A.R.S. tit. 33 ch. 2 — Arizona Revised Statutes Title 33 Chapter 2 — Estates

33-201. Duration of interest; fee tail prohibited A. Estates in lands, as respects the extent of the interest of the holder, are divided into: 1. Estates of inheritance. An estate of inheritance shall be termed a fee simple or fee, and when not defeasible or conditional shall be a fee simple absolute. 2. Estates for life. 3. Estates for years. 4. Estates at will. 5. Estates by sufferance. B. No lands of this state shall be held as an estate in fee tail. 33-202. Estates as property interest; freeholds; chattels real; chattel interests A. Estates of inheritance and for life are freehold estates, except that an estate for the life of a third person, whether limited to heirs or otherwise, is a freehold only during the life of the grantee or devisee, and after his death is a chattel real. B. Estates for years are chattels real. C. Estates at will or by sufferance are chattel interests, but are not liable as such to sale on execution. 33-203. Right to possession of lands; estates in possession; estates in expectancy Estates in lands, as respects the time of enjoyment, are divided into: 1. Estates in possession. An estate in possession is one in which the owner thereof has an immediate right to possession of the land. 2. Estates in expectancy. An estate in expectancy is one in which the right of the owner thereof to possession of the land is not immediate, but is postponed to a future time or period. 33-204. Estates in expectancy; reversions; future estates; remainders A. Estates in expectancy are divided into: 1. Reversions. A reversion is the residue of an estate left in a grantor or his heirs, or in the heirs of a testator, commencing in possession upon the determination of a particular estate granted or devised. 2. Future estates. A future estate is an estate limited to commence in possession at a future time, either without the intervention of a precedent estate or upon the determination, by lapse of time or otherwise, of a precedent estate created at the same time. A future estate dependent upon a precedent estate is a remainder. 33-205. Vested future estates; contingent future estates A. A future estate is vested when there is a person in being who would have immediate right to the possession of the lands upon the termination of the intermediate or precedent estate. B. A future estate is contingent while the person to whom, or the event upon which it is limited to take effect, remains uncertain. 33-221. Estates in expectancy; alienability A. A freehold estate or a chattel real may be created to commence at a future time, subject to the provisions of this chapter. B. Estates in expectancy are descendable, devisable and alienable as estates in possession. C. An estate of freehold or inheritance may be made to commence in the future by deed or conveyance in like manner as by will. D. All estates in expectancy except those enumerated and defined in this chapter are abolished. 33-222. Alternative future estates Two or more future estates may be created to take effect in the alternative, so that if the first in order fails to vest, the next in succession shall be substituted for it and take effect. 33-223. Time of creation of estates in expectancy The time of creation of an estate in expectancy is the time of: 1. Delivery of the grant if the estate in expectancy is created by grant. 2. Death of the testator if the estate in expectancy is created by devise. 33-224. Effect of conveyance purporting to create fee tail; effect of conveyance by tenant in tail A. A devise, gift, grant or other conveyance which creates or transfers an estate which, at common law, would be an estate in fee tail, shall be deemed and have the effect of a conveyance in fee simple. B. A devise, gift, grant or other conveyance made by a person holding an estate under a conveyance which at common law would have given such person an estate in fee tail shall have effect as though such person were holding a fee simple estate. 33-225. Indefeasibility of expectant estates; exception An estate in expectancy may not be defeated or barred by alienation or other act of the owner of the intermediate or precedent estate, nor by destruction of the precedent estate by disseizin, forfeiture, surrender, merger or otherwise, except in the manner provided or authorized in the creation of the expectant estate. 33-226. Defeasibility of expectant estate by terms of grant or devise A. An estate in expectancy may be defeated in any manner provided or authorized by the grant or devise by which the expectant estate was created. B. An estate in expectancy thus defeasible is not, on that ground, void in its creation. 33-227. Contingent remainder as conditional limitation A. A remainder may be limited on a contingency which, if it should happen, will operate to abridge or determine the precedent estate. Such a remainder shall be construed a conditional limitation and shall have effect as such. B. No future estate, otherwise valid, shall be void on the ground of the probability or improbability of the contingency upon which it is limited to take effect. 33-228. Indestructibility of contingent remainders A. A remainder valid in its creation is not defeated by determination of the precedent estate before the contingency occurs upon which the remainder is limited to take effect. If the contingency occurs after determination of the precedent estate, the remainder shall take effect as if the precedent estate had continued to the time when the contingency occurs. B. The alienation of a particular estate upon which a remainder depends, whether the alienation is by deed or will or by the union of such particular estate with the inheritance by purchase or by descent, shall not operate to defeat, impair or in any way affect such remainder. 33-231. Rule in Shelley's case abolished When a remainder is limited to the heirs or heirs of the body of a person to whom a life estate in the same premises is given, the persons who, on the termination of the life estate, are the heirs or heirs of the body of the life tenant shall take as purchasers by virtue of the remainder so limited to them. 33-233. Life estate in term of years An estate for life may be created in an estate for a term of years and a remainder may be limited thereon. 33-234. Time when remainder on life estate or term of years takes effect When a remainder on an estate for life or on an estate for years is not limited upon a contingency defeating or avoiding the precedent estate, it shall take effect only on the death of the first taker or the expiration of the term of years. 33-236. "Heir" and "issue" as words of limitation When a remainder is limited to take effect upon the death of a person without heirs or heirs of his body, or without issue, the words "heirs" or "issue" shall mean heirs or issue living at the death of the person named as ancestor. 33-237. Effect of posthumous children upon limitations A. When a future estate is limited to heirs, issue or children, posthumous children shall take as if born before the death of the parent. B. A future estate contingent upon the death of a person without heirs, issue or children is defeated by birth of a posthumous child of such person, capable of taking by descent. 33-239. Use of accumulations for support and education of children When rents and profits are directed to be accumulated for the benefit of an infant entitled to the estate in expectancy, and the infant is without other sufficient means of support and education, the superior court, upon application of the guardian of the infant, may direct that an appropriate amount of the rents and profits be applied to the maintenance and education of the infant. 33-240. Ownership of rents and profits arising during suspension of power of alienation When in consequence of a valid limitation of an estate in expectancy there is a suspension of the power of alienation, or ownership, during the continuance of which the rents and profits are undisposed of and no valid direction for their accumulation is given, the rents and profits belong to the person presumptively entitled to the next eventual estate. 33-261. Rule against perpetuities The common law rule known as the rule against perpetuities shall hereafter be applicable to all property of every kind and nature and estates and other interests therein, whether personal, real or mixed, legal or equitable by way of trust or otherwise. 33-271. Definitions In this article, unless the context otherwise requires: 1. "Conservation easement" means a nonpossessory interest of a holder in real property imposing limitations or affirmative obligations for conservation purposes or to preserve the historical, architectural, archaeological or cultural aspects of real property. 2. "Conservation purposes" means any of the following activities which yield a significant public benefit: (a) Preserving land areas for outdoor recreation by, or the education of, the general public. (b) Protecting a relatively natural habitat of fish, wildlife or plants or similar ecosystem. (c) Preserving open space, including farmland and forest land, if the preservation is either: (i) For the scenic enjoyment of the general public. (ii) Pursuant to a clearly delineated federal, state or local governmental conservation policy. 3. "Holder" means either: (a) A governmental body empowered to hold an interest in real property under the laws of this state or the United States. (b) A charitable corporation or trustee of a charitable trust, the purposes or powers of which include retaining or protecting the natural, scenic or open space values of real property, assuring the availability of real property for agricultural, forest, recreational or open space use, protecting natural resources, maintaining or enhancing air or water quality or preserving the historical, architectural, archaeological or cultural aspects of real property. 4. "Third party right of enforcement" means a right granted in a conservation easement to enforce any of its terms granted to a governmental body, charitable corporation or charitable trust, which, although eligible to be a holder, is not a holder. 33-272. Creation, conveyance, acceptance and duration; impairment; recording; county assessor; valuation A. Except as otherwise provided in this article, a conservation easement may be created, conveyed, recorded, assigned, released, modified, terminated or otherwise altered or affected in the same manner as other easements. For the purposes of this article, conservation easements shall be voluntarily created and shall not be required by a political subdivision or governmental entity. This article neither limits nor enlarges the power or purposes of eminent domain, zoning, subdivision regulations or any right of condemnation under the laws of this state. Any assignment, release, modification, termination or other document altering or affecting a conservation easement need only be executed or approved in writing by the current owner of the real property that is burdened by the conservation easement, the holder of the conservation easement and any governmental body, charitable corporation or trustee of a charitable trust having a third-party right of enforcement. B. No right or duty in favor of or against a holder and no right in favor of a governmental body, charitable corporation or trustee of a charitable trust having a third-party right of enforcement arises under a conservation easement before its acceptance by the holder and a recordation of the acceptance. C. Except as provided in section 33-273, subsection B, a conservation easement is unlimited in duration unless the instrument creating it otherwise provides. D. An interest in real property in existence at the time the conservation easement is created is not impaired by a conservation easement unless the owner of the interest is a party to the conservation easement or consents in writing to the conservation easement by an instrument acknowledged and recorded in the office of the county recorder of the county in which the affected real property is located. E. The holder of the conservation easement shall provide for the recording of the conservation easement and the recording of its acceptance. The holder of the conservation easement also shall prepare and provide the information prescribed by section 42-12058 to the county assessor for each county in which any portion of the real property that is burdened by the conservation easement is located. F. For the purposes of determining the full cash value of a conservation easement created pursuant to this section, the department of revenue or a county assessor shall use and apply standard appraisal practices and techniques unless a statutory formula takes precedence. 33-273. Judicial actions A. An action affecting a conservation easement may be brought by: 1. An owner of an interest in the real property burdened by the easement. 2. A holder of the easement. 3. A governmental body, charitable corporation or trustee of a charitable trust having a third party right of enforcement. 4. A person authorized by other law. 5. A governmental body if the holder is no longer in existence and there is no third party right of enforcement. B. This article does not affect the power of a court to modify or terminate a conservation easement under the principles of law and equity. In determining whether to modify or terminate a conservation easement a court shall consider the public interest to be served. C. In an action under this section, the owner of the real property burdened by the conservation easement, the holder of the conservation easement and any governmental body, charitable corporation or trustee of a charitable trust having a third party right of enforcement shall be named as parties. 33-274. Validity and assignment of conservation easements A. A conservation easement, or any assignment, release, modification, termination or other document altering or affecting a conservation easement, is only valid if recorded with the county recorder of the county in which any portion of the real property burdened by the conservation easement is located. B. Third party rights of enforcement granted through a conservation easement to a governmental body, charitable corporation or trustee of a charitable trust may not be assigned, except with the prior written consent of the holder of the conservation easement. C. A conservation easement is valid even though: 1. It is not appurtenant to an interest in real property. 2. It can be or has been assigned to another holder. 3. It is not of a character that has been recognized traditionally at common law. 4. It imposes a negative burden. 5. It imposes affirmative obligations on the owner of an interest in the burdened property or on the holder. 6. The benefit does not touch or concern real property. 7. There is no privity of estate or of contract. 33-275. Application of other laws A conservation easement created under this article: 1. Has the same rights as any other recorded interest in real property. 2. Is subject to all laws of this state pertaining to recording of interests in real property and laws relating to adverse possession. 3. Is subject to the acquisition of real property interests under the laws of this state governing eminent domain, except that the existence of a conservation easement shall not be considered an additional interest in real property for which compensation or damages may be awarded under the laws pertaining to eminent domain. 33-276. Applicability A. This article applies to any interest created after its effective date which complies with this article, whether designated as a conservation easement or as a covenant, equitable servitude, restriction, easement or otherwise. B. This article does not invalidate any interest, whether designated as a conservation or preservation easement or as a covenant, equitable servitude, restriction, easement or otherwise, that is enforceable under any other law of this state.