. . . Real Estate Law Lecture Notes: Introduction . . . . ..
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Lecture
Notes: Introduction
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Estates in Real
Property:
The estates
in real property go back to feudalism. I always blame William the Conqueror.
Basically, talking about an "estate" is just a traditional way of
describing what kinds of limits on and owner's ownership were created at the
time the ownership was granted. Because modern times are no longer feudal,
the old feudal distinctions seem no longer necessary. The modern estates are:
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fee
simple absolute:
highest and best estate. At common law, there were required "magic
words" -- The deed used language like"To John Smith and his heirs"
That is, there were words of heritability, showing that the owner could
pass on ownership at death. Some states, e.g. Oregon, have eliminated
words of heritability. Even if the words aren't on the deed, the deed
transfers full ownership in fee. But in states which have not eliminated
the magic word requirement, a deed without the "and heirs" language
transfers less than fee simple - less than full ownership! The transferree
would get a life estate, only!
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fee
simple determinable:
Transferor keeps a possibility of reverter. For example, a deed could
state that the land was being transferred from A To B and B's heirs in
fee simple absolute, but if alcoholic beverages are ever consumed on the
premises, the land will revert to A and A's heirs. B dies and his son
inherits the land, and drinks a beer one afternoon. Automatically, the
land now belongs to A and A's heirs. That's the way the deed was written.
All along, all B and his heirs owned was a fee simple determinable.
All along, A and his heirs owned a possibility of reverter.
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fee
simple on condition subsequent: This is like a fee simple determinable
except that the transferor reserves a right to to recover. The land doesn't
snap back automatically. For example, a deed could state that the land
was being transferred from A to B and B's his heirs, but if alcoholic
beverages are ever consumed on the premises, then A or A's heirs shall
have the right to enter and repossess the land. B's heir drinks a beer
one day. The land doesn't automatically snap back to the original owners.
They must assert the right through legal action.
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life
estate:
This is a transfer of the land for a time equal to somebody's actual life.
If they die tomorrow, it is over. The terms of the tranfer tell what happens
to the property after the expiration of the life estate. The transferor
either retains a reversion, and the property comes back to him, or the
transferer makes a remainder, by which the land goes to some third person.
The life tenant has the right to occupy and use the land just like an
owner, but cannot alienate the land during the measuring life. We say
that the life tenant is the owner of the property during the life estate,
and the life tenant can even sell the tenancy - the right to possess the
land - to another. (But that new person can't get any more than the life
tenant could have.) Moreover, a remainder or reversion is vested, and
so can be transferred. That is, if I give you a life estate keeping a
reversion, I could sell the reversion to somebody else, so, when you died,
the person I sold my reversion to would go into occupancy.
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estate
for years: a lease may or may not be an estate for years. Distinguish
between as transfer of possession, or transfer of ownership subject to
termination. A lease gives possession only. If the language of the deed
says something like, "from A to B and his heirs, in fee, for 20 years,"
B could sell the balance of the term to C, without getting A's permission.
(What is a lease if it isn't an estate for years? A contract.)
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estate at will:
created by express or implied agreement. (not really an estate) either party
may terminate at will.
Words and phrases
to Know: fee
simple absolute, fee simple determinable, fee simple on condition subsequent,
life estate, possiblity of reverter, reversion, remainder, estate for years
