Should anyone be contemplating spending part of their summer break honing their skills at identifying estates in land and future interests, I offer the question-based system below which can be used to simplify the process of identifying estates in land and future interests.\u00a0 The questions can also be easily diagrammed as a flow chart for even easier use.<\/p>\n
One begins by identifying an interest that appears to be either a future interest or an estate in land.<\/p>\n
QUESTION 1.\u00a0 Does the interest holder have a right to present possession?\u00a0 If yes, then the interest is an estate, so proceed to Question 2.\u00a0 If no, then the interest is a future interest, so proceed to Question 7.<\/p>\n
QUESTION 2.\u00a0 Does the individual with the right of present possession have the right to control the property and the right to continuous possession until it expires by its own terms?\u00a0 If the answer is no, then the individual is likely either a licensee (like a guest in a hotel room) and thus has no estate at all, or the holder of a tenancy at will, a periodic tenancy, or a tenancy at sufferance which are non-freehold estates.\u00a0 If the answer is yes, then the interest is a freehold estate, so proceed to Question 3.<\/p>\n
QUESTION 3.\u00a0 Will the right of present possession automatically terminate at some point in the future based upon the passage of time or the death of an individual?\u00a0 If yes, then the estate is a \u201cparticular\u201d estate (Question 4); if no, then it is a form of Fee Simple estate (Question 5).<\/p>\n
QUESTION 4.\u00a0 If the estate will automatically terminate in the future, then it is a life estate<\/span> if the termination occurs when an individual dies.\u00a0 (If the measuring life is that of someone other than the estate holder, the estate is a life estate pur autre vie<\/span>.)\u00a0 If the termination occurs after the passage of a specified period of time (as in one day or 99 years), it is an estate for years<\/span>.\u00a0 If the termination point is the end of a line of bodily descent, then the estate is one of fee tail<\/span>.<\/p>\n QUESTION 5.\u00a0 If the estate will not automatically terminate based on the passage of time or an individual life, then it is some sort of fee simple estate.\u00a0 If there are no restrictions whatsoever, then it is an estate of fee simple absolute<\/span>.\u00a0 If it is an estate that could result in a forfeiture, go to Question 6.<\/p>\n QUESTION 6.\u00a0 If the estate is subject to a forfeiture clause but could go on forever, will it forfeit to a third party or will it revert back to the grantor or the grantor\u2019s successors?\u00a0 If to a third party, then the estate is one of fee simple subject to an executory limitation<\/span>.\u00a0 If it reverts back to the grantor, then it is an estate of fee simple determinable<\/span> if the restriction is in the nature of a limitation; if the restriction is in the nature of a condition subsequent, then the estate is one of fee simple subject to a condition subsequent<\/span>.\u00a0 (if the estate that is subject to the potential forfeiture is not a fee simple estate, but a life estate, an estate for years, or a fee tail, the same terminology applies.\u00a0 Any of these three estates could be determinable, subject to a condition subsequent, or subject to an executory limitation.)<\/p>\n QUESTION 7.\u00a0 If the interest at issue is a future interest, the first question is whether or not it accompanies a particular estate, i.e., an estate for years, a life estate, or a fee tail.\u00a0 If it does, go to Question 8.\u00a0 If it accompanies some form of determinable or conditional estate (like fee simple subject to an executory limitation, fee simple determinable, or fee simple subject to a condition subsequent), go to Question 10.<\/p>\n QUESTION 8.\u00a0 If the future interest accompanies a particular estate, then the question is whether it is retained by the grantor (or the grantor\u2019s successors) or whether it has been created for the benefit of a third party (as in O to A for life, then to B).\u00a0 If retained by the grantor, the interest is a reversion<\/span>.\u00a0 If created for a third party, then it is some form of remainder.\u00a0 If it is a remainder, go to Question 9.<\/p>\n QUESTION 9.\u00a0 To determine the type of remainder, one asks the following.\u00a0 Are there unmet conditions precedent (as in \u201cthen to A, if he is 25, and A isn\u2019t) or is it impossible to determine the identity of remainderman (as in the heir of O, when O is still alive)?\u00a0 If the answer to either part is \u201cyes,\u201d then the remainder is a contingent <\/span>remainder.\u00a0 If the answer to both parts is no, then the remainder is vested.\u00a0 However, there are three types of vested remainders.\u00a0 If there are no unmet conditions either precedent or subsequent, the holder of the interest can be identified and is not a member of a class including individuals with contingent remainders, then the interest is vested remainder<\/span> (sometimes referred to as an indefeasibly vested remainder<\/span>).\u00a0 If the remainder is vested, but could be divested by some subsequent event (as in O to A for life, then to B, unless C marries one of the Obama daughters, in which case to C), then the interest is a vested remainder subject to divestment<\/span> (or a defeasible vested remainder<\/span>).\u00a0 If the remainder is vested, but part of a class that includes members with contingent remainders (as in O to A for life, then to the daughter of A who reach age 21, when A has some daughters who are 21 and others who are younger), the interest is a vested remainder subject to open<\/span>.<\/p>\n QUESTION 10.\u00a0 If the future interests accompanies a fee simple estate that is subject to a limitation or a condition, the first question is whether the interest is held by the grantor (or one of his or her successors) or by a third party.\u00a0 If held by the grantor then the interest is a possibility of reverter<\/span> if the restriction is in the nature of a limitation (as in a fee simple determinable), or else a right of entry\/power of termination<\/span> if the restriction is in the form of a condition subsequent.\u00a0 If the interest is in a third party, then the interest is an executory interest, regardless of whether the restriction is a condition or a limitation.\u00a0 However, there are two types of executory interests.\u00a0 If the effect of the interest is to divest a grantee<\/em> (as in O to A so long as beer is not sold on the premises, but if it is, to B), B\u2019s interest is a shifting executory interest<\/span>.\u00a0 However, if the restriction divests the grantor<\/em> (as in O to A in 5 years), then the interest is a springing executory interest<\/span>.<\/p>\n By using these ten questions, one can readily identify any estate or future interest, no matter how puzzling its nature might at first appear.<\/p>\n","protected":false},"excerpt":{"rendered":" Should anyone be contemplating spending part of their summer break honing their skills at identifying estates in land and future interests, I offer the question-based system below which can be used to simplify the process of identifying estates in land and future interests.\u00a0 The questions can also be easily diagrammed as a flow chart for 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