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Law Outlines Property Outlines

Common Law Estates Outline

Updated Common Law Estates Notes

Property Outlines

Property

Approximately 41 pages

1L Property Outline keyed to Dukeminier casebook...

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COMMON LAW ESTATES

Under feudal system, since lords granted land as compensation for personal services, used to be that land was granted only as a life estate, unless the grant explicitly included the words “and his heirs.” Today (by statute in 1851 in Tennessee, and at some point everywhere else), changed the default so that now the full interest in the land is conveyed unless the deed explicitly limits it to life interest or some other lesser interest.

Numerus clausus—property rights are in boxes. One cannot create new or customized property interestsleads to easier transferability of property.

Terms in Will

  • Heir—survivor

  • Legatee—gets personal property

  • Devisee—those to whom the testator leaves real estate in his/her will

Context in Wills

  • In general, only look at operative text. Lakeacre hypo, testator might have wanted to pander to his son by describing his “intent,” but he used certain textual devices to look them into certain property interests. If he wanted both sons to get an equal interest, he could have made them tenants in common. If the testator looks like he had legal assistance in drafting, and chose specific “boxes,” then it takes a lot to overcome the text. If its not really clear and specific, and it looks really messy, then maybe the context comes into it

A. Three types of fee

  1. Fee Simple (absolute): endures forever. Living person has no heirs yet. Heirs are determined at death. Usually goes to children and spouse, then parents, then siblings, cousins. If one dies intestate with no next of kin who can be reached, land escheats to the state.

    1. White v. Brown: Jessie Lide testified “I wish Evelyn White to have my home to live in and not be sold. I also leave my personal property to Sandra White Perry. My house is not to be sold.” Question was whether this is fee simple or life estate

      1. Court says there’s a strong presumption for fee simple instead of life estate; unless the testator’s intent is unequivocally clear, court will grant fee simple.

    2. Words of Purchase—describe the conveyance

      1. O to A

    3. Words of Limitation—at early common law, words of limitation like “and his heirs” described the type of interest being conveyed (LE or FS). The heirs are not actually part of the conveyance, just there for magic words, have no legal interest. A can still sell the land or devise the land away to whomever he wants and leave heirs w/ nothing. Today, you don’t really need “and his heirs” b/c of presumption for FSA. But sometimes lawyers just throw them in anyway.

      1. O to A and then to Charles.

  2. Life Estate: endures for the life of a person. Can be “pur autre vie,” for another’s life.

  3. Term of years

  4. Remainder (what’s left after the life estate). If A has a life estate, remainder to B, B’s creditors can not attach the property until after A dies. Similarly, B cannot prevent A from selling his life estate.

B. Remainders

  1. Vested—Two requirements for vested remainders

    1. You know the event is going to occur. Remainders after a life estate, at least the event is certain to occur.

    2. You know who is going to get the remainder—the person is ascertained. You never really know who A’s heirs are until he dies.

    3. O to A and then to her sons Charles and George. In 1600, A has a LE, and then C and G have LE. Today, A has LE, and C &G have vested remainder. A can only convey his LE, can’t convey fee simple b/c he doesn’t have it. If, instead, it had said O to A and his heirs, then A has fee simple and “and his heirs” just denote the FS in 1600, but are virtually meaningless today.

  2. Contingent

    1. Might be given to an unascertained person, or it might be contingent on a condition precedent (other than termination of the preceding estate) that may or may not occur. Contingent remainder interest does not mature into possession if the conditions are not met. Since you never know who the heirs are until the decedent dies, gifts to heirs are contingent remainders.

C. Executory Interests—a future interest in a third party that divests or cuts short a prior estate.

  • Most commonly follow defeasible fees. Follows a defeasible fee if the property passes to a third party instead of to the grantor.

D. Numerus Clausus—There are certain boxes that can be checked. But one cannot just create a new kind of property right.

  • Johnson v Whiton: A will gave to a granddaughter and her heirs on her father’s side property. Court said he can’t make up a new kind of estate or restrict descent. Court granted the granddaughter fee simple absolute.

E. Waste—Basic idea: when multiple persons have a possessory interest, A should not be able to use the property in a manner that unreasonably interferes with the expectations of B.

  1. Definitions:

    1. Affirmative waste: injurious acts that substantially reduce the value of the property in question, with some exceptions.

      1. Minerals can usually be extracted if they were being extracted when the future interests were created. Maybe at the same rate? Maybe at the rate that would maximize the combined interest of the fee holder and the remaindermen?

    2. Permissive waste: failure to take reasonable care of the property. Life tenant can be assessed damages for not keeping it up. Failure to pay taxes resulting in forfeiture can be waste.

    3. Walker definition (FU handout): a spoiling or destroying of the estate w/r/t house, wood, or soil, to the lasting injury of the inheritance. In some wild lands, tenant may clear a reasonable portion for the purpose of cultivation

    4. Melms definition (FU handout):

      1. any act or omission of duty by a tenant of land which does a lasting injury to the freehold, tends to the permanent loss of the owner of the fee, or to destroy or lessen the value of the inheritance, or to destroy the identity of the property, or impair the evidence of title. OR

      2. Any material change in the nature and character of the buildings made byt the tenant, even though the value of the property would be enhanced by the alteration.

    5. Restatement definition (FU handout):

      1. The owner of an...

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