 Section C1 SIT Section E1  MUSIC: CHANT The Benedictine Monks of Santo Domingo de Silos (1994)

FHA Bans Discrimination Because of “Handicap” 1.Traditional anti-discrimination claims of unequal treatment Refusal to rent or sell §3604(f)(1) Discriminatory terms §3604(f)(2)

FHA Bans Discrimination Because of “Handicap” 1.Traditional anti-discrimination claims of unequal treatment 2.Specialized types of claims to insure access

Physical Access as Civil Rights Issue Stairs & Curbs Doorknobs Height of Counters & Light Switches & Water Fountains Depth of carpet Width of Doorways

FHA Bans Discrimination Because of “Handicap” 1.Traditional claims of unequal treatment 2.Specialized types of claims to insure access Physical accessibility requirements for new multi-unit buildings Reasonable accommodations §3604(f)(3)(B) Reasonable modifications: §3604(f)(3)(A)

Reasonable Accommodations §3604(f)(3)(B) Exceptions to generally applicable policies & programs to insure access Same idea as job or exam accommodations for disabilities or for religion E.g., Parking spaces accompanying rental or condo unit (wider, closer, sooner)

Reasonable Accommodations §3604(f)(3)(B) Legal Requirements 1.Necessary for enjoyment of unit 2.Reasonable. Usually means: No undue hardship (comparative/proportional) No substantial burden (quantitative) No fundamental alteration of program (qualitative) Can Use This Test for Reasonable Modifications as Well

Reasonable Modifications §3604(f)(3)(A) In Effect, a Form of Reasonable Accommodation Usual Rule (Waste): T can’t modify premises w/o L’s permission Statute forces exception to rule to allow access to housing L must allow modification if “necessary” to use housing & “reasonable”

Reasonable Modifications §3604(f)(3)(A) §3604(f)(3)(A) interpreted by 24 CFR § Promulgated by U.S. dept. of Housing & Urban Development pursuant to authority granted by Congress Treat regulation as binding interpretation of statute

Reasonable Modifications: U.S. v. Freer (WDNY 1994) (S201-03) 1.Trailer park – Typically resident owns trailer – Resident rents space from owner of trailer park 2.Resident wants to install ramp at own expense; park owners refuse. 3.Gov’t action against park owners on behalf of resident

Reasonable Modifications: U.S. v. Freer (WDNY 1994) (S201-03) Necessity for ramp is pretty straightforward 1.5 steps (needs to be carried or assisted) – Can’t participate in normal activities – Afraid to leave home; injured in past while being assisted 2.Alternative proposed by D much steeper 3.Ct: “no question” that refusal to allow ramp effectively denies equal opportunity to use home

Reasonable Modifications: U.S. v. Freer (WDNY 1994) (S201-03) DQ108: Meaning of “Reasonable” 1.Statutory Language gives little guidance 2.Regulation doesn’t define “reasonable”; just gives two pretty easy examples.

Reasonable Modifications: U.S. v. Freer (WDNY 1994) (S201-03) DQ108: Meaning of “Reasonable” 1.Statutory Language gives little guidance 2.Regulation doesn’t define “reasonable”; just pretty easy examples. 3.Freer: “no undue financial or administrative burden”; suggests 3-part test from Reas. Accom.: No undue hardship No substantial burden No fundamental alteration of program

Reasonable Modifications: U.S. v. Freer (WDNY 1994) (S201-03) DQ108: Meaning of “Reasonable” 3-part test from Reas. Accom.: No undue hardship No substantial burden No fundamental alteration of program. Means? – Maybe big change to building or interference w fancy architecture (Trailer park??!!) – Maybe if rental is personal home, L gets more leeway?

Reasonable Modifications: U.S. v. Freer (WDNY 1994) (S201-03) Reasonableness of Proposed Ramp D’s Claims: 1.Would impede trailer removal 2.Would cause parked cars to stick out into access road Court: Ramp is Reasonable on Preliminary Record 1.No evidence of financial harm 2.Can be disassembled in 3 hours, so no difficulty removing trailer 3.Photograph sheds substantial doubt on claim re impeding traffic

Discussion Questions featuring BARLEY

Reasonable Modifications: U.S. v. Freer (WDNY 1994) (S201-03) DQ109: How Far Can You Go? Court: Ramp is Reasonable on Preliminary Record 1.No evidence of financial harm  Increases local taxes by $40 a year? 2.Can be disassembled in 3 hours, so no difficulty removing trailer 3.Photograph sheds substantial doubt on claim re impeding traffic

Reasonable Modifications: U.S. v. Freer (WDNY 1994) (S201-03) DQ109: How Far Can You Go? Court: Ramp is Reasonable on Preliminary Record 1.No evidence of financial harm 2.Can be disassembled in 3 hours, so no difficulty removing trailer  9 hours (What is too long?) 3.Photograph sheds substantial doubt on claim re impeding traffic

Reasonable Modifications: U.S. v. Freer (WDNY 1994) (S201-03) DQ109: How Far Can You Go? Court: Ramp is Reasonable on Preliminary Record 1.No evidence of financial harm  Increases local taxes by $40 a year? 2.Can be disassembled in 3 hours, so no difficulty removing trailer 3.Photograph sheds substantial doubt on claim re impeding traffic  Most cars passing by must slow down to get around

Reasonable Modifications: Restoration of Premises: § (a) Landlord’s interest protected: 1.Can condition modification on agreement to restore 2.Can require $ put in escrow to cover cost of restoring Reg: Only need to restore if “reasonable to do so” 1.Examples clarify: No need to restore if wouldn’t bother future tenants 2.E.g., wider doorways, reinforced walls

Reasonable Modifications: Restoration of Premises: § (a) DQ110: Must ramp installed on exterior of multi-unit building be removed? 203(a): In the case of a rental, the landlord may, where it is reasonable to do so, condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted. Reasonable to do so here?

Reasonable Modifications: Restoration of Premises: § (a) DQ110: Must ramp installed on exterior of multi-unit building be removed? 203(a): In the case of a rental, the landlord may, where it is reasonable to do so, condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted. Other Arguments?

The Shadow of the Past CHAPTER 7: The Shadow of the Past

SPOTBUTCH LEARN THEIR NAMES

Laypeople Don’t Know Categories Leads to Tension Between: Channeling Function (Telling State What to Do w Property Conveyed) & Grantor’s Intent See White v. Brown

RECURRING ISSUES Grantor’s Intent v. Dead Hand Control

RECURRING ISSUES Grantor’s Intent v. Dead Hand Control Grantor’s Intent v. Alienability

PRESENT POSSESSORY ESTATES

Present v. Future (Tenant v. Landlord)

PRESENT POSSESSORY ESTATES Present v. Future Possessory v. Non-Possessory: (Tenant v. Trust Beneficiary)

FEE SIMPLE ABSOLUTE

“Simple”= can go on forever (to distinguish from “Fee Tail”)

FEE SIMPLE ABSOLUTE “Simple” = can go on forever (to distinguish from “Fee Tail”) “Absolute” = no conditions (to distinguish from conditional or “defeasible” fees, which we’ll introduce next week.)

Right to possess and use forever Right to transfer all present and future rights (inheritable/devisable) Right to liquidate assets Default estate today FEE SIMPLE ABSOLUTE

Lloyd grants Redacre “to Mimi and her heirs.”

FEE SIMPLE ABSOLUTE Lloyd grants Redacre “to Mimi and her heirs.” WORDS OF PURCHASE: WHO GETS THE ESTATE?

FEE SIMPLE ABSOLUTE Lloyd grants Redacre “to Mimi and her heirs.” WORDS OF PURCHASE: WHO GETS THE ESTATE? WORDS OF LIMITATION: WHAT ESTATE DO THEY GET?

RELEVANT TIME FRAMES “At Common Law”: Dates prior to modern streamlining of the rules. (e.g., )

RELEVANT TIME FRAMES “At Common Law”: Dates prior to modern streamlining of the rules. (e.g., ) “Today”: Dates after modern stream-lining of the rules. (e.g., 1950-present)

RELEVANT TIME FRAMES “At Common Law”: Dates prior to modern streamlining of the rules. (e.g., ) “Today”: Dates after modern streamlining of the rules. (e.g., 1950-present) Precise line between them varies from state to state and from issue to issue, so you don’t need to know where it is.

FINITE ESTATES TERM OF YEARS FEE TAIL LIFE ESTATE

FINITE ESTATES TERM OF YEARS: TO ANN FOR 10 YEARS FEE TAIL LIFE ESTATE

TERM OF YEARS Finite period specified Can alienate, devise, inherit (until term ends) Need explicit time language to create: (“for 99 years”)

FINITE ESTATES TERM OF YEARS: TO ANN FOR 10 YEARS FEE TAIL: TO CAL & THE HEIRS OF HIS BODY LIFE ESTATE:

ISSUE v. HEIRS Issue = Direct (= “Lineal”) Descendants (Children, Grandchildren, etc.)

ISSUE v. HEIRS Issue = Direct Descendants Heirs = People who inherit your property at the time of your death under the relevant Intestacy Statute

ISSUE v. HEIRS Issue = Direct Descendants Heirs = People who inherit your property at the time of your death under the relevant Intestacy Statute You cannot have heirs until the moment of death

FINITE ESTATES TERM OF YEARS: TO ANN FOR 10 YEARS FEE TAIL: TO CAL & THE HEIRS OF HIS BODY LIFE ESTATE:

FEE TAIL: TRADITIONAL RULES Grantee(X) has present & future possessory right until death – Only X’s issue can take after X's death – Only issue of issue who took can take in future – Equivalent to chain of life estates (thus finite) – Error in course materials S209: goes to grantee’s line Present holders can only alienate life estates

FEE TAIL: TRADITIONAL RULES Creation at common law: “to A & heirs of his body” – Grant creates no interest in A's issue until A dies. – B/c chain of life estates, won't know who takes till A dies Can have special fee tails – “To A & heirs of his body by W” – “ To A & male heirs of his body”

FEE TAIL: TODAY Traditional fee tail abolished in every American jurisdiction. What to do if grantor uses language “heirs of his/her body?” Statutes determine; different solutions in different states. Outside scope of course.

FINITE ESTATES TERM OF YEARS: TO ANN FOR 10 YEARS FEE TAIL: TO CAL & THE HEIRS OF HIS BODY LIFE ESTATE: TO BEA FOR LIFE

Right to possess and use forever Right to transfer all present and future rights (inheritable/devisable) Right to liquidate assets Default estate today FEE SIMPLE ABSOLUTE

Right to possess and use only for lifetime of original grantee LIFE ESTATE

Right to possess and use only for lifetime of original grantee Right to transfer only rights for lifetime of original grantee (not inheritable/ devisable) LIFE ESTATE

What if a living person transfers a life estate? Opal conveys Gemacre “to Ruby for life”, retaining a reversion for herself. Ruby then conveys her life estate “to Esmeralda.” What does Esmeralda have?

What if a living person transfers a life estate? Opal conveys Gemacre “to Ruby for life”, retaining a reversion herself. Ruby then conveys her life estate “to Esmeralda.” Esmeralda has a life estate pur autre vie (for the life of another). The duration of the interest is still measured by Ruby’s life.

Right to possess and use only for lifetime of original grantee Right to transfer only rights for lifetime of original grantee (not inheritable/devisable) Right only to present income; can’t liquidate capital (Doctrine of Waste) LIFE ESTATE

Right to possess and use only for lifetime of original grantee Right to transfer only rights for lifetime of original grantee (not inheritable/devisable) Right only to present income; can’t liquidate capital Default Estate at Common Law LIFE ESTATE

DEFAULT ESTATE (“To Bill.”) What does Bill get if not specified? Common Law: Default was Life Estate Bill gets Life Estate Grantor keeps Reversion

DEFAULT ESTATE (“To Bill.”) What does Bill get if not specified? Common Law: Default was Life Estate Bill gets Life Estate; Grantor keeps Reversion Today: Default is Fee Simple – Bill gets Fee Simple Absolute – Grantor keeps nothing

FUTURE INTERESTS THAT FOLLOW FINITE ESTATES REVERSION REMAINDER

FUTURE INTERESTS THAT FOLLOW FINITE ESTATES REVERSION Future interest retained by grantor when s/he conveys a finite estate without indicating who will have rights when it expires.

FUTURE INTERESTS THAT FOLLOW FINITE ESTATES REVERSION Future interest retained by grantor when s/he conveys a finite estate without indicating who will have rights when it expires. E.g.: Ceci conveys Greenacre “To Didi for life.” (No other instructions.) Ceci retains a reversion.

FUTURE INTERESTS THAT FOLLOW FINITE ESTATES 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.

FUTURE INTERESTS THAT FOLLOW FINITE ESTATESREMAINDER Future interest in a third party that follows naturally upon the termination of a finite estate. It is always expressly conveyed by the grantor. E.g.: Fifi conveys Tanacre “To Gigi for life, then to J.J.” J.J. has a remainder. Fifi retains nothing.

QUESTIONS?

WHITE v. BROWN

DQ111: White majority states that “the free alienation of property [is] one of the most significant incidents of fee ownership.” Why is it significant? 1. Allows land to move to owner who can make most valuable use of it 2. Means land is relatively liquid asset (can sell or mortgage for $)

Discussion Questions featuring CORN

DQ112:The White majority complains that “the words chosen by the testatrix are not specific enough to clearly state her intent."

What do you think Jessie Lide’s intent is? I wish Evelyn White to have my home to live in and not to be sold. I also leave my personal property to Sandra White Perry. My house is not to be sold.

Why does the majority have problems discerning Jessie Lide’s intent?

I wish Evelyn White to have my home to live in and not to be sold. Possible Characterizations Fee Simple Life Estate Conditional Fee – So long as not sold – So long as E lives there Conditional Life Estate

DQ113: WHAT ARE THE MAJORITY’S ARGUMENTS THAT MS. LIDE INTENDED TO CREATE A FEE SIMPLE?

MAJORITY ARGUMENTS (FEE SIMPLE) Presumption: grant conveys whole estate No gift over Partial intestacy disfavored

DQ113: WHAT ARE THE DISSENT’S ARGUMENTS THAT MS. LIDE INTENDED TO CREATE A LIFE ESTATE?

DISSENT ARGUMENTS (LIFE ESTATE) Use all language (presumption): grantor said to limit power to sell Grant says “to live in” No limits in gift to niece

I wish Evelyn White to have my home to live in and not to be sold. I also leave my personal property to Sandra White Perry. My house is not to be sold. Whose Arguments Seem Stronger?

RESULT OF HOLDING OF WHITE v. BROWN The Property Can Be Sold!!!

DQ114:What additional facts might add weight to the majority opinion? To the dissent?

White v. Brown: What Happened? 1.E had stroke, moved in w daughter 2.Probably wants to sell house b/c rental income not much 3.Significance of case: – If life estate, most of value goes to nieces/nephews – If fee simple (as court held), E gets money for life & medical expenses

White v. Brown: “Channeling” 1.Recurring problem with estates/future interests: laypeople don’t know relevant categories. 2.Thus, they don’t know how to signal to future court to show what they wish. 3.Important role that lawyers play in helping with wills is to channel client desires into language that will give legal effect to those wishes.

QUESTIONS?

Monday & Tuesday 1.Waste 2.Monday Readings for Chapter 7 up through Problems 7A-7F (WHEAT) 3.Qs on Written Assignments #3 & #4 4.Then back to Anti-Discrimination Law – Finish Marable – Review Problem 6G (Oats & Rice) (Finish Wed/Thu if necessary

Mid-September Crisis

Mid-October Crisis

Mid-October Crisis: POSSIBLE CAVEATS Fall Break is New New LComm Schedule replaced 1 st Open Memo with 2d Closed Memo

Mid-October Crisis: The Upside

Mid-October Crisis: SOME ADVICE 1.Don’t Miss Classes

Mid-October Crisis: SOME ADVICE 1.Don’t Miss Classes 2.If You Get Behind in Reading, Skip Ahead to Current Class & Catch Up Later

Mid-October Crisis: SOME ADVICE 1.Don’t Miss Classes 2.If You Get Behind in Reading, Skip Ahead to Current Class & Catch Up Later 3.Eat, Get Sleep & Take Short Breaks

Mid-October Crisis: SOME ADVICE 1.Don’t Miss Classes 2.If You Get Behind in Reading, Skip Ahead to Current Class & Catch Up Later 3.Get Sleep & Take Short Breaks 4.Plan Catch-Up Work and Outlining for One Course Each Weekend

Mid-October Crisis: Like Doing Law School Exam Questions Can’t do everything as well as you’d like; do the best you can with time you have Be very careful not to waste time Identify what work is most important for you and spend time accordingly Be realistic in your expectations; don’t get upset that you are not superhuman. This too shall pass!