PROPERTY E SLIDES

to Ernie for life then to Burt forever OLYMPIC: (4B) Kermit “to Ernie for life, then to Burt forever.” (Common Law) Ernie: Life Estate Burt: Vested Remainder in Life Estate Kermit: Reversion

to Ernie for life then to Burt forever OLYMPIC: (4B) Kermit “to Ernie for life, then to Burt forever.” (TODAY) Ernie: Life Estate Burt: ?

to Ernie for life then to Burt forever OLYMPIC: (4B) Kermit “to Ernie for life, then to Burt forever.” (TODAY) Ernie: Life Estate Burt: Vested Remainder in Fee Simple -Default Estate Today is Fee Simple Kermit?

to Ernie for life then to Burt forever OLYMPIC: (4B) Kermit “to Ernie for life, then to Burt forever.” (TODAY) Ernie: Life Estate Burt: Vested Remainder in Fee Simple Kermit: Nothing Left When Ernie Dies?

to Ernie for life then to Burt forever OLYMPIC: (4B) Kermit “to Ernie for life, then to Burt forever.” (TODAY) Burt: Fee Simple Absolute When Burt Dies?

to Ernie for life then to Burt forever OLYMPIC: (4B) Kermit “to Ernie for life, then to Burt forever.” (TODAY) Burt: Fee Simple Absolute When Burt Dies? Property passes by Burt’s will or through intestacy to Burt’s heirs.

to Sylvester for lifethen to Bugs and his heirs OLYMPIC: (4C) Elmer “to Sylvester for life, then to Bugs and his heirs.” Sylvester: ?

to Sylvester for lifethen to Bugs and his heirs OLYMPIC: (4C) Elmer “to Sylvester for life, then to Bugs and his heirs.” Sylvester: Life Estate Bugs:?

to Sylvester for lifethen to Bugs and his heirs OLYMPIC: (4C) 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?

to Sylvester for lifethen to Bugs and his heirs OLYMPIC: (4C) 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?

to Sylvester for lifethen to Bugs and his heirs OLYMPIC: (4C) 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: (4D) Mickey “to Minnie for life, then to Pluto for 99 years.” Minnie?

to Minnie for life OLYMPIC: (4D) Mickey “to Minnie for life, then to Pluto for 99 years.” Minnie: Life Estate Pluto?

then to Pluto for 99 years.” OLYMPIC: (4D) Mickey “to Minnie for life, then to Pluto for 99 years.” Minnie: Life Estate Pluto: Vested Remainder in Term of Years. Anything Else?

then to Pluto for 99 years.” OLYMPIC: (4D) Mickey “to Minnie for life, then to Pluto for 99 years.” Minnie: Life Estate Pluto: Vested Remainder in Term of Years. Mickey: Reversion

then to Pluto for 99 years.” OLYMPIC: (4D) 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.

then to Pluto for 99 years.” OLYMPIC: (4D) 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.

OLYMPIC: (4E) Derek“to Bernie for life, then to Jorge for life, then to Roger and his heirs.” Bernie?

to Bernie for life OLYMPIC: (4E) Derek “to Bernie for life, then to Jorge for life, then to Roger and his heirs.” Bernie: Life Estate Jorge?

to Bernie for life OLYMPIC: (4E) 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?

to Bernie for life OLYMPIC: (4E) 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.

OLYMPIC: (4F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Betty is 15. Veronica: ?

to Veronica for life OLYMPIC: (4F) 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?

to Veronica for life OLYMPIC: (4F) 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?

to Veronica for life OLYMPIC: (4F) 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

to Veronica for life OLYMPIC: (4F) 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

to Veronica for life OLYMPIC: (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 Betty turns 21 while Veronica is alive?

to V for life OLYMPIC: (4F) 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.

to Veronica for life OLYMPIC: (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 Betty dies at age 17 while Veronica is alive?

to V for life OLYMPIC: (4F) 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.

to Veronica for life OLYMPIC: (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

YOSEMITE: Problem 4G HALF DOME

YOSEMITE: (4G): “To my only son, Larry, for life, then to Larry's children and their heirs." Larry has two living children, Moe and Curly. Larry?

YOSEMITE: (4G): “To my only son, Larry, for life, then to Larry's children and their heirs." Larry has two living children, Moe and Curly. Larry: Life Estate Moe & Curly?

YOSEMITE: (4G): “To my only son, Larry, for life, then to Larry's children and their heirs." Larry has two living children, Moe and Curly. Larry: Life Estate Moe & Curly: 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. – We don’t use phrase “subject to open” with contingent remainders, which are always uncertain.

YOSEMITE: (4G): “To my only son, Larry, for life, then to Larry's children and their heirs." Larry has two living children, Moe and Curly. Larry: Life Estate Moe & Curly: Vested Remainders (in Fee Simple) Subject to Open Larry has additional child, Stella. Stella has?

YOSEMITE: (4G): “To my only son, Larry, for life, then to Larry's children and their heirs." Larry has 3 living children, Moe, Curly, Stella. Larry: Life Estate Moe & Curly & Stella: Vested Remainders (in Fee Simple) Subject to Open Curly (C) dies, leaving his wife, Noreen, and a child, Orrin; C's will devises all property to Noreen. What happens to C’s interest?

YOSEMITE: (4G): “To my only son, Larry, for life, then to Larry's children and their heirs." Larry had 3 children, Moe, Curly, Stella. Larry: Life Estate Moe & Noreen & Stella: Vested Remainders (in Fee Simple) Subject to Open – Nothing in grant requires that L’s children survive him – As in Problem 4C, Vested Remainder in Fee Simple passes at death like any other property. Larry dies. State of the title?

YOSEMITE: (4G): “To my only son, Larry, for life, then to Larry's children and their heirs." Larry Dies, ending Life Estate Moe & Noreen & Stella: 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.

LOGISTICS Chapter 4 Test Preparation (3/21) – Info & Instructions on Course Page; Me if Qs – Bank of Sample Qs & Entire Fall 2007 Test Posted You’ll Be Ready For Most by End of Week After Class Thursday, I’ll Post – List of Qs That Require Material We’ll Cover After Break – Answers to Qs You’re Ready For I’ll Post Rest of Answers & Fall 2010 Test After Class on 3/18

LOGISTICS Final Exam Test Preparation (3/21) – Instructions for Submitting Sample Exam Answers on Course Page; Me if Qs – If you want to submit more than one, first submission must be by Friday of Spring Break – Samples of Exam Qs 1, 3, 4 posted on course page with indication of what material they cover. For now, mostly just to see what they look like I’ll post comments and best answers soon

LOGISTICS Good Idea to Make Plans Soon for Next Six Weeks – Need to Do Substantial L.Comm.Work – Need to do Pre-Exam Outlining (etc.) for Other Four Classes My Recommendation: – Serious Work over Spring Break (4 days off; 5 days on) – One day a week during Late March & April for serious review of one of your non-L.Comm Classes

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

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

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) 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) 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 Executory Interest 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 reenter 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)

(Accessorizing) Defeasible Fees & Matching Future Interests (Accessorizing) FEE SIMPLE DETERMINABLE & Possibility of Reverter F.S. ON CONDITION SUBSEQUENT & 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.42 fn19)

TERMINOLOGY: ME v. TEXTBOOK Textbook says Fee Simple on Executory Limitation terminates automatically (P580) 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 Finite Estates: Examples Term of Years on Condition Subsequent: “To Joshua for 20 years, but if he ever passes the bar exam, my heirs can enter & retake.” Life Estate on Executory Limitation “To Richard for life, but to Chris & his heirs if Chris ever passes the bar exam.”

YOSEMITE: Problem 4H HALF DOME

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

YOSEMITE: (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. – Used where there is some legal or tax reason to avoid life estate.

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

YOSEMITE: (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)

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

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

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

YOSEMITE: We’ll Return to Problem 4I After Mahrenholz (Probably Tomorrow) HALF DOME

Mahrenholz v. County Board Mahrenholz v. County Board

ZION: Discussion Questions 63: Mahrenholz Major Events TEMPLES & TOWERS OF THE VIRGIN

ZION DQ63: 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

Fee Simple Determinable Poss. of Rev. ZION DQ63: 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  ?

Fee Simple Determinable Poss. of Rev. ZION DQ63: 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  ?

Fee Simple Determinable Poss. of Rev. HH=PR ZION DQ63: 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

Fee Simple Determinable Poss. of Rev. ZION DQ63: 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?

Fee Simple Determinable Poss. of Rev. ZION DQ63: 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.

Fee Simple on Condition Subsequent Right of Entry ZION DQ63: 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  ?

Fee Simple on C.S. Rt. Of Entry ZION DQ63: 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  ?

Fee Simple on C.S. Rt. Of Entry HH=RE ZION DQ63: 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

Fee Simple on C.S. Rt. Of Entry HH=RE ZION DQ63: 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?

Fee Simple on C.S. Rt. Of Entry HH=RE ZION DQ63: 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.

Fee Simple Determinable Poss. of Rev. ZION DQ63: 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.

Mahrenholz: Summary of Possibilities

FSD from FSCS ZION: Mahrenholz & DQs 64-66: Distinguishing FSD from FSCS TEMPLES & TOWERS OF THE VIRGIN

FSD from FSCS ZION: Mahrenholz & DQ64 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. P583) What does the court mean by “reinvestment”?

FSD from FSCS ZION: Mahrenholz & DQ65 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…” (P584, 3d full para.) WHY?

FSD from FSCS ZION: Mahrenholz & DQ65 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

FSD from FSCS ZION: Mahrenholz & DQ66 Distinguishing FSD from FSCS In a deleted passage 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 ….” Why does it believe this?

FSD from FSCS (P583) Mahrenholz Distinguishing FSD from FSCS (P583) Use FSD to give property “for so long as it is needed for the purposes for which it is given and no longer” Use a FSCS “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 particular grant is FSD or FSCS

FSD from FSCS (P583) Mahrenholz Distinguishing FSD from FSCS (P583) 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. To Zebulon University, so long as it is used as a research laboratory.

FSD from FSCS (P583) Mahrenholz Distinguishing FSD from FSCS (P583) 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 …

ACADIA: Mahrenholz & DQs 67-70: Acadia Sunrise

FSD from FSCS ACADIA: Mahrenholz & DQ67 Distinguishing FSD from FSCS To the Trustees of School District No. 1: "to be used for school purpose only; otherwise to revert to Grantors herein.” Arguments for FSD?

FSD from FSCS ACADIA: Mahrenholz & DQ67 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?

FSD from FSCS ACADIA: Mahrenholz & DQ67 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” (Wolfe) – Most states presume FSCS

FSD from FSCS: Consequences ACADIA: Mahrenholz & DQ68 Distinguishing FSD from FSCS: Consequences Under what circumstances might the distinction between a fee simple determinable and a fee simple on condition subsequent be significant?

FSD from FSCS: Consequences ACADIA: Mahrenholz & DQ68 Distinguishing FSD from FSCS: Consequences 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) Waiver/Estoppel by future interest holder (only possible if FSCS)

FSD from FSCS: Consequences ACADIA: Mahrenholz & DQ68 Distinguishing FSD from FSCS: Consequences Given significant consequences, why do so many grants fail to indicate clearly which interest is intended?

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. E.g., Problem 4I Includes This Kind of Ambiguous Grant

ACADIA: Mahrenholz & DQ69 Meaning of “School Purpose” IS STORAGE A “SCHOOL PURPOSE”? Parties’ Likely Arguments – For School District? – For Future Interest Holder?

ACADIA: Mahrenholz & DQ69 Meaning of “School Purpose” IS STORAGE A “SCHOOL PURPOSE”? What legal research could you do to help resolve this question?

ACADIA: Mahrenholz & DQ69 Meaning of “School Purpose” IS STORAGE A “SCHOOL PURPOSE”? Useful Legal Research includes: – CASES ON “SCHOOL PURPOSE” – CASES ON “CHURCH PURPOSE” ETC. What factual research could you do to help resolve this question? (What facts matter?)

ACADIA: Mahrenholz & DQ69 Meaning of “School Purpose” IS STORAGE A “SCHOOL PURPOSE”? Useful Factual Research includes: – Use of Space – Grantor’s Intent

ACADIA: Mahrenholz & DQ69 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

ACADIA: Mahrenholz & DQ69 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 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.

ACADIA: Mahrenholz & DQ70 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.

YOSEMITE: Problem 4I HALF DOME

YOSEMITE: (4I): 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.

YOSEMITE: (4I): 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." MULTI-STEP ANALYSIS Corresponds to Plausible Sequence of Multiple Choice Qs FSD or FSCS? CONDITION VIOLATED? EFFECT OF VIOLATION? ADVICE RE PURCHASE

YOSEMITE: (4I): 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." MULTI-STEP ANALYSIS FSD or FSCS? CONDITION VIOLATED? EFFECT OF VIOLATION? ADVICE RE PURCHASE

YOSEMITE: (4I): 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." FSD or FSCS? Does Orrin’s interest vest automatically (FSD) or does he have to act (FSCS)? Arguments for Each Position?

YOSEMITE: (4I): 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." FSD or FSCS: Arguments Include: “ So long as” & condition built into 1 st clause suggest FSD Moment of violation clear, so can be FSD “Right to re-enter” & 2 clauses suggest FSCS “Retains” suggests FSCS b/c implies that O’s right can be held for some period of time after violation Most states: Presumption favoring FSCS Mahrenholz: More like punishment than purpose

YOSEMITE: (4I): 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." MULTI-STEP ANALYSIS FSD or FSCS? CONDITION VIOLATED? EFFECT OF VIOLATION? ADVICE RE PURCHASE

YOSEMITE: (4I): 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." Does It Violate Condition if J’s Restaurant: (i)Serves several dishes cooked with wine or flamed with brandy? (ii)At Sunday brunch offers complimentary glass of Champagne?