Ownership of real property - Alienability, descendibility, and devisability of present and future interests

Learning Outcomes

After reading this article, you will be able to identify and explain the rules governing the transferability (alienability), inheritance (descendibility), and testamentary disposition (devisability) of present and future interests in real property. You will be able to distinguish which interests are freely transferable, which are restricted, and how these characteristics affect exam questions on estates and future interests.

MBE Syllabus

For the MBE, you are required to understand the rules that determine whether and how present and future interests in real property can be transferred during life, by will, or by intestacy. This article focuses your revision on:

• The meaning of alienability, descendibility, and devisability for present and future interests.
• Which estates and future interests are freely transferable and which are restricted.
• The consequences of restrictions on transfer for exam scenarios.
• The effect of restraints on alienation and the Rule Against Perpetuities on transferability.

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 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 by B?
   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 not just possession, but also the ability to transfer interests to others. For the MBE, you must know which present and future interests can be transferred during life (alienability), by will (devisability), or by intestacy (descendibility). These characteristics affect how property passes and what interests are enforceable.

Present Interests: Fee Simple, Life Estate, Leasehold

The fee simple absolute is the standard estate in land. It is fully alienable, devisable, and descendible. Life estates and leaseholds are also generally transferable, but may be subject to restrictions.

Key Term: Alienability
The ability of an interest holder to transfer their interest in property to another during their lifetime.

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

Key Term: Devisability
The ability of an interest to be transferred by will at the death of the interest holder.

Future Interests: Remainders, Reversions, Executory Interests

Future interests are rights to property possession in the future. Their transferability depends on their type and whether they are vested or contingent.

Vested Remainders

Indefeasibly vested remainders and vested remainders subject to open or total divestment are fully alienable, devisable, and descendible.

Contingent Remainders and Executory Interests

Contingent remainders and executory interests are generally descendible and devisable, but their alienability inter vivos may be restricted in some jurisdictions. If the interest is subject to a condition precedent, it may fail if the holder dies before the condition is satisfied.

Key Term: Vested Remainder
A future interest given to an ascertained person, not subject to a condition precedent, and certain to become possessory.

Key Term: Contingent Remainder
A future interest given to an unascertained person or subject to a condition precedent, so it may never become possessory.

Key Term: Executory Interest
A future interest in a transferee that cuts short another interest or follows a gap after a prior estate.

Key Term: Reversion
A future interest remaining in the grantor after conveying a lesser estate, which becomes possessory upon the natural expiration of the prior estate.

Transferability Rules: Summary Table

*Life estates are alienable, devisable, and descendible, but always measured by the original measuring life.
**Most states do not allow inter vivos transfer of a right of entry.

Restraints on Alienation

Absolute restraints on alienation of a fee simple are void. Partial restraints may be valid if reasonable. Some future interests, such as rights of entry, may not be transferable inter vivos.

Key Term: Restraint on Alienation
A provision that limits the ability of a property owner to transfer their interest.

Rule Against Perpetuities and Transferability

Interests that violate the Rule Against Perpetuities (RAP) are void and cannot be transferred. RAP applies to contingent remainders, executory interests, and some class gifts.

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, which is fully transferable during life, by will, and by intestacy.

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's contingent remainder was subject to the condition precedent of surviving A. Because B did not survive A, the interest never vested and does not pass to B's heirs.

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's interest is a vested remainder subject to divestment by an executory interest. B can transfer it by will, but if B smokes on the property before death, the interest shifts to C.

Exam Warning

Be careful: Not all future interests are freely transferable during life. Some, like rights of entry, may not be assignable inter vivos in some states. Always check the type of interest and local law.

Revision Tip

For MBE questions, always ask: Is the interest vested or contingent? Is there a condition precedent? Is the interest subject to a restraint on alienation? This will help you quickly determine transferability.

Key Point Checklist

This article has covered the following key knowledge points:

• Fee simple absolute is fully alienable, devisable, and descendible.
• Life estates and leaseholds are generally transferable, but always measured by the original life or term.
• Indefeasibly vested remainders and vested remainders subject to open/divestment are fully transferable.
• Contingent remainders and executory interests are usually devisable and descendible, but may not always be alienable inter vivos.
• Rights of entry may not be transferable during life in some states.
• Restraints on alienation are generally void if absolute, but reasonable partial restraints may be valid.
• Interests violating the Rule Against Perpetuities are void and not transferable.

Key Terms and Concepts

• Alienability
• Descendibility
• Devisability
• Vested Remainder
• Contingent Remainder
• Executory Interest
• Reversion
• Restraint on Alienation