Law of Real Property 1 2024-2025 PDF

Law of Real Property 1 2024-2025 Lecture 3 Part 1 Estates 1  Learning Outcomes By the end of this unit, the student will be able to: – Explain the term “an estate in land”. – Describe the various estates in land. – Critically assess the distinctions between types of freeho...

Law of Real Property 1 2024-2025 Lecture 3 Part 1 Estates 1  Learning Outcomes By the end of this unit, the student will be able to: – Explain the term “an estate in land”. – Describe the various estates in land. – Critically assess the distinctions between types of freehold estate. – Explain the doctrine of waste. – Discuss and apply the doctrine of waste to the life tenant’s enjoyment of the property. – Identify the differences between the different kinds of estates. – Examine the distinctions between the conditional and determinable forms of the fee simple.  Estates (Interest in Land) There are now only two types of holding: Freehold and Leasehold. There were originally more types, such as Copyhold, but these are now obsolete. There are three types of freehold estate: – fee simple, – fee tail and – Life estate. This is a popular exam question. Do NOT write about leasehold when they ask for the types of freehold estate!!!  Estates (Interest in Land) Leasehold Freehold – Fee simple – Fee tail – Life  The Estates Leaseholds Freehold estates Fee simple Fee tail Life estate Fee simple Modified fees absolute Fee simple on Determinable condition fee subsequent  The Leasehold Leaseholds Freehold estates Fee simple Fee tail Life estate Fee simple Modified fees absolute Fee simple on Determinable condition fee subsequent  The Leasehold The tenant has exclusive possession of the space for a period of time. Can be fixed-term or periodic. It is like temporary ownership. You will study this more in Real Property II. Monthly Yearly Abercrom Lord Taylor 10 Years bie I 100 Years The Freehold Estates Leaseholds Freehold estates Fee simple Fee tail Life estate Fee simple Modified fees absolute Fee simple on Determinable condition fee subsequent  The Freehold This was granted for a period of lives. When the line of succession ended, the property reverted to the grantor (e.g. the Crown) Abercrombie I Queen Meghan I Abercrombie II Queen Meghan II Abercrombie III  The Fee Tail Leaseholds Freehold estates Fee simple Fee tail Life estate Fee simple Modified fees absolute Fee simple on Determinable condition fee subsequent The Fee Tail Estate  The Fee Tail We start with the one which is obsolete. The object of a fee tail was to keep land in the family. It was limited to the descendents of a particular person. This is usually denoted as “to X and the heirs of his body” Note that the words of procreation are very important. “To X and his heirs” (without the words “of his body”) creates a fee simple estate. If the family line failed, the estate would revert to the grantor or to the remainderman.  The Fee Tail Abercrombie I Lord Taylor Abercrombie Jr Fitch I Abercrombie III Fitch II  The Fee Tail Abercrombie I Fitch I Abercrombie Jr Lord Taylor Abercrombie III Fitch II  The Abolition of the Fee Tail Fee Tail estate is abolished in: – UK, Law of Property Act of 1925 – Barbados, Property Act, 1979-81, Cap.236 s.6 – Grenada, Intestate Act, 1937, Cap.150 s.3 – St. Vincent, Intestate Act, 1947, 24 s.15(2) – Trinidad and Tobago, Land Law and Conveyancing Act, 1981, 20, s.6.  Long Live the Fee Tail Despite the abolition, families have found new methods of having the same effect by means of a trust. Essentially, a person who accepts the ownership from his family does so on the condition of holding it in trust for the next in line. Settlements and Trusts for Sale (not examinable) “Settlement” was the general term for the types of arrangement by which property was given to family members in succession. For example, A might leave property to B with remainder to C, or entailed for D. The term “strict settlement” is used for those settlements which are not trusts for sale.  Settlements (not examinable) The classic strict settlement preserved an estate intact through succeeding generations. This was the fee tail. Financial provisions might be made for other family members by way of a mortgage. Eventually, estates became unmanageable and inalienable and statutes intervened to remove the fetters. Since 1926, all settlements must be made by two deeds – a conveyance to the trustees and a separate trust document. A purchaser needs only the former, and can purchase from the trustees. Megarry and Wade has a nice section on this.  Trusts for Sale (Not examinable) A trust for sale was one which directed the trustees to sell the property, invest the proceeds, and hold the resulting fund on trusts declared by the settlor. Instead of preserving the family estate, it divided it up. Note that the sale is not mandatory, but (unlike with settlements) it is permitted. Co-ownership is treated as a trust for sale, so in any situation where two more more persons own property, that property can be sold (by court order if necessary).  The Life Estate Leaseholds Freehold estates Fee simple Fee tail Life estate Fee simple Modified fees absolute Fee simple on Determinable condition fee subsequent The Life Estate  The Life Estate A life estate is ownership for the balance of a single lifetime. The person whose life is being measured is called the cestui qui vie. There are two types of life estate: – “To Ann for her own life” – “To Bob for the life of Ann” (pur autre vie) The second type might arise, for example, if Ann sold or gave her estate to Bob. Bob’s interest would still end when Ann died. – Ann is the cestui qui vie.  The Life Estate The life estate is coupled with a reversionary interest. The grantor may retain the reversion or grant it to another by way of remainder. Thus, once the life estate comes to an end it either: 1. reverts to the fee simple owner who has a reversionary interest in the property while it exists; or 2.is followed by a remainder interest in the property.  The Life Estate Therefore, where Dominic grants Blueacre “to Ann for life”, Blueacre will revert to Dominic who has the reversion when Ann dies. If Dominic grants Blueacre “to Ann for life, then to Eva in fee simple.” OR “to Ann for life, remainder to Eva”, both of these grants have the same effect - Eva has the remainder interest in Blueacre.  The Life Tenant’s Rights A life tenant has common law rights which include: – The right to emblements (cultivated crops) – The right to remove certain types of fixtures – Limited rights of use and abuse  Life Tenancy (defined by term of a life) Donna Abercrombie I Karan Lord Taylor On Abercrombie’s death Waste  Waste Waste is any conduct or omission that causes damage to the freehold inheritance of land or anything which alters the nature of the property. The remainderman can sue for waste. Remedies for waste – injunction or damages. There are four types of “waste” 1. Equitable 2. Permissive 3. Ameliorating 4. Voluntary  Waste Voluntary waste – purposeful or negligent permanent depletion of resources (e.g. Mines). Permissive waste is failure to maintain the estate, either physically or financially. This can include failure to maintain ordinary repairs, or pay taxes.  Waste Equitable waste – gross acts of waste committed by a tenant, such as removing pipes, timber, glass or ornamental trees. Ameliorative waste is an improvement to an estate that changes its character even if the change increases the land's value. The original grantor may not have intended that the estate be changed.  Waste The fee simple owner had all the rights of use and abuse at common law and was not liable for waste  Waste and the Life Tenant The life tenant is liable for voluntary waste unless the settlement makes him unimpeachable. He is not liable for permissive waste unless the settlement makes him impeachable. He is liable for equitable waste unless the settlement expressly exempts him. He is not generally liable for ameliorating waste nor will an injunction usually be granted to restrain its commission.  Waste and the Life Tenant, cont Detailed rules have evolved with regard to waste in relation to two items. Timber To cut timber would generally be voluntary or even in some circumstances equitable waste, but note exceptions viz: trees which are not timber, estovers timber estates. Minerals It is voluntary waste to open and work a mine which was not already open when the tenancy began.  The Fee Tail Owner and Waste The fee tail owner had the same rights except that he could still be sued for equitable waste. In other words, he could treat the estate as his own, cutting down trees and opening mines. The only exception was if the current owner was the last in the line. Examples of Exam Questions 1. The distinctions between the three types of freehold estate are so tenuous as to render its classification pedantic. Do you agree? Examples of Exam Questions Charles died in 1990, having bequeathed all his personal property to his widow, Jean. He also devised all his real property to her for life or until remarriage whichever should sooner occur and after her death to his nephew Brown absolutely. Jean has entered into a contract to sell all the real property to Mike. Jean has allowed the family home to deteriorate through disrepair, to such an extent that it has become unsafe to use the kitchen during the rainy season. Jean is planning to remove all the paintings which are hanging in the family home to the house of her aunt Jemima, claiming that they are her personal property. Advise Brown.