不動產法 · 第 1 章

不動產法 · 第 1 章,共 1 章

Present Estates and Future Interests

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The vocabulary that every other Real Property chapter uses: the present estates (fee simple absolute, the three defeasible fees, the life estate) and the future interests that follow them in the grantor (reversion, possibility of reverter, right of entry) and in grantees (vested and contingent remainders, class gifts, executory interests). The chapter then teaches the law of waste, the Rule Against Perpetuities with its California 90-year reform, the rule against restraints on alienation, and the California statutes that change the common-law labels.

學習目標

  1. 1.Classify any present estate from the words of the grant and name the future interest that follows it.
  2. 2.Distinguish vested, vested subject to open, vested subject to complete divestment and contingent remainders, and shifting from springing executory interests.
  3. 3.Identify affirmative, permissive and ameliorative waste and state the remedies of the future interest holder.
  4. 4.Test an interest under the common-law Rule Against Perpetuities and apply the California 90-year wait-and-see reform.
  5. 5.Recognize the California statutes that abolish the fee simple determinable, the fee tail, Shelley’s Case and Worthier Title, and void unreasonable restraints on alienation.

1.1 How Real Property is tested

Real Property is the law of land and the buildings on it: who owns it, for how long, who may use it, and how it is transferred. On the California Bar Exam it is tested twice, on the MBE and in the essays. This chapter teaches the vocabulary of estates and future interests. Every later chapter, from landlord and tenant to mortgages, uses these words, so learn them first.

Real Property on the California Bar Exam
ItemDetail
MBE weight25 scored questions of 175; about one-fifth each from ownership, rights in land, contracts, mortgages and titles
Essay frequencyTested on 26 of the last 50 exams (52 percent); most recently February 2026 and February 2025
Performance TestThe July 2025 Performance Test was a client advice letter on a Real Property problem
This chapter in essays (last 50 exams)Defeasible fees 3; future interests 3; waste 2; Rule Against Perpetuities 1
California lawLow weight: essays apply general law unless the call names California, and California distinctions are rarely essay-tested. In a Performance Test, use only the Library
NextGen exam (July 2028 and later)Real Property is a foundational subject and stays on the exam

The MBE is Day 2 of the exam: 200 questions in two three-hour sessions of 100 questions each. Only 175 questions are scored, 25 per subject; the other 25 are unscored test items. You have about 1.8 minutes per question. Real Property questions are long and fact-heavy, so speed comes from knowing the vocabulary without translating it in your head.

estate – An interest in land that is, or may become, possessory, and that is classified by how long it can last.

present estate – An estate that gives its holder the right to possess the land now.

future interest – A legally protected right in land whose possession begins, if at all, at a later time. The holder owns the interest today, even though possession is postponed.

grantor – The person who transfers an interest in land, by deed during life or by will at death. In this book, O is the grantor.

grantee – The person who receives an interest in land from the grantor. In this book, A, B and C are grantees.

注意

The applicable-law sentence

The essay instructions say: “Unless a question expressly asks you to use California law, you should answer according to legal theories and principles of general application”. For Real Property, that means the common-law rules taught in this book. Add a California statute only when the call names California. On a silent call you may add one sentence noting a California difference, after the general-law answer.

Real Property essays are usually one story with several actors: a grantor, a life tenant, a buyer, a neighbor. The calls ask who owns what and what each person may do. Graders look for the correct name of each interest, the rule, and its application to the facts. Write the label and the reason together: “B has a vested remainder subject to complete divestment, because a later clause can take it away”.

構成要件

The Real Property attack order

Use these steps for any question about a grant. Chapter 12 teaches the full essay method.

  1. 1.Step 1: Read the words of the grant and identify each present estate.
  2. 2.Step 2: Name every future interest and say who holds it: the grantor or a grantee.
  3. 3.Step 3: Test each interest for validity: the Rule Against Perpetuities and restraints on alienation.
  4. 4.Step 4: Check whether an event has ended or divested an estate, and update the state of title.
  5. 5.Step 5: Ask what each holder may do now: possession, use, waste, transfer.
  6. 6.Step 6: State the remedy: damages, an injunction, or recovery of possession.

須滿足全部要件。

應試提示

The MBE and the essay reward the same first step: write the exact name of each interest before you analyze anything. A wrong label early produces a wrong answer later. Defeasible fees and future interests each appeared in 3 of the last 50 essays.

重點

Every grant creates one present estate and, unless it is a fee simple absolute, at least one future interest. Find both before you answer.

本章重點

  1. 1.Real Property is 25 scored MBE questions and appears in about half of essay administrations.
  2. 2.Essays apply general law unless the call names California.
  3. 3.A present estate gives possession now; a future interest gives possession later, if at all.
  4. 4.Start every answer by naming each interest exactly, then test validity, events and rights.

1.2 Present estates: fee simple, defeasible fees, life estates and waste

A present estate is measured by how long it can last. The fee simple absolute can last forever. A defeasible fee ends on a stated event. A life estate ends at a death. This section teaches how to identify each estate from the words of the grant, and what a life tenant may do with the land.

fee simple absolute – The largest estate in land: it lasts forever, may be freely sold, given away or inherited, and no future interest follows it.Cal. Civ. Code § 762

規則

Presumption of a fee simple

A grant of land passes a fee simple absolute unless the words of the grant show that the grantor intended a smaller estate. Modern law does not require the words “and his heirs”; a grant “to A” is enough.

heirs – The persons who take a decedent’s property under the intestacy statute. A living person has no heirs, only heirs apparent with a mere expectancy.

fee tail – An estate that passed only to the holder’s lineal descendants, created by “to A and the heirs of his body”. Abolished almost everywhere; the words now create a fee simple.

Defeasible fees

defeasible fee – A fee simple that ends, or can be ended, when a stated event happens. The three kinds differ in how the estate ends and who takes the land.

The four fee simple estates
EstateWords that create itWhat follows itHow it ends
Fee simple absoluteWords that create it“to A” or “to A and his heirs”What follows itNothingHow it endsNever
Fee simple determinableWords that create itWords of duration: “so long as”, “while”, “until”, “during”What follows itPossibility of reverter in the grantorHow it endsAutomatically, the moment the event happens
Fee simple subject to a condition subsequentWords that create itWords of condition: “but if”, “provided that”, “on condition that”, plus a right to re-enterWhat follows itRight of entry (power of termination) in the grantorHow it endsOnly when the grantor exercises the right of entry
Fee simple subject to an executory limitationWords that create itEither kind of words, with the land passing to a third personWhat follows itExecutory interest in a granteeHow it endsAutomatically, the moment the event happens

fee simple determinable – A fee simple that ends automatically when a stated event happens, so that the land returns to the grantor. It is created by words of duration.

fee simple subject to a condition subsequent – A fee simple that the grantor may end by re-entering after a stated event. Nothing happens until the grantor acts.

fee simple subject to an executory limitation – A fee simple that passes automatically to a third person, not to the grantor, when a stated event happens.

The difference between the first two defeasible fees matters. A fee simple determinable ends by itself: the grantee becomes a trespasser at once, and the period for adverse possession starts to run. A fee simple subject to a condition subsequent continues until the grantor acts. Courts dislike forfeiture, so unclear words are read as a condition subsequent.

規則

Purpose language alone is not a limitation

Words that only state the purpose or motive of a gift (“for school purposes”, “to be used as a park”) do not create a defeasible fee. Without words of duration or condition, the grantee takes a fee simple absolute.

範例

Drafting a determinable fee

A landowner conveys a lot to the city. The deed says: “to the city so long as the lot is used as a public park; if it is not, the lot shall revert to the grantor”. After 30 years, the city closes the park and leases the lot to a parking company.

分析

“So long as” and “revert” are words of duration. The city held a fee simple determinable, and the landowner kept a possibility of reverter. The estate ended automatically when the park use stopped. The landowner, or the landowner’s successors, now owns the lot in fee simple absolute.

範例

Drafting a condition subsequent

A landowner conveys a lot to a church. The deed says: “to the church, provided that no alcohol is sold on the premises; if it is, the grantor may re-enter and retake the land”. The church later rents its hall to a caterer who sells wine to guests.

分析

“Provided that” plus a stated right to re-enter creates a fee simple subject to a condition subsequent. The caterer’s wine sales breach the condition, but the church keeps its fee until the grantor exercises the right of entry.

Life estates and waste

life estate – An estate that lasts for the life of a named person, usually the holder. It ends automatically at that person’s death.

life estate pur autre vie – A life estate measured by the life of a person other than the holder (French: “for another life”). If the holder dies first, the holder’s successors hold until that life ends.

A life estate is created by words such as “to A for life”. The life tenant may possess the land, take its ordinary income, and sell or lease the estate. A buyer gets only what the life tenant had: an estate that ends at the measuring death. The law of waste balances the life tenant against the holder of the future interest.

waste – Conduct by the holder of a present estate that harms, or permanently changes, the land to the injury of the holder of a future interest.

規則

The three kinds of waste

A life tenant must not commit waste. Affirmative (voluntary) waste is a harmful act, such as removing minerals or timber for sale. Permissive waste is neglect, such as failing to make ordinary repairs or to pay taxes. Ameliorative waste is a change that raises the land’s value but alters it; modern law allows it when conditions have changed.

構成要件

Duties of the life tenant

The life tenant must:

  1. 1.Repairs: Make ordinary repairs to keep the property in the condition received, but not major improvements.
  2. 2.Taxes: Pay property taxes, but only up to the income or the rental value of the land.
  3. 3.Mortgage: Pay interest on an existing mortgage, up to the same limit; the future interest holder pays the principal.
  4. 4.Resources: Not remove timber or minerals, unless the land was already used for that purpose or the grant permits it.
  5. 5.Structures: Not tear down or rebuild structures, unless the change is reasonable because conditions have changed.

須滿足全部要件。

規則

Remedies for waste

The holder of the future interest may sue the life tenant for waste: damages, or an injunction to stop the conduct. The action may be brought before the future interest becomes possessory. Exception: the holder of a contingent interest usually gets only an injunction.

範例

Permissive waste

A life tenant stops paying the property taxes and lets the roof leak for 3 years. The county records a tax lien, and water ruins the top floor.

分析

Failing to pay taxes and to make ordinary repairs is permissive waste. The holder of the future interest may recover damages, or pay the taxes and seek reimbursement.

應試提示

MBE distractor: “the life tenant may use the land as an owner would”. True for ordinary use; false for cutting timber for sale or opening a new mine. Ask whether the act permanently reduces what the future interest holder receives.

重點

Determinable: ends by itself, words of duration. Condition subsequent: ends only when the grantor acts, words of condition. Executory limitation: the land passes to a third person.

本章重點

  1. 1.A grant passes a fee simple absolute unless the words show a smaller estate; “and his heirs” is not required.
  2. 2.Words of duration create a fee simple determinable, which ends automatically; the grantor keeps a possibility of reverter.
  3. 3.Words of condition create a fee subject to a condition subsequent; the grantor must exercise the right of entry.
  4. 4.If the land passes to a third person on the event, the fee is subject to an executory limitation.
  5. 5.A life tenant is liable for affirmative and permissive waste; ameliorative change is allowed when conditions have changed.

1.3 Future interests in the grantor

When a grantor gives away less than the whole fee simple, something is left behind. That something is a future interest in the grantor. There are only three: the reversion, the possibility of reverter and the right of entry. Each one follows a particular kind of present estate, and each one is vested from the moment it is created. That last fact matters for the Rule Against Perpetuities in section 5.

reversion – The future interest that a grantor keeps after transferring a smaller estate, such as a life estate, without giving away the rest.Cal. Civ. Code § 768

規則

When a reversion arises

A grantor who owns a fee simple and conveys only a life estate or a term of years keeps a reversion. It arises by operation of law. The reversion becomes possessory when the prior estate ends. No words are needed to create it.

possibility of reverter – The future interest kept by a grantor who conveys a fee simple determinable. It becomes possessory automatically when the stated event happens.

right of entry – The future interest kept by a grantor who conveys a fee simple subject to a condition subsequent. Also called a power of termination. The grantor must exercise it.

The three future interests in the grantor
InterestFollowsBecomes possessoryTransferable?
ReversionFollowsA life estate, a term of years, or any estate smaller than the grantor’sBecomes possessoryAutomatically, when the prior estate endsTransferable?Yes, during life and at death, in every state
Possibility of reverterFollowsA fee simple determinableBecomes possessoryAutomatically, when the event happensTransferable?Yes in most states. California converts it into a power of termination (Civ. Code § 885.020)
Right of entry (power of termination)FollowsA fee simple subject to a condition subsequentBecomes possessoryOnly when the grantor gives notice or sues to retake the landTransferable?Passes by will and inheritance. Transfer by deed: traditionally not allowed; the modern trend and California allow it (Civ. Code § 1046)

重點

All three interests in the grantor are vested when created. They are never subject to the Rule Against Perpetuities, and they can last forever unless a statute limits them.

The reason is historical. The grantor never gave these interests away, so nothing “vests” later; the grantor simply keeps what was already owned. These interests are property, so a reversion, a possibility of reverter and a right of entry all pass to the grantor’s heirs or devisees at death. A will that gives “all my property” carries them with it.

範例

The silent deed

O, who owns Blackacre in fee simple absolute, conveys Blackacre “to A for life”. The deed says nothing more. A later conveys “all my interest in Blackacre” to B.

分析

O gave away only a life estate, so O keeps a reversion. A’s deed to B transfers a life estate pur autre vie, measured by A’s life. When A dies, B’s estate ends and O, or O’s successors, takes possession under the reversion.

結果

State of title: B has a life estate pur autre vie; O has a reversion in fee simple.

The right of entry is the weakest of the three because it needs action. The grantor must give notice or sue to retake the land, and courts require the grantor to act within a reasonable time after the breach. California adds statutory time limits on a power of termination; section 6 gives them. A grantor who knows of the breach and does nothing for years may find that laches or the statute of limitations has barred the claim.

假設案例

The grantor who waited

In 2000, O conveyed a farm to A by deed. The deed said: “to A, but if the farm is ever used for anything other than farming, O may re-enter and retake the farm”. In 2005, A opened a car dealership on the farm. O knew about it but did nothing. In 2026, after a family argument, O sued to recover the farm. A statute in the jurisdiction provides that an action to enforce a right of entry must be brought within 10 years after the breach of the condition.


Can O recover the farm?

分析

The issue is whether O’s right of entry survived 21 years of inaction. Under the general rule, the words “but if” together with “may re-enter” create a fee simple subject to a condition subsequent. O kept a right of entry, and A’s estate did not end by itself in 2005. Here, the statute required O to act within 10 years after the breach, which occurred in 2005. O sued in 2026, 11 years too late. A will argue, correctly, that the right of entry is now unenforceable. Therefore, O cannot recover the farm, and A holds it in fee simple absolute. Compare words of duration (“so long as the farm is used for farming”). The estate would then have ended by itself in 2005. The question would instead be whether A had acquired title by adverse possession since then.

IRAC

爭點
Whether [grantee]’s estate in [the land] ended when [the event] happened, and who now holds the land.
規則
Words of duration (“so long as”, “while”, “until”) create a fee simple determinable. It ends automatically when the stated event happens, and the grantor’s possibility of reverter becomes possessory. Words of condition (“but if”, “provided that”) with a right to re-enter create a fee simple subject to a condition subsequent. It continues until the grantor exercises the right of entry. Words of mere purpose create neither. When the words are unclear, courts prefer the condition subsequent because it avoids forfeiture.
涵攝
Here, the deed says “[quote the words of the grant]”. [These are words of duration, so [grantee] held a fee simple determinable and [grantor] kept a possibility of reverter. / These are words of condition with a right to re-enter, so [grantee] held a fee simple subject to a condition subsequent and [grantor] kept a right of entry.] On [date], [describe the event], which is the stated event. [The estate ended by itself at that moment, and no action was needed. / The estate continued; [grantor] had to exercise the right of entry, and [did / did not] do so within the time allowed.] [Grantee] will argue that the words only state a purpose. However, the deed [contains a reverter clause / states a right to re-enter], so that argument fails.
結論
Therefore, [grantor or successor] [owns the land in fee simple absolute / may retake the land by re-entry / has lost the right].

應試提示

When the land returns to the grantor, the interest is a reversion, a possibility of reverter or a right of entry. It is never a remainder or an executory interest. A common wrong answer calls the grantor’s interest an “executory interest”.

本章重點

  1. 1.A reversion is what a grantor keeps after conveying a smaller estate than the grantor owns.
  2. 2.A possibility of reverter follows a fee simple determinable and takes effect automatically.
  3. 3.A right of entry follows a fee subject to a condition subsequent and must be exercised in time.
  4. 4.All three are vested at creation and never subject to the Rule Against Perpetuities.

1.4 Future interests in grantees: remainders, executory interests and class gifts

A future interest can also be given to a grantee, a person other than the grantor. There are two families: remainders and executory interests. A remainder waits for the prior estate to end; an executory interest cuts an estate short. Inside the remainder family, the labels vested and contingent decide whether the Rule Against Perpetuities applies.

remainder – A future interest in a grantee that becomes possessory, if at all, immediately when the prior estate ends naturally. It never cuts the prior estate short.

規則

Requirements of a remainder

A remainder must be created in the same instrument as the estate before it. It must follow a life estate or a term of years, never a fee simple. It takes effect immediately when that estate ends, without cutting it short. An interest that fails any of these tests belongs to the other family.

Vested or contingent?

condition precedent – An event, other than the natural end of the prior estate, that must happen before a remainder can become possessory. It sits inside the words that create the remainder.

condition subsequent – An event, stated in a separate later clause, that takes away an interest already given. It divests; it does not delay.

vested remainder – A remainder given to an ascertained person and not subject to any condition precedent. It becomes possessory when the prior estate ends, unless a condition subsequent divests it first.

contingent remainder – A remainder given to an unascertained person, or subject to a condition precedent, or both. It may never become possessory.

構成要件

A remainder is vested only if both are true

  1. 1.Ascertained taker: The taker is a born, identified person: not “A’s heirs” while A lives, not “A’s first child” when A has none.
  2. 2.No condition precedent: Nothing stands between the taker and possession except the natural end of the prior estate.

須滿足全部要件。

Read the punctuation. A condition inside the words that create the gift is a condition precedent, and the remainder is contingent: “to B if B survives A”. A condition in a later clause that takes away a complete gift is a condition subsequent. The remainder is then vested subject to complete divestment: “to B, but if B dies before A, to C”.

vested remainder subject to open – A vested remainder given to a class, such as “A’s children”, when at least one member exists and more members can still join and reduce each share.

vested remainder subject to complete divestment – A vested remainder that a condition subsequent can take away entirely, before or after it becomes possessory.

The four remainders (each after “to A for life,”)
RemainderExampleWhyTested by the Rule Against Perpetuities?
Indefeasibly vestedExample“then to B”WhyB is ascertained; no conditionTested by the Rule Against Perpetuities?No
Vested subject to openExample“then to A’s children” (A has one child)WhyClass gift with a living member; more may joinTested by the Rule Against Perpetuities?Yes, until the class closes
Vested subject to complete divestmentExample“then to B, but if B dies without issue, to C”WhyGift complete; a later clause can take it awayTested by the Rule Against Perpetuities?No, but C’s executory interest is
ContingentExample“then to B if B reaches 21” or “then to A’s heirs”WhyCondition precedent, or an unascertained takerTested by the Rule Against Perpetuities?Yes

class gift – A gift to a group described by a shared characteristic, such as “children” or “grandchildren”, whose membership can change until the class closes.

規則

Class gifts: the rule of convenience

A class closes, and no later-born person can join it, when any member is entitled to demand possession of a share. It also closes naturally when no more members can be born. A person conceived before closing is included. The rule yields to contrary intent in the instrument.

Apply the rule to “to A for life, then to A’s children”. The class gift stays open while A lives and closes at A’s death. Every child of A takes an equal share. A child who died before A still takes through that child’s estate, because the gift has no survival condition.

Executory interests

executory interest – A future interest in a grantee that becomes possessory by cutting short another estate, either a grantee’s estate (shifting) or the grantor’s estate (springing).

shifting executory interest – An executory interest that divests another grantee on an event: “to A, but if A stops farming the land, to B”.

springing executory interest – An executory interest that divests the grantor on an event: “to A when A marries”. The grantor keeps possession until then.

Remainder versus executory interest
FeatureRemainderExecutory interest
FollowsRemainderA life estate or a term of yearsExecutory interestAny estate it cuts short: usually a fee simple (shifting), or the grantor’s own estate (springing)
Takes effectRemainderWhen the prior estate ends naturallyExecutory interestBy cutting the prior estate short
Rule Against PerpetuitiesRemainderApplies only if contingent or subject to openExecutory interestAlways applies

範例

Shifting and springing

Deed 1: O conveys “to A, but if the land is ever used for a factory, to B”. Deed 2: O conveys “to C, to take effect when C is admitted to the bar”. C is a law student.

分析

Deed 1: A has a fee simple subject to an executory limitation, and B has a shifting executory interest, because B would cut short A, another grantee. Deed 2: O keeps a fee simple subject to an executory limitation, and C has a springing executory interest, because C would cut short O, the grantor. Neither has a remainder: B cuts short a fee, and C cuts short the grantor’s fee.

規則

Shelley’s Case, Worthier Title and destructibility

Three old rules rewrote grants. Shelley’s Case: “to A for life, then to A’s heirs” gave A a fee simple. Worthier Title: “then to O’s heirs” gave O a reversion. Destructibility: a remainder still contingent when the life estate ended was destroyed. Shelley’s Case and destructibility are abolished almost everywhere, and Worthier Title in many states, including California.

On the MBE, treat Shelley’s Case and destructibility as abolished unless the question says otherwise. Where Worthier Title survives, it is only a rule of construction that yields to the grantor’s contrary intent. A contingent remainder is not destroyed when the life estate ends; the grantor’s reversion holds the land until the condition happens.

alternative contingent remainders – Two contingent remainders with opposite conditions, so that when one vests the other must fail: “to B if B survives A, otherwise to C”.

假設案例

Classify every interest

O conveys Greenacre “to A for life, then to B if B survives A, and if B does not survive A, to C”. A, B and C are alive and unrelated.


Classify every interest in Greenacre. What changes if B dies before A?

分析

The issue is the state of title. A has a life estate. B has a contingent remainder, because the gift to B is subject to a condition precedent, surviving A, that sits inside the words of the gift. C also has a contingent remainder, subject to the opposite condition; B and C hold alternative contingent remainders. O keeps a reversion, because the law treats two contingent remainders as if both could fail. Both remainders pass the Rule Against Perpetuities, because each will vest or fail at A’s death. If B dies before A, B’s remainder fails. Therefore, the state of title becomes: A, life estate; C, indefeasibly vested remainder in fee simple absolute; O, nothing.

應試提示

Essay: graders look for the correct label and the reason. Write both in one sentence: “B has a contingent remainder because the gift is subject to a condition precedent, survival of A”.

重點

Condition inside the gift: contingent. Condition in a later clause: vested subject to divestment. Class with a living member: vested subject to open.

本章重點

  1. 1.A remainder follows a life estate or term of years and never cuts an estate short.
  2. 2.Vested: ascertained taker and no condition precedent. Contingent: unascertained taker or a condition precedent.
  3. 3.A class gift with a living member is vested subject to open; the class closes under the rule of convenience.
  4. 4.An executory interest cuts short a grantee’s estate (shifting) or the grantor’s estate (springing).
  5. 5.Shelley’s Case and destructibility are abolished almost everywhere; Worthier Title in many states, including California.

1.5 The Rule Against Perpetuities and its reforms

The Rule Against Perpetuities stops a grantor from keeping land out of the market for generations through interests that may vest far in the future. For each contingent interest, ask one question: is it certain to vest or fail within the period? If not, it is void.

vest – An interest vests when the taker is ascertained and every condition precedent is satisfied. A class gift vests fully only when the class closes.

life in being – A person alive, or already conceived, when the interest is created. A useful measuring life is one whose death affects when the interest vests.

規則

The common-law Rule Against Perpetuities

No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest. Ask what might happen, not what is likely. If any possible sequence of events lets the interest vest too late, the interest is void from creation.

構成要件

Interests the rule tests

The rule tests only interests not yet vested at creation:

  1. 1.Contingent remainders.
  2. 2.Executory interests, shifting and springing.
  3. 3.Vested remainders subject to open (class gifts), until the class closes.
  4. 4.Options to purchase and rights of first refusal held in gross (not attached to a lease).

滿足任一項即可。

構成要件

Interests the rule never tests

  1. 1.Reversions, possibilities of reverter and rights of entry: the grantor’s interests are vested.
  2. 2.Indefeasibly vested remainders, and vested remainders subject to complete divestment.
  3. 3.Gifts from one charity to another charity.
  4. 4.An option held by the tenant under a lease, to buy the leased land during the lease.

滿足任一項即可。

記憶口訣

CELA

  • C– Classify the interest: is it one the rule tests?
  • E– Event: what must happen for the interest to vest?
  • L– Lives in being: who is alive now and connected to that event?
  • A– Ask: could the event happen more than 21 years after every life in being dies?

If the answer is yes, strike the interest and read the grant again without it.

範例

Deed versus will

In her will, a testator leaves her farm “to my grandchildren who reach 21”. By deed, a living landowner conveys a lot “to my grandchildren who reach 21”. Each has 2 living children and 1 grandchild, aged 5.

分析

The will is valid. The testator is dead, so she can have no more children. Her two children are lives in being; every grandchild must reach 21, or die, within 21 years after the last child dies. The deed is void. The living landowner might have another child, who is not a life in being, and that child’s children could reach 21 too late.

結果

Lives in being are fixed at creation: death for a will, delivery for a deed.

構成要件

Classic traps

Each of these voids an interest that looks safe:

  1. 1.Fertile octogenarian: The law assumes that any living person, at any age, can have another child.
  2. 2.Unborn widow: “To A for life, then to A’s widow for life, then to A’s children then living”: the widow may not yet be born.
  3. 3.Slothful executor: A gift “when my estate is settled” may vest too late, because settlement has no time limit.
  4. 4.Age over 21: “To A’s children who reach 25” fails while A is alive, because a later child could reach 25 too late.

滿足任一項即可。

範例

The fertile octogenarian

In Jee v. Audley (1787), a testator gave money to Mary Hall and her descendants. If her line ended, the money was to go to the daughters “then living” of John and Elizabeth Jee. The Jees were about 70 and had 4 daughters.

分析

The gift to the Jee daughters was void. The Jees might have another daughter, who was not a life in being. Mary Hall’s line might end more than 21 years after everyone then alive had died.

規則

Effect of a void interest

Only the void interest is struck; the rest of the grant remains. A determinable fee followed by a void executory interest leaves the grantor a possibility of reverter. In a grant “to A, but if the event happens, to B”, a void executory interest leaves A with a fee simple absolute. The condition falls with the interest.

Options

判例

Symphony Space, Inc. v. Pergola Properties, Inc., 88 N.Y.2d 466 (1996) (New York Court of Appeals 1996)

案情

A property company sold a building to a theater company for $10,010 and leased back the commercial space. It kept an option to buy the building back in 4 specified years, the last 25 years after the sale. The option covered the whole building, including the theater, and was in a separate agreement independent of the lease.

判決要旨

The option was an interest in land subject to the Rule Against Perpetuities and was void, because it could be exercised more than 21 years after its creation. The court refused to wait and see.

為什麼重要

An option to buy is subject to the rule unless it is part of a lease, limited to the leased premises and exercisable only during the lease. This option failed that test.

Reforms

wait-and-see – A reform under which a court judges an interest by the events that actually happen during the period, not by what might happen.

cy pres – French for “as near as possible”. A court rewrites an invalid provision to match the grantor’s intent as closely as possible, for example by reducing an age of 25 to 21.

規則

Reforms to the common-law rule

Wait-and-see states judge the interest by what actually happens during the period. Cy pres states reform the grant to come as close as possible to the grantor’s intent. The Uniform Statutory Rule Against Perpetuities (USRAP), adopted in California, validates any interest that actually vests or fails within 90 years.

成文法CA

Cal. Prob. Code § 21205

Prob. Code § 21205

A nonvested property interest is invalid unless one of the following conditions is satisfied: (a) When the interest is created, it is certain to vest or terminate no later than 21 years after the death of an individual then alive. (b) The interest either vests or terminates within 90 years after its creation.
查看原文

In plain English: an interest is valid if it passes the common-law test, or if it actually vests or fails within 90 years. If not, the court reforms the instrument to carry out the transferor’s plan (Cal. Prob. Code § 21220). Exception: the statute does not apply to most commercial (nondonative) transfers, such as an option bought in a business deal (Cal. Prob. Code § 21225).

CA加州差異

The Rule Against Perpetuities

一般規則(聯邦 / 多數州)

Common law: an interest is void when created if it might vest more than 21 years after every life in being has died. This stays the MBE default unless the question states a reform.

加州

Prob. Code § 21205: the interest is valid if it satisfies the common-law test, or if it actually vests or fails within 90 years. Under § 21220 a court reforms an interest that fails both tests.

If the call is silent, apply the common-law rule and conclude “void”. Then add one sentence: most states now use wait-and-see or the 90-year USRAP rule, which may save the interest. If the call names California, add the 90-year rule and conclude under Prob. Code § 21205.

應試提示

MBE: an option to buy land, held by a stranger with no time limit, is void under the common-law rule. An option held by a tenant, exercisable during the lease, is valid. The wrong answer swaps the two. Essay frequency: 1 of the last 50 exams.

重點

Never ask whether the interest will vest in time. Ask whether it could possibly vest too late. One unlikely sequence of births and deaths voids the interest.

本章重點

  1. 1.The common-law rule voids an interest that might vest more than 21 years after every life in being dies.
  2. 2.It tests contingent remainders, executory interests, open class gifts and options in gross; never the grantor’s interests.
  3. 3.Method: classify, find the vesting event, find the lives in being, ask whether vesting could come too late.
  4. 4.Traps: fertile octogenarian, unborn widow, slothful executor, ages over 21.
  5. 5.California: valid if it vests within 90 years; otherwise the court reforms the instrument (Prob. Code §§ 21205, 21220).

1.6 Restraints on alienation and the California statutes

Land should be free to move from owner to owner. A grantor who tries to keep land in the family forever, or to forbid a sale, is limited by the rule against restraints on alienation. This section teaches that rule and the California statutes that change this chapter’s common-law vocabulary. California distinctions are rarely essay-tested. In a Performance Test, use only the Library; knowing the common-law vocabulary helps you read a statute there quickly.

restraint on alienation – A provision in a grant that limits the holder’s power to transfer the land. It may forbid transfer, forfeit the estate on transfer, or extract a promise not to transfer.

構成要件

Three forms of restraint

  1. 1.Disabling: Any attempted transfer is void (“A may not transfer the land”). Always void when placed on a fee.
  2. 2.Forfeiture: The estate ends if the holder tries to transfer (“but if A transfers the land, to B”).
  3. 3.Promissory: The holder promises not to transfer; breach gives damages or an injunction, not forfeiture.

滿足任一項即可。

規則

Restraints on a fee simple

An absolute restraint on the transfer of a fee simple is void, and the grantee takes the fee free of it. A partial restraint that is reasonable in purpose, duration and scope may be valid. Forfeiture and promissory restraints on a life estate or a leasehold are generally enforceable.

成文法CA

Cal. Civ. Code § 711

Civ. Code § 711 (restraints on alienation)

Conditions restraining alienation, when repugnant to the interest created, are void.
查看原文

In plain English: a condition is “repugnant” to a fee simple when it takes away the freedom to sell that a fee simple includes. Such a condition has no effect. California courts read Cal. Civ. Code § 711 as a rule of reason. They weigh the reason for the restraint against how much it limits transfer. A limited, reasonable restraint may survive. A flat ban on selling a fee simple does not.

Wellenkamp v. Bank of America (1978) 21 Cal.3d 943 shows this rule of reason at work. The lender threatened to demand full payment of a home loan unless the buyer of the house agreed to a higher interest rate. The court held that automatic enforcement of this due-on-sale clause was an unreasonable restraint. The lender had to show that the sale impaired its security or increased the risk of default. Federal law now overrides this result for most loans (12 U.S.C. § 1701j-3); chapter 11 covers due-on-sale clauses.

範例

The daughter who may never sell

A father deeds a house to his daughter. The deed says: “to my daughter, on condition that she never sells or mortgages it”. The daughter signs a contract to sell the house 2 years later. The buyer asks whether she can deliver good title.

分析

The condition is an absolute restraint on a fee simple. It is void, and the daughter owns the house in fee simple absolute, free to sell or mortgage. Civil Code § 711 and the common law give the same result. Contrast a deed that gave the daughter only a life estate. A restraint on transfer of a life estate would likely be enforced.

結果

The daughter can deliver good title; the buyer takes free of the condition.

California statutes that change the vocabulary

CA加州差異

Fee simple determinable and possibility of reverter

一般規則(聯邦 / 多數州)

General law recognizes the fee simple determinable, which ends automatically, and the possibility of reverter, which lasts forever unless a marketable-title statute cuts it off.

加州

Civil Code § 885.020 abolished both. A would-be determinable fee is a fee simple subject to a condition subsequent. A would-be possibility of reverter is a power of termination, which must be exercised. The power expires 30 years after the instrument is recorded, unless a notice of preservation is recorded (§ 885.030).

On the MBE and in a general-law essay, the determinable fee still exists. Write the California rule only when the call names California. In a Performance Test, apply only the Library.

成文法CA

Cal. Civ. Code § 885.020

Civ. Code § 885.020 (Marketable Record Title Act)

Fees simple determinable and possibilities of reverter are abolished. Every estate that would be at common law a fee simple determinable is deemed to be a fee simple subject to a restriction in the form of a condition subsequent. Every interest that would be at common law a possibility of reverter is deemed to be and is enforceable as a power of termination.
查看原文

規則

California time limits on a power of termination

In California, the holder must exercise a power of termination by notice or by a lawsuit within five years after the breach. A recorded power of termination also expires 30 years after recording, unless a notice of intent to preserve it is recorded in time.

規則

California statutes: fee tail, Shelley’s Case, Worthier Title

Civil Code § 763 turns a fee tail into a fee simple. Section 779 abolishes Shelley’s Case: A’s heirs take the remainder in their own right, not as A’s successors. Probate Code § 21108 abolishes Worthier Title, so O’s heirs take by the words of the grant.

成文法CA

Cal. Civ. Code § 763

Civ. Code § 763 (estates tail abolished)

Estates tail are abolished, and every estate which would be at common law adjudged to be a fee tail is a fee simple; and if no valid remainder is limited thereon, is a fee simple absolute.
查看原文

規則

California labels for remainders

California’s Civil Code uses its own labels. Any future estate that depends on a prior estate, except a reversion, may be called a remainder (§ 769). A remainder that can cut short the prior estate is a conditional limitation (§ 778). Use the common-law labels unless the call names California.

規則

Transfer and survival of future interests in California

In California every future interest, vested or contingent, passes by deed, by will and by intestate succession in the same manner as a present interest. A contingent remainder is not destroyed when the prior estate ends before the condition happens; the interest takes effect when the condition later occurs.

Two practical consequences follow. First, a recorded power of termination is a cloud on title for a California title examiner. It expires on its own after 30 years, unless the holder records a notice to preserve it. Second, a contingent remainder or a right of re-entry can be sold in California (Cal. Civ. Code § 699; Cal. Civ. Code § 1046). A buyer of a future interest takes a real property right, not a mere expectancy.

規則

California: treble damages for waste

In California, a court may award treble damages (3 times the actual loss) for waste by a life tenant. Courts usually treble damages only for willful or malicious waste.

應試提示

Performance Test: if the Library contains a statute on estates or future interests, apply its words, not the common-law labels from this chapter. Graders reward the statute’s vocabulary, and the File usually contains the fact that triggers it.

重點

Absolute restraint on a fee: void, and the grantee takes the fee free. Reasonable partial restraint, or a restraint on a life estate: usually valid.

本章重點

  1. 1.An absolute restraint on transfer of a fee simple is void; reasonable partial restraints may be valid.
  2. 2.Restraints on life estates and leaseholds are usually enforceable.
  3. 3.Civil Code § 711 voids restraints repugnant to the interest created; California courts apply a rule of reason.
  4. 4.California abolished the fee simple determinable and the possibility of reverter (Civ. Code § 885.020).
  5. 5.Fee tail, Shelley’s Case and Worthier Title are abolished in California (Civ. Code §§ 763, 779; Prob. Code § 21108).

1.7 Review

This review has 3 parts: a chapter summary, 5 MBE-style questions, and the glossary. Answer each question in under 2 minutes before opening the answer. Then read the explanation for every option, not only the one you chose, because the distractors are the labels you will confuse under time pressure. Finally, cover each glossary definition and say it in your own words, in English.

Read each MBE stem in the same order every time. First find the words of the grant, usually inside quotation marks. Second, note the dates and who is alive. Third, read the call: “who owns”, “what interest”, or “will the plaintiff prevail”. Only then read the options. The correct option names the interest and gives the reason that matches the words of the grant.

構成要件

Classifying any grant in six steps

  1. 1.Step 1: Find the present estate from the words: duration words, condition words, “for life”, or none.
  2. 2.Step 2: Ask who takes when the present estate ends: nobody named (the grantor keeps something) or a grantee.
  3. 3.Step 3: For a grantee: does the interest wait for a natural end (remainder) or cut an estate short (executory interest)?
  4. 4.Step 4: For a remainder: ascertained taker and no condition precedent means vested; otherwise contingent; a class means subject to open.
  5. 5.Step 5: Run the Rule Against Perpetuities on every contingent remainder, executory interest and open class.
  6. 6.Step 6: Check restraints on alienation, and any event that has already ended or divested an estate.

須滿足全部要件。

state of title – A list of every interest in a parcel of land at a given moment, with the name of each holder.

重點

If you can classify a grant in under a minute, every Real Property question about title becomes a question about what happens next.

練習 · MBE

A landowner conveyed a parcel to the school district by deed 20 years ago. The deed read: “to the school district so long as the land is used for a school.” It then said: “if it is no longer so used, the land shall revert to the grantor.” The district built and operated an elementary school. Last year, after enrollment fell, the district closed the school and converted the building into a warehouse for surplus furniture. The landowner died 5 years ago, leaving a will that gave “all my property” to a niece. The jurisdiction recognizes the fee simple determinable and has no marketable-title statute. The niece has done nothing to assert a claim. Who owns the parcel?
選擇一個答案

Shift + 字母鍵可劃掉選項

答案:B

The words “so long as” and “shall revert” are words of duration, so they create a fee simple determinable; the grantor kept a possibility of reverter. A possibility of reverter is devisable, so it passed by the landowner’s will to the niece. When the school use stopped, the district’s estate ended by itself, and the niece became the owner in fee simple absolute without any action. Option A describes a right of entry, which follows words of condition, not words of duration. Option C fails because the deed contains an express limitation and a reverter clause, not mere purpose language. Option D confuses ownership with the remedy: the niece already owns the land.
Correct answer: B. The trap is option A. A right of entry must be exercised; a possibility of reverter operates by itself. Decide which one exists from the words of the grant, not from what seems fair to the district. In California the result would differ: Civil Code § 885.020 would treat the deed as creating a power of termination, so the niece would have to act.

練習 · MBE

A landowner conveyed a farm by deed “to my brother for life, then to my brother’s children who reach the age of 25.” At the time of the deed, the brother was 40 years old and had one child, aged 3. The landowner was alive and in good health. The jurisdiction applies the common-law Rule Against Perpetuities without any statutory reform. What interest, if any, do the brother’s children have in the farm?
選擇一個答案

Shift + 字母鍵可劃掉選項

答案:C

The gift to children “who reach 25” is subject to a condition precedent, so it is a contingent remainder, and the rule applies. The brother is the only useful life in being. The living child cannot save the gift, because the brother may have another child after the deed. That later child is not a life in being and could reach 25 more than 21 years after the brother and the first child have died. Because that sequence is possible, the class gift is void as to the whole class. Option A ignores the age condition. Option B wrongly treats the existing child as saving the gift. Option D asks what is likely, not what is possible.
Correct answer: C. Under the California statute (Prob. Code § 21205) a court would wait up to 90 years to see whether the gift vests; under the common law the interest is void at creation. Read the jurisdiction sentence in every perpetuities question before you choose.

練習 · MBE

A testator made a gift of a house in her will. It read: “to my sister for life, then to my nephew, but if my nephew dies without issue surviving him, then to my friend.” The sister, the nephew and the friend all survived the testator. The nephew is unmarried and has no children. The jurisdiction follows the modern majority rules on the classification of future interests. Which of the following best describes the interests of the nephew and the friend?
選擇一個答案

Shift + 字母鍵可劃掉選項

答案:A

The gift to the nephew is complete in its own clause: “then to my nephew.” The condition about dying without issue appears in a later clause beginning “but if,” so it is a condition subsequent that can take the remainder away. That makes the remainder vested subject to complete divestment. An interest that divests a grantee’s vested interest is a shifting executory interest, so the friend has one. Options B and C put the condition inside the gift, which the punctuation does not support; alternative contingent remainders require opposite conditions inside the words of both gifts. Option D is wrong because there is no class, and because a springing interest divests the grantor, not a grantee.
Correct answer: A. Compare the wording with the section 4 hypothetical, “to B if B survives A, otherwise to C,” where the condition sits inside the gift and both remainders are contingent. The comma and the words “but if” move the condition into a later clause.

練習 · MBE

A woman devised her 200-acre wooded tract “to my son for life, then to my granddaughter.” The tract had never been logged, and the woman had used it only for hiking. After the woman’s death, the son contracted with a timber company to cut and sell all mature trees on the tract. The sale would produce a substantial profit. He did not intend to farm or build on the cleared land. The granddaughter sued to enjoin the cutting and to recover damages for trees already removed. Will the granddaughter prevail?
選擇一個答案

Shift + 字母鍵可劃掉選項

答案:D

A life tenant may take the ordinary income of the land but may not commit affirmative waste by removing its natural resources for profit. Timber may be cut for reasonable needs, such as fuel and repairs, or where the land was already used for timber. Here the tract had never been logged and the son sought only profit, so the cutting is affirmative waste. The granddaughter, who holds a vested remainder, may enjoin it and recover damages. Option A overstates the life tenant’s rights. Option B misdescribes ameliorative waste, which is a change in use that adds value; the son planned no change in use. Option C is too broad, because the exceptions exist.
Correct answer: D. The Yes/No pattern has two answers on each side; eliminate by the reason, not by the first word. The absolute word “never” in option C is the signal that it is wrong.

練習 · MBE

A landowner owned a lot in fee simple absolute. The landowner executed and delivered a deed that read: “I convey the lot to my daughter when she marries.” The daughter was 22 and unmarried when the deed was delivered, and she remains unmarried. The landowner later listed the lot for sale, and a buyer asked a title examiner to describe the state of the title. Which of the following is the most accurate description?
選擇一個答案

Shift + 字母鍵可劃掉選項

答案:A

The deed gives the daughter possession only on a future event, and no estate was carved out for anyone in the meantime, so the landowner keeps possession. A future interest in a grantee that cuts short the grantor’s own estate is a springing executory interest. The estate it will divest is a fee simple subject to an executory limitation. Option B fails because a remainder must follow a life estate or a term of years. Option C is wrong because the daughter’s interest is a present, transferable property right, even though possession is postponed. Option D invents an estate: there is no “fee simple subject to a condition precedent,” and the landowner keeps the fee, not a right of entry.
Correct answer: A. The springing interest is valid under the Rule Against Perpetuities, because the daughter is a life in being and her interest vests, if at all, during her own life.

– The transfer of an interest in land from one person to another, by sale, gift or will.

– A person who is born and identified at the moment the question is asked, so that a court could name the taker.

– A transfer of an interest in land by a written instrument, usually a deed, during the transferor’s life.

– A gift of land by will. The person who receives it is the devisee.

– Held personally by a person, not attached to the ownership of other land or to a lease.

– A person’s lineal descendants: children, grandchildren and later generations. “Without issue” means leaving no living descendant.

– The life whose end fixes the end of a life estate, or the life in being used to test an interest under the rule.

– The modern name for a right of entry: the grantor’s power to end a fee simple after a condition subsequent is broken.

– Words that describe the size of the estate given, such as “and his heirs” or “for life”; they give nothing to the persons named.

– Words that identify who takes an interest, such as “to A” or “then to A’s children.”

本章重點

Chapter summary

  1. 1.A fee simple absolute lasts forever; defeasible fees end on an event; a life estate ends at a death.
  2. 2.Grantor’s future interests: reversion, possibility of reverter, right of entry; all vested, never subject to the rule.
  3. 3.Grantee’s future interests: remainders (vested or contingent) and executory interests (shifting or springing).
  4. 4.A life tenant is liable for affirmative and permissive waste; ameliorative change is allowed when conditions have changed.
  5. 5.The Rule Against Perpetuities voids interests that might vest more than 21 years after all lives in being die.
  6. 6.California: 90-year wait-and-see; no determinable fee; no fee tail, Shelley’s Case or Worthier Title.

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