a. the statute of limitations does not run against a remainder existing at the time of entry by the adverse possessor
i. O owns Whiteacre. In 1959, O conveys Whiteacre to B for life, remainder to C. In 1960, A enters adversely. Statute of limitations is 20 yrs. In 1985, B dies. C is now entitled to possession and has until 2005 to eject A. (In 1980, A acquired title to B's life estate by adverse possession, but this interest is terminated on B's death)
c. Entry prior to O's transfer
i. if A had entered before O created the remainder, the statute would run against O and his successors in interest -- meaning C would not be able to eject A after the statute of limitations ran out
b. why shouldn't the bad faith adverse possessor have to pay fair market value for the property taken? Or for that matter why shouldn't every adverse possessor have to pay fair market value for the land they are taking?
N. The state of mind actually required will depend on what we think the purpose of adverse possession is
1. one of the reasons that courts are all over the place in this area is that there is no consensus on what the justifying reason for adverse possession is
VI. Estates in Land
A. Fee Simples
a. Fee simple absolute
i. It is of potentially infinite duration (therefore called a fee).
ii. There are no limits on its inheritability (therefore called simple)
iii. It cannot be divested, nor will it end upon the happening of any event (hence called absolute)
i. a fee simple to a condition subsequent is a fee simple that does not automatically terminate but may be cut short (divested) at the grantor's election when a stated condition happens.
i. created by first giving the grantee an unconditional fee simple and then providing that the fee simple may be divested by the grantor or his heirs if a specified condition happens.
ii. Language includes:
a) but if
b) upon condition
c) provided however
d) the grantor retains right of entry
i. can be transferred or inherited in the same manner as any other fee simple until the grantor exercises his right of entry
d. Future interest
i. right of entry
ii. the law does not require that the right of entry be expressly retained by the grantor. If the words of the instrument are reasonably susceptible to the interpretation that this type of forfeitable estate was contemplated by the parties the court will imply a right of entry.
3. Different legal consequences between a fee simple determinable and a fee simple subject to a condition subsequent
a. Transferability of the future interest
i. Common law?
a) both a possibility of reverter and a right of entry descended to heirs upon the death of the owner of such interests but neither interest was transferable during life
ii. Modern trend?
a) both are transferable inter vivos
a) some states still follow the common law and forbid transfer inter vivos except to the owner of the possessory fee -- called a release
b) others allow transfer of a possibility of reverter but do not allow transfer of a right of entry