PROPERTY D SLIDES

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PROPERTY D SLIDES

• 3-15-16
• Florida Primary Day
• National Everything-You-Think is Wrong Day

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Tuesday March 15 MusicWynton Marsalis,
TrumpetClassic Wynton (1998)
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Previously in Property D

• Chapter 4 Distinctions You Should Know
• Present Possessory Estates v. Future Interests
• Fee Simple v. Finite Present Estates
• Interests Following Finite Estates Reversions
  v. Remainders
• Vested v. Contingent Remainders
• Common Law v. Today
• Defeasible Interests Determinable v. on
  Condition Subsequent (Well Review Before
  Doing Problem 4I)

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WARM-UP/REVIEW Basic DistinctionsPresent
Possessory Estates v. Future Interests

• PRESENT POSSESSORY ESTATE Entitles holder to
  immediate and current use and possession of the
  land in question.
• FUTURE INTEREST Holder has no right to immediate
  and current use and possession of the land, but
  instead right to potentially use and possess the
  land at some point in the future. Possession may
  be relatively certain to occur (e.g., Vested
  Remainders, some Reversions) or dependent on
  uncertain conditions (e.g., Contingent
  Remainders, Possibilities of Reverter)

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WARM-UP/REVIEW Basic DistinctionsPresent
Possessory Estates v. Future Interests

• PRESENT POSSESSORY ESTATES
• Fee Simple
• Life Estate
• Term of Years
• Fee Tail

• FUTURE INTERESTS
• Reversion
• Possibility of Reverter
• Right of ReEntry
• Vested Remainder
• Contingent Remainder
• Executory Interest

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WARM-UP/REVIEW Basic DistinctionsFee Simple v.
Finite Present Estates

• FEE SIMPLE Entitles holder to immediate and
  current use and possession of the land in
  question and rights to use, possess and transfer
  it for the infinite future.
• FINITE PRESENT ESTATE Entitles holder to
  immediate and current use and possession of the
  land in question. Rights end at a fixed point in
  the future
• Life Estate End of Original Grantees Life
• Term of Years End of Specified Length of Time
• Fee Tail (Common Law) End of Grantees Direct
  Line of Descent

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WARM-UP/REVIEW Basic DistinctionsInterests
Following Finite Estates

• 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.

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WARM-UP/REVIEW Basic DistinctionsVested 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 an
  explicit condition on grantee taking the
  property.

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WARM-UP/REVIEW BasicsRemainders 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.

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WARM-UP/REVIEW Basic DistinctionsCommon Law v.
Today

• At Common Law Dates prior to modern
  streamlining of the rules. (e.g., 1600-1800)
• Today Dates after modern streamlining of the
  rules. (e.g., 1950-present)

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WARM-UP/REVIEW Basic DistinctionsCommon Law v.
Today

• At Common Law
• Default Estate Life Estate
• Fee Tail is Available

• Today
• Default Estate Fee Simple
• Fee Tail Eliminated in All Jurisdictions

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Executory Interests
13
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.

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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

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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 grantors
  fee simple or reversion
• Physical Model/Analogy (if helpful)

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Executory Interests EXAMPLES

• Shifting Executory Interest
• To Danny his heirs so long as no tobacco is
  grown on the land, otherwise to Brandon and his
  heirs.

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Executory Interests EXAMPLES

• Springing Executory Interest
• To Blayne if she passes the California bar exam.
• Grantor who started with Fee Simple Absolute
• is left with
• Fee Simple on Executory Limitation

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(4F) Reggie to Veronica for life, then to Betty
and her heirs if Betty attains the age of 21.

• Lets Return to Problem 4F Riverdale High

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(4F) Reggie to Veronica for life, then to Betty
and her heirs if Betty attains the age of 21.

• Veronica Life Estate
• Betty Contingent Remainder in Fee Simple
• Reggie Reversion
• What if Veronica dies while Betty is still age
  17?
• Life Estate is Over
• Betty Cant Take Condition Not Met
• So Who Gets What?

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(4F) 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 isnt ready, she loses her table.
• Reggies Reversion becomes Fee Simple Absolute

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Doctrine of Destructability of Contingent
Remainders (Common Law)First Common Application
If contingency not met when prior estate ends,
contingent remainder is destroyed.
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Doctrine of Destructability of Contingent
Remainders
Today Overruled by statute or caselaw in every
American jurisdiction except
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Doctrine of Destructability of Contingent
Remainders (Today)
Overruled by statute or caselaw in every American
jurisdiction except
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(4F) 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.
• Bettys remainder becomes an executory interest.
• Reggie takes possession and has fee simple on
  executory limitation (cut off if B turns 21)

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(4F) 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)

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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.

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Doctrine of Destructability of Contingent
Remainders Second Common Application

• Elyse to Gina for life, then to Haley if Haley
  passes a bar exam.

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Doctrine of Destructability of Contingent
Remainders Second Common Application (Common Law)

• Elyse to Gina for life, then to Haley if Haley
  passes a bar exam.
• Gina purchases Reversion from Elyse?
• Life Estate Reversion Merge ? Fee Simple
  Absolute
• Haleys Contingent Remainder is Destroyed

? ? ? Merge Destroy ? ? ?
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Today (Everywhere except Florida)Merger without
Destruction

• Elyse to Gina for life, then to Haley if Haley
  passes a bar exam.
• Gina purchases Reversion from Elyse?
• Life Estate Reversion Merge ? Fee Simple on
  Executory Limitation
• Haleys Contingent Remainder Becomes an Executory
  Interest

? ? ? Merge ? ? ?
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PROBLEMS 4J-4NPLEASE HOLD QUESTIONS UNTILWE
FINISH PROBLEM 4N
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OLYMPIC Problems 4J-4L
EEL GLACIER
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Olympic (4J) Mary "to Rhoda for life, then to
Ted if Ted gives Mary a proper funeral."

• Rhoda?

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Olympic (4J) Mary "to Rhoda for life, then to
Ted if Ted gives Mary a proper funeral."

• Rhoda Life Estate
• Ted?

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Olympic (4J) 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?

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Olympic (4J) 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

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Olympic (4J) Mary "to Rhoda for life, then to
Ted if Ted gives Rhoda a proper funeral."

• Rhoda Life Estate
• Ted? (Does Change from Marys Funeral to Rhodas
  Affect Nature of Teds Interest?)

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Olympic (4J) Mary "to Rhoda for life, then to
Ted if Ted gives Rhoda a proper funeral."

• Rhoda Life Estate
• Ted? (Does Change from Marys Funeral to Rhodas
  Affect Nature of Teds Interest?)
• HINT What would make a funeral not proper?

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Olympic (4J) Mary "to Rhoda for life, then to
Ted if Ted gives Mary Rhoda a proper funeral."

• Rhoda Life Estate
• Ted cant possibly give Rhoda a proper funeral
  by the time Rhoda dies.
• There will be a gap in time between the end of
  Rs life estate and Teds interest.
• Thus, Teds interest cannot be a remainder
• So Ted has ?

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Olympic (4J) 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
  grantors interest reversion)

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EXAM TIP USE COMMON SENSE!!

• Cant give a proper funeral to a person until
  after the person has died.

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EXAM TIP USE COMMON SENSE!!

• Cant 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).

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Life Estates Remainders Additional
Information
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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.

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Alternative Contingent Remainders
Two contingent remainders where the event that
causes one to vest will destroy the other.
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Alternative Contingent Remainders
Two contingent remainders where the event that
causes one to vest will destroy the other.
Example Jordan grants 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.
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Alternative Contingent Remainders
Two contingent remainders for which the event
that causes one to vest will destroy the other.
Example 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. Here, only two
possibilities either (1) Katherine will graduate
from law school (and would then take) or (2) she
will die before graduating from law school (Sofia
would then take)
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Alternative Contingent Remainders

• Two contingent remainders for which the event
  that causes one to vest will destroy the other.
  Example
• 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.
• 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,
• Kevin has Life Estate
• Katherine Sofia each have an Alternate
  Contingent Remainder (in F.S.)
• Jordan retains a Reversion

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Vested Remainder Subject to Divestment

• Vested Remainder followed by an Executory
  Interest that could cut it off before it becomes
  possessory.
• Same as what textbook calls Vested Remainder
  Subject to Complete Defeasance (P596)

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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. (No Reversion in O)
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EXAM TIP COMMON MISTAKES

• Contingent Remainder Subject to Open
• Contingent Remainder Subject to Divestment
• Executory Interest Subject to Divestment

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EXAM TIP COMMON MISTAKES

• Contingent Remainder Subject to Open
• Contingent Remainder Subject to Divestment
• Executory Interest Subject to Divestment
• These Phrases Only Used for Vested Remainders

52
Olympic (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.

• George ?

53
REDWOOD (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.

• George Life Estate
• Kramer?

54
Olympic (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.

• George Life Estate
• Kramer Vested Rem. (in f.s.) Subj. to
  Divestment
• Vested b/c K not reaching 21 is condition on
  Elaines interest K doesnt have to reach 21 to
  get possession
• Subject to Divestment b/c K can lose interest
  before it becomes possessory if he dies before 21
  while G alive
• Elaine?

55
Olympic (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.

• George Life Estate
• Kramer Vested Rem. (in f.s.) Subj. to
  Divestment
• Elaine Shifting Executory Interest (in f.s.)
• Executory Interest b/c would cut off Ks Vested
  Rem. (or Fee if K gets possession before turning
  21)
• Shifting b/c cutting off grantees interest
• Note If theres a vested remainder, cant have a
  second remainder following same finite interest.

56
Olympic (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.

• George Life Estate
• Kramer Vested Rem. (in f.s.) Subj. to
  Divestment
• Elaine Shifting Executory Interest (in f.s.)
• What if Kramer then turns 21 before George dies?

57
Olympic (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 turns 21 George still alive.

• George Life Estate
• Kramer Vested Rem. (in f.s.) Subj. to
  Divestment
• Elaine Shifting Executory Interest (in f.s.)
  Interest fails.

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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)
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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 12 If A alive B dies at 14
• B gets 0
• C gets fee simple at As death

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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 12 If A alive B turns 21
• B has vested remainder
• Cs interest fails

61
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)

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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.

63
Olympic (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 ?

64
Olympic (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
• Tweetys Children?

65
Olympic (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
• Tweetys Children Contingent Remainder (in f.s.)
  (Must Survive Tweety)
• Peggy?

66
Olympic (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
• Tweetys 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)

67
Olympic (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
• Tweetys Children Alternative Contingent
  Remainder (in f.s.)
• Peggy Alternative Contingent Remainder (in f.s.)
• Anything Else?

68
Olympic (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
• Tweetys Children Contingent Remainder (in f.s.)
• Peggy Alternative Contingent Remainder (in f.s.)
• Daffy Reversion (even when alternate contingent
  remainders)

69
Olympic (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
• Tweetys Children Alternative Contingent
  Remainder (in f.s.)
• Peggy Alternative Contingent Remainder (in f.s.)
• Daffy Reversion (even when alternate contingent
  remainders)

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ACADIA Problems 4M-4N
Sunrise
71
Acadia (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 ?

72
Acadia (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
• Billys children ?

73
Acadia (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
• Billys children Contingent Remainder (in f.s.)
  (Unborn)
• Jo ?

74
Alternative Contingent Remainders
Two contingent remainders for which the event
that causes one to vest will destroy the other.
75
Acadia (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 Bs children
  vest?

76
Acadia (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 Bs children vests when a
  child of Bs is born.
• When does contingent remainder in Jo vest?

77
Acadia (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 Bs children vests when a
  child of Bs 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?

78
Acadia (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
• Billys children Contingent Remainder (in f.s.)
• Jo Contingent Remainder (in f.s.) (Not
  alternate)
• Anything Else?

79
Acadia (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
• Billys children Contingent Remainder (in f.s.)
• Jo Contingent rem. (in f.s.) (Not alternate)
• Amanda Reversion

80
Acadia (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
• Billys children Contingent Rem. (in f.s.)
  (unborn)
• Jo Contingent Rem. (in f.s.) (Not Alternative)
• Amanda Reversion

81
Acadia (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?

82
Acadia (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
  Bs children survive B)
• Jo?

83
Acadia (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?

84
Acadia (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)

85
Acadia (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?

86
Acadia (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?

87
Acadia (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
• Js Children

88
Acadia (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
• Js Children Shifting Executory Interest (in
  f.s.)
• Clark?

89
Acadia (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
• Js Children Shifting Executory Interest (in
  f.s.)
• Clark Nothing

90
GRANTS IN (4L) (4M) (4N) ALL TRYING TO DO
SAME THINGS

• To A for life, then
• If A has any surviving children, they take.
• If no surviving children, to B.
• BUT The Precise Wording of Each Grant Creates a
  Slightly Different Set of Interests

91
(4L) (4M) (4N)

• Test Note 4
• Test Will Include Grants Modeled on At Least Two
  of These Problems. Ill Ask You to
• Identify the Interests Created and
• Identify the State of the Title as Relevant
  Parties are Born or Die.

92
(4L) (4M) (4N)

• QUESTIONS?

93
Remainders Executory Interests Additional
Information
94
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.

95
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 Bs use of the land and
  cannot occur before B takes possession.

96
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).

97
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 grantors likely intent),
  it would not violate the condition for B to allow
  someone to carry As corpse into a nursing home.
  (!)

98
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

99
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?

100
CORRECTION TO WORKBOOK (Problem 5-28)

• O to A for life, then to B, on condition that B
  has passed the bar.

101
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

102
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 Bs
  remainder
• Comma after B unneeded confusing. ?

103
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?

104
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

105
REVIEWDEFEASIBLE FEES DEFEASIBLE FINITE
PRESENT ESTATES
106
DEFEASIBLE FEESTwo Relevant Distinctions

• Who holds future interest? Grantor v. Grantee
• Automatic termination v. Needs action by future
  interest holder
• Yields Following Flow Chart

107
FLOW CHART IDENTIFYING DEFEASIBLE FEES
108
FLOW CHART IDENTIFYING DEFEASIBLE FEES
109
FLOW CHART IDENTIFYING DEFEASIBLE FEES
110
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)

111
Review AccessorizingDefeasible Fees Matching
Future Interests

• FEE SIMPLE DETERMINABLE Possibility of Reverter
• F.S. ON CONDITION SUBSEQUENT Right of ReEntry
• F.S. ON EXECUTORY LIMITATION Executory Interest

112
Review Examples ofDefeasible 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.

113
REVIEWDefeasible 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

114
REVIEWDefeasible 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.

115
REVIEWDefeasible 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.

116
OLYMPIC Problem 4I
EEL GLACIER
117
Olympic (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.

118
Olympic (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

119
Olympic (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

120
Olympic (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 Orrins interest vest automatically (FSD) or
  does he have to act (FSCS)?
• Arguments for Each Position?

121
Olympic (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 Os
  right can be held for some period of time after
  violation
• Most states Presumption favoring FSCS
• Mahrenholz More like punishment than purpose
  (suggests FSCS)

122
Olympic (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

123
Olympic (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 Js Restaurant
• Serves several dishes cooked with wine or flamed
  with brandy?
• At Sunday brunch offers complimentary glass of
  Champagne?

124
Olympic (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