Freehold Estates in Land

Type Words to Create To Know Future Interest in Future Interest in Third

Grantor Person
Fee Simple Absolute to A and his heir The best, what one normally None None
Under modern law to A may thinks of as to own
be enough devisable, defeasible, freely
alienable. No limitation in
the instrument of
conveyance. Sum of the
quantities of all existing
estates in a piece of land=fee
simple absolute
Fee Simple Determinable so long as While During Upon condition occurring Possibility of Reverter Executory Interests
To A until..." next estate interrupts
"To A while..." automatically. AP possible (Not alienable, not
(Language providing that upon concern. Subject to rules devisable, IS
the happening of a stated event, against restraint on descendible)
the land is to revert to the alienationunreasonable
grantor.) restraints invalid.

Fee Simple subject to "To A, but if X event happens, Upon condition occurring Right of (re) entry for Executory Interests
condition subsequent grantor reserves the right next estate may take estate, condition broken / power
to reenter and retake." does not automatically of termination
provided that on condition interrupt. Doctrine of Laches
(Grantor must carve out right of possible if next estate waits (Not alienable, not
reentry). too long to reclaim. devisable, IS
descendible)

Fee Tail and the heirs of his Body Lasts only as long as there Reversion Remainders
are lineal blood descendants
of grantee

Fee Simple Subject to To A, but if X event occurs, pretty much a FSSCS with a None Executory Interests
Executory Limitation (FSSEI) then to B. shifting EI. If condition
broken, it does not revert
back to O, the estate is
automatically forfeited in a
3rd party.
Life Estate For Life Measured by life of Reversion Remainders
to A until he dies transferee or by some other
To A for the life of B. life
(pur autre vie).
 Summary of Transferability
Present Interests Alienable Devisable Inheritable
FSA Yes Yes Yes
FT Limited No Modified
LE Yes No No
FSD Yes Yes Yes
FSCS Yes Yes Yes
FSEL Yes Yes Yes
Future Interests
Reversion Yes Yes Yes
Possibility of Reverter No No Yes
Right of Entry No No Yes
Vested Remainder Yes Yes Yes
Contingent Remainder Today yes Yes Yes
Executory Interest Today yes Yes Yes

Type of Future Interest Type of Estate it Comes Characteristics of

from Future Interest
Reversion FT/LE Alienable, descendible,
devisable
Possibility of Reverter FSD Not alienable, not
devisable, IS descendible
Right of Entry FSCS Not alienable, not
devisable, IS descendible
 Reversion in O
Two Part Test:
1.Unascertained
Persons
Contingent 2. Expressed Unmet
Life Estate Condition Precedent

Remainder in
a Third Party
Types
1. Indefeasibly Vested
Vested 2. Vested Subject to
Complete Divestment
3. Vested Subject to
Open

Destructibility rule
This rule applies only to legal contingent remainders in land. It does not apply to
equitable interests, to interests in trust, nor to personal property. It is a rule of law, not a
rule designed to carry out the grantors intent.
Rule in Shelleys Case (Rule Against Remainders in Grantee's heir's)
Prevents remainders in grantees heirs by creating a FSA in grantor and destroying the
remainder given to heirs
1. If the grantor conveys a life estate to A and in the same instrument purports to create a
remainder in As heirs, the remainder is a FSA in A
Doctrine of Worthier Title (Rule Forbidding EI/Remainders to Grantor's Heirs)
A conveyance of a remainder or executory interest to the heirs of the grantor was void,
and the grantor retained the reversion.
1. O to A for life, remainder to Os heirs.
a. So when it applies, the conveyance basically reads:
i. O to A for life.
ii. So when O dies, the reversion will pass to Os heirs and the inheritance and
estate taxes will be paid
 Future Interests
Type How Created Alienable Descendible and Subject to Divests Prior Estate?
Inter Vivos? Devisable? Defeasance?

By operation of law ALWAYS ALWAYS YES, Following CR NEVER DIVESTS

Reversion ALIENABLE DESCENDIBLE and by EI Springing PRIOR ESTATE
-Fee Tail ALWAYS VESTED AND Use.
-Life Estate DEVISABLE.
ALWAYS IN FAVOR
OF GRANTOR

By implication of law TODAY IT IS NO.

Possibility of ALIENABLE VARIES NEVER DIVESTS
Reverter ALWAYS PRIOR ESTATE
--FSD CONTINGENT ALWAYS
DESCENDIBLE
ALWAYS IN FAVOR
OF GRANTOR

By clear, express words Today it is alienable in NO

Right of Re Entry in deed or will some states when VARIES ALWAYS DIVEST
--FSSCS connected with a PRIOR ESTATE
ALWASYS reversion ALWAYS
CONTINGENT DESCENDIBLE

ALWAYS IN FAVOR
OF GRANTOR

Vested By words of deed or will ALWAYS ALWAYS MAY BE SUBJECT NEVER DIVEST PRIOR
Remainder ALIENABLE DESCENDIBLE TO DEFEANSE ESTATE
--Fee Tail ALWAYS VESTED AND EI PARTIAL OR
--LE DEVISABLE TOTAL SHIFTING
--Leasehold ALWAYS IN FAVOR USE.
OF GRANTEE
Contingent
Remainder By words of deed or will NOT ALIENABLE DESCENDIBLE NO. NEVER DIVEST PRIOR
--Fee Tail AT COMMON LAW; AND ESTATE
--LE ALWAYS DEVISABLE
--Leasehold CONTINGENT TODAY IT IS
ALIENABLE
ALWAYS IN FAVOR
OF GRANTEE
Executory By words of deed or will
Interests TODAY ALIENABLE DESCENDIBLE NO.
--FSSCS ALWAYS AND ALWAYS DIVEST
--FSD CONTINGENT DEVISABLE PRIOR ESTATE
--FSSEI
ALWAYS IN FAVOR
OF GRANTEE
 CONCURRENT OWNERSHIP
Type of Tenancy Definition Creation Termination
Each T has a distinct, proportionate, To A and B May be terminated by partition
Tenancy in Common undivided interest in the property
(TIC) - There is no right of survivorship To A and B as joint tenants
- Interests are descendible and can be
conveyed by will/deed - Only unity required is possession

Each tenant has an undivided interest in To A and B as joint tenants with the right of Right of survivorship may be
Joint Tenancy (JTRS) the whole estate, and the surviving co- survivorship severed by:
tenant has a right to the whole estate * Without survivorship language, it may be a. A conveyance by one JT
construed as TIC depending on jurisdiction b. Agreement of JTs
(FL) c. Murder of one co-tenant
by another
Four Unities (JTs must take) d. Simultaneous deaths of
i. Time co-tenants
ii. Title (same instrument or joint adverse * Converts the estate to TIC
possession)
iii. Interest (equal undivided shares) JT can be terminated by partition
iv. Possession (right to possession of the (voluntary or involuntary)
whole)

- Husband/wife and wife/husband To H and W Right of survivorship may be

Tenancy by the Entirety - Undivided interest in the whole estate To H and H severed by:
- Right of survivorship To W and W - Death
- Divorce
Some states presume a TbE in an joint - Mutual agreement
conveyance to H and W where the four unities - Execution by joint creditor
are present
Cannot be terminated by
involuntary partition
 Leasehold Estates in Land
Type Words to Create To Know Future Interest in Grantor Future Interest in Third
Person
for__years Lease for a fixed period of time Reversion Remainders
Tenancy for years Executory interests
No notice is needed to terminate
at will Reversion Remainders
No fixed duration Executory interests
Tenancy at Will
Death terminates the tenancy at will
automatically

Can be terminated at any time by either

party, usually reasonable notice is
required.

Quite open ended

e.g. month to Continues in successive intervals Reversion Remainders

Periodic Tenancy month Executory interests
Has a fixed duration that auto renews

Notice is required to terminate

-proper=notice on 1st day of what is to be
last period
-termination effective on 1st day of last
period

Implied Warranties
Type Commercial/ Contract Around? Breach lead to Have to vacate
Residential Constructive to prove
Eviction? violation?
Residential Only No..but under VA Code 13.2 Part Yes No
Habitability D
-can delegate responsibilities under
good faith
Both Yes Yes No
Quiet Enjoyment

Both No Yes No
Right of Possession
Both Always read the lease. Yes No
Authority to Lease
Type Definition Duration Waivable?
Covenant of Power to Demise Power to Convey Entire Lease Technically Yes, but
really no
Covenant of Quiet Enjoyment Neither the landlord nor anyone claiming superior title will Entire lease Can contract around
substantially interfere with the tenants possession
Inception Not really for our
Right of Possession American: LL only obligated to provide legal possession. No duty purposes.
to provide actual possession.

English: LL Obligated to provide legal and physical possession

Constructive Eviction Wrongful failure to perform an obligation. Substantial interference. Entire Lease Probably no
Landlord must be given the chance to cure. Tenant may then vacate
and must do so in a reasonable amount of time. If constructively
evicted then QE breachedif tenant doesnt want to vacate can still
claim breach of QE
Implied Warranty of Unsafe or unsanitary conditions may or may not be housing code Entire Lease No
Habitability violations (minor violations dont count) bare living requirements
No heat/ hot water , raw sewage in basement all examples of
(Residential Only) breach. Cracks, minor water leaks, need for paint dont count
(Wade v Jobe) Must provide reasonable time to remedy
Entire lease Yes
Implied Warranty of Applies to commercial leases. Landlord will maintain the premises
Suitability in a manner suitable for the tenants intended commercial purpose

Breach of bolded can lead to CE, Do not have to vacate to prove violation.

Always start with the statute, NOT common law.

 Easements, Covenants, Equitable Servitudes: A Review

EQUITABLE SERVITUDE
EASEMENT REAL COVENANT

FORM AND Affirmative In form, a contract, not a real A product of the British courts of
METHOD OF Prescription property interest. Commonly equity, historically recognized by
CREATION Implication created in a deed but may be the courts whenever equity so
Necessity created in another document, required.
Grant provided privity of estate exists
between the promisor and Today, most commonly created
Negative promisee (horizontal privity)for by express grant, but may be
Express Grant example, a lease, or a contract created in any binding contract
In form, a property interest, protected between cotenants. Not generally provided that the circumstances
under the just compensation clause of capable of creation by are sufficient to give adequate
the federal constitution. implication, necessity or notice to people later alleged to
prescription, or adverse be bound.
possession.

HORIZONTAL In almost all cases Horizontal NO

PRIVITY REQUIRED NO privity is required before the
FOR burden will run.
ASSIGNABILITY
Horizontal Privity NOT required
for benefit to run

VERTICAL PRIVITY NO Yes, although the requirement of NO

REQUIRED FOR strict vertical privity
ASSIGNABILITY (succession to the same estate as
the predecessor) has been
weakened.

ASSIGNABILITY OF In modern American law commercial Yes, although it is sometimes Interests in gross are generally
INTERESTS IN easements in gross are assignable. stated that the burden will not run assignable. Once again, it is
GROSS There is some doubt about the if the benefit is in gross. sometimes said that the burden
(Personal interests) assignability of noncommercial will not run if the benefit is in
easements in gross. gross, but there are many
exceptions to this rule.

TOUCH AND NO Yes. Neither the benefit nor the Yes, although many cases state
CONCERN burden will run if the covenant at the requirement in a different
REQUIREMENT issue does not touch and concern wayfor example, it must be a
the land. promise affecting the use of
real property, or it must be a
promise to do or refrain from
doing something upon the land.

NOTICE Yes, if the owner of the servient estate Yes. Notice is required for the Yes. Notice is required for the
REQUIREMENT is to be bound. The notice may be burden to run to successors. burden to bind successors. The
actual, record, or inquiry notice (as is Notice may be actual or record. In notice may be actual, record, or
the case with implied easements). some cases, notice is not required inquiry. In some cases, notice is
to burden a successor who is a not required to burden a suc-
donee. cessor who is a donee.
 Real Covenant Equitable Servitude
Privity
YES NO PRIVITY
Remedy Enforced by awarding of monetary Enforced by Injunctive Relief
damages

Real Covenant Equitable Servitude (ES)

Burden to Run (WPINT) Successors bound if: (WITN(ES)
o Writing o Writing
o Privity o Intent
Horizontal privity o Touch and Concern
Vertical privity(strict) o Notice
o Intent for successors to be bound
o Notice
o Touch and Concern

Benefit to Run (WITV)

o Writing
o Intent
o Touch and Concern
o Relaxed Vertical Privity
 Easements, Covenants, Equitable Servitudes: A Review

FORMS OF METHOD OF CREATION PARTIES BOUND REMEDY

SERVITUDES

P-I-N-G Easement Appurtenant Injunction

-transferred automatically with the
Prescription (COAH) dominant estate (or damages these
days)
Implication (implied from prior use; at time Easement in Gross
land is severed, a use of one part existed from -ONLY assignable for commercial purposes
AFFIRMATIVE which it can be inferred that an easement
EASEMENTS permitting its continuation was intended
(UBAN))

Necessity (division of a tract deprives one

lot of access out (USDS))

Grant (writing signed by the grantor)

NEGATIVE
In almost all cases Horizontal privity is Injunction
EASEMENTS
Can be creating ONLY by a writing signed by required before the burden will run.
the grantor (or damages these
(L-A-S-S: Light,
Horizontal Privity NOT required for benefit days)
Air, Support,
to run
Streamwater)

REAL WRITING signed by grantor Burden of covenant (being subject to it, Damages
COVENANTS bound to it) will run to successor if WPINT:
Writing
Privity (horizontal & vertical)
Intent
Notice
Touch and Concern

Benefit of covenant (ability to enforce the

covenant) will run to successor if WITV:
Writing
Intent
Touch and Concern
Vertical Privity (Relaxed)

EQUITABLE WRITING signed by grantor (unless implied Successors bound if WITNes: Injunction
SERVITUDES by general scheme doctrine) Writing
Intent
Touch and Concern
Notice

**privity not required

IMPLIED Injunction
RECIPROCAL At start of subdividing, grantor had (i) Where common scheme exists, subsequent
NEGATIVE common plan (scheme); and (ii) unrestricted purchasers with notice are bound.
SERVITUDE lot holders had notice.
(Minority rule will not bind subsequent
grantees unless their lots are expressly
restricted in writing)