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VISITORS FROM SECTION J:SEE ME FOR AVAILABLE SEATSBach, Concertos for Two Harpsichords

(1732-36)Performed 1980

THE ENGLISH CONCERT Trevor Pinnock, Conductor, Harpsichord

Kenneth Gilbert, Harpsichord

Mahrenholz v. County Board

DQ 97 RECAP/COMPLETION

Mahrenholz v. County Board MAJOR EVENTS: FSD +PR

GRANT VIOLATED

Ms-FS Absolute

9/77 HH release to SD?

Ms - FS Absolute

NO VIOLATION

SD-FSD HH-PR


SD - FS Absolute

Mahrenholz v. County Board MAJOR EVENTS: FSCS +RE

• 3/51: Grant to SD#1: SD-FSCS Hs-RE

• 2/69: Mrs.H dies intestate; HH sole heir?

• 5/73: Property used for storage only

• 5/77: HH conveys interest to Ms

• 9/77: HH releases interest to SD#1


• 2/69: Mrs.H dies intestate; HH sole heir SD-FSCS HH-RE

• 5/73: Property used for storage only?(2 Possibilities: Violation or Not)

• 5/77: HH conveys interest to Ms

• 9/77: HH releases interest to SD#1


2/69: SD-FSCS HH-REGRANT VIOLATED

SD-FSCS HH-RE5/77 HH --> Ms?

NO VIOLATION

SD-FSCS HH-RE5/77 HH --> Ms?


GRANT VIOLATED

SD-FSCS HH-RE

5/77 HH --> Ms?

SD-FSCS HH-RE


NO VIOLATION

SD-FSCS HH-RE 5/77 HH --> Ms?

SD-FSCS HH-RE



GRANT VIOLATED

SD-FSCS HH-RE


SD - FS Absolute

NO VIOLATION

SD-FSCS HH-RE


SD - FS Absolute

Mahrenholz: Summary of PossibilitiesFSD/PR FSCS/RE

Violation Mahrenholzes School District

No Violation School District School District


DQs 98-101: Distinguishing Fee Simple Determinable Fee Simple Determinable from

Fee Simple on Condition Fee Simple on Condition Subsequent (Eagles)Subsequent (Eagles)


The court says (Top para. P583) : “The type of interest held governs the mode of

reinvestment with title if reinvestment is to occur.”

DQ98. What does the court mean by

“reinvestment” ?

DQ99: (P584 (3d full para.) “In Northwestern Univ. …, a conveyance was ‘made upon the ex-press condition that… Wesley Hospital… shall erect a hospital building on said lot … and that on the failure of … Wesley Hospital to carry out these conditions the title shall revert to North-western University.’ This language cannot be interpreted as creating anything but a fee simple subject to a condition subsequent…” WHY?

DQ100: In a deleted passage in its discuss-ion of McElvain, the court says that “as an action in ejectment was brought…, the dif-ference between a fee simple determinable and a fee simple subject to a condition sub-sequent would have no practical effect ….”

Why does it believe this?

Mahrenholz P583: “[A] grantor should give a FSD if he intends to give property for so long as it is needed for the purposes for which it is given and no longer, but he should employ a FSCS if he intends to compel compliance with a condition by penalty of a forfeiture.” - Pretty fine distinction- Court is describing idealized use of the forms- Can use to argue a grant is FSD or FSCS

Use a FSD “to give property for so long as it is needed for the purposes for

which it is given and no longer”• To Xavier, so long as he operates his dental practice

on the premises.• To Yolanda, so long as she doesn’t remarry.• To Zebulon University, so long as it is used as a

research laboratory.

Use a FSCS “to compel compliance with a condition by penalty of a forfeiture.”

• To Xavier, but if the property is ever used for commercial purposes …

• To Yolanda, but if alcohol is ever used on the premises …

• To Zebulon University for construction of a science building, but if the building is not completed within 5 years or if it ever ceases to be used for educational purposes …

Mahrenholz v. County BoardTo the Trustees of School District No.

1:

"to be used for school purpose only; otherwise to revert to

Grantors herein.”

DQ101: Fee Simple Determinable DQ101: Fee Simple Determinable or

Fee Simple on Condition Fee Simple on Condition Subsequent?Subsequent?

"to be used for school purpose only; otherwise to revert to Grantors

herein.”: FSD• “only” suggests automatic

• condition in 1st clause• “to revert” (v. “may re-enter”) suggests

automatic• similar grants held FSD

"to be used for school purpose only; otherwise to revert to Grantors

herein.” FSCS:• 2 clauses usually used for FSCS

• No time words

• Most states presume FSCS

Mahrenholz v. County Board DQ102: Under what

circumstances might the distinction between a fee

simple determinable and a fee simple on condition subsequent

be significant?

FSD v. FSCS: Consequences

• Transferability after breach (Mahrenholz)


• Transferability after breach

• Adverse Possession

FSD v. FSCS: Consequences• Transferability after breach


• Income from land after breach (to grantor if FSD)


• Transferability after breach


• Income from land after breach

• Waiver/Estoppel by future interest holder (possible if FSCS)


FALCONS: DQs 102-104

(not 105)

DQ102: Why do so many grants fail to

indicate clearly which interest is intended?

DQ103: IS STORAGE A “SCHOOL PURPOSE”?

PARTIES’ LIKELY ARGUMENTS?

DQ103:IS STORAGE A “SCHOOL PURPOSE”?

What legal research could you do to help resolve this

question?


What legal research could you do to help resolve this

question? CASES ON “SCHOOL PURPOSE”

CASES ON “CHURCH PURPOSE” ETC.


What factual research could you do to help resolve this

question? (What facts matter?)

IS STORAGE A “SCHOOL PURPOSE”? What facts matter?: GRANTOR’S

INTENT• CHECK GRANT OR RELATED DOX

• WITNESSES TO TRANSACTION

• ASK GRANTOR IF ALIVE

• WITNESSES RE GRANTOR BELIEFS

DQ104. Why should we allow grantors to have any

control at all of what happens to land after they

have died? Come back to later w

Shapira

CHECK COURSE PAGE FOR LOGISTICAL INFO:

• CHAPTER 7:– Info on Exam– 2007 Exams– Schedule for Additional Postings

• Written Assignments– E-Mail Qs/Responses re Assignments #4 & #5– Prior Years’ Comments & Best Answers re #2 & #3– Info on Picking Up/Getting Scores for Submitted

Assignments

Back to OWLS:

(7H): Thelma conveys "to Louise for 99 years if Louise so long live."

Louise?


Louise: Term of years determinable.

What other interests are there?


Louise: Term of years determinable.

Thelma: Possibility of Reverter +

Reversion =

Reversion (Merger)

DOCTRINE OF MERGER

If one person becomes the owner of two contiguous interests, the

interests will “merge”

DOCTRINE OF MERGERIf one person becomes the owner of two contiguous

interests, the interests will merge.

Example: Eric has a life estate. Vanessa holds the reversion that follows it. If Eric purchases the

reversion from Vanessa, it merges with his life estate and he will have a fee simple absolute.

DOCTRINE OF MERGERIf one person becomes the owner of two

contiguous interests, the interests will merge.

PROBLEM 7IFeaturing Falcons

(7I) 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.

PROBLEM 7I: MULTI-STEP ANALYSIS

• FSD or FSCS?

• CONDITION VIOLATED?

• EFFECT OF VIOLATION?

• ADVICE RE PURCHASE

PROBLEM I: MULTI-STEP ANALYSIS

• FSD or FSCS?• CONDITION VIOLATED?



(I): O “To Julia 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, Orrin retains a right to re-enter the premises."

Does Orrin’s interest vest automatically (FSD) or does

he have to act (FSCS)?

FSD or FSCS?

• “So long as” & condition built into 1st clause suggest FSD

• Moment of violation clear, so can be FSD

•“Right to re-enter” & 2 clauses suggest FSCS

• Most states: presumption favoring FSCS

•Mahrenholz: More like punishment than purpose


• FSD or FSCS?

• CONDITION VIOLATED?• EFFECT OF VIOLATION?


(7I): O “To J … so long as … premises are not used for sale of beer, wine, or liquor, and if beer, wine, or liquor is sold on ... premises O retains a right to re-enter….” DOES IT VIOLATE GRANT IF J’s restaurant:(i) serves several dishes cooked with wine or flamed with brandy? (ii) at Sunday brunch offers complimentary glass of champagne?


• FSD or FSCS?


• EFFECT OF VIOLATION?• ADVICE RE PURCHASE

IF VIOLATION, RESULT? If 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

IF VIOLATION, RESULT?

If O has Right of Entry (RE)?

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.


• FSD or FSCS?




Note that if J sells a defeasible fee to D, D takes subject to any condition not made irrelevant by the sale.

• 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.

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.

11 years after its opening Donald wants to buy

restaurant and add a bar. Advise Donald.

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 K with O)

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.

Pre-1536 Limitations on Future Interests in Grantees

• 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

EXECUTORY INTERESTS

• Future interest in grantee

• Cuts off prior vested interest rather than waiting for it to expire naturally.

• Shifting Executory Interest cuts off another grantee

EXECUTORY INTERESTS• Future interest in grantee• Cuts off prior vested interest rather than

waiting for it to expire naturally.• Shifting Executory Interest cuts off another

grantee

• Springing Executory Interest cuts off grantor

EXECUTORY INTERESTS(EXAMPLES)

Shifting Executory Interest:

To Justin & his heirs so long as no tobacco is grown on the land, otherwise to Eric and his heirs.

EXECUTORY INTERESTS(EXAMPLES)

Springing Executory Interest:

• To Crystal if she passes the California bar exam.

(7F) 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 happens if Veronica dies when Betty is 17?


What happens if Veronica dies when Betty is 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

If contingency not met when prior estate ends, contingent

remainder is destroyeddestroyed

DOCTRINE OF DESTRUCTABILITY OF CONTINGENT REMAINDERS

Overruled by statute or caselaw in every American jurisdiction except Florida


What happens if Veronica dies when Betty is 17? (Modern View): If contingency not met when prior estate ends, we wait to see if it is met later.

Betty’s remainder becomes an executory interest.

Reggie has fee simple on executory limitation


Veronica dies; Betty is 17 (Modern View)

DOCTRINE OF DESTRUCTABILITY OF CONTINGENT REMAINDERS(Second Common Application)

Where there is a life estate, a contingent remainder, and a reversion, and the life estate

and reversion merge into a fee simple, the contingent remainder is destroyed


Veronica buys R’s reversion (Destructability)


Veronica buys R’s reversion (Modern View)

PROBLEM 7J-7LFeaturing Hawks

(7J): Mary "to Rhoda for life, then to Ted if Ted gives Mary a proper

funeral."

Rhoda?


funeral."

Rhoda: Life Estate

Ted?

(7J):Mary "to Rhoda for life, then to Ted if Ted gives Mary a proper

funeral."

Rhoda: Life Estate

Ted?: Contingent Remainder (in f.s.)

Other?


funeral." Rhoda: Life Estate

Ted?: Contingent Remainder (in f.s.)

Mary: Reversion

(7J): Mary "to Rhoda for life, then to Ted if Ted gives Rhoda a

proper funeral."

Rhoda: Life Estate

What difference does change make?

(7J): Mary "to Rhoda for life, then to Ted if Ted

gives Rhoda a proper funeral."

Ted can’t possibly give Rhoda a “proper” funeral by the time Rhoda dies. Thus, Ted’s interest cannot be a remainder; there will be a gap between the end of R’s life estate and Ted’s interest. So Ted has …?

(7J): Mary "to Rhoda for life, then to Ted if Ted

gives Rhoda a proper funeral."

Rhoda: Life Estate

Mary: Reversion

Ted: Springing Executory Interest (in f.s.)

EXAM TIP: USE COMMON SENSE!!

• Can’t give a “proper” funeral to a person until after death

EXAM TIP: USE COMMON SENSE!!

• If an interest is conveyed in a will, the grantor is dead.

Vested Remainder Subject to Divestment

=Vested Remainder Subject to Complete Defeasance (P596)

CONTINGENT REMAINDER v. VESTED REMAINDER SUBJECT TO DIVESTMENT

(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.

(2) To A for life, then to B & her heirs, but if B dies before 21, then to C & his heirs.

CONTINGENT REMAINDER v. VESTED REMAINDER SUBJECT TO DIVESTMENT

(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.


A alive; B dies at 17: (1+2) B gets 0; C gets fee simple at A’s death

CONTINGENT REMAINDER v. VESTED REMAINDER SUBJECT TO DIVESTMENT(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.


A alive; B turns 21: (1+2) B has vested remainder; C’s interest fails

CONTINGENT REMAINDER v. VESTED REMAINDER SUBJECT TO DIVESTMENT(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.


A dies; B is 17: (1) Grantor has fee simple on executory limitation; B & C have springing executory interests.

(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.


A dies; B is 17: (1) Grantor has fee simple on executory limitation; B & C have springing executory interests. (2) B has fee simple on executory limitation; C has shifting executory interest.

VESTED REMAINDER SUBJECT TO DIVESTMENT v. VESTED REMAINDER IN FEE

SIMPLE ON EXECUTORY LIMITATION

To A for life, then to B & her heirs, but if B dies before turning 21, then to C & his heirs.

Condition can occur before B obtains possession.

VESTED REMAINDER SUBJECT TO DIVESTMENT v. VESTED REMAINDER IN FEE

SIMPLE ON EXECUTORY LIMITATION

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

obtains possession)

COMMON MISTAKESCOMMON MISTAKES

•Contingent Remainder Subject to Open

•Contingent Remainder Subject to Divestment

•Executory Interest Subject to Divestment

COMMON MISTAKESCOMMON MISTAKES

Contingent Remainder Subject to Open

Contingent Rem. Subject to Divestment

Executory Interest Subject to Divestment

(7K): “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?

(7K): “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?

(7K): “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 Remainder (in f.s.) subject to divestment

Elaine?

(7K): “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 Remainder (in f.s.) subject to divestment

Elaine: Shifting executory interest (in f.s.)

(7L): 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?


and her heirs."

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

Tweety’s Children?


and her heirs."


Tweety’s Children: Contingent remainders (in f.s.) (must survive Tweety)

Peggy?

ALTERNATIVE CONTINGENT REMAINDERS

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

other.


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

Here, only two possibilities: either (1) Tweety will be survived by children (who would then take) or (2) he won’t (Peggy takes)


and her heirs."


Tweety’s Children: Contingent remainders (in f.s.) (must survive Tweety)

Peggy: Alternative contingent rem. (in f.s.)

Other?

(7L): 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 remainders (in f.s.) Peggy: Alternative contingent rem. (in f.s.)

Daffy: Reversion (even when alternate contingent remainders)


and her heirs."

Tweety: Life Estate

Heckle/Jeckle: Contingent remainders (in f.s.)

Peggy: Alternative contingent rem. (in f.s.)

Daffy: Reversion

PROBLEMS 7M-7N

Featuring The Owls

(7M): 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?



Billy: Life Estate

Billy’s children?



Billy: Life EstateBilly’s children? Contingent remainder (in f.s.)

(unborn)Jo?


Two contingent remainders for which the event that causes each one to vest will

destroy the other.



When does contingent remainder in children vest?

(7M): 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 children vests when a child is born.

When does contingent remainder in Jo vest?



Contingent remainder in children vests when a child 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?



Billy: Life Estate

Billy’s children: Contingent remainder (in f.s.)

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

Anything else?



Billy: Life Estate

Billy’s children: Contingent remainder (in f.s.)

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

Amanda: Reversion

(7M): 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."

B has child, Sydney. Effect?

Billy: Life Estate

Sydney?


is not survived by any children, then to Jo and her heirs." B has child, Sydney.

Billy: Life Estate

Sydney: Vested Remainder (in f.s.), subject to open, subject to divestment. (Contingent remainder vests)

Jo?



Billy: Life Estate

Sydney: Vested Remainder (in f.s.), subject to open, subject to divestment.

Jo: Shifting Executory Interest (in f.s.)

Amanda?



Billy: Life Estate

Sydney: Vested Remainder (in f.s.), subject to open, subject to divestment.

Jo: Shifting Executory Interest (in f.s.)

Amanda: Nothing (reversion divested)

(7N): Clark “to Jimmy for life, then to Lois and her heirs, but if Jimmy is survived at his death by any children, then to such surviving children and

their heirs. Jimmy has children, Perry & Della.

Jimmy?



Jimmy : Life Estate

Lois?



Jimmy : Life Estate

Lois: Vested remainder (in f.s.) subj. to divestment

Perry/Della?



Jimmy : Life EstateLois: Vested remainder (in f.s.) subj. to divestmentPerry/Della: Shifting executory interest (in f.s.)Clark?



Jimmy : Life EstateLois: Vested remainder (in f.s.) subj. to divestmentPerry/Della: Shifting executory interest (in f.s.)Clark? Nothing

(7L) (7M) (7N) TRYING TO DO SAME THINGS:

(1) To A for life(2) If A has any surviving children, they

should take(3) If no surviving children, to B

BUT 3 DIFFERENT SETS OF INTERESTS CREATED

Documents

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