An act that unreasonably interferes with the health, safety, or property rights of the community

Recovery is availble only if a private party has suffered unique damages

Estates

Present Possessory Interest

1. Fee Simple Absolute

2. Defeasible Fees

3. Fee tail

4. Life Estate

Estates

Present Possessory Interest

Fee Simple Absolute

• Largest estate permitted by law
• Invests holder of fee with full possessory rights, now and in the future
• Holder can sell, divide or devise it
• If holder dies intestate, heirs will inherit it
• Indefinite or potentially indefinite duration
• Common law rule requiring technical words of inheritance ("and his heirs") has been abolished by statute in WA

Estates

Present Possessory Estates

Defeasible Fees

• Defeasible fees are fee simple estates of potentially infinite duration that can be terminated by the happening of a specific event
• Result in forfeitures - courts will construe, a purported limitation as a mere declaration of the grantor's purpose or motive for making the grant

Present Possessory Estates

Defeasible Fees

Fee Simple Determinable (and Possibility of Reverter)

An estate that automatically terminates on the happening of a state event and goes back to the grantor

"for so long as"; "while"; "during"; "until"

Conveyed by the owner therof, but his grantee takes the land subject to the estate's being terminated by the happening of the event

Possibility of reverter is future interest b/c it becomes possessory to grantor only upon occurrence of stated event

- does not need to be expressly retained

- can be transferred inter vivos or devised by will and descends to owners heirs if she dies intestate

Present Possessory Estates

Defeasible Fees

Fee simple subject to condition subsequent

Grantor must take affirmative steps to terminate the estate of the grantee if the stated event occurs; necessary to expressly preserve right of entry in g'or; can only be reserved for grantor (not executory interest)

Re-entry

right of entry

"upon condition that"

"provided that"

"but if"

"if it happens that"

must be exercised in reasonable time

Present Possessory Estate

Defeasible Fee

Executory Interest

Possibility of reverter arises only in the grantor, not in a third party.  If a comparable interest is created in 3rd p., it's an executory interest

so long as

until

Present Possessory Estate

Fee Tail

"to A and the heirs of his body" - limits inheritance to the lineal descendants of the grantee  

If no lineal descendants survived g'ee, property either reverts to g'or or successors or passed to designated remainderman.

Most states have abolished fee tail; In WA - no statute or court decision regarding fee tail so this is probably FSA

Present Possessory Estate

Life Estate

Not terminable at any fixed or computable period of time, but cannot last longer than the life or lives of one or more of the persons

"O to A for life"

Can expressly include power to commit waste or to convey FSA or can convey for the life of a 3rd party

Future interest is reversion if no other future interest is named

Measuring life - original measuring life, even if transferred interest

Waste - holder of non-possessory interest (future, mortgage, seller) can bring suit against the holder of teh present possessory interest for either voluntary or permissive waste.

Remedies - damages (treble if voluntary) or injunction

Present Possessory Estate

Life Estate

Life Estate Pur Autre Vie (Life of Another)

A life estate measured by the life of someone other than the life tenant.

Created directly by Grantor

"To A for the life of B" - A's estate ends when B dies

Created indirectly

"To B for life" - and B later conveys his interest to A; A owns an estate measured by B's life

Present Possessory Estate

Life Estate

Rights and Duties of Life Tenant - Doctrine of Waste

Tenant for life is entitled to all the ordinary uses and profits of the land, and may be given power to dispose of the land

Life tenant cannot lawfully do any act that would injure the interests of the person who owns the remainder of the reversion; if he does the future interest holder may sue for damages and/or to enjoin such acts

Present Possessory Estate

Estates

Waste

Affirmative (Voluntary) Waste

Life tenant may not consume or exploit natural resources on property (timber, materials, oil)

Exceptions:

-reasonable/necessary amounts for repair and maintenance of the land

-where life tenant is expressly given the right to exploit resources in the grant

-where, prior to the grant, the land was used in exploitation of such natural resources - g'or likely had the intent for the g'ee to exploit

-where land is suitable only for such exploitation

Present Possessory Estate

Estates

Waste

Permissive Waste

Occurs when life tenant allows land to fall into disrepair or fails to take reasonable measures to protect the land

- Obligation to Repari - LT is obligated to keep land and structures in reasonable state of repair; no obligation to make improvements

-Obligation to pay interest on encumbrances - LT is obligated to pay interest on any encumbrances on the land to the extent of the income or profits from the land; does not pay on principle of debt

-Obligation to pay taxes - LT is obligated to pay all ordinary taxes on land to the extent of the income or profits from the land

-Special assessments for public improvements - if life of public improvement on land is shorter than expected duration of life estate, LT is expected to pay all of the assessements

Present Possessory Estate

Estates

Waste

Ameliorative Waste

Acts that benefit the property economically; occurs when use of property is substantially changed, but change increases value of property

LT can substantially alter or demolish existing buildings if the market value of the fture interests is not diminished and (1) the remaindermen do not object; OR (2) a substantial change in the neighborhood conditions has deprived the property of usefulness in its current form

Present interest, but not immediate possession

"O to A for life, then on A's death, to B in fee simple"

1. In Grantor

2. In someone other than Grantor

3. Shelly's Case

4. Worthier title

5. Rule Against Perpetuities

Future Interests

In Grantor

a. possibility of reverter

b. right of entry

c. reversion (life estate or less) - person can create less than a life estate; residue is left in grantor which arises by operation of law is a reversion

"to A for life" or "to A for 99 years" - O has reversion in fee simple

Reversions are transferrable, devisable by will and descendible by inheritance

All reversionary interests are "vested" - not subject to RAP

Future Interest

In someone other than Grantor

1. Remainder -

2. Executory interest

-For a future interest to be a remainder it must have been created at the same time and with the same instrument as the prior estate, which must be a life estate, must not shorten the prior estate (upon divorce), and there must not be a time gap

Future Interests

Remainders

-A remainder is a future interest created in a transferee that is capable of becoming a present interest upon the natural termination of the preceding estates created in the same disposition. 

 -Must be expressly created by in the instrument creating the intermediate possessory estate

-Always follow life estates

- Can never follow a fee simple (fsa has potentially infinite duration)

- Types of remainders - a remainder is vested unless the beneficiary is unascertainable or there is a condition precedent, in which it is contingent

Executory interests:

Shifting

Springing

Future Interests