VR Subject to Complete Divestment (“VRSCD”) If transferee is NOT existing/ascertained, and/or there is a condition precedent contingent remainder (“CR”) Jurisdictional splits… Whether prior estate must be (required at freehold common law) Transferability of CRs Analytical path… Is at issue a if NO, then is an if FPI remainder? FPI EI… YES… Is in an existing and ascertained transferee, w/ NO condition remainder precedent? if NO (to any of the 3), then a if YES (to all CR… 3)… Is it divestable? if YES, a if AVR… NO… Is it all OR only partially divestable? if the former, then a if the VRSCD… latter, then a VRSPD vs. 3 tests, none of which work Condition precedent condition subsequent consistently (though, 3rd test works most often)… If worded in the then likely whereas, if affirmative, condition precedent… worded in the then like negative, condition subsequent If wording comes before then likely whereas, if condition precedent… “to B”, wording comes after then likely “to B”, condition subsequent Pretend that has ended, BUT life tenant is still can life estate alive… take possession? if NO, then likely (CR)… remainderman condition precedent if YES, then likely (VR) condition subsequent Notable hypos… to A for life, then to B for life, then to “O C” A life estate B (possessory is AVR size life estate) B is existing and ascertained… AND, NO condition precedent (B outliving A is NOT a condition … precedent) C (possessory if AVR size FSA) to A for life, then to “O O” A life estate O reversion NOT a b/c O is the NOT a remainder transferor, transferee… thus, essentially the same as to A for … “O life” “O to O for life, then to A” O life estate
VR Subject to Complete Divestment (“VRSCD”) If transferee is NOT existing/ascertained, and/or there is a condition precedent contingent remainder (“CR”) Jurisdictional splits… Whether prior estate must be freehold (required at common law) Transferability of CRs Analytical path… Is FPI at issue a remainder? if NO, then FPI is an EI… if YES… Is remainder in an existing and ascertained transferee, w/ NO condition precedent? if NO (to any of the 3), then a CR… if YES (to all 3)… Is it divestable? if YES, a AVR… if NO… Is it all OR only partially divestable? if the former, then a VRSCD… if the latter, then a VRSPD Condition precedent vs. condition subsequent 3 tests, none of which work consistently (though, 3rd test works most often)… If worded in the affirmative, then likely condition precedent… whereas, if worded in the negative, then like condition subsequent If wording comes before “to B”, then likely condition precedent… whereas, if wording comes after “to B”, then likely condition subsequent Pretend that life estate has ended, BUT life tenant is still alive… can remainderman take possession? if NO, then likely condition precedent (CR)… if YES, then likely condition subsequent (VR) Notable hypos… “O to A for life, then to B for life, then to C” A life estate B AVR (possessory size is life estate) B is existing and ascertained… … AND, NO condition precedent (B outliving A is NOT a condition precedent) C AVR (possessory size if FSA) “O to A for life, then to O” A life estate O reversion NOT a remainder b/c O is the transferor, NOT a transferee… … thus, essentially the same as “O to A for life” “O to O for life, then to A” O life estate
Property-2_Coskran-Spring-2009.docx