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barbri_outline_-_mbe-ny_(2005)_-_real_property - REAL...

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Real Property 1 R EAL P ROPERTY (33 Q S ) I. Estates in Land A. Present Estates Devisable : pass by will Descendible: pass by the statutes of intestacy (without a will) Alienable : transferable inter vivos (during holders lifetime) Defeasible : capable of being annulled or avoided Estate Language to create Duration Transferability Future Interest (Grantor) Future Interest (3 rd Party) Fee Simple Absolute “to A” OR “to A & his heirs” Infinite DDA (Devisable, Descendible and Alienable) NONE NONE Fee Tail “to A and the heirs of his body” Lasts as long as lineal blood descendants Automatically to lineal descendents Reversion Remainder Fee Simple Determinable “to A so long as” / “to A during” “to A while” / “to A until” As long as condition met DDA but subject to the condition Possibility of Reverter - Fee Simple Subject to Condition Subsequent “to A, but if X event happens, granter reserves that right to re-enter and retake” Until happening of X event & reentry by grantor Same as above Right of Entry - Fee Simple Subject to Executory Limitation “to A, but if X event occurs, then to B” As long as condition met Same as above - Executory Interest “to A, for life” OR, “to A for the life of B” Reversion NONE “to A for life, then to B” Until the end of the measuring life - Remainder Life Estate (may be defeasible) “to A for life, but if X event happens, to B” Until the end of the measuring life OR until happening of named event DDA If measuring life still alive Reversion Executory Interest 1. Fee Simple Absolute a. A living person has NO heirs (only prospective heirs). 2. Fee Tail a. Past – pass directly to lineal blood descendants b. Today – would create fee simple absolute (because abolished in US & NY) 3. Defeasible Fees a. Fee simple estates (i.e., of uncertain or potentially infinite duration) that can be terminated upon the happening of a stated event b. Important rules of construction: (i) Need duration language – words of mere desire, hope, or intention are insufficient HYPOS: In each of these instances, A is vested with a fee simple absolute, and NOT a defeasible fee: “To A for the purpose of constructing a day care center”; “To A with the hope that he becomes a lawyer”; “To A with the expectation that the premises will be used as a Blockbuster video store.” (ii) Absolute restraints on alienation are void restraint need to be reasonable, time limited purpose HYPO: Absolute restraint on alienation (thus void): O conveys: “To A so long as she never attempts to sell.” A has: Fee Simple Absolute O has: Nothing COUNTER-HYPO: O conveys: “To A so long as she does not attempt to sell until the year 2008, when clouds on the title will be resolved.” (Note: Here the restraint is linked to a reasonable, time-limited purpose.) A has: Fee Simple Determinable O has: Possibility of Reverter c. Types (i) Fee Simple Determinable (In NY, it is called a Fee on Limitation ) – automatic reverter (a) Must use clear durational language (e.g. To A so long as, during, while, until) (b)
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