PROPERTY E SLIDES

1
PROPERTY E SLIDES

• 3-7-13

2
DENALI Problem 4M continued
Denali Caribou
3
DENALI (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
• Billys children Contingent Rem. (in f.s.)
  (unborn)
• Jo Contingent Rem. (in f.s.) (Not Alternative)
• Amanda Reversion

4
DENALI (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?

5
DENALI (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 Vested Remainder (in f.s.)
• Subject to Open (B can have more children)
• Subject to Divestment (interest lost if none of
  Bs children survive B)
• Jo?

6
DENALI (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 Vested Remainder (in f.s.) Subject to
  Open, Subject to Divestment
• Jo Shifting Executory Interest (in f.s.) (would
  cut off vested remainder)
• Amanda?

7
DENALI (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 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)

8
EVERGLADESProblem 4N
EGRET IN MANGROVE SWAMP
9
Everglades (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?

10
Everglades (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?

11
Everglades (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
• Js Children

12
Everglades (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
• Js Children Shifting Executory Interest (in
  f.s.)
• Clark?

13
Everglades (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
• Js Children Shifting Executory Interest (in
  f.s.)
• Clark Nothing

14
GRANTS IN (4L) (4M) (4N) ALL TRYING TO DO
SAME THINGS

• To A for life, then
• If A has any surviving children, they take.
• If no surviving children, to B.
• BUT The Precise Wording of Each Grant Creates a
  Slightly Different Set of Interests

15
(4L) (4M) (4N)

• Test Note 4
• Test Will Include Grants Modeled on At Least Two
  of These Problems. Ill Ask You to
• Identify the Interests Created and
• Identify the State of the Title as Relevant
  Parties are Born or Die.

16
LOGISTICS

• If we dont finish all of Problem 4O today
• Ill still post all Problem 4O slides with
  todays slide show
• In class on Mon. 3/18, Ill go over the slides we
  dont cover today.
• Assignment Sheet Updated to Include Monday 3/18.
• Shapira DQ71 Be ready to explain the series of
  distinctions made by the court and how they fit
  into its reasoning.
• Review Problems 4P-4S As with Problem 4O, well
  start by identifying legal and factual
  ambiguities/Qs you need to resolve to do the
  problem, then follow up by working through some
  of the resulting possibilities.

17
LOGISTICS

• Chapter 4 Exam (Thurs 3/21)
• Relevant Info Materials Now at Top of Course
  Page
• E-Mail Me if Qs
• Submitting Sample Exam Qs for My Review
• Instructions on Course Page
• If you wish to submit more than one, deadline for
  first submission is on Friday March 15
• E-Mail Me if Qs

18
Conditions Additional Information
Weather Conditions

• On One Condition

Skin Condition
(H)Air Condition
Heart Condition
Necessary Condition
Pre-Existing Condition
Stable Condition
Road Conditions
19
Conditions theStatute of Limitations

• If Condition is Self-Executing Statute Runs from
  First Moment Condition is Violated, Which Creates
  Trespass Claim
• If Future Interest Holder Must Act to Take
• If claiming condition was violated only by a
  single discrete act, presumably statute runs from
  the time of that act.
• If claiming condition was violated by a
  continuing series of acts (as in 4I), presumably
  statute continually restarts as long as acts go
  on (but risk of waiver if aware of)

20
Conditions Timing Ambiguity

• To Andrew for life, then to Brian, but if Cheryl
  graduates from law school, then to Cheryl.
• If Cheryl graduates from law school during
  Andrews life estate, does she divest Andrews
  interest or just Brians?

21
Conditions Timing AmbiguityPossible Arguments

• To Andrew for life, then to Brian, but if Cheryl
  graduates from law school, then to Cheryl.
• Common Law Presumption If ambiguous, interest
  wont divest life estate.
• Today Generally treated as question of Grantors
  intent.

22
Conditions Timing AmbiguityPossible Arguments

• To Andrew for life, then to Brian, but if Cheryl
  graduates from law school, to Cheryl.
• To Andrew for life, then to Brian, but if Cheryl
  has graduated from law school, then to Cheryl.
• Differences in wording, especially verb tenses,
  suggest C takes immediately for (1) at end of
  Life Estate for (2).

23
Conditions Timing AmbiguityPossible Arguments

• To Andrew for life, then to Brian, but if Cheryl
  graduates from law school, then to Cheryl.
• Andrew is 16 Cheryl is 46.
• Seems unlikely Cheryl will survive Andrew
• Suggests grantor intended Cheryls interest to
  cut off Andrews (or little point to the grant).

24
Conditions Timing AmbiguityPossible Arguments

• To Andrew for life, then to Brian, but if Andrew
  graduates from law school, then to Cheryl.
• Seems purpose of grant is either
• To discourage A from going to law school
• To provide support for A unless he becomes a
  lawyer and can support himself
• Either way, suggests Cs interest should cut off
  As Life Estate

25
Conditions Timing AmbiguityPossible Arguments

• To Andrew for life, then to Brian, but if Andrew
  graduates from law school, then to Cheryl.
• To Andrew for life, then to Brian, but if Brian
  graduates from law school, then to Cheryl.
• In (2), seems odd to punish Andrew for Brians
  life choices, so absent clear reason, likely
  treat Cs interest as just cutting off Bs
  remainder

26
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.

• 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.

27
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.

• 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?

28
Unacceptable Conditions

• Conditions So Abhorrent

29
Unacceptable Conditions

• Conditions So Abhorrent
• You Cant Even Impose Them
• on Your Own Children

30
Unacceptable Conditions

• Total Restraint on Alienation

31
Unacceptable Conditions

• 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

32
Unacceptable Conditions

• 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
• Pencil Out Unlawful Condition (and executory
  interest that turns on it)

33
Unacceptable Conditions

• 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
• Pencil Out Unlawful Condition (and executory
  interest that turns on it)
• Result is Vested Remainder in Fee Simple Absolute

34
Unacceptable Conditions

• 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 at End of Test (1/63 students
  got it)
• 2d Time (with warning) about 45 got it.
• READ CAREFULLY!!

35
Unacceptable Conditions

• Total Restraint on Alienation
• Partial Restraint OK if Reasonable

36
Unacceptable Conditions

• 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

37
Unacceptable Conditions

• 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

38
Unacceptable Conditions

• Total Restraint on Alienation
• Doing Criminal Acts

39
Unacceptable Conditions

• Total Restraint on Alienation
• Doing Criminal Acts
• Total Restraint on Marriage
• Some Jurisd Maybe OK if Life Estate
• Some Jurisd allow partial restraints
• E.g., Until she turns 25
• Well explore after break with Shapira

40
Unacceptable Conditions

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

41
Unacceptable Conditions

• Total Restraint on Alienation
• Doing Criminal Acts
• Total Restraint on Marriage
• Obtaining Divorce
• Race-Based Limitations (Unenforceable)
• Sex-Based Upheld w/in Family
• Religion (Discuss After Break w Shapira)

42
EXAM TIP Which of the Following Arguments
Does Not Support

• Can Arise in Context of
• Fee Simple v. Life Estate
• FSD v. FSCS
• Timing Ambiguities
• Whether a Condition is Valid

43
EXAM TIP Which of the Following Arguments
Does Not Support

• For an Argument to Support a Particular Legal
  Result
• It Must Be Correct and
• It Must Logically Suggest that the Result is More
  Likely or More Desirable Than the Alternative

44
EVERGLADESProblem 4O
EGRET IN MANGROVE SWAMP
45
EVERGLADES (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 Ediths child.
• Edith moves in with male friend, Sherman.
• Edith then dies, devising all her property to
  Sherman.
• devising means?

46
EVERGLADES (4O) Archie in will To my wife
Edith, for her use benefit, so long as she
remains unmarried. Residue to daughter Gloria.

• 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.

47
EVERGLADES (4O) Archie in will To my wife
Edith, for her use benefit, so long as she
remains unmarried. Residue to daughter Gloria.

• Last Time Three Qs/Ambiguities to Discuss
• Life Estate Determinable v. Fee Simple
  Determinable?
• Is condition restraining second marriage void?
• Does cohabitation violate a restraint on
  marriage?
• Then Well Work Through Decision Tree

48
EVERGLADES (4O) Archie in will To my wife
Edith, for her use benefit, so long as she
remains unmarried. Residue to daughter Gloria.

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

49
EVERGLADES (4O) Archie in will To my wife
Edith, for her use benefit, so long as she
remains unmarried. Residue to daughter Gloria.

• Arguments Supporting FSD Include
• Presumption of Fee Simple Today
• No Explicit Reference to Life
• No Explicit Gift Over Listed (See White v. Brown)
• Arguments Supporting Life Estate Determinable?

50
EVERGLADES (4O) Archie in will To my wife
Edith, for her use benefit, so long as she
remains unmarried. Residue to daughter Gloria.

• (Q1) Arguments Supporting Life Estate
  Determinable Include
• Presumption of Life Estate if at Common Law
• Use and Benefit Sounds Like Life Estate
• Condition is Consistent with Intent to Provide
  Shelter/Support for Edith During Her Lifetime
• Reasonable to Think Archie would try to Protect
  Gloria (not Ediths daughter)

51
EVERGLADES (4O) Archie in will To my wife
Edith, for her use benefit, so long as she
remains unmarried. Residue to daughter Gloria.

• Caselaw in many states today interpreting for
  use and benefit
• Majority View creates Fee Simple
• Minority View creates Life Estate

52
EVERGLADES (4O) Archie in will To my wife
Edith, for her use benefit, so long as she
remains unmarried. Residue to daughter Gloria.

• Caselaw in many states today interpreting for
  use and benefit
• Majority View creates Fee Simple
• Minority View creates Life Estate

53
EVERGLADES (4O) Archie in will To my wife
Edith, for her use benefit, so long as she
remains unmarried. Residue to daughter Gloria.

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

54
EVERGLADES (4O) Archie in will To my wife
Edith, for her use benefit, so long as she
remains unmarried. Residue to daughter Gloria.

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

55
EVERGLADES (4O) Archie in will To my wife
Edith, for her use benefit, so long as she
remains unmarried. Residue to daughter Gloria.

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

56
EVERGLADES (4O) Archie in will To my wife
Edith, for her use benefit, so long as she
remains unmarried. Residue to daughter Gloria.

• Minority View
• E has Life Estate Determinable
  
• Possibility of Reverter Reversion
• Merges into Reversion
• See Problem 4H

57
EVERGLADES (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?
• Any reason here to treat second marriage
  differently from first marriage?

58
EVERGLADES (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 As right to control property v.
  Es right to control her life
• Court probably more likely to allow if it views
  Es interest as just a life estate for support

59
EVERGLADES (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? Result
• If not void, nothing changes
• If void, pencil out condition

60
EVERGLADES (4O) Archie in will To my wife
Edith, for her use benefit, so long as she
remains unmarried. Residue to daughter Gloria.

• If condition void, pencil out condition
• To my wife Edith, for her use benefit,
• so long as she remains unmarried.

61
EVERGLADES (4O) Archie in will To my wife
Edith, for her use benefit, so long as she
remains unmarried. Residue to 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
• What Happens when E dies?

62
EVERGLADES (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 Es will.
• Some E Life Estate G Reversion
• When E dies, Life Estate ends, and G has FSA.

63
EVERGLADES (4O) Archie in will To my wife E,
for her use benefit, so long as she remains
unmarried. Residue to G. E then moves in with
Sherman

• (Q3) Does cohabitation violate a restraint on
  marriage?
• Only need to resolve if condition is valid.

64
EVERGLADES (4O) Archie in will To my wife E,
for her use benefit, so long as she remains
unmarried. Residue to G. E then moves in with
Sherman

• (Q3) Does cohabitation violate a restraint on
  marriage?
• Discussion Literal Argument v. Inconsistency w
  Grantors Purpose
• Restatement Position Not a Violation (Note For
  Restatement to Address, Must Have Come Up Pretty
  Often)

65
EVERGLADES (4O) Archie in will To my wife E,
for her use benefit, so long as she remains
unmarried. Residue to G. E then moves in with
Sherman

• (Q3) Does cohabitation violate a restraint on
  marriage?
• If Yes As soon as condition violated, Es
  interest ceases G has Fee Simple Absolute
• If No Nothing Changes

66
EVERGLADES (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.

• Majority View
• E Fee Simple Determinable
• G Possibility of Reverter
• E Dies, Condition Valid, No Violation
• State of the Title?

67
EVERGLADES (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.

• Majority View E FSD G Poss. of Reverter
• E Dies, Condition Valid, No Violation
• Sherman has Fee Simple Absolute
• Edith Cant Remarry After Death
• Thus Condition Can Never Occur
• So Condition Effectively Disappears

68
EVERGLADES (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.

• Minority View
• E Life Estate Determinable
• G Reversion
• E Dies, Condition Valid, No Violation
• State of the Title?

69
EVERGLADES (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.

• Minority View E Life Est. Det. G Reversion
• E Dies, Condition Valid, No Violation
• Gloria has Fee Simple Absolute
• Ediths Interest is Life Estate
• Nothing to Pass on in Es Will

70
Qs on Problem 4O?