1. 3-8-19 National Orgeon Day National Proofreading Day
PROPERTY B SLIDES
Oregon
3-8-19
National Orgeon Day
National Proofreading Day

2. Music to Accompany Mahrenholz: Isaac Stern, 60th Anniversary Celebration (1981) New York Philharmonic Orchestra; Violins: Isaac Stern, Itzhak Perlman, Pinchas Zucherman Grammy Award for Best Classical Performance (Soloists with Orchestra) DF Today 9:40 Lauren: Rev Prob 2K(a)

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

4. 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)

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

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

7. 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

8. 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.

9. 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  ?

10. 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  ?

11. 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

12. 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?

13. 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.

14. Mahrenholz: Summary of Possibilities

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

16. 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”?

17. 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?

18. 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.

19. 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.

20. 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

21. 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.

22. 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 …

23. OLYMPIC: Mahrenholz & DQ3.09-3.11
EEL GLACIER

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

25. 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?

26. 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

27. 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 P532)
Waiver/Estoppel by future interest holder
Only possible if FSCS

28. 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?

29. 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

30. 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 …

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

32. 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)

33. 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

34. 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?

35. 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

36. 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.

37. 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.

38. LOGISTICS: Chapter 3 Test Preparation
I’ll Post onCourse Page by Thurs. Midnight of Break:
General Test Info & Instructions Page; 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

39. 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

40. 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. 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; to Make an Appointment

41. Executory Interests

42. 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.

43. 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.

44. 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

45. 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)

46. 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.

47. 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

48. 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

49. (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?

50. (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

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

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

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

54. (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)

55. (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)

56. 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.

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

58. 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 ↓ ↓ ↓

59. 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 ↓ ↓ ↓

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

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

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

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

64. 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?

65. 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

66. 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?)

67. 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”?

68. 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 …?

69. 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))

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

71. 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).

72. Life Estates & Remainders: Additional Information

73. 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.

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

75. 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”.

76. 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)

77. 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