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36 Cards in this Set
- Front
- Back
Estate Language: To A and the heirs of his body.
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Fee Tail
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Estate Language: So long as / Until / While
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Fee Simple Determinable
Forfeiture is automatic. Deviseable, descendible, alienable, but ALWAYS subject to condition. |
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NYS Distinction: Fee Simple Determinable
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Called a fee on limitation
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Rule: Fee Simple Determinable
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Forfeiture is automatic.
Deviseable, descendible, alienable, but ALWAYS subject to condition. Future Interest: Possibility of Revertor |
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Estate Language: but if X, grantor reserves right to reenter and retake
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Fee Simple Subject to Condition Subsequent
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Rule: Fee Simple Subject to Condition Subsequent
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MUST carve out the right to re-enter and retake
Forfeiture is NOT AUTOMATIC, but is grantor’s OPTION Future Interest: right of Re-Entry |
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NYS Distinction: Right of Reentry
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Right of Reentry is called RIGHT OF REACQUISITION
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Rule: Fee Simple Subject to Executory Limitation
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Forfeiture is AUTOMATIC
Future Interest: Shifting Executory Interest |
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Estate Language: but if X, then to A
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Fee Simple Subject to Executory Limitation
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Rule: Precatory Language
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Words of mere desire, hope, or intention are insufficient to create a defeasible fee
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Rule: Restraints on Alienation
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Absolute Restraints on Alienation are VOID
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Define: Life estate pur autr vie
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Life Estate measured by a life other than the grantees.
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Rule: Rights of a life tenant
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Entitled to ordinary uses and profits.
MUST NOT commit WASTE |
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Waste
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Voluntary/Affirmative Waste—overt conduct that causes a drop in value.
Permissive Waste—allowed to fall into disrepair Ameliorative Waste—acts to enhance the property’s value |
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Rule: Waste and natural resources
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Must not consume or exploit natural resources, UNLESS:
1: Prior Use/ Open mines doctrine 2: Reasonable Repairs 3: Express Grant 4: Land is ONLY suitable for exploitation |
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Rule: Permissive Waste and Maintanence
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Must maintain the premises in reasonably good repair.
MUST pay all ordinary taxes. |
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Future Interests in the Grantor (3)
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1: possibility of reverter
2: right of entry 3: reversion (follows a life estate) Future interests of the GRANTOR are NOT SUBJECT to RAP |
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Future Interests of Transferees (3)
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1: Vested Remainder
2: contingent remainder 3: executory interest |
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Remainder
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A future interest created in a grantee that is CAPABLE of becoming possessory upon the expiration of a prior possessory estate created in the SAME CONVEYANCE in which the remainder is created.
***cannot follow a defeasible fee—if after a defeasible fee, it is an EXECUTORY INTEREST*** |
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Define: vested remainder
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1: Created in an ascertained person
2: Not subject to condition precedent |
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Define: vested remainder subject to open
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1: vested remainder
2: created in a class that is certain to possess, but may be diminished (e.g. “to the children of. . .”) |
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Define: vested remainder subject to total divestment (complete defeasance)
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1: vested remainder
2: subject to condition subsequent |
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Define: contingent remainder
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1: remainder in unborn or unascertained persons
OR 2: remainder subject to condition precedent |
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DISTINGUISH: remainder vs. executory interest
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1: remainder follows life estate or term of years – executory interest follows defeasible fee.
2: remainder follows immediately – executor interest may follow a gap. |
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Rule: Destruction of contingent remainders
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Historically, contingent remainders were destroyed if they were still contingent when the preceding estate ended.
NOW, grantor or heirs will hold the estate subject to a springing executory interest (e.g. when the contigent factor is met, the original holder of the contingent remainder will take under the executory interest. |
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Rule in Shelley’s Case
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Prohibited creating a life estate in A, with the contingent remainder in A’s heirs—turned the whole thing into a fee simple.
ABOLISHED IN NYS |
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Doctrine of Worthier Title
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Prohibited a living grantor creating a contingent remainder in his own heirs. Turned it into a reversion back to the grantor instead.
Rule of Construction ONLY—clear intent still prevails. ABOLISHED IN NYS for transfers after September 1, 1967. |
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NYS Distinction: Remainders and Executory Interests
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NYS has abolished the difference between contingent remainders and executory interests.
Both are called a “remainder subject to a condition precedent.” |
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DISTINGUISH: shifting and springing executory interests
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Shifting executory interest: cuts short a defeasible fee.
Springing executory interest: follows a gap, or cuts short the grantor. |
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RAP does NOT apply to…
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1: future interests held by grantor
2: vested remainder subject to complete defeasance |
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Bright Line RAP Rule: Open Classes
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A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates the RAP.
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Bright Line RAP Rule: Executory Interests
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An executory interest with no limit on the time within which it must vest violates the RAP.
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Wait and See / Second Look Doctrine
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Majority Reform Effort
Validity of suspect future interest is determined at the END of the measuring life. Reduce offensive age contingencies to 21 years. |
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Uniform Statutory Rule Against Perpetuities
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90 years in place of RAP
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Cy Pres Doctrine and RAP
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reform a violating disposition in a way that most closely fits grantors intent.
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NYS Distinction: New York Perpetuities Reform Statute
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NYS has rejected wait and see and cy pres.
Under Statute: 1: reduce offensive age contingencies to 21 2: woman over 55 cannot have a child (ignore adoption) 3: applies common law RAP to restriction on power to sell or transfer (trusts/wills) |