Property I Professor Donald J. Kochan

1. Property IProfessor Donald J. Kochan Fall 2008 Class 12 29 September 2008

2. Today’s Readings • Pages 206-225 • Defeasible Estates • Fee Simple Absolute • Fee Simple Determinable • Possibility of Reverter • Fee Simple Subject to Condition Subsequent • Right of Entry • Mahrenholz v. County Board of School Trustees • Mountain Brow Lodge No. 82, Independent Order of Odd Fellows v. Toscano • Ink v. City of Canton

3. Fee Simple Absolute • It is the strongest estate; today strongest level of alienability • “it cannot be divested nor will it end if any event happens in the future.” D&K Text • O to A, or O to A and his heirs • No Restrictions – Whatever sticks O is giving away he is giving away completely

4. Introduction to Defeasible Estates • Distinguish Fee Simple Absolute from Fee Simples Defeasible • “Any estate can be defeasible upon the happening of an event . . . A defeasible fee simple is one that may last forever or may may come to an end upon the happening of an event in the future.” D&K text • Defeasible: “Capable of being annulled or invalidated: a defeasible claim to an estate.” American Heritage Dictionary – http://dictionary.reference.com/browse/defeasible

5. Defeasible Estates Continued • Always understand the current rights of all parties – what is granted, to who, and what is retained? • Always ask “who owns and possesses now, and what is the nature of their interest?” • Always ask the “What if . . . Then who owns and possesses when circumstances change? Who might own or possess when and what in the future and upon what event?” • Always consider enforceability, given later doctrines discussed regarding same

6. Fee Simple Determinable • “A fee simple determinable is a fee simple so limited that it will end automatically when a stated event happens.” D&K Text • “Example: O conveys Blackacre ‘to the Hartford School Board, its successors and assigns, so long as the premises are used for school purposes.’” D&K Text • Look for the key words: “so long as”, “until”, and “while”, for example • Read the conveyance for INTENT • Future Interest = Possibility of Reverter • (automatic upon the happening of a stated event and requires no action for a transfer of ownership (which could be to the grantor OR an identified future grantee))

7. Fee Simple Subject toCondition Subsequent • “A fee simple subject to condition subsequent is a fee simple that does not automatically terminate but may be cut short or divested at the transferors’s election when a stated condition happens.” D&K Text • “Example: ‘to the Hartford School Board, its successors and assigns, but if the premises are not used for school purposes, the grantor has the right to re-enter and re-take the premises.’” D&K Text • Look for the key words: “but if,” “provided,” “on condition that,” and others • Read the conveyance for INTENT • Future Interest = Right of Entry • Synonymous with power of termination • Can be express or implied • Again, interpretation depends on instrument, wording, and intent

8. Mahrenholz v. County Board of School Trustees • Interpretation issues re grant • Distinction between possibility of revverter and right of entry • Understand the legal consequences of the distinction – when does ownership transfer? • Consider the problems that arise in ambiguity in drafting • Consider also “scope” issues in the grant, as explored in the Notes following the case • The Notes also point out to you that possibilities of reverter and rights of entry are themselves property rights and discuss their transferability

9. Mountain Brow Lodge No. 82, Independent Order of Odd Fellows v. Toscano • Issues regarding restraints on alienation, and its impact on interpreting ambiguous language in a grant • Protection or dismissal of grantor intentions • Voiding clauses for public policy reasons • Should a grantor have control over what he/she grants? • If not, what effect on the nature of individuals desires to make grants? Think about autonomy and an individual’s ability to control the sticks he gives away . . . • Think about the preferences issue discussed in the Notes – legacy and preservation type issues (e.g., keeping the home in the family)

10. Ink v. City of Canton • Recognize the importance of the language in deeds • Condemnation • Retained interests • Changed Circumstances • Valuation Issues

11. Concluding Remarks Think about conveyances and the necessity for precise drafting. Also think about the balance between the protection of autonomous preferences and presumptions in favor of free alienability.