-1I.

Possession - *no one may interfere with a possessor’s rights UNLESS she establishes a SUPERIOR
RIGHT to possess the particular item.
How do we determine/define the relationship among parties concerning property?
1. Custom
2. Statute
3. Prior Court Decisions
Constructive possession - a landowner owns the real property and the wild animals frolicking in his fields.
This discourages trespassing.

Finders - title of the finder is good as against the whole world except the true owner.
*when the contest is between a finder and a subsequent finder, the law will award the property to the prior
finder.

Bailor: the owner of the property

Bailee: person who holds the owners property. Must exercise reasonable care under the circumstances
Rule of bailment: Some states apply the rule of bailment to finders cases. In those jurisdictions the rule
Is: if a subsequent possessor pays the finder for the property, the true owner has no claim against
the subsequent possessor - the true owner is limited to recovering from the finder.
States who don’t apply the rule of bailment to finders cases rule: the subsequent possessor is liable to
The true owner for damages or return of the property even if the subsequent possessor has paid to
Buy the property from the finder.
*subrogation* - if the subsequent possessor is liable to the true owner, even after having paid the finder for
the property, the rule of subrogation will apply. I.e. if I owe the true owner, you owe me.

Locus in quo - place where property is found

- if property is found attached or in the land of private property it is the owner of the land’s property
- if property is found in a public place and just on the floor and not attached or in the land then it is the
finders.

A. Discovery: Relates to first possession. If you discover a rare shell on an unowned beach you
are simultaneously its discoverer and first possessor.
First in time: a person has certain legally protected rights with respect to an item of
property simply by virtue of possessing it.
B. Capture: Unowned property that is captured becomes the property of the person effecting the
capture. Ownership is sometimes decided by custom, particularly when those customs embody
sound public policies.
C. Creation: ex. Copyrights, patents, and trademarks. Key issue is the degree of exclusivity the
creator ought to have. Any expenditure of mental or physical effort, as a result of which there is
created an entity, whether tangible or intangible, vests in the person who brought that entity into
being, a proprietary right to commercial exploitation of that entity, which right is separate and
independent from ownership of that entity. Common law allows imitation. Patent and copyright
are statutory exceptions to the common law rule. There are no property interest in parts of one’s
self.
D. The right to exclude: Possession contains a corollary right: the right to exclude others from
possession, but that right is not absolute.
E. The right to destroy: generally you may destroy your own property, but the social disutility of
doing so leads some to call for limits on this right.
- Abandoned property - when the true owner voluntarily intends to give up ownership of property it is
abandoned. It is unowned and the first possessor becomes its owner unless the circumstances of
that possession are wrongful.
- Lost and mislaid property: if your wallet slides out of a hole in your pocket without your knowledge,
it is lost; but if you place the wallet down on a counter, intending to put it back in your purse, but
forget to do so, it is mislaid. Generally, the finder of lost or mislaid property has a better title to it
than anyone else except the true owner, but the owner of the property where the object is found
may have a better title than the finder in some circumstances.
*whether an item is lost or mislaid is a question of fact for the jury
 - if they decide the item was lost, they must find for the plaintiff (finder)
- if they find that the item was mislaid, they must find for the defendant (owner of the locus
In quo)

A. finder v. landowner: if the object is lost and the finder is not a trespasser, the finder prevails. If
the object is mislaid, the landowner prevails on the theory the owner of mislaid property is more
apt to retrace her steps to locate where it was misplaced.
SPLIT AUTHORITY
1. ENGLISH RULE - THE SERVANT FINDS FOR HIS MASTER
2. MODERN AMERICAN RULE - ABANDONED THE ENGLISH RULE. An
employee who finds lost property during the course of his employment is
entitled to the property against the whole world except the true owner and prior
possessors.

HYPO: georgio worked as an attendant at Texaco owned by Stanley. On a daily basis he checked the
restrooms every two hours to make sure they were clean and stocked. Last year he noticed the waste
basket was full and took it outside to empty it. It had a black money pouch in it with 20k. Georgia
showed the case to Stanley. Georgio and Stanley agreed that Stanley would hol the pouch and the money
in case the owner came back. Nobody ever claimed the pouch or money. Stanley admits georgio found
the pouch, but now wants to keep it.
1. Parties: finder/employee v. owner of locus in quo/employer
2. Court must classify property as lost, mislaid, abandoned, or treasure trove
3. NOT treasure trove because it wasn’t hidden underground; American rule - property
concealed by someone who intended to return to claim it: trashcan in a service station is an unlikely
place to “conceal” that much money. It wasn’t there long since the trash was regularly emptied. Its not
likely to be considered a treasure trove. Abanandoned? (give definition) Doubtful, unlikely that
someone would intentionally and voluntarily relinquish 20k. If court did, however, consider it
abandoned, under the general rule, Georgia would prevail. Rule: a finder of abandoned property is
entitled to it over the owner of the locus in quo, except perhaps when the finder was a trespasser.
Gerogio was not trespassing when he found the money. Mislaid? (give definition) if money was
voluntarily placed and inadvertently forgotten then Stanley would prevail since he is the owner of the
locus in quo. This is unlikely b/c its unlikely that the true owner voluntarily placed the pouch in the
trash can and inadvertently forgot to take it with him. Its more likely the true owner accidentally
dropped it in the trash. Lost? (give definition) If court finds the true owner accidentally dropped it, the
pouch and money will b characterized lost property.
4. Other issues -
A. Nature of the place - the issue may turn on whether the locus in quo is private
property or open to the public. Rule: general rule applies when lost property is found in public place.
Since georgio found lost property in a public place, he is entitled to possession.
B. relation of the parties - master-servant/ employer-employee - even tho Georgia was
the finder, he was also Stanley’s employee. Stanley was the owner of the service station. There is split
authority re. who is entitled to the property found by an employee during the course of his employment.
(English and American Rule) (give definitions of both) Under English rule, Stanley will prevail. In
American jurisdiction Georgio will prevail.

- Statutory modification: These rules are often modified by statute, typically by awarding all found
property to the finder if, after a reasonable search for the true owner, the true owner cannot be
found.
- Equitable Divison: Some say a fairer solution is to divide the value between claimants with equally
legitimate claims.

Adverse possession: NC STATUTE FOR ADVERSE POSSESSION:

Against state: 30 years
Against state w/ color of title: 21 years
Against individual w/out color of title: 20 years
Against individual w/ color of title: 7 years

An unconventional means of acquiring title/to land/which occurs when a person/occupies and possesses
another’s land/under claim of right or color of title/for a period of time set by the applicable statutes.
1. Actual - The adverse possessor must actually enter and take exclusive possession of the
property. Exclusive possession means to exclude the world, except by permission of the
possessor.
2. Open and Notorious - In the case of thieves, a secret holding is presumed. A finder of lost or
mislaid property is presumed to hold openly.
3. Hostile and under claim of right - Possession must not be by consent and not in subordination to
the rights of the true owner. There must be some act of dominion or use on the part of the
possessor that is inconsistent with the absolute right of property in the owner.
I. Subjective - Good Faith: the adverse possessor must actually believe, in good faith,
that is he entitled to possess the property.
II. Objective: the adverse possessor’s acts and statements germane to his occupation
objectively appear to be claims of ownership. NC FOLLOWS THIS
APPROACH SINCE 1985. STATE OF MIND IS IRRELEVANT
III. Subjective
IV. Subjective-Larcenous
III. Aggressive trespass: the adverse possessor must know that his occupation is
wrongful but still intend to claim the property.
4. Continuous: The adverse possessor must continuously occupy for the
limitations period. The occupation must be as continuous as a true owner’s occupation
would be, without voluntary abandonment by the adverse possessor. possession must be
exclusive to the adverse possessor (except for tacking) Since the possession must be continuous for
the statutory period, interrupted periods that together total the required time are insufficient.

Color of Title: Def: not real title. Created by a written instrument, a deed, for example, which purports to
convey title to a certain tract of land, but for some reason, fails to do so. an adverse possessor who enters
under a defective deed or some other defective writing that purports to deliver title to the adverse possessor
has entered under color of title. Color of title is usually not necessary to establish adverse possession
(although some states require it), but an adverse possessor who enters under color of title is deemed to
possess all the property described in the deed so long as it physically contiguous and owned by the person
against whom the actual entry was made.
* two consequences of color of title:
1. Shortens the statute of limitations, and
2. Gives rise to the doctrine of constructive possession.
A. To claim constructive possession, requirements that must be satisfied are:
I. Actual possession of some part of the property described in the
Instrument
II. Color of title
III. Single parcel or tract of land (described in the written instrument)
IV. Single ownership, and
V. no actual possession by another.
HYPO: Odell owns and has been in possession of a 100 acre farm since 1975. In 1990, abby entered
the back 40 acres under color of an invalid deed from Zeb (who has no claim to the land) for the
entire 100 acres. Since her entry, abby has occupied and improved the back 40 in the usual manner
for the period required by the statute of limitations. Abby sues to evict Odell from the 100 acres,
claiming title by constructive adverse possession. Will abby acquire title by adverse possession? In
1945 Odell took possession of the farm under an invalid deed and has been in possession for a period
sufficient to satisfy the statute of limitations.
 1.

STATUTE SEC. 38: a possessor with color of title can establish adverse possession by providing that
the land:
1. Has been usually cultivated or improved
2. Has been protected by a substantial enclosure
3. Has been used to supply fuel or timber.
4. Also says that if only part of a known farm or a single lot was cultivated or enclosed, the
Adverse possession will extend to the entire farm or lot.
STATUTE SEC. 39: applies when the possessor does not have color of title, but has been in actual
continued possession under a claim of title. Whenthe possessor’s claim of title is not founded ona
written instrument, his adverse possession extends to only the land actually occupied.
STATUTE SEC. 40: sets out the requirements of adverse possession for a possessor who doesn’t have
color of title. The land must be:
1. Protected by a substantial enclosure, or
2. Usually cultivated or improved.

Hypothetical: Archie bought a cabin on 10 acres in the middle of 500,000 acres owned by
Weirhauser. The land is in the NE pat of North carolina, and extends into three counties. Will Archie
prevail on a claim of title by adverse possession?
1. Depends on which view is followed by the particular jurisdiction. If no jurisdiction is
given, talk about each possibility. Majority: Objective approach (yes) North Carolina: Objective
approach (yes). Minority: Subjective approach: depends, Good Faith: yes, Larcenous intent: no

Gifts:
1. Intent: A donor must intend to transfer title, not just possession.
2. Delivery: The subject of the gift must be delivered to the donee.
A. Symbolic delivery - when actual physical possession is impossible or impractical, the delivery
of something symbolic of possesion is symbolic delivery.
B. Constructive delivery - when actual physical possession is possible but impractical, delivery of
an object is the means of obtaining possession is constructive delivery (i.e. a safe deposit key)

3. Acceptance - delivery triggers a presumption of acceptance, which can be rebutted by the donee upon
proof of the donee’s rejection of the gift.

Bona Fide Purchasers:

1. somebody who pays value;
2. does not know that the seller lacks good title;
3. and has a good faith belief that the seller is a true owner
To acquire a clear title from a vendor without title it is generally necessary to be a BFP who acquires a
negotiable instrument, or purchases an item from a merchant who deals in that type of goods if the property
ahs been entrusted by its owner to the merchant for sale, or purchases from a vendor with voidable title,
which results when an owner intends to transfer title but doesn’t because the other party (vendor to the
BFP) is guilty of fraud or duress that permit’s the owner to void the transaction.

Lappage
Hypo: Odell owned a 50 acre tract of land. Odell conveyed the western 25 acres of the tract to Archie
by deed. Odell gave a deed to Ben. Odell intended to transfer his remaining 25 acres to Ben, but the
deed describes the eastern 30 acres of Odell’s original 50 acres. Who prevails in a dispute between
Archie and Ben about ownership of the 5 acres?
Rules from Price v. Tomrich: (1)Where the title deeds of two rival claimants to land lap
upon each other, and neither is in the actual possession of the land covered by both deeds,
the law adjudges the possession of the lappage to be in the one who has better title. (2)If one
be seated on the lappage and the other not, the possession of the whole interference is in the
former. (3) If both have actual possession of some part of the lappage, the possession of the
 true owner, by virtue of his superior title, extends to all not actually occupied by the other.

If neither archie nor ben possessed any part of the 5 acre lappage then archie would prevail
because he has superior title.

Hypo2 Frank sold 5 acres of unimproved land in Chatham Co. to Inez for 100k. Inez spent
300k to build her home on the property and landscape the entire 5 acres. Frank didn’t own
the land and Odell owns it and holds record title.
Under modern betterments statutes, Odell would be given the choice to either (1)
sell his 5 acres to Inez for their fair market value without the house, or (2) buy the house
from Inez, for the amt by which the house has increased the fair market value of his 5 acres.

Adverse possession of Chattels:

A. SOL starts running when the owner knew or should have known of the cause of action
B. and by necessity this includes who had possession of the property

Freehold Estates
1. Estates in land
A. Fee Simple Absolute
- Inheritance: if a person dies intestate, their property descends to their heirs. So heirs
are persons who survive the decedent and are designated as intestate successor
under the state’s statute of descent. At common law, spouses are not heirs.
- modern statutes of descent: first issue (descendants); if no first issue, then parents; if
none then Collaterals (all persons who are related by blood to the decedent who
are
Neither descendants nor ancestors)
-Escheat: if a person dies without heirs and intestate their property escheats to the state
Where the property is located.
B. Fee Tail
C. Life Estate
D. Defeasible fee’s
I. Divisible - can it pass by will?
II. Descendible - will it pass by the statutes of intestacy if the holder dies w/o a will?
III. Alienable - is it transferable intervivos? (during the holders lifetime)

Hypo: O convey’s blackacre to “A for life, remainder to B and her heirs”. B then dies intestate
without heirs. A then dies. Who owns Blackacre?
B has an indefeasible vested remainder in fee simple. Upon B’s death intestate the
remainder escheats to the state in which Blackacre is located. Upon A’s death the state’s
remainder becomes a possessory fee simple absolute. The state owns Blackacre. A didn’t
have a life estate because, at A’s death, the possessory interest automatically passed to A’s
descendants.
3 questions:
1. What language creates the estate?
2. What are the estate’s distinguishing attributes?
- Is the estate divisible, descendible, alienable? (see above)
3. Is there a future interest to accompany the estate?

1. Accrual of a cause of action for recovery of possession: The statute of limitations for adverse possession
begins to run at different times
A. Determinable fee: Once the limitation occurs the determinable fee immediately expires.
Because continued possession by the holder of the determinable fee is wrongful, the owner’s cause
of action accrues and the limitations statute starts to run at that moment. This is also true with
respect to the fee simple subject to an executory limitation.
 B. Fee simple subject to a condition subsequent: Even though the condition has occurred,
continued possession is not wrongful until and unless the holder of the power of termination has
exercised it. Unless the limitations statute specifies to the contrary, it starts to run only when the
power of termination is exercised. However, the equitable doctrine of laches may cut off the
ability of the holder of power of termination to exercise it if she fails to do so for an unduly long
time that causes hardship to the possessor of the defensible fee.

2. Fee simple subject to executory limitation: a fee simple that is divested, or shifted, from one transferee
to another transferee upon the occurrence of some future event. Both the fee simple determinable and the
fee simple subject to condition subsequent involve the creation of a defensible fee with a future interest
retained by the grantor (either a possibility of reverter or right of entry). But the same defensible fee estates
can be created with the future interests transferred to a third party instead of retained by the grantor.

VI. Restraints on alienation of freehold estates - restraints on alienation of freehold estates are generally
void.
A. Types of Restraints:
I. Forfeiture:
II. Disabling: no power to convey is granted
III. Promissory restraint: grantee promises not to alienate
B. Total restraints on a fee interest: Total restraints are always void because they are thought to
promote inefficient allocation of resources.
C. Partial restraints on a fee interest: Partial restraints may be valid if they are for a reasonable
purpose and limited in duration.
D. Restraints on a life states: The validity of restraints on alienability of life estates depend on the
type of restraint and the type of life estate to which it is applied.
1. Legal life estates: restraints on alienation of legal life estates are usually void,
especially disabling restraints, because they prohibit any transfer.
2. Equitable life estates: disabling restraints on equitable life estates, in the form of the
spend thrift trust, are freely permitted because the property itself is freely
alienable, so the spendthrift trust poses no danger to economic efficiency.

Leasehold Estates
- O transfers “to A for 10 years”
A: estate for 10 years
O: reversion

Future Interests
A . Future Interests can be created in the transferor or the transferee
1. Transferor future interests
- reversion
- possibility of reverter
- right of entry (power of termination)
2. Transferee future interests
- remainder
- vested
- contingent
- two uncertainties: 1. Its owner is unknown or cannot be
ascertained
2. There is a condition precedent to ultimate
possession.
- executory interest
- shifting - divests (cuts off) a vested interest (either a future interest or a
presently possessory interest) of another transferee.
- springing - divests the grantor’s interest at some future time.
B. Future interests retained by the grantor
1. Reversion - when a grantor conveys a lesser estate than what he originally owned, a reversion in
the grantor is created. Reversions are freely alienable, inheritable, and devisable.
2. Possibility of reverter: A possibility of reverter is created whenever the grantor conveys his
Estate upon a determinable limitation, which is a limit upon the duration of the conveyance, as
when the grantor conveys for only “so long as” a given event does not occur or, only “until” the
occurrence of a given event. The estate conveyed “determines” or expires automatically when
the limiting event occurs. A possibility of reverter is created only in the grantor, never in a
transferee.

C. Future interests created in grantees

1. Remainders - A remainder is a future interest created in a grantee that will become possessory
(if at all) upon the natural expiration of the preceding possessory estate. Remainders never
divest another interest. A Vested remainder is certain to become possessory. A Contingent
remainder has only the possibility of becoming possessory.
A. Vested Remainders: A remainder is vested if it is created in a known or ascertainable
person and ultimate possession is not subject to any condition subsequent. It
must
necessarily become possessory upon the natural expiration of the preceding estate.
1. Indefeasibly vested remainders: An indefeasibly vested remainder is certain
to become and remain possessory. It cannot be divested in whole or in
part.
2. Vested remainders subject to complete divestment - a vested remainder
subject to complete divestment is one created in a known or
ascertainable person and not subject to any condition precedent, but which is
subject to a condition subsequent that, upon occurrence, will completely
divest the remainder man of his interest.
3. Vested remainders subject to partial divestment: A vested remainder subject
to open (also called partial divestment) is a remainder created in a class
(or group) of people, at least one of whom is known or ascertainable and
presently entitled to possession as soon as the preceding estate expires.
Because the class of grantees is capable of including others the class is
“open”; thus, the vested remainder is subject to partial divestment in favor of
possible new entrants into the open class.
I. Class - closing rules - a class closes upon the sooner of two events:
(1) physically - it is no longer possible to have any new
entrants or (2) under the “rule of convenience” - when any member
of the class is entitled to take possession. The rule of convenience
is a presumption that the grantor intended this consequence and can
be rebutted by contrary evidence. When it applies it causes a class
to close around all then living members of the class, whether or
not they are all then entitled to possession.
B. Contingent remainders: A contingent remainder is a remainder created in an unknown
or unascertainable person or that has a condition precedent to ultimate possession. The
natural expiration of the preceding estate is not a condition precedent. The
condition must be expressed. Sometimes the same condition precedent can be
used in the alternative.
2. Executory interests: Executory interests are future interests in a grantee that divest either (1)
another grantee’s possessory or vested future interest (a shifting executory interest). Or (2) the
grantor’s vested interest at some future time (a springing executory interest). By nature, the
possibility of possession inherent in an executory interest is contingent upon the occurrence of an
uncertain future event - the divesting condition.
A. Shifting Executory Interest: divests an interest held by another transferee from the
grantor. It cuts short, or divests, that other interest; it “shifts” the interest from
one transferee to another.
 B. Springing executory interest: A springing executory interest is a future interest created
in a grantee that cuts short the grantor’s interest at some future time after the conveyance.
It “springs” out of the grantor.

Marketability Rules
A. Destructibility of contingent remainders: At common law, a contingent remainder in land was
destroyed if, at the expiration of the preceding freehold estate, it was still contingent. This rule is virtually
extinct today.
B. Rule in Shelley’s Case: developed in the 16th century and was designed to stop avoidance of feudal
death taxes. That function is of no modern relevance and to the extent that the rule improved marketability
of land its function has been supplanted by the Rule Against Perpetuities.
1. The Rule: If (1) one instrument (2) creates a freehold in real property and (3) a remainder in
the freeholder’s heirs (or the heirs of his body), and (4) the freehold estate and the remainder are
both equitable or both legal, then (5) the remainder becomes a remainder in the freeholder.
2. Practical Effect: The merger doctrine, by which a possessory estate and the immediately
following vested future interest are merged into a single possessory estate, caused the destruction
of most, but not all, remainders subject to the rule.
C. The doctrine of worthier title: this doc

Type 1: Fee simple Absolute: aka "F/S " & "Legal Title
∙Q#1 To create it: To A or to A and his heirs
∙Today: “to A” creates fee simple absolute
∙Q#2: Attributes: ABSOLUTE OWNERSHIP of POTENTIALL INFINITE DURATION
**Best estate any taker could hope for
A) Divisible—YES can pass by will
 B) Descendible—YES it will pass by the statutes of intestacy of the holder dies/o a
will
C) Alienable—YES can sell/give it away during lifetime; Inter-Vivos, Testate,
Intestacy
∙Q#3 Future Interest: NO!!!
∙Told: O conveys to A (or to A & his heirs); A is alive & well
∙Asked: What do A’s heirs have? NOTHING!!
∙Shenade O’Conner Rule of Property: A living person has no heirs (hairs);
while one is alive, only prospective heirs and as a property matter, they
don’t exist, powerless
Class Notes: Highest: Fee simple absolute: own all interests; estate on which whole land
structure is based
-Cross-reference w/ Jacques case—outcome $1 in real damages & $100,000 punitive
-Attributes:
1. Rt. To Possess/To Exclude; violating the right to exclude others
2. Right to give it away freely—transfer/include
3. May create Lesser estates; person who holds fee simple has rights to create lesser
estates of any kind (alienable)
4. Lienable- Voluntary or Involuntary
5. Includes "appurtenant" rights & burdens (running with land)
6. Ad Coleum unless severed
7. Swallows up Lesser Estates Owned by Same Party
8. 5th Amendment Protections
9. Lienholders (in "Title Theory" States--@30%)
-Descendible-will pass the statutes of intestacy if O dies w/o a will—directed by state law
∙FL statutory rule: F/S presumed/o magic words “and her heirs” Key Terms: Issue –
lineal decedents
Collaterals – all persons related by blood to decedent who are neither
descendants nor ancestors
Escheat – if person dies intestate with no heirs, goes to state
Type 2: Fee Tail:
∙Q#1 To create it: To A and the heirs of his body
∙Q#2: Attributes: Fee tail virtually abolished in U.S. today; All you need to
know is history; historically, fee tail would pass to grantor’s lineal blood
decedents NO MATTER WHAT!
∙Grew up in feudal England; land=family
∙Goal: preserve family dynasties –didn’t matter if grantee left otherwise
in his will
∙Today: attempted creation of fee tail creates a fee simple absolute
∙Q#3 Future Interest: Yes!
∙In O, grantor, called a reversion=future interest held by O
∙Remainder=when the future interest of 3rd party- Ex: To A and his heirs,
then to B and his heirs
Type 3: Life Estate
∙Q#1 To create it: "To A for life, then to B forever"
∙A – life estate: present possessory interest
∙B – remainder: future interest in FSA O à "To A for life,
remainder to the heirs of B" ∙A – life estate ∙Heirs of B –
contingent remainder: cannot actually identify
who will take possession – B hasn’t died yet ∙O – implied
reversion: if A dies and B is still alive – until
B dies
O à "X for 5 years" ∙X – term of years: (possessory interest
with finite
duration" NOT A L/E!!!!
∙O – reversion in FSA
O à "to A for life, but if A does not use the land for
farming, O retains the right to reenter:
∙A – life estate subject to a condition subsequent ∙O – right of
entry
“To Brooke For Life”- after life estator (Brooke) dies, then
reverts back to true O (fee simple to his heirs @ law) →
reversion & reverter
**Must be measured in explicit, lifetime terms & NEVER in terms of year**
~~Romantic Estate~~ “I will cherish you all the days of your life” OR-
“I will cherish you all the days of my life”- explicit lifetime terms
∙Q#2: Attributes:
-Life Tenant’s Interests- WASTE-whenever 1 party has an interest in future
interest—waste doctrine very important
Rules 4 Life Tenant’s Interests & WASTE
L/T is entitled 2 all ordinary uses/profits from the land
L/T must not commit waste—i.e. do anything 2 harm the future
interest holders
3 Species of Waste
Voluntary/ Affirmative waste- synonymous w/ actual, overt
conduct that causes a ↓ in value; synonymous w/ destruction-
overt destruction I.e. tearing down buildings, strip mining, clear
cutting timber, etc. Courts will most often grant relief for
affirmative waste
Exception: Open mines exception - if the transferor was making a
certain use of the property when he transferred it, I.e. mining,
courts will presume that the transferor wanted the person in
possession to continue that use.
Permissive waste- synonymous w/ neglect- when land is allowed
2 fall into disrepair Or- L/T fails 2 reasonably protect the land;
“maintenance” –L/T 2 maintain premises in reasonably good
 repair. I.e. failing to pay property taxes or allowing a roof to
leak until it causes further damage to the structure. An action is
only allowed when the person in possession fails to perform
some act which he is legally obligated to perform. must be a
duty to act and breach of that duty.
Ameliorative waste- L/T must not engage in acts that will enhance
the property’s value unless ALL future interest holders are
known & consent (property law endeavoring 2 preserve
sentimental value)
∙Q#3 Future Interest: Yes!
∙If held by the O/grantor called a reversion
∙If held by a 3rd party—called a remainder
Class Notes:
∙In FL→ to life estate(oldest son) & then to issue (basically life estates &
remainders
∙Ex: To Brooke 4 life & then back to Troy (or T.O.); IF IT GOES TO Troy, he gets fee
simple
∙Remainder= ‘Brooke 4 life & then to Troy’; Tony left w/ a remainder interest
∙Troy gets remainder (remainderman)
∙Only life estator gets lesser estate
***Unless the will says something to the contrary***
∙Two options when life state gone:
Reversion-“yo-yo”, b.c. it comes back 2 the person who
originally gave it away
Remainder
∙L/E pur autre vie= for the life of another
∙’To X for the life of Y’ or ‘To X for the life of Y & Z’
∙Whatever the testator is thinking, then they call the shots (w/I reason)
∙Per auter vie unless measured by the life of the life estator
∙ (measuring by life of another) not very marketable b/c you can have the life
estate and its duration is measured by the life of another
∙Common law concepts- dowry & curtsey- dowry 4 female & curtsey for male;
abolished in common laws today; surviving widow gets life estate in home estate, or a
1/3 interest if there are children & 50% if there are none=current statutory dower
right; essentially today system w/ an elected share
∙The owner of a LE can transfer it to another w/o using any words of limitation, in
which case the transferee becomes a tenant pur autre vie (measured by the grantor’s
life) – After life estate there is a remainder or reversion
∙Problem of balancing the interests of life tenant and future tenant was resolved by the
doctrine of waste à limits life tenant use of land for future tenant
Cases: Rule: White v. Brown: (house in will) Under the law, unless the words and
context clearly evidence an intention o convey only a life estate, the will should be
construed as passing the home in fee. There is no such thing as an implied
remainder.
Key terms: Holographic will- handwritten/home-made deal; hard to
understand intent
Testator- left a will @ death

The application of the law of waste turns on:

1. The interests of the competing parties
2. The nature of the property
- the conduct in question
- the remedy sought
Hypo: O transfers “to A, but if Tom Delay ever again becomes a Democrat, to B”
- A’s interest is much greater than a life estate. It will last until Tom Delay
becomes a democrat. If Tom dies without ever switching parties, A’s estate will
become a fee simple absolute.
- On the other hand, B’s interest is tenuous. It will become possessory only if
Tom becomes a Democrat.
-On these facts, the court will be less likely to grant relief for waste. (relative,
however)
*guiding principle: the degree of protection that a court will give to the owner of a future
interest is influenced by the likelihood that he or she will eventually receive possession of
the land in question. It is also reflected in the remedies available to the complaining
party:
- Damages - more readily available
- Injunctive relief
- forfeiture of the possessory estate - rarely allowed

Interpreting Wills
Rules of construction - to interpret ambiguous grants – presume creates the greatest
estate possible.
Restraints on alienation: grantor limits way which property can be disposed
/transferred: any total restraint upon a FS is void. Disabling restraints on LE are void;
forfeiture and promissory restraints are permissible
1. Partial restraint – one that purports to restrict the power to transfer
to specific persons or by a specific method or until a specific time
a. Disabling– withholds from grantee power of transferring
interest
b. Forfeiture – provides that if grantee attempts to transfer
interest, if is forfeited to another person
c. Promissory restraint – grantee promises not to transfer
interest
∙Intent v. partial Intestacy- something policy issues in will; analysis
Look @
Testator’s (Testatrix)’s Intent- 1st step in evaluating will is 2 look @ intent
b/c fee simple & grantor has the right; public policy—intent
Partial Intestacy- court doesn’t want partial intestacy, want to transfer the entire
estate
 Restraints on Alienation- can’t give a fee simple 2 someone and then put restraint on
it
**If you write will & forget to include remainder, look @ intestacy statutes—
courts despise intestacy b/c it undermines the statute of wills (&fraud); will construe
language against partial intestacy b/c; legal assumption= everyone that writes a will
assumed 2 have disposed of everything
∙If say it’s a fee simple, no remainder, no partial intestacy
Rule: Baker v. Wheedon: (Farmer/highway) The intent of the deceased must be taken
into consideration when it comes to devising property. If something regarding future
interests was put into the will, the testator must have wanted the remaindermen to
get something of value as well as the life tenant.
∙Intent clearly expressed in the will—left remainder 2 grandchildren
**Would definitely want to check chain of title before you purchased Mrs.
Wheedon’s property**
Key Terms: Waste- failure to take reasonable care of property→watseful for her
(decedent’s wife) to let the property deteriorate; waste-trees, coal iron ore life estator
doesn’t have the right 2 sell off, designed to protect the remaindermen
Common Law waste-worried about value of the property to
remindermen, selling piecemeal would get less money than selling the
tract of land as a whole
Fertile Octogenarian- fiction of law that if you’re 8oyrs old, still capable of having
kids; law would presume that until you’re dead, capable of having children
Type 4: Defeasible fees (3 species)
(1) Fee simple determinable
∙Q#1 To create it: ‘To A for so long as’ or ‘To A during’ or ‘To A until’; to
create, grantor Must Use CLEAR, DURATIONAL LANGUAUGE
∙If standard violated, very harsh
∙when duration ends, forfeiture automatic @ the grantor’s option, if
stated condition occurs
∙Q#2: Attributes:
A) Divisible—Yes! can pass by will
B) Descendible—Yes! it will pass by the statutes of intestacy of the holder dies
w/o a will
C) Alienable—Yes! can sell/give it away during lifetime
*Yes to all, like all defeasible fees
McJager Rule: Can’t always get what you wantàmay transfer, but
condition persists
∙Q#3 Future Interest: Yes, possibility of revereter, which extends in O, the
grantor
∙Only 1 future interest
∙Ounce of History is HUGE- b/c concept is counter to common logic/
thought FSDPOR:
Fee simple Frank Sinatra
Determinable -OR— Didn’t
Possibility Prefer
Of Orville
Reverter Redenbacher Popcorn
Class Notes:
**Want to be extremely careful that buying property not already in violation;
marketplace left blindfolded when it comes to FSDPOR, so courts like less
∙We believe that the true O has massive fee simple rights & the right to do w/
property what he sees fit
(2) Fee simple subject to Condition Subsequent (FSCS)
∙Q#1 To create it: ‘To a, but of X event occurs, grantor reserves the right to
re-enter & re-take”
a)Grantor must use CLEAR, DURATIONAL LANGUAGE
b) Grantor must carve out the right to re-enter
∙Q#2: Attributes:
A) Divisible—Yes! can pass by will
B) Descendible—Yes! it will pass by the statutes of intestacy of the holder dies
w/o a will
C) Alienable—Yes! Yes, but always subject to condition can sell/give it
away during lifetime
*Estate is not automatically terminated, b/c can be cut short @ the
grantor’s option, if stated condition occurs.
Britney Spears Rule: My prerogative: If I want, I’ll terminate you,
choose to terminate or not= essential feature
∙Q#3 Future Interest: Yes, right of entry=power of termination
∙Grantor has right of entry
Class Notes:
∙FSCS- preferred by judges/American system b/c right of re-reentry, more traceable
∙Ex: If church starts selling root beer, T.O. MUST take action, get a sheriff’s write
∙2nd chance virtue
∙In FL, FSD & FSCS 21yr statute of limitations (marketplace doesn’t like) so
after 21 years, will wipe out b/c market ≠ like limits on the Market
Reasons for (21yr) Statute of Limitations
Repose in land titles-stability 2 society
Efficient use of land
Limits on litigation
**Marketplace not blindfolded, can look @ chain of title b/c requires true owner to
take action/judicial action, so you can check this history if want to purchase land***
∙FCSC less harsh/rigid/strict than FSD where forfeiture is instantaneous & automatic;
FSCS actually requires T.O. action
Class Notes: Moot client problem CLIENT ("C") comes to your office with the
following facts: Testy ("T"), owner of Greenacre, died recently and left a holographic
will. T's will contained the following language: "I, T, hereby leave Greenacre and the old
farmhouse to C and her children, if she have any, for her to live on Greenacre so long as
she lives in order to have a roof over her and her minor children if any, and not to be sold
away while C's alive. In the event C dies without issue, then at C's death to her heirs, but
if C also dies without heirs, then to the children of my estranged son who are then
adults." Apart from the farmhouse, there is a dense forest of valuable pine growing on
Greenacre. C tells you she needs costly surgery. In order to pay her medical bills she
needs to harvest the entire forest of pines and sell the timber. Analysis: ∙‘To C and her
children’→ sounds like a fee simple ∙Could also interpret as a fee tail—In FL, fee tail
grants L/E and then 2 “X” rec’s a fee simple ∙’To C and her heirs as long as she has
any’—sounds like/could be fee simple determinable possibility of reverter ∙Fee simple
subject 2 executory limitation **When C dies, estranged sons’ children must be 18 or
they get nothing ∙2 people w/ some interest in the land ∙Future possessory interest—
remaindermen ***Policy of waste—taking away from the value of the estate;
affirmative form of waste Ex. Of waste: Cutting down 99% of the trees; few exceptions
of when not waste—if trees @ their peak value; wasteful to leave trees if they are @ the
beginning stages of a disease ∙Intent of the testator- sell timber & pay for her medical
bills

38 ½
Acres
∙If followed FL law, Hutton ↓ J ↓ Mahrenholz would be valid transfer
Rule: Mahrenholz: Upon a grant of exclusive use followed by an express
provision for reverter when that use ceases, courts have agreed that a
fee simple determinable rather than a fee simple subject to condition
subsequent is created. (In Illinois, reversionary interests can’t be transferred inter vivos; P
conveyed P’s conveyed land by 3td party; reversionary interest in school land conveyed by grantor as
FSDPOR= intent 2 give land 2 school district as long as it was needed and no longer; Common law rule:
FSDPOR reverter & right of re-entry transferable@ death, not transferable inter vivios; Constructing
language of deed, didn’t matter if from garntor→grantee conveyed a FSCS or FSDPOR, b/c in either case,
grantor & his heirs retain and interest in the property—which may become possessory if the condition is
broken)
∙Condition breached, then reverts back 2 grantor/grantor’s heirs (Harry)—possessory
interest
∙IL rule—can’t transfer interest inter vivos= under this rule, Harry can’t transfer by deed
(restraint on alienation) or transfer it inter vivos
**Listed as heir under intestacy laws—NOT BY WILL!
∙However, if FSD & condition broke, Harry gets fee simple in the land, so once the
condition is broken, he can transfer a deed, thus P’s (Mahrenholz) wins b/c
deed/possessory interest transferred to them
∙If FSCS, then must re-enter the land & bring judicial action b/c don’t regain possessory
right until you go and find out about the condition (not automatic like w/ an FSDPOR)
**Common law courts prefer FCSC over FSDPOR b/c easier to keep track of, paper trail,
certainty, etc.
∙FSCS-right of re-entry: A/P: SOL begins 2 run out when condition occurs
Key Terms: Devise-pass by will
Habendum clause: part of deed that defines the extent of the interest being granted &
any conditions affecting the grant—“to have & to hold”

Mountain Brow Lodge v. Toscano: (lodge) Rule: When the language in a deed is
ambiguous, the donative intent of the grantor should be honored. A limitation on the
use of property, although it may serve to impede its transfer, will not be void as a
restraint against alienation. Law wants to encourage charitable donations. (Lodge tries
to QT; Held: refusal to QT for Lodge (appellant) b/c portion of the habendum clause & surrounding
circumstances= fee subject 2 condition subsequent w/ title 2 revert back to grantor/heirs if land ceases 2 be
used for lodge; Conditions on land use have been upheld though court dislikes restraints on land→held
restriction on land use b/c express intent of testator’s will; Seller isn’t being injured in the marketplace b/c
he didn’t pay anything for it)
Who can own a F/S?
vs.
use she can make of FSD or FSCS?
Dissent: Brow Lodge: illegal/intolerable restraint on alienation b/c only
bidders on land would be the lodge—can’t sell property 2 anyone and should
be a fee simple b/c restraining anyone from buying it from the Lodge
Majority View: FSCS—even though language suggests a restraint on
alienation, will uphold it as the testator’s intent; also, don’t want 2
discourage charitable donations; allowing use of restraint on alienation b/c
express intent of the testator’s will
**If in a jurisdiction that follows the doesn’t common law rule against restraints on
alienation, then NEVER advise your client to leave a donative gift via deed, instead leave
it to a trustee b/c if deed the land, will pass a fee simple absolute & then they can sell/use
the land however they want**
∙Law w/ a preference for FSCS (courts will construe as)
Leaves a paper trail-requires orig. grantor to take action
Query by Burton: Why don’t courts just abolish FSDPOR altogether?—
b/c HUGE pillar of property law is to uphold the grantor’s intent b/c he is the one w/
the fee simple
Vested right of possession vs. vested right in the future
-Ex: Rent your apt—move-in, pay 1st month’s rent & have a vested right of poss.
Landlord has a vested right of re-possession in the future
**Rules affecting future interests are attempts by the British 2 plug holes against
future vested interests;
Rule: Corporations cannot be used as measuring lives—b/c can theoretically live
forever & vested interest may never arise, thus not used as a measuring life
Quiet Title Action: proper legal step 2 enforce condition; file a record of action and then
will be reflected in the chain of title
A/P- SOL begins 2 run out @ time condition is broken; as grantor, you wouldn’t like
FSD b/c immediate vs. FSCS b/c under FSCS SOL doesn’t begin 2 run out until attempt
2 re-enter
Rule against perpetuities- any interest that isn’t vested right now will be knocked
out in some period of time—court recognized FSD & FSCS already vested;
retention/right of reversion is CURRENT right even though may not come 2 fruition
until later date; Rights of the grantor have never been contingent b/c valid @ the tune so
law against perpetuities ≠ apply 2 defeasible fees
FL Law FSDPOR & FSCS freely alienable—can transfer them @ any time
∙‘Chilling the market’- attempts 2 restrain alienation, holding back from free transfers of
land
∙Illegal restraints on alienation-religious, ethnic, etc.
∙Mere impact on market vale is not enough to = restraint on alienation
Objections to restraints on alienability:
they make property unmarketable
perpetuate the concentration of wealth
restraints discourage improvements on land
restrains prevent the owner's creditors from reaching the property for the purpose of
discharging death
Types of Restraints:
Disabling Restraint: withholds from the grantee the power of transferring his intent
Forfeiture restraint: provides that if the grantee attempts to transfer his interest, it is
forfeited to another person
Promissory restraint: provides that the grantee promises not to transfer his interest
(according to the restatements an absolute restraint on a fee simple is void)
Ink v. City of Canton: (public park) Rule: The intent of the grantor should be taken
into consideration when dealing with ambiguity or unforeseen circumstances.
Where the grantee paid nothing to the grantor for the determinable fee, the amount
by which the value of an unrestricted fee exceeds the value of the restricted fee is
something that should go to the grantor or his heirs. (2 deeds conveyed Ink Park land 2 D
(City); P’s (Ink= grantor’s heirs) granting clause: ‘for the use & purpose of a public park, but for no other
use/purpose whatsoever); Eminent domain case comparison/similarity; Grantee (city) paid $0 nada for
determinable fee; Money rec’d 2 go 2 P’s & City—conveyance imposed fiduciary duty 4 city 2 use only 4
park purposes; total value of their interests (P& City) = fair market value of the land, but when taken
separately, the interest ≠ fair market value) Burton Comments -Once land condemned, grantor
can never get land back, thus, should be compensated w/ the fair market value of the land
**Law of accession—one adds value 2 land of another; John Locke labor theory-reward
people for their labor & improvements; (added value) -Unjust enrichment-overriding
policy of $2K value was added by the city, so they are entitled to that $
City of Palm Springs case- Ex of how city would take land gift to use for “X” under
the 5th Am. Would condemn the land, often for $0, now city has absolute fee simple
& would then resell the fee simple absolute 4 a huge profit margin (land conveyed 2 city
as Equestrian Center→FSCS, then city later decides wants land as a golf course—brings condemnation
action against Living Deer Reserve claiming power of termination b/c D’s rights in land not compensable;
Restatement- applies only where paramount authority condemns property & outs possessor, here city
(possessor) brought condemnation procedure & breached condition; So, D to be compensated 100% of
value of unrestricted fee in the land)
Book Notes: Estates Defeasible by marriage: courts don’t like to violate common law
rule against restraints on marriage, thus look @ 1.) Purpose of coercing abstention from
marriage 2.) Purpose of providing support until marriage w/o any desire 2 hinder
marriage **Provision upheld when 2nd purpose in mind of testator*
(3) Fee simple Subject to Executory Limitation
∙Q#1 To create it: ‘To A, but if X event occurs, then to B’ àoutcome
determinable
∙Q#2: Attributes: estate just like fee simple determinable, only now if
condition is broken, estate automatically forfeited to someone other than
grantor
A) Divisible—Yes! can pass by will
B) Descendible—Yes! it will pass by the statutes of intestacy of the holder dies
w/o a will
C) Alienable—Yes! can sell/give it away during lifetime
*Forfeiture automatic, buts works in favor of other prescribed party
∙Q#3 Future Interest: Yes, shifting executory interest
Defeasible Fees: 2 Rules of Construction:
Words of mere desire/hope/intention are INUSFFICIENT TO
CREATE a defeasible fee.
Courts disfavor restrictions on free use of land & will avoid
finding defeasible fees unless clear, durational language
FUTURE INTERESTS 1. CLASSIFY PRESENT ESTATE 2.
LOOK AT WHO HAS THE FUTURE INTEREST grantor (reversion,
possibility of reverter, right of entry) other person in grant (remainder,
executory interest) 3. HOW WILL THE FUTURE INTEREST
BECOME POSSESSORY 4. IS INTEREST VESTED OR
CONTINGENT
Interests retained by the transferor: reversion possibility of reverter right of entry
(power of termination)
Interests created in transferee: vested remainder contingent remainder executory
interest
TRANSFEROR I. Reversion – the interest remaining in grantor, or in the successor in
the interest of a testator, who transfers vested estate of a lesser quantum than that of the
estate which he has; does not provide who is to take the property when the lesser estate
expires - results from the hierarchy of estates. Grantor retains a reversion if has conveyed
a lesser estate than the estate originally had. If conveys an estate of the same size as
originally had, possession cannot return to the grantor. (vested d) a. express b. implied –
by operation of law II. Possibility of Reverter – a future interest remaining in the
transferor of his heirs when a FSD is created; carving a FSD out of a FSA III. Right of
Entry –when an owner transfers an estate FSSCS and retains the power to cut short or
terminate the estate, the transferor has right to entry.
TRANSFEREE I. Remainders - A remainder is a future interest that waits until the
natural termination of the preceding possessory estate; a future interest in grantee that has
the capacity of becoming possessory at the expiration of the prior estates, and can not
divest the prior estate. A remainder must be expressly created in instrument creating the
intermediate possessory estate. –always follows a life estate. Must be capable of
becoming possessory as soon as the life estate prior expires. A. Vested remainder: 1.
the transferor has decided at outset who is to take the property upon the life tenants death;
an ascertained person 2. it is not subject to a condition precedent (other than natural
termination of the preceding estate) 3. indefeasibly vested– remainder is certain of
becoming possessory in the future and cannot be divested – no implied reversion can
follow 4. remainder may be vested but not certain of becoming posessory
1. Vested remainder subject to open/partial divestment – remainder
created in a class of persons is vested if one member of the class is
ascertained and there is no condition precedent - interest is reduced
proportionately if there is the possibility of other persons becoming
entitled to share in the remainder. 2. Vested remainder subject to
total divestment - arises when the remaindermen is in existence and
ascertained and his interest is not subject to any condition precedent,
but his right to possession and enjoyment is subject to being defeated
by the happening of some condition subsequent.
B. Contingent remainder: 1. Permits the transferor to let future events
determine who the property will go to at the life tenants death; unascertained
person 2. Subject to condition precedent 3. Alternative contingent remainders
– always followed by another contingent remainder
Note: Vested remainders accelerate into possession whenever and however
preceding estate ends. Contingent remainder cannot become possessory so
long as it remains contingent.
i. Unborn or Unascertained Persons- ∙Remainder is
contingent if created in favor of unborn or unascertained
person, because until the remainderman is ascertained, there is
no one ready to take possession should the preceding estate
come to an end.
Contingent remainders: 1. ascertainment –people who can’t be identified
"remainder to heirs of O if O is still alive" (can’t know until O dies) 2.
survivorship –requirement must be expressly stated, never implied "to O’s
children who survive him" 3. age –does not want interest to vest until person
reaches a certain age C. Executory interest: If not a remainder because
preceding estate is not a life estate, then must be an executory interest.
Terminates an estate before natural length runs out. 1. a future interest in a
transferee that can take effect only by divesting or cutting short some interest
in another transferee (shifting executory interest) 2. a future interest in
transferee that can take effect by divesting
from transferor in future (springing executory interest) 3. FS subject to an
executory limitation a.) upon happening of a stated event, is automatically
divested by an executory interest in transferee b.)Any interest that follows a
fee and is not held by a third person Exception: applied in one situation where
the future interest is not a divesting interest – where a future interest in a
transferee follows a FSD
EXAMPLES: O à "to A for life, then to B" ∙A – life estate ∙B – vested remainder
 O à "to A for 5 years, then to B" ∙A – term of years ∙B – vested remainder
O à "to A for life, remainder to B and his heirs" ∙A – life estate ∙B – vested
remainder in FS (no requirement of survival of A by B for interest to vest) ∙B’s
heirs – nothing
O à "to A for life, remainder to B if B survives A" ∙A – life estate ∙B –
contingent remainder (contingent on surviving A) ∙O – implied reversion
O à "to A for life, then to B and his heirs if B reaches 21" ∙A – life estate ∙B –
contingent remainder based on age (must reach 21) ∙O – implied reversion –
when A dies before B is 21 ∙When B turns 21 à remainder interest becomes
possessory
O à "to A for life, then to B and her heirs, but if Colin is elected president, to
C and his heirs" ∙A – life estate ∙B – vested remainder subject divestment (C’s
interest will cut this interest short) ∙C – executory interest
O à "to my son A for life, then to A’s children and their heirs, and if any child
dies in the lifetime of A, her share shall go to her issue surviving A" A – life
estate B & C – vested remainder subject to open and subject to total
divestment (if dies before A) ∙A’s children’s heirs – nothing (word of
limitation) ∙Unborn children of A – executory interest ∙Surviving issue of
predeceasing children of A – executory interest ∙(interest in third party and
divests a divested interest)
O à "to my daughter Audrey when she marries" ∙Audrey – springing
executory interest ∙O – FS subject to executory interest
O à "to A for life, then to B for life, remainder to C and her heirs" ∙A – life
estate ∙B – remainder life estate ∙C – vested remainder
O à "to A for life, remainder to B and her heirs, but if B graduates from
Harvard, the title shall revert" B is 15 and in HS ∙A – life estate ∙B- vested
remainder subject to divestment ∙O – reversion subject to divestment ∙If A dies
the B takes possession FSS divestment
O – inter vivos à "to my first child to reach age 30" O has 2 children R & D
∙O – FSS to executory interest ∙First child – executory interest Invalid under
RAP – O may have child born after the grant
O à "to A for life, then to B and his heirs, but if A ever farms the land, then to
C and his heirs" ∙A – life estate ∙B – vested reminder subject to divestment ∙C
–shifting executory interest
Validating life – person to prove that the contingent interest will vest within the life of or
at the death of the person or within 21 years after the death of the person (there has to be
the possibility that a person will reach that age in the validating life’s lifetime) -must test
interest against everyone alive at time of creation of grant ∙The validity of interests under
the rule is determined at the time interests are created àMust vest w/in lives in being plus
21 years à if at all
If the contingent interest is created by will, the life in being must be a person alive at the
testator’s death. If the contingent interest is created by an irrevocable inter vivos transfer,
the life in being must be a person alive at the time of the transfer. In case of a revocable
transfer, the rule against perps does not apply until the transfer becomes irrevocable, and
hence the life in being must be a person alive when the power of revocation ceases.
"What might happen" – standing from time grant is made and speculating into future. If
there is any chance, as speculate into the future, that the interest might not vest w/in
person’s life, then is void.
TO FIND IF GRANT IS VALID: 1. IDENTIFY INTERESTS
CREATED 2. CHECK TO SEE IF RULE APPLIES TO EACH
INTEREST (contingent/executory) Does not apply to vested interests 3.
APPLY RULE ( if contingency is going to happen, will it necessarily
happen within the life of someone at the time the grant was made plus
21 years)
Examples: O à "to my granddaughter Rachel for life, then to Colin" ∙Rachel – life estate
(can live to 97) ∙Rule does not apply since Colin has a vested interest
O à "to A for life, then to B if B reaches 30" ∙A – life estate ∙B – contingent remainder ∙O
– implied reversion ∙Validating life – Ben – if happens will happen in his lifetime
O à "to Dade county as long as it is used for school purposes, but if the
property ceases to be used for school purposes, to Colin" ∙Dade – FS subject
to executory interest ∙Colin – executory interest
Event won’t necessarily happen in Colin’s lifetime, so invalid under Rule
O à "to Dade as long as it is used for school purposes, but if Colin is elected
as President, to Colin" ∙Dade – FS subject to executory interest ∙Colin –
executory interest If contingency happened, it would happen within time of
someone in grant (Colin) – grant is valid now
O – inter vivos conveyance à "to my first child to reach 30" Has 3 children at time grant
was delivered -Hughie – 5 years -Dewie – 3 years -Louie – 1 year
• first child to reach 30 – executory interest (contingent –
must be born a child of O and first child to reach 30)
The grant is not valid because the person who may make it valid may not be
born yet. If there is any possibility that the contingency may be
met by someone who is not alive at the time of the grant, the
grant is not valid under the rule
O à "to my daughter D for life, then to D’s children and their heirs, and if any
child fails to survive D, that child’s share shall go to his issue who reach 21"
D is alive with 2 kids, E and F. E is first to die – has 1 child E2 and a husband
EH who has devised to. F dies intestate leaving widow FH property(no
children). D has another child G and dies. E2 –18, G – 12)
• D – life estate
• D’s children – (E,F) – vested remainder subject to partial
(more children being born) and total divestment (survival)
• Unborn children – executory interest
• G – vested remainder subject to divestment
• D issues – executory interest (contingency is children have
to die w/in D’s life before 21)
• No reversion
RAP – section after "and their heirs", language lends to an interest that could
vest indefinitely, so section is void
***When a grant is not designated by name but by relationship or status, there could be a
perpetuity problem working**** Questions to use while studying: 1. Change facts to a
devise -the grant is valid because the contingencies can happen 2. O –inter vivos à "to
my first child to reach 21" -the grant is valid because O is the measuring life 3. O –inter
vivosà "to the first of my three children – H, D, L, to reach 30" -grant is valid – names
are mentioned (living children)
Examples: O à "A for life, then to A’s children for their lives, then to B if B is then alive,
and if B is not then alive, to B’s heirs" A and B are alive at time of grant and no children
are alive at the time. A- life estate A’s children – contingent remainder in life estate B –
contingent remainder B’s heirs – contingent remainder O – implied reversion
Is this valid under the Rule? ∙implied reversion in O – vested so doesn’t apply ∙LE to A’s
children – contingency: must be born to A and survive A ∙The grant is valid – will know
who gets possession when ascertained upon death of A (validating life). If the
contingency is satisfied, it will be done at the end of A’s life. ∙B has to survive A’s
children. If contingency is satisfied at time of grant, B is the measuring life
(survivorship). If B were to die within A’s children’s life, interest has failed – valid under
the Rule ∙B’s heirs – contingency that B dies before A’s children (B validating life) – then
will know heirs interest and will become vested – valid under the Rule
IV. Future Interests: future right of possession
- The ability to convert present interest but not present possession
- It is a presently existing property interest and is protected by the courts as such
A. Future Interests in Transferor
1. Reversion: the interest left in an owner when he carves out of his estate a lesser estate
and does not provide who is to take the property when the lesser estate expires
Reversion is an estate retained by the grantor when he coveys a life estate to a grantee.
- Transferable
- All reversions are retained interests which remain vested in the transferor
• comes from the conveyance of a lesser estate (life estate/fee simple/contingent
remainder that does not vest)
2. Possibility of Reverter: the interest retained by the grantor of a determinable estate or a
fee simple determinable. retained by grantor when a fee simple determinable is granted
from a fee simple absolute. The property will revert back to the grantor by law if the
condition is broken.
• After stated event/by law
- Not alienable or devisable/inheritable, however (traditional common law view) (today,
in most states it is transferable inter vivos)
- If the grantor had a possibility of reverter, he/his heirs become the owner of property by
operation of law as soon as the condition is broken
- The value of a possibility of reverter is the full market value of the land discounted by
the probability that the reverter will never become possessory
3. Right of Entry (aka power of termination): the future interest retained by a transferor to
divest a fee simple subject to a condition subsequent
• Created in the grantor subject to a condition subsequent/not automatically
reverted/they has the option of entering.
- May be expressly retained or implied
- Is neither alienable of devisable, but is inheritable (traditional common law view)
(today, in most states it is transferable inter vivos)
- If grantor had a right of reentry for a condition broken, he/his heirs become the owner of
the property only after they act to retake the property
B. Future Interests in Transferee
- Remainders or executory interests cannot be retained by transferor
- Interests created only in transferees
- Once created, a remainder or executory interest can be transferred back to the grantor
1. Remainders: a future interest that is capable of becoming possessory at the termination
of the prior estate
a. a valid inter vivos gift of a remainder can be made not only of real property but of such
intangibles such as stocks and bonds.
• Future interest created in a third person which is intended to take effect after the
natural termination of the preceding estate
• Remainder must be in favor of the transferee (not the grantor)
• The remainder must be created at the same time and in the same
instrument as the prior or preceding estate that supports it.
• The preceding estate must be of a lesser interest that the original interest
of the grantor
• At common law, the prior estate must have either been a fee tail or life
estate/under modern rules, it can be an estate in years.
• Vested remainder: created in an ascertained or existing person that
is not subject to any condition precedent except the natural
termination of any preceding estate.
• Contingent remainder:
b. Vested remainder: given to a born and defined/ascertained person/not subject to a
condition precedent (other than the natural termination of the preceding estate)
• Remainders absolutely vested: no words of condition/not
subject to divestment
• Remainders subject to partial divested: (subject to open)
when the remaindermen is in existence or ascertained but
the amount of her estate is subject to being diminished in
favor of other members of a class
• Ex: common class gifts/”to B’s children”
• Remainders subject to complete divestment
• When remainderman is in existence and ascertained
is not subject to a condition precedent but the right
to possession at the expiration of the prior interest is
subject to termination based on an executory
interest/power of appointment/right of entry.
- Indefeasibly vested: the remainder is certain of becoming possessory in the future and
cannot be divested
- The transferor has decided at the outset who is to take the property after the termination
of a life estate
- A vested remainder can be subject to a condition subsequent.
* A remainder is vested subject to open or vested subject to partial divestment if later
born children are entitled to share in the gift.
* If the 1st future interest created is a vested remainder in fee simple, the 2nd future
interest in a transferee will be a divesting executory interest.
* Vested remainders have always been transferable during life as well as death (whereas
contingent remainders are not always transferable in life)
c. Contingent remainder: is given to an unascertained person/is made contingent upon
some event occurring other than the natural termination of the preceding estate
- Permits the transferor to let future events dictate who gets the property after the
termination of a life estate
- In questioning whether something is vested or contingent, cts. prefer to hold that it is
vested
- If the conditional element is incorporated into the description of, or into the gift, the
remainder is contingent
- If the future interest created is a contingent remainder in fee simple, the 2nd future
interest in a transferee will also be a contingent remainder
- Contingent remainders are subject to the rule against Perpetuities whereas vested
remainders are not.
- The owner of a contingent remainder may not have standing to sue for waste, partition,
or for trust accounting, whereas a vested remainder has such standing.
- Contingent interests made land unmarketable, whereas vested interest did not.
- A remainder in land is destroyed if it does not vest at or before the termination of the
preceding freehold estate (furthered alienability)
• A contingent remainder cannot follow a fee simple interest of any kind.
2. Executory Interests: a future interest in a transferee that can take effect only by
divesting another interest.
- Executory interests are future interests that are not remainders
* If it divests or cuts short some interest in another transferee (shifting executory interest)
* If it divests the transferor in the future (springing executory interest)
a. 2 Prohibitory Rules: No Shifting Interests/no springing interests
b. The Rise of the Use
c. The Abolition of Uses; the Statute of Uses: if any person or persons were seized to the
use of any other person or persons, the legal estate would be taken away from the Feoffee
to uses and given to the ?cestui que use?
d. Modern executory interest
* Today, springing and shifting future interests can be created by deed/trust/will (no
special form of conveyance has to be employed)
* The statute of uses ultimately permitted the creation of a new estate: a fee simple
subject to an executory limitation.
* Fee Simple Subject to an Executory limitation: a fee simple, upon the happening of a
stated event, is automatically divested by an executory interest in a transferee. (can be
created either in possession or in remainder)
* Executory interests are ordinarily treated as contingent interests, because they are
subject to a condition precedent and do not vest until they become possessory.
* A possibility of reverter or a right of entry can be created only in a transferor; an
executory interest can be created only in a transferee.
* If transferor wants to create a future interest in a transferee after a defeasable fee, it will
necessarily be an executory interest.
Moot Client Problem 2:
∙FSCS- Used exclusively for NOOS activities
∙FSPOR- used exclusively for NOOS activities
∙”this deed shall be ineffective” –restraint on alienation
*Restraint on alienation will not trump the FSD/FSDPOR b/c want 2
encourage donative gifts/grantor’s intent extremely high on the totem pole,
so will probably find FSDPOR or FSCS
-If FSD 97- breached now 05- automatic SOL begins 2 run as soon as the
Condition is breached—Elk Lodge gave clear notice as tenant b/c stopped
paying rent
-IF FSCS 97 breached & now 05, sol ONLY WHEN GRANTOR
ATTEMPTS 2 RE-ENETER DOES sol RUN OUT—So Elks w/ no rights
**Equity Courts LATCHES-Jimmy should not have slept on his rights, so
waiting so long may rule fro the ELKS
∙Most jurisdictions FSD & FSDPOR transferred by will, intestate, or inter
vivos
∙Adverse Possessor has burden of proof
TERMINONLOGY IS VITAL
∙Possibility of reverterà FSD
NO possibility of reversion
∙Vested in possession & Interest—Fee simple holder or L/E
∙Vested in interest, future enjoyment—reamiander interest; major difference
in vested in possession v. vested in enjoyment
Ex: Oà A 4 life, then to B 4 life, then to C
-If B dies before A, then reverts back to O, original grantor (B’s
interest is totally annihilated)
-B can’t transfer anything via will b/c only had a L/E—will effective
after death, transfer 0/ NOTHING
∙In FL, fee tail O conveys “To A for life, then to B & the heirs of her
body” = L/E 2 B, then fee simple 2 B’s issue/heirs
**Reversion rights are never contingent**-reversion may be
aNNIHILATED b/c O had all the rights 2 begin w/, the grantor creates the
contingencies as the creator, thus never contingent reversions;
Reversions are Transferable by:
Will
Inter vivos by deed
Intestacy
Ex: “To A for 20 years”
-Term of years estate, NOT a L/E; leasehold estate
*Executory interest- cut short another’s interest
A. 2 Types of Executory Interests
1. Springing-involves grantor; from the original creator
2. Shifting- 3rd person to 3rd person
B. Created by statute of Uses –putting things in a trust
Remainders
Vested Remainder- 99% of cases today
Vested indefeasibly (totally vested)
Vested subject 2 divestment
Contingent Remainder (1%)
a) In practice, contingent remainder=old, dated old-fashioned way;
instead ct will opt 4 a vested remainder
O à "to A for life, then to B and his heirs if B survives A, and if B does not
survive A to C an his heirs”
-Alternative contingent remainders in B and C, if the remainder in B
vests, the remainder in C cannot, and voice versa -“If B survives”-
dependent clause
O à "to A for life, then to B and his heirs, but if B does not survive A to C
and his heirs -B has a vested remainder in fee simple subject 2 divestment -C
has a shifting executory interest which can become possessory only by
divesting B’s remainder
* History: feudal treason was predicate for vested & contingent remainders
—feudal treason by a L/E would cause forfeiture of the life estate
∙99% of lawyers use a trust and make it a vested remainder subject 2
divestment
∙RAP-common law attempt to squelch the dead hand of the past—inc.
contingent remainders * vested remainders vested indefeasibly
Key Question: Is it certain 2 become possessory? If
yes, how would You classify it (vested
indefeasibly=100% total remainder, interest isVested); or
if not certain 2 become vested either
Way to do Analysis: Separate into 2 Categories
A.
Vested subject 2 divestment
Contingent remainder-must have condition precedent
BOTH ARE UNCERTAIN OF POSSESSION
∙The headaches, look for conditions in the document
VS: Vested indefeasibly- (home safe) = CERTAIN OF
POSSESSION
∙Do the separation 1st, then continue w/ anaylisis
 Note: Some legislatutes & some courts group vested indefeasibly &
vested subject 2 divestement the same—THIS IS WRONG! The wrong
way 2 go b/c vested subject to divestemnent is lower on the food chain
and more like a ocntingent remainder
Ex: O à "to A 7 in the event of A’s death, to B & her heirs”
Going to happed (A is going to die)
automatic, so ignore & a vested
remainder
∙Also, cts prefer VESTED! –Provides certainty
O à“to A & B 4 their joint lives, then to the survivor in fee simple
∙Contingent remainder b/c both could die @ the same time &
don’t know who the survivor is until 1 dies
∙Uniform Simultaneous Death Act- 2 ways 2 deal w/ issue
1. Take forensic evidence & try to determine who actually died
before whom—unlikely –OR-
2. **1/2 of the interest treated as if A survived B, and the other ½
treated as if B survived A; 50% 2 A’s heirs & 50% 2 B’s heirs
& if can’t find any heirs, then to the state, doctrine of escheat
O à“to A for life, then to A’s children who shall reach 21.” A’s oldest
child, B, is 17.
∙B/C a class gift, subject 2 partial divestment
∙Close class gift subject 2 open divestment (open b/c w/i
the class of children, the # reaching 21 can eventually expand
2 involve all children)-ownership interest is divided as each
member of class joins

Hypos:
1. O to A for life
A: Life Estate
O: Reversion
Then A to B
A: Nothing
B: Life estate pur autre vie
O: Reversion

2. In 1965, O conveyed “to A and her heirs so long as the land is used for residential purposes”. When O
conveyed Greenacre to A in 1965, the surrounding area was predominantly rural. Now it is exclusively
commercial. A wants to sell Greenacre to X.
A. What interest in Greenacre did O transfer to A
B. What interest can A transfer to X?
C. What will happen if X goes ahead with his plan to develop Greenacre?
-A could transfer Greenacre To X; but since A had only a fee simple determinable, that’s all A could transfer
to X. After the transfer from A to X, X would have a fee simple determinable, subject to the condition
imposed by O.

- if X developed Greenacre, O’s condition would b breached. X’s title would terminate automatically, and
title to Greenacre would automatically revert to O in fee simple absolute.
- In the majority of jurisdictions, including NC, since O failed to EXPRESSLY reserve a possibility of
reverter, the courts will not imply one.
-A received a fee simple absolute. A would be free to transfer Greenacre to X in fee simple absolute .
-Since X would then own Greenacre in fee simple absolute, he would be free to develop the property
however he wished.

Fee simple on condition subsequent

- to create a fee simple on condition subsequent, the transferring instrument must contain language of
condition, such as:
- but if
- provided that
- on condition that
- to make the transferor’s intent clear, you should include language that specifically provides for a right of
entry in the transferor if the transferee breaches the condition.
*remember courts are split on what happens if the transferor fails to include language expressly reserving a
right of entry.*
- Fee simple on condition subsequent is potentially infinite in duration, for it to terminate two things must
happen:
1. The transferee must breach the condition, and
2. The transferor must exercise his right of entry
-it does not terminate automatically if and when the condition is breached. The transferor must EXERCISE
his right of entry in order to terminate the transferee’s fee simple on condition subsequent.
- when the condition is breached, the transferee’s estate terminates automatically and title in fee simple
automatically reverts to the transferor or vests in the transferee holding an executory interest

Hypo 3:
O conveyed “to A and her heirs on the condition that the premises are not used for commercial purposes,
and if the premises are ever used for such purposes, the grantor or his heirs shall have the right to re-enter
and take possession”
- O could do that by filing an ejectment or quiet title action
A: fee simple on condition subsequent
O: Right of entry

Hypo 4: Fee simple determinable

O conveyed Greenacre “to A and her heirs so long as the property is used for residential purposes only; and
if the property is ever used for commercial purposes, title in A shall immediately terminate and revest in the
grantor, his heirs, and assigns.”
A: Fee simple determinable
O: Possibility of reverter
After the transfer from O, A has the present interest, but O did not transfer his entire fee simple absolute to
A. O retained a future interest following A’s fee simple determinable.

Hypo 5
O conveyed Greenacre, “to A and her heirs so long as the property is used for residential purposes only; and
if the property is ever used for commercial purposes, then to B and his heirs.”
O: Nothing because he transferred the present interest and his future interest as well
A: Fee simple determinable
B: executory interest

*difference between possibility of reverter and executory interest*

Possibility of Reverter: future interest following a fee simple determinable if it is retained by the
transferor
Executory interest: future interest following a fee simple determinable if it is transferred to another
transferee
MIXED LANGUAGE
Hypo: O conveyed “to A and her heirs so long as the premises are used for residential purposes; and if they
are not so used, the grantor shall have the right to re-enter and take possession.”
Problem: there is durational language and grantor attempted to retain a right of entry indicating a
fee simple on condition subsequent. Most courts would interpret this as a fee simple on condition
Subsequent.

FISSEL (fee simple subject to executory limitation) Similar to fee simple on condition subsequent BUT
(1) the future interest following a fissel is ALWAYS in a transferee, rather than in the transferor, and
(2) If the condition attached to a fissel is breached, the fissel TERMINATES AUTOMATICALLY
- Title in the first transferee terminates and automatically vests in the transferee who holds the executory
interest.

Hypo: To A and her heirs on the condition that the premises are not used for commercial purposes; and if
they are ever so used, to B
A: fee simple subject to executory limitation
B: executory interest (shifting)

*difference between fee simple on condition subsequent and the fee simple subject to executory
limitation*
1. The future interest following a fissel is in a transferee, and is called an executory interest
The future interest following a fee simple on condition subsequent is in the transferor, and is called a
right of entry.
2. As soon as the condition attached to a fissel is breached, the estate terminates automatically, and
fee simple absolute title vests in whoever owns the executory interest
When the condition attached to a fee simple subject to condition subsequent is breached, title
remains the same unless and until the transferor exercises his right of entry.