MUSIC: Harry Connick Jr., 20 (1988)

1
MUSIC Harry Connick Jr., 20 (1988)

• In Mahrenholz (Wed/Thu)IGNORE THE JACQMAINS
• Delete last paragraph on P581.
• Delete last complete paragraph on P582.
• Pretend you never heard of the Jacqmains.

2
Now on Course Page

• Practice Midterm
• Comments Best Student Answers to Midterm
  Questions from Prior Years
• Information Box re Chapter 7 Exam

3
DOCTRINE OF WASTE
4
Doctrine of Waste Overview

• Doctrine Applies to
• Holder of Term of Years (Tenant) or Life Estate
  (Life Tenant)
• Vis-à-vis interests of holder of future interest
  remainder or reversion
• We are covering as part of Chapter 6, so testable
  on final exam, but not part of Chapter 7 test.

5
Doctrine of Waste Overview

• Generally Present holder has some duties to
  future interest holder to turn property over in
  roughly same condition it was received
• Underlying Concern Lack of incentives for
  present holder to take steps to preserve when
  benefits go to future interest holder
• Remedies Damages, injunction, or receivership
  (court takes over management of property).

6
Doctrine of Waste Overview

• Precise duties vary w circumstances, including
• Explicit terms in lease or grant creating life
  estate
• Type of waste at issue
• Term of years v. Life estate
• Likely amount of time before change in possession
• Type of lease residential v. commercial v.
  agricultural. (As with other areas in LT law,
  some changes as move away from agricultural lease
  as most common form.)

7
Three Types of Waste

• (1) Affirmative/Voluntary
• Deliberate acts that harm value of property
• Some complexity re when OK to remove valuable
  resources (timber/minerals)
• Traditionally couldnt touch capital assets
• Casebook says maybe OK today where
• Consistent with area custom
• Likely was grantors intent
• Where activity had started already when LT/TNT
  took possession

8
Three Types of Waste

• (2) Ameliorative
• Traditionally, could enjoin changes even if
  increased property value (though future interest
  holder unlikely to sue)
• Trend away from enforcement
•  Some cases can still be liable if
  substantially alter identity of premises (1-story
  ? 2 story)
• Some cases allow changes w security deposits for
  restoration (cf. reasonable modification)
• Some cases multi-factor test (e.g., extent of
  harm, nature of property, time remaining)

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Three Types of Waste

• (3) Permissive
• Tenant must keep property in as good repair as
  when took possession, unimpaired by T negligence
• Moore Must use ordinary care to preserve
  protect property, BUT not responsible for
  ordinary wear tear
• Casebook Paying mortgage interest, taxes,
  insurance
• Life Tenant Responsible
• Ordinary Tenant Not, Unless in Terms of Lease
• Casebook suggests duties in residential leases
  have changed w modern trends re responsibility
  for habitability

10
Moore, Laches Estoppel

• L dies leaving land w farmhouse to A (wife) for
  life, remainder to DK (daughter/grandson of A
  L)
• A D become estranged
• Last 2-3 yrs before death A negligently lets
  farmhouse deteriorate
• After As death, D/K sue for damages for
  permissive waste to farmhouse

11
Moore, Laches Estoppel

• Timing Kansas allows suit while life tenant
  still in possession, but doesnt require it
  (statute of limitations doesnt start to run
  until future interest holder takes possession)
• Equitable Defenses Trial Court found suit barred
  b/c of ESTOPPEL LACHES

12
Moore, Laches Estoppel

• ESTOPPEL
• Affirmative act by claimant, if relied on by
  other party, can bar contrary action by claimant
• E.g., if future interest holder told life tenant,
  OK to let slide, later suit for waste may be
  estopped.
• No evidence of here if anything, evidence is
  daughter repeatedly complained to mother

13
Moore, Laches Estoppel

• LACHES
• Failure to act in timely manner, IF delay
  disadvantages other party (like stat. limit.)
• OK if reasonable excuse for not acting more
  quickly (Perhaps future interest holder not
  enforcing more quickly b/c interest was just
  contingent or b/c young life estate holder died
  suddenly)

14
Moore, Laches Estoppel

• No LACHES in Moore
• Other party not disadvantaged Unavailability of
  As testimony not disadvantage b/c permissive
  harm to farmhouse so clear
• Reasonable excuses for not suing earlier
• D/K advised to avoid contact w A to avoid making
  bad situation worse
• D wanted to avoid aggravating mother taking
  she might need for expenses

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Moore, Intent Drafting

• Casebook Note 1 Would grantor have intended that
  his wife compensate daughter for deterioration in
  condition of farmhouse?
• Difficult when drafting to anticipate
  estrangement on to include complex instructions
  for management
• Qs on Moore?

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Doctrine of Waste Chapter 6

• (1) Florida Residential Landlord-Tenant Act
• Limits on Tenant Responsibility Probably Affect
  What Counts as Permissive Waste, Especially if
  Residential Tenant Reports Problems Landlord
  Doesnt Fix
• Consider re Florida Statutes, esp. 83.52

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Doctrine of Waste Chapter 6

• (2) Reasonable Modifications
• Absent anti-discrimination provisions without
  consent of landlord
• Some would be forbidden as affirmative waste b/c
  lowers market value
• Some would be ameliorative waste might be
  allowed, but hard-to-predict fact-specific
  inquiry
• 3604(f)(3)(a) thus operates as exception to
  doctrine of waste

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VESTED v. CONTINGENT REMAINDERS
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FUTURE INTERESTS THAT FOLLOW FINITE ESTATES
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.
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VESTED REMAINDER

• Grantee is living ascertainable person (Presumed
  if granted to a named individual)

21
VESTED REMAINDER

• Grantee is living ascertainable person AND
• Clause creating the remainder contains no
  condition on grantee taking the property except
  expiration of prior estate

22
VESTED REMAINDER

• Grantee is living ascertainable person AND
• Clause creating the remainder contains no
  condition on grantee taking the property except
  expiration of prior estate
• Example To Aaron for life, then to Oona and her
  heirs.

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CONTINGENT REMAINDER

• Grantee is presently unborn or unascertainable
  OR
• Clause creating the remainder contains a
  condition on grantee taking the property

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CONTINGENT REMAINDER EXAMPLES

• To Fred for life, then to Freds firstborn
  child. Fred presently has no children.
  (Not born)

25
Suppose Fred has a child
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CONTINGENT REMAINDER EXAMPLES

• To Fred for life, then to Freds oldest child
  living at Freds death. (not ascertainable)

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CONTINGENT REMAINDEREXAMPLES

• To Fred for life, then to Wilma and her heirs if
  Dino survives Fred (condition precedent)

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ANALOGY

• Vested Remainder ? Theater Ticket
• Contingent Remainder ? Lottery Ticket

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Life Estate Vested Remainder

• To Fred for Life, then to Wilma and her heirs

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Life Estate Contingent Remainder

• Barney to Fred for Life, then to Wilma and her
  heirs if Dino survives Fred.

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Life Estate Contingent Remainder

• Barney to Fred for Life then to Wilma and her
  heirs if Dino survives Fred. Barney retains a
  reversion.

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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

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PROBLEMS 7A-7F

34
(7A) O conveys Baconacre "to Mayer and her
heirs."

• Mayer's only child, Armour, runs up large bills.
  Can Armour's creditors reach any interest of
  Armour in Baconacre?

35
(7A) O conveys Baconacre "to Mayer and her
heirs."

• Mayer wishes to sell Baconacre and use the
  proceeds to take a trip around the world. Can
  Armour prevent Mayer from doing this?

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(7B) Kermit to Ernie for life, then to Burt
forever. (Common Law)

• Ernie ?

37
(7B) Kermit to Ernie for life, then to Burt
forever. (Common Law)

• Ernie Life Estate
• Burt ?

38
(7B) Kermit to Ernie for life, then to Burt
forever. (Common Law)

• Ernie Life Estate
• Burt Vested Remainder in Life Estate

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(7B) Kermit to Ernie for life, then to Burt
forever. (Common Law)
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(7B) Kermit to Ernie for life, then to Burt
forever. (Common Law)
Who owns the last piece?
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(7B) Kermit to Ernie for life, then to Burt
forever. (Common Law)
Kermit has a reversion (in frog green!) Ernie
dies?
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(7B) Kermit to Ernie for life, then to Burt
forever. (Common Law)
Kermit has a reversion Ernie dies? Burt has life
estate. Burt dies?
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(7B) Kermit to Ernie for life, then to Burt
forever. (Common Law)
Kermit has a reversion Ernie dies? Burt has life
estate. Burt dies? Kermit or Kermits heirs
have fee simple
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(7B) Kermit to Ernie for life, then to Burt
forever. (Today)

• Ernie Life Estate
• Burt ?

45
(7B) Kermit to Ernie for life, then to Burt
forever. (Today)

• Ernie Life Estate
• Burt Vested Remainder in Fee Simple
• Kermit?

46
(7B) Kermit to Ernie for life, then to Burt
forever. (Today)

• Ernie Life Estate
• Burt Vested Remainder in Fee Simple
• Kermit Nothing

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(7B) Kermit to Ernie for life, then to Burt
forever. (Today)
Ernie dies?
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(7B) Kermit to Ernie for life, then to Burt
forever. (Today)
Ernie dies? Burt takes a fee simple
absolute. Burt dies?
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(7B) Kermit to Ernie for life, then to Burt
forever. (Today)
Ernie dies? Burt takes a fee simple
absolute. Burt dies? Property passes by Burts
will or through intestacy to Burts heirs.
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(7C) Elmer to Sylvester for life, then to Bugs
and his heirs.

• Sylvester ?

51
(7C) Elmer to Sylvester for life, then to Bugs
and his heirs.

• Sylvester Life Estate
• Bugs?

52
(7C) Elmer to Sylvester for life, then to Bugs
and his heirs.

• Sylvester Life Estate
• Bugs Vested Remainder in Fee Simple

53
(7C) Elmer to Sylvester for life, then to Bugs
and his heirs.

• Bugs dies intestate without heirs. Impact?

54
(7C) Elmer to Sylvester for life, then to Bugs
and his heirs.

• Bugs dies intestate without heirs.
• Vested remainder passes to the state.
• Sylvester dies. Effect?

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(7C) Elmer to Sylvester for life, then to Bugs
and his heirs.

• Bugs dies intestate without heirs.
• Vested remainder passes to the state.
• Sylvester dies.
• State has a fee simple absolute.

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(7D) Mickey to Minnie for life, then to Pluto
for 99 years.

• Minnie ?

57
(7D) Mickey to Minnie for life, then to Pluto
for 99 years.

• Minnie Life Estate
• Pluto?

58
(7D) Mickey to Minnie for life, then to Pluto
for 99 years.

• Minnie Life Estate
• Pluto Vested Remainder in Term of Years.
• Anything Else?

59
(7D) 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 heirs or
  devisees)

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(7E) Derek to Bernie for life, then to Jorge
for life, then to Roger and his heirs.

• Bernie?

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(7E) Derek to Bernie for life, then to Jorge
for life, then to Roger and his heirs.

• Bernie Life Estate
• Jorge?

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(7E) 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?

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(7E) 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

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(7F) Reggie to Veronica for life, then to Betty
and her heirs if Betty attains the age of 21.
Betty is 15.

• Veronica ?

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(7F) 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?

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(7F) 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 F.S.
• What happens if Betty dies at 17?

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(7F) Reggie to Veronica for life, then to Betty
and her heirs if Betty attains the age of 21.
Betty is 15.

• What happens if Betty dies at 17?
• No instructions. What happens when a grantor
  does not fully dispose of the property in all
  possible scenarios?

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(7F) Reggie to Veronica for life, then to Betty
and her heirs if Betty attains the age of 21.
Betty is 15.

• If a grantor does not fully dispose of the
  property, we assume he kept the parts not
  mentioned for himself. Here, Reggie has a
  reversion. If Betty dies before turning 21,
  Reggie or his designees will get the property in
  fee simple when Veronica dies.

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(7F) Reggie to Veronica for life, then to Betty
and her heirs if Betty attains the age of 21.
Betty turns 21.

• Bettys contingent remainder vests leaving her
  with a vested remainder in f.s.
• Reggies reversion divests, leaving him with
  nothing.

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(7F) Reggie to Veronica for life, then to Betty
and her heirs if Betty attains the age of 21.

• What happens if Veronica dies when Betty is 17?

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(7F) Reggie to Veronica for life, then to Betty
and her heirs if Betty attains the age of 21.

• What if Betty turns 21 while Veronica is alive?

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THE READY BETTY JOKE
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QUESTIONS ON WRITTEN ASSIGNMENT 4?(DUE FRIDAY
AT START OF CLASS)
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QUESTIONS ON WRITTEN ASSIGNMENT 3?(DUE NOV 9/10)
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Closing Up Chapter 6 Anti-Discrimination Law
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Marable Evidence not Directly Addressing
Defendants Asserted Reasons

• For Plaintiff
• History no blacks ever
• HUD conclusion race
• D changing stories
• D willingness to use criteria (marital status)
  even if not sure lawful to do so
• N.20 Testimony re Ds statements re racial
  exclusion (though Trial Court found biased)

77
Marable Evidence not Directly Addressing
Defendants Asserted Reasons

• For Defendant
• Issues re plaintiffs credibility
• Changing stories re deposit
• Contradicted by manager re statement re marital
  status
• Contradicted by Mrs. Sims at credit service
  (Note Why Mrs. Sims lie? Clients Landlords)
• Landlord testimony She was unaware of his race
  until he mentioned

78
Marable Why Appellate Court is Willing to
Reverse Trial Court (cf. Sorenson)

• Standard Different for Reviewing Trial Court
  Fact-Finding than for Jury. In Federal Courts,
  Reverse if
• Jury No Reasonable Jury Could Find
• Trial Court Clear Error
• More Leeway to Court of Appeals
• S194 (end last full para.) definite firm
  impression mistake was committed
• Note that P probably didnt request jury trial
  b/c of concerns about all-white juries (see
  Sorenson)

79
Marable Why Appellate Court is Willing to
Reverse Trial Court (cf. Sorenson)

• Trial Court Fact-Finding v. Jury
• Undisputed Documentary Evidence Shows Ds Treated
  White Applicants Differently
• Ds own records inconsistent with their stories
• Allows CtApp to ignore evidence that trial court
  discounted b/c of credibility findings

80
Marable Why Appellate Court is Willing to
Reverse Trial Court (cf. Sorenson)

• Trial Court Fact-Finding v. Jury
• Undisputed Documentary Evidence Shows Ds Treated
  White Applicants Differently
• Trial Court Itself Not Credible
• Finds Feather Corp. Non-Existent Despite State
  Records
• Finds No Employment History Despite Parole Job
  with State
• Finds Constant Harassment re 3-5 Phone Calls

81
Marable Why Appellate Court is Willing to
Reverse Trial Court (cf. Sorenson)

• Trial Court Fact-Finding v. Jury
• Undisputed Documentary Evidence Shows Ds Treated
  White Applicants Differently
• Trial Court Itself Not Credible
• Qs on Sorenson or Marable?

82
Overlap Between Anti-Discrimination Funk/Right
to Transfer Issues

• Might have refusal to transfer case where
• Tenant claims unlawful discrimination (e.g.,
  Race)
• Landlord claims non-discriminatory reason (e.g.,
  Rev. Prob. 6G Bull Collinss Daughter)
• On Test, Youd Have to
• Discuss which reason evidence best supports.
• Discuss whether non-discriminatory reason would
  meet reasonableness test (See write up of 6G for
  similar discussion of Bull Collins issue under
  California law)

83
Review Problem 6G (Oats)

• Evidence supporting theory that reason for
  refusal to rent was inter-racial marriage?

84
Review Problem 6G (Oats)

• Evidence supporting theory that reason for
  refusal to rent was not inter-racial marriage?