1. PROPERTY D SLIDES 3-6-14

2. Thursday March 6 Music: Bach, Unaccompanied Cello Suites Yo-Yo Ma, Cello (Released 2006) Lunch Today: Meet on Brix @ 12:25 Grossman, Jarzabek, Kratzer, McCarten, Ramos, Rostock

3. FSD from FSCS BISCAYNE: Mahrenholz & DQ4.09 Distinguishing FSD from FSCS "to be used for school purpose only; otherwise to revert to Grantors herein.” Arguments for FSD “only” suggests automatic Condition in clause creating fee, not subsequent clause “to revert” (v. “may re-enter”) suggests automatic Similar grants held FSD Arguments for FSCS?

4. FSD from FSCS BISCAYNE: Mahrenholz & DQ4.09 Distinguishing FSD from FSCS "to be used for school purpose only; otherwise to revert to Grantors herein.” Arguments for FSCS 2 clauses usually used for FSCS No time words “Otherwise” looks like “but if” Most states presume FSCS

5. FSD from FSCS: Consequences BISCAYNE: Mahrenholz & DQ4.10 Distinguishing FSD from FSCS: Consequences Under what circumstances might the distinction between a fee simple determinable and a fee simple on condition subsequent be significant?

6. FSD from FSCS: Consequences BISCAYNE: Mahrenholz & DQ4.10 Distinguishing FSD from FSCS: Consequences Transferability after breach (Mahrenholz issue) Adverse Possession (Clock starts running immediately when condition violated if FSD) Income from land after breach (Goes to future interest holder if FSD) Waiver/Estoppel by future interest holder (only possible if FSCS)

7. FSD from FSCS: Consequences BISCAYNE: Mahrenholz & DQ4.10 Distinguishing FSD from FSCS: Consequences Given significant consequences, why do so many grants fail to indicate clearly which interest is intended?

8. FSD from FSCS: Mahrenholz Distinguishing FSD from FSCS: Test Note #2: Test Will Include At Least One Grant (Yielding Multiple Questions) with a Present Estate That Could Be Either Determinable or on Condition Subsequent, So You Need to Know Arguments Distinguishing the Two Test Will Include At Least One Grant (Yielding Multiple Questions) with a Present Estate That Could Be Either Determinable or on Condition Subsequent, So You Need to Know Arguments Distinguishing the Two. E.g., Problem 4I Includes This Kind of Ambiguous Grant

9. BISCAYNE: Mahrenholz & DQ4.11 Meaning of “School Purpose” IS STORAGE A “SCHOOL PURPOSE”? Parties’ Likely Arguments For School District? For Future Interest Holder?

10. BISCAYNE: Mahrenholz & DQ4.11 Meaning of “School Purpose” IS STORAGE A “SCHOOL PURPOSE”? What legal research could you do to help resolve this question?

11. BISCAYNE: Mahrenholz & DQ4.11 Meaning of “School Purpose” IS STORAGE A “SCHOOL PURPOSE”? Useful Legal Research includes: CASES ON “SCHOOL PURPOSE” CASES ON “CHURCH PURPOSE” ETC. OTHER LEGAL LIMITS ON SCHOOL ACTIVITIES (to demonstrate what the term could reasonably be understood to mean; clever Menendez point) What factual research could you do to help resolve this question? (What facts matter?)

12. BISCAYNE: Mahrenholz & DQ4.11 Meaning of “School Purpose” IS STORAGE A “SCHOOL PURPOSE”? Useful Factual Research includes: Use of Space Grantor’s Intent

13. BISCAYNE: Mahrenholz & DQ4.11 Meaning of “School Purpose” IS STORAGE A “SCHOOL PURPOSE”? Useful Factual Research includes: Use of Space What is stored & how used? Alternatives (Crowding? Cost?) How regularly is storage accessed? Grantor’s Intent

14. BISCAYNE: Mahrenholz & DQ4.11 Meaning of “School Purpose” IS STORAGE A “SCHOOL PURPOSE”? Useful Factual Research includes: Use of Space Grantor’s Intent Check Grant or Related Documents Witnesses to Transaction Ask Grantor if Alive Witnesses re Grantor Beliefs

15. Mahrenholz Meaning of “School Purpose” Test Note #3: Test Will Include At Least One Grant Containing an Imprecise Term Like “School Purpose” and You Will Be Asked to Consider Arguments About Whether a Particular Action or Activity Falls Within that Term.

16. BISCAYNE: Mahrenholz & DQ4.12 Why should we allow grantors to have any control at all of what happens to land after they have died? We’ll come back to after Spring Break w Shapira case.

17. ME v. TEXTBOOK (P572) The Textbook says the Common Law rule that a Life Estate was the default estate did not apply to grants in wills. (Meads Q in class Monday). For our purposes, assume that, at Common Law, a Life Estate was the default estate under all circumstances.

18. LOGISTICS Chapter 4 Test Preparation (3/24) Info & Instructions on Course Page; E-Mail Me if Qs Bank of Sample Qs & Entire Fall 2007 Test Will Be Posted by Monday Along with: List of Qs That Require Material We’ll Cover After Break Answers to Qs You’re Ready For Remember We Have a Make-Up Class Wednesday 3/19 (Usual Time & Place) I’ll Post Rest of Answers & Additional Tests & Answers After Class on 3/19 Final Exam Preparation Instructions for Submitting Sample Exam Answers on Course Page; E-Mail Me if Qs If you want to submit more than one, first submission must be e-mailed to me by Noon on Friday of Spring Break

19. LOGISTICS: During Spring Break I’ll Also Post … Chapter 5 Materials & Syllabus Updated Assignment Sheet Covering the Rest of March Comments & Model Answers to Posted Old Exam Qs Write-Ups of Some of the Submitted Critiques

20. YELLOWSTONE (Problem 4O) (Set-Up for Monday 3/17) GIANT GEYSER

21. YELLOWSTONE: for Monday 3/17 Set-Up for Problem 4O: Three Questions 1.Life estate determinable or fee simple determinable? 2.Is condition restraining 2d marriage void? 3.Is cohabitation a violation of a restraint on marriage? Then Work Through Decision-Tree

22. REDWOOD: Problem 4I REDWOODS & FERNS

23. REDWOOD: (4I): O conveys "to J and her heirs so long as the premises are not used for sale of beer, wine, or liquor, and if beer, wine, or liquor is sold on the premises, O retains a right to re-enter the premises." J opens a restaurant that serves several dishes cooked with wine or flamed with brandy and at Sunday brunch offers a free glass of champagne. The restaurant is successful, and 11 years after its opening D wants to buy it and add a bar. Advise D.

24. REDWOOD: (4I): O conveys "to J and her heirs so long as the premises are not used for sale of beer, wine, or liquor, and if beer, wine, or liquor is sold on the premises, O retains a right to re-enter the premises." MULTI-STEP ANALYSIS Corresponds to Plausible Sequence of Multiple Choice Qs FSD or FSCS? CONDITION VIOLATED? EFFECT OF VIOLATION? ADVICE RE PURCHASE

25. REDWOOD: (4I): O conveys "to J and her heirs so long as the premises are not used for sale of beer, wine, or liquor, and if beer, wine, or liquor is sold on the premises, O retains a right to re-enter the premises." MULTI-STEP ANALYSIS FSD or FSCS? CONDITION VIOLATED? EFFECT OF VIOLATION? ADVICE RE PURCHASE

26. REDWOOD: (4I): O conveys "to J and her heirs so long as the premises are not used for sale of beer, wine, or liquor, and if beer, wine, or liquor is sold on the premises, O retains a right to re-enter the premises." FSD or FSCS? Does Orrin’s interest vest automatically (FSD) or does he have to act (FSCS)? Arguments for Each Position?

27. REDWOOD: (4I): O conveys "to J and her heirs so long as the premises are not used for sale of beer, wine, or liquor, and if beer, wine, or liquor is sold on the premises, O retains a right to re-enter the premises." FSD or FSCS : Arguments Include: “ So long as” & condition built into 1 st clause suggest FSD Moment of violation likely pretty clear, so can be FSD “Right to re-enter” & 2 clauses suggest FSCS “Retains” suggests FSCS b/c implies that O’s right can be held for some period of time after violation Most states: Presumption favoring FSCS Mahrenholz: More like punishment than purpose (suggests FSCS)

28. REDWOOD: (4I): O conveys "to J and her heirs so long as the premises are not used for sale of beer, wine, or liquor, and if beer, wine, or liquor is sold on the premises, O retains a right to re-enter the premises." MULTI-STEP ANALYSIS FSD or FSCS? Some Arguments Each Way CONDITION VIOLATED? EFFECT OF VIOLATION? ADVICE RE PURCHASE

29. REDWOOD: (4I): O conveys "to J and her heirs so long as the premises are not used for sale of beer, wine, or liquor, and if beer, wine, or liquor is sold on the premises, O retains a right to re-enter the premises." Does It Violate Condition if J’s Restaurant: (i)Serves several dishes cooked with wine or flamed with brandy? (ii)At Sunday brunch offers complimentary glass of Champagne?

30. REDWOOD: (4I): O conveys "to J and her heirs so long as the premises are not used for sale of beer, wine, or liquor, and if beer, wine, or liquor is sold on the premises, O retains a right to re-enter the premises." MULTI-STEP ANALYSIS FSD or FSCS? CONDITION VIOLATED? – No Direct Sale of Liquor for $$$ – BUT: Cost of Alcohol Incorporated in Purchase Price; Diners Buying Alcohol in Meals EFFECT OF VIOLATION? ADVICE RE PURCHASE

31. REDWOOD: (4I): O conveys "to J and her heirs so long as the premises are not used for sale of beer, wine, or liquor, and if beer, wine, or liquor is sold on the premises, O retains a right to re-enter the premises." Effect of Violation if J has FSD & O has Possibility of Reverter O gets legal title at moment of violation. If sufficient time has passed, J may have title through adverse possession

32. REDWOOD: (4I): O conveys "to J and her heirs so long as the premises are not used for sale of beer, wine, or liquor, and if beer, wine, or liquor is sold on the premises, O retains a right to re-enter the premises." Effect of Violation if J has FSCS & O has Right of Entry Assuming O has not acted, O still has RE If O is aware of Julia’s use of alcohol, may be held to have waived the right to enforce regarding these kinds of uses of alcohol.

33. REDWOOD: (4I): O conveys "to J and her heirs so long as the premises are not used for sale of beer, wine, or liquor, and if beer, wine, or liquor is sold on the premises, O retains a right to re-enter the premises." MULTI-STEP ANALYSIS FSD or FSCS? CONDITION VIOLATED? EFFECT OF VIOLATION? (depends on FSD or FSCS) ADVICE RE PURCHASE?

34. DEFEASIBLE FEES: Effect of Transfer on Condition The purchaser/grantee of a defeasible fee takes subject to any condition not made irrelevant by the sale/transfer. Like purchaser/grantee of a Life Estate; usually can’t get more than grantor has.

35. DEFEASIBLE FEES: Effect of Transfer on Condition The purchaser/grantee of a defeasible fee takes subject to any condition not made irrelevant by the sale/transfer. Example: To J so long as alcohol is never used on the premises. Wording of condition not limited to J; appears to apply to anyone Condition survives sale.

36. DEFEASIBLE FEES: Effect of Transfer on Condition The purchaser/grantee of a defeasible fee takes subject to any condition not made irrelevant by the sale/transfer. Compare: To J so long as J never uses alcohol on the premises. Condition only places limit on J. Essentially void if J is not the owner. Once J is dead, condition can never be violated, so owner would have fee simple absolute.

37. REDWOOD: (4I): O conveys "to J and her heirs so long as the premises are not used for sale of beer, wine, or liquor, and if beer, wine, or liquor is sold on the premises, O retains a right to re-enter the premises." J opens a restaurant that serves several dishes cooked with wine or flamed with brandy and at Sunday brunch offers a free glass of champagne. The restaurant is successful, and 11 years after its opening D wants to buy it and add a bar. Possible Advice to D?

38. REDWOOD: (4I) Plausible Advice to Donald Includes: Buy both present estate and future interest (or “all rights” of both J and O) to merge into f.s.absolute Serve free liquor & raise prices (and argue waiver if O questions) Make purchase contingent on J insuring right to use alcohol (winning suit re adverse possession/ waiver/etc.; buying future interest/waiver from O) Find out if D is willing and able to sell beer/wine on nearby site for people to take into restaurant.

39. Executory Interests

40. Future interest in grantee Cuts off prior vested interest (present estate or reversion or vested remainder) rather than waiting for it to expire naturally.

41. Pre-1536 (= Pre-“ Common Law ”) Limitations on Future Interests in Grantees (not used 2013) Must follow finite estate Must be capable of taking effect at the expiration of preceding estate Must not take effect before the expiration of the preceding estate Elimination of these Rules in 1536 Allows Creation of Executory Interests

42. Executory Interests Future interest in grantee Cuts off prior vested interest (present estate or reversion or vested remainder) rather than waiting for it to expire naturally.

43. Executory Interests Shifting v. Springing Executory Interest No legal consequence; just categorization Shifting Executory Interest cuts off interest of another grantee Springing Executory Interest cuts off grantor’s fee simple or reversion Physical Model/Analaogy (if helpful)

44. Executory Interests EXAMPLES Shifting Executory Interest:, otherwise to Eric and his heirs. To Justin & his heirs so long as no tobacco is grown on the land, otherwise to Eric and his heirs.

45. Executory Interests EXAMPLES Springing Executory Interest: To Crystal if she passes the California bar exam. To Crystal if she passes the California bar exam. (Grantor is left with Fee Simple on Executory Limitation)

46. to Veronica for life (4F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Riverdale High Let’s Return to Problem 4F & Riverdale High

47. to Veronica for life (4F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Veronica: Life Estate Betty: Contingent Remainder in Fee Simple Reggie: Reversion What if Veronica dies while Betty is still age 17? – Life Estate is Over – Betty Can’t Take; Condition Not Met

48. to Veronica for life (4F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Veronica dies while Betty is still age 17 Common Law destroyed If contingency not met when prior estate ends, contingent remainder is destroyed. Betty has nothing. Reggie has fee simple absolute

49. Doctrine of Destructability of Contingent Remainders ( Common Law) First Common Application destroyed. If contingency not met when prior estate ends, contingent remainder is destroyed.

50. Doctrine of Destructability of Contingent Remainders ( Common Law) Overruled by statute or caselaw in every American jurisdiction except …

51. Doctrine of Destructability of Contingent Remainders ( Common Law) Overruled by statute or caselaw in every American jurisdiction except …

52. to Veronica for life (4F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Veronica dies while Betty is still age 17 Modern View (except FL) If contingency not met when prior estate ends, we wait to see if it is met later. executory interest. Betty’s remainder becomes an executory interest. Reggie takes possession and has fee simple on executory limitation (cut off if B turns 21)

53. to Veronica for life (4F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Veronica dies while Betty is still age 17 Modern View (except FL)

54. THE “READY BETTY” JOKE

55. Doctrine of Destructability of Contingent Remainders ( Common Law) Second Common Application Where there is a life estate, one or more contingent remainders, and a reversion, and the life estate and reversion merge into a fee simple, the contingent remainders are destroyed..

56. Doctrine of Destructability of Contingent Remainders Second Common Application Caitlin “to Nicole for life, then to Stephen if Stephen passes a bar exam.

57. Doctrine of Destructability of Contingent Remainders Second Common Application Caitlin “to Nicole for life, then to Stephen if Stephen passes a bar exam. Nicole purchases Reversion from Caitlin  Fee Simple Absolute

58. Modern View (everywhere except Florida) Merger without Destruction Caitlin “to Nicole for life, then to Stephen if Stephen passes a bar exam. Nicole purchases Reversion from Caitlin  F.S. on Exec. Lim. Stephen’s Remainder Becomes an Executory Interest

59. REDWOOD: Problems 4J & 4K REDWOODS & FERNS

60. REDWOOD: (4J): Mary "to Rhoda for life, then to Ted if Ted gives Mary a proper funeral." Rhoda?

61. REDWOOD: (4J): Mary "to Rhoda for life, then to Ted if Ted gives Mary a proper funeral." Rhoda: Life Estate Ted?

62. REDWOOD: (4J): Mary "to Rhoda for life, then to Ted if Ted gives Mary a proper funeral." Rhoda: Life Estate Ted: Contingent Remainder (if today: in f.s.) Anything Else?

63. REDWOOD: (4J): Mary "to Rhoda for life, then to Ted if Ted gives Mary a proper funeral." Rhoda: Life Estate Ted: Contingent Remainder (if today: in f.s.) Mary: Reversion

64. REDWOOD: (4J): Mary "to Rhoda for life, then to Ted if Ted gives Mary Rhoda a proper funeral." Rhoda: Life Estate Ted? (Does Change from Mary’s Funeral to Rhoda’s Affect Nature of Ted’s Interest?)

65. REDWOOD: (4J): Mary "to Rhoda for life, then to Ted if Ted gives Mary Rhoda a proper funeral." Rhoda: Life Estate Ted can’t possibly give Rhoda a “proper” funeral by the time Rhoda dies. –There will be a gap in time between the end of R’s life estate and Ted’s interest. –Thus, Ted’s interest cannot be a remainder; So Ted has …?

66. REDWOOD: (4J): Mary "to Rhoda for life, then to Ted if Ted gives Rhoda a proper funeral." Rhoda: Life Estate Mary: Reversion Ted: Springing Executory Interest (would cut off grantor’s interest: reversion)

67. EXAM TIP: USE COMMON SENSE!! Can’t give a “proper” funeral to a person until after the person has died.

68. EXAM TIP: USE COMMON SENSE!! Can’t give a “proper” funeral to a person until after the person has died. Similarly, if an interest has been conveyed in a will, you can assume the grantor is dead (will would not have become effective until death of grantor).

69. Remainders: Additional Information

70. Alternative Contingent Remainders Two contingent remainders where the event that causes one to vest will destroy the other.

71. Alternative Contingent Remainders Two contingent remainders where the event that causes one to vest will destroy the other. Example: Jordan grants: “To Kevin for life, then to Katherine and her heirs if she graduates from law school, but if she never graduates from law school, then to Sofia and her heirs”.

72. Alternative Contingent Remainders Two contingent remainders for which the event that causes one to vest will destroy the other. Example: To Kevin for life, then to Katherine and her heirs if she graduates from law school, but if she never graduates from law school, then to Sofia and her heirs. Here, only two possibilities: either (1) Katherine will graduate from law school (and would then take) or (2) she will die before graduating from law school (Sofia would then take)

73. Alternative Contingent Remainders Two contingent remainders for which the event that causes one to vest will destroy the other. Example: Example: Jordan: “To Kevin for life, then to Katherine and her heirs if she graduates from law school, but if she never graduates from law school, then to Sofia and her heirs.” Note: Even though the alternative contingent remainders might appear to exhaust all possibilities, the convention is that you still must pencil in a reversion in the grantor to fill up the time line. Thus, –Kevin has Life Estate –Katherine & Sofia each have an Alternate Contingent Remainder (in F.S.) –Jordan retains a Reversion

74. Vested Remainder Subject to Divestment Vested Remainder followed by an Executory Interest that could cut it off before it becomes possessory. Same as what textbook calls “Vested Remainder Subject to Complete Defeasance” (P596)

75. Contingent Remainder (1) v. Vested Remainder Subject to Divestment (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. (2) To A for life, then to B & her heirs, but if B dies before 21, then to C & his heirs. (No Reversion in O)

76. EXAM TIP: COMMON MISTAKES Contingent Remainder Subject to Open Contingent Remainder Subject to Divestment Executory Interest Subject to Divestment

77. EXAM TIP: COMMON MISTAKES Contingent Remainder Subject to Open Contingent Remainder Subject to Divestment Executory Interest Subject to Divestment These Phrases Only Used for Vested Remainders

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

79. REDWOOD (4K): “To George for life, then to Kramer and his heirs; but if Kramer does not attain the age of 21, then to Elaine and her heirs." Kramer is 15 years old. George: Life Estate Kramer?

80. REDWOOD (4K): “To George for life, then to Kramer and his heirs; but if Kramer does not attain the age of 21, then to Elaine and her heirs." Kramer is 15 years old. George: Life Estate Kramer: Vested Rem. (in f.s.) Subj. to Divestment – Vested b/c K not reaching 21 is condition on Elaine’s interest; K doesn’t have to reach 21 to get possession – Subject to Divestment b/c K can lose interest before it becomes possessory if he dies before 21 while G alive Elaine?

81. but if Kramer does not attain the age of 21, then to Elaine and her heirs." REDWOOD (4K): “To George for life, then to Kramer and his heirs; but if Kramer does not attain the age of 21, then to Elaine and her heirs." Kramer is 15 years old. George: Life Estate Kramer: Vested Rem. (in f.s.) Subj. to Divestment Elaine: Shifting Executory Interest (in f.s.) Elaine: Shifting Executory Interest (in f.s.) – Executory Interest b/c would cut off K’s Vested Rem. (or Fee if K gets possession before turning 21) – Shifting b/c cutting off grantee’s interest – Note: If there’s a vested remainder, can’t have a second remainder following same finite interest.

82. but if Kramer does not attain the age of 21, then to Elaine and her heirs." REDWOOD (4K): “To George for life, then to Kramer and his heirs; but if Kramer does not attain the age of 21, then to Elaine and her heirs." Kramer is 15 years old. George: Life Estate Kramer: Vested Rem. (in f.s.) Subj. to Divestment Elaine: Shifting Executory Interest (in f.s.) Elaine: Shifting Executory Interest (in f.s.) What if Kramer then turns 21 before George dies?

83. but if Kramer does not attain the age of 21, then to Elaine and her heirs." REDWOOD (4K): “To George for life, then to Kramer and his heirs; but if Kramer does not attain the age of 21, then to Elaine and her heirs." Kramer turns 21; George still alive. George: Life Estate Kramer: Vested Rem. (in f.s.) Subj. to Divestment Elaine: Shifting Executory Interest (in f.s.) Interest fails. Elaine: Shifting Executory Interest (in f.s.) Interest fails.