Estates & Future Interests
Read the granting words, name the present estate, then name what's left over. It's vocabulary plus bookkeeping—and the tables below are the whole vocabulary.
The present estates
| Estate | Magic words | What follows it |
|---|---|---|
| Fee simple absolute | “To Lana” / “to Lana and her heirs” | Nothing—everything is given away |
| Fee simple determinable | Duration: “so long as,” “while,” “during,” “until” | Possibility of reverter in the grantor—automatic forfeiture |
| Fee simple subject to condition subsequent | Condition: “but if,” “provided that,” “on condition that” + a re-entry clause | Right of entry—grantor must act to retake |
| Fee simple subject to executory limitation | Either set of words, but forfeits to a third party | Executory interest—automatic |
| Life estate | “To Liv for life” (or pur autre vie—measured by another's life) | Reversion (grantor) or remainder (third party) |
Rosa deeds the café lot “to Lana so long as it's used as a café.” Lana stops serving coffee—title snaps back to Rosa automatically (determinable → reverter). Write it “but if it ceases to be a café, Rosa may re-enter,” and Rosa must actually exercise her right of entry—until then Lana keeps it.
The life tenant owes the future interest a duty against waste: no destruction (voluntary waste), keep up ordinary repairs and taxes to the extent of income (permissive waste), and no value-changing improvements without consent (ameliorative waste—modern rule tolerates value-increasing changes).
The future interests
- Reversion—what's left after a smaller estate (“to Liv for life”)
- Possibility of reverter—follows a determinable estate
- Right of entry—follows a condition subsequent
- None of the three is subject to RAP
- Vested remainder—ascertained taker, no condition precedent
- Vested subject to open—a class (“to Lana's children”) that can still grow
- Contingent remainder—unascertained taker OR a condition precedent
- Executory interest—cuts short another estate (springing from the grantor, shifting from a grantee)
Naming the third-party interest
Does it take effect by cutting short the prior estate?
Executory interest. “To Lana, but if liquor is sold, to Noodle”—Noodle divests Lana.
Is the taker ascertained, with no condition precedent?
Vested remainder (subject to open if a class can still admit members).
Contingent remainder
Unborn, unascertained, or waiting on a condition—“to Liv for life, then to her first child to pass the bar.”
“To Liv for life, then to Lana if she survives Liv, otherwise to Noodle.” Lana and Noodle hold alternative contingent remainders—mirror-image conditions. Change it to “to Lana, but if Lana fails to survive Liv, to Noodle,” and Lana is vested subject to divestment while Noodle holds a shifting executory interest. Same family outcome, different vocabulary—and the exam tests the vocabulary.
The Rule Against Perpetuities
An interest is void unless it must vest or fail within 21 years of a life in being at creation. It strikes only contingent remainders, executory interests, and class gifts (plus options/rights of first refusal held by non-tenants). Grantor interests and vested remainders are immune. Kill the offending interest, read what's left.
| Trap | Why it violates |
|---|---|
| Age over 21 | “To Liv's first child to reach 25”—Liv could have a new baby, die, and vesting waits 25 years |
| Fertile octogenarian | Anyone alive can legally have more children—class gifts to grandchildren of a living person usually fail |
| Unborn widow | “To Noodle for life, then his widow, then his surviving issue”—the widow might not be born yet |
| Condition on an event with no time limit | “When the property ceases to be a café, to Lana”—could happen in 300 years |
| Bad-as-to-one, bad-as-to-all | A class gift fails entirely if it could vest too late for ANY member |
“To Rosa so long as the land is farmed, then to Lana.” Lana's executory interest could vest centuries out—struck. What remains: Rosa has a fee simple determinable, and the grantor keeps a possibility of reverter (immune from RAP). The examiners love making you read the wreckage.
Modern soften-ups (know they exist): wait-and-see (judge by what actually happens), USRAP's 90-year alternative window, and cy pres reformation. The MBE default is still the common-law rule unless told otherwise.
Where the points are
The traps examiners actually set.
- Most tested
- Determinable vs. condition subsequent (automatic vs. elective forfeiture); vested vs. contingent remainders; executory interests cutting estates short; RAP applied to class gifts and options.
- Classic traps
- Running RAP against a reversion or right of entry (immune); missing the alternative-contingent-remainder pattern; forgetting a life estate pur autre vie survives the tenant's death; “to A and her heirs” giving the heirs anything (words of limitation, not purchase); striking the whole grant instead of just the void interest.
Keep going: Real Property Attack Sequences Real Property outline Recording Acts deep dive