PROPERTY D SLIDES
3-17-14
Monday March 17 Music: Albéniz, Iberia
Alicia Delarrocha, Pianist
2009 Re-recording of Grammy Winner for 1974
for Best Classical Performance without Orchestra
Name the Musical Group:
• 1st Billboard #1 Hit in 1958
• Won 5 Grammys; Nominated for 8 More
• Featured in Major Studio Motion Picture in 2011
Name the Musical Group:
• 1st Billboard #1 Hit in 1958
• Won 5 Grammys; Nominated for 8 More
• Featured in Major Studio Motion Picture in 2011
Name the Musical Group:
• 1st Billboard #1 Hit in 1958
• Won 5 Grammys; Nominated for 8 More
• Featured in Motion Picture in 2011
Pop Culture Update
Me on 3/3:
Top Model Under the Guns
From Caracas to Kabul to Kiev, Our Aspiring
Models Bring Fashion to the World’s War Zones
Pop Culture Update
Me on 3/3: Top Model Under the Guns
From Caracas to Kabul to Kiev, Our Aspiring Models Bring
Fashion to the World’s War Zones
Miami Herald on 3/9: Miami Company Takes
Golfers Into Danger Zones
You can play golf in Kabul on Afghanistan’s only course,
protected by a professional security team --
You Can’t Make This Stuff Up
Me on 3/3: Top Model Under the Guns
From Caracas to Kabul to Kiev, Our Aspiring Models Bring
Fashion to the World’s War Zones
Miami Herald on 3/9: Miami Company Takes
Golfers Into Danger Zones
You can play golf in Kabul on Afghanistan’s only course,
protected by a professional security team --
for only $40,000 to $80,000 for a five-day excursion.
LOGISTICS: Chapter 4 Test & Prep
• Wednesday
• Make-up class here at usual time.
• I will post additional sample Qs/tests & answers after class.
• Thursday – Sunday
• Extra Office Hours Each Day (See Course Page & My Door)
• I’ll Answer E-Mail Qs Sent Before Sunday @ 7:00 pm
• Next Monday: 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 Tuesday & Wednesday, We’ll Do 4R-4U
• Identify Key Ambiguities/Questions, Then Work Through Some
Possible Scenarios (Like Problem 4O Today)
• Get As Far As We Can Before 9:00 AM Wednesday
• I Will Post All Slides I Have on 4R-4U Even If We Don’t Get to Them
• After class Wednesday, I’ll Post Memo with Some
Additional Follow-Through and Write-ups of 4V and 4W
LOGISTICS: Going Forward
• Comments & Best Answers to All Posted Old Exam Qs
Available on Course Page
• Chapter 5: Adverse Possession
•
•
•
•
Supplement, Syllabus, Assignments on Course Page
We’ll Begin Classroom Work at 9:00 am Wednesday
Organized by Elements of Claim (Not by Case)
Four Primary Cases
• Need to Read for Plot by Thursday
• Reread as Needed for Discussions of Individual Elements
QUICK WARM-UP/REVIEW 1:
Remainders & Executory Interests
Basics
•
•
•
•
•
Reversion v. Remainder
Vested v. Contingent Remainder
Remainders in …
Remainder v. Executory Interest
Shifting v. Springing Executory Interests
WARM-UP/REVIEW 1:
Remainders & Executory Interests: Basics
Reversion v. Remainder
REVERSION: Future interest implicitly retained by grantor
when s/he conveys a finite estate without indicating who will
have rights when it expires.
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.
WARM-UP/REVIEW 1:
Remainders & Executory Interests: Basics
Vested v. Contingent Remainder
VESTED IF:
• Grantee is living ascertainable person AND
• Clause creating the remainder contains no condition on grantee
taking the property except expiration of prior estate
CONTINGENT IF:
• Grantee is presently unborn or unascertainable OR
• Clause creating the remainder contains a condition on grantee
taking the property
WARM-UP/REVIEW 1:
Remainders & Executory Interests: Basics
Remainders in …
“To Fred for life, then to Wilma for life.”
Wilma has a vested remainder in life estate.
“To Fred for life, then to Wilma and her heirs if Dino
survives Fred.
Wilma has a contingent remainder in fee simple absolute.
WARM-UP/REVIEW 1:
Remainders & Executory Interests: Basics
Remainder v. Executory Interest
REMAINDER: Future interest in a grantee that follows
naturally upon the termination of a finite estate. It is always
expressly conveyed by the grantor.
EXECUTORY INTEREST: Future interest in a grantee that
cuts off a prior vested interest (present estate or reversion or
vested remainder) rather than waiting for it to expire
naturally.
WARM-UP/REVIEW 1:
Remainders & Executory Interests: Basics
Shifting v. Springing Executory Interest
• Shifting Executory Interest cuts off interest of
another grantee.
• Springing Executory Interest cuts off grantor’s fee
simple or reversion.
WARM-UP/REVIEW 1:
Remainders & Executory Interests
More Advanced
•
•
•
•
Alternative Contingent Remainders
Vested Remainders Subject to Open
Vested Remainders Subject to Divestment
Problems 4L-4N
WARM-UP/REVIEW 1: Remainders &
Executory Interests: More Advanced
Alternative Contingent Remainder
• Two contingent remainders where the event that causes
one to vest will destroy the other.
• Convention is that, where these are created, you always
pencil in a reversion (even if it seems impossible that it will
ever become possessory).
WARM-UP/REVIEW 1: Remainders &
Executory Interests: More Advanced
Alternative Contingent Remainder
• Two contingent remainders where the event that causes one to vest
will destroy the other. Always pencil in a reversion.
• Example: Jordan: “To Kevin for life, then to Katherine and her
heirs if she graduates from law school, but if she never graduates
from law school, then to Sofia and her heirs.”
• Kevin has Life Estate
• Katherine & Sofia each have an Alternate Contingent Remainder
(in F.S.)
• Jordan retains a Reversion
WARM-UP/REVIEW 1: Remainders &
Executory Interests: More Advanced
Alternative Contingent Remainder
• Example: Jordan: “To Kevin for life, then to Katherine and her
heirs if she graduates from law school, but if she never graduates
from law school, then to Sofia and her heirs.”
What happens if Kevin dies & Katherine is alive
but has not yet graduated from law school?
WARM-UP/REVIEW 1: Remainders &
Executory Interests: More Advanced
Alternative Contingent Remainder
• Jordan: “To Kevin for life, then to Katherine and her heirs if she
graduates from law school, but if she never graduates from law
school, then to Sofia and her heirs.”
• Kevin dies; Katherine alive, hasn’t graduated.
• Jordan’s Reversion  Fee Simple …
•
If Destructability applies, both remainders destroyed, so J has FS Absolute.
•
If no Destructibility
•
Both remainders become executory interests
•
Jordan has FS on Executory Limitation
WARM-UP/REVIEW 1: Remainders &
Executory Interests: More Advanced
Vested Remainder Subject to Open
• Remainder
• given to a class of recipients (as opposed to specifically named
individuals),
• at least one of whom has qualified for the class,
• where other individuals could qualify for the class later.
• Example (4G): “To Larry for life, then to Larry's children
and their heirs.“ Larry has two living children.
WARM-UP/REVIEW 1: Remainders &
Executory Interests: More Advanced
Vested Remainder Subject to Divestment
• Vested Remainder followed by an Executory Interest that
could cut the VR off before it becomes possessory.
• Example (4K): “To George for life, then to Kramer and his
heirs; but if Kramer does not attain the age of 21, then to
Elaine and her heirs.” Kramer is 15 years old.
Questions Before Moving on to New
Material?
Vested Remainder Subject to Divestment (1) v.
Vested Remainder in F.S. subj. to Exec. Lim. (2)
(1) To A for life, then to B & her heirs, but if B dies before
turning 21, then to C & his heirs.
• Condition might occur before B obtains possession.
Vested Remainder Subject to Divestment (1) v.
Vested Remainder in F.S. subj. to Exec. Lim. (2)
(1) To A for life, then to B & her heirs, but if B dies before turning 21,
then to C & his heirs.
• Condition might occur before B takes possession.
(2) To A for life, then to B & her heirs, but if B ever uses the land
for commercial purposes, to C & his heirs.
• Condition is a limit on B’s use of the land and cannot occur before B
takes possession.
TERMINOLOGY: ME v. WORKBOOK
To A for life, then to B & her heirs, but if B dies before turning 21, then
to C & his heirs.
• Condition might occur before B takes possession, but also might occur
after.
• WORKBOOK (p93): Vested Remainder Subject to Divestment in Fee
Simple on Executory Limitation.
• ME: Phrase in italics is accurate but unnecessary. In multiple choice
answers, I will simply call this interest a Vested Remainder Subject to
Divestment (as long as it might occur before possession).
CORRECTION TO WORKBOOK (Problem 9-11)
O to A for life, then to B, but if B ever allows A to be moved
into a nursing home, then to C
• Condition must occur, if at all, while A is alive, thus before B
gets possession.
– Presumably (considering grantor’s likely intent), it would not
violate the condition for B to allow someone to carry A’s corpse
into a nursing home. (!)
CORRECTION TO WORKBOOK (Problem 9-11)
O to A for life, then to B, but if B ever allows A to be moved into a
nursing home, then to C
• Condition must occur, if at all, while A is alive, thus before B gets
possession.
• B will eventually get either nothing or a fee simple absolute
(assuming “today”)
• B has a vested remainder subject to divestment
– (in Fee Simple Absolute)
– NOT in Fee Simple on Executory Limitation
CORRECTION TO WORKBOOK (Problem 9-11)
O to A for life, then to B, but if B ever allows A to be moved
into a nursing home, then to C
• Condition must occur, if at all, while A is alive, thus before B gets
possession.
• B will eventually get either nothing or a fee simple absolute (assuming
“today”)
• B has a vested remainder subject to divestment [in FS Absolute]
QUESTIONS?
Alt. Contingent Remainders (1) v. Vested Remainder
Subject to Divestment (2)
(1) To A for life, then to B & her heirs if she turns 21,
but if B dies before 21, then to C and his heirs.
Reversion in O.
(2) To A for life, then to B & her heirs, but if B dies
before 21, then to C & his heirs. (No Reversion in O)
Alt.Contingent Remainders (1) v.
Vested Remainder Subject to Divestment (2)
(1) To A for life, then to B & heirs if she turns 21, but if B dies before
21, then to C & heirs. Reversion in O.
(2) To A for life, then to B & her heirs, but if B dies before 21, then to C
& his heirs.
• Both 1+2: If A alive & B dies at 14:
• B gets 0;
• C gets fee simple at A’s death
Alt. Contingent Remainders (1) v.
Vested Remainder Subject to Divestment (2)
(1) To A for life, then to B & heirs if she turns 21, but if B dies before
21, then to C & heirs. Reversion in O.
(2) To A for life, then to B & her heirs, but if B dies before 21, then to C
& his heirs.
• Both 1+2: If A alive & B turns 21:
• B has vested remainder
• C’s interest fails
Contingent Remainder (1) v.
Vested Remainder Subject to Divestment (2)
(1) To A for life, then to B & her heirs if she turns 21, but if B dies before 21, then to
C and his heirs. Reversion in O.
(2) To A for life, then to B & her heirs, but if B dies before 21, then to C & his heirs.
• (1) If A dies & B not yet 21:
• Conditions not met for either B or C. Remainders either
destroyed or become Springing Executory Interests
•
O takes Fee Simple [on Executory Limitation in Modern View
(exc. FL)]
Contingent Remainder (1) v.
Vested Remainder Subject to Divestment (2)
(1) To A for life, then to B & her heirs if she turns 21, but if B dies before 21, then to
C and his heirs. Reversion in O.
(2) To A for life, then to B & her heirs, but if B dies before 21, then to C & his heirs.
• (2) If A dies & B not yet 21
•
No requirement that B turn 21 to take possession, so B does
take possession and has Fee Simple on Executory Limitation.
•
C still has Shifting Executory Interest that will become
possessory if B dies before turning 21.
Contingent Remainder (1) v.
Vested Remainder Subject to Divestment (2)
(1) To A for life, then to B & her heirs if she turns 21, but if B
dies before 21, then to C and his heirs. Reversion in O.
(2) To A for life, then to B & her heirs, but if B dies before 21,
then to C & his heirs.
Questions?
CORRECTION TO WORKBOOK (Problem 5-28)
• O to A for life, then to B, on condition
that B has passed the bar.
CORRECTION TO WORKBOOK (Problem 5-28)
• O to A for life, then to B, on condition that B
has passed the bar.
– A has Life Estate
– B has a Remainder (follows life estate)
• At First Looks Vested
– Living Ascertainable Person
– No Condition in Clause Creating the Interest (Walk to the Punctuation
& Turn Around …)
–BUT …
CORRECTION TO WORKBOOK (Problem 5-28)
• O to A for life, then to B, on condition that B
has passed the bar.
– A has Life Estate
– B has a Remainder (follows life estate)
• At First Looks Vested
• BUT Condition that follows it does not create an interest in
anybody else, so must attach to B’s remainder
• Comma after B unneeded & confusing. 
CORRECTION TO WORKBOOK (Problem 5-28)
• O to A for life, then to B, on condition that B
has passed the bar.
– A has Life Estate
– B has a Contingent Remainder
• Condition is a “Condition Precedent”
• See 5-29, which strongly suggests that interest in 5-28 is a
contingent remainder.
QUESTIONS?
COMPARE
O to A for life, then to B[,] on condition that B
has passed the bar.
• A has Life Estate
• B has a Contingent Remainder
• O retains a Reversion
O to A for life, then to B, on condition that if B
ever fails the bar, then to C.
• A has Life Estate
• B has a Vested Remainder Subject to Divestment
• C has a Shifting Executory Interest
SHENANDOAH: Problems 4L-4N
APPALACHIAN TRAIL
SHENANDOAH (4L): Daffy "to Tweety for life, then to such of
Tweety's children as survive him, but if none of Tweety's children
survives him, then to Peggy and her heirs."
Tweety has 2 children, Heckle and Jeckle.
• Tweety: ?
SHENANDOAH (4L): Daffy "to Tweety for life, then to such of
Tweety's children as survive him, but if none of Tweety's
children survives him, then to Peggy and her heirs."
Tweety has 2 children, Heckle and Jeckle.
• Tweety: Life Estate
• Tweety’s Children?
SHENANDOAH (4L): Daffy "to Tweety for life, then to such of
Tweety's children as survive him, but if none of Tweety's children
survives him, then to Peggy and her heirs."
Tweety has 2 children, Heckle and Jeckle.
• Tweety: Life Estate
• Tweety’s Children: Contingent Remainder (in f.s.) (Must
Survive Tweety)
• Peggy?
SHENANDOAH (4L): Daffy "to Tweety for life, then to such of
Tweety's children as survive him, but if none of Tweety's children
survives him, then to Peggy and her heirs."
Tweety has 2 children, Heckle and Jeckle.
• Tweety: Life Estate
• Tweety’s Children: Contingent Remainder (in f.s.)
• Peggy: Alternative Contingent Remainder (in f.s.): Only 2
Possibilities:
– Tweety survived by children (who take)
– Tweety not survived by children (Peggy takes)
SHENANDOAH (4L): Daffy "to Tweety for life, then to such of
Tweety's children as survive him, but if none of Tweety's children
survives him, then to Peggy and her heirs."
Tweety has 2 children, Heckle and Jeckle.
• Tweety: Life Estate
• Tweety’s Children: Alternative Contingent Remainder (in f.s.)
• Peggy: Alternative Contingent Remainder (in f.s.)
• Anything Else?
SHENANDOAH (4L): Daffy "to Tweety for life, then to such of
Tweety's children as survive him, but if none of Tweety's children
survives him, then to Peggy and her heirs."
Tweety has 2 children, Heckle and Jeckle.
• Tweety: Life Estate
• Tweety’s Children: Contingent Remainder (in f.s.)
• Peggy: Alternative Contingent Remainder (in f.s.)
• Daffy: Reversion (even when alternate contingent
remainders)
SHENANDOAH (4L): Daffy "to Tweety for life, then to such of Tweety's
children as survive him, but if none of Tweety's children survives him, then
to Peggy and her heirs."
•
•
•
•
Tweety: Life Estate
Tweety’s Children: Alternative Contingent Remainder (in f.s.)
Peggy: Alternative Contingent Remainder (in f.s.)
Daffy: Reversion (even when alternate contingent remainders)
SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's
children and their heirs, but if at Billy's death he is not survived by
any children, then to Jo and her heirs." Billy has no children.
• Billy: ?
SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's
children and their heirs, but if at Billy's death he is not survived
by any children, then to Jo and her heirs." Billy has no children.
• Billy: Life Estate
• Billy’s children: ?
SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's
children and their heirs, but if at Billy's death he is not survived
by any children, then to Jo and her heirs." Billy has no
children.
• Billy: Life Estate
• Billy’s children: Contingent Remainder
(in f.s.) (Unborn)
• Jo: ?
Alternative Contingent Remainders
Two contingent remainders for which the event that
causes one to vest will destroy the other.
SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's
children and their heirs, but if at Billy's death he is not survived by
any children, then to Jo and her heirs." Billy has no children.
• When does contingent remainder in B’s children vest?
SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's
children and their heirs, but if at Billy's death he is not survived by
any children, then to Jo and her heirs." Billy has no children.
• Contingent remainder in B’s children vests when a child of B’s is
born.
• When does contingent remainder in Jo vest?
SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's
children and their heirs, but if at Billy's death he is not survived by
any children, then to Jo and her heirs." Billy has no children.
• Contingent remainder in B’s children vests when a child of B’s is
born.
• Contingent remainder in Jo vests when Billy dies survived by no
children.
• Is the interest in Jo destroyed when the interest in the children
vests?
SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's
children and their heirs, but if at Billy's death he is not survived by
any children, then to Jo and her heirs." Billy has no children.
• Billy: Life Estate
• Billy’s children: Contingent Remainder (in f.s.)
• Jo: Contingent Remainder (in f.s.) (Not alternate)
• Anything Else?
SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's
children and their heirs, but if at Billy's death he is not survived by
any children, then to Jo and her heirs." Billy has no children.
• Billy: Life Estate
• Billy’s children: Contingent Remainder (in f.s.)
• Jo: Contingent rem. (in f.s.) (Not alternate)
• Amanda: Reversion
SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's
children and their heirs, but if at Billy's death he is not survived by
any children, then to Jo and her heirs." Billy has no children.
•
•
•
•
Billy: Life Estate
Billy’s children: Contingent Rem. (in f.s.) (unborn)
Jo: Contingent Rem. (in f.s.) (Not Alternative)
Amanda: Reversion
SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's children and
their heirs, but if at Billy's death he is not survived by any children, then to
Jo and her heirs."
Billy has a child, Sydney.
• Billy: Life Estate
• Sydney?
SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's children and
their heirs, but if at Billy's death he is not survived by any children,
then to Jo and her heirs."
Billy has a child, Sydney.
• Billy: Life Estate
• Sydney: Vested Remainder (in f.s.) …
– Subject to Open (B can have more children) …
– Subject to Divestment (interest lost if none of B’s children
survive B)
• Jo?
SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's children and
their heirs, but if at Billy's death he is not survived by any children, then to
Jo and her heirs."
Billy has a child, Sydney.
• Billy: Life Estate
• Sydney: Vested Remainder (in f.s.) Subject to Open, Subject to Divestment
• Jo: Shifting Executory Interest (in f.s.) (would cut off vested
remainder)
• Amanda?
SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's children and
their heirs, but if at Billy's death he is not survived by any children, then to
Jo and her heirs."
Billy has a child, Sydney.
• Billy: Life Estate
• Sydney: Vested Remainder (in f.s.) Subject to Open, Subject to Divestment
• Jo: Shifting Executory Interest (in f.s.) (would cut off vested remainder)
• Amanda: Nothing (Reversion divests when 1st contingent
remainder vests)
SHENANDOAH (4N): Clark “to Jimmy for life, then to Lois & her
heirs, but if Jimmy is survived at his death by any children, then to
such surviving children & their heirs.
Jimmy has two children, Perry & Della.
• Jimmy?
SHENANDOAH (4N): Clark “to Jimmy for life, then to Lois & her
heirs, but if Jimmy is survived at his death by any children, then to
such surviving children & their heirs.
Jimmy has two children, Perry & Della.
• Jimmy: Life Estate
• Lois?
SHENANDOAH (4N): Clark “to Jimmy for life, then to Lois & her
heirs, but if Jimmy is survived at his death by any children, then to
such surviving children & their heirs.
Jimmy has two children, Perry & Della.
• Jimmy: Life Estate
• Lois: Vested Remainder (in f.s.) Subject to Divestment
• J’s Children
SHENANDOAH (4N): Clark “to Jimmy for life, then to Lois & her
heirs, but if Jimmy is survived at his death by any children, then to
such surviving children & their heirs.
Jimmy has two children, Perry & Della.
• Jimmy: Life Estate
• Lois: Vested Remainder (in f.s.) Subject to Divestment
• J’s Children: Shifting Executory Interest (in f.s.)
• Clark?
SHENANDOAH (4N): Clark “to Jimmy for life, then to Lois & her
heirs, but if Jimmy is survived at his death by any children, then to
such surviving children & their heirs.
Jimmy has two children, Perry & Della.
• Jimmy: Life Estate
• Lois: Vested Remainder (in f.s.) Subject to Divestment
• J’s Children: Shifting Executory Interest (in f.s.)
• Clark: Nothing
GRANTS IN (4L) & (4M) & (4N)
ALL TRYING TO DO SAME THINGS:
(1) To A for life, then …
(2) If A has any surviving children, they take.
(3) If no surviving children, to B.
BUT The Precise Wording of Each Grant Creates a Slightly
Different Set of Interests
(4L) & (4M) & (4N)
Test Note #4:
Test Will Include Grants Modeled on At Least One of These
Problems. I’ll Ask You to:
1. Identify the Interests Created; and
2. Identify the State of the Title as Relevant Parties are Born
or Die.
WARM-UP/REVIEW 2:
Conditional Interests
BASICS
• Identifying Defeasible Fees
• Defeasible Fees v. Finite Estate +
Contingent Remainder
• Defeasible Finite Estates
• Future Interests that Follow Defeasible
Estates
IDENTIFYING DEFEASIBLE FEES
Who Holds Future Interest?
Grantor (or unnamed) or 2d Grantee
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)
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)
WARM-UP/REVIEW 2:
Conditional Interests
BASICS
• Identifying Defeasible Fees
• Defeasible Fees v. Finite Estate +
Contingent Remainder
• Defeasible Finite Estates
• Future Interests that Follow Defeasible
Estates
DEFEASIBLE FEES
v. (FINITE ESTATES +)
CONTINGENT REMAINDERS
DEFEASIBLE FEES
• PRESENT INTEREST IS
FEE
CONTINGENT
REMAINDERS
• PRESENT INTEREST
IS FINITE
DEFEASIBLE FEES
• PRESENT ESTATE CUT
OFF IF CONDITION
MET
CONTINGENT
REMAINDERS
• PRESENT ESTATE
TERMINATES
NATURALLY
DEFEASIBLE FEES
• FUTURE INTEREST IN
EITHER GRANTOR OR
GRANTEE
CONTINGENT
REMAINDERS
• REMAINDER IN
GRANTEE PLUS
REVERSION IN
GRANTOR
Pepe grants Tealacre to Rory and his heirs, but if Totie
loses 100 pounds, she may enter and retake the land.
(Fee Simple on Executory Limitation + Executory Interest)
Pepe grants Tealacre to Rory for life, then to Totie if she
loses 100 pounds.
(Life Estate + Contingent Remainder + Reversion in Pepe)
WARM-UP/REVIEW 2:
Conditional Interests
BASICS
• Identifying Defeasible Fees
• Defeasible Fees v. Finite Estate +
Contingent Remainder
• Defeasible Finite Estates
• Future Interests that Follow Defeasible
Estates
Defeasible Finite Estates: Examples
Term of Years on Condition Subsequent:
“To Joshua for 20 years, but if he ever passes the bar
exam, I can enter & retake.”
Life Estate on Executory Limitation
“To Richard for life, but to Chris & his heirs if Chris ever
passes the bar exam.”
WARM-UP/REVIEW 2:
Conditional Interests
BASICS
• Identifying Defeasible Fees
• Defeasible Fees v. Finite Estate +
Contingent Remainder
• Defeasible Finite Estates
• Future Interests that Follow
Defeasible Estates
Defeasible Fees & Matching Future Interests
(Accessorizing)
• FEE SIMPLE DETERMINABLE &
Possibility of Reverter
• F.S. ON CONDITION SUBSEQ’T &
Right of Re[Entry]
• F.S. ON EXECUTORY LIMITATION &
Executory Interest
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
Defeasible Finite Estates & Matching Future
Interests
• Defeasible Finite Estates Necessarily Create Two
Future Interests
• If One Person Holds Both 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
Defeasible Finite Estates & Matching Future
Interests
• Defeasible Finite Estates Necessarily Create Two
Future Interests
• If One Person Holds Both 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) (Captures idea that T will
end up with land eventually no matter what)
Defeasible Finite Estates & Matching Future
Interests
• Defeasible Finite Estates Necessarily Create Two
Future Interests
• If One Person Holds Both 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 Executory Interest + Vested Remainder
Defeasible Finite Estates & Matching Future
Interests
• Defeasible Finite Estates Necessarily Create Two
Future Interests
• If One Person Holds Both 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 Executory Interest + Vested Remainder
 Vested Remainder (Merger) (Captures idea that
A will end up with land eventually no matter what)
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
• Problem 4O
• Shapira
• Timing Issues
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
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 P632-33
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 (Only by X?)
• OK if Charitable
• Some jurisd: Non-Charitable = Unreas. Restraint
on Alienation
Unacceptable Conditions
• Total Restraint on Alienation
• Doing Criminal Acts
“To Kyley 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
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
Encouraging Divorce
• 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
Encouraging Divorce
Commonly Protected Characteristics
• Race-Based Limitations (Unenforceable)
• Sex-Based Upheld w/in Family
• Religion: (We’ll Discuss w Shapira)
Unacceptable Conditions
•
•
•
•
•
Total Restraint on Alienation
Doing Criminal Acts
Total Restraint on Marriage
Encouraging Divorce
Commonly Protected Characteristics
QUESTIONS?
Conditions:
Additional Information
• Unacceptable Conditions
• Problem 4O
• Shapira
• Timing Issues
Yellowstone (4O): Archie in will: “To my wife Edith, for her use &
benefit, so long as she remains unmarried.”
Residue to daughter Gloria.
• Gloria is not Edith’s child.
• Edith moves in with male friend, Sherman.
• Edith then dies, devising all her property to Sherman.
“devising” means?
Yellowstone (4O): Archie in will: “To my wife Edith, for her use &
benefit, so long as she remains unmarried.”
Residue to daughter Gloria.
Note on Future Interests Created in Wills
• The future interest that is retained by Archie (when he grants present
interest to Edith) then passes to Gloria through the residuary clause.
• For purposes of naming the property rights involved, we treat this
future interest as being held initially by Archie (the grantor), because it
is not explicitly described as being granted to a third party.
Yellowstone (4O): Archie in will: “To my wife Edith, for her use &
benefit, so long as she remains unmarried.” Residue to
daughter Gloria.
Three Qs/Ambiguities I Said We’d Discuss:
1. Life Estate Determinable v. Fee Simple Determinable?
2. Is condition restraining second marriage void?
3. Does cohabitation violate a restraint on marriage?
Then We’ll Work Through Decision Tree
EXAM TIP: “Which of the Following Arguments Does
[Not] Support …”
• Can Arise in Context of
– Fee Simple v. Life Estate (White, 4o)
– FSD v. FSCS (Mahrenholz, 4i)
– Whether a Condition is Valid (Shapira, 4o)
– Timing Ambiguities (Tomorrow)
EXAM TIP: “Which of the Following Arguments Does
[Not] Support …”
• For an Argument to “Support” a
Particular Legal Result:
1. It Must Be Correct and
2. It Must Logically Suggest that the Result is
More Likely or More Desirable Than the
Alternative
YELLOWSTONE (PROBLEM 4O)
GIANT GEYSER
Yellowstone (4O): Archie in will: “To my wife Edith, for her use &
benefit, so long as she remains unmarried.”
Residue to daughter Gloria.
(Q1) Arguments Supporting Fee Simple Determinable
(as opposed to Life Estate Determinable?)
Yellowstone (4O): Archie in will: “To my wife Edith, for her use &
benefit, so long as she remains unmarried.”
Residue to daughter Gloria.
• Arguments Supporting FSD Include:
– Presumption of Fee Simple if Today
– No Explicit Reference to “Life”
– No Explicit Gift Over Listed (See White v. Brown)
• Arguments Supporting Life Estate
Determinable?
Yellowstone (4O): Archie in will: “To my wife Edith, for her use &
benefit, so long as she remains unmarried.”
Residue to daughter Gloria.
(Q1) Arguments Supporting Life Estate Determinable Include:
• Presumption of Life Estate if at Common Law
• “Use and Benefit” Sounds Like Life Estate (Hard to “Use” Land After
Death)
• Condition/Language is Consistent with Intent to Provide
Shelter/Support for Edith During Her Lifetime
• Reasonable to Think Archie would try to Protect Gloria (not Edith’s
daughter)
Yellowstone (4O): Archie in will: “To my wife Edith, for her use &
benefit, so long as she remains unmarried.”
Residue to daughter Gloria.
• Caselaw in many states today interpreting
“for use and benefit:”
– Majority View: creates Fee Simple
– Minority View: creates Life Estate
Yellowstone (4O): Archie in will: “To my wife Edith, for her use &
benefit, so long as she remains unmarried.”
Residue to daughter Gloria.
Majority View:
• E has Fee Simple Determinable
• What is Remaining Future Interest in Archie
(passed to Gloria through residuary clause)?
Yellowstone (4O): Archie in will: “To my wife Edith, for her use &
benefit, so long as she remains unmarried.”
Residue to daughter Gloria.
Majority View:
• E has Fee Simple Determinable
• A  G: Possibility of Reverter
Yellowstone (4O): Archie in will: “To my wife Edith, for her use &
benefit, so long as she remains unmarried.”
Residue to daughter Gloria.
Minority View:
• E has Life Estate Determinable
• What is Remaining Future Interest in Archie
(passed to Gloria through residuary clause)?
Yellowstone (4O): Archie in will: “To my wife Edith, for her use &
benefit, so long as she remains unmarried.”
Residue to daughter Gloria.
Minority View:
• E has Life Estate Determinable
• Possibility of Reverter + Reversion
– Merges into Reversion
Yellowstone (4O): Archie in will: “To my wife Edith, for her use &
benefit, so long as she remains unmarried.”
Residue to daughter Gloria.
(Q2) If Edith had never married, condition probably would
be void as against public policy. (Allowed for life estates in a
few states)
Should we treat condition restraining second marriage
differently from one restraining first marriage?
Yellowstone (4O): Archie in will: “To my wife Edith,
for her use & benefit, so long as she remains
unmarried.” Residue to daughter Gloria.
(Q2) Is condition restraining second
marriage void as against public policy?
• Policy Concerns: A’s right to control property v. E’s
right to control her life
• Court probably more likely to allow condition if it
views E’s interest as just a life estate for support
Yellowstone (4O): Archie in will: “To my wife Edith,
for her use & benefit, so long as she remains
unmarried.” Residue to daughter Gloria.
(Q2) Is condition restraining second marriage
void as against public policy? Result:
–If not void, nothing changes
–If void, pencil out condition
Yellowstone (4O): Archie in will: “To my wife Edith,
for her use & benefit, so long as she remains
unmarried.” Residue to daughter Gloria.
• If condition void, pencil out condition:
“To my wife Edith, for her use & benefit,
so long as she remains unmarried.”
Yellowstone (4O): Archie in will: “To my wife Edith,
for her use & benefit, so long as she remains
unmarried.” Residue to daughter Gloria.
• If condition void, pencil out condition:
“To my wife Edith, for her use & benefit,
so long as she remains unmarried.”
• Resulting Interests:
– Majority: E = Fee Simple Absolute
– Some: E = Life Estate + G = Reversion
If Void, What Happens when E dies?
Yellowstone (4O): Archie in will: “To my wife E, for her use
& benefit, so long as she remains unmarried.” Residue
to G. E then dies leaving all property to S.
If condition void, resulting interests:
• Majority: E = Fee Simple Absolute
– When E Dies, S gets FSA through E’s will.
• Some: E = Life Estate + G = Reversion
– When E dies, Life Estate ends, and G has FSA.