (a "measuring life"), the interest is valid.

• If there is even a remote, highly improbable scenario where the contingency remains unresolved 21 years after the last survivor dies, the interest is completely void

  
  

2 Remedies for RAP Violations

• The Traditional Remedy (Strike-Out): The court simply strikes the invalid clause from the document

• Modern Judicial Remedy: reform the document to match the testator's intent as closely as possible (eg, reducing age req from 25 to 21)

3 Statutory Modifications to the RAP

• "Wait and See" Statutes: Instead of voiding an interest at creation, courts wait to see if the contingency resolves within the applicable period (traditional perpetuities period or 90 years). If resolved → valid; if not → void.

• Perpetuities Savings Statutes: if an interest violates RAP, court must reform the text to satisfy the rule in a way that respects the creator’s original intent

• Abolition of the RAP

what do concurrent interests apply to?

Applies to real AND personal property (eg art, cars, pet), tho its less common in personal property

3 types of concurrent interests

Tenancy in common; Joint tenancy; Tenancy by the entirety

• In each type, each tenant has the right to possess the entire property

Tenancy in common

Each co-tenant has a separate interest and can do whatever they like w their interest; Doesn’t include auto right of survivorship

Joint tenancy

each tenant can convey their interest during life w/o other’s consent, which severs JT and creates TIC; auto right of survivorship; OVERRIDES WILLS!!!

• if a JT dies, remaining joint tenant gets their share

Tenancy by the Entirety

Same right of survivorship as in joint tenancy, but only available to married couples

joint tenant can’t convey their entire interest on their own, must be done together

How to Terminate a Co-Tenancy (The Law of Partition) - 2 ways

• Partition in Kind (Physical Division): Court physically divides the property with a boundary line, creating separate, individually owned parcels.

• Partition by Sale (Forced Auction): Court orders a public sale of the entire property and divides the proceeds among co-tenants by ownership share.

Kipp v. Estate of Chips (tenancy in common)

Whether conflicting language in the deed created a joint tenancy or a tenancy in common (lang ambig, referred to both). if JT, K has right of survivorship. if JT, C’s son inherits dad’s ½ interest

HOLDING

bc state (VT) law presumes TIC and reqs clear language to create a JT, court resolved the ambiguity in favor of a tenancy in common. Thus, Chips’s ½ interest passed to his estate rather than to Kipp by survivorship.

Ark Land Co v Harper (terminating concurrent interests)

Whether the property should be partitioned in kind (physically divided) or partitioned by sale, where the remaining co-tenants had strong familial/sentimental interests in preserving the land.

HOLDING

Partition in kind. Physical division is preferred; sale requires showing (1) no convenient division, (2) sale benefits one party, and (3) no prejudice to others. Heirs’ longstanding/sentimental interests outweighed Ark Land’s added mining costs, so forced sale by lower ct was improper.