英美法律制度 Real Property.docx

1、英美法律制度 Real PropertyReal Property (continued) ReviewPossessory interestsfree-hold fee simple fee tail life estateLeasehold tenancy for years periodic tenancy tenancy at will tenancy at sfferanceDefeasible estateDeterminable estateEstate subject to condition subsequentIII. Future InterestsFuture inte

2、rests give rights to the enjoyment of property at a future time. “to A for life, then to B and his heirs.” “to A for life” creates a life estate for A, while B, although can not possess the land right now, has a future interest. His future interest is not a mere expectancy, like the hope of a child

3、to inherit from a parent. His future interest gives him legal rights. B has present legal rights and liabilities. He can prohibit A from committing a waste, he can sue a third party who is injuring the land or, if B dies during the life of A, Bs interest will be inherited by his heir, and a federal

4、estate tax or state inheritance tax may be levied upon its value. Although a future interest does not entitle its owner to present possession, it is a presently exiting interest that may become possessory in the future.Future interests recognized in Anglo-American legal systems are of 2 types: inter

5、ests retained by the transferor interests created in a transferee 3.1 interests retained by the transferor3.1.1 possibility of reverter 回归权，偶然取回权Possibility of reverter follows a determinable fee. When the owner of a fee simple absolute transfers a fee simple determinable, the grantor automatically

6、retains a possibility of reverter. “To Bob and his heirs so long as the land is farmed” creates a fee simple determinable. The moment the land is no longer farmed, the estate ends, i.e., that Bob no longer has estate, where does the estate go? It goes back to O or his heirs. This is Os possibility o

7、f reverter.3.1.2 right of entry (power of termination) 附终止权的取回权O conveys blackacre to A and his heirs, but if the premises are used for the sale of alcoholic beverages, O has the right to retake the premises”. In this case, A has a fee simple subject to condition subsequent. If he sells alcoholic be

8、verages on blackacre, O, then, has the right to retake the land. So, from the owners point of view, he has a right of entry. This is his future interest.3.1.3 reversion 复归权Historically, the earliest future interest to develop was a reversion. If O, a fee simple owner, granted the land to A for life,

9、 the land would come back to him at As death. This is reversion. To be exact, reversion is Os right to future possession of the land. If O dies during As life, Os reversion passes under his will or to his heirs.In a general sense, then, a reversion is the interest left in an owner when he carves out

10、 of his estate a lesser (smaller) estate and does not provide who is to take the property when the lesser/smaller estate expires. A fee simple is a greater estate than a fee tail, which is a greater estate than a life estate, which is a greater estate than the leasehold estate. Hence if O, owning a

11、fee simple, creates a fee tail, a life estate, or a term of years, and does not at the same time convey a vested remainder in fee simple, O has a reversion. If A, owning a life estate, creates a term of years, A has a reversion.The above 3 future interests all belong to a transferor. The law, on the

12、 other hand, also recognize future interests in transferees. 3.2.1 remainder 剩余产权，转归权，继受权3.2.1 remainder 剩余产权，转归权，继受权An example is “to A for life, then to B and her heirs.” In this example, you are sure that A has a life estate, and A is doomed to die, B has to wait patiently until A dies, then he w

13、ill own the land in fee simple. If there is no expression as “then to B and her heirs”, O has a reversion. Now, with the expression, the property goes to B. If B dies during As life, on Bs death, Bs remainder passes to his heirs, if B dies without heirs, the state takes the property. This is a veste

14、d remainder. 既定的转归权/继受权。There is also a contingent remainder. 偶然的转归权。For example, upon As marriage, O, (As father) might convey “to A for life, then to As eldest son and his heirs.” If A has a son later, such son will take on As death; if later A does not give birth to a son, the land will revert to

15、 O.3.2.2 Executory Interest 执行权，取代权to A and his heirs, but if the premises are ever used for other than residential purposes, then to B and his heirs. In this case, fee simple in A subject to a condition subsequent, (an executory limitation). If A or his heirs fail to use the property for residentia

16、l purposes, the gift over to B will take effect.Notice: a remainder never cuts off a prior interest, but merely awaits the prior interests natural termination. An executory interest, by contrast, divests or cuts off a prior interest before the latters natural termination. 3.3 Limitations on Future I

17、nterest当代英美法中，终身所有权及其后的未来利益是英美财产法区别于大陆法系的重要标志，也是遗嘱及遗产安排法律中的焦点。“to my son A of life, and then to his daughter B and her heir” 此人不仅控制了该土地在他本人死时的继承，也控制了其子死时的继承。我们已经提到，未来利益与子女期待从父母那里得到遗产不一样，未来利益不仅仅是一种期望，而且是一种受法律保护的现在就存在的财产权。 “to A for life, then to B and his heirs.”，B, before A dies, can dispose of his

18、remainder, i.e. sell or give away his remainder, forbid A from wasting the land, and sue a third party who is injuring the land. The existence of future interest makes it difficult to transfer real property. Eg. O conveyed blackacre “to A for life, then to B and his heirs.” A can only gives up his l

19、ife estate, and B, his remainder. If C wants a fee simple in blackacre, it is impossible for him to own blackacre in fee simple, unless both A and B agree to transfer their estates to C. Its very likely that they can not strike a deal. Even they do strike a deal, A and B might disagree on the propor

20、tion of the price. A dead hand is controlling our present life?Another example. O conveys blackacre to “A for life, then to B if he survives”. 现在我们要再次卖掉黑土地，A可以处分his life estate. B的remainder是不确定的，B如果在A死亡前死掉，O和O的后裔就享有复归权，reversion. 商人阶层积聚了大量财富，也购置了大量房地产。为了防止由于各种可能的原因使财产流失，律师们设计了各种极为复杂的转让条款。另一方面，社会发展需要

21、房地产自由转让。因此，法官们也将计就计，设计出一些废除有条件的未来利益的条文, favoring marketability。其中，主要有二个规则： Rules in Shellys case (1581) 合并规则Example: O conveys to A for life, remainder to As heirs. If there were no Rule in Shelleys Case, the state of the title would be: life estate in A, contingent remainder in As heirs, reversion

22、in O. But by operation of the Rule in Shelleys Case, the state of the title becomes: life estate in A, remainder in A (not As heirs). Then, by the doctrine of merger, As life estate will merge into his remainder in fee simple, and A simply holds a present fee simple.Rule Against Perpetuities:An inte

23、rest is invalid unless it can be said, with absolute certainty, that it will either vest or fail to vest, before the end of a period equal to: (1) a life in existence at the time the interest is created plus (2) an additional 21 years.在土地转让产生时，任一权益相关的人死后21年内，如果该转让书中所设定的未来权益仍未能变成占有权或既定的继受权，则该未来利益无效。这

24、样做是为了防止有条件的未来利益无休止的对现有利益构成威胁，影响其可转让性。Example: O transfers “for A for life, then to As first child to reach 21.” You can prove that any child of A who reaches 21 will necessarily reach 21 within 21 years of As death. The remainder must vest or fail within this period; the remainder is valid.Example:

25、O transfers to A for life, remainder to the first son of A whenever born who becomes a clergyman. Its against the Rule. IV. NONPOSSESSORY INTERESTSSome interests in land do not include any rights of possession. These interests, known as nonpossessory interests, include easements, profits, and licens

26、es. 4.1 Easements and Profits 4.1.1 Easements and Profits in GeneralAn easement is the right of a person to make limited use of another persons real property without taking anything from the property. An easement, for example, can be the right to walk across anothers property. In contrast, a profit

27、is the right to go onto land in possession of another and take away some part of the land itself or some product of the land. The common law profits were a) turbaraythe right to remove turf for use as fuel; b) piscarythe right to fish; c) estoversthe right to cut timber for fuel; and d) pasturethe r

28、ight to graze animals. Contemporary interests in land that sometimes are called profits are the right to mine coal or other minerals, to drill for oil or gas, or to cut timber. For example, Mack, the owner of Sandy View, gives Ann the right to go there and remove all the sand and gravel that she nee

29、ds for her cement business. Ann has a profit. Easements and profits can be classified as either appurtenant or in gross.An easement or profit appurtenant arises when the owner of one piece of land has a right to go onto (or remove things from) another piece of land owned by another. Suppose Owen has

30、 a right to drive his car across Greens land, which is adjacent to Owens property. This right-of-way over Greens property is an easement appurtenant to Owens land and can be used only by Owen. Owen can convey the easement when he conveys his property.Another example: A owns a large parcel of land ad

31、jacent to a stream. She sold the part of the water-front property to B, but reserves an easement to cross from her remaining property to the stream. Her easement is appurtenant. It was created to benefit the use of her retained parcel. When she sells the rest of her land, she no longer can use the e

32、asement.With an easement or profit in gross, the right to use or take things from anothers land does not depend on the owner of the easement or profits owning an adjacent tract of land. Illustration: Steve granted Stella the right to swim in a pond on Steves property. Stella is not a neighbor. This is probably an easement in gross. Stella may enjoy swimming in the pond regardless of what property she owns or whether she owns any property at all. When a utility c