PROPERTY B SLIDES 3-4-19 Marching Music Day

Rivero-Fernández * Wade Music to Accompany White v. Brown: Vivaldi, Four Seasons (1723) Itzhak Perlman, Violin & London Philharmonic Orchestra (Recording 1977; Remastered 1987) 1978 Grammy Award for Best Classical Performance (Soloist with Orchestra) Lunch Tomorrow Meet on Bricks @ 12:25 Becker * Couzo Ponce de León Rivero-Fernández * Wade Woelfel * Youn Next Few DF Sessions: Current: Rev Prob 2H (Brendan) Today @ 9:40 Here Then: Rev Prob 2K(a) (Lauren) Wed 3/6 @ 9:40 Here Fri 3/8 @ 9:40 Here

Fun with the English Language: Animals & Prepositions PROPERTY B: 3/4 MONday Pop Culture Moment Fun with the English Language: Animals & Prepositions

Animals & Prepositions HORSES are Very Different from MONKEYS … PROPERTY B: 3/4 MONday Pop Culture Moment Animals & Prepositions HORSES are Very Different from MONKEYS …

MONday Pop Culture Moment Animals & Prepositions PROPERTY B: 3/4 MONday Pop Culture Moment Animals & Prepositions So Why Is HORSING AROUND the Same as MONKEYING AROUND?

Animals & Prepositions And why do you HORSE AROUND But PONY UP? PROPERTY B: 3/4 MONday Pop Culture Moment Animals & Prepositions And why do you HORSE AROUND But PONY UP?

MONday Pop Culture Moment Animals & Prepositions PROPERTY B: 3/4 MONday Pop Culture Moment Animals & Prepositions And why is WOLFING DOWN the same as PIGGING OUT?

PROPERTY B: 3/4 Finally, The Goldilocks Proposition MONday Pop Culture Moment Animals & Prepositions Finally, The Goldilocks Proposition (Advice for Getting Through Chapter Three): A Careful Study of Human Nature…

PROPERTY B: 3/4 BEARS OUT That Sometimes The Only Way To BEAR UP MONday Pop Culture Moment Animals & Prepositions The Goldilocks Proposition: A Careful Study of Human Nature… BEARS OUT That Sometimes The Only Way To BEAR UP Is To BEAR DOWN

Previously in Property B Chapter 2: Rev Prob 2L(b): Tenant Selection Habitability & Associated Remedies Cont’d Knudsen Rev Prob 2J Tempest at the Teapot: Part A Chapter 3: Introduction Present Possessory Estates Intro to Reversions & Remainders

Tempest at the Teapot: Part B ACADIA (Argument B1) EVERGLADES (LDLD) & BADLANDS (TNT) (Argument B2)

Acadia: T@T QB1 Acadia Sunrise

Tempest at the Teapot: ACADIA (from Argument B1): Does the Aerial Violates Fl. Stat. §83.52 Arguably Relevant Subsections: Tenant Must … (5) Use and operate in a reasonable manner all electrical … appliances…. (6) Not destroy, deface, damage, impair, or remove any part of the premises … (7) Conduct himself or herself … in a manner that does not unreasonably disturb the tenant's neighbors or constitute a breach of the peace. Pros & Cons of Each? Best Result?

Pet & Aerial: Argument B3 Adequacy of Notices: Issues re 1st Notice No Pet at Time Notice Sent “Defacement” Not Specified Sent Automatically to All Tenants (looks like Bad Faith) L Continued to Accept Rent Although Aerial Not Removed Shouldn’t Count Toward Either Pet or Aerial

Tempest at the Teapot: From Argument B2: Assume that the aerial violated Fl. Stat. §83.52 (“deface”), but that the May 2018 notice did not serve as a sufficient “right to cure” notice regarding the aerial. Can M evict F for the aerial immediately (without giving a right to cure notice) under §83.56(2)(a)? Back to Types of Eviction Arguments Used for Tim’s Party at Start of Chapter 2.

BADLANDS (Tnt) & EVERGLADES (Ldld) T@T QB2 EGRET IN MANGROVE SWAMP NORBECK PASS

Opportunity to Cure: 83.56(2)(a) v. (b) Tempest at the Teapot: Argument B2 EVERGLADES for Landlord BADLANDS: for Tenant Opportunity to Cure: 83.56(2)(a) v. (b) (a) No Cure : “destruction, damage, or misuse of the landlord's or other tenants' property by intentional act” (b) Can Cure: “having or permitting unauthorized pets, guests, or vehicles; parking in an unauthorized manner or permitting such parking; or failing to keep the premises clean and sanitary” Aerial (assume “Deface” under 83.52(6)) Literal Arguments: Neither Misuse or Clean is Strong Comparative Arguments? Policy Arguments?

Caselaw & Policy Arguments on Exams Policy Arguments Appear in Different Places on Test. E.g., Last Step in 83.56 Eviction Problems Arguments in Opinion/Dissent Q Possible Ways to Resolve Short Problems Like 2G or 2H Usually No Binding Precedent Can Cite Cases as Supporting Particular Policy Ideas E.g., Javins = Need to Protect TNTs w/o Much Bargaining Power Can use “E.g.” to Make Clear Not Treating as Binding

WHITE v. BROWN

White v. Brown (S76-81) Interprets Jessie Lide’s Will I wish Evelyn White to have my home to live in and not to be sold. I also leave my personal property to Sandra White Perry. My house is not to be sold. Issue: What Interest in the Home Does This Language Create?

Significance Includes: White v. Brown: DQ3.01 White majority says “the free alienation of property [is] one of the most significant incidents of fee ownership.” Significance Includes: Allows land to move to owner who can make most valuable use of it. Means land is relatively liquid asset maximizing owner’s control & freedom (can sell or mortgage for $).

SEQUOIA: DQs 3.02-3.04 SEQUOIAS

White v. Brown Sequoia: DQ3.02 I wish Evelyn White to have my home to live in and not to be sold. … My house is not to be sold. The White majority complains that “the words chosen by the testatrix are not specific enough to clearly state her intent."

White v. Brown Sequoia: DQ3.02 I wish Evelyn White to have my home to live in and not to be sold. … My house is not to be sold. What do you think Jessie Lide’s intent is? Why must house not be sold?

White v. Brown Sequoia: DQ3.02 I wish Evelyn White to have my home to live in and not to be sold. … My house is not to be sold. Why does the majority have problems discerning Jessie Lide’s intent?

White v. Brown: Possible Characterizations I wish Evelyn White to have my home to live in and not to be sold. Fee Simple Life Estate Conditional Fee So long as not sold So long as E lives there Conditional Life Estate

White v. Brown Sequoia: DQ3.03 WHAT ARE THE MAJORITY’S ARGUMENTS THAT MS. LIDE INTENDED TO CREATE A FEE SIMPLE?

White v. Brown Sequoia: DQ3.03 MAJORITY ARGUMENTS (FEE SIMPLE) Presumption: Grant Conveys Whole Estate JL had FSA, so presume she gave FSA to EW Same idea as “default estate today is fee simple” No Gift Over (Will describes no interest in home after EW’s death) Partial Intestacy Disfavored (Try to read will to address all of JL’s property)

White v. Brown Sequoia: DQ3.03 WHAT ARE THE DISSENT’S ARGUMENTS THAT MS. LIDE INTENDED TO CREATE A LIFE ESTATE?

White v. Brown Sequoia: DQ3.03 DISSENT ARGUMENTS (LIFE ESTATE) Presumption: All Language Used Has Meaning (same idea re statutes, contracts, etc.) Language Here Consistent with Life Estate: Says: “to live in” Says: “not to be sold” Contrast Language in Gift to Niece: No Limits (standard construction argument: different language=different meaning)

White v. Brown Sequoia: DQ3.03 I wish Evelyn White to have my home to live in and not to be sold. I also leave my personal property to Sandra White Perry. My house is not to be sold. Whose Arguments Seem Stronger?

White v. Brown Holds Interest is Fee Simple Absolute Could you Read Grant as Fee Simple Conditioned on Land Not Being Sold? No. Restraints on Alienation are Inconsistent with Fee Simple. Even if Condition Explicit, Court Would Pencil It Out as Against Public Policy. THUS…

White v. Brown Holds Interest is Fee Simple Absolute Result: The Property Can Be Sold!!!

White v. Brown 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 Beliueve 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 Cases cited in White find F.S. Despite Stronger Life Estate Language than in White. 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 QUESTIONS ON HOLDING/RESULT?

White v. Brown: Sequoia: DQ3.04 Imagination Exercise: Possible Relevant Facts Not in Opinion Legal Relevance Here: Both Sides Rely on “Presumptions” Means Can Use Other Facts to Overcome/Rebut Important Exam Skill Big Part of Lawyering Q As We’ve Noted, Can Use for Short Problems/Issue-Spotter If Consistent with Rest of Facts If Relevant to Issues Raised

White v. Brown Sequoia: DQ3.04 Imagination Exercise: Possible Relevant Facts Not in Opinion To Add Weight to Majority Position (Fee Simple)? To Add Weight to Dissent Position (Life Estate)?

White v. Brown What Actually Happened? EW had stroke, moved in w daughter Probably wants to sell house b/c rental income not much Significance of case: If life estate, most of value goes to nieces/nephews If fee simple (as court held), EW gets money for medical & living expenses

White v. Brown Grantor’s Intent v. “Channeling” Function Recurring problem with estates/future interests: laypeople don’t know relevant categories. Thus, they don’t know how to signal what they wish to future court. Important roles that lawyers play in helping with wills: Ask Qs to discern client wishes (“What if Evelyn gets sick?”) Channel client desires into language that gives legal effect to those wishes.

QUESTIONS? White v. Brown Test Note #1: Test Will Include At Least One Grant (Yielding Multiple Questions) That Could Be Either Fee Simple or Life Estate, So You Need to Know Arguments Distinguishing the Two QUESTIONS?

Vested v. Contingent Remainders

FUTURE INTERESTS THAT FOLLOW FINITE ESTATES REMAINDER Future interest in a third party that follows naturally upon the termination of a finite estate. It is always expressly conveyed by the grantor.

VESTED REMAINDER Grantee is living ascertainable person (can presume this if granted to a named individual.)

VESTED REMAINDER Grantee is living ascertainable person AND Clause creating the remainder contains no condition on grantee taking the property except expiration of prior estate.

VESTED REMAINDER Grantee is living ascertainable person AND Clause creating the remainder contains no condition on grantee taking the property except expiration of prior estate Example: To Aaron for life, then to Oona and her heirs.

CONTINGENT REMAINDER Grantee is presently unborn or unascertainable *OR* Clause creating the remainder contains a condition on grantee taking the property

REMAINDERS: EXAMPLES “To Fred for life, then to Fred’s firstborn child.” Fred has Life Estate Interest in Child Follows Life Estate, so it’s a Remainder If Fred presently has no children, grantee is unborn, so Remainder is Contingent .

Suppose Fred has a child, Pebbles…

REMAINDERS: EXAMPLES “To Fred for life, then to Fred’s firstborn child.” Fred has Life Estate Interest in Child Follows Life Estate, so it’s a Remainder Once Fred fathers his first child, grantee is born and ascertainable, so Remainder is now Vested. Thus, we say that, at the birth of Pebbles, the Contingent Remainder “Vests”

REMAINDERS: EXAMPLES “To Fred for life, then to Fred’s oldest child living at Fred’s death.” Fred has Life Estate Interest in Child Follows Life Estate, so it’s a Remainder Even if F has living children now, can’t know which of the children will be alive at F’s death, so grantee is unascertainable, so Remainder is Contingent .

“To Fred for life, then to Wilma and her heirs if Dino survives Fred.” REMAINDERS: EXAMPLES “To Fred for life, then to Wilma and her heirs if Dino survives Fred.” Fred has Life Estate Interest in Wilma Follows Life Estate, so it’s a Remainder Condition must be met before Wilma can take, so Remainder is Contingent.

Contingent v. Vested Remainders: Memory/Comprehension Aids Meaning/Derivation of Vested Right Clearly Established Right that’s Hard to Undo E.g., “Vested” Employee Benefits Derivation: Putting on Robes of Office (Investment) Analogy: Vested Remainder  Theater Ticket Contingent Remainder  Lottery Ticket