PROPERTY A SLIDES 3-20-15. Friday March 20 Music: Billie Holiday Billie Holiday Sings (1952) TEST IS ESSENTIALLY DONE Some completely new problems Some

PROPERTY A SLIDES3-20-15

Friday March 20 Music: Billie HolidayBillie Holiday Sings (1952)

TEST IS ESSENTIALLY DONE•Some completely new problemsSome completely new problems

•Mostly questions/answers from posted Bank or Tests, some altered a bit, all Mostly questions/answers from posted Bank or Tests, some altered a bit, all with new names.with new names.

•Contains names of all students from Redwood, Shenandoah & Yellowstone & Contains names of all students from Redwood, Shenandoah & Yellowstone & plus some Biscaynes (I’m saving rest for Final Exam)plus some Biscaynes (I’m saving rest for Final Exam)

•Apologies to those of you I had to kill off.Apologies to those of you I had to kill off.

Office Hours Every Day from Today Office Hours Every Day from Today Monday Monday

(See Course Page for Times & Locations)(See Course Page for Times & Locations)

Conditions: Timing AmbiguityConditions: Timing AmbiguityChange Grant: Possible ArgumentsChange Grant: Possible Arguments

(1)To Andrew for life, then to Brian, but if Andrew graduates from law school, then to Caitlin.

(2)To Andrew for life, then to Brian, but if Brian graduates from law school, then to Caitlin.

• In (2), seems odd to punish Andrew for Brian’s life choices, so absent clear reason, likely treat C’s interest as just cutting off B’s remainder

Questions on Timing Ambiguities?

Conditions: Conditions: Additional Additional InformationInformation

•Unacceptable Conditions•Shapira•Timing Issues

•Problem 4OProblem 4O

SHENANDOAH: Problem 4O

APPALACHIAN TRAIL

Shenandoah (4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains

unmarried.” Residue to daughter Gloria.

• Gloria is not Edith’s child.• Edith moves in with male friend, Sherman. • Edith then dies, devising all her property

to Sherman. “devising” means?

Shenandoah (4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.”

Residue to daughter Gloria.

Note on Future Interests Created in Wills•The future interest that is retained by Archie (when he grants present interest to Edith) then passes to Gloria through the residuary clause. •For purposes of naming the property rights involved, we treat this future interest as being held initially by Archie (the grantor), because it is not explicitly described as being granted to a third party.



Three Qs/Ambiguities I Said We’d DiscussThree Qs/Ambiguities I Said We’d Discuss: :

1.1. Life Estate Determinable Life Estate Determinable v.v. Fee Simple Fee Simple Determinable?Determinable?

2.2. Is condition restraining Is condition restraining secondsecond marriage void? marriage void?

3.3. Does Does cohabitationcohabitation violate a restraint on violate a restraint on marriagemarriage??

Then We’ll Work Through Decision Tree



(Q1) Arguments Supporting Fee Simple Determinable (as opposed to Life Estate

Determinable?)



• Arguments Supporting FSD Include:• Presumption of Fee Simple if Today

• No Explicit Reference to “Life”

• No Explicit Gift Over Listed (See White v. Brown)

• Arguments Supporting Life Estate Determinable?



(Q1) Arguments Supporting Life Estate Determinable (Q1) Arguments Supporting Life Estate Determinable Include:Include:•Presumption of Life Estate if at Common LawPresumption of Life Estate if at Common Law

•““Use and Benefit” Sounds Like Life Estate (Hard to “Use” Land Use and Benefit” Sounds Like Life Estate (Hard to “Use” Land After Death)After Death)

•Condition/Language is Consistent with Intent to Provide Condition/Language is Consistent with Intent to Provide Shelter/Support for Edith Shelter/Support for Edith During Her LifetimeDuring Her Lifetime

•Reasonable to Think Archie would try to Protect Gloria (not Reasonable to Think Archie would try to Protect Gloria (not Edith’s daughter)Edith’s daughter)



•Caselaw in many states today interpreting “for use and benefit:”

• Majority View: creates Fee Simple

• Minority View: creates Life Estate



Majority View: •E has Fee Simple Determinable •What is Remaining Future Interest in Archie (passed to Gloria through residuary clause)?



Majority View: •E has Fee Simple Determinable •A G: Possibility of Reverter



Minority View: •E has Life Estate Determinable •What is Remaining Future Interest in Archie (passed to Gloria through residuary clause)?



Minority View: •E has Life Estate Determinable •A G: Possibility of Reverter + Reversion

• Merges into Reversion



(Q2) If Edith had never married, condition probably would be void as against public policy.

(Allowed for life estates in a few states.)

Should we treat condition restraining second marriage differently from one restraining first

marriage?



(Q2) Is condition restraining second marriage void as against public policy?

•Policy Concerns:

• A’s right to control his property v. E’s right to control her own life

• Stereotypes about older persons (cf. Webb)

•Court probably more likely to allow condition if it views E’s interest as just a life estate for support



(Q2) Is condition restraining second marriage void as against public policy? Result:

• If not void, nothing changes

• If void, pencil out condition



• If condition void, pencil out condition:“To my wife Edith, for her use & benefit,

so long as she remains unmarried.”



• If condition void, pencil out condition:“To my wife Edith, for her use & benefit,

so long as she remains unmarried.”

• Resulting Interests:•Majority: E = Fee Simple Absolute•Some: E = Life Estate + G = Reversion

If Void, What Happens when E dies?

Shenandoah (4O): Archie in will: “To my wife E, for her use & benefit,

so long as she remains unmarried.” Residue to G. E then dies leaving all property to S.

If condition void, resulting interests:

•Majority: E = Fee Simple Absolute• When E Dies, S gets FSA through E’s will.

•Some: E = Life Estate + G = Reversion • When E dies, Life Estate ends, and G has FSA.

(4O): Shenandoah: “To my wife Edith, for her use & benefit, so long as she remains unmarried.”

Residue to Gloria. E shacks up with Sherman. E dies; devises

everything to S(Q3) Does (Q3) Does cohabitationcohabitation violate a restraint on violate a restraint on marriagemarriage??

• Only need to resolve if condition is valid.



everything to S• Does Does cohabitationcohabitation violate a restraint on violate a restraint on marriagemarriage??• Only need to resolve if condition is valid.• Discussion: Literal Argument v. Inconsistency w Grantor’s Purpose (cf. Mahrenholz)

• Restatement Position: • Not a Violation

• For Restatement to Address, Must Have Come Up Pretty Often

• Other Reasons Not to Marry from Pensions & Social Security



everything to S(Q3) Does (Q3) Does cohabitationcohabitation violate a restraint on violate a restraint on marriagemarriage??

• Only need to resolve if condition is valid.• Since arguments both ways, need to follow through for both possibilities for both possible readings of grant

(4O): Shenandoah: (4O): Shenandoah: A in Will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue

to Gloria. E shacks up with Sherman. E dies; devises everything to S

Minority: E = LED G = Reversion (incl. Poss. of Minority: E = LED G = Reversion (incl. Poss. of Reverter)Reverter)

If Condition is Violated?

•E immediately loses title

•G’s Poss of Reverter FSA

If Condition is Not Violated?

• Parties’ Interests Don’t Change



Minority: E = LED G = Reversion (incl. Poss. of Minority: E = LED G = Reversion (incl. Poss. of Reverter)Reverter)

If Condition is Violated?

•E immediately loses title•G’s Poss of Reverter FSA

E Dies?

•E has no interest to pass on

G = FSA



E Dies? •E’s Life Estate ends

•G’s Reversion FSA

G = FSA



Majority: E = FSD G = Poss. of ReverterMajority: E = FSD G = Poss. of ReverterIf Condition is Violated?

•E immediately loses title

•G’s Poss of Reverter FSA





Majority: E = FSD G = Poss. of ReverterMajority: E = FSD G = Poss. of ReverterIf Condition is Violated?

•E immediately loses title•G’s Poss of Reverter FSA

E Dies?

•E has no interest to pass on

G = FSA



E Dies: What Happens?

(4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to A’s daughter Gloria (not E’s daughter). E shacks up with Sherman. E dies; devises everything to S

Final Branch of Decision Tree: Edith Dies Final Branch of Decision Tree: Edith Dies

Majority: Condition Valid + No Violation

Edith has FSD; Gloria has Possibility of Reverter

What happens to Condition When Edith Dies?What happens to Condition When Edith Dies?

(4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to A’s daughter Gloria (not E’s daughter). E shacks up with Sherman. E dies; devises everything to S

Final Decision Tree: Edith Dies Final Decision Tree: Edith Dies Majority: Condition Valid + No Violation

Edith has FSD; Gloria has Possibility of Reverter•What happens to Condition When Edith Dies?

• Edith Can’t Remarry After Death (As Far as We Know )

• Thus Condition Can Never Occur

• So Condition Effectively Disappears

•Sherman has Fee Simple Absolute; Gloria’s Interest Fails

COMPARE“To E & her heirs so long as she remains

unmarried.” Condition limited to E, so ends at E’s death.

Successors after that take Fee Simple Absolute

“To E & her heirs so long as alcohol is never sold on the premises.”

Condition not limited to E, so it survives her. Successors take Fee Simple Determinable.

Qs on Problem 4O?

ALL: DQ4.15

Should a court enforce conditions that limit or

mandate religious behavior for the grantee?

ALL: DQ4.12

Why should we allow grantors to have Why should we allow grantors to have any control at all of what happens to any control at all of what happens to

land after they have died? land after they have died? • Might say can choose who gets, but only can give fee Might say can choose who gets, but only can give fee simple absolute.simple absolute.

• Maybe allow life estates & vested remainders but no Maybe allow life estates & vested remainders but no conditions on use.conditions on use.

BISCAYNE: Review Problems 4R + 4S

SUNRISE AT ADAMS KEY

4R: BiscayneRenee conveys “to Stacy for life, then to my heirs, but should

Stacy marry before she turns 35, to Marni.”

AMBIGUITIES/QUESTIONS?


Stacy marry before she turns 35, to Marni.”AMBIGUITIES/QUESTIONS

• Today or “At Common Law”?• R alive or dead?• Condition void?• M’s interest intended to cut off life estate?

Details in Review Problem Write-Up on Course Page


Stacy marry before she turns 35, to Marni.”

ONE (EASY) BRANCH OF DECISION TREE• Condition Void Pencil out M’s interest• R Alive As written, contingent remainder in R’s heirs (unascertainable) Plus Reversion in R

RESULT: • Stacy has Life Estate• Contingent Remainder in R’s Heira• Renee has Reversion

4R: BiscayneRenee conveys “to Stacy for life, then to my heirs, but should Stacy marry before

she turns 35, to Marni.”SECOND BRANCH OF DECISION TREE

• R Dead Remainder is vested in R’s heirs as defined by intestacy statute.• Today Interest in Marni is in fee simple (not life estate).• Condition valid; M’s interest intended to cut off life estate Both of the other

interests could be cut off by M.RESULT: • Stacy has Life Estate Subject to Executory Limitation• Renee’s [Ascertained] Heirs have Vested Remainder in FS Subj to Divestmt• Marni has a Shifting Executory Interest in Fee Simple

4S: BISCAYNE 1.1. Xaviera grants Brothelacre “to Betsy if it continues to be used as a Xaviera grants Brothelacre “to Betsy if it continues to be used as a

house of prostitution, but if not, my heirs can take it.”house of prostitution, but if not, my heirs can take it.”

2.2. Xaviera died survived by no issue or spouse, but by her mother, Xaviera died survived by no issue or spouse, but by her mother, Yvonne. She left a will giving all her property to her friend Phil.Yvonne. She left a will giving all her property to her friend Phil.

3.3. Betsy replaced the existing brothel with an ad agency.Betsy replaced the existing brothel with an ad agency.

• NOT AMBIGUITIES• Common Law v. Today (Ad Agency)• Who is X’s “heir”? Y not P

• AMBIGUITIES/Qs

4S: BISCAYNE

1.1. Xaviera grants Brothelacre “to Betsy if it continues to be used as a house of prostitution, Xaviera grants Brothelacre “to Betsy if it continues to be used as a house of prostitution, but if not, my heirs can take it.”but if not, my heirs can take it.”

2.2. Xaviera died survived by no issue or spouse, but by her mother, Yvonne. She left a will Xaviera died survived by no issue or spouse, but by her mother, Yvonne. She left a will giving all her property to her friend Phil.giving all her property to her friend Phil.

3.3. Betsy replaced the existing brothel with an ad agency.Betsy replaced the existing brothel with an ad agency.

AMBIGUITIES/Qs• Condition Valid?• Heirs take automatically v. must act?• Ad Agency Violate Condition

FURTHER ANALYSIS & BRANCHES OF DECISION TREE IN WRITE-UP OF REVIEW PROBLEMS

ARCHES: Problem 4U

DELICATE ARCHES

(4U) (Arches)R: “to C for his support and benefit so long as the property is not used for commercial purposes, then to my nephew J and his heirs if J reaches 35.” - C on land writes novels & does deals on phone.- C dies; J is not 35.

NOT AMBIGUITY- Common Law v. Today (Deals on the Phone)- Cf. Medical or Law School, which date to medieval Europe

AMBIGUITIES/Qs in GRANT ITSELF?AMBIGUITIES/Qs in GRANT ITSELF?

(4U) (Arches) R: “to C for his support and benefit so long as the property is not used for commercial purposes, then to my nephew J and his heirs if J reaches 35.” C on land writes novels & does deals on phone. C dies; J is not 35

AMBIGUITIES/QUESTIONS IN GRANT?• Life Estate or Fee?• When Does J’s Interest Take Effect?

AMBIGUITIES/QUESTIONS AFTERWARD?

(4U) (Shenandoah) R: “to C for his support and benefit so long as the property is not used for commercial purposes, then to my nephew J and his heirs if J reaches 35.” C on land writes novels & does deals on phone. C dies; J is not 35

AMBIGUITIES ARISING AFTER• Condition Violated by Writing/Deal-Making?• Destructibility Apply?

Details in Review Problem Write-Up on Course Page

(4U) (Shenandoah) R: “to C for his support and benefit so long as the property is not used for commercial purposes, then to my nephew J and his heirs if J reaches 35.” C on land writes novels & does deals on phone. C dies; J is not 35

BRANCHES OF DECISION TREELots of Variations in Sample Qs

LOGISTICS: Going Forward• INFO ON EFI TEST

• NCAA POOL

• CRITIQUES & CRITIQUE PROBS

• SAMPLE EXAM Qs

• PREP & LAST 4 WEEKS

CHAPTER 5: ADVERSE POSSESSION

THE PREMIERE EVENT

Adverse Possession: OverviewConnections to Rest of Course

• Type of Involuntary Transfer of Property Rights• Like Shack & JMB & Eminent Domain• Loss of Property Rights for Policy Reasons

• About Relationship of Property & Time• Like Chapters 3 and 4• Here: Losing Property Rights Via Passage

of Time

Adverse Possession: OverviewNature/Essence of Adverse

Possession (AP)• Arises from Statutes of Limitations (SoL)

• Length of State Statutes Varies (5-30 years)• If don’t act to stop trespasser quickly enough, can

forfeit right to do so

• Operates differently than other SoL• Running of SoL Doesn’t Completely Bar Recovery for

Original Owner (OO)• Must meet detailed requirements to invoke SoL• Generally Disfavored (e.g., NY & Fla need Clear &

Convincing Evid.)• BUT Result if OO loses is legal transfer of title

Adverse Possession: OverviewNature/Essence of Adverse

Possession (AP)Can Get Title by “Possessing” Otherwise Can Get Title by “Possessing” Otherwise

Unused Land Unused Land for Length of Statute of Limitationsfor Length of Statute of Limitations

•“Possession” v. Ownership: AP Doctrine largely about how much & what kind of possession is necessary to transfer ownership .)

•Several Elements: Requirements beyond passage of time basically to ensure that

• Adverse Possessor (APor) sufficiently possessing• Original Owner (OO) not really possessing

Adverse Possession: OverviewLawyering Focus

Working with Individual Elements of a Working with Individual Elements of a Cause of Action Cause of Action

•Need to Understand Role and Operation of Each Element

• “Elements” v. “Factors”

• Because each Element is required, assume not redundant

• AP Elements:

• Mostly Similar from State to State

• Often Mix of Statutory Language & Common Law Development

Adverse Possession: OverviewLawyering Focus

Working with Individual Elements of a Cause Working with Individual Elements of a Cause of Action of Action

•Need to Understand Role and Operation of Each Element

•Attys Use Cases Initially to Determine Meaning of Elements

• Read Multiple Relevant Cases to Flesh Out Each Individual Element

• Generally Don’t Examine Whole Cases Until Late in Process

•We’ll Approach Materials in This Unit This Way• You’ll read through all cases initially to get sense of

(by next Thursday)• In class, we’ll work on one element at a time,

referencing all 5 cases as relevant (One panel per element).

Adverse Possession: OverviewLawyering Focus: Individual Elements

Our Sequence1.Actual Use (Redwood)2.Open & Notorious (Shenandoah)3.Exclusive (Biscayne)4.Continuous (Arches)5.Adverse/Hostile (Yellowstone)

Our Coverage for Each

•Focus/Relevant Evidence•Purpose•Easy Cases/Hard Cases•Judicial Opinions•Review Problems for 1-4

Cases: Brief Introduction with Memory Aids

Lutz (NY 1952)Squatters’ Garden Thrives

During the Great Depression

Billie Holiday Sings


Ray (NY 1996)Creepy Summers in Empty Resort

barry manilow, summer of ‘78


E. 13th Street (NY. Supr. 1996)Squatters’ Ensemble Tries to Act

Together

RENT (Original Cast Album)


Bell (Wash. 1989)Houseboat Tied to Land with

Woodshed, Sauna & Moving Outhouse

The B-52s, COSMiC The B-52s, COSMiC ThiNGThiNG

featuringfeaturing “Love Shack” “Love Shack”


Vezey (Alaska 2001)The Present Depends on the Past

JOHN BONGIOVI, JOHN BONGIOVI, THE POWER STATION YEARS 1980-1983THE POWER STATION YEARS 1980-1983featuringfeaturing “Who Said It Would Last Forever”


Howard v. Kunto (Wash. App. 1971)

Everyone is One Lot Over

from Their Deed

We’re Not Reading

but I’ll Use the Facts

as an Example/Hypothetical

Adverse Possession: OverviewCases: Three Common Fact Patterns

1.Mistaken Owner w Good Faith Belief in Title • ~Ray; Vezey; Howard

2.Boundary Dispute between Neighbors • Miami Herald Article

3.Outsider “Squatting” • Lutz; E. 13th St.; Bell

Adverse Possession: Justifications

DQ5.01: AP as SoL (Yellowstone)

Purposes Behind SoL Generally?(E.g., Torts/Contracts)



Purposes Behind SoL Generally (E.g., Torts/Contracts)•Potential Ds: Repose•Legal System: Evidentiary Problems•Potential Ps: Encourage Rabbits; Punish Turtles (Don’t “Sleep” on Your Rights)

Apply to Actions for Possession of Land?



Purposes Behind SoL: Adverse Possession•Potential Ds: Repose (Quiet Titles; Protect Investment)•Legal System: Evidentiary Problems (”Prescriptive Rights”)•Potential Ps: Don’t “Sleep” on Your Rights

• Discourage Leaving Land Unmonitored (Drugs, Dead Bodies, Al-Qaeda)

Other Purposes for AP?


Purposes Behind Adverse Possession More Broadly

• Potential Ds: Adverse Possessors (APors)• Repose (Quiet Titles)• Protect Investment in Land

• Reward/Encourage Beneficial Uses• Protect Psychic Connection (Holmes)

• Legal System: Evidentiary Problems • Potential Ps (OOs): Don’t “Sleep” on Your Rights

• Discourage Leaving Land Unmonitored (Drugs, Dead Bodies, Al-Qaeda)

• Encourage/Reward OOs who send clear timely notice of interest

Documents

PROPERTY A SLIDES 3-20-15. Friday March 20 Music: Billie Holiday Billie Holiday Sings (1952) TEST IS ESSENTIALLY DONE Some completely new problems Some