Ownership of real property - Alienability, descendibility, a...

Learning Outcomes

This article explains ownership of real property, including:

• Distinguishing present and future interests in common exam conveyances and pinpointing who has the right to possess, sue, or convey at each stage of the timeline.
• Determining for each estate or interest whether it is alienable inter vivos, devisable by will, and descendible by intestacy, and explaining the practical consequences of each characteristic.
• Applying transferability rules to fee simple, life estates, leaseholds, defeasible fees, and all major future interests, with emphasis on how MBE questions frame attempted sales, gifts, and devises.
• Recognising when express conditions—especially survival conditions or time limits—prevent an interest from vesting or passing at death, and tracing who instead holds the resulting reversion or remainder.
• Evaluating the validity and effect of disabling, forfeiture, and promissory restraints on alienation in both fee and lesser estates, and predicting how courts treat invalid restraints on the MBE.
• Analysing when the Rule Against Perpetuities or statutory limits on long‑running interests make a future interest void, leaving nothing that can be validly conveyed, devised, or inherited.
• Using a structured sequence—classify the interest, identify conditions, check RAP, then apply transfer rules—to attack complex MBE questions and avoid common trap answers about who takes.

MBE Syllabus

For the MBE, you are required to understand ownership of real property and the transfer of estates and future interests, with a focus on the following syllabus points:

• Present estates (fee simple, defeasible fees, life estates) and associated future interests
• Remainders (vested and contingent), reversions, possibilities of reverter, rights of entry, and executory interests
• Alienability, descendibility, and devisability of present and future interests
• Valid and invalid restraints on alienation in fee estates and lesser estates
• The effect of the Rule Against Perpetuities on future interests and class gifts
• Statutory and common-law limits on long‑running grantor interests (e.g., rights of entry, possibilities of reverter)

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following future interests is always freely transferable during life, by will, and by intestacy?
   1. Contingent remainder
   2. Executory interest
   3. Indefeasibly vested remainder
   4. Right of entry
2. Which of the following statements is correct regarding a fee simple absolute?
   1. It is not devisable.
   2. It is not descendible.
   3. It is subject to valid total restraints on alienation.
   4. It is fully alienable, devisable, and descendible.
3. A grantor conveys "to A for life, then to B if B survives A." Which interest is NOT freely devisable in the sense that B can guarantee it will pass under B's will?
   1. B's contingent remainder
   2. A's life estate
   3. Grantor's reversion
   4. None of the above

Introduction

Ownership of real property involves two linked questions:

• Who has the right to possession now (the present interest)?
• Who has the right to possession in the future (the future interest holder)?

For exam purposes, it is not enough to identify the type of estate. You must also know how that interest can move from person to person:

• During the holder’s lifetime (alienability)
• At the holder’s death by will (devisability)
• At the holder’s death without a will (descendibility)

These characteristics determine who can sue, who can convey good title, and which parties have claims when a condition fails or a holder dies.

Key Term: Present Interest
A legal right giving the holder an immediate right to possession of the land (for example, a fee simple or life estate).

Key Term: Future Interest
A legal right to possession that will or may begin in the future, such as a remainder, reversion, possibility of reverter, right of entry, or executory interest.

Present Interests: Fee Simple, Life Estate, Leasehold

Key Term: Fee Simple Absolute
The largest estate in land. Potentially infinite in duration, with no accompanying future interest in another party. It is fully alienable, devisable, and descendible.

The fee simple absolute is the default estate. On the MBE, a grant "to A" or "to A and her heirs" is treated as creating a fee simple absolute unless clear limiting language appears.

Because the fee simple absolute is the standard “ownership” estate:

• A can sell it, give it away, or mortgage it (alienability)
• A can leave it to anyone by will (devisability)
• If A dies intestate, it passes to A’s heirs under intestacy statutes (descendibility)

Any total restraint on alienation of a fee simple (for example, “to A, but A may never transfer this land”) is void. The restraint is struck, but the fee simple remains.

Key Term: Life Estate
A present interest measured by the life of a person (the measuring life). It ends automatically at that person’s death.

Life estates are also transferable, but the duration never changes:

• A “to A for life” life estate can be sold, leased, or given away; the transferee simply holds “for A’s life” (pur autre vie).
• A can devise or pass by intestacy only the portion of the life estate still existing at A’s death. If A is the measuring life, the estate ends at A’s death and nothing is left to pass.

Leaseholds (tenancies for years, periodic tenancies) are likewise generally alienable, devisable, and descendible unless the lease or statute says otherwise.

Key Term: Alienability
The ability of an interest holder to transfer that interest voluntarily during life (for example, by sale or gift).

Key Term: Descendibility
The ability of an interest to pass to the holder’s heirs through intestate succession if the holder dies without a valid will.

Key Term: Devisability
The ability of an interest to pass by will at the holder’s death.

Defeasible Fees and Grantor Future Interests

Many fee simple estates are defeasible: they can end early upon the happening of a specified event.

Key Term: Possibility of Reverter
A future interest in the grantor that follows a fee simple determinable and becomes possessory automatically when the stated condition is violated.

Key Term: Right of Entry (Power of Termination)
A future interest in the grantor that follows a fee simple subject to condition subsequent and becomes possessory only if the grantor affirmatively re‑enters or sues to recover possession.

• Fee simple determinable (“so long as,” “until,” “while”): present estate is fully transferable; the grantor holds a possibility of reverter.

  • Majority rule: a possibility of reverter is alienable, devisable, and descendible.

• Fee simple subject to condition subsequent (“but if,” “provided that,” “on condition that”): present estate is fully transferable; the grantor holds a right of entry.

  • Right of entry is always descendible and devisable.
  • Majority rule: it is not transferable inter vivos unless the jurisdiction has modified the common law; treat it as non‑alienable on the MBE unless the fact pattern says otherwise.

Some states limit how long a possibility of reverter or right of entry can last (for example, requiring re‑recording every 30–40 years). If the interest expires by statute, there is nothing left to transfer.

Future Interests in Transferees: Remainders and Executory Interests

Key Term: Vested Remainder
A future interest in a transferee that is given to an ascertained person and is not subject to a condition precedent other than the natural termination of prior estates.

Key Term: Contingent Remainder
A future interest in a transferee that is either given to an unascertained person or is subject to a condition precedent.

Key Term: Executory Interest
A future interest in a transferee that cuts short another interest (shifting) or follows a gap after a prior estate ends (springing), rather than waiting for the natural termination of a prior estate.

Key Term: Reversion
A future interest left in a grantor who has not given away their entire estate (for example, “to A for life”; O keeps the reversion).

All remainders and executory interests are future interests in transferees, not in the grantor.

Vested Remainders

Indefeasibly vested remainders and vested remainders subject to open or subject to complete divestment are the most transferable future interests.

• Indefeasibly vested remainder (for example, “to A for life, then to B”):

  • Alienable, devisable, and descendible.
  • If B dies before A, B’s estate or heirs take when A’s life estate ends.

• Vested remainder subject to open (class gift, for example, “to A for life, then to A’s children”; A has one child C):

  • C’s share is alienable, devisable, and descendible.
  • But C’s share is subject to partial divestment if more children are born.

• Vested remainder subject to complete divestment (for example, “to A for life, then to B, but if B smokes, then to C”):

  • B’s interest is fully transferable, but it can be cut off if the stated condition occurs.

Contingent Remainders and Executory Interests

Modernly, and for MBE purposes, contingent remainders and executory interests are presumed transferable, but the condition attached to the interest limits what, if anything, actually passes at the holder’s death.

• They are generally devisable and descendible unless the condition itself is survival (for example, “if B survives A”).
• They are usually alienable inter vivos in most states; older common‑law limitations sometimes appear in older cases but are less important on the MBE than the effect of the condition precedent.

The critical exam point: if the condition is that the transferee survive someone else, and the transferee dies first, the interest never vests. There is then nothing for the transferee to alienate, devise, or pass by intestacy.

Key Term: Executory Interest
A future interest in a transferee that does not wait for the natural expiration of the prior estate but instead divests another interest or springs out of the grantor.

Transferability Rules: Summary Table

The following table summarises standard MBE assumptions about transferability:

• *Life estates are transferable but always measured by the original measuring life, not the transferee’s life.
• **On the MBE, assume no inter vivos transfer of a right of entry unless the question says otherwise.
• ***Transferable in form, but nothing passes if the interest never vests (for example, survival condition not met).

Restraints on Alienation

Key Term: Restraint on Alienation
A clause in a conveyance that purports to limit the grantee’s ability to transfer the interest.

Restraints appear frequently in fee simple grants and sometimes in life estates.

Three classic types:

• Disabling restraint: “Any attempt by A to transfer is void.”
• Forfeiture restraint: “If A attempts to transfer, the property reverts to O.”
• Promissory restraint: “A promises not to transfer; if A does, A breaches a covenant.”

On the MBE:

• Total restraints on a fee simple are void. The fee simple becomes freely alienable.
• Reasonable partial restraints (for example, a time‑limited right of first refusal or a restriction within a condominium regime) may be valid.
• Restraints on lesser estates (life estates, leaseholds) are more likely to be upheld if reasonable.

If a restraint is void, it is simply ignored; it does not invalidate the entire grant.

Rule Against Perpetuities and Transferability

Key Term: Rule Against Perpetuities
At common law, “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.”

The Rule Against Perpetuities (RAP) applies only to certain future interests:

• Contingent remainders
• Executory interests
• Vested remainders subject to open (class gifts)
• Certain powers of appointment and options

It never applies to:

• Present possessory estates
• Equitable interests fully vested in identified beneficiaries
• Future interests in the grantor (reversions, possibilities of reverter, rights of entry)

If an interest violates RAP:

• The offending future interest is void from the outset.
• Because it never existed, it is neither alienable, devisable, nor descendible.
• Typically, the property stays with or reverts to the grantor (or another validly designated taker).

RAP questions on the MBE often test this indirectly through transferability:

• A class gift subject to RAP may be void in its entirety if any potential class member could vest outside the perpetuities period.
• A contingent future interest that is void under RAP cannot pass through a will or intestacy, even if the named beneficiary later satisfies the condition.

Analysing Transfer Questions on the MBE

When you face an estates/future interests transfer question, use this sequence:

1. Identify the present and future interests.

   • Who has what now? Who is next in line? Does the grantor keep anything?

2. Classify the future interest.

   • Remainder vs executory interest vs grantor interest; vested vs contingent.

3. Check for conditions precedent, especially survival conditions.

   • “If B survives A” means B’s interest fails if B dies first; nothing passes to B’s estate.

4. Ask whether RAP is implicated.

   • Is the future interest of the type subject to RAP? Could it vest too remotely?

5. Apply transferability rules.

   • Vested = freely transferable.
   • Contingent/executory = transferable in form, but subject to failure if the condition never occurs.

6. Match facts about deaths or attempted transfers to these rules.

   • If the holder dies before the condition is met, and survival is the condition, there is no interest to transfer.

Worked Example 1.1

O conveys "to A for life, then to B and her heirs." Is B's interest alienable, devisable, and descendible?

Answer:
Yes. B has an indefeasibly vested remainder in fee simple. It is fully transferable inter vivos, by will, and by intestacy. If B dies before A, B’s estate or heirs step into B’s shoes and take when A’s life estate ends.

Worked Example 1.2

O conveys "to A for life, then to B if B survives A." B dies before A. Can B's heirs inherit B's interest?

Answer:
No. B held a contingent remainder subject to the condition precedent of surviving A. Because B did not satisfy the condition, B’s interest never vested. An unvested contingent interest cannot pass to B’s heirs; instead, O (or O’s successors) hold a reversion in fee simple.

Worked Example 1.3

O conveys "to A for life, then to B, but if B ever smokes on the property, then to C." Is B's interest devisable?

Answer:
Yes. B has a vested remainder in fee simple subject to an executory limitation in favour of C. Because B’s interest is vested, B can devise it. If B dies without having smoked on the property, B’s devisee takes B’s interest, still subject to being divested if the condition (smoking on the property) later occurs.

Worked Example 1.4

O conveys "to A so long as the land is used as a school, then to B and her heirs." Is B’s interest transferable?

Answer:
B holds an executory interest that will divest A’s fee simple determinable if the land ceases to be used as a school. Executory interests are generally alienable, devisable, and descendible. However, because this is a future interest in a transferee following a defeasible fee, you must also consider RAP. If there is no time limit on when the school use might end, the executory interest may violate RAP and be void, leaving A with a fee simple determinable and O (rather than B) with a possibility of reverter. A void executory interest cannot be transferred.

Worked Example 1.5

O conveys "to A for life, then to B’s children." At the time of the conveyance, B has one child, C. After the conveyance, C sells her interest to X, and later B has another child, D. When A dies, who takes?

Answer:
At the time of the conveyance, C has a vested remainder subject to open; unborn children of B hold contingent remainders. C’s vested remainder is alienable, so X steps into C’s shoes and holds that share. When D is born, the class opens and D acquires a vested remainder subject to open. When A dies, the class closes; X takes C’s share, and D takes D’s share.

Exam Warning

Be careful: Not all future interests are freely transferable during life in practice. Rights of entry are commonly non‑assignable inter vivos under the majority rule, and contingent interests subject to survival conditions may never vest and so may leave nothing to transfer. Always identify both the type of interest and any express conditions attached.

Revision Tip

For MBE questions, always ask:

• Is the interest vested or contingent?
• Is there a condition precedent, especially survival?
• Is the interest of a type subject to RAP?
• Is this a grantor interest (almost always transferable) or a transferee interest (sometimes limited by RAP or conditions)?
  Answering these in order will guide your transferability analysis.

Key Point Checklist

This article has covered the following key knowledge points:

• Fee simple absolute is the default estate and is fully alienable, devisable, and descendible.
• Life estates and leaseholds are generally transferable, but always measured by the original measuring life or lease term.
• Defeasible fees are transferable; their associated grantor interests (possibilities of reverter and rights of entry) are generally descendible and devisable, but rights of entry are usually not transferable inter vivos.
• Indefeasibly vested remainders and vested remainders subject to open or divestment are fully transferable.
• Contingent remainders and executory interests are generally transferable, but if a survival or other condition precedent is never satisfied, the interest never vests and nothing passes at death.
• RAP applies to contingent remainders, executory interests, and some class gifts; interests that violate RAP are void and cannot be transferred.
• Absolute restraints on alienation of a fee simple are void; reasonable, partial restraints and restrictions on lesser estates may be valid.
• On the MBE, always classify the interest, identify any conditions, consider RAP, and then apply the standard transferability rules.

Key Terms and Concepts

• Present Interest
• Future Interest
• Fee Simple Absolute
• Life Estate
• Alienability
• Descendibility
• Devisability
• Vested Remainder
• Contingent Remainder
• Executory Interest
• Reversion
• Possibility of Reverter
• Right of Entry (Power of Termination)
• Restraint on Alienation
• Rule Against Perpetuities