Presumption of conveying maximum estate possible (words of inheritance/ NOT necessary) alienability If is a (describing who is to A word of purchase “O forever”, “A” taking)… is a (describing what is word of limitation … AND, “forever” taken) Ambiguities interpreted in favor of (A), NOT (O) grantee grantor Transfer of FSA… (in lifetime) Inter vivos 2 In death types… (to In will will beneficiary/ies) (to NOT covered by valid will) In testate prospective heir(s), If A dies w/ NO heirs, title passes to govt. via (FSA does NOT end) escheat a non-possessory interest in property that affects title in property Encumbrance – O, as holder of could grant out an AND a creditor could have a FSA, easement, lien against O’s property… BUT, categorically speaking, O still holds 100% of (encumbrances do FSA … NOT change estate) FEE SIMPLE DEFEASIBLES & RELATED FPIs Of the 3 that follow a ONLY is subject to the FPIs fee simple defeasible, EI Rule AND, is the ONLY following a Against Perpetuities EI FPI fee (“RAP”)… which is created in a in order to create a in simple defeasible transferee… FPI SO, a BUT avoid transferee, RAP implications… O to A w/ either a OR retained in PR PT O… If violated by A, then estate would return to restriction O… either (PR) OR (PT) automatic optional … then, O could transfer to PR/PT … B… Essentially, B has an EI… BUT, b/c it is technically a has NO effect PR/PT, RAP … although, there IS a jurisdictional split re: transferability of PR/PT/EI … Virtually NO state limits transferability of all 3 (in in death will/in testate)…
Presumption of conveying maximum estate possible (words of inheritance/ alienability NOT necessary) If “O to A forever”, “A” is a word of purchase (describing who is taking)… … AND, “forever” is a word of limitation (describing what is taken) Ambiguities interpreted in favor of grantee (A), NOT grantor (O) Transfer of FSA… Inter vivos (in lifetime) In death 2 types… In will (to will beneficiary/ies) In testate (to prospective heir(s), NOT covered by valid will) If A dies w/ NO heirs, title passes to govt. via escheat (FSA does NOT end) Encumbrance – a non-possessory interest in property that affects title in property O, as holder of FSA, could grant out an easement, AND a creditor could have a lien against O’s property… … BUT, categorically speaking, O still holds 100% of FSA (encumbrances do NOT change estate) FEE SIMPLE DEFEASIBLES & RELATED FPIs Of the 3 FPIs that follow a fee simple defeasible, ONLY EI is subject to the Rule Against Perpetuities (“RAP”)… AND, EI is the ONLY FPI following a fee simple defeasible which is created in a transferee… SO, in order to create a FPI in a transferee, BUT avoid RAP implications… O to A w/ either a PR OR PT retained in O… If restriction violated by A, then estate would return to O… … either automatic (PR) OR optional (PT) … then, O could transfer PR/PT to B… Essentially, B has an EI… … BUT, b/c it is technically a PR/PT, RAP has NO effect … although, there IS a jurisdictional split re: transferability of PR/PT/EI Virtually NO state limits transferability of all 3 in death (in will/in testate)…
Property-2_Coskran-Spring-2009.docx