Ownership of real property - Present estates

Learning Outcomes

This article examines present possessory estates in real property, including:

• distinguishing present estates from future interests and linking each to the right to present possession, remedies, and exam consequences;
• identifying, classifying, and diagramming fee simple absolute, each type of defeasible fee, and life estates (including pur autre vie and defeasible life estates) from typical MBE granting language;
• differentiating determinable fees, fees subject to condition subsequent, and fees subject to executory limitation by focusing on durational versus conditional language, automatic forfeiture versus right of entry, and who holds the future interest;
• matching each present estate with the correct future interest (possibility of reverter, right of entry, executory interest, reversion, vested or contingent remainder) and predicting which party has standing to sue;
• applying the doctrine of waste—affirmative, permissive, and ameliorative—to life tenant fact patterns, including those involving natural resources, taxes, repairs, and neighborhood change;
• analyzing multi-party conveyances that combine present and future interests, such as life estates followed by remainders or executory interests, and working through step‑by‑step who holds what, when, and on what conditions;
• using these classifications to answer MBE‑style questions efficiently, avoid common traps involving ambiguous purpose language and invalid restraints on alienation, and choose the best answer under timed conditions.

MBE Syllabus

For the MBE, you are required to understand the fundamental present possessory estates in land, with a focus on the following syllabus points:

• The nature of present possessory interests versus future interests.
• Fee simple absolute: its characteristics, creation, and transferability.
• Defeasible fees: distinguishing fee simple determinable, fee simple subject to condition subsequent, and fee simple subject to executory limitation, including the language used to create them and the future interests retained by the grantor or granted to a third party.
• Life estates: creation, duration (including pur autre vie), and the life tenant's rights and duties, particularly concerning the doctrine of waste.
• The basic future interests associated with defeasible fees and life estates (possibility of reverter, right of entry, executory interest, reversion, remainder).
• The impact of restraints on alienation and the Rule Against Perpetuities at a basic level where they intersect with present estates.

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. Grantor conveys Blackacre "to Grantee and her heirs so long as the premises are used for residential purposes." Grantee builds a factory on Blackacre. The estate held by Grantee immediately after building the factory is:
   1. Fee simple absolute.
   2. Fee simple subject to condition subsequent.
   3. None; the property automatically reverted to Grantor.
   4. Fee simple subject to executory limitation.
2. Which of the following phrases most clearly creates a fee simple subject to condition subsequent?
   1. "To A for life, then to B."
   2. "To A and his heirs, but if A ceases to farm the land, Grantor may re-enter."
   3. "To A and his heirs until A graduates from law school."
   4. "To A and his heirs."
3. A life tenant cuts down all the mature oak trees on the property to sell the timber, significantly reducing the property's value. This action most likely constitutes:
   1. Permissive waste.
   2. Ameliorative waste.
   3. Affirmative waste.
   4. No waste, as the life tenant has the right to use the property's resources.
4. O conveys Whiteacre "to A for the life of B." A dies while B is still alive. What happens to Whiteacre?
   1. It reverts to O immediately.
   2. It passes to A's heirs or devisees until B dies.
   3. It passes to B for the rest of B's life.
   4. It passes to O's heirs immediately.

Introduction

An estate in land defines the extent and duration of a person's interest in real property. A person's ownership interest can be divided in time between a present interest (who has the right to possess now) and a future interest (who has the right to possess later).

Key Term: Present Estate
An interest in land that includes the right to present possession.

Key Term: Future Interest
A non‑possessory interest in land that may or will become possessory in the future, upon the occurrence of a specified event or the natural termination of a prior estate.

The key distinction for the exam is timing of possession. Whoever has the present estate can use, occupy, and enjoy the land now, subject to the rights of those holding future interests. Those future interest holders may have powerful remedies (like injunctions for waste), but they cannot currently possess unless and until their interest becomes possessory.

Modern MBE questions almost always give you a conveyance from a grantor to one or more recipients and ask you to classify the estates created.

Key Term: Grantor
The person conveying an interest in land (e.g., "O conveys Blackacre to A").

Key Term: Grantee
The person receiving the interest in land from the grantor.

Analyzing Conveyances: A Step‑by‑Step Approach

When you see a conveyance on the MBE, work through it methodically:

• Identify who has the right to possess now (present estate).
• Identify who has the right to possess later (future interest).
• Look for durational language (e.g., "so long as," "while," "until") or conditional language (e.g., "but if," "provided that," "on condition that") that may cut down the estate.
• Decide whether the property returns to the grantor or passes to a third party upon the happening of an event.
• Ask whether termination of the present estate is automatic or depends on the grantor exercising a right.

A single grant can create several different interests at once. For example:

• "O conveys Blackacre to A for life, then to B and her heirs, but if B has not graduated from law school by A's death, then to C and his heirs."

This grant simultaneously creates:

• A present life estate in A.
• A future remainder in B.
• A future executory interest in C that can cut off B’s remainder.

You must be able to untangle these layered interests.

For the MBE, the main present estates you must recognize are:

• Fee simple absolute.
• Defeasible fee simples (determinable, subject to condition subsequent, subject to executory limitation).
• Life estates (including life estates pur autre vie and defeasible life estates).

The rest of this article examines each in turn.

Exam Tip: When reading a grant, ignore punctuation and labels given by the parties (e.g., "This deed creates a determinable estate"). Courts and the MBE focus on the operative language of duration and condition, not the drafter’s labels.

Fee Simple Absolute

The fee simple absolute represents the most complete ownership interest recognized by law. It is the default estate presumed in a grant unless the grant explicitly contains words of limitation or condition creating a lesser estate.

Key Term: Fee Simple Absolute
The largest possible estate in land, denoting absolute ownership of potentially infinite duration, fully transferable, deviseable, and descendible, and not subject to divestment or termination on the happening of any event.

Some students remember “fee = forever”: a fee simple can potentially last forever, and the fee simple absolute has no built‑in end point.

Creation and Presumption

At common law, the phrase "and his heirs" was required to create a fee simple absolute. For example, "to A and his heirs" created a fee simple in A. The heirs did not receive a present interest; the phrase simply indicated that A's estate was of infinite duration.

Modernly:

• Most jurisdictions presume a fee simple absolute from a grant "to A" unless the grant contains explicit language limiting duration (e.g., "for life") or adding a condition that can terminate the estate.
• Words like "and his heirs" or "and her heirs" are still valid but are treated as words of limitation, not as giving heirs any present rights.
• If a conveyance is ambiguous and could reasonably be read either as a fee simple or as a lesser estate, courts favor the fee simple, because it promotes free alienation and stability of title.

The MBE often tests this presumption with grants using bare names or motivation language:

• "O conveys Blackacre to A."
  Unless the grant says otherwise, A takes a fee simple absolute, not a life estate.

• "O conveys Blackacre to A to use as a residence."
  This is still usually a fee simple absolute; the phrase "to use as a residence" is a statement of purpose, not a durational limitation.

Key Term: Defeasible Fee
An estate in fee simple that may last forever but can terminate or be cut short upon the occurrence of a specified future event.

Characteristics

• Duration: Potentially infinite.
• Transferability: Freely alienable (transferable inter vivos), deviseable (by will), and descendible (by intestate succession).
• Future Interest: None. The grantor conveys the entire interest and retains nothing.

In practical terms, a fee simple absolute allows the owner to do whatever they like with the property, subject only to external limits such as zoning laws, private restrictions (covenants), and nuisance rules. The doctrine of waste does not apply to a fee simple absolute owner because there is no future interest holder to protect.

Restraints on Alienation

Because a fee simple absolute is the most complete form of ownership, the law is hostile to attempts to completely bar its transfer.

A restraint on alienation is a clause that purports to restrict an owner’s ability to transfer their interest.

Key Term: Restraint on Alienation
A provision in a conveyance or will that purports to limit the owner’s ability to sell, give away, or otherwise transfer the property interest.

Common types:

• Disabling restraint: Purports to make attempted transfers ineffective.
  Example: "To A and her heirs, and any attempt by A to transfer this property shall be void."

• Forfeiture restraint: Provides that an attempted transfer causes the estate to forfeit or shift.
  Example: "To A and her heirs, but if A ever attempts to sell the property, it shall revert to O."

• Promissory restraint: The grantee promises not to transfer, and breach gives rise to contract remedies.

Rules (especially important for the MBE):

• A total disabling restraint on a fee simple absolute (e.g., "to A and her heirs, but any attempt to transfer this property shall be void") is generally void as against public policy.
• Absolute forfeiture or promissory restraints on a fee simple are usually void as well.
• Partial restraints (e.g., "A must offer the property to B before selling to others") may be upheld if they are reasonable in duration and scope, especially in commercial settings or family‑limited contexts.
• Even when the restraint is void, the original grant (e.g., the fee simple) still stands; courts simply ignore the restraint.

On the MBE, a common trap is a fee simple followed by an invalid restraint. The correct classification is usually:

• A fee simple absolute in the grantee, with the restraint struck as invalid.

Distinguishing Fee Simple Absolute from Lesser Estates

When the grant contains limiting language, the estate is not fee simple absolute. For example:

• "To A for life" → A has a life estate, not a fee simple.
• "To A so long as the land is used as a farm" → A has a defeasible fee, not a fee simple absolute.

Ambiguous language is often important:

• "To A for the purpose of building a church."
  This is usually a fee simple absolute with no defeasible language; “for the purpose of” is merely motivational.

• "To A, so that the land may be used as a church, and if it is not so used, O may reenter and retake."
  The second clause ("if it is not so used, O may reenter and retake") adds a condition subsequent and creates a defeasible fee.

Worked Example 1.1

Consider this simple conveyance: O conveys Blackacre "to A and her heirs."

What estate does A have, and do A's heirs receive any present interest?

Answer:
A holds a fee simple absolute. The words "and her heirs" are words of limitation, indicating that A's estate is of potentially infinite duration and can pass to her heirs at death, but they do not give the heirs a present interest. A’s heirs are not identified until A’s death, and until then, they have nothing.

Defeasible Fees

Defeasible fees are estates of potentially infinite duration (like the fee simple absolute) but can be terminated or divested upon the happening of a specified event or condition. They are frequently used to control the use or ownership of property after the grant.

Key Term: Defeasible Fee
A fee simple estate that may last forever but is subject to termination or divestment upon the occurrence of a specified event or condition.

There are three types of defeasible fees:

• Fee simple determinable.
• Fee simple subject to condition subsequent.
• Fee simple subject to executory limitation.

The classification depends on:

• Whether forfeiture is automatic or optional, and
• Whether the property goes back to the grantor or to a third party upon the event.

Exam Tip: The same words (e.g., "so long as," "but if") can appear in different types of defeasible fees. Focus on (1) whether the forfeiture is automatic and (2) who takes upon the event: the grantor (possibility of reverter/right of entry) or a third party (executory interest).

Fee Simple Determinable

This estate automatically terminates upon the occurrence of a specified event, and the property reverts to the grantor (or the grantor's successors) without the need for any action.

Key Term: Fee Simple Determinable
A fee simple estate that automatically ends upon the happening of a stated event, with possession reverting to the grantor (or the grantor’s successors).

Creation (Fee Simple Determinable)

A fee simple determinable is created by clear durational language, such as:

• "so long as"
• "while"
• "during"
• "until"
• "unless" (when used in a durational sense)

Examples:

• "O conveys Blackacre to School Board so long as the premises are used for school purposes."
• "O conveys to City while the land is used as a public park."
• "O conveys to A and A’s heirs, until the land is no longer used as a farm."

The durational phrase is usually placed right after the description of the estate.

Effect of Breach (Fee Simple Determinable)

When the specified use stops, the estate automatically ends. The grantor does not need to re-enter or file a lawsuit to terminate the estate:

• The moment the land is no longer used for the designated purpose, title automatically reverts to the grantor (or the grantor’s successors).
• If the grantee remains in possession afterward, their possession is wrongful (like a trespasser).

Because termination is automatic, the key exam issue is to spot the triggering event in the fact pattern and recognize that ownership has already shifted, even if no one has acted.

Future Interest in the Grantor: Possibility of Reverter

The grantor retains a possibility of reverter.

Key Term: Possibility of Reverter
A future interest retained by the grantor when a fee simple determinable is created, which becomes possessory automatically upon termination of the determinable estate.

At common law, the possibility of reverter arose automatically and did not need to be mentioned. Modern practice often states it expressly, but it will exist even if unstated.

Transferability:

• Traditionally, the possibility of reverter could not be transferred inter vivos; it could only pass through descent.
• Modernly (and on the MBE unless stated otherwise), treat the possibility of reverter as freely transferable by deed, devise, or intestacy.

Importantly, the possibility of reverter is a future interest in the grantor, and it is not subject to the Rule Against Perpetuities.

Fee Simple Subject to Condition Subsequent

This estate continues indefinitely until the specified event occurs, at which point the grantor (or the grantor's successors) has the power, but not the obligation, to terminate the estate by taking action.

Key Term: Fee Simple Subject to Condition Subsequent
A fee simple estate that does not automatically terminate upon the occurrence of a specified event; instead, the grantor has the right to terminate the estate by exercising a power of termination (right of entry).

Creation (Fee Simple Subject to Condition Subsequent)

A fee simple subject to condition subsequent is created by:

• Conditional language (e.g., "but if," "provided that," "on condition that"), and
• Language expressly reserving a right in the grantor to re-enter or retake the property.

Common formulations:

• "To A and his heirs, but if the property is ever used for commercial purposes, grantor may re-enter and retake."
• "To Church, upon condition that the premises are used for worship, and if not, O retains a right of entry."
• "To City, provided that the land is used as a park; if it ceases so to be used, O reserves the power to terminate."

Without explicit reservation of a right of entry or power to terminate, many courts (and the MBE) prefer to construe ambiguous language as a fee simple absolute or, if possible, a fee simple determinable.

Effect of Breach (Fee Simple Subject to Condition Subsequent)

If the condition occurs, the estate does not automatically terminate. Instead:

• The grantor may choose to exercise the right of entry by bringing an ejectment action or otherwise lawfully re-entering.
• If the grantor does nothing, the grantee’s estate continues, even though the condition has been violated.

There is no fixed time limit in the black‑letter common law for exercising the right of entry, but laches or a statute of limitations may bar stale claims.

Future Interest in the Grantor: Right of Entry

The grantor holds a right of entry, also called a power of termination.

Key Term: Right of Entry
A future interest retained by the grantor when a fee simple subject to condition subsequent is created; it gives the grantor the power to terminate the grantee’s estate after a condition occurs.

Transferability:

• Traditionally, the right of entry could descend to the grantor’s heirs and be devised by will but was not transferable inter vivos.
• Some modern statutes allow inter vivos transfer. Unless the question indicates otherwise, assume the traditional rule on the MBE: devisable and descendible, but not transferable between living persons.

Fee Simple Subject to Executory Limitation (or Interest)

This estate automatically terminates upon the occurrence of a specified event, but the property then passes to a third party rather than reverting to the grantor.

Key Term: Fee Simple Subject to Executory Limitation
A fee simple estate that automatically divests in favor of a third party upon the occurrence of a specified event.

Creation (Fee Simple Subject to Executory Limitation)

The conveyance uses the same kinds of durational or conditional language as the other defeasible fees, but instead of the property reverting to the grantor, it shifts to someone else:

• "To A and her heirs, but if alcohol is ever sold on the premises, then to B and her heirs."
• "To City so long as the land is used as a park, then to Green Charity."

The person who may take upon the event (B, Green Charity) is a third party, not the grantor, so the present estate is a fee simple subject to executory limitation.

Future Interest in the Third Party: Executory Interest

The third party holds an executory interest.

Key Term: Executory Interest
A future interest in a transferee (not the grantor) that cuts short either a prior transferee’s interest or the grantor’s retained interest upon the happening of a specified event.

Executory interests come in two main forms:

• Shifting executory interest – cuts short the interest of another transferee (e.g., from A to B).
• Springing executory interest – cuts short the grantor’s interest (e.g., from O to A at a future date or upon a future event).

Key Term: Shifting Executory Interest
An executory interest in a transferee that divests or cuts short the interest of another transferee upon the occurrence of a stated condition.

Key Term: Springing Executory Interest
An executory interest in a transferee that divests or cuts short the grantor’s retained interest or the grantor’s estate in possession, usually after a gap in possession.

For present estates, the key is that any defeasible fee that automatically passes to a third party on the event (rather than back to the grantor) is a fee simple subject to executory limitation.

RAP and Charity‑to‑Charity Exception

Unlike possibilities of reverter and rights of entry, executory interests are subject to the Rule Against Perpetuities (RAP). On the exam, this often arises where an executory interest might vest far in the future.

However, there is an important exception:

• RAP does not apply to a gift from one charity to another charity.

So, if the conveyance is:

• "To Cancer Hospital so long as the land is used as a hospital, then to Pediatric AIDS Fund"

the executory interest in the second charity is valid, even though it might vest far in the future, because it is charity‑to‑charity.

Construction Preference: Avoiding Automatic Forfeiture

If the language of a grant is ambiguous, courts prefer to construe it as:

• A fee simple subject to condition subsequent rather than a fee simple determinable.

Reason: This avoids automatic forfeitures and requires the grantor to act before an estate is divested.

On the MBE, if you see both durational language and an express right of entry, classify it as a fee simple subject to condition subsequent.

Distinguishing Defeasible Fees from Covenants

If the deed merely states a purpose ("for school purposes") but does not use clear durational or conditional forfeiture language, many courts will treat it as:

• A fee simple absolute in the grantee, possibly burdened by a covenant (contractual promise) regarding use, rather than a defeasible fee.

Consequences:

• Breach of the use restriction gives rise to contract or equitable remedies (damages or injunction), but does not automatically or optionally forfeit title.
• On the MBE, look carefully for words like "so long as," "until," "but if," and for an explicit statement about what happens upon breach.

Worked Example 1.2

Grantor conveys Greenacre "to the City for use as a public park, provided that if it ceases to be used as a park, Grantor shall have the right to repossess the property." The City later builds a municipal waste facility on Greenacre. What interest does Grantor hold, and what must Grantor do?

Answer:
The City holds a fee simple subject to condition subsequent. The language "provided that" coupled with "Grantor shall have the right to repossess" indicates a condition subsequent with a right of entry in the grantor. Upon breach of the condition (cessation of park use), the City's estate does not automatically end. Grantor must take affirmative steps, such as bringing an ejectment action or otherwise exercising the right of entry, to terminate the City's estate and regain possession.

Worked Example 1.3

O conveys Blueacre "to School Board so long as the premises are used for school purposes." The School Board later stops using Blueacre for school and leases it to a private company as an office building. No one takes any legal action for several years. Who owns Blueacre?

Answer:
The School Board held a fee simple determinable. The phrase "so long as" is classic durational language that creates a determinable fee. When Blueacre ceased to be used for school purposes, the estate automatically ended, and O’s possibility of reverter became possessory. O (or O’s successors) own Blueacre, even though no one took action immediately. The former School Board’s continued occupation is now wrongful.

Worked Example 1.4

O conveys Whiteacre "to University for school purposes." The deed contains no further language about forfeiture, reversion, or re‑entry. University later sells a strip of Whiteacre for non‑school commercial use. What estate did University originally take?

Answer:
The language "for school purposes" states the grantor’s motivation or use preference, but without explicit durational language ("so long as," "while") or a forfeiture clause, many courts (and the MBE) treat this as a fee simple absolute in University, burdened at most by a covenant regarding use. There is no defeasible fee because the grant lacks clear language that the estate will end or be forfeited upon breach.

Life Estate

A life estate is an estate whose duration is measured by the lifetime of a specified person (the "measuring life"). It can also be measured by the life of someone other than the life tenant (an estate pur autre vie). Unlike a fee simple, a life estate is not of potentially infinite duration.

Key Term: Life Estate
A present possessory estate in land whose duration is measured by the life of one or more human beings.

Key Term: Measuring Life
The individual whose lifetime determines the duration of a life estate.

The holder of a life estate is called a life tenant.

Key Term: Life Tenant
The present possessor of a life estate, who holds the right to possess and use the property for the duration of the measuring life, subject to the rights of future interest holders and the doctrine of waste.

Creation and Duration

Creation (Life Estate)

Life estates are typically created by explicit language:

• "To A for life."
• "To A for the life of B."
• "To A until A dies."

Absent such limiting language, a conveyance "to A" is presumed to create a fee simple, not a life estate.

Life estates can be created by deed, by will, or by operation of law (e.g., some dower or homestead interests in certain jurisdictions), but on the MBE they are almost always the product of clear granting language in a conveyance.

Duration

A life estate ends upon the death of the measuring life. Common patterns:

• "To A for life" – A is both the life tenant and measuring life.
• "To A for the life of B" – A is the life tenant; B is the measuring life.
• "To A for the joint lives of A and B" – the measuring lives are both A and B; the estate ends when the first of them dies unless the grant says otherwise.

When the measuring life dies, the life estate terminates, and possession shifts to:

• The grantor (or the grantor’s successors) if the grantor retained a reversion, or
• A third party named in the grant holding a remainder.

Key Term: Reversion
A future interest retained by the grantor when the grantor conveys a lesser estate (e.g., a life estate) but does not convey the entire interest.

Key Term: Remainder
A future interest in a transferee that becomes possessory upon the natural expiration of a prior estate (such as a life estate), created in the same instrument as the prior estate, and which does not divest or cut short that prior estate.

Life Estate Pur Autre Vie

A life estate can be measured by someone else's life; this is a life estate pur autre vie ("for the life of another").

Key Term: Life Estate Pur Autre Vie
A life estate whose duration is measured by the life of a person other than the life tenant.

Examples:

• "To A for the life of B."
  A is the life tenant; B is the measuring life.

• "To A for life." A later conveys her life estate to C.
  C holds a life estate pur autre vie, measured by A’s life.

Consequences:

• If a life tenant who holds pur autre vie dies first, while the measuring life is still alive, the life estate does not end. It passes under the life tenant's will or by intestacy for the remainder of the measuring life’s lifetime.
• When the measuring life dies, the life estate ends, regardless of who currently holds it.

Worked Example 1.5

O conveys "to A for the life of B." A then sells his interest to C. A later dies while B is still alive. Who has the right to possess Blackacre?

Answer:
C holds a life estate pur autre vie measured by B’s life. A’s death does not terminate the estate because the measuring life is B, not A. C’s estate continues until B dies. At B’s death, the life estate ends, and possession goes to whoever holds the relevant future interest (O’s reversion or a remainderman named in the original grant).

Transferability of Life Estates

A life tenant can transfer their interest during their lifetime:

• The transferee receives only what the life tenant had—an estate measured by the original measuring life (pur autre vie).
• A life estate cannot be devised by will or inherited beyond the measuring life’s death because the estate itself ends at that point.

However:

• If the life tenant holds a life estate pur autre vie, and the life tenant dies first, the estate can pass by will or intestacy and continue until the measuring life dies.

Exam trap:

• A life tenant cannot leave the property "to my children" by will if the estate is "for life." The life estate ends at the life tenant’s death; there is nothing left to devise. Any attempt to devise the property simply fails, and the property goes instead to the reversioner or remainderman.

Future Interests Associated with Life Estates

When a life estate is created:

• If the property is simply "to A for life," without more, O (the grantor) retains a reversion.
• If the conveyance is "to A for life, then to B," A holds a life estate, and B holds a remainder (usually a vested remainder in fee simple, unless additional conditions apply).
• If the conveyance is "to A for life, then to B if B is married at A’s death," B holds a contingent remainder, which is subject to the Rule Against Perpetuities. (This classification is covered more fully in the future interests article.)

The article on future interests explores types of remainders and their classification; here, the key point is to identify that the property does not revert to the grantor if a valid remainder is created.

Defeasible Life Estates

Any present estate can be made defeasible, including life estates. The MBE occasionally tests defeasible life estates, which combine life estate language with conditional language.

Key Term: Defeasible Life Estate
A life estate that can terminate earlier than the measuring life’s death upon the occurrence of a stated condition.

Examples:

• "To A for life, so long as the property is used as a residence."
  A has a determinable life estate; O retains both a possibility of reverter (during A’s life) and a reversion (after A’s life).

• "To A for life, but if A ever remarries, then to B."
  A has a life estate subject to an executory limitation; B has a shifting executory interest in the life estate; O has a reversion after A’s life.

These estates are analyzed by:

• First identifying the base estate (here, a life estate), then
• Applying the usual rules for determinable or condition subsequent/executory limitation, and
• Determining what future interests follow both the defeasance event and the natural expiration of the life estate.

Worked Example 1.6

O conveys "to A for life, but if A divorces, then to B." What interests are created?

Answer:
A has a life estate subject to an executory limitation. B has a shifting executory interest that will cut short A’s life estate if A divorces. Because B’s interest only takes effect, if at all, during A’s lifetime, the natural termination of A’s life estate (A’s death) still leaves a gap: after A dies, neither A nor B has a possessory interest. O therefore retains a reversion that becomes possessory when A dies if B’s executory interest has not previously become possessory.

Doctrine of Waste

A life tenant has the right to possess and use the property and to take its ordinary income and profits, but is limited by the doctrine of waste.

Key Term: Waste
Conduct by the present possessor of land that unreasonably interferes with the expectations or interests of the future interest holder (reversioner or remainderman), often by diminishing the property’s value.

Waste doctrine balances the life tenant’s right to enjoy the property with the future interest holder’s right to receive the property in substantially the same condition, subject to ordinary wear and tear.

There are three main types of waste:

1. Affirmative (voluntary) waste.
2. Permissive waste.
3. Ameliorative waste.

Key Term: Affirmative Waste
Waste resulting from deliberate or voluntary acts by the life tenant that substantially reduce the property’s value (e.g., tearing down structures, excessive exploitation of natural resources).

Key Term: Permissive Waste
Waste resulting from the life tenant’s failure to exercise reasonable care to preserve and maintain the property (e.g., neglect, failure to pay ordinary taxes, failure to make necessary repairs).

Key Term: Ameliorative Waste
Waste consisting of substantial changes or improvements made by the life tenant that alter the character of the property, even if they increase its value.

Future interest holders (reversioners or remaindermen) have standing to sue to prevent or remedy waste, typically through injunctions, damages, or, in extreme cases, judicial sale of the property with proceeds divided appropriately.

Affirmative (Voluntary) Waste and Natural Resources

A life tenant may not commit active destruction or exploitation that harms the property’s value. Particular attention is given to natural resources (minerals, timber, oil, gas):

General rule:

• The life tenant may not exploit natural resources that were not previously exploited, if doing so would impair the property’s value for the reversioner or remainderman.

There are several important exceptions:

• Open Mines Doctrine: If the land was already being used to extract resources (e.g., a mine or quarry in operation) before the life estate began, the life tenant may continue the existing operations, but not open new ones.

Key Term: Open Mines Doctrine
Doctrine allowing a life tenant to continue exploiting natural resources in mines, wells, or quarries that were already open and operated before the life estate began, but not to open new operations.

• Use of resources is permitted if:
  • Reasonably necessary for repairs or maintenance of the property (e.g., cutting timber for fences or shingles).
  • Expressly authorized by the grant.
  • The land is suitable only for such use (e.g., land whose only reasonable use is as a quarry or timber tract).

Worked Example 1.7

O grants Blackacre "to A for life." Blackacre has never been used for resource extraction. A discovers oil and begins extensive drilling operations that significantly reduce the property’s long‑term value. Has A committed waste?

Answer:
Yes. A’s actions constitute affirmative waste. Under the general rule, a life tenant may not engage in new exploitation of natural resources that decreases the property’s value unless an exception applies (e.g., prior exploitation under the open mines doctrine, express authorization in the grant, or unique suitability for extraction). Because Blackacre was not previously used for oil extraction, and the extraction harms the property’s value, A has committed affirmative waste.

Permissive Waste: Taxes, Interest, and Repairs

A life tenant is obligated to maintain the property in a reasonable state of repair, to the extent of the income or reasonable rental value of the land.

Specific obligations:

• Ordinary repairs: The life tenant must make ordinary repairs to prevent deterioration (e.g., repairing a leaky roof, fixing broken windows) but is not responsible for extraordinary structural repairs (e.g., rebuilding after a fire) unless the grant says otherwise.
• Property taxes: The life tenant must pay ordinary property taxes, up to the amount of income or reasonable rental value from the property.
• Mortgage interest: If a mortgage exists when the life estate begins, the life tenant must pay interest on the mortgage debt (again, to the extent of income/rental value). The future interest holder (reversioner or remainderman) is responsible for the principal.

If the life tenant fails to perform these duties and the future interest holder pays to prevent loss (e.g., pays taxes to avoid a tax sale), the future interest holder can seek reimbursement from the life tenant to the extent of the life tenant’s obligation.

Bar examiners like to test the measure of the life tenant’s obligation, sometimes by giving you both the amount of taxes and the rental value of the property.

Worked Example 1.8

O conveys one of his properties "to my son for life, remainder to my daughter." The son lives on the property without paying any rent, although the property could have been rented for $4,000 a month ($48,000 per year). Annual property taxes are $10,000. The son does not pay the taxes. To avoid a tax sale, the daughter pays the full$10,000. How much can the daughter recover from the son?

Answer:
The daughter can recover the full $10,000. A life tenant must pay ordinary property taxes to the extent of the **income or reasonable rental value** of the property. Here, the reasonable rental value ($48,000 per year) exceeds the total taxes ($10,000 per year), so the life tenant was responsible for paying the entire tax bill. The remainderman, having paid to protect her interest, is entitled to reimbursement from the life tenant for the amount he should have paid.

Worked Example 1.9

O conveys "to S for life, then to D." The property could be rented for $4,000 per month ($48,000 per year). The annual property taxes are $10,000. S lives there and pays nothing toward the taxes. To avoid a tax sale, D pays the$10,000 tax bill. How much may D recover from S?

Answer:
D may recover the full $10,000 from S. The life tenant’s duty to pay ordinary taxes is limited by the income or rental value of the property. Because the reasonable rental value ($48,000) is greater than the taxes owed ($10,000), S had a duty to pay all of the taxes. D stepped in to prevent loss of the property and can recover from S the amount S was obligated to pay.

Ameliorative Waste

Historically, even beneficial changes that increased value were treated as waste if they altered the identity of the property. Modernly, courts are more flexible and often allow beneficial changes in appropriate circumstances.

Modern rule:

• Substantial changes by a life tenant that alter the character of the property but increase its value may be allowed if:
  • The remaindermen or reversioner consent, or
  • There has been a substantial and permanent change in the surrounding neighborhood’s character, and the change is reasonable given current conditions.

Future interest holders who oppose the change may seek an injunction, but courts weigh the economic consequences and the changed circumstances.

Worked Example 1.10

O conveys "to L for life, then to R." The land is currently a single‑family residence in an area that has become entirely commercial. Residential properties are worth very little; converting the property into a small office building would significantly increase its value. R cannot be located after reasonable efforts. Can L demolish the house and construct an office building without committing waste?

Answer:
Under the modern rule, probably yes. This is a case of potential ameliorative waste. Because the neighborhood has undergone a substantial and permanent change from residential to commercial, and the proposed change would increase the market value, many courts permit the life tenant to make such changes, especially if the remainderman cannot reasonably be located or if a court approves the change. At common law, this would have been actionable waste regardless of any increase in value.

Worked Example 1.11

O grants Whiteacre "to A for life, then to B." A fails to pay property taxes or make basic repairs, causing the house to deteriorate and the government to place a tax lien. B pays the taxes and repairs the property. Has A committed waste?

Answer:
Yes. A has committed permissive waste by failing to pay ordinary taxes and make reasonable repairs, causing harm to the property and B’s remainder. A’s duty is to pay such expenses to the extent of the property’s income or rental value. B can seek reimbursement from A and may obtain further relief (damages or injunction) to protect her future interest.

Revisiting the Opening Questions

Although answer choices are not repeated here, you should now be able to resolve each "Test Your Knowledge" problem:

• Question 1 involves a grant "so long as" premises are used residentially. The use switches to industrial. This is a fee simple determinable that ends automatically when the condition is violated; the grantee’s estate terminates at that moment.
• Question 2 asks for language that best fits a fee simple subject to condition subsequent: look for conditional words together with a reserved right of re‑entry ("but if A ceases to farm the land, Grantor may re‑enter").
• Question 3 describes active cutting and sale of timber that reduces value: this is classic affirmative waste.
• Question 4 tests a life estate pur autre vie: "to A for the life of B." If A dies before B, A’s estate continues in A’s successors until B dies.

If any of these remain uncertain, revisit the relevant sections—defeasible fees, life estates pur autre vie, and waste—until you can classify the estates and obligations quickly.

Key Point Checklist

This article has covered the following key knowledge points:

• Present estates grant immediate possession; future interests confer rights to possession in the future.
• A fee simple absolute is complete ownership of potentially infinite duration, freely transferable, deviseable, and descendible.
• Restraints on alienation that completely bar transfer of a fee simple are generally void; partial, reasonable restraints may be upheld.
• Defeasible fees are fee simple estates that can terminate upon a specified event.
• A fee simple determinable ends automatically upon the event; the grantor holds a possibility of reverter that becomes possessory without action.
• A fee simple subject to condition subsequent requires the grantor to exercise a right of entry (power of termination) after the condition occurs; there is no automatic forfeiture.
• A fee simple subject to executory limitation ends automatically upon the event, and the property passes to a third party holding an executory interest.
• Shifting executory interests cut short a transferee’s estate; springing executory interests cut short the grantor’s interest.
• Future interests in the grantor associated with defeasible fees (possibility of reverter, right of entry) are not subject to RAP; executory interests are, subject to the charity‑to‑charity exception.
• Life estates are present estates measured by a person’s life and end at the measuring life’s death.
• A life estate pur autre vie is measured by the life of someone other than the current life tenant and can pass by will or intestacy if the life tenant dies first.
• Defeasible life estates combine life‑estate language with durational or conditional language and can terminate before the measuring life dies.
• When a life estate ends, the property either reverts to the grantor (reversion) or passes to a remainderman.
• Life tenants have rights to possess and enjoy the property but must avoid waste—affirmative, permissive, and ameliorative.
• Life tenants must pay ordinary taxes, mortgage interest, and make reasonable repairs, limited by the income or rental value of the property; the reversioner or remainderman typically pays mortgage principal and extraordinary repairs.
• The open mines doctrine allows a life tenant to continue pre‑existing exploitation of natural resources but not to open new mines or wells.
• Ambiguous grants that merely state a purpose ("for school purposes") without forfeiture language are often construed as fee simple absolute with covenants, not defeasible fees.
• When language is ambiguous between a determinable and a condition subsequent, courts prefer the fee simple subject to condition subsequent to avoid automatic forfeiture.
• Accurate classification of present estates is essential to determining who can sue for waste and who holds which future interests.

Key Terms and Concepts

• Present Estate
• Future Interest
• Grantor
• Grantee
• Fee Simple Absolute
• Restraint on Alienation
• Defeasible Fee
• Fee Simple Determinable
• Possibility of Reverter
• Fee Simple Subject to Condition Subsequent
• Right of Entry
• Fee Simple Subject to Executory Limitation
• Executory Interest
• Shifting Executory Interest
• Springing Executory Interest
• Life Estate
• Measuring Life
• Life Tenant
• Life Estate Pur Autre Vie
• Defeasible Life Estate
• Reversion
• Remainder
• Waste
• Affirmative Waste
• Permissive Waste
• Ameliorative Waste
• Open Mines Doctrine