PROPERTY A SLIDES
3-19-15
Thursday March 19 Music: Albéniz, Iberia
Alicia Delarrocha, Pianist
2009 Re-recording of Grammy Winner for 1974
for Best Classical Performance without Orchestra
• Today – Monday:
• Extra Office Hours Each Day (See Course Page & My Door)
• I’ll Answer E-Mail Qs Sent Before Monday @ 3:30 pm
• Next Tuesday: Test Here 8:00-9:10 am (Be Early!!!)
• Have Multiple #2 Pencils
• Bring Anonymous Grading Number (Available Online)
• Address Concerns (re Illness, Lateness, Problems in Room etc.) to
Registrar or Dean of Students (NOT TO ME!!!)
LOGISTICS: Review Problems 4R-4W
• Messy Old Exam Qs from Long Ago in a Galaxy Far Far
Away (Before I Used Mid-Semester Test)
• In Class Tomorrow, We’ll Work on 4R, 4S, 4U
• Identify Key Ambiguities/Questions, Then Work Through Some
Possible Scenarios (Like Problems 4I & 4O Today)
• Get As Far As We Can in First Hour Tomorrow
• I Will Post All Slides I Have on 4R, 4S, 4U Even If We Don’t Get to
Them in Class (plus Slides on 4T)
• After Class Friday, I’ll Post Memo with Some Additional
Follow-Through and Write-ups of 4V, 4W
REVIEW:
DEFEASIBLE FEES &
DEFEASIBLE
FINITE PRESENT ESTATES
DEFEASIBLE FEES:
Two Relevant Distinctions
1. Who holds future interest?: Grantor v. Grantee
2. Automatic termination v. Needs action by future
interest holder
Yields Following Flow Chart
FLOW CHART: IDENTIFYING DEFEASIBLE FEES
Who Holds Future Interest?
Grantor (or unnamed) or 2d Grantee
FLOW CHART: IDENTIFYING DEFEASIBLE FEES
Who Holds Future Interest?
Grantor (or unnamed) or 2d Grantee
If Grantor (or unnamed):
If 2d Grantee:
How does it operate?
Fee Simple on Executory Limitation
Self-Executing or Grantor Must Act
(plus Executory Interest)
FLOW CHART: IDENTIFYING DEFEASIBLE FEES
Who Holds Future Interest?
Grantor (or unnamed) or 2d Grantee
If Grantor (or unnamed):
If 2d Grantee:
How does it operate?
Fee Simple on Executory Limitation
(plus Executory Interest)
Self-Executing or Grantor Must Act
If Self-Executing:
Fee Simple Determinable
(plus Possibility of Reverter)
If Grantor Must Act:
Fee Simple on Condition Subsequent
(plus Right of Entry)
TERMINOLOGY: ME v. WORKBOOK (Reminder)
Defeasible fee in form of a Fee Simple Determinable
BUT with the future interest in third party:
• Me (& Restatement & You on Test): “Fee Simple on
Executory Limitation”
• Workbook: “Fee Simple Determinable” (See Workbook
p.72 fn19)
Review: Accessorizing
Defeasible Fees & Matching Future Interests
• FEE SIMPLE DETERMINABLE &
Possibility of Reverter
• F.S. ON CONDITION SUBSEQUENT &
Right of Re[Entry]
• F.S. ON EXECUTORY LIMITATION &
Executory Interest
Review: Examples of
Defeasible Finite Estates
Term of Years on Condition Subsequent:
“To Gabriel for 20 years, but if he ever passes the bar
exam, I can enter & retake.”
Life Estate on Executory Limitation
“To Brett for life, but to Steve & his heirs if Steve ever
passes the bar exam.”
REVIEW
Defeasible Finite Estates & Matching Future Interests
• Defeasible Finite Estates Necessarily Create Two Future
Interests
• One cuts off the finite estate if the condition is met
• One follows at the end of the finite estate if it terminates naturally
(i.e., if the condition is not met).
• If One Person Holds Both of These Future Interests,
They Will Merge Into the “Larger” Interest
REVIEW
Defeasible Finite Estates & Matching Future Interests
• Defeasible Finite Estates Necessarily Create Two Future Interests
• If One Person Holds Both of These Future Interests, They Will Merge
Into the “Larger” Interest
• Example (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)
• Merger captures idea that T will end up with land eventually no matter what.
REVIEW
Defeasible Finite Estates & Matching Future Interests
• Defeasible Finite Estates Necessarily Create Two Future Interests
• If One Person Holds Both of These Future Interests, They Will Merge Into
the “Larger” Interest
• Example (E79): O “To A for life or until A divorces, then to B"
• A: Life Estate on Executory Limitation.
• B: Shifting Exec. Int. + Vested Remainder  Vested Rem. (Merger)
• Merger captures idea that B will end up with land eventually no matter what.
REDWOOD: Problem 4I
REDWOODS & FERNS
REDWOOD: (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.
REDWOOD: (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
REDWOOD: (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
REDWOOD: (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?
REDWOOD: (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 1st clause suggest FSD
• Moment of violation likely pretty 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 (suggests FSCS)
REDWOOD: (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? Some Arguments Each Way
•CONDITION VIOLATED?
• EFFECT OF VIOLATION?
• ADVICE RE PURCHASE
REDWOOD: (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?
REDWOOD: (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?
• No Direct Sale of Liquor for $$$; Cooking Removes Actual Alcohol;
Flavored Dishes Maybe Not w/in Intent
• BUT: Cost of Alcohol Incorporated in Purchase Price; Diners Buying
Alcohol in Meals; Glass of Champagne Maybe w/in Intent
• EFFECT OF VIOLATION?
• ADVICE RE PURCHASE
REDWOOD: (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."
Effect of Violation if
J has FSD & O has Possibility of Reverter
• O gets legal title at moment of violation.
• If sufficient time has passed, J may have title through
adverse possession
REDWOOD: (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."
Effect of Violation if
J has FSCS & O has Right of Entry
• Assuming O has not acted, O still has RE
• If O is aware of Julia’s use of alcohol, may be held to have
waived the right to enforce regarding these kinds of uses of
alcohol.
REDWOOD: (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? (depends on FSD or FSCS)
• ADVICE RE PURCHASE?
REDWOOD: (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.
Possible Advice to D?
REDWOOD: (4I)
Plausible Advice to Donald Includes:
• Buy both present estate and future interest (or “all rights” of both J
and O) to merge into f.s.absolute
• Serve free liquor & raise prices (and argue waiver if O questions)
• Make purchase contingent on J insuring right to use alcohol (winning
suit re adverse possession/ waiver/etc.; buying future interest/waiver
from O)
• Find out if D is willing and able to sell beer/wine on nearby site for
people to take into restaurant.
Problem 4I
Plausible Advice to Donald
Test Note #5:
Test Will Include At Least One of a New Type of Question
Focused on Giving A Client This Type of Advice. E.g.,
Based on Facts of 4I, I might ask:
Assume that J’s restaurant is successful. 11 years after its opening,
your client D wants to buy it and add a bar. Which of the
following suggestions would it be helpful for you to make to D?:
EXAM TIP: “Which of the Following Arguments Does [Not]
Support …”
• Can Arise in Context of
•
•
•
•
•
Fee Simple v. Life Estate (White, Prob. 4O)
FSD v. FSCS (Mahrenholz, Prob. 4I)
Whether a Condition is Valid (Shapira, Prob. 4O)
Timing Ambiguities (after Shapira)
Advice Question (just described)
EXAM TIP: “Which of the Following Arguments Does [Not]
Support …”
For an Argument to “Support” a Particular Legal Result
(or for Advice to be “Helpful”):
1. It Must Be Legally and Factually Correct and
2. It Must Logically Suggest that the Result is More Likely or More
Desirable Than the Alternative
In 2006, Brian grants Mason-acre “to Dolly for life, then to
Jessica so long as she never tries to sell Mason-acre,
otherwise to Mike and Mili.”
At the time of the grant, Jessica has a
(a) Vested remainder in fee simple determinable.
(b) Vested remainder in fee simple absolute.
(c) Vested remainder in fee simple on executory limitation.
(d) Vested remainder subject to divestment.
Take a moment and try this.
In 2006, Brian grants Mason-acre “to Dolly for life, then to
Jessica so long as she never tries to sell Mason-acre,
otherwise to Mike and Mili.”
At the time of the grant, Jessica has a
(a) Vested remainder in fee simple determinable.
(b) Vested remainder in fee simple absolute.
(c) Vested remainder in fee simple on executory limitation.
(d) Vested remainder subject to divestment.
Why is (b) the correct answer?
Conditions: Additional Information
•Unacceptable Conditions
• Shapira
• Timing Issues
• Problem 4O
Unacceptable Conditions
Conditions So Abhorrent …
Unacceptable Conditions
Conditions So Abhorrent …
You Can’t Even Impose Them
on Your Own Children
Unacceptable Conditions
• Total Restraint on Alienation
Unacceptable Conditions
In 2006, Brian grants Mason-acre “to Dolly for life, then to
Jessica so long as she never tries to sell Mason-acre,
otherwise to Mike and Mili.”
• Total Restraint on Alienation is Invalid
Unacceptable Conditions
In 2006, Brian grants Mason-acre “to Dolly for life, then to
Jessica so long as she never tries to sell Mason-acre,
otherwise to Mike and Mili.”
• Total Restraint on Alienation is Invalid
• Pencil Out Unlawful Condition (and executory
interest that turns on it)
Unacceptable Conditions
In 2006, Brian grants Mason-acre “to Dolly for life, then to
Jessica so long as she never tries to sell Mason-acre,
otherwise to Mike and Mili.”
• Total Restraint on Alienation is Invalid
• Pencil Out Unlawful Condition (and executory
interest that turns on it)
• Result is Vested Remainder in Fee Simple Absolute
(2006 = “Today”)
Unacceptable Conditions
In 2006, Brian grants Mason-acre “to Dolly for life, then to
Jessica so long as she never tries to sell Mason-acre,
otherwise to Mike and Mili.”
•
Exam Question Fall 2007 & Spring 2010
• 1st Time Nasty b/c New & at End of Test: (1/63 students got it)
• 2d Time (with warning) about 45% got it.
• READ CAREFULLY!!
Unacceptable Conditions
• Total Restraint on Alienation
• Partial Restraint OK if Reasonable
Unacceptable Conditions
• Total Restraint on Alienation
• Partial Restraint OK if Reasonable
• Most Restrictions Restrain Alienation to Some Extent
• If too burdensome/weird could treat as too much restraint (b/c
nobody will purchase)
• See Casebook at P565-66
Maybe: “so long as the owner stays on the parcel
every night.”
Unacceptable Conditions
• Total Restraint on Alienation
• Partial Restraint OK if Reasonable
• Most Restrictions Restrain Alienation to Some Extent
• Use Restrictions (Use Only by X?)
• OK if Charitable
• Some jurisd: Non-Charitable = Unreas. Restraint on
Alienation
Unacceptable Conditions
• Total Restraint on Alienation
• Doing Criminal Acts
“To Katie if she murders Matt”
Unacceptable Conditions
• Total Restraint on Alienation
• Doing Criminal Acts
• Total Restraint on Marriage: Generally Barred
• Some Jurisd: Maybe OK if Life Estate
• Some Jurisd allow reasonable partial restraints
• E.g., “So long as she doesn’t marry until she turns 25”
• We’ll explore with Problem 4O & Shapira
Unacceptable Conditions
• Total Restraint on Alienation
• Doing Criminal Acts
• Total Restraint on Marriage: Generally Barred
• Encouraging Divorce (Evil In-Laws Grant):
“To Lindsay so long as she divorces Doug”
Unacceptable Conditions
• Total Restraint on Alienation
• Doing Criminal Acts
• Total Restraint on Marriage: Generally Barred
• Encouraging Divorce (Evil In-Laws Grant):
• Grant Penalizing Divorce Seems to be OK
“To Lindsay for Life, but if she divorces Doug, to Ashley”
Unacceptable Conditions
•
•
•
•
Total Restraint on Alienation
Doing Criminal Acts
Total Restraint on Marriage: Generally Barred
Encouraging Divorce
• Commonly Protected Characteristics
• Race-Based Limitations (Unenforceable)
• Sex-Based Upheld (At Least w/in Family
• Religion: (We’ll Discuss w Shapira)
Unacceptable Conditions
• Total Restraint on Alienation
• Doing Criminal Acts
• Total Restraint on Marriage: Generally Barred
• Encouraging Divorce
• Commonly Protected Characteristics
Questions?
Conditions: Additional Information
• Unacceptable Conditions
•Shapira
• Timing Issues
• Problem 4O
REDWOOD: DQ 4.13
REDWOODS & FERNS
Redwood: DQ4.13
 SHAPIRA: DISTINCTIONS 
We’ll Explore Shapira Reasoning by
Looking at Five Key Distinctions Drawn
by the Opinion
Redwood: DQ4.13
 SHAPIRA: DISTINCTION #1 
Gift conditioned upon religious faith of beneficiary 
v.
Gift conditioned upon marriage to person of particular faith 
Why Relevant?
Redwood: DQ4.13
 SHAPIRA: DISTINCTION #1 
Gift conditioned upon religious faith of beneficiary  v.
Gift conditioned upon marriage to person of particular faith 
• Coercing Belief  v. Conduct 
• Administrability
Redwood: DQ4.13
 SHAPIRA: DISTINCTION #1 
Gift conditioned upon religious faith of beneficiary  v.
Gift conditioned upon marriage to person of particular faith 
•Coercing Belief  v. Conduct 
• Note View of Marriage in 1974
• Can Use Case to Support Conditions Requiring Conduct Affecting
Religious Concerns but not Coercing Belief
• Administrability
Redwood: DQ4.13
 SHAPIRA: DISTINCTION #1 
Gift conditioned upon religious faith of beneficiary  v.
Gift conditioned upon marriage to person of particular faith 
•Administrability: Compare:
•To Pigpen, so long as the kitchens and bathrooms are always
kept very clean.
•To Schroeder, so long as he never plays any work by Beethoven
on the piano.
Redwood: DQ4.13
 SHAPIRA: DISTINCTION #1 
Gift conditioned upon religious faith of beneficiary  v.
Gift conditioned upon marriage to person of particular faith 
•Administrability: Compare:
• To Lucy so long as she remains a member of the Society of
Friends.
•  To Linus, so long as he remains a good Catholic.
QUESTIONS?
Redwood: DQ4.13
 SHAPIRA: DISTINCTION #2 
Gift conditioned upon divorce 
v.
Gift conditioned upon marriage to person of
particular faith (maybe )
Why Relevant?
Redwood: DQ4.13
 SHAPIRA: DISTINCTION #2 
Gift conditioned upon divorce  v.
Gift conditioned upon marriage to person of particular faith
(maybe )
• Court: Latter not sufficient to encourage fake marriage &
divorce.
• Grantee can’t avoid condition by saying “I will act in bad
faith” (this concern arises regarding many legal issues).
Redwood: DQ4.13
 SHAPIRA: DISTINCTION #3 
Conditional gift with “gift over” to third party
v.
Conditional gift without “gift over”
Comprehensive Estate Plan (likely)
v. “In Terrorem” Condition (maybe)
Redwood: DQ4.13
 SHAPIRA: DISTINCTION #4 
Forcing a marriage as a condition of a completed gift 
v.
Withholding gift until marriage made 
Why Relevant?
Redwood: DQ4.13
 SHAPIRA: DISTINCTION #4 
Forcing a marriage as a condition of a completed gift 
v. Withholding gift until marriage made 
• Remedy: Injunction v. Forfeiting Gift
• Like case involving divorce settlement requirement that
child be raised in particular faith
• Won’t impose contempt/criminal sanctions for not
following religion
Redwood: DQ4.13
 SHAPIRA: DISTINCTION #5 
Quaker Men (Maddox)  v.
 Jewish Women (Shapira)
Why Relevant?
Redwood: DQ4.13
 SHAPIRA: DISTINCTION #5 
Quaker Men (Maddox)  v.
Jewish Women (Shapira)
• Quakers = Too Few Available Partners 
• E.g., you must marry one of the Bronte Sisters 
SHENANDOAH: DQ4.14
APPALACHIAN TRAIL
Shapira v. Union National Bank
Shenandoah: DQ4.14
• Maddox held that these kinds of conditions
(partially restricting marriage) are unacceptable
where there is a sufficiently “small number of
eligible” partners.
• How few partners must there be to fail the
test?
Shapira v. Union National Bank
Shenandoah: DQ4.14
• Maddox held that these kinds of conditions
(partially restricting marriage) are unacceptable
where there is a sufficiently “small number of
eligible” partners.
• If you were living in a state with that test, how
could you prove whether it was met?
(Cf. Lawyering Q on Final Exam)
Shapira v. Union National Bank
Shenandoah: DQ4.14
• Maddox held that these kinds of conditions
(partially restricting marriage) are unacceptable
where there is a sufficiently “small number of
eligible” partners.
• Assuming that some partial restraints on
marriage are allowed, is the Maddox rule a
good result?
Shapira v. Union National Bank
Shenandoah: DQ4.14
• Maddox held that these kinds of conditions (partially
restricting marriage) are unacceptable where there is a
sufficiently “small number of eligible” partners.
Good Result?
• Too much restriction on grantee v.
• Grantor’s Rights (can always argue that grantors
should be able to dispose of their own property as
they wish).
Questions on Shapira?
ALL: DQ4.15 & 4.12
Should a court enforce conditions that limit or
mandate religious behavior for the grantee?
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 Prob. 4O
Conditions: Additional Information
• Unacceptable Conditions
• Shapira
•Timing Issues
• Problem 4O
Conditions & the Statute of Limitations
• If Condition is Self-Executing: Statute Runs from First Moment
Condition is Violated, Which Creates Trespass Claim
• If Future Interest Holder Must Act to Take:
• If claiming condition was violated only by a single discrete act,
presumably statute runs from the time of that act.
• If claiming condition was violated by a continuing series of acts (as in
4I), presumably statute continually restarts as long as acts go on (but
risk of waiver if aware of)
Conditions: Timing Ambiguity
To Andrew for life, then to Brian, but if Caitlin
graduates from law school, then to Caitlin.
If Caitlin graduates from law school during Andrew’s life
estate, does she divest Andrew’s interest or just Brian’s?
Conditions: Timing Ambiguity
Possible Arguments
To Andrew for life, then to Brian, but if Caitlin graduates
from law school, then to Caitlin.
• Common Law Presumption: If ambiguous, interest won’t
divest life estate.
• Today: Generally treated as question of Grantor’s Intent, so
look at context.
• I won’t test this as a difference between Common Law &
Today
Conditions: Timing Ambiguity
Possible Arguments
(1)To Andrew for life, then to Brian, but if Caitlin graduates from
law school, to Caitlin.
(2)To Andrew for life, then to Brian, but if Caitlin has graduated
from law school, then to Caitlin.
Differences in wording, especially verb tenses, suggest C takes
immediately for (1); at end of Life Estate for (2).
Conditions: Timing Ambiguity
Possible Arguments
To Andrew for life, then to Brian, but if Caitlin graduates
from law school, then to Caitlin.
Andrew is 16; Caitlin is 46.
• Seems unlikely Caitlin will survive Andrew
• Suggests grantor intended Caitlin’s interest to cut off Andrew’s
(or little point to the grant).
Conditions: Timing Ambiguity
Change Grant: Possible Arguments
(1)To Andrew for life, then to Brian, but if Caitlin Andrew
graduates from law school, then to Caitlin.
• Seems purpose of grant is either:
• To discourage A from going to law school
• To provide support for A unless he becomes a lawyer and can support
himself
• Either way, suggests C’s interest should cut off A’s Life Estate,
because it’s not aimed at either B or C.
Conditions: Timing Ambiguity
Change Grant: Possible Arguments
(1)To Andrew for life, then to Brian, but if Andrew graduates from
law school, then to Caitlin.
(2)To Andrew for life, then to Brian, but if Brian graduates from law
school, then to Caitlin.
• In (2), seems odd to punish Andrew for Brian’s life choices, so absent
clear reason, likely treat C’s interest as just cutting off B’s remainder