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Class XIII - Defeasible Fees

Class XIII - Defeasible Fees. Property. Prof. David Glazier Oct 5, 2006. Overview of Today’s Class. A Brief Review The Life Estate Concluded Conditions Precedent & Subsequent Defeasible Fees. Fee Simple Absolute. Traditional creation: To A and her heirs. Most complete form of ownership

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Class XIII - Defeasible Fees

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  1. Class XIII - Defeasible Fees Property Prof. David Glazier Oct 5, 2006

  2. Overview of Today’s Class • A Brief Review • The Life Estate Concluded • Conditions Precedent & Subsequent • Defeasible Fees

  3. Fee Simple Absolute • Traditional creation: • To A and her heirs Most complete form of ownership - Fully alienable, devisable, inheritable - Courts infer creation if no other specified

  4. Life Estate • To A for lifeWhat follows? Reversion- ownership returns to grantor/successors O to A for life [default is reversion in O] Remainder- ownership shifts to third party O to A for life, then to B Remaindermen have legal interest in property Life estate can be given away or sold - but only for the life of A -- life estate pur autre vie

  5. Life Estate - Waste • To A for lifeRemaindermen Frequent tension between interests of A and R-Men - Consumption of resources - Expenditures for repairs Waste doctrine requires A to protect value - Can continue existing mineral exploitation - Can alter property if economically viable A can be held liable for : - Affirmative waste: injurious acts by A - Permissive waste: failure to care for property

  6. Life Estate Examples (pt. 1) • O gives A a life estate in Blackacre. A conveys to B for the life of A. What can B do with her rights in Blackacre? • O conveys Blackacre to A for life, then to B. What is B’s interest?

  7. Life Estate Examples (pt. 2) • O conveys Blackacre to A for life, then to B for life. What happens to Blackacre after that? • O conveys Blackacre to A for life, then to B and his heirs. A then conveys Blackacre to X. • - What is A’s interest? • - What is X’s interest? • - What is B’s interest?

  8. Fundamental Estates Issue • “The Long Hand of the Dead” v. The Living • - How and for how long should past owner be able to regulate future? • -- Right to dispose of property as desired • -- Right of current owner to control • - Ability to react to changing conditions • -- Issue of economic efficiency

  9. Fee Tail *** • To A and the heirs of her body Estate lasts as long as A has lineal descendants - Ensures property remains in family - Reversion to O if lineage dies out - Effectively a continuing series of life estates Could be further specified as fee tail male/female Persists only in DE, MA, ME, and RI

  10. Conditions Precedent & Subsequent • Condition Precedent – specified prerequisite for a property interest to vest • “To A for life, then to B if she has graduated from law school” Condition Subsequent – specified event causing a property interest to terminate “To A for life, then to B until she has graduated from law school” Both CP & CS are events which may or may not happen

  11. Defeasible Estate • An estate subject to termination upon the happening of a specified event: • To A so long as no alcohol is served on the premises • To A so long as a polo field is kept on the property • (ended by condition subsequent)

  12. The Defeasible Fees • Fee Simple Determinable • - ownership automatically reverts to grantor • Fee Simple Subject to Condition Subsequent • - grantor may retake • Fee Simple Subject to Executory Limitation • - ownership “springs” to specified owner • Life estates and Fee Tails may also be limited and categorized this way, e.g. “Life Estate Determinable”

  13. Fee Simple Determinable • Estate has all attributes of fee simple, except • - automatically cut off if specified condition occurs • - reverts to grantor/devisees/heirs in fee simple absolute • Created by “words of duration”: • To A as long as it used as a school • To A while used as a farm • To A during use as a residence • To A unless alcohol is sold on the premises • Future interest in O is a Possibility of Reverter • - Modern view that Possibility of Reverter is alienable • How to recognize?

  14. Guantanamo “Teach In” Today • 12:00-1:15pm   History of Torture in the Modern World • 1:15-1:30pm     Habeas Interlude: Innocents at Guantanamo • 1:30-2:45pm     The Military and the Commander in Chief • 3:00-4:00pm     Guantánamo and American Foreign Relations • 4:00-5:00pm (Tent) Discussion with Loyola Profs Burns Bldg Room 255

  15. Questions?

  16. Military Commission Scholarship • http://www.ssrn.com/ • http://ssrn.com/author=504660

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