Key Takeaways
- Fee simple absolute is the most complete form of ownership with unlimited duration
- Life estates are measured by someone's lifetime and create duties to preserve property
- Defeasible fees can be terminated upon occurrence of a specified condition or event
- Language of 'so long as' or 'until' creates a fee simple determinable with automatic reversion
- Language of 'but if' or 'provided that' with reserved re-entry right creates fee simple subject to condition subsequent
Estates in Land
Real property law recognizes several types of present possessory estates that differ primarily in their duration and the conditions under which they may terminate.
Fee Simple Absolute
The fee simple absolute represents the most complete form of property ownership. It has unlimited duration and can be freely transferred, devised by will, or passed through intestate succession.
Words of Purchase vs. Words of Limitation
| Term | Function | Example |
|---|---|---|
| Words of Purchase | Identify WHO takes | "to A" |
| Words of Limitation | Describe the ESTATE | "and his heirs" |
Common Law: Required "to A and his heirs" to create fee simple absolute. Modern Rule: Words of limitation ("and his heirs") are no longer necessary. A conveyance "to A" alone creates fee simple absolute.
Critical Point: "And his heirs" does NOT give anything to A's heirs—it merely describes the estate's duration. A's heirs take nothing by this language.
Characteristics
- Duration: Potentially infinite
- Transferability: Freely alienable, devisable, and descendible
- Presumption: Fee simple absolute is presumed unless contrary intent shown
Fee Tail (Historical)
A fee tail limited inheritability to the grantee's lineal descendants only.
Creation
Language: "to A and the heirs of his body"
Types
| Type | Language | Effect |
|---|---|---|
| General | "to A and the heirs of his body" | Any lineal descendants |
| Male/Female | "to A and the male heirs of his body" | Only specified gender |
| Special | "to A and the heirs of his body by wife B" | Only children by specific spouse |
Modern Treatment
Virtually abolished in all U.S. jurisdictions:
- Majority: Creates fee simple absolute in grantee
- Minority: Creates life estate + remainder in lineal descendants
Fee Simple Defeasible
A fee simple defeasible is an estate that could potentially last forever but may be cut short upon the occurrence of a specified event or condition. There are three main types:
1. Fee Simple Determinable
Created using durational language such as:
- "so long as"
- "until"
- "while"
- "during"
Structure: Created in ONE clause with the limitation built into the grant itself.
When the specified condition occurs, the estate automatically terminates and returns to the grantor through a possibility of reverter.
Example: O conveys "to School District for so long as the property is used for educational purposes." If the property ceases to be used for education, it automatically reverts to O (or O's heirs).
BAR EXAM TRAP - Words of Motive: Phrases expressing PURPOSE do NOT create a determinable fee:
- "for the purpose of" → Fee simple absolute
- "to be used for" → Fee simple absolute
| Grant | Result |
|---|---|
| "to School for the purpose of education" | Fee simple absolute (mere motive) |
| "to School so long as used for education" | Fee simple determinable |
2. Fee Simple Subject to Condition Subsequent
Created using conditional language such as:
- "but if"
- "provided that"
- "on condition that"
- "however if"
Structure: Created in TWO clauses:
- First clause grants the estate
- Second clause states the condition AND reserves re-entry
CRITICAL RULE: The power of termination MUST be expressly reserved. If conditional language is used without expressly reserving re-entry rights, the condition fails and grantee receives fee simple absolute.
| Grant | Result |
|---|---|
| "to A, but if liquor sold, grantor may re-enter" | Fee simple subject to condition subsequent |
| "to A, provided that liquor not be sold" | Fee simple absolute (no re-entry reserved!) |
Statute of Limitations: Does not begin running until grantor attempts to exercise the power (unlike possibility of reverter, which runs from breach).
Transferability of Power of Termination:
- Descendible: Yes
- Devisable: Majority Yes
- Inter vivos transfer: Majority NO
3. Fee Simple Subject to Executory Limitation
When a fee simple estate will pass to a third party (not the grantor) upon occurrence of a condition, the third party holds an executory interest.
Example: O conveys "to Library, but if alcohol is ever sold on the premises, then to Church." The Library has a fee simple subject to an executory limitation. The Church has a shifting executory interest.
Life Estate
A life estate is measured by the lifetime of a designated person, usually the grantee. Upon the death of the measuring life, the property passes to a remainderman or reverts to the grantor.
Types of Life Estates
| Type | Measuring Life | Example |
|---|---|---|
| Ordinary Life Estate | The grantee | "to A for life" |
| Life Estate Pur Autre Vie | Someone other than the grantee | "to A for the life of B" |
Life Estate Pur Autre Vie - Special Rules
When a life estate is measured by the life of someone other than the grantee:
Example: O conveys "to A for the life of B."
- If B predeceases A: A's estate ends at B's death (the measuring life has ended)
- If A predeceases B: Under the modern rule, A's heirs are entitled to use the land until B dies
Duties of Life Tenant
The life tenant has specific obligations to protect future interest holders. Critical: These duties are generally capped based on income derived from the property.
1. Duty to Maintain and Repair
| Occupant | Scope of Duty | Limit on Duty |
|---|---|---|
| Life Tenant | Reasonable repair (ordinary wear excepted) | Limited to income derived from property, OR reasonable rental value if personally occupying |
| Tenant for Years | Reasonable repair (ordinary wear excepted) | No cap - full duty applies (though modern statutes often relieve residential tenants) |
2. Duty to Pay Mortgage Interest
| Party | Obligation | Limit |
|---|---|---|
| Life Tenant | Must pay interest only (not principal) | To the extent of profits derived from property |
| Remainderman | Must pay principal | Full amount |
| Tenant for Years/Periodic | No common law duty to pay mortgage | Unless lease requires it (common in commercial leases) |
3. Duty to Pay Property Taxes
| Party | Obligation | Limit |
|---|---|---|
| Life Tenant | Must pay all ordinary property taxes | To the extent of profits derived from property |
| Tenant for Years/Periodic | No common law duty to pay property taxes | Unless: (1) lease is "perpetual" or long-term with renewal options; (2) tenant holds without rent obligation; or (3) tenant erected improvements for own benefit |
4. Duty to Pay Special Assessments
Special assessments (for public improvements like curbs, streets, sewers) are apportioned based on the life of the improvement:
| Improvement Duration | Life Tenant's Obligation |
|---|---|
| Shorter than life estate | Life tenant pays full cost |
| Longer than life estate | Equitable apportionment between life tenant and remainderman |
Example: A curb with a 50-year life is installed. Life tenant is 70. The cost is apportioned based on life tenant's expected use vs. remainderman's expected use.
Doctrine of Waste
The life tenant has the right to possess, use, and enjoy the property during the estate. However, any act that adversely affects the future interest is called waste.
1. Voluntary (Affirmative) Waste
Definition: The voluntary commission of an act that has more than a trivial injurious effect on or change in the property.
Exceptions - Natural Resources May Be Consumed:
- For repair and maintenance of the property
- With express permission of the grantor
- Under the Open Mines Doctrine:
- If the grantor was already exploiting natural resources, the life tenant may continue that exploitation
- Applies to mines, quarries, timber operations
- Cannot open NEW mines or begin NEW extraction
2. Permissive (Involuntary) Waste
Definition: Failure to take reasonable steps to protect the property from deterioration.
Permissive waste includes failure to:
- Maintain and repair the premises
- Pay mortgage interest (to extent of income)
- Pay property taxes (to extent of income)
- Pay life tenant's share of special assessments
3. Ameliorative Waste
Definition: An act that increases the property's value by permanently altering it.
| Rule | Treatment |
|---|---|
| Traditional Rule | Ameliorative waste prohibited - even beneficial changes |
| Modern Rule | Permitted if: (1) market value of remainderman's interest not impaired, AND (2) either permitted by remainderman OR substantial, permanent neighborhood change has deprived property of reasonable current value |
Standing to Sue for Waste
| Interest Holder | Sue for Past Waste? | Sue to Prevent Future Waste? |
|---|---|---|
| Holder of Reversion | YES | YES |
| Vested Remainderman | YES | YES |
| Contingent Remainderman | NO | YES (injunction only) |
Key Point: A contingent remainderman can seek an injunction to prevent future waste but cannot recover damages for waste that has already occurred.
Remedies for Waste
| Remedy | When Available |
|---|---|
| Damages | Limited to amount of waste that impaired the security/future interest |
| Injunction | To prohibit future waste or require correction |
| Foreclosure | If waste has impaired mortgagee's security |
Life Estates Can Be Made Defeasible
A life estate can be combined with defeasible language:
Example: O conveys "to A for life; provided, however, that if the premises are not used for charitable purposes, O may re-enter and retake."
- A has a life estate subject to condition subsequent
- O has both a reversion and a power of termination
Ambiguous Grants
When the language of a grant is unclear, courts apply certain preferences:
- Covenants over conditions: Damages rather than forfeiture
- Condition subsequent over determinable: Forfeiture requires affirmative action, not automatic
O conveys property "to the City Library for so long as it is used for public reading purposes." What type of estate does the City Library hold?
A life tenant discovers a rich mineral deposit on the property. Under what circumstances may the life tenant extract the minerals without committing waste?
O conveys "to Hospital, but if the property is ever used for commercial purposes, O may re-enter and reclaim the property." The Hospital opens a gift shop. What must happen for O to regain the property?
In 2015, O conveyed Greenacre "to A, on condition that the property never be used for commercial purposes." In 2020, A opened a retail store on Greenacre. O did nothing. In 2023, O died, leaving all her real property to B. In 2024, B brought an action to recover Greenacre from A. How should the court rule?
In 2020, T executed a valid will devising Blackacre "to my daughter D and her heirs." T died in 2024. At T's death, D had two adult children, X and Y. D died intestate in 2025, survived by X and Y. D's will left all her property to her husband H. In a suit to determine ownership of Blackacre, who prevails?
O conveyed Whiteacre "to A for life, remainder to B." A took possession of Whiteacre, which contained a 50-year-old house in need of repairs and an operating gravel quarry that had been in use for 20 years. Over the next five years, A: (1) failed to repair the leaking roof, causing water damage to interior walls; (2) extracted and sold $100,000 worth of gravel from the quarry; and (3) demolished the old house and built a modern home that doubled the property's market value. B sued A for waste. For which of A's actions can B recover?
O conveyed Blackacre "to A for life, remainder to B." Blackacre generates $20,000 per year in rental income. The annual property taxes are $15,000, and the annual mortgage interest is $25,000. Under common law principles, what is A's maximum obligation for these carrying charges?
O conveyed "to A for life, remainder to B." The city installed new sewers, assessing each property owner $50,000. The expected life of the sewer system is 75 years. A is 85 years old. How should the $50,000 special assessment be allocated?
O conveyed "to A for life, then to B if B graduates from law school." A is allowing the property to deteriorate through neglect. B has not yet graduated from law school. What remedies are available to B?
O conveyed "to A for the life of B." B is A's elderly mother. Six months after the conveyance, A died, leaving all her property to C by will. B is still living. Who is entitled to possession of the property?