PROPERTY A SLIDES

Friday March 20 Music: Billie Holiday Billie Holiday Sings (1952) TEST IS ESSENTIALLY DONE Some completely new problems Some completely new problems Mostly questions/answers from posted Bank or Tests, some altered a bit, all with new names. Mostly questions/answers from posted Bank or Tests, some altered a bit, all with new names. Contains names of all students from Redwood, Shenandoah & Yellowstone & plus some Biscaynes (I’m saving rest for Final Exam) Contains names of all students from Redwood, Shenandoah & Yellowstone & plus some Biscaynes (I’m saving rest for Final Exam) Apologies to those of you I had to kill off. Apologies to those of you I had to kill off. Office Hours Every Day from Today  Monday (See Course Page for Times & Locations)

Conditions: Timing Ambiguity Change Grant: Possible Arguments (1)To Andrew for life, then to Brian, but if Andrew graduates from law school, then to Caitlin. (2)To Andrew for life, then to Brian, but if Brian graduates from law school, then to Caitlin. In (2), seems odd to punish Andrew for Brian’s life choices, so absent clear reason, likely treat C’s interest as just cutting off B’s remainder Questions on Timing Ambiguities?

Conditions: Additional Information Unacceptable Conditions Shapira Timing Issues Problem 4OProblem 4O

SHENANDOAH: Problem 4O APPALACHIAN TRAIL

Shenandoah (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?

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

Shenandoah (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

Shenandoah (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 Determinable?)

Shenandoah (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 if Today No Explicit Reference to “Life” No Explicit Gift Over Listed (See White v. Brown) Arguments Supporting Life Estate Determinable?

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

Shenandoah (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

Shenandoah (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)?

Shenandoah (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

Shenandoah (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)?

Shenandoah (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 A  G: Possibility of Reverter + Reversion Merges into Reversion

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

Shenandoah (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 his property v. E’s right to control her own life Stereotypes about older persons (cf. Webb) Court probably more likely to allow condition if it views E’s interest as just a life estate for support

Shenandoah (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

Shenandoah (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.”

Shenandoah (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 If Void, What Happens when E dies?

Shenandoah (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 will. Some: E = Life Estate + G = Reversion When E dies, Life Estate ends, and G has FSA.

(4O): Shenandoah: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to Gloria. E shacks up with Sherman. E dies; devises everything to S (Q3) Does cohabitation violate a restraint on marriage? Only need to resolve if condition is valid.

(4O): Shenandoah: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to Gloria. E shacks up with Sherman. E dies; devises everything to S Does cohabitation violate a restraint on marriage? Does cohabitation violate a restraint on marriage? Only need to resolve if condition is valid. Discussion: Literal Argument v. Inconsistency w Grantor’s Purpose (cf. Mahrenholz) Restatement Position: Not a Violation For Restatement to Address, Must Have Come Up Pretty Often Other Reasons Not to Marry from Pensions & Social Security

(4O): Shenandoah: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to Gloria. E shacks up with Sherman. E dies; devises everything to S (Q3) Does cohabitation violate a restraint on marriage? Only need to resolve if condition is valid. Since arguments both ways, need to follow through for both possibilities for both possible readings of grant

(4O): Shenandoah: Minority: E = LED G = Reversion (incl. Poss. of Reverter) (4O): Shenandoah: A in Will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to Gloria. E shacks up with Sherman. E dies; devises everything to S Minority: E = LED G = Reversion (incl. Poss. of Reverter) If Condition is Violated? E immediately loses title G’s Poss of Reverter  FSA If Condition is Not Violated? Parties’ Interests Don’t Change

(4O): Shenandoah: Minority: E = LED G = Reversion (incl. Poss. of Reverter) (4O): Shenandoah: A in Will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to Gloria. E shacks up with Sherman. E dies; devises everything to S Minority: E = LED G = Reversion (incl. Poss. of Reverter) If Condition is Violated? E immediately loses title G’s Poss of Reverter  FSA E Dies? E has no interest to pass on G = FSA If Condition is Not Violated? Parties’ Interests Don’t Change E Dies? E’s Life Estate ends G’s Reversion  FSA G = FSA

(4O): Shenandoah: Majority: E = FSD G = Poss. of Reverter (4O): Shenandoah: A in Will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to Gloria. E shacks up with Sherman. E dies; devises everything to S Majority: E = FSD G = Poss. of Reverter If Condition is Violated? E immediately loses title G’s Poss of Reverter  FSA If Condition is Not Violated? Parties’ Interests Don’t Change

(4O): Shenandoah: Majority: E = FSD G = Poss. of Reverter (4O): Shenandoah: A in Will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to Gloria. E shacks up with Sherman. E dies; devises everything to S Majority: E = FSD G = Poss. of Reverter If Condition is Violated? E immediately loses title G’s Poss of Reverter  FSA E Dies? E has no interest to pass on G = FSA If Condition is Not Violated? Parties’ Interests Don’t Change E Dies: What Happens?

(4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to A’s daughter Gloria (not E’s daughter). E shacks up with Sherman. E dies; devises everything to S Final Branch of Decision Tree: Edith Dies Majority: Condition Valid + No Violation Edith has FSD; Gloria has Possibility of Reverter What happens to Condition When Edith Dies?

(4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to A’s daughter Gloria (not E’s daughter). E shacks up with Sherman. E dies; devises everything to S Final Decision Tree: Edith Dies Majority: Condition Valid + No Violation Edith has FSD; Gloria has Possibility of Reverter What happens to Condition When Edith Dies? Edith Can’t Remarry After Death (As Far as We Know ) Thus Condition Can Never Occur So Condition Effectively Disappears Sherman has Fee Simple Absolute; Gloria’s Interest Fails

COMPARE “To E & her heirs so long as she remains unmarried.” Condition limited to E, so ends at E’s death. Successors after that take Fee Simple Absolute “To E & her heirs so long as alcohol is never sold on the premises.” Condition not limited to E, so it survives her. Successors take Fee Simple Determinable.

Qs on Problem 4O?

ALL: DQ4.15 Should a court enforce conditions that limit or mandate religious behavior for the grantee?

ALL: DQ4.12 Why should we allow grantors to have any control at all of what happens to land after they have died? Might say can choose who gets, but only can give fee simple absolute.Might say can choose who gets, but only can give fee simple absolute. Maybe allow life estates & vested remainders but no conditions on use.Maybe allow life estates & vested remainders but no conditions on use.

BISCAYNE: Review Problems 4R + 4S SUNRISE AT ADAMS KEY

4R: Biscayne Renee conveys “to Stacy for life, then to my heirs, but should Stacy marry before she turns 35, to Marni.” AMBIGUITIES/QUESTIONS?

4R: Biscayne Renee conveys “to Stacy for life, then to my heirs, but should Stacy marry before she turns 35, to Marni.” AMBIGUITIES/QUESTIONS Today or “At Common Law”? R alive or dead? Condition void? M’s interest intended to cut off life estate? Details in Review Problem Write-Up on Course Page

4R: Biscayne Renee conveys “to Stacy for life, then to my heirs, but should Stacy marry before she turns 35, to Marni.” ONE (EASY) BRANCH OF DECISION TREE Condition Void  Pencil out M’s interest R Alive  As written, contingent remainder in R’s heirs (unascertainable) Plus Reversion in R RESULT: Stacy has Life Estate Contingent Remainder in R’s Heira Renee has Reversion

4R: Biscayne Renee conveys “to Stacy for life, then to my heirs, but should Stacy marry before she turns 35, to Marni.” SECOND BRANCH OF DECISION TREE R Dead  Remainder is vested in R’s heirs as defined by intestacy statute. Today  Interest in Marni is in fee simple (not life estate). Condition valid; M’s interest intended to cut off life estate  Both of the other interests could be cut off by M. RESULT: Stacy has Life Estate Subject to Executory Limitation Renee’s [Ascertained] Heirs have Vested Remainder in FS Subj to Divestmt Marni has a Shifting Executory Interest in Fee Simple

4S: BISCAYNE 1.Xaviera grants Brothelacre “to Betsy if it continues to be used as a house of prostitution, but if not, my heirs can take it.” 2.Xaviera died survived by no issue or spouse, but by her mother, Yvonne. She left a will giving all her property to her friend Phil. 3.Betsy replaced the existing brothel with an ad agency. NOT AMBIGUITIES Common Law v. Today (Ad Agency) Who is X’s “heir”? Y not P AMBIGUITIES/Qs

4S: BISCAYNE 1.Xaviera grants Brothelacre “to Betsy if it continues to be used as a house of prostitution, but if not, my heirs can take it.” 2.Xaviera died survived by no issue or spouse, but by her mother, Yvonne. She left a will giving all her property to her friend Phil. 3.Betsy replaced the existing brothel with an ad agency. AMBIGUITIES/Qs Condition Valid? Heirs take automatically v. must act? Ad Agency Violate Condition FURTHER ANALYSIS & BRANCHES OF DECISION TREE IN WRITE-UP OF REVIEW PROBLEMS

ARCHES: Problem 4U DELICATE ARCHES

AMBIGUITIES/Qs in GRANT ITSELF? (4U) (Arches) R: “to C for his support and benefit so long as the property is not used for commercial purposes, then to my nephew J and his heirs if J reaches 35.” - C on land writes novels & does deals on phone. - C dies; J is not 35. NOT AMBIGUITY - Common Law v. Today (Deals on the Phone) - Cf. Medical or Law School, which date to medieval Europe AMBIGUITIES/Qs in GRANT ITSELF?

(4U) (Arches) R: “to C for his support and benefit so long as the property is not used for commercial purposes, then to my nephew J and his heirs if J reaches 35.” C on land writes novels & does deals on phone. C dies; J is not 35 AMBIGUITIES/QUESTIONS IN GRANT? Life Estate or Fee? When Does J’s Interest Take Effect? AMBIGUITIES/QUESTIONS AFTERWARD?

(4U) (Shenandoah) R: “to C for his support and benefit so long as the property is not used for commercial purposes, then to my nephew J and his heirs if J reaches 35.” C on land writes novels & does deals on phone. C dies; J is not 35 AMBIGUITIES ARISING AFTER Condition Violated by Writing/Deal-Making? Destructibility Apply? Details in Review Problem Write-Up on Course Page

(4U) (Shenandoah) R: “to C for his support and benefit so long as the property is not used for commercial purposes, then to my nephew J and his heirs if J reaches 35.” C on land writes novels & does deals on phone. C dies; J is not 35 BRANCHES OF DECISION TREE Lots of Variations in Sample Qs

LOGISTICS: Going Forward INFO ON EFI TEST NCAA POOL CRITIQUES & CRITIQUE PROBS SAMPLE EXAM Qs PREP & LAST 4 WEEKS

CHAPTER 5: ADVERSE POSSESSION THE PREMIERE EVENT

Adverse Possession: Overview Connections to Rest of Course Type of Involuntary Transfer of Property Rights Like Shack & JMB & Eminent Domain Loss of Property Rights for Policy Reasons About Relationship of Property & Time Like Chapters 3 and 4 Here: Losing Property Rights Via Passage of Time

Adverse Possession: Overview Nature/Essence of Adverse Possession (AP) Arises from Statutes of Limitations (SoL) Length of State Statutes Varies (5-30 years) If don’t act to stop trespasser quickly enough, can forfeit right to do so Operates differently than other SoL Running of SoL Doesn’t Completely Bar Recovery for Original Owner (OO) Must meet detailed requirements to invoke SoL Generally Disfavored (e.g., NY & Fla need Clear & Convincing Evid.) BUT Result if OO loses is legal transfer of title

Adverse Possession: Overview Nature/Essence of Adverse Possession (AP) Can Get Title by “Possessing” Otherwise Unused Land for Length of Statute of Limitations “Possession” v. Ownership: AP Doctrine largely about how much & what kind of possession is necessary to transfer ownership.) Several Elements: Requirements beyond passage of time basically to ensure that Adverse Possessor (APor) sufficiently possessing Original Owner (OO) not really possessing

Adverse Possession: Overview Lawyering Focus Working with Individual Elements of a Cause of Action Need to Understand Role and Operation of Each Element “Elements” v. “Factors” Because each Element is required, assume not redundant AP Elements: Mostly Similar from State to State Often Mix of Statutory Language & Common Law Development

Adverse Possession: Overview Lawyering Focus Working with Individual Elements of a Cause of Action Need to Understand Role and Operation of Each Element Attys Use Cases Initially to Determine Meaning of Elements Read Multiple Relevant Cases to Flesh Out Each Individual Element Generally Don’t Examine Whole Cases Until Late in Process We’ll Approach Materials in This Unit This Way You’ll read through all cases initially to get sense of (by next Thursday) In class, we’ll work on one element at a time, referencing all 5 cases as relevant (One panel per element).

Adverse Possession: Overview Lawyering Focus: Individual Elements Our Sequence 1. Actual Use (Redwood) 2. Open & Notorious (Shenandoah) 3. Exclusive (Biscayne) 4. Continuous (Arches) 5. Adverse/Hostile (Yellowstone) Our Coverage for Each Focus/Relevant Evidence Purpose Easy Cases/Hard Cases Judicial Opinions Review Problems for 1- 4

Cases: Brief Introduction with Memory Aids Lutz (NY 1952) Squatters’ Garden Thrives During the Great Depression Billie Holiday Sings

Cases: Brief Introduction with Memory Aids Ray (NY 1996) Creepy Summers in Empty Resort barry manilow, summer of ‘78

Cases: Brief Introduction with Memory Aids E. 13 th Street (NY. Supr. 1996) Squatters’ Ensemble Tries to Act Together RENT (Original Cast Album)

Cases: Brief Introduction with Memory Aids Bell (Wash. 1989) Houseboat Tied to Land with Woodshed, Sauna & Moving Outhouse The B-52s, COSMiC ThiNG featuring “Love Shack”

Cases: Brief Introduction with Memory Aids Vezey (Alaska 2001) The Present Depends on the Past JOHN BONGIOVI, THE POWER STATION YEARS featuring featuring “Who Said It Would Last Forever”

Cases: Brief Introduction with Memory Aids Howard v. Kunto (Wash. App. 1971) Everyone is One Lot Over from Their Deed We’re Not Reading but I’ll Use the Facts as an Example/Hypothetical

Adverse Possession: Overview Cases: Three Common Fact Patterns 1.Mistaken Owner w Good Faith Belief in Title ~Ray; Vezey; Howard 2.Boundary Dispute between Neighbors Miami Herald Article 3.Outsider “Squatting” Lutz; E. 13 th St.; Bell

Adverse Possession: Justifications DQ5.01: AP as SoL (Yellowstone) Purposes Behind SoL Generally? (E.g., Torts/Contracts)

Adverse Possession: Justifications DQ5.01: AP as SoL (Yellowstone) Purposes Behind SoL Generally (E.g., Torts/Contracts) Potential Ds: Repose Legal System: Evidentiary Problems Potential Ps: Encourage Rabbits; Punish Turtles (Don’t “Sleep” on Your Rights) Apply to Actions for Possession of Land?

Adverse Possession: Justifications DQ5.01: AP as SoL (Yellowstone) Purposes Behind SoL: Adverse Possession Potential Ds: Repose (Quiet Titles; Protect Investment) Legal System: Evidentiary Problems (  ”Prescriptive Rights”) Potential Ps: Don’t “Sleep” on Your Rights Discourage Leaving Land Unmonitored (Drugs, Dead Bodies, Al- Qaeda) Other Purposes for AP?

Adverse Possession: Justifications Purposes Behind Adverse Possession More Broadly Potential Ds: Adverse Possessors (APors) Repose (Quiet Titles) Protect Investment in Land Reward/Encourage Beneficial Uses Protect Psychic Connection (Holmes) Legal System: Evidentiary Problems Potential Ps (OOs): Don’t “Sleep” on Your Rights Discourage Leaving Land Unmonitored (Drugs, Dead Bodies, Al-Qaeda) Encourage/Reward OOs who send clear timely notice of interest