Property
Class Notes
The
fee tail has been pretty much abolished everywhere.
The fee tail in Ohio
Let’s
talk about
But
the important part here is: “All estates given in tail, by deed or will, in
lands or tenements lying within this state shall be and remain an absolute
estate in fee simple to the issue of the first donee in tail.” So a gift that purports to create a fee tail will create a life estate in the
tenant-in-tail, and then a fee simple absolute in the issue of the
tenant-in-tail, assuming that the tenant-in-tail has any issue. Compare (i) on page 137.
Another
alternative is to abolish the fee tail altogether and say that “to A and the
heirs of her body” equals “to A and her heirs”.
Or
you could get a life estate that converts into a fee simple absolute upon the
birth of issue.
There
are a couple of reasons for these statutes.
One is that fee tails last too
long! They prevent the property from
being used in commerce during that period.
Problems on p. 135
(A) “Henry conveys to Sam and
the heirs of his body. Sam and his wife
have a son Eric”: Sam is granted a fee tail.
Henry retains a reversion. While
Sam is alive, Eric doesn’t have anything.
But when Sam dies, if Eric is still alive, then Eric will inherit the
fee tail. Before De Donis, Sam would
have had a fee tail, but as soon as Eric was born it would have more or less
been converted into a fee simple absolute.
(B) “Henry conveys to Sam and
the heirs of his body, and then to Dorothy and her heirs. Sam and his wife have no children (yet)”: Sam
gets a fee tail. Henry gets a reversion. Dorothy gets a vested remainder in fee simple
absolute. It doesn’t matter that
children don’t yet exist.
(C) “Henry conveys to Sam and
the heirs of his body and then to Dorothy and her heirs. Sam and his wife have no children (yet). Henry dies; Henry’s heir is Elmer”: Sam gets
a fee tail. Dorothy gets a vested
remainder in fee simple absolute. Henry
and Elmer get nothing.
(D) “Henry conveys to Sam and
the heirs of his body. Sam and his wife
have no children (yet). Henry dies;
Henry’s heir is Elmer”: Sam gets a fee tail.
Henry retains a reversion in fee simple absolute. Upon Henry’s death, Elmer gets the reversion
in fee simple absolute and Sam still has the fee tail.
The defeasible fees
The
law has created all these different interests and then tried to make it clear through
language just what interest has been created.
The common law succeeded at this to some extent, but it’s about to get
really messy as we get into defeasible fees.
Untrained
people insist on writing their own deeds.
Also, once we start introducing conditions into the fee simple, we have
a difficult time figuring out what the conditions mean. What does it mean that land must be used “for
school purposes”? What does it mean to “keep
the land in its natural state”? What
about “To A for so long as the property is not used for the sale of alcoholic
beverages?” What if you sell dishes that
are cooked with wine? What if you give away alcohol? What about “caring for someone in their old
age”? Braunstein says that a trust would
be a better way to handle most of these situations.
Creation of the defeasible
fees
If
we’re trying to create a fee simple determinable, we’ll use language that will
create a condition precedent, also known as “durational language”. The words you might see include “while”, “during”
and “so long as”. When the duration has
run out, the estate runs out and there’s nothing left. When the duration runs out, the possibility
of reverter turns into a possessory estate.
The
fee simple subject to a condition subsequent does not end automatically. The grantor or the grantor’s heirs must take
some action to enter onto the property and regain possession. Therefore, two things must happen in order for the estate to end: some
condition must occur, plus the grantor or the grantor’s heirs must take some
action. The most common language to
establish this estate includes “provided that”, “but if” and “upon condition
that”.
Some
courts prefer to construe conveyances as fees simple determinable under there
is clear language retaining the right of entry.
Note that the court in Higbee v. Kennedy
does just the opposite. This is not a
hard and fast rule, but it is something you can fall back on when you’re
hopelessly confused.
These
defeasible fees are accompanied by a retained interest in the grantor, either
the possibility of reverter or the right of entry. If the future interest following the defeasible
fee is created in a transferee then we call it an executory interest for
reasons we’ll get to shortly. When the interest
is an executory interest, it doesn’t matter if the accompanying estate is a fee
simple determinable or a fee simple subject to a condition subsequent. Executory interests are not retained
interests.
Mayor and City Council of Ocean
City v. Taber
Taber
founded
We
get introduced to the parts of the deed, and in particular to the habendum
clause. The habendum clause is
reminiscent of the marriage ceremony.
That’s not a coincidence!
Marriage was once thought of essentially as a transfer of property
rights. The habendum clause contains limitations
on the estate granted. It usually
follows the actual grant.
What
did the habendum clause say in this case that was relevant to our
discussion? It says that it should be
used “for the purpose of a Life Saving Station”. Is this a fee simple determinable, or is this
a fee simple subject to a condition subsequent?
Is the reversion to the trustees automatic? According to the deed, it seems to be. It says that the land will go back to the
trustees “without any legal proceedings, suit or otherwise”. That sounds pretty automatic. On the other hand, there is language that
follows that says: “they shall be entitled to re-enter upon and take possession”. Is that latter language consistent with the fee
simple determinable? It doesn’t sound
like it. It sounds more like a fee
simple subject to a condition subsequent because that is followed by right of
entry, which is the future interest that this sounds like.
What
does the court conclude? The court doesn’t
seem to tell us why, but they say that it’s a fee simple determinable. Has the use ended? Has the divesting condition been
triggered? The