Possessory Estates PDF

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Possessory Estates...

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Possessory Estates HISTORY—FEUDALISM AND TENURE During the middle ages, land was transferred through a system of tenures. The central feature of feudalism was the relationship of lord and vassal. All land was owned in the first instance by the sovereign, who then “tenured” it to his chief lords. They were obligated to render services in return. The chief lords then granted parts of their estates to their vassals, in return for services. Through this process of subinfeudation, a pyramid was formed, with the king at the top and the peasants at the bottom. In between were successive layers of chiefs and mesne lords, who were vassals to those above them and lords to those below.

A. TENURE The holding of the land by the vassal in exchange for the rendering of services to his lord was said to be “in tenure.” Every time a vassal granted part of the land he possessed to another party, a new tenure was created.

B. FEUDAL TENURES AND SERVICES 1. Free Tenures These tenures involved services that were defined and fixed as to quantity and manner of performance. The tenant who held in free tenure could sue anyone who disturbed his possession in the king’s court. There were four principal types of free tenures, differentiated by the nature of services the vassal had to render in return for possession of the land.

a. b. c. d.

Military Tenure Serjeanty Tenure Religious Tenure Economic Tenure

2. Unfree Tenures: Villeinage

C. 1. 2. 3. a. b. 4.

Feudal Incidents Homage and Fealty Aids Liability at death of tenant Relief and Primer Seisen Wardship and Marriage Escheat

D. Statute Quia Emptores

This statute permitted greater alienability of land and preserved valuable incidents for the lords. THE SYSTEM OF ESTATES An estate in land is an interest which (a) is possessory or may become possessory and (b) is ownership measured in terms of duration of possession.  A key factor in classifying various types of estates is length of time during which the grantee is entitled to possess the land. Duration can very from few years (term for years) to infinity (fee simple absolute) Estates also differ with time at which they became possessory.  The holder of a presently possessory estate is entitled to immediate possession of the land.  Future interests, become possessory only at the expiration of a prior estate or upon the happening of a required event.

A. Words of Purchase and Limitation B/c an estate has 2 components (possession and duration), every conveyance of an estate must indicate who is to receive possession and length of time that possession will last. Thus, the words of every grant are divided into two groups: 1. Words of purchase designate the grantee 2. Words of limitation designate the quantum of interest transferred. Example: “To B for life” = “To B” are words of purchase, indicating B is the grantee. “For Life” are the words of limitation, defining duration of B’s possession which, since it says “life,” is a life estate, thereby measured by B’s life.

B. Freehold Estates (Present Interests) Estates involve the concept of seisen; the highest level of ownership at common law. To be “seized” of land meant to occupy it under claim of having a freehold estate in it.

1. Fee Simple Absolute a. Creation “O to A,” “O to A and his heirs,” or “O to A in fee simple.” Today, there is a presumption in favor of fee simple conveyances. Thus, we will construe a vague or uncertain grant as a fee simple absolute if possible.

b. Duration A fee simple absolute can potentially last forever. It is the largest possible estate in terms of duration.

c. Alienability A FSA is freely alienable. If no conveyance was made during grantee’s life, the estate passes freely to his devisees, then to his lineal heirs and even collateral heirs if there

is no one else to claim it. In the absence of other claimants the estate escheats (goes to state)

d. Common law At common law, FSA could only be created by use of specific words, “To A and his heirs.” This is no longer the case today.

Defeasible Estates

2. Fee Simple Determinable

a. Creation “O to A and his heirs, so long as they use the land for specified purposes only” creates this estate. **Critical words are “so long as,” “until,” and “while”

b. Duration A fee simple determinable is also of potentially infinite duration, as long as the condition is not violated. If the condition is broken, the estate automatically terminates and possession reverts to the grantor. The grantor’s future interest is called “possibility of reverter.”

c. Alienability A fee simple determinable is freely alienable. The new owner also holds subject to the condition, and possession may revert to the original grantor. Upon the death of the grantee the estate goes to his devisees, then to his heirs if no inter vivos transfer was made. There is a possibility of escheat.

d. Public Policy Courts are hostile to the fee simple determinable b/c it often results in forfeitures. If the wording of the grant is not explicit or is open to other interpretations, courts will be reluctant to construe a clause as creating a fee simple determinable.

3. Fee Simple Subject to a Condition Subsequent a. Creation

“O to A and his heirs, but if the land is used for other than specified purpose, G or his heirs shall have the right to enter and declare the estate forfeited” will create a fee simple subject to a condition subsequent.

b. Duration The grantee keeps possession until the grantor enters and terminates the estate. Unlike a fee simple determinable, violation of the condition does not lad to automatic forfeiture of the property. The grantor must enter and terminate. If the condition is not broken, or if the grantor decides not to terminate, the estate can last forever. By keeping the right to enter and the power to terminate the estate, the grantor has not conveyed all of his interests in the land.

c. Alienability The estate is feely alienable, but always subject to the condition. If no inter vivos transfer was made, then heirs are entitled to possession, escheat is also possible.

d. Public Policy Courts are generally hostile to this type of estate and construe the condition as a restrictive covenant, if possible, in order to avoid a forfeiture. The grantor must specifically and expressly retain his right of entry and power of termination b/c they will not be assumed absent clear language.

4. Fee Simple Subject to an Executory Limitation This type of fee simple is like an ordinary fee simple determinable or one subject to a condition subsequent, except that if the condition is broken the estate goes to a third party and not the grantor. Example: “O to A and his heirs, but if the land is used to sell alcohol then to B and his heirs,” or “…B and his heirs shall have the right to enter and declare estate forfeited,” or “…but if A has no sons then to B and his heirs. LIFE ESTATES a. Creation “O to A for life” creates this estate **At common law, any grant that was intended to create a fee simple absolute but failed to use the specific words “To A and his heirs” was deemed to create a life estate.

b. Duration i. Grantee’s lifetime A life estate lasts until the death of the grantee, whereupon possession of the land reverts to the grantor or his heirs. Thus, the grantor has only transferred

possession of his land for the grantee’s life. The estate can terminate prior to the grantee’s death if he renounces it.

ii.

Per Autre Vie Life estate whose duration is measured by the life of a third party. Sometimes a grant will state “To B, for A’s life.” A life estate “pur autre vie” is created b/c the life that is used to measure the duration of possession is not that of the party actually in possession. Possession only terminates at the death of the measuring life. If the party in possession dies first, the estate goes to his heirs, devisees, purchasers, or even by escheat, until the death of the measuring life.

c. Alienability The grantee is free to make inter vivos tranfers, but possession of the land by the third party terminates at the death of the original grantee. Obviously this type of estate is not inheritable by the grantee’s heirs.

d. Defeasible Life Estates As with fee simple, a life estate can be conditioned upon a certain event, the occurrence of which will entitle the grantor either to automatic reversion or to enter and reclaim possession.

e. Duties and Powers of a Life Tenant A life tenant has certain obligations to his remaindermen (those who take possession after tenant’s death). These obligations include the following: If you only own a life estate, you better not WRITE on the walls. i. no waste (unreasonable impairment of the future value of the property) ii. reasonable repairs (does not include rebuilding structures destroyed by natural causes); iii. interest charges on mortgage (does not have to repay principal). Obligation is limited to value of income received from the land; and iv. property taxes on estate. The life tenant is entitled to all rents and profits from the estate. FEE TAIL a. Creation “O to A and the heirs of A’s body” creates this estate at common law. The purpose of this type of grant was to keep ownership of land within a family. **NOTE! Different from “To A and his heirs”

b. Duration At common law, the grantee received an estate for his life which passed to his first heir at his death. The heir also held for life and then it passed to his heir, and so on.

c. Alienability At common law, the grantee could not transfer an interest in the estate that exceeded his lifetime. At the grantee’s death, the only person who could take the estate was his lineal heirs. If he had no lineal heirs, the estate would revert to the grantor and his heirs.

d. Modern View Most states have abolished the fee tail or greatly modified its effect. Some courts treat such a grant as creating an ordinary fee simple absolute. Other construe it as a fee simple conditional, so that a grantee has a fee simple conditioned upon having issue (children). Once the grantee has a child, he acquires a freely alienable fee simple. Still another approach has been to allow the fee tail to exist for one generation only....