Property
Class Notes
Fee simple absolute
This
is what we mean when we talk about owning something. It’s the whole bundle of sticks! When you get fee simple absolute, you get all
of these fabulous prizes!
1. Possession without condition
2. Title that is indefinitely
inheritable (after the 1540 Statute of Wills): you can leave the property to
whoever you want when you die.
3. Your property is freely
alienable after 1290 and the Quia Emptores:
while you’re alive you can also sell your property to anyone you want.
4. Your possession is for
potentially infinite duration: there is nothing inherent in the estate that will cause it to end. The only thing that would cause the estate to
end would be forfeiture for treason, where the property would revert to the
sovereign.
Because
a fee simple absolute is everything,
it’s not followed by anything. There is no future interest because there is
nothing left to own.
People
have been dying a lot longer than wills have been authorized by statute! Before there were wills, property passed down
by “Canons of Descent” which promoted the ownership of the oldest son. Males were preferred over females and older
children were preferred over younger children.
After the Statute of Wills of 1540, your property could be left to
anybody you want.
In
the old days, estates were not thought of as relationships between people, but actual things in themselves. This was called the “reification” of estates.
All
of this started with the invasion of
Creation of the fee simple
absolute
“O
hereby grants Blackacre to A and her heirs”…this phrase includes words of purchase and words of limitation.
“To
A” are words of purchase and define just who gets the
property. “And her heirs” are words of
limitation that says not who gets the
property, but what they get. Don’t worry about the word “purchase” in
situations where it’s really a gift. It’s
just terminology.
This
is what the Statute of Quia Emptores
did. That’s how the fee simple absolute
became alienable. The heirs are
considered to own nothing in reality.
So
in the conveyance above, A takes Blackacre
in fee simple absolute, and the heirs get nothing. When you convey property to “A and her heirs”,
the heirs get absolutely nothing. It is
true that A’s heirs will likely be her children and will likely inherit either
by virtue of being heirs of statute or by A’s will. But if the heirs take anything, they’ll take
it by virtue of the statute or will. They
get nothing by virtue of this
gift. Recall that A doesn’t have any
heirs because living people don’t have heirs.
Fee tail
This
is a “tailored” estate. This estate was
designed to keep property in the family.
While the fee simple absolute could be transferred to anyone and left or
devised to anyone, the fee tail was different.
It was designed to keep family lands in the family. Not only do you keep family lands in the
family, but you keep them undivided.
Part of the purpose of this estate is to preserve concentrations of
wealth.
In
the French Revolution, this was thought to be so pernicious in its effect that
in the Napoleonic code it was provided that you must divide the property among your children. The idea was to get rid of the concentration
of wealth that the fee tail was designed to preserve.
We
will see that the fee tail has been largely abolished.
1. Possession here is without
condition.
2. Modification of
inheritability is limited to the grantee’s direct
line.
3. Only the grantee’s limited
interest is alienable. The grantee can
sell a life estate, but it reverts to the grantee’s line when the grantee dies.
4. This estate is not of
infinite duration: it ends when the tenant in the tail’s line dies without
issue. At some point, in other words,
the line could simply die out.
Because
the fee tail falls short of the fee simple absolute, it must be followed by a future
interest. If the future interest is
retained by the grantor or the grantor’s heirs, then it’s a reversion. If I say: “to A and
the heirs of her body”, that gives A a fee tail but
leaves a reversion to me in fee simple absolute. If I say: “to A and
the heirs of her body and then to B and her heirs” then I create a fee tail for
A with a remainder for B (a future interest in fee simple absolute). B doesn’t get any possessory interest until A’s
line dies out. But that doesn’t mean B
doesn’t own anything. B owns a future
interest!
A
remainder is created in a transferee, while a reversion is retained by the
transferor or grantor.
You
could even have several tails! “To A and the heirs of her body and then to B and the heirs of
his body and then to C and the heirs of her body and then to D and his heirs.”
Note
how important form is to these
transactions!
Whether
you classify something as a reversion or a remainder can make a tremendous
difference as to its validity. By the
way, reversions and remainders are not possessory
interests, they are future interests.
“Prima
genitor” was an old rule that means that males had preference and older
children had preference.
Life estate
Here’s
the stuff you get:
1. You get possession without
condition.
2. This estate is not inheritable by its very nature.
3. The life estate is
alienable, but A’s life is still the measuring life. (This is called a life estate pur autre vie.)
4. The estate ends with the
death of the life tenant.
This
is a lot less than a fee simple absolute!
That means that this estate is also always followed by a future
interest: either reversion in the grantor, or remainder in a transferee. Remainder off of a life estate is probably
the most frequently used future interest.
For example, “To the spouse for life, and then to the
children and their heirs.”
“To
A for life and then to B and her heirs”…this is a life estate to A and a future interest to B in a fee simple absolute.
Creation of the life estate
Originally,
at common law, there was a presumption in favor of the life estate because that
kept the property in the grantor’s family.
So if you say: “To A for life”, the property goes back to the grantor
and his heirs upon A’s death. “To A forever” would also create a life estate. “To A in fee simple absolute” would create a life
estate at old, old common law because you failed to use the magic words.
But
now, statutes presume that the grantor conveys everything the grantor has. In other words, if O has a fee simple
absolute, then “To A” will create a fee simple absolute in A unless there is
evidence otherwise. If you want to create
a life estate in A, one way to do it, at least in
Next
up, we’ll do the defeasible fees!