1. Agenda for 13th Class Admin stuff Name plates Lunch sign-up Handouts
Slides
Jee v Audley
Rules Against Perpetuities Selected Questions
Review of last class
Estates
Rule Against Perpetuities

2. Assignment for Next Class I
Review any questions we did not discuss in class today
Read Jee v Audley
Optional: Examples & Explanations Chapter 12
Questions to Think about /Writing Assignments
Rules Against Perpetuities Selected Questions
Q1. (WG1), Q2 (WG2)….. Q7 (WG7)
Q9 (WG1), Q10 (WG2), Q15 (WG7)
Q16 (optional question for everyone)
Consider the following variations on the will clause in Jee v Audley. Are they valid under the Rule against Perpetuities?
I give Blackacre to Mary Hall for her life and then to her children, if she has any who survive her. If she does not have any children who survive her, then I give the remainder to the children of John and Elizabeth Jee then living.
I give Blackacre to Mary Hall, but if Mary Hall and her descendants all die, I give Blackacre to the children of John and Elizabeth Jee who are alive when I die.
I give Blackacre to Mary Hall, but if Mary Hall and her descendants all die, I give Blackacre to the children of John and Elizabeth Jee then living.

3. Assignment for Next Class II
Consider the following variations on the will clause in Jee v Audley. Are they valid under the Rule against Perpetuities? (continued)
I give Blackacre to Mary Hall, but if Mary Hall and her descendants all die, I give Blackacre to the children of John and Elizabeth Jee then living who were also alive at the time I died.
Does the result in Jee v Audley make sense as a matter of law or policy?

4. Review of Last Class 4 Fair use factors Purpose and character
Transformative v non-transformative
Commercial v non-commercial
Nature of copyrighted work
Creative v factual
Amount and substantiality of portion used
Effect on market or value of copyrighted work
Hard to predict outcomes
Time shifting (fair use); sampling (not fair use)
Property in body parts
Moore. Fiduciary duty to inform patients, but no property rights in spleen removed for therapeutic purposes
Flynn. Ok to sell cells from bone marrow, even though NOTA forbids sale of bone marrow

5. Dividing Property over Time
Mostly relevant to land
But many of same ideas can be applied to other types of property and to trusts
Fee simple absolute
Full property rights for all time
Created by
“to A,” or “to A and his heirs,” or to A and her heirs”
Fee simple defeasible
Full property rights, unless event occurs to divest property
2 kinds
Fee simple determinable
Fee simple subject to a condition subsequent
Fee simple subject to an executory interest

6. Fee Simple Defeasible Fee simple defeasible Fee simple determinable
“to A so long as the property is used for educational purposes”
Or words similar to “so long as” such as “during,” ‘while,” “unless” or “until”
If A’s interest terminates, then property goes back to grantor
Grantor has “possibility of reverter”
A’s interest terminates automatically
Fee simple subject to condition subsequent
O grants Blackacre “to A, but if the property is ever used for non-education purposes, O may re-enter and take Blackacre.”
Or words similar to “but if” such as “provided that,” “on condition that,” and “provided, however”
Granter has “right of entry”
A’s interest terminates only if O exercises her rights
Possibility of reverter and Right of entry are “future interests”

7. Executory Interests
Originally, future interests in fee simple defeasible could only be held by grantor (and grantor’s heirs)
Rule eventually relaxed, but future interests in those situations were called “executory interests”
Examples of fee simple subject to an executory limitation
“to A so long as the property is used for educational purposes, then to B and his heirs”
“to A, but if the property is ever used for non-educational puposes, then to B and his heirs”
Interests described above are called shifting executory interests
Interests which divest the grantor or his heirs are called springing executory interests
“O to A when A graduates from law school”

8. Fee Tail “O to A and the heirs of his body”
To A, then to A’s eldest son, then to eldest son of eldest son, etc.
If an eldest son didn’t exist, then the property returns to the grantor (O) and/or his heirs
O (and his heirs) have a “reversion”
Fee tail abolished in most states
But relevant if read pre-modern fiction
Also somewhat relevant for Jee v Audley

9. Life Estates I “O to A for life” A has life estate O has reversion
“O to A for life, then B”
A has life estate, B has vested remainder
“O to A for life, then B if B survives A”
A has life estate, B has contingent remainder, O has reversion
“O to A for the life of B”
A has vested life estate “per autre vie”
“O to A for life, then to A’s children”
Gift to “A’s children” is class gift
If A has at least one child, B, at time of grant, B has vested remained subject to open
B’s interest is subject to partial divestment, if A has more kids
If A has no children at time of grant, class has contingent remainder

10. Life Estates II Holder of life estate has duty not to commit “waste”
Cannot harm or neglect property
Must pay taxes and interest on mortgage
In some places, must buy insurance
See Melms v. Pabst Brewing
Destructibilty of Contingent Remainders
If remainder is contingent at time holder of life estate dies, then remainder was void and estate reverted to grantor
“O to A for life and then to A’s children who attain age 10”
If A died with a single child who was 9, then contingent remainder in that child was void and property reverted to O
Most states have abolished the Rule of Distructibility of Contingent Remainders
Property reverts to O on A’s death
When 9 year old turns 10, she takes property
Springing executory interest
See E & E pp

11. Term of Years O to A for 5 years O to A for 1000 years
A’s heirs inherit or A can sell etc.
Not a “freehold” estate
Freehold estates
Fee simple, fee tail, life estate

12. Problems I
1) I grant 101 Downing Street to A so long as marijuana is not used on the premises, and if marijuana is used on the premises, then to B.
2) To A for life, then to any of A’s children who graduate from law school. [Note that in answering this question, you must analyze three situations separately: if A has no children at the time of the grant, if A has at least one child who has graduated from law school at the time of the grant, and if A has one or more children but none of them has graduated from law school at the time of the grant. Note that some of the other problems below also need to be analyzed in multiple ways depending on the facts at the time of the grant.]
3) O to A for life, then to B and his daughters.
4) To A, but if anyone smokes or vapes on the premises within 21 years of the death of the last surviving member of the cast and crew of Harry Potter and the Deathly Hollows Part 2, then to B.
5) I grant Blackacre to A so that she may grow oranges and nectarines.
6) O to A so long as A stays in law school.
7) I grant Blackacre A for life, then to B if B survives A.
8) O to A, but if A dies in the next thirty years, I want the property to go to B.

13. Problems II
9) I grant Pemberly to to A for life, then to A’s children for life, then to USC.
10) To A and his heirs so long as it is used as a hotel.
11) To A, but if A dies, then to B.
12) I grant OrangeAcre to A for life, then to B if B lives at least one year after A’s death.
13) To A for life, then to A’s children for life, then, after all of A’s children have died, to USC to house visiting law professors. A has no children at the time of the grant.
14) I grant Netherfield to A for life, then to such of A’s children who serve in the military before A’s death for their lives, then to the first child born to my son C.

14. Rule Against Perpetuities
No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.
“At the creation of the interest”
Time of conveyance for inter vivos transfers (e.g transfers during grantor’s lifetime)
Time of death, if interest conveyed by will
“Life in being”
Anyone mentioned in instrument who might be alive
Choose person most likely to make the interest valid
Interests that may not vest (and thus may fail)
Contingent remainder
Vested remainder subject to open
Executory interest
NOT
Vested remainder, unless subject to open
Future interests held by original grantor and heirs
Reversion, Possibility of reverter, Right of entry

15. Examples
O to A as long as the property is used for residential purposes, then to B
“then to B” is void, because B has an executory interest and it may not vest (become possessory) until long after O, A or B are dead.
Since “then to B” is void, O and his heirs have the reversion
O’s will grants Blackacre to his daughter, A, for life then to A’s children for their lives and then to A’s grandchildren. At O’s death, A is 85 and has one child, B.
B has remainder subject to open
Because A may have more kids
Not biologically possible, but legally possible – Fertile octogenarian
If A had child C after O’s death and died in child birth, and C had a child, D, when C was 22
D would have remainder (subject to open) that had not vested for more than 21 years after O or A’s death
E and F, if born to C later, would have unvest remainders
Remainders would be open until C (and other children of A) had died
That could be much longer than 21 years after O or A’s death