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
- 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)
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
- 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
- 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
- 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”
- 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)
- 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 life1. 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
- If B gets property upon A’s death = NOT executory interest (it’s a vested remainder)
- If B gets property upon breach = Executory interest
- 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
- “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
- Disabling restraint - (see rule statement materials)
- Forfeiture restraint - (see rule statement materials)
- 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
- 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:- Sue for damages
- Seek an injunction to stop the activity
- 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
- Is it fee or life? (First question always)
- What kind? (Absolute? Tail? Defeasible?)
- If defeasible, which type? (Look at language)
- Check for restraints (Spot “never sell/transfer” language)
- 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)