Remainder (law)

From Wikipedia, the free encyclopedia
Jump to: navigation, search
For the concept of being in remainder to a title in the peerage, see Hereditary peer → Inheritance of titles.

A remainder in Anglo-American property law is a future interest given to a person (who is referred to as the transferee or remainderman) that is capable of becoming possessory upon the natural end of a prior estate created by the same instrument. Thus, the prior estate must be one that is capable of ending naturally, for example upon the expiration of a term of years or the death of a life tenant. A future interest following a fee simple absolute cannot be a remainder because of the preceding infinite duration.

For example, a person, D, gives ("conveys") a piece of real property called Blackacre “to A for life, and then to B and her heirs.” A receives a life estate in Blackacre and B holds a remainder, which can become possessory when the prior estate naturally terminates (A’s death). However, B cannot claim the property until A's death.

There are two types of remainders in property law, vested and contingent. A vested remainder is held by a specific person without any conditions precedent; a contingent remainder is one for which the holder has not been identified, or for which a condition precedent must be satisfied.

Vested remainder[edit]

A remainder is vested if (1) the remainder is given to a presently existing and ascertained person, and (2) it is not subject to a condition precedent. A vested remainder may be indefeasibly vested, meaning that it is certain to become possessory in the future, and cannot be divested. An example, O conveys to "A for life, then to B and B's heirs." B has an "indefeasibly vested remainder" certain to become possessory upon termination of A's life estate. B or B's heirs will clearly be entitled to possession upon A’s death. A vested remainder may not be certain to become possessory. An example of this: O conveys "to A for life, then to A's children." A has one child, B, so B has a vested remainder because B is ascertainable. But, A may have no other children in his life, and B could die before A, so the vested remainder is not certain to become possessory. Instead B is said to have a vested interest subject to partial (more children) and complete divestment (if B dies before A).

Contingent remainder[edit]

A remainder is contingent if one or more of the following is true: (1) it is given to an unascertained or unborn person, (2) it is made contingent upon the occurrence of the natural termination of the preceding estates. For example, if we assume that B is alive, and O conveys "to A for life, then to the heirs of B...", then the remainder is contingent because the heirs of B cannot be ascertained until B dies. No living person can have actual heirs, only heirs apparent or heirs presumptive.

Identifying remainders[edit]

The key difference between a reversion and a remainder is that a reversion is held by the grantor of the original conveyance, whereas "remainder" is used to refer to an interest that would be a reversion, but is instead transferred to someone other than the grantor. Similarly to reversions, remainders are usually created in conjunction with a life estate, life estate pur autre vie, or fee tail estate (or a future interest that will eventually become one of these estates).

Usage Note: Although the term reversion is sometimes used to refer to the interest retained by a landlord when he grants possession to a tenant, not all real estate professionals can agree on the correctness of this usage of the term. Few people would refer to such a transferred interest as a remainder, so this type of "remainder" tends not to be a problem when discussing property rights.

Examples[edit]

"A and her heirs, then to B"

B is not a remainder since a remainder cannot follow an estate held in fee simple absolute.

"A for life, then to B"

B is a vested remainder since the remainder is given to an ascertained person (B) and there are no precedent conditions (such as "if B is not married").

"A for life, then to B if B reaches 21, and if B does not reach 21 then to C and C's heirs"

B and C are both contingent remainders. While B and C are ascertained persons, the condition (reaching 21) implies alternative contingent remainders for both parties.

See also[edit]

References[edit]

Conveyance Interpreter (Experimental) [1]