PROPERTY E SLIDES

3-05-13

YOSEMITE: Problem 4I

HALF DOME

YOSEMITE: (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.

YOSEMITE: (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

YOSEMITE: (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

YOSEMITE: (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

YOSEMITE: (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

YOSEMITE: (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.

YOSEMITE: (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?

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.

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.

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.

YOSEMITE: (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?

YOSEMITE: (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. (Clever Samuel Idea!)

Executory Executory InterestsInterests

• Future interest in grantee• Cuts off prior vested interest (present

estate or reversion or vested remainder) rather than waiting for it to expire naturally.

Executory Executory InterestsInterests

• Future interest in grantee• Cuts off prior vested interest (present estate

or reversion or vested remainder) rather than waiting for it to expire naturally.

• Shifting Executory Interest cuts off another grantee

Executory Executory Interests Interests EXAMPLESEXAMPLES

Shifting Executory Interest: To Justin & his heirs so long as no tobacco is

grown on the land, otherwise to Eric and his , otherwise to Eric and his heirs.heirs.

Executory Executory Interests Interests EXAMPLESEXAMPLES

Springing Executory Interest:To Crystal if she passes the California To Crystal if she passes the California

bar exam. bar exam. (Grantor is left with Fee Simple on Executory Limitation)

(4F) Reggie “to Veronica for lifeto Veronica for life, then to Betty and her heirs if Betty attains the age of

21.”

Let’s Return to Problem 4F & Riverdale HighRiverdale High

(4F) Reggie “to Veronica for lifeto 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

(4F) Reggie “to Veronica for lifeto 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•If contingency not met when prior estate ends, contingent remainder is destroyeddestroyed.•Betty has nothing.•Reggie has fee simple absolute

Doctrine of Destructability of Contingent Remainders

(Common Law)First Common Application

If contingency not met when prior estate ends, contingent remainder is destroyed.destroyed.

Doctrine of Destructability of Contingent Remainders

(Common Law)

Overruled by statute or caselaw in every American jurisdiction except …

Doctrine of Destructability of Contingent Remainders

(Common Law)

Overruled by statute or caselaw in every American jurisdiction except … FLORIDA

(4F) Reggie “to Veronica for lifeto 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.•Betty’s remainder becomes an executory executory interest.interest.•Reggie takes possession and has fee simple on executory limitation (cut off if B turns 21)

(4F) Reggie “to Veronica for lifeto 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)

THE “READY BETTY”

JOKE(right before

break)

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. ..

Doctrine of Destructability of Contingent Remainders Second

Common Application• Sara “to Ivane for life, then to Shae if Shae passes bar exam.

Doctrine of Destructability of Contingent Remainders Second

Common Application• Sara “to Ivane for life, then to Shae if Shae passes bar exam.• Ivane purchases Reversion from Sara Fee Simple

Absolute

Modern View (everywhere except Florida)

Merger without Destruction• Sara “to Ivane for life, then to Shae if Shae passes bar exam.• Ivane purchases Reversion from Sara F.S. on Exec. Lim.• Shae’s Remainder Becomes Executory Interest

EVERGLADES: Thursday Set-Up for Problem 4O (Thursday)

EGRET IN MANGROVE SWAMP

EVERGLADES: Thursday 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

DENALI: Problems 4J-4M

Denali Caribou

DENALI: (4J): Mary "to Rhoda for life, then to Ted if Ted gives Mary a

proper funeral."

• Rhoda?

DENALI: (4J): Mary "to Rhoda for life, then to Ted if Ted gives Mary a

proper funeral."

• Rhoda: Life Estate • Ted?

DENALI: (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?

DENALI: (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

• Rhoda: Life Estate

• Ted? (Is change from Mary’s Funeral to Rhoda’s Significant?)

• 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 …?

DENALI: (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 (will

cut off grantor’s interest: reversion)

EXAM TIP: USE COMMON SENSE!!

• Can’t give a “proper” funeral to a person until after the person has died.• Similarly, if an interest is conveyed in a

will, the grantor is dead.

Remainders:Remainders: Additional InformationAdditional Information

Alternative Contingent Alternative Contingent RemaindersRemainders

Two contingent remainders for which the event that causes one to vest will destroy the other.

Alternative Contingent Alternative Contingent RemaindersRemainders

Two contingent remainders for which the event that causes one to vest will destroy the other. Example:

To Jenna for life, then to Erin and her heirs if she graduates from law school, but if she never graduates from law school, then to Becky and her heirs.

Alternative Contingent Alternative Contingent RemaindersRemainders

Two contingent remainders for which the event that causes one to vest will destroy the other. Example:

To Jenna for life, then to Erin and her heirs if she graduates from law school, but if she never graduates from law school, then to Becky and her heirs.

Here, only two possibilities: either (1) Erin will graduate from law school (and would then take) or (2) she will die before graduating from law school (Becky would then take)

Vested Remainder Vested Remainder Subject to DivestmentSubject to Divestment•Vested Remainder followed by an Executory Interest that could cut it off before it becomes possessory.

•Same as Vested Remainder Subject to Complete Defeasance (P596)

Contingent Remainder (1) v. Contingent Remainder (1) v. Vested Remainder Subject to Vested Remainder Subject to

Divestment (2)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)

Contingent Remainder (1) v. Contingent Remainder (1) v. Vested Remainder Subject to Vested Remainder Subject to

Divestment (2)Divestment (2)(1) To A for life, then to B & heirs if she turns 21, but if B dies before 21, then to C & 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.

•If A alive & B dies at 14If A alive & B dies at 14: (both 1+2)

• B gets 0;

• C gets fee simple at A’s death

Contingent Remainder (1) v. Contingent Remainder (1) v. Vested Remainder Subject to Vested Remainder Subject to

Divestment (2)Divestment (2)(1) To A for life, then to B & heirs if she turns 21, but if B dies before 21, then to C & 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.

•If A alive & B turns 21If A alive & B turns 21: (both 1+2)

• B has vested remainder

• C’s interest fails

Contingent Remainder (1) v. Contingent Remainder (1) v. Vested Remainder Subject to Vested Remainder Subject to

Divestment (2)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.

•If A dies & B not yet 21If A dies & B not yet 21 (1)(1)• Conditions not met for either B or C.

Remainders either destroyed or become Executory Interests

• O takes Fee Simple [on Executory Limitation in Modern View (exc. FL)]

Contingent Remainder (1) v. Contingent Remainder (1) v. Vested Remainder Subject to Vested Remainder Subject to

Divestment (2)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.

•If A dies & B not yet 21If A dies & B not yet 21 (2)(2)• No requirement that B turn 21 to take

possession, so B has Fee Simple on Executory Limitation.

• C still has Shifting Executory Interest that C still has Shifting Executory Interest that will become possessory if B dies before will become possessory if B dies before turning 21.turning 21.

Vested Remainder Subject to Vested Remainder Subject to Divestment (1) v.Divestment (1) v.

Vested Remainder in F.S. subj. to Vested Remainder in F.S. subj. to Exec. Lim. (2)Exec. Lim. (2)(1) To A for life, then to B & her heirs, but if B

dies before turning 21, then to C & his heirs.•Condition might occur before B obtains possession.

Vested Remainder Subject to Vested Remainder Subject to Divestment (1) v.Divestment (1) v.

Vested Remainder in F.S. subj. to Vested Remainder in F.S. subj. to Exec. Lim. (2)Exec. Lim. (2)(1) To A for life, then to B & her heirs, but if B dies but if B dies

before turning 21, then to C & his heirs.before turning 21, then to C & his heirs.•Condition might occur before B takes possession.

(2) To A for life, then to B & her heirs, but if B but if B ever uses the land for commercial purposes, to ever uses the land for commercial purposes, to C & his heirs. C & his heirs. •Condition cannot occur before B takes possession.

EXAM TIP: COMMON MISTAKESEXAM TIP: COMMON MISTAKES

• Contingent Remainder Subject to Open• Contingent Remainder Subject to Divestment• Executory Interest Subject to Divestment

EXAM TIP: COMMON MISTAKESEXAM TIP: COMMON MISTAKES

DENALI (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 ?

DENALI (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?

DENALI (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?

DENALI (4K): “To George for life, then to Kramer and his heirs; but if Kramer does but if Kramer does

not attain the age of 21, then to not attain the age of 21, then to Elaine and her heirs." 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’sinterest– Note: If there’s a vested remainder, can’t have a

second remainder following same finite interest.

DENALI (4L): Daffy "to Tweety for life, then to such of Tweety's children as survive him, but if none of Tweety's

children survives him, then to Peggy and her heirs."

Tweety has 2 children, Heckle and Jeckle. • Tweety: ?

DENALI (4L): Daffy "to Tweety for life, then to such of Tweety's children as

survive him, but if none of Tweety's children survives him, then to Peggy and

her heirs." Tweety has 2 children, Heckle and Jeckle. • Tweety: Life Estate• Tweety’s Children?

DENALI (4L): Daffy "to Tweety for life, then to such of Tweety's children as survive him, but if none of Tweety's

children survives him, then to Peggy and her heirs."

Tweety has 2 children, Heckle and Jeckle. • Tweety: Life Estate

• Tweety’s Children: Contingent Remainder (in f.s.) (Must Survive Tweety)

• Peggy?

DENALI (4L): Daffy "to Tweety for life, then to such of Tweety's children as survive him, but if none of Tweety's

children survives him, then to Peggy and her heirs."

Tweety has 2 children, Heckle and Jeckle. • Tweety: Life Estate• Tweety’s Children: Contingent Remainder (in f.s.)

• Peggy: Alternative Contingent Remainder (in f.s.) Only 2 Possibilities:– Tweety survived by children (who take)– Tweety not survived by children (Peggy takes)

DENALI (4L): Daffy "to Tweety for life, then to such of Tweety's children as survive him, but if none of Tweety's

children survives him, then to Peggy and her heirs."

Tweety has 2 children, Heckle and Jeckle. • Tweety: Life Estate• Tweety’s Children: Contingent Remainder (in f.s.)• Peggy: Alternative Contingent Remainder (in f.s.)

• Anything Else?

DENALI (4L): Daffy "to Tweety for life, then to such of Tweety's children as survive him, but if none of Tweety's

children survives him, then to Peggy and her heirs."

Tweety has 2 children, Heckle and Jeckle. • Tweety: Life Estate• Tweety’s Children: Contingent Remainder (in f.s.)• Peggy: Alternative Contingent Remainder (in f.s.)

• Daffy: Reversion (even when alternate contingent remainders)

DENALI (4L): Daffy "to Tweety for life, then to such of Tweety's children as survive him, but if none of Tweety's children survives him, then to

Peggy and her heirs."

• Tweety: Life Estate• Tweety’s Children: Contingent Remainder (in f.s.)• Peggy: Alternative Contingent Remainder (in f.s.)• Daffy: Reversion (even when alternate contingent

remainders)

DENALI (4M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he is not survived by any

children, then to Jo and her heirs." Billy has no children.

• Billy: ?

DENALI (4M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he is not survived by

any children, then to Jo and her heirs." Billy has no children.

• Billy: Life Estate• Billy’s children: ?

DENALI (4M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he is not survived by any children, then to Jo and her heirs."

Billy has no children.• Billy: Life Estate

• Billy’s children: Contingent Remainder (in f.s.) (Unborn)

• Jo: ?

Alternative Contingent Alternative Contingent RemaindersRemainders

Two contingent remainders for which the event that causes one to vest will destroy the other.

DENALI (4M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he is not survived by any

children, then to Jo and her heirs." Billy has no children.

• When does contingent remainder in B’s children vest?

DENALI (4M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he is not survived by any

children, then to Jo and her heirs." Billy has no children.

• Contingent remainder in B’s children vests when a child of B’s is born.

• When does contingent remainder in Jo vest?

DENALI (4M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he is not survived by any

children, then to Jo and her heirs." Billy has no children.

• Contingent remainder in B’s children vests when a child of B’s is born.

• Contingent remainder in Jo vests when Billy dies survived by no children.

• Is the interest in Jo destroyed when the interest in the children vests?

DENALI (4M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he is not survived by any

children, then to Jo and her heirs." Billy has no children.

• Billy: Life Estate• Billy’s children: Contingent Remainder (in f.s.)

• Jo: Contingent Remainder (in f.s.) (Not alternate)

• Anything Else?

DENALI (4M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he is not survived by any

children, then to Jo and her heirs." Billy has no children.

• Billy: Life Estate• Billy’s children: Contingent Remainder (in

f.s.) • Jo: Contingent rem. (in f.s.) (Not alternate)

• Amanda: Reversion