3-7-17 National Pancake Day PROPERTY A SLIDES 3-7-17 National Pancake Day

Tuesday March 7 Music to Accompany Mahrenholz Isaac Stern, 60th Anniversary Celebration (1981) New York Philharmonic Orchestra; Violins: Isaac Stern, Itzhak Perlman, Pinchas Zucherman 1982 Grammy Award for Best Classical Performance (Soloists with Orchestra)

White v. Brown (S71-75) A Few Clarifying Points On Q of Life Estate v. Fee Simple, Grant is Truly Ambiguous No Explicit Language Either Way Legal Rules of Construction Point Both Ways You Could Agree with Hammond Position: Life Estate Seems to Fit Total Language of Grant Better BUT Majority Not Rewriting/Modifying Grant, but Relying on Strength of Presumptions of F.S./Transfer of All

White v. Brown (S71-75) A Few Clarifying Points On Q of Life Estate v. Fee Simple, Grant is Truly Ambiguous Maj. Relies on Strength of Presumptions of F.S./Transfer of All Cases cited find F.S. Despite Stronger Life Estate Language Green: to husband “to be used by him for his support and comfort during his life” Williams: to children “for and during their natural lives” BUT As Dissent points out, these cases did not include no-sale language and Williams had other language suggesting children got more than just life estate

White v. Brown (S71-75) A Few Clarifying Points On Q of Life Estate v. Fee Simple, Grant is Truly Ambiguous Maj. Relies on Strength of Presumptions of F.S./Transfer of All Remember in the end, although dissent’s technical arguments may seem stronger, majority allows $$ from sale to support Evelyn (who cannot live in the house) so it may come closer to Jessie’s real intent. QUESTIONS?

Olympic: Problems 3C-3D EEL GLACIER

Olympic: (3C) Elmer “to Sylvester for life, then to Bugs and his heirs

Olympic: (3C) Elmer “to Sylvester for life, then to Bugs and his heirs Sylvester: Life Estate Bugs:?

Bugs dies intestate without heirs. Olympic: (3C) Elmer “to Sylvester for life, then to Bugs and his heirs.” Sylvester: Life Estate Bugs: Vested Remainder in Fee Simple [Absolute] Bugs dies intestate without heirs. What Effect?

Sylvester Dies: What Effect? Olympic: (3C) Elmer “to Sylvester for life, then to Bugs and his heirs.” Sylvester: Life Estate Bugs: Vested Remainder in Fee Simple Bugs dies intestate without heirs. Vested Remainder passes to State by Escheat (like rest of Bugs’s property) Sylvester Dies: What Effect?

Olympic: (3C) Elmer “to Sylvester for life, then to Bugs and his heirs When Bugs died intestate without heirs, Vested Remainder passed to State by Escheat. When Sylvester dies, Vested Remainder becomes Fee Simple. So: State has Fee Simple Absolute

Olympic: (3D) Mickey “to Minnie for life, then to Pluto for 99 years.”

Olympic: (3D) Mickey “to Minnie for life, then to Pluto for 99 years.” Minnie: Life Estate Pluto?

Olympic: (3D) Mickey “to Minnie for life, then to Pluto for 99 years.” Minnie: Life Estate Pluto: Vested Remainder in Term of Years. Anything Else?

Olympic: (3D) Mickey “to Minnie for life, then to Pluto for 99 years.” Minnie: Life Estate Pluto: Vested Remainder in Term of Years. Mickey: Reversion

Olympic: (3D) 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 successors) Somebody has to own the rights to the property after the first two finite interests are completed. Because Mickey did not give away those rights, he must still have them at the time of the grant.

Olympic: (3D) 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 successors) Note we say that Mickey has a Reversion even though we are pretty certain he won’t be alive when it becomes possessory (after all, he’s a mouse). When Pluto’s interest ends, Mickey’s successors will take possession.

Acadia: Problems 3E-3G Acadia Sunrise

Acadia: (3E) Derek“to Bernie for life, then to Jorge for life, then to Roger and his heirs.”

Bernie: Life Estate Jorge? Acadia: (3E) Derek “to Bernie for life, then to Jorge for life, then to Roger and his heirs.” Bernie: Life Estate Jorge?

Jorge: Vested Remainder in Life Estate. Acadia: (3E) 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. Note that even though Jorge has to survive Bernie for his interest to become possessory, we don’t describe this as a Contingent Remainder because the condition is not stated explicitly. Roger?

Jorge: Vested Remainder in Life Estate. Acadia: (3E) 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.

Acadia: (3F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Betty is 15. Veronica: ?

Acadia: (3F) 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?

Acadia: (3F) 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 Fee Simple (condition of turning 21 must be met before she can get property) Anything Else?

Betty: Contingent Remainder in Fee Simple Reggie: Reversion Acadia: (3F) 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 Fee Simple Reggie: Reversion Always Created Along with Contingent Remainder Covers Rights to Property After Veronica Dies if Betty’s Condition Not Met

Acadia: (3F) 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 Fee Simple Reggie: Reversion

What if Betty turns 21 while Veronica is alive? Acadia: (3F) 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 Betty turns 21 while Veronica is alive?

Acadia: (3F) Reggie “to V for life, then to B and her heirs if B attains the age of 21.” ***B turns 21 while V alive*** Veronica: Life Estate Betty’s Contingent Remainder “vests” leaving her with a Vested Remainder in Fee Simple Reggie’s Reversion now can never become possessory, so we say it “divests,” leaving him with nothing.

What if Betty dies at age 17 while Veronica is alive? Acadia: (3F) 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 Betty dies at age 17 while Veronica is alive?

Acadia: (3F) Reggie “to V for life, then to B and her heirs if B attains the age of 21.” ***B dies at 17 while V alive*** Veronica: Life Estate The condition can never be met, so Betty’s Contingent Remainder “fails” leaving her (and her successors) with nothing Reggie’s Reversion stays in place, so he or his successors will get the property when Veronica dies.

What if Veronica dies while Betty is still age 17? Acadia: (3F) 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

Acadia: (3G): “To my only son, Hughie, for life, then to Hughie's children and their heirs." Hughie has two living children, Dewey and Louie. Hughie?

Hughie: Life Estate Dewey & Louie? Acadia: (3G): “To my only son, Hughie, for life, then to Hughie's children and their heirs." Hughie has two living children, Dewey and Louie. Hughie: Life Estate Dewey & Louie?

Dewey & Louie: Vested Remainders (in Fee Simple) Subject to Open Acadia: (3G): “To my only son, Hughie, for life, then to Hughie's children and their heirs." Hughie has two living children, Dewey and Louie. Hughie: Life Estate Dewey & Louie: Vested Remainders (in Fee Simple) Subject to Open Remainders are still vested b/c M&C certain to get at least a share of the property. Use of “subject to open” makes clear that exact share of the property they will get is uncertain; reduces if more children born. NOTE: We don’t use phrase “subject to open” with contingent remainders, which are always uncertain.

Acadia: (3G): “To my only son, Hughie, for life, then to Hughie's children and their heirs." Hughie has two living children, Dewey and Louie. Hughie: Life Estate Dewey & Louie: Vested Remainders (in Fee Simple) Subject to Open Hughie has additional child, April. April has?

Acadia: (3G): “To my only son, Hughie, for life, then to Hughie's children and their heirs." Hughie has 3 living children, Dewey, Louie, April. Hughie: Life Estate Dewey & Louie & April: Vested Remainders (in Fee Simple) Subject to Open Louie (L) dies, leaving his wife, May, and a child, June; L's will devises all property to May. What happens to L’s interest?

Acadia: (3G): “To my only son, Hughie, for life, then to Hughie's children and their heirs." Hughie had 3 children, Dewey, Louie, April. Hughie: Life Estate Dewey & May & April: Vested Remainders (in Fee Simple) Subject to Open Nothing in grant requires that H’s children survive him As in Problem 4C, Vested Remainder in Fee Simple passes at death like any other property. Hughie dies. State of the title?

Hughie Dies, ending Life Estate Acadia: (3G): “To my only son, Hughie, for life, then to Hughie's children and their heirs." Hughie Dies, ending Life Estate Dewey & May & April: Share Fee Simple Absolute (as Tenants-in-Common) For this course, only need to know that they’d share; don’t need to know term “tenants in common” or what it means.

DEFEASIBLE FEES

DEFEASIBLE FEES 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.

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

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

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

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

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

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

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

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”

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)

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

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

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

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 FUTURE INTEREST: Executory Interest (in 3d party grantee)

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.

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.

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)

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

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)

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.”

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.

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.

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.

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.”

Acadia: Problem 3H Acadia Sunrise

Acadia: (3H): Thelma conveys “To Louise for 99 Years if Louise so long live."

Louise: Term of years determinable. Acadia: (3H): 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.

Louise: Term of years determinable. Acadia: (3H): Thelma conveys “To Louise for 99 Years if Louise so long live." Louise: Term of years determinable. What other interests are there?

Acadia: (3H): 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) =

Thelma: Possibility of Reverter plus Reversion = Reversion (Merger) Acadia: (3H): 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)

Doctrine of Merger **MERGE** “merge.” If one person becomes the owner of two contiguous interests, the interests will “merge.” **MERGE**

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

Doctrine of Merger If one person becomes the owner of two contiguous interests, the interests will Life Estate (Spencer) + Reversion (Rebecca  Spencer) Fee Simple Absolute (Spencer) “merge.” **MERGE**

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

BADLANDS: DQs 3.05 Mahrenholz Major Events: Effect of Different Interpretations of the Grant NORBECK PASS

Badlands DQ3.05: 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

Badlands DQ3.05: Mahrenholz Major Events Fee Simple Determinable & Poss. of Rev. 3/51: Grant to SD#1  SD=FSD + Hs=PR 2/69: Mrs.H dies intestate; HH sole heir  ?

5/73: Property used for storage only Badlands DQ3.05: Mahrenholz Major Events Fee Simple Determinable & Poss. of Rev. 2/69: Mrs.H dies intestate; HH sole heir  SD=FSD + HH=PR 5/73: Property used for storage only 2 Possibilities: Violation or Not  ?

HH-FEE SIMPLE ABS. 5/77 HH  Ms Badlands DQ3.05: Mahrenholz Major Events Fee Simple Determinable & Poss. of Rev. SD=FSD + HH=PR 5/73: Property used for storage only GRANT VIOLATED NO VIOLATION HH-FEE SIMPLE ABS. 5/77 HH  Ms SD-FSD HH-PR 5/77 HH  Ms

Ms-FEE SIMPLE ABSOLUTE SD-FSD HH-PR  SD-FSD HH-PR Badlands DQ3.05: Mahrenholz Major Events Fee Simple Determinable & Poss. of Rev. 5/77: HH  Mahrenholzes GRANT VIOLATED NO VIOLATION HH-FEE SIMPLE ABS.  Ms-FEE SIMPLE ABSOLUTE 9/77 HH release to SD? 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?

HH has Nothing, So Release Ineffective Badlands DQ3.05: Mahrenholz Major Events Fee Simple Determinable & Poss. of Rev. 9/77: HH Release to SD GRANT VIOLATED NO VIOLATION Ms-FEE SIMPLE ABS. HH has Nothing, So Release Ineffective SD-FSD HH-PR Release to Holder of Fee Allowed; School District’s Interests Merge SD-FEE SIMPLE ABS.

Badlands DQ3.05: Mahrenholz Major Events Fee Simple on Condition Subsequent & Right of Entry 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 Badlands DQ3.05: Mahrenholz Major Events Fee Simple on C.S. & Rt. Of Entry 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  ?

Right of Entry Only Can Become Fee if Holder Acts: HH Didn’t Badlands DQ3.05: Mahrenholz Major Events Fee Simple on C.S. & Rt. Of Entry SD=FSCS + HH=RE 5/73: Property used for storage only GRANT VIOLATED NO VIOLATION SD-FSCS HH-RE Right of Entry Only Can Become Fee if Holder Acts: HH Didn’t 5/77 HH  Ms SD-FSCS HH-RE 5/77 HH  Ms

SD-FSCS HH-RE 9/77 HH release to SD? 9/77 HH release to SD? Badlands DQ3.05: Mahrenholz Major Events Fee Simple on C.S. & Rt. Of Entry SD=FSCS + HH=RE 5/77: HH  Mahrenholzes GRANT VIOLATED NO VIOLATION SD-FSCS HH-RE Can’t Transfer RE in Illinois Except to Holder of Fee, so No Change 9/77 HH release to SD? SD-FSCS HH-RE Can’t Transfer RE in Illinois Except to Holder of Fee, so No Change 9/77 HH release to SD?

SD-FSCS HH-RE SD-FEE SIMPLE ABS. SD-FSCS HH-RE SD-FEE SIMPLE ABS. Badlands DQ3.05: Mahrenholz Major Events Fee Simple on C.S. & Rt. Of Entry SD=FSCS + HH=RE 9/77: HH Release to SD GRANT VIOLATED NO VIOLATION SD-FSCS HH-RE Release to Holder of Fee Allowed; School District’s Interests Merge SD-FEE SIMPLE ABS. SD-FSCS HH-RE Release to Holder of Fee Allowed; School District’s Interests Merge SD-FEE SIMPLE ABS.

Mahrenholz: Summary of Possibilities

Badlands: Mahrenholz & DQs 3.06-3.08: Distinguishing FSD from FSCS NORBECK PASS

Badlands: Mahrenholz & DQ3.06 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. S78) What does the court mean by “reinvestment”?

Badlands: Mahrenholz & DQ3.07 Distinguishing FSD from FSCS “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…” (S80, 3d full para.) WHY NOT?

Badlands: Mahrenholz & DQ3.07 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.