Possessory Estates Outline

1. POSSESSORY ESTATES

• An estate is an interest in land which is or may become possessory. An estate is measured by some period of time.

• Under feudalism, a tenant owed services to his landlord (such as fighting in L’s army, delivering food, or paying rent).

• Additionally, estates were liable for incidents, which came due on the tenant’s death. These included relief (payment to release the land from the lord), wardship (rents and profits from the land during minority of the tenant), marriage (payment for marriage of T’s daughters to one of the lord’s minor heirs), and escheat (return of the land to the lord if the tenant died without heirs).

• The estates are numerus clausus; no new estates may be created. An estate will be interpreted to fall into one of the existing categories.

• Words of Purchase describe in whom an estate is created. “To X...(and his heirs, for life, etc.)”

• Words of Limitation describe the type of estate created. “(To X) ...and his heirs.”

  1. Fee Simple

• Fee simple is an estate in land which has the potential to endure forever. A fee simple is created by a grant from O “To A and his heirs.”

• “...and his heirs” are words of limitation. Heirs have no interest in the estate until the grantee dies.

• Fee simple absolute is the closest thing to absolute ownership in the Anglo-American system. It is a fee of potentially infinite durations without any constraints on its heritability, and cannot be divested by any condition.

• At common law, the fee simple could only be created with the magic words “and his heirs.” Modern law presumes a fee simple where the grant is otherwise ambiguous.

  1. Heirs

• Heirs are those who succeed to an intestate decedent’s real property. The term for personal property is “next of kin.”

• Issue are the direct lineal descendants of the decedent (children, grandchildren, etc.)

• In intestacy, the heirs’ entitlements are determined by statute. In states adopting the Uniform Probate Code:

  • The spouse takes one half, if living. The other half goes to the decedent’s issue, if any. If no issue, then that half goes to the decedent’s parents, if living. If not, the spouse takes the other half as well.

  • If the decedent leaves children, they take one half (if the spouse is living) or all if the spouse is dead. The children take equal parts of the estate. Grandchildren take nothing if their parent is alive. If not, they take the parent’s share and divide it equally, and so on.

  • Adopted children enjoy the same rights as natural children.

  • A bastard inherits from his mother in any event and his father, if paternity is established.

  • Stepchildren take nothing.

• Collateral relatives are all blood relatives who are not either ancestors or descendants (brothers, sisters, nephews, nieces, aunts, uncles, cousins, etc.) Only if the decedent leaves no spouse, children, or parents do collateral relatives take.

• If the decedent dies intestate with no heirs, the fee simple escheats to the state.

  1. Fee Simple Determinable

• A fee simple determinable is created with words of limitation which define a condition which must continue for the estate to survive.

• The words of limitation are traditionally “To X and his heirs, so long as...” or “until...” or “provided that...” It is language which limits the duration of the fee simple; it does not define a positive condition which terminates the estate.

• The FSD creates a possibility of reverter. This causes the estate to automatically revert to the grantor if the condition is no longer met.

  • Once the POR is triggered, title automatically returns to O. The AP clock then begins to run on the estate. The grantor must sue to eject the grantee. See Marhrenholz v. County Board of School Trustees.

  • At common law, the POR was not alienable except by descent. Today, most jurisdictions allow it to be transferred.

• FSD is inheritable and transferrable the same as a FSA, but the limitation remains.

  1. Fee Simple Subject to Condition Subsequent

• A FSSCS is similar to an FSD, except that the grant describes a condition upon which the estate will terminate.

• “To X and his heirs, but if...then O shall have the right to reenter the premises.”

• Unlike an FSD, the condition does not automatically terminate the grantee’s estate, it merely creates a right of reentry in the grantor which can be exercised at his discretion. Therefore, the AP clock does not run, since the grantee possesses the premises at the grantor’s discretion (and not under claim of right).

• The FSSCS is transferrable until the grantor is entitled to and actually exercises the right of...

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