Property
Class Notes
Adverse possession and
estates
Say
that A enters land in which B has a life estate and C has a remainder in fee
simple absolute. Say A satisfies the
requirements for adverse possession while B and C are both alive. Does A adversely possess just the life estate,
or also the fee simple absolute remainder?
This is a hard problem!
Has
A done anything wrongful to C? A has
only infringed upon the possessory interest of B. The wrongful entry is only wrongful as to B,
and not to C. Therefore, A can only
acquire a life estate (measured by B’s life).
Furthermore, C cannot sue A because A is not infringing on C’s future
interest.
Is
there a way for A to distinguish C’s future interest? We’ll get back to this when we talk about the
doctrine of waste.
What if A enters land owned by O, but then O dies and leaves a life estate to B
plus a remainder in fee simple absolute to C?
What does A get now? What’s the
factual difference? O owns the property
when A enters, and O owns a fee simple absolute. In this case, therefore, A wrongfully enters
against someone who owns a fee simple absolute, whereas in the previous case, A
wrongfully entered against someone who only owned a life estate.
So
what does A get? What estate does A get
in the land? The conveyance at O’s death
to B does not interrupt adverse possession, and so A obtains a fee simple
absolute.
The
two main issues are: (1) Who are you possessing against? It can only be someone with a possessory
interest. (2) When O divides the
interest up at death into a life estate and a remainder in fee simple absolute,
does that interrupt adverse possession?
No, it doesn’t.
So
what’s the rule? A acquires by adverse
possession the estate of the person who was in possession when A wrongfully
entered. So if the current possessor has
a life estate, A gets a life estate. If
the current possessor has a fee simple absolute, A gets a fee simple absolute,
and so on.
In
the second case, if either B or C brought a lawsuit against A before the statute
of limitations ran, either one could defeat adverse possession. C would bring the suit in his own name, but
he would assert that he was acting on a right derived from O.
You
can’t adverse possession a future interest (except…waste? We’ll come back to this later).
This
is a common pool problem. Two people own
an interest in the same land at the same time.
Whenever you have a common pool problem, regulations are sure to follow
to deal with the “tragedy of the commons”.
If A’s possession would constitute waste, it would be a violation of C’s
rights as well. If A wasted stuff for
long enough, he could get adverse possession against C. But we’ll get back to this and clarify it later.
The
point of this is not primarily to learn more about adverse possession, but
rather to demonstrate the difference between possessory and non-possessory
interests in land. The estate is a
thing. You can only have adverse
possession against a particular estate.
If that estate ends, like a life estate deforms into a fee simple
absolute, then the thing you possessed doesn’t exist anymore.
The defeasible fees
“Defeasible”
means conditional. These are also known as fee simple conditional. When you think of “defeasible”, think “defeat”. Here are the wonderful cash and prizes you
get when you get a fee simple defeasible:
1. You get possession without
condition! There is no condition precedent to your estate becoming possessory. But there are conditions under which you
could lose the estate.
2. The estate is inheritable,
but probably not devisable. They could
go to your heirs, but you might not be able to will the estate to anybody.
3. The estate may be alienable, but it’s subject to defeasance.
4. The duration is until the defeasing event occurs.
Typically,
this comes in the form of: “I give this land to the City of
What’s
the difference between a condition
precedent and a condition subsequent? A condition precedent is a condition that has
to occur before you get something (“I’ll give you ten dollars if you work for
me for an hour. You get the ten dollars
after you work an hour.”). A condition
subsequent is a condition where you get something and you get to keep it until
and unless the condition occurs. This is
a very important distinction that we
need to master.
With
a condition precedent, the condition has to occur before you get
something. With a condition subsequent,
you get the thing, but if the condition occurs, then you lose it.
This
gets confusing because we’ll do defeasible fees and then determinable fees
which are a kind of defeasible fees.
There
are three types of defeasible fees, and they are always followed by a future
interest.
Fee simple determinable
The
duration of this one is until some event occurs. The estate ends automatically. It is accompanied by a future interest in the
grantor called “possibility of reverter” (not
a reversion) in the transferor or his heirs.
So fee simple determinable plus possibility of reverter equals fee simple absolute.
Fee simple subject to a
condition subsequent
The
duration is a little bit different. It
lasts until an election is made after
the occurrence of the specified event.
It doesn’t end automatically,
but rather ends at the option of the grantor or his heirs. If the city of
The
fee simple subject to a condition subsequent is always accompanied by a
retained future interest in the grantor called “right of entry” or “retained right
of entry for condition broken”.
So a fee simple subject to a condition
subsequent plus a right of entry
equals a fee simple absolute.
The
two interests above, though they look similar, are treated differently,
especially under the Rule Against Perpetuities.
Reversionary interests
These
are interests retained by the grantor when the grantor conveys a vested estate
that’s less than the estate the grantor had.
There are three types:
1. The reversion
2. The Possibility of Reverter
3. The right of entry (for
condition broken)