property d slides 3-17-14. monday march 17 music: albéniz, iberia alicia delarrocha, pianist 2009...

PROPERTY D SLIDES3-17-14

Monday March 17 Music: Albéniz, IberiaAlicia Delarrocha, Pianist

2009 Re-recording of Grammy Winner for 1974for Best Classical Performance without Orchestra

Name the Musical Group:• 1st Billboard #1 Hit in 1958

•Won 5 Grammys; Nominated for 8 More

• Featured in Major Studio Motion Picture in 2011

Name the Musical Group:• 1st Billboard #1 Hit in 1958

• Won 5 Grammys; Nominated for 8 More

• Featured in Major Studio Motion Picture in 2011

Name the Musical Group:

• 1st Billboard #1 Hit in 1958

• Won 5 Grammys; Nominated for 8 More

• Featured in Motion Picture in 2011

Pop Culture UpdateMe on 3/3:

Top Model Under the GunsFrom Caracas to Kabul to Kiev, Our

Aspiring Models Bring Fashion to the World’s War Zones

Pop Culture UpdateMe on 3/3: Top Model Under the

GunsFrom Caracas to Kabul to Kiev, Our Aspiring Models From Caracas to Kabul to Kiev, Our Aspiring Models

Bring Fashion to the World’s War ZonesBring Fashion to the World’s War Zones

Miami Herald on 3/9: Miami Company Takes Golfers Into

Danger ZonesYou can play golf in Kabul on Afghanistan’s You can play golf in Kabul on Afghanistan’s

only course, protected by a professional only course, protected by a professional security team --security team --

You Can’t Make This Stuff UpMe on 3/3: Top Model Under the

GunsFrom Caracas to Kabul to Kiev, Our Aspiring Models From Caracas to Kabul to Kiev, Our Aspiring Models

Bring Fashion to the World’s War ZonesBring Fashion to the World’s War Zones

Miami Herald on 3/9: Miami Company Takes Golfers Into

Danger ZonesYou can play golf in Kabul on Afghanistan’s only You can play golf in Kabul on Afghanistan’s only

course, protected by a professional security team --course, protected by a professional security team --

for only $40,000 to $80,000 for a five-day for only $40,000 to $80,000 for a five-day excursion.excursion.

LOGISTICS: Chapter 4 Test & Prep

• Wednesday• Make-up class here at usual time.• I will post additional sample Qs/tests & answers after class.

• Thursday – Sunday• Extra Office Hours Each Day (See Course Page & My Door) • I’ll Answer E-Mail Qs Sent Before Sunday @ 7:00 pm

• Next Monday: Test Here 8:00-9:10 am (Be Early!!!)• Have Multiple #2 Pencils• Bring Anonymous Grading Number (Available Online)• Address Concerns (re Illness, Lateness, Problems in Room etc.) to Registrar or Dean of Students (NOT TO ME!!!)

LOGISTICS: Review Problems 4R-4W

• Messy Old Exam Qs from Long Ago in a Galaxy Far Far Away (Before I Used Mid-Semester Test)

• In Class Tuesday & Wednesday, We’ll Do 4R-4U• Identify Key Ambiguities/Questions, Then Work Through Some

Possible Scenarios (Like Problem 4O Today)• Get As Far As We Can Before 9:00 AM Wednesday

• I Will Post All Slides I Have on 4R-4U Even If We Don’t Get to Them

• After class Wednesday, I’ll Post Memo with Some Additional Follow-Through and Write-ups of 4V and 4W

LOGISTICS: Going Forward• Comments & Best Answers to All Posted Old Exam Comments & Best Answers to All Posted Old Exam

Qs Available on Course PageQs Available on Course Page

• Chapter 5: Adverse Possession Chapter 5: Adverse Possession • Supplement, Syllabus, Assignments on Course Page • We’ll Begin Classroom Work at 9:00 am Wednesday• Organized by Elements of Claim (Not by Case)• Four Primary Cases

• Need to Read for Plot by Thursday • Reread as Needed for Discussions of Individual Elements

QUICK WARM-UP/REVIEW 1:Remainders & Executory Interests

BasicsBasics•Reversion v. RemainderReversion v. Remainder•Vested v. Contingent RemainderVested v. Contingent Remainder•Remainders in …Remainders in …•Remainder v. Executory InterestRemainder v. Executory Interest•Shifting v. Springing Executory InterestsShifting v. Springing Executory Interests

WARM-UP/REVIEW 1:Remainders & Executory

Interests: BasicsReversion v. RemainderReversion v. Remainder

REVERSION: REVERSION: Future interest implicitly retained by grantor when s/he conveys a finite estate without indicating who will have rights when it expires.

REMAINDER: REMAINDER: Future interest in a third party that follows naturally upon the termination of a finite estate. It is always expressly conveyed by the grantor.

Interests: BasicsVested v. Contingent RemainderVested v. Contingent Remainder

VESTED VESTED IF:IF:•Grantee is living ascertainable person AND•Clause creating the remainder contains no condition on grantee taking the property except expiration of prior estate

CONTINGENT CONTINGENT IF:IF:•Grantee is presently unborn or unascertainable OR•Clause creating the remainder contains a condition on grantee taking the property

Interests: BasicsRemainders in …Remainders in …

“To Fred for life, then to Wilma for life.” Wilma has a vested remainder in life estate.in life estate.

“To Fred for life, then to Wilma and her heirs if Dino survives Fred.

Wilma has a contingent remainder in fee in fee simple absolute.simple absolute.

Interests: BasicsRemainder v. Executory InterestRemainder v. Executory Interest

REMAINDER: REMAINDER: Future interest in a grantee that follows naturally upon the termination of a finite estate. It is always expressly conveyed by the grantor.

EXECUTORY INTEREST: EXECUTORY INTEREST: Future interest in a grantee Future interest in a grantee that cuts off a prior vested interest (present estate that cuts off a prior vested interest (present estate or reversion or vested remainder) rather than or reversion or vested remainder) rather than waiting for it to expire naturally.waiting for it to expire naturally.

Interests: BasicsShifting v. Springing Executory InterestShifting v. Springing Executory Interest

•Shifting Executory Interest cuts off interest of another grantee.

•Springing Executory Interest cuts off grantor’s fee simple or reversion.

WARM-UP/REVIEW 1:Remainders & Executory Interests

More AdvancedMore Advanced•Alternative Contingent RemaindersAlternative Contingent Remainders•Vested Remainders Subject to OpenVested Remainders Subject to Open•Vested Remainders Subject to DivestmentVested Remainders Subject to Divestment•Problems 4L-4NProblems 4L-4N

WARM-UP/REVIEW 1: Remainders & Executory Interests: More AdvancedAlternative Contingent RemainderAlternative Contingent Remainder

•Two contingent remainders where the event that causes one to vest will destroy the other.

•Convention is that, where these are created, you always pencil in a reversion (even if it seems impossible that it will ever become possessory).

WARM-UP/REVIEW 1: Remainders & Executory Interests: More Advanced

Alternative Contingent RemainderAlternative Contingent Remainder•Two contingent remainders where the event that causes one to vest will destroy the other. Always pencil in a reversion.•Example: JordanJordan: “To Kevin for life: “To Kevin for life, , then to Katherine and her then to Katherine and her heirs if she graduates from law schoolheirs if she graduates from law school, , but if she never graduates but if she never graduates from law school, then to Sofia and her heirs.”from law school, then to Sofia and her heirs.”

• Kevin has Life Estate• Katherine & Sofia each have an Alternate Contingent

Remainder (in F.S.)• Jordan retains a Reversion

Alternative Contingent RemainderAlternative Contingent Remainder•Example: JordanJordan: “To Kevin for life: “To Kevin for life, , then to Katherine and her then to Katherine and her heirs if she graduates from law schoolheirs if she graduates from law school, , but if she never graduates but if she never graduates from law school, then to Sofia and her heirs.”from law school, then to Sofia and her heirs.”

What happens if Kevin dies & Katherine What happens if Kevin dies & Katherine is alive but has not yet graduated from is alive but has not yet graduated from

law school? law school?

Alternative Contingent RemainderAlternative Contingent Remainder•JordanJordan: “To Kevin for life: “To Kevin for life, , then to Katherine and her heirs if she then to Katherine and her heirs if she graduates from law schoolgraduates from law school, , but if she never graduates from law but if she never graduates from law school, then to Sofia and her heirs.”school, then to Sofia and her heirs.”•Kevin dies; Katherine alive, hasn’t graduated. Kevin dies; Katherine alive, hasn’t graduated. •Jordan’s Reversion Jordan’s Reversion Fee Simple … Fee Simple …

• If Destructability applies, both remainders destroyed, so J has If Destructability applies, both remainders destroyed, so J has FS Absolute.FS Absolute.

• If no DestructibilityIf no Destructibility

• Both remainders become executory interestsBoth remainders become executory interests

• Jordan has FS on Executory LimitationJordan has FS on Executory Limitation

WARM-UP/REVIEW 1: Remainders & Executory Interests: More AdvancedVested Remainder Subject to OpenVested Remainder Subject to Open

•Remainder Remainder • given to a class of recipients (as opposed to specifically given to a class of recipients (as opposed to specifically

named individuals),named individuals),• at least one of whom has qualified for the class,at least one of whom has qualified for the class,• where other individuals could qualify for the class later.where other individuals could qualify for the class later.

•Example (4G): “To Larry for life, then to Larry's children and their heirs.“ Larry has two living children.

Vested Remainder Subject to DivestmentVested Remainder Subject to Divestment

•Vested Remainder followed by an Executory InterestExecutory Interest that could cut the VR off before it becomes possessory.

•Example (4K): “To George for life, “To George for life, then to Kramer then to Kramer and his heirs;and his heirs; but if Kramer does not attain the age but if Kramer does not attain the age of 21, then to Elaine and her heirs.” of 21, then to Elaine and her heirs.” Kramer is 15 years old.

Questions Before Moving on to New Questions Before Moving on to New Material?Material?

Vested Remainder Subject to Divestment (1) v.Vested Remainder Subject to Divestment (1) v.Vested Remainder in F.S. subj. to Exec. Lim. (2)Vested Remainder in F.S. subj. to Exec. Lim. (2)

(1) To A for life, then to B & her heirs, but if B dies before turning 21, then to C & his heirs.•Condition might occur before B obtains possession.

Vested Remainder Subject to Divestment (1) v.Vested Remainder Subject to Divestment (1) v.Vested Remainder in F.S. subj. to Exec. Lim. (2)Vested Remainder in F.S. subj. to Exec. Lim. (2)

(1) To A for life, then to B & her heirs, but if B dies before turning 21, but if B dies before turning 21, then to C & his heirs.then to C & his heirs.•Condition might occur before B takes possession.

(2) To A for life, then to B & her heirs, but if B ever uses the land but if B ever uses the land for commercial purposes, to C & his heirs. for commercial purposes, to C & his heirs. •Condition is a limit on B’s use of the land and cannot occur before B takes possession.

TERMINOLOGY: ME v. WORKBOOK

To A for life, then to B & her heirs, but if B dies before turning 21, then but if B dies before turning 21, then to C & his heirs.to C & his heirs.•Condition might occur before B takes possession, but also might occur after.•WORKBOOK (p93): Vested Remainder Subject to Divestment in Fee Simple on Executory Limitation. •ME: Phrase in italics is accurate but unnecessary. In multiple choice answers, I will simply call this interest a Vested Remainder Subject to Divestment (as long as it might occur before possession).

CORRECTION TO WORKBOOK (Problem 9-11)

O to A for life, then to B, but if B ever allows A to be but if B ever allows A to be moved into a nursing home, then to Cmoved into a nursing home, then to C

• Condition must occur, if at all, while A is alive, thus before B gets possession.

– Presumably (considering grantor’s likely intent), it would not violate the condition for B to allow someone to carry A’s corpse into a nursing home. (!)

• B will eventually get either nothing or a fee simple absolute (assuming “today”)

• B has a vested remainder subject to divestment

– (in Fee Simple Absolute)

– NOT in Fee Simple on Executory Limitation

• B will eventually get either nothing or a fee simple absolute (assuming “today”)

• B has a vested remainder subject to divestment [in FS Absolute]

QUESTIONS?

Alt. Contingent Remainders (1) v. Alt. Contingent Remainders (1) v. Vested Remainder Subject to Vested Remainder Subject to

Divestment (2)Divestment (2)(1) To A for life, (1) To A for life, then to B & her heirs then to B & her heirs if she if she turns 21turns 21, , but if B dies before 21, then to C but if B dies before 21, then to C and his heirs. and his heirs. Reversion in O.Reversion in O.

(2) To A for life, (2) To A for life, then to B & her heirsthen to B & her heirs,, but if B but if B dies before 21, then to C & his heirs. (No dies before 21, then to C & his heirs. (No Reversion in O)Reversion in O)

Alt.Contingent Remainders (1) v. Alt.Contingent Remainders (1) v. Vested Remainder Subject to Divestment Vested Remainder Subject to Divestment

(2)(2)(1) To A for life, then to B & heirs if she turns 21, but if B dies before 21, then to C & heirs. Reversion in O.

(2) To A for life, then to B & her heirs, but if B dies before 21, then to C & his heirs.

•Both 1+2: If A alive & B dies at 14If A alive & B dies at 14:

• B gets 0;

• C gets fee simple at A’s death

Alt. Contingent Remainders (1) v. Alt. Contingent Remainders (1) v. Vested Remainder Subject to Divestment Vested Remainder Subject to Divestment

(2)(2)(1) To A for life, then to B & heirs if she turns 21, but if B dies before 21, then to C & heirs. Reversion in O.

•Both 1+2: If A alive & B turns 21If A alive & B turns 21:

• B has vested remainder

• C’s interest fails

Contingent Remainder (1) v. Contingent Remainder (1) v. Vested Remainder Subject to Divestment Vested Remainder Subject to Divestment

(2)(2)(1) To A for life, then to B & her heirs if she turns 21, but if B dies before 21, then to C and his heirs. Reversion in O.

•(1) (1) If A dies & B not yet 21:If A dies & B not yet 21: • Conditions not met for either B or C. Remainders Conditions not met for either B or C. Remainders

either destroyed or become Springing Executory either destroyed or become Springing Executory InterestsInterests

• O takes Fee Simple [on Executory Limitation in O takes Fee Simple [on Executory Limitation in Modern View (exc. FL)]Modern View (exc. FL)]

•(2) (2) If A dies & B not yet 21If A dies & B not yet 21• No requirement that B turn 21 to take possession, so No requirement that B turn 21 to take possession, so

B does take possession and has Fee Simple on B does take possession and has Fee Simple on Executory Limitation.Executory Limitation.

• C still has Shifting Executory Interest that will become C still has Shifting Executory Interest that will become possessory if B dies before turning 21.possessory if B dies before turning 21.

Questions?

• O to A for life, then to B, on condition that B has passed the bar.

• O to A for life, then to B, on condition that B has passed the bar.–A has Life Estate

–B has a Remainder (follows life estate)• At First Looks Vested

– Living Ascertainable Person

– No Condition in Clause Creating the Interest (Walk to the Punctuation & Turn Around …)

–BUT …

–B has a Remainder (follows life estate)• At First Looks Vested

• BUT Condition that follows it does not create an interest in anybody else, so must attach to B’s remainder

• Comma after B unneeded & confusing.

–B has a Contingent Remainder • Condition is a “Condition Precedent”

• See 5-29, which strongly suggests that interest in 5-28 is a contingent remainder.

QUESTIONS?

COMPAREO to A for life, then to B[,] on condition

that B has passed the bar.• A has Life Estate

• B has a Contingent Remainder

• O retains a Reversion

O to A for life, then to B, on condition on condition that if B ever fails the bar, then to C.that if B ever fails the bar, then to C.

• A has Life Estate

• B has a Vested Remainder Subject to Divestment

• C has a Shifting Executory InterestC has a Shifting Executory Interest

SHENANDOAH: Problems 4L-4N

APPALACHIAN TRAIL

SHENANDOAH (4L): Daffy "to Tweety for life, then to such of Tweety's children as survive him, but if none of Tweety's children survives him, then to Peggy and her

heirs." Tweety has 2 children, Heckle and Jeckle.

• Tweety: ?

• Tweety: Life Estate• Tweety’s Children?

• Tweety: Life Estate

• Tweety’s Children: Contingent Remainder (in f.s.) (Must Survive Tweety)

• Peggy?

• Tweety: Life Estate• Tweety’s Children: Contingent Remainder (in f.s.)

• Peggy: Alternative Contingent Remainder (in f.s.): Only 2 Possibilities:– Tweety survived by children (who take)– Tweety not survived by children (Peggy takes)

• Tweety: Life Estate• Tweety’s Children: Alternative Contingent Remainder (in f.s.)• Peggy: Alternative Contingent Remainder (in f.s.)

• Anything Else?

• Tweety: Life Estate• Tweety’s Children: Contingent Remainder (in f.s.)• Peggy: Alternative Contingent Remainder (in f.s.)

• Daffy: Reversion (even when alternate contingent remainders)

SHENANDOAH (4L): Daffy "to Tweety for life, then to such of Tweety's children as survive him, but if none of Tweety's children

survives him, then to Peggy and her heirs."

• Tweety: Life Estate• Tweety’s Children: Alternative Contingent Remainder (in f.s.)• Peggy: Alternative Contingent Remainder (in f.s.)• Daffy: Reversion (even when alternate contingent remainders)

SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he is not survived by any children, then to Jo and her heirs."

Billy has no children.

• Billy: ?

SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death

he is not survived by any children, then to Jo and her heirs." Billy has no children.

• Billy: Life Estate• Billy’s children: ?

SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he is not survived by any children, then to Jo and her

heirs." Billy has no children.

• Billy: Life Estate

• Billy’s children: Contingent Remainder (in f.s.) (Unborn)

• Jo: ?

Alternative Contingent Alternative Contingent RemaindersRemainders

Two contingent remainders for which the event that causes one to vest will destroy the other.

• When does contingent remainder in B’s children vest?

• Contingent remainder in B’s children vests when a child of B’s is born.

• When does contingent remainder in Jo vest?

• Contingent remainder in B’s children vests when a child of B’s is born.

• Contingent remainder in Jo vests when Billy dies survived by no children.

• Is the interest in Jo destroyed when the interest in the children vests?

• Billy: Life Estate• Billy’s children: Contingent Remainder (in f.s.)

• Jo: Contingent Remainder (in f.s.) (Not alternate)• Anything Else?

• Billy: Life Estate• Billy’s children: Contingent Remainder (in f.s.) • Jo: Contingent rem. (in f.s.) (Not alternate)

• Amanda: Reversion

• Billy: Life Estate• Billy’s children: Contingent Rem. (in f.s.) (unborn)• Jo: Contingent Rem. (in f.s.) (Not Alternative)• Amanda: Reversion

SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he is not survived

by any children, then to Jo and her heirs."

Billy has a child, Sydney.

• Billy: Life Estate• Sydney?

• Billy: Life Estate

• Sydney: Vested Remainder (in f.s.) …– Subject to Open (B can have more children) …– Subject to Divestment (interest lost if none of B’s children

survive B)

• Jo?

SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he is not survived by but if at Billy's death he is not survived by

any children, then to Jo and her heirs." any children, then to Jo and her heirs."

• Billy: Life Estate• Sydney: Vested Remainder (in f.s.) Subject to Open, Subject to Divestment

• Jo: Shifting Executory Interest (in f.s.) (would cut off vested remainder)

• Amanda?

SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he is not survived by but if at Billy's death he is not survived by

any children, then to Jo and her heirs." any children, then to Jo and her heirs."

• Billy: Life Estate• Sydney: Vested Remainder (in f.s.) Subject to Open, Subject to Divestment• Jo: Shifting Executory Interest (in f.s.) (would cut off vested remainder)

• Amanda: Nothing (Reversion divests when 1st contingent remainder vests)

SHENANDOAH (4N): Clark “to Jimmy for life, then to Lois & her heirs, but if Jimmy is survived at his death by

any children, then to such surviving children & their heirs.Jimmy has two children, Perry & Della.

• Jimmy?

SHENANDOAH (4N): Clark “to Jimmy for life, then to Lois & her heirs, but if Jimmy is survived at his death by any children, then to such surviving children & their heirs.

Jimmy has two children, Perry & Della.

• Jimmy: Life Estate• Lois?

SHENANDOAH (4N): Clark “to Jimmy for life, then to Lois & her heirs, but if Jimmy is survived at his death by

any children, then to such surviving children & their heirs.Jimmy has two children, Perry & Della.

• Jimmy: Life Estate

• Lois: Vested Remainder (in f.s.) Subject to Divestment• J’s Children

SHENANDOAH (4N): Clark “to Jimmy for life, then to Lois & her heirs, but if Jimmy is survived at his death by but if Jimmy is survived at his death by

any children, then to such surviving children & their heirs.any children, then to such surviving children & their heirs.Jimmy has two children, Perry & Della.

• Jimmy: Life Estate• Lois: Vested Remainder (in f.s.) Subject to Divestment

• J’s Children: Shifting Executory Interest (in f.s.)J’s Children: Shifting Executory Interest (in f.s.)• Clark?

SHENANDOAH (4N): Clark “to Jimmy for life, then to Lois & her heirs, but if Jimmy is survived at his death by but if Jimmy is survived at his death by

any children, then to such surviving children & their heirs.any children, then to such surviving children & their heirs.Jimmy has two children, Perry & Della.

• Jimmy: Life Estate• Lois: Vested Remainder (in f.s.) Subject to Divestment• J’s Children: Shifting Executory Interest (in f.s.)J’s Children: Shifting Executory Interest (in f.s.)

• Clark: Nothing

GRANTS IN (4L) & (4M) & (4N) ALL TRYING TO DO SAME THINGS:

(1) To A for life, then …

(2) If A has any surviving children, they take.

(3) If no surviving children, to B.

BUT The Precise Wording of Each Grant Creates a Slightly Different Set of Interests

(4L) & (4M) & (4N)

Test Note #4Test Note #4: : Test Will Include Grants Modeled on At Least One of These Test Will Include Grants Modeled on At Least One of These

Problems. I’ll Ask You to:Problems. I’ll Ask You to:1.1.Identify the Interests Created; andIdentify the Interests Created; and2.2.Identify the State of the Title as Relevant Parties are Born or Identify the State of the Title as Relevant Parties are Born or Die.Die.

WARM-UP/REVIEW 2:Conditional Interests

BASICSBASICS

•Identifying Defeasible FeesIdentifying Defeasible Fees•Defeasible Fees v. Finite Estate + Contingent Remainder

•Defeasible Finite Estates

•Future Interests that Follow Defeasible Estates

IDENTIFYING DEFEASIBLE FEES

W ho Holds Future Interest?G rantor (or unnam ed) or 2d G rantee

If G rantor (or unnam ed):H ow does it operate?

Self-Executing or G rantor M ust Act

If 2d G rantee:Fee S im ple on Executory L im ita tion

(p lus Executory In terest)

W ho Holds Future Interest?G rantor (or unnam ed) or 2d G rantee

If Self-Executing:Fee S im ple D eterm inab le

(p lus Possib ility o f R everter)

If Grantor M ust Act:Fee S im ple on C ond ition Subsequent

(p lus R ight o f Entry)

If Grantor (or unnam ed):H ow does it opera te?

S elf-E xecuting or G rantor M ust A ct

If 2d G rantee:Fee S im ple on Executory L im ita tion

(p lus Executory In terest)

W ho Holds Future Interest?G rantor (o r unnam ed) or 2d G rantee

BASICSBASICS•Identifying Defeasible Fees

•Defeasible Fees v. Finite Defeasible Fees v. Finite Estate + Contingent Estate + Contingent RemainderRemainder•Defeasible Finite Estates

DEFEASIBLE FEES

v. (FINITE ESTATES +) CONTINGENT REMAINDERS

DEFEASIBLE FEES

• PRESENT INTEREST IS FEE

CONTINGENTREMAINDERS

• PRESENT INTEREST IS FINITE

DEFEASIBLE FEES

• PRESENT ESTATE CUT OFF IF CONDITION MET

• PRESENT ESTATE TERMINATES NATURALLY

DEFEASIBLE FEES

• FUTURE INTEREST IN EITHER GRANTOR OR GRANTEEGRANTEE

• REMAINDER IN GRANTEE PLUS REVERSION IN GRANTOR

Pepe grants Tealacre to Rory and his heirs, but if Totie but if Totie loses 100 pounds, she may enter and retake the land.loses 100 pounds, she may enter and retake the land.

(Fee Simple on Executory Limitation + Executory Interest+ Executory Interest)

Pepe grants Tealacre to Rory for life, then to Totie if she loses 100 pounds.

(Life Estate + Contingent Remainder + Reversion in Pepe)

•Defeasible Fees v. Finite Estate + Contingent Remainder

•Defeasible Finite EstatesDefeasible Finite Estates

Defeasible Finite Estates: Defeasible Finite Estates: Examples

Term of Years on Condition Subsequent:“To Joshua for 20 years, but if he ever passes the bar

exam, I can enter & retake.”

Life Estate on Executory Limitation“To Richard for life, but to Chris & his heirs if Chris ever

passes the bar exam.”

•Defeasible Fees v. Finite Estate + Contingent Remainder

•Defeasible Finite Estates

•Future Interests that Follow Future Interests that Follow Defeasible EstatesDefeasible Estates

Defeasible Fees & Matching Future Interests

(Accessorizing)(Accessorizing)

• FEE SIMPLE DETERMINABLE & Possibility of Reverter

• F.S. ON CONDITION SUBSEQ’T & Right of Re[Entry]

• F.S. ON EXECUTORY LIMITATION & Executory Interest

Defeasible Finite Estates & Matching Future Interests

• Defeasible Finite Estates Necessarily Create Two Future Interests• One cuts off the finite estate if the

condition is met)• One follows at the end of the finite estate

if it terminates naturally (i.e., if the condition is not met).

• If One Person Holds Both of These Future Interests, They Will Merge Into the “Larger” Interest

• Defeasible Finite Estates Necessarily Create Two Future Interests

• If One Person Holds Both Future Interests, They Will Merge Into the “Larger” Interest

• Example (4H): Thelma conveys “To Louise for 99 Years if Louise so long live." – Louise: Term of years determinable.– Thelma: Possibility of Reverter plus

Reversion

• Example (4H): Thelma conveys “To Louise for 99 Years if Louise so long live." – Louise: Term of years determinable.– Thelma: Possibility of Reverter plus

Reversion Reversion (Merger) (Captures idea that T will end up with land eventually no matter what)

• Example (E79): O “To A for life or until A divorces, then to B" – A: Life Estate on Executory Limitation.– B: Shifting Executory Interest Shifting Executory Interest + Vested

Remainder

• Example (E79): O “To A for life or until A divorces, then to B" – A: Life Estate on Executory Limitation.– B: Shifting Executory Interest Shifting Executory Interest + Vested

Remainder Vested Remainder (Merger) (Captures idea that A will end up with land eventually no matter what)

In 2006, Brian grants Mason-acre “to Dolly for life, then to Jessica so long as she never tries to sell Mason-acre, otherwise to Mike and Mili.” otherwise to Mike and Mili.”

At the time of the grant, Jessica has a(a) Vested remainder in fee simple determinable.(b) Vested remainder in fee simple absolute.(c) Vested remainder in fee simple on executory limitation.(d) Vested remainder subject to divestment.

Take a moment and try this.

In 2006, Brian grants Mason-acre “to Dolly for life, then to Jessica so long as she never tries to sell Mason-acre, otherwise to Mike and Mili.” otherwise to Mike and Mili.”

At the time of the grant, Jessica has a(a) Vested remainder in fee simple determinable.

(b) Vested remainder in fee simple absolute.(c) Vested remainder in fee simple on executory limitation.(d) Vested remainder subject to divestment.

Why is (b) the correct answer?

Conditions: Conditions: Additional InformationAdditional Information

• Unacceptable Unacceptable ConditionsConditions

• Problem 4O • Shapira• Timing Issues

Unacceptable Conditions

Conditions So Abhorrent …

You Can’t Even Impose Them on Your Own

Children

• Total Restraint on Alienation

In 2006, Brian grants Mason-acre “to Dolly for life, then to Jessica so long as she never tries to sell

Mason-acre, otherwise to Mike and Mili.”

•Total Restraint on Alienation is Invalid

•Total Restraint on Alienation is Invalid• Pencil Out Unlawful Condition (and

executory interest that turns on it)

•Total Restraint on Alienation is Invalid• Pencil Out Unlawful Condition (and

executory interest that turns on it)• Result is Vested Remainder in Fee

Simple Absolute

In 2006, Brian grants Mason-acre “to Dolly for life, then to Jessica so long as she never tries to sell Mason-acre, otherwise

to Mike and Mili.”

•Exam Question Fall 2007 & Spring 2010• 1st Time Nasty b/c New & at End of Test: (1/63 students

got it)• 2d Time (with warning) about 45% got it.• READ CAREFULLY!!

• Total Restraint on Alienation• Partial Restraint OK if Reasonable

• Total Restraint on Alienation• Partial Restraint OK if Reasonable• Most Restrictions Restrain Alienation to

Some Extent• If too burdensome/weird could treat as too

much restraint (b/c nobody will purchase)• See Casebook at P632-33

Maybe: “so long as the owner stays on

the parcel every night.”

• Total Restraint on Alienation• Partial Restraint OK if Reasonable• Most Restrictions Restrain Alienation to Some Extent• Use Restrictions (Only by X?)

• OK if Charitable• Some jurisd: Non-Charitable = Unreas. Restraint

on Alienation

• Total Restraint on Alienation• Doing Criminal Acts

“To Kyley if she murders Matt”

• Total Restraint on Alienation• Doing Criminal Acts• Total Restraint on Marriage: Generally

Barred• Some Jurisd: Maybe OK if Life Estate• Some Jurisd allow reasonable partial restraints

• E.g., “So long as she doesn’t marry until she turns 25”• We’ll explore with Problem 4O & Shapira

• Total Restraint on Alienation• Doing Criminal Acts• Total Restraint on Marriage• Encouraging Divorce (Evil In-Laws

Grant):

“To Lindsay so long as she divorces Doug”

• Total Restraint on Alienation• Doing Criminal Acts• Total Restraint on Marriage• Encouraging Divorce

• Grant Penalizing Divorce Seems to be OK

“To Lindsay for Life, but if she divorces Doug, to

Ashley”

• Total Restraint on Alienation• Doing Criminal Acts• Total Restraint on Marriage• Encouraging Divorce• Commonly Protected Characteristics

• Race-Based Limitations (Unenforceable)

• Sex-Based Upheld w/in Family• Religion: (We’ll Discuss w Shapira)

• Total Restraint on Alienation• Doing Criminal Acts• Total Restraint on Marriage• Encouraging Divorce• Commonly Protected Characteristics

QUESTIONS?

Conditions: Conditions: Additional InformationAdditional Information

• Unacceptable Conditions

• Problem 4OProblem 4O • Shapira• Timing Issues

Yellowstone (4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.”

Residue to daughter Gloria.• Gloria is not Edith’s child.• Edith moves in with male friend, Sherman. • Edith then dies, devising all her property to

Sherman.

“devising” means?

Residue to daughter Gloria.

Note on Future Interests Created in Wills•The future interest that is retained by Archie (when he grants present interest to Edith) then passes to Gloria through the residuary clause. •For purposes of naming the property rights involved, we treat this future interest as being held initially by Archie (the grantor), because it is not explicitly described as being granted to a third party.

Yellowstone (4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue

to daughter Gloria.

Three Qs/Ambiguities I Said We’d Discuss:

1. Life Estate Determinable v. Fee Simple Determinable?

2. Is condition restraining second marriage void?

3. Does cohabitation violate a restraint on marriage?

Then We’ll Work Through Decision Tree

EXAM TIP: “Which of the Following Arguments Does [Not] Support …”

• Can Arise in Context of– Fee Simple v. Life Estate (White, 4o)– FSD v. FSCS (Mahrenholz, 4i)– Whether a Condition is Valid (Shapira, 4o)– Timing Ambiguities (Tomorrow)

EXAM TIP: “Which of the Following Arguments Does [Not] Support …”

• For an Argument to “Support” a Particular Legal Result: 1. It Must Be Correct and2. It Must Logically Suggest that the Result is

More Likely or More Desirable Than the Alternative

YELLOWSTONE (PROBLEM 4O)

GIANT GEYSER

(Q1) Arguments Supporting Fee Simple Determinable (as opposed to Life Estate

Determinable?)

• Arguments Supporting FSD Include:– Presumption of Fee Simple if Today– No Explicit Reference to “Life”– No Explicit Gift Over Listed (See White v.

Brown)

• Arguments Supporting Life Estate Determinable?

(Q1) Arguments Supporting Life Estate Determinable (Q1) Arguments Supporting Life Estate Determinable Include:Include:•Presumption of Life Estate if at Common LawPresumption of Life Estate if at Common Law•““Use and Benefit” Sounds Like Life Estate (Hard to “Use” Use and Benefit” Sounds Like Life Estate (Hard to “Use” Land After Death)Land After Death)•Condition/Language is Consistent with Intent to Provide Condition/Language is Consistent with Intent to Provide Shelter/Support for Edith Shelter/Support for Edith During Her LifetimeDuring Her Lifetime•Reasonable to Think Archie would try to Protect Gloria (not Reasonable to Think Archie would try to Protect Gloria (not Edith’s daughter)Edith’s daughter)

Residue to daughter Gloria.• Caselaw in many states today

interpreting “for use and benefit:”– Majority View: creates Fee Simple– Minority View: creates Life Estate

Majority View: •E has Fee Simple Determinable •What is Remaining Future Interest in Archie (passed to Gloria through residuary clause)?

Majority View: •E has Fee Simple Determinable •A G: Possibility of Reverter

Minority View: •E has Life Estate Determinable •What is Remaining Future Interest in Archie (passed to Gloria through residuary clause)?

Minority View: •E has Life Estate Determinable •Possibility of Reverter + Reversion

– Merges into Reversion

(Q2) If Edith had never married, condition probably would be void as against public policy. (Allowed for

life estates in a few states)Should we treat condition restraining second marriage differently from one restraining first

marriage?

Yellowstone (4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to

daughter Gloria.(Q2) Is condition restraining

second marriage void as against public policy?

•Policy Concerns: A’s right to control property v. E’s right to control her life•Court probably more likely to allow condition if it views E’s interest as just a life estate for support

daughter Gloria.(Q2) Is condition restraining second marriage void as against public policy? Result:

–If not void, nothing changes–If void, pencil out condition

daughter Gloria.• If condition void, pencil out condition:

“To my wife Edith, for her use & benefit, so long as she remains unmarried.”

daughter Gloria.• If condition void, pencil out condition:

“To my wife Edith, for her use & benefit, so long as she remains unmarried.”

• Resulting Interests:–Majority: E = Fee Simple Absolute–Some: E = Life Estate + G = Reversion

If Void, What Happens when E dies?

Yellowstone (4O): Archie in will: “To my wife E, for her use & benefit, so long as she remains

unmarried.” Residue to G. E then dies leaving all property to S.

If condition void, resulting interests:

•Majority: E = Fee Simple Absolute– When E Dies, S gets FSA through E’s

•Some: E = Life Estate + G = Reversion – When E dies, Life Estate ends, and G has

property d slides 3-17-14. monday march 17 music: albéniz, iberia alicia delarrocha, pianist 2009...

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