possessory estates

By
Real Estate Agent with Perry Wellington Realty

Possessory Estates

 

Livery of seisen – have to give the physical dirt as a symbol of the property

Statute Quia Emptores – allowed people to pass the land to their heirs, didn’t just automatically revert to the overlord (need to state “and his heirs” to create a fee simple)

Fee tail – does to lineal descendants – even adverse possession only counts for the life estate

Heirs – intestacy statute – 1) spouse, 2) child, 3) parents, 4) siblings, 5) decedents of siblings, 6) escheats to the state

Issue – descendants

Holographic will – a will that is hand written

Formal will – typed will

Defeasible estates

Fee Simple Determinable (Subject to a Reverter)

Fee Simple Subject to a Condition Subsequent (Subject to a Right of Entry)

Executory Interest – it divests a previous owner (unlike a remainder)

Can be shifting or springing but the actor has to do something to get the estate

 

 

White v. Brown p. 221

Need to look at the intent of the writer – did he intend it to be a fee simple?

Saying not to be sold is inconsistent with that?

Court finds it is a fee simple absolute – constraint on fee simple is invalid

Dissent says that the clear intent is to limit her use of it, basically a life estate

 

Valuation of remainder = market value of the property – value of the life estate

 

Baker v. Weedon p. 230

Property goes to his wife Anna or her children, if any.

Property can be sold by life tenant if remaindermen agree

The life tenant cannot destroy the property, destroys the remainders value

Obligation to engage in ordinary maintenance (must also pay the taxes)

Can continue to mine if the mine was already operating

Court decides she should keep the land as it is a better investment, growing more quickly

 

Mahrenholz v. County Board p. 242

Property is given to school on the condition that it be used for school.

Is it fee simple determinable (subject to reverter) or fee simple subject to a condition subsequent (subject to a right of entry)?

Neither a right of entry, not a reverter is divisible but they can be inherited.

Court rules that it is a reverter.

 

Mountain Brow Lodge v. Tuscano p. 251

Toscanos give land for the lodge and only for that purpose

Lodge wants to sell the land and claims that restriction on alienation is void

Solution is to make it defeasible – creates a condition subsequent

 

Ink v. City of Canton p. 257

The land goes to the city on the condition that it be used for a park - state wants to buy it for interstate

City would have used it for a park but for the actions of the state – it does not revert

As long as there is no certainty of a reverter then there is no value

Court tries to separate the value for a park from the value for any use to compensate Ink

 

City of Palm Springs v. Living Desert Reserve p. 265

City condemns the land so it can get around the reverter and keep the land for nothing

Court rules that the amount given is all they would pay as they wouldn’t break the condition otherwise

 

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