3-8-19 National Orgeon Day National Proofreading Day PROPERTY B SLIDES Oregon 3-8-19 National Orgeon Day National Proofreading Day

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) DF Today Here @ 9:40 Lauren: Rev Prob 2K(a)

PROPERTY B: 3/8 SORRY!! Daylight Savings Time DOES BEGIN SATURDAY NIGHT FAJER & FAJER’s BuRRO (Origins of Important Mexican Food)

THE “READY BETTY” JOKE (to accompany Problem 3F) PROPERTY B: 3/8 SPECIAL PRE_BREAK Pop Culture Moment THE “READY BETTY” JOKE (to accompany Problem 3F)

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

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

HH has Nothing, So Release Ineffective Badlands DQ3.05: Mahrenholz Major Events Fee Simple Determinable & Poss. of Rev. (from Wednesday) 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. S83) 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…” (S85, 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.

Mahrenholz & DQ3.08 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….” (S86) Why does it believe this? If the action is brought essentially as soon as condition is violated, little or no time gap betw. violation and change in ownership.

Mahrenholz Distinguishing FSD from FSCS (3d Para. S83) 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 (not always true) Can use to argue a particular grant is FSD or FSCS

Mahrenholz Distinguishing FSD from FSCS (S78) 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 Yelan, so long as she doesn’t remarry. [Purpose presumably is to provide home and/or income for widow; if she takes a new spouse, she is the spouse’s problem.] To Zebulon University, so long as it is used as a research laboratory.

Mahrenholz Distinguishing FSD from FSCS (S78) 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 Yelan, 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 …

OLYMPIC: Mahrenholz & DQ3.09-3.11 EEL GLACIER

Olympic: Mahrenholz & DQ3.09 Distinguishing FSD from FSCS "to be used for school purpose only; otherwise to revert to Grantors herein.” Arguments for FSD?

Olympic: Mahrenholz & DQ3.09 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?

Olympic: Mahrenholz & DQ3.09 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

Olympic: Mahrenholz & DQ3.10 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

Olympic: Mahrenholz & DQ3 Olympic: Mahrenholz & DQ3.10 Distinguishing FSD from FSCS: Consequences Given significant consequences, why do so many grants fail to indicate clearly which interest is intended?

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. E.g., Problem 3I Includes This Kind of Ambiguous Grant

Olympic: Mahrenholz & DQ3.11 Meaning of “School Purpose” IS STORAGE A “SCHOOL PURPOSE”? Parties’ Likely Arguments For School District? Yes, because … For Future Interest Holder? No, because …

Olympic: Mahrenholz & DQ3.11 Meaning of “School Purpose” IS STORAGE A “SCHOOL PURPOSE”? What legal research could you do to help resolve this question?

Olympic: Mahrenholz & DQ3.11 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)

Olympic: Mahrenholz & DQ3.11 Meaning of “School Purpose” IS STORAGE A “SCHOOL PURPOSE”? Useful Factual Research includes: Use of Space: Relevant Qs/Investigation? Grantor’s Intent

Olympic: Mahrenholz & DQ3.11 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?

Olympic: Mahrenholz & DQ3.11 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

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.

We’ll come back to after Spring Break w Shapira case. Mahrenholz & DQ3.12 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.

LOGISTICS: Chapter 3 Test Preparation I’ll Post onCourse Page by Thurs. Midnight of Break: General Test Info & Instructions Page; E-Mail Me if Qs Assignments for Classes after Break including Additional Instructions for Problems 3I & 3O Additional Instructions for DQs following Shapira Bank of Sample Qs & Entire Fall 2007 Test Along with: List of Qs That Require Material We’ll Cover After Break Answers to Qs You’re Ready For

LOGISTICS: Chapter 3 Test Preparation DF: 3/18 (2015 Test); 3/20 (2016 Test); 3/22 (2016 Test) I’ll Post by Afternoon of Wed. 3/20: Rest of Answers to Already Posted Qs (that we are covering) Additional Tests & Answers In Addition to Regular Office Hours 3/18 & 3/21, I’ll Post & Hold Additional Office Hours: Fri afternoon 3/22 Sat afternoon 3/23 Sun afternoon  early evening 3/24

OTHER LOGISTICS I’ll Post on Course Page During Break: Chapter 4 Materials & Updated Syllabus Updated Assignment Sheet Covering the Rest of March Updated Versions of Info Memos on Chapters One and Two Comments/Best Answers for Some Other Posted Exam Qs Additional Final Exam Preparation 1st Sample Exam Question (Optional) Due Sun. 3/17 @ Noon Follow Instructions on Course Page If you do a Lawyering Q, first look at comments on Rev Probs 1M/1N I’ll Be Around Most of Break; E-Mail to Make an Appointment

Executory Interests

Executory Interest 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 (= Pre-“Common Law”) 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.

Pre-1536 (= Pre-“Common Law”) 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. Elimination of these Rules in 1536 Allows Creation of Executory Interests

Shifting v. Springing Executory Interest Executory Interests Shifting v. Springing Executory Interest No legal consequence; just categorization Shifting Executory Interest cuts off interest of another grantee Springing Executory Interest cuts off grantor’s fee simple or reversion Physical Model/Analogy (if helpful)

Executory Interests EXAMPLES Shifting Executory Interest: To Daisy & her heirs so long as no tobacco is grown on the land, otherwise to Amber and her heirs.

Executory Interests EXAMPLES Springing Executory Interest: To Kenya if she passes the California bar exam. Grantor who started with Fee Simple Absolute is left with Fee Simple on Executory Limitation

Let’s Return to Problem 3F & Riverdale High (3F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Let’s Return to Problem 3F & Riverdale High

(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; Condition Not Met So Who Gets What?

(3F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Veronica dies while Betty is still age 17 Common Law If contingency not met when prior estate ends, contingent remainder is destroyed. Betty has nothing. If Betty isn’t ready, she loses her “table.” Reggie’s Reversion becomes Fee Simple Absolute

Doctrine of Destructability of Contingent Remainders (Common Law) First Common Application If contingency not met when prior estate ends, contingent remainder is destroyed.

Doctrine of Destructability of Contingent Remainders Today: Overruled by statute or caselaw in every American jurisdiction except …

Doctrine of Destructability of Contingent Remainders (Today) Overruled by statute or caselaw in every American jurisdiction except …

(3F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Veronica dies while Betty is still age 17 Today (except FL) 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 takes possession and has fee simple on executory limitation (cut off if B turns 21)

(3F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Veronica dies while Betty is still age 17 Today (except FL)

Doctrine of Destructability of Contingent Remainders (Common Law) Second Common Application Where there is a life estate, one or more contingent remainders, and a reversion, and the life estate and reversion merge into a fee simple, the contingent remainders are destroyed.

Doctrine of Destructability of Contingent Remainders Second Common Application Alexa “to Brittany for life, then to Katie if Katie passes a bar exam.

Doctrine of Destructability of Contingent Remainders Second Common Application (Common Law) Alexa “to Brittany for life, then to Katie if Katie passes a bar exam. Brittany purchases Reversion from Alexa  Life Estate & Reversion Merge  Fee Simple Absolute Katie’s Contingent Remainder is Destroyed ↓ ↓ ↓ Merge & Destroy ↓ ↓ ↓

Today (Everywhere except Florida) Merger without Destruction Alexa “to Brittany for life, then to Katie if Katie passes a bar exam. Brittany purchases Reversion from Alexa Life Estate & Reversion Merge  Fee Simple on Executory Limitation Katie’s Contingent Remainder Becomes an Executory Interest ↓ ↓ ↓ Merge ↓ ↓ ↓

EVERGLADES: Problems 3J-3L EGRET IN MANGROVE SWAMP

EVERGLADES: Problems 3J-3L EGRET IN MANGROVE SWAMP

Everglades: (3J): Mary "to Rhoda for life, then to Ted if Ted gives Mary a proper funeral."

Everglades: (3J): Mary "to Rhoda for life, then to Ted if Ted gives Mary a proper funeral." Rhoda: Life Estate Ted?

Ted: Contingent Remainder (if today: in f.s.) Anything Else? Everglades: (3J): Mary "to Rhoda for life, then to Ted if Ted gives Mary a proper funeral." Rhoda: Life Estate Ted: Contingent Remainder (if today: in f.s.) Anything Else?

Everglades: (3J): Mary "to Rhoda for life, then to Ted if Ted gives Mary a proper funeral." Rhoda: Life Estate Ted: Contingent Remainder (if today: in f.s.) Mary: Reversion

Everglades: (3J): Mary "to Rhoda for life, then to Ted if Ted gives Rhoda a proper funeral." Rhoda: Life Estate Ted? (Does Change from Mary’s Funeral to Rhoda’s Affect Nature of Ted’s Interest?)

Everglades: (3J): Mary "to Rhoda for life, then to Ted if Ted gives Rhoda a proper funeral." Rhoda: Life Estate Ted? (Does Change from Mary’s Funeral to Rhoda’s Affect Nature of Ted’s Interest?) HINT: What would make a funeral not “proper”?

Everglades: (3J): Mary "to Rhoda for life, then to Ted if Ted gives Mary Rhoda a proper funeral." Rhoda: Life Estate Ted can’t possibly give Rhoda a “proper” funeral by the time Rhoda dies. There will be a gap in time between the end of R’s life estate and Ted’s interest. Thus, Ted’s interest cannot be a remainder; So Ted has …?

Everglades: (3J): Mary "to Rhoda for life, then to Ted if Ted gives Rhoda a proper funeral." Rhoda: Life Estate Mary: Reversion Ted: Springing Executory Interest (would cut off grantor’s interest (reversion))

EXAM TIP: USE COMMON SENSE!! Can’t give a “proper” funeral to a person until after the person has died.

EXAM TIP: USE COMMON SENSE!! Can’t give a “proper” funeral to a person until after the person has died. Similarly, if an interest has been conveyed in a will, you can assume the grantor is dead (will would not have become effective until death of grantor).

Life Estates & Remainders: Additional Information

ME v. TEXTBOOK (P523) The Textbook says the Common Law rule that a Life Estate was the default estate did not apply to grants in wills. For our purposes, assume that, at Common Law, a Life Estate was the default estate under all circumstances.

Alternative Contingent Remainders Two contingent remainders where the event that causes one to vest will destroy the other.

Alternative Contingent Remainders Two contingent remainders where the event that causes one to vest will destroy the other. Example: Jen grants: “To Kyle for life, then to Lucky and her heirs if she graduates from law school, but if she never graduates from law school, then to Mallory and her heirs”.

Alternative Contingent Remainders Two contingent remainders for which the event that causes one to vest will destroy the other. Example: To Kyle for life, then to Lucky and her heirs if she graduates from law school, but if she never graduates from law school, then to Mallory and her heirs. Here, only two possibilities: either (1) Lucky will graduate from law school (and would then take) or (2) she will die before graduating from law school (Mallory would then take)

Alternative Contingent Remainders Two contingent remainders for which the event that causes one to vest will destroy the other. Example: Example: Jen: “To Kyle for life, then to Lucky and her heirs if she graduates from law school, but if she never graduates from law school, then to Mallory and her heirs.” Note: Even though the alternative contingent remainders might appear to exhaust all possibilities, the convention is that you still must pencil in a reversion in the grantor to fill up the time line. Thus, Kyle has Life Estate Lucky & Mallory each have an Alternate Contingent Remainder (in F.S.) Jen retains a Reversion