2. MUSIC: Harry Connick Jr., 20 (1988) In Mahrenholz (Wed/Thu) IGNORE THE JACQMAINS 1.Delete last paragraph on P581. 2.Delete last complete paragraph on P582. 3.Pretend you never heard of the Jacqmains.

3. Now on Course Page Practice Midterm Comments & Best Student Answers to Midterm Questions from Prior Years Information Box re Chapter 7 Exam

4. DOCTRINE OF WASTE

5. Doctrine of Waste: Overview Doctrine Applies to – Holder of Term of Years (Tenant) or Life Estate (Life Tenant) – Vis-à-vis interests of holder of future interest: remainder or reversion We are covering as part of Chapter 6, so testable on final exam, but not part of Chapter 7 test.

6. Doctrine of Waste: Overview Generally: Present holder has some duties to future interest holder to turn property over in roughly same condition it was received Underlying Concern: Lack of incentives for present holder to take steps to preserve when benefits go to future interest holder Remedies: Damages, injunction, or receivership (court takes over management of property).

7. Doctrine of Waste: Overview Precise duties vary w circumstances, including: Explicit terms in lease or grant creating life estate Type of waste at issue Term of years v. Life estate Likely amount of time before change in possession Type of lease: residential v. commercial v. agricultural. (As with other areas in LT law, some changes as move away from agricultural lease as most common form.)

8. Three Types of Waste (1) Affirmative/Voluntary Deliberate acts that harm value of property Some complexity re when OK to remove valuable resources (timber/minerals) – Traditionally couldn’t touch capital assets – Casebook says maybe OK today where Consistent with area custom Likely was grantor’s intent Where activity had started already when LT/TNT took possession

9. Three Types of Waste (2) Ameliorative Traditionally, could enjoin changes even if increased property value (though future interest holder unlikely to sue) Trend away from enforcement – Some cases: can still be liable if substantially alter identity of premises (1-story  2 story) – Some cases allow changes w security deposits for restoration (cf. reasonable modification) – Some cases: multi-factor test (e.g., extent of harm, nature of property, time remaining)

10. Three Types of Waste (3) Permissive Tenant must keep property in as good repair as when took possession, unimpaired by T negligence – Moore: Must use ordinary care to preserve & protect property, BUT not responsible for ordinary wear & tear – Casebook: Paying mortgage interest, taxes, insurance Life Tenant Responsible Ordinary Tenant Not, Unless in Terms of Lease Casebook suggests duties in residential leases have changed w modern trends re responsibility for habitability

11. Moore, Laches & Estoppel L dies leaving land w farmhouse to A (wife) for life, remainder to D&K (daughter/grandson of A & L) A & D become estranged Last 2-3 yrs before death A negligently lets farmhouse deteriorate After A’s death, D/K sue for damages for permissive waste to farmhouse

12. Moore, Laches & Estoppel Timing: Kansas allows suit while life tenant still in possession, but doesn’t require it (statute of limitations doesn’t start to run until future interest holder takes possession) Equitable Defenses: Trial Court found suit barred b/c of ESTOPPEL & LACHES

13. Moore, Laches & Estoppel ESTOPPEL Affirmative act by claimant, if relied on by other party, can bar contrary action by claimant E.g., if future interest holder told life tenant, “OK to let slide”, later suit for waste may be estopped. No evidence of here; if anything, evidence is daughter repeatedly complained to mother

14. Moore, Laches & Estoppel LACHES Failure to act in timely manner, IF delay disadvantages other party (like stat. limit.) OK if reasonable excuse for not acting more quickly (Perhaps future interest holder not enforcing more quickly b/c interest was just contingent or b/c young life estate holder died suddenly)

15. Moore, Laches & Estoppel No LACHES in Moore Other party not disadvantaged: Unavailability of A’s testimony not disadvantage b/c permissive harm to farmhouse so clear Reasonable excuses for not suing earlier: – D/K advised to avoid contact w A to avoid “making bad situation worse” – D wanted to avoid aggravating mother & taking $$ she might need for expenses

16. Moore, Intent & Drafting Casebook Note 1: Would grantor have intended that his wife compensate daughter for deterioration in condition of farmhouse? Difficult when drafting to anticipate estrangement on to include complex instructions for management Qs on Moore?

17. Doctrine of Waste & Chapter 6 (1) Florida Residential Landlord-Tenant Act – Limits on Tenant Responsibility Probably Affect What Counts as Permissive Waste, Especially if Residential Tenant Reports Problems & Landlord Doesn’t Fix – Consider re Florida Statutes, esp. §83.52

18. Doctrine of Waste & Chapter 6 (2) Reasonable Modifications : Absent anti-discrimination provisions & without consent of landlord: – Some would be forbidden as affirmative waste b/c lowers market value – Some would be ameliorative waste; might be allowed, but hard-to-predict fact-specific inquiry §3604(f)(3)(a) thus operates as exception to doctrine of waste

19. VESTED v. CONTINGENT REMAINDERS

20. 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.

21. VESTED REMAINDER Grantee is living ascertainable person (Presumed if granted to a named individual)

22. VESTED REMAINDER Grantee is living ascertainable person AND Clause creating the remainder contains no condition on grantee taking the property except expiration of prior estate

23. VESTED REMAINDER Grantee is living ascertainable person AND Clause creating the remainder contains no condition on grantee taking the property except expiration of prior estate Example: To Aaron for life, then to Oona and her heirs.

24. CONTINGENT REMAINDER Grantee is presently unborn or unascertainable *OR* Clause creating the remainder contains a condition on grantee taking the property

25. CONTINGENT REMAINDER: EXAMPLES “To Fred for life, then to Fred’s firstborn child.” Fred presently has no children. (Not born)

26. Suppose Fred has a child…

27. CONTINGENT REMAINDER: EXAMPLES “ To Fred for life, then to Fred’s oldest child living at Fred’s death.” (not ascertainable)

28. CONTINGENT REMAINDER: EXAMPLES “ To Fred for life, then to Wilma and her heirs if Dino survives Fred (condition precedent)

29. ANALOGY Vested Remainder  Theater Ticket Contingent Remainder  Lottery Ticket

30. Life Estate + Vested Remainder To Fred for Life, then to Wilma and her heirs

31. Life Estate + Contingent Remainder Barney “to Fred for Life, then to Wilma and her heirs if Dino survives Fred.”

32. Life Estate + Contingent Remainder Barney “to Fred for Life then to Wilma and her heirs if Dino survives Fred.” Barney retains a reversion.

33. REMAINDERS “IN …” : “To Fred for life, then to Wilma for life.” Wilma has a vested remainder in life estate “To Fred for life, then to Wilma and her heirs if Dino survives Fred. Wilma has a contingent remainder in fee simple

34. PROBLEMS 7A-7F

35. (7A): O conveys Baconacre "to Mayer and her heirs." Mayer's only child, Armour, runs up large bills. Can Armour's creditors reach any interest of Armour in Baconacre?

36. (7A): O conveys Baconacre "to Mayer and her heirs." Mayer wishes to sell Baconacre and use the proceeds to take a trip around the world. Can Armour prevent Mayer from doing this?

37. (7B): Kermit “to Ernie for life, then to Burt forever.” (Common Law) Ernie: ?

38. (7B): Kermit “to Ernie for life, then to Burt forever.” (Common Law) Ernie: Life Estate Burt: ?

39. (7B): Kermit “to Ernie for life, then to Burt forever.” (Common Law) Ernie: Life Estate Burt: Vested Remainder in Life Estate

40. (7B): Kermit “to Ernie for life, then to Burt forever.” (Common Law)

41. Who owns the last piece?

42. (7B): Kermit “to Ernie for life, then to Burt forever.” (Common Law) Kermit has a reversion (in frog green!) Ernie dies?

43. (7B): Kermit “to Ernie for life, then to Burt forever.” (Common Law) Kermit has a reversion Ernie dies? Burt has life estate. Burt dies?

44. (7B): Kermit “to Ernie for life, then to Burt forever.” (Common Law) Kermit has a reversion Ernie dies? Burt has life estate. Burt dies? Kermit or Kermit’s heirs have fee simple

45. (7B): Kermit “to Ernie for life, then to Burt forever.” (Today) Ernie: Life Estate Burt: ?

46. (7B): Kermit “to Ernie for life, then to Burt forever.” (Today) Ernie: Life Estate Burt: Vested Remainder in Fee Simple Kermit?

47. (7B): Kermit “to Ernie for life, then to Burt forever.” (Today) Ernie: Life Estate Burt: Vested Remainder in Fee Simple Kermit: Nothing

48. (7B): Kermit “to Ernie for life, then to Burt forever.” (Today) Ernie dies?

49. (7B): Kermit “to Ernie for life, then to Burt forever.” (Today) Ernie dies? Burt takes a fee simple absolute. Burt dies?

50. (7B): Kermit “to Ernie for life, then to Burt forever.” (Today) Ernie dies? Burt takes a fee simple absolute. Burt dies? Property passes by Burt’s will or through intestacy to Burt’s heirs.

51. (7C): Elmer “to Sylvester for life, then to Bugs and his heirs.” Sylvester: ?

52. (7C): Elmer “to Sylvester for life, then to Bugs and his heirs.” Sylvester: Life Estate Bugs?

53. (7C): Elmer “to Sylvester for life, then to Bugs and his heirs.” Sylvester: Life Estate Bugs: Vested Remainder in Fee Simple

54. (7C): Elmer “to Sylvester for life, then to Bugs and his heirs.” Bugs dies intestate without heirs. Impact?

55. (7C): Elmer “to Sylvester for life, then to Bugs and his heirs.” Bugs dies intestate without heirs. Vested remainder passes to the state. Sylvester dies. Effect?

56. (7C): Elmer “to Sylvester for life, then to Bugs and his heirs.” Bugs dies intestate without heirs. Vested remainder passes to the state. Sylvester dies. State has a fee simple absolute.

57. (7D): Mickey “to Minnie for life, then to Pluto for 99 years.” Minnie: ?

58. (7D): Mickey “to Minnie for life, then to Pluto for 99 years.” Minnie: Life Estate Pluto?

59. (7D): Mickey “to Minnie for life, then to Pluto for 99 years.” Minnie: Life Estate Pluto: Vested Remainder in Term of Years. Anything Else?

60. (7D): Mickey “to Minnie for life, then to Pluto for 99 years.” Minnie: Life Estate Pluto: Vested Remainder in Term of Years. Mickey: Reversion (eventually to his heirs or devisees)

61. (7E): Derek “to Bernie for life, then to Jorge for life, then to Roger and his heirs.” Bernie?

62. (7E): Derek “to Bernie for life, then to Jorge for life, then to Roger and his heirs.” Bernie: Life Estate Jorge?

63. (7E): Derek “to Bernie for life, then to Jorge for life, then to Roger and his heirs.” Bernie: Life Estate Jorge: Vested Remainder in Life Estate Roger?

64. (7E): Derek “to Bernie for life, then to Jorge for life, then to Roger and his heirs.” Bernie: Life Estate Jorge: Vested Remainder in Life Estate Roger: Vested Remainder in Fee Simple

65. (7F): Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Betty is 15. Veronica: ?

66. (7F): Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Betty is 15. Veronica: Life Estate Betty?

67. (7F): Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Betty is 15. Veronica: Life Estate Betty: Contingent Remainder in F.S. What happens if Betty dies at 17?

68. (7F): Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Betty is 15. What happens if Betty dies at 17? No instructions. What happens when a grantor does not fully dispose of the property in all possible scenarios?

69. (7F): Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Betty is 15. If a grantor does not fully dispose of the property, we assume he kept the parts not mentioned for himself. Here, Reggie has a reversion. If Betty dies before turning 21, Reggie or his designees will get the property in fee simple when Veronica dies.

70. (7F): Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Betty turns 21. Betty’s contingent remainder “vests” leaving her with a vested remainder in f.s. Reggie’s reversion “divests,” leaving him with nothing.

71. (7F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” What happens if Veronica dies when Betty is 17?

72. (7F): Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” What if Betty turns 21 while Veronica is alive?

73. THE “READY BETTY” JOKE

74. QUESTIONS ON WRITTEN ASSIGNMENT #4? (DUE FRIDAY AT START OF CLASS)

75. QUESTIONS ON WRITTEN ASSIGNMENT #3? (DUE NOV 9/10)

76. Closing Up Chapter 6 & Anti- Discrimination Law

77. Marable: Evidence not Directly Addressing Defendants’ Asserted Reasons For Plaintiff History: no blacks ever HUD conclusion : race D changing stories D willingness to use criteria (marital status) even if not sure lawful to do so N.20: Testimony re D’s statements re racial exclusion (though Trial Court found biased)

78. Marable: Evidence not Directly Addressing Defendants’ Asserted Reasons For Defendant Issues re plaintiff’s credibility – Changing stories re deposit – Contradicted by manager re statement re marital status – Contradicted by Mrs. Sims at credit service (Note: Why Mrs. Sims lie?: Clients = Landlords) Landlord testimony: She was unaware of his race until he mentioned

79. Marable: Why Appellate Court is Willing to Reverse Trial Court (cf. Sorenson) 1.Standard Different for Reviewing Trial Court Fact-Finding than for Jury. In Federal Courts, Reverse if … : – Jury: No Reasonable Jury Could Find … – Trial Court: Clear Error More Leeway to Court of Appeals S194 (end last full para.): “definite & firm impression mistake was committed” – Note that P probably didn’t request jury trial b/c of concerns about all-white juries (see Sorenson)

80. Marable: Why Appellate Court is Willing to Reverse Trial Court (cf. Sorenson) 1.Trial Court Fact-Finding v. Jury 2.Undisputed Documentary Evidence Shows Ds Treated White Applicants Differently – Ds own records inconsistent with their stories – Allows CtApp to ignore evidence that trial court discounted b/c of credibility findings

81. Marable: Why Appellate Court is Willing to Reverse Trial Court (cf. Sorenson) 1.Trial Court Fact-Finding v. Jury 2.Undisputed Documentary Evidence Shows Ds Treated White Applicants Differently 3.Trial Court Itself Not Credible – Finds Feather Corp. “Non-Existent” Despite State Records – Finds “No Employment History” Despite Parole Job with State – Finds “Constant Harassment” re 3-5 Phone Calls

82. Marable: Why Appellate Court is Willing to Reverse Trial Court (cf. Sorenson) 1.Trial Court Fact-Finding v. Jury 2.Undisputed Documentary Evidence Shows Ds Treated White Applicants Differently 3.Trial Court Itself Not Credible Qs on Sorenson or Marable?

83. Overlap Between Anti-Discrimination & Funk/Right to Transfer Issues Might have refusal to transfer case where: Tenant claims unlawful discrimination (e.g., Race) Landlord claims non-discriminatory reason (e.g., Rev. Prob. 6G: Bull Collins’s Daughter) On Test, You’d Have to: 1.Discuss which reason evidence best supports. 2.Discuss whether “non-discriminatory” reason would meet reasonableness test (See write up of 6G for similar discussion of Bull Collins issue under California law)

84. Review Problem 6G (Oats) Evidence supporting theory that reason for refusal to rent was inter- racial marriage?

85. Review Problem 6G (Oats) Evidence supporting theory that reason for refusal to rent was not inter-racial marriage?