1. PROPERTY D SLIDES 3-4-16 National Grammar Day The past, the present, and the future walked into a bar. It was tense.

2. Friday March 4 Music: Bach, Unaccompanied Cello Suites Yo-Yo Ma, Cello (Released 2006) ALMOST SPRING BREAK

3. to Veronica for life Badlands: (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, Because Condition Not Met We’ll Come Back to This After We Introduce Executory Interests

4. PROPERTY D: 3/4 THE “READY BETTY” JOKE

5. DEFEASIBLE FEES

6. Dotted Line indicates Conditional Interest Open Circle indicates that it would cut off present interest (usually at an unspecified time) as opposed to waiting for it to be complete.

7. DEFEASIBLE FEES: Two Relevant Distinctions 1.Automatic termination v. Needs action by future interest holder GrantorGrantee 2.Who holds future interest?: Grantor v. Grantee

8. DEFEASIBLE FEES: Restatement Terms Fee Simple Determinable Fee Simple on Condition Subsequent Fee Simple on Executory Limitation

9. DEFEASIBLE FEES: Fee Simple Determinable OPERATION: Self-Executing (Automatically Terminates Fee Simple When Condition Occurs)

10. DEFEASIBLE FEES: Fee Simple Determinable OPERATION: Self-Executing KEY LANGUAGE: “So long as”, “While”, “Until” (References to Time)

11. DEFEASIBLE FEES: Fee Simple Determinable OPERATION: Self-Executing KEY LANGUAGE: “So long as”, “While”, “Until” FUTURE INTEREST: “Possibility of Reverter” (in GRANTOR) FUTURE INTEREST: “Possibility of Reverter” (in GRANTOR)

12. DEFEASIBLE FEES: Fee Simple Determinable: Example To Estelle and her heirs so long as asparagus is not grown on the property.

13. DEFEASIBLE FEES: Fee Simple on Condition Subsequent OPERATION: Grantor (or Successor) Must Act to Terminate Fee Simple

14. DEFEASIBLE FEES: Fee Simple on Condition Subsequent OPERATION: Grantor Must Act KEY LANGUAGE: “ But if”, “provided that if”, “on condition that if” PLUS “O may [re]enter and [re]claim the land”

15. DEFEASIBLE FEES: Fee Simple on Condition Subsequent OPERATION: Grantor Must Act KEY LANGUAGE: “But if”, “provided that if”, “on condition that if” PLUS “O may [re]enter and [re]claim the land.” FUTURE INTEREST: “Right of [Re]Entry” (in GRANTOR) FUTURE INTEREST: “Right of [Re]Entry” (in GRANTOR)

16. DEFEASIBLE FEES: Fee Simple on Condition Subsequent: Example EXAMPLE: To Estelle and her heirs, but if asparagus is grown on the property, I can reenter and claim the land

17. DEFEASIBLE FEES: Fee Simple on Executory Limitation OPERATION: Either self-executing or grantee has to act.

18. DEFEASIBLE FEES: Fee Simple on Executory Limitation OPERATION: Either self-executing or grantee has to act. KEY LANGUAGE: Creates interest in 3d party if condition violated

19. DEFEASIBLE FEES: Fee Simple on Executory Limitation OPERATION: Either self-executing or grantee has to act. KEY LANGUAGE: Creates interest in 3d party if condition violated Executory Interest FUTURE INTEREST: Executory Interest (in 3d party grantee)

20. DEFEASIBLE FEES: Fee Simple on Executory Limitation: Examples To Estelle and her heirs so long as asparagus is not grown on the property, otherwise to Bob.

21. DEFEASIBLE FEES: Fee Simple on Executory Limitation: Examples To Estelle and her heirs so long as asparagus is not grown on the property, otherwise to Bob To Estelle and her heirs, but if asparagus is grown on the property, Bob can enter and claim the land.

22. DEFEASIBLE FEES: Restatement Terms (What We Use) FEE SIMPLE DETERMINABLE (to grantor; automatic) F.S. ON CONDITION SUBSEQUENT (to grantor; must act) F.S. ON EXECUTORY LIMITATION (to grantee; either way)

23. (Accessorizing) Defeasible Fees & Matching Future Interests (Accessorizing) FEE SIMPLE DETERMINABLE & Possibility of Reverter F.S. ON CONDITION SUBSEQ’T & Right of Re[Entry] F.S. ON EXECUTORY LIMITATION & Executory Interest

24. TERMINOLOGY: ME v. WORKBOOK Defeasible fee in the form of a Fee Simple Determinable BUT with the future interest in third party: Me (& Restatement): “Fee Simple on Executory Limitation” Workbook: “Fee Simple Determinable” (See Workbook p.72 fn19)

25. TERMINOLOGY: ME v. TEXTBOOK Textbook says Fee Simple on Executory Limitation terminates automatically (P533) For our purposes, assume that sometimes, a Fee Simple on Executory Limitation can operate like a Fee Simple on Condition Subsequent “To Sonny & his heirs, but if Sonny ever runs for Congress, Cher may enter and take the land.”

26. DEFEASIBLE FEES: Transfer of Fee: Effect 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.

27. DEFEASIBLE FEES: Transfer of Fee: Effect 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.

28. DEFEASIBLE FEES: Transfer of Fee: Effect 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. Fairly minor restriction if J is not the owner. Once J is dead, condition can never be violated, so subsequent owner would have fee simple absolute.

29. Defeasible Finite Estates: Defeasible Finite Estates: Examples Term of Years on Condition Subsequent: “To Josh for 20 years, but if he ever passes the bar exam, my heirs can enter & retake.” Life Estate on Executory Limitation “To Dan for life, but to Mike & his heirs if Mike ever passes the bar exam.”

30. BADLANDS: Problem 4H NORBECK PASS

31. Badlands: (4H): Thelma conveys “To Louise for 99 Years if Louise so long live." Louise?

32. Badlands: (4H): Thelma conveys “To Louise for 99 Years if Louise so long live." Louise: Term of years determinable. Most likely to operate as a life estate, but L might live 99 more years. (Yogurt in Georgia) Can be used where there is some legal or tax reason to avoid life estate.

33. Badlands: (4H): Thelma conveys “To Louise for 99 Years if Louise so long live." Louise: Term of years determinable. What other interests are there?

34. Badlands: (4H): Thelma conveys “To Louise for 99 Years if Louise so long live." Louise: Term of years determinable. Thelma : Possibility of Reverter (rights if L dies before 99 years) PLUS Reversion (rights after 99 years if L alive) =

35. Badlands: (4H): Thelma conveys “To Louise for 99 Years if Louise so long live." Louise: Term of years determinable. Thelma: Possibility of Reverter plus Reversion = Reversion (Merger)

36. Doctrine of Merger If one person becomes the owner of two contiguous interests, the interests will

37. Doctrine of Merger If one person becomes the owner of two contiguous interests, the interests will Example: Erick has a life estate. Amanda holds the reversion that follows it. If Erick purchases the reversion from Amanda, it merges with his life estate and he will have a fee simple absolute.

38. Doctrine of Merger If one person becomes the owner of two contiguous interests, the interests will Life Estate (Erick) + Reversion (Amanda  Erick) Fee Simple Absolute (Erick)

39. Mahrenholz v. County Board “For School [of] Porpoises”

40. EVERGLADES: DQ4.05 EVERGLADES: DQ4.05 Mahrenholz Major Events EGRET IN MANGROVE SWAMP

41. EVERGLADES DQ4.05: Mahrenholz Major Events 3/51: Grant to SD#1 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

42. Fee Simple Determinable Poss. of Rev. EVERGLADES DQ4.05: Mahrenholz Major Events Fee Simple Determinable & Poss. of Rev. Hs=PR 3/51: Grant to SD#1  SD=FSD + Hs=PR 2/69: Mrs.H dies intestate; HH sole heir  ?

43. Fee Simple Determinable Poss. of Rev. EVERGLADES DQ4.05: Mahrenholz Major Events Fee Simple Determinable & Poss. of Rev. 2/69: Mrs.H dies intestate; HH sole heir HH=PR  SD=FSD + HH=PR 5/73: Property used for storage only 2 Possibilities: Violation or Not  ?

44. Fee Simple Determinable Poss. of Rev. HH=PR EVERGLADES DQ4.05: Mahrenholz Major Events Fee Simple Determinable & Poss. of Rev. SD=FSD + HH=PR 5/73: Property used for storage only GRANT VIOLATED HH-FEE SIMPLE ABS. 5/77 HH  Ms NO VIOLATION HH-PR SD-FSD HH-PR 5/77 HH  Ms

45. Fee Simple Determinable Poss. of Rev. EVERGLADES DQ4.05: Mahrenholz Major Events Fee Simple Determinable & Poss. of Rev. 5/77: HH  Mahrenholzes GRANT VIOLATED HH-FEE SIMPLE ABS.  Ms-FEE SIMPLE ABSOLUTE 9/77 HH release to SD? NO VIOLATION HH-PR HH-PR SD-FSD HH-PR  SD-FSD HH-PR Can’t Transfer PR in Illinois Except to Holder of Fee; Only Passes Through Intestacy 9/77 HH release to SD?

46. Fee Simple Determinable Poss. of Rev. EVERGLADES DQ4.05: Mahrenholz Major Events Fee Simple Determinable & Poss. of Rev. 9/77: HH Release to SD GRANT VIOLATED Ms-FEE SIMPLE ABS. HH has Nothing, So Release Ineffective Ms-FEE SIMPLE ABS. NO VIOLATION HH-PR SD-FSD HH-PR Release to Holder of Fee Allowed; School District’s Interests Merge SD-FEE SIMPLE ABS.

47. Fee Simple on Condition Subsequent Right of Entry EVERGLADES DQ4.05: Mahrenholz Major Events Fee Simple on Condition Subsequent & Right of Entry Hs=RE 3/51: Grant to SD#1  SD=FSCS + Hs=RE 2/69: Mrs.H dies intestate; HH sole heir  ?

48. Fee Simple on C.S. Rt. Of Entry EVERGLADES DQ4.05: Mahrenholz Major Events Fee Simple on C.S. & Rt. Of Entry 2/69: Mrs.H dies intestate; HH sole heir HH=RE  SD=FSCS + HH=RE 5/73: Property used for storage only 2 Possibilities: Violation or Not  ?

49. Fee Simple on C.S. Rt. Of Entry HH=RE EVERGLADES DQ4.05: Mahrenholz Major Events Fee Simple on C.S. & Rt. Of Entry SD=FSCS + HH=RE 5/73: Property used for storage only GRANT VIOLATED HH-RE SD-FSCS HH-RE Right of Entry Only Can Become Fee if Holder Acts: HH Didn’t 5/77 HH  Ms NO VIOLATION HH-RE SD-FSCS HH-RE 5/77 HH  Ms

50. Fee Simple on C.S. Rt. Of Entry HH=RE EVERGLADES DQ4.05: Mahrenholz Major Events Fee Simple on C.S. & Rt. Of Entry SD=FSCS + HH=RE 5/77: HH  Mahrenholzes GRANT VIOLATED HH-RE SD-FSCS HH-RE Can’t Transfer RE in Illinois Except to Holder of Fee, so No Change 9/77 HH release to SD? NO VIOLATION HH-RE SD-FSCS HH-RE Can’t Transfer RE in Illinois Except to Holder of Fee, so No Change 9/77 HH release to SD?

51. Fee Simple on C.S. Rt. Of Entry HH=RE EVERGLADES DQ4.05: Mahrenholz Major Events Fee Simple on C.S. & Rt. Of Entry SD=FSCS + HH=RE 9/77: HH Release to SD GRANT VIOLATED HH-RE SD-FSCS HH-RE Release to Holder of Fee Allowed; School District’s Interests Merge SD-FEE SIMPLE ABS. NO VIOLATION HH-RE SD-FSCS HH-RE Release to Holder of Fee Allowed; School District’s Interests Merge SD-FEE SIMPLE ABS.

52. Mahrenholz: Summary of Possibilities

53. EVERGLADES: FSD from FSCS EVERGLADES: Mahrenholz & DQs 4.06- 4.08: Distinguishing FSD from FSCS EGRET IN MANGROVE SWAMP

54. FSD from FSCS EVERGLADES: Mahrenholz & DQ4.06 Distinguishing FSD from FSCS The court says: “The type of interest held governs the mode of reinvestment with title if reinvestment is to occur.” (Top para. S80) What does the court mean by “reinvestment”?

55. FSD from FSCS EVERGLADES: Mahrenholz & DQ4.07 Distinguishing FSD from FSCS made upon the express 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 Northwestern University.’ “In Northwestern Univ. …, a conveyance was ‘made upon the express 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 Northwestern University.’ This language cannot be interpreted as creating anything but a fee simple subject to a condition subsequent…” (S82, 3d full para.) WHY NOT?

56. FSD from FSCS EVERGLADES: Mahrenholz & DQ4.07 Distinguishing FSD from FSCS Northwestern Univ.: Grant to build hospital building on lot conveyed. If FSD: Very difficult to identify precise moment when condition is violated and grantee loses fee Interpret as FSCS Grantor can exercise discretion about when grantee has sufficiently shown non-compliance. Court doesn’t have to do line-drawing about when a building isn’t built.

57. FSD from FSCS EVERGLADES: Mahrenholz & DQ4.08 Distinguishing FSD from FSCS In its discussion of McElvain, the court says that “as an action in ejectment was brought…, the difference between a fee simple determinable and a fee simple subject to a condition subsequent would have no practical effect….” (S83) Why does it believe this?

58. FSD from FSCS (3d Para. S80) Mahrenholz Distinguishing FSD from FSCS (3d Para. S80) Use FSD to give property “for so long as it is needed for the purposes for which it is given and no longer” (a “limited grant”) Use a FSCS “to compel compliance with a condition by penalty of a forfeiture.” (an “absolute grant to which a condition is appended”) Pretty fine distinction Court is describing idealized use of the forms Can use to argue a particular grant is FSD or FSCS

59. FSD from FSCS (S80) Mahrenholz Distinguishing FSD from FSCS (S80) Use 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. [Purpose presumably is to provide home and/or income for widow; if she takes a new man, she is his problem.] To Zebulon University, so long as it is used as a research laboratory.

60. FSD from FSCS (S80) Mahrenholz Distinguishing FSD from FSCS (S80) 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 …

61. SEQUOIA: DQs 4.09-4.10 SEQUOIAS

62. FSD from FSCS Sequoia: Mahrenholz & DQ4.09 Distinguishing FSD from FSCS "to be used for school purpose only; otherwise to revert to Grantors herein.” Arguments for FSD? Arguments for FSD?

63. FSD from FSCS Sequoia: 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? Arguments for FSCS?

64. FSD from FSCS Sequoia: 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

65. FSD from FSCS: Sequoia: Mahrenholz & DQ4.10 Distinguishing FSD from FSCS: Possible Consequences of the Distinction: 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 (See Lasater @ P532) Waiver/Estoppel by future interest holder Only possible if FSCS

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

67. 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

68. SEQUOIA: DQ4.11 Violation of School Purposes Condition? SEQUOIAS

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

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

71. Sequoia: 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)

72. Sequoia: Mahrenholz & DQ4.11 Meaning of “School Purpose” IS STORAGE A “SCHOOL PURPOSE”? Useful Factual Research includes: Use of Space: Relevant Qs/Investigation? Grantor’s Intent

73. Sequoia: 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: Relevant Qs/Investigation?

74. Sequoia: 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 Still Alive Witnesses re Grantor Beliefs

75. 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.

76. 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.