Property Class Notes 2/6/04


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 Columbus as long as they use it as a park.”  If the city stops using the land as a park, the estate ends.


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 Columbus starts using a park as a school instead of a park and I think that’s okay, then I can decline to exercise my election.


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)


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