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PROPERTY A SLIDES

Explore the distinction between fee simple determinable (FSD) and fee simple subject to a condition subsequent (FSCS) in property law. Learn about the different grants, their purposes, and potential consequences.

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PROPERTY A SLIDES

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  1. PROPERTY A SLIDES 3-9-17 National Barbie Day National Meatball Day

  2. Thursday March 9 Music: Bach, Unaccompanied Cello SuitesYo-Yo Ma, Cello (Released 2006) DF IN ROOM A110A TODAY ALMOST SPRING BREAK

  3. PROPERTY A: 3/9 SPECIAL THURSday PRE_BREAK Pop Culture Moment THE “READY BETTY” JOKE (to accompany Problem 3F)

  4. Mahrenholz v.County Board“For School [of] Porpoises”Continued

  5. Mahrenholz & DQ3.08Distinguishing FSD from FSCS In its discussion of McElvain, the court says that “as an action in ejectment was brought…, the difference between a fee simple determinable and a fee simple subject to a condition subsequent would have no practical effect….” (S81) Why does it believe this? If the action is brought essentially as soon as condition is violated, little or no time gap betw. violation and change in ownership.

  6. MahrenholzDistinguishing FSD from FSCS (3d Para. S78) • Use FSD to give property “for so long as it is needed for the purposes for which it is given and no longer” (a “limited grant”) • Usea FSCS “to compel compliance with a condition by penalty of a forfeiture.” (an “absolute grant to which a condition is appended”) • Pretty fine distinction • Court is describing idealized use of the forms (not always true) • Can use to argue a particular grant is FSD or FSCS

  7. MahrenholzDistinguishing FSD from FSCS (S78) Use FSD to give property “for so long as it is needed for the purposes for which it is given and no longer.” • To Xavier, so long as he operates his dental practice on the premises. • To Yolanda, so long as she doesn’t remarry. [Purpose presumably is to provide home and/or income for widow; if she takes a new man, she is his problem.] • To Zebulon University, so long as it is used as a research laboratory.

  8. MahrenholzDistinguishing FSD from FSCS (S78) Usea FSCS “to compel compliance with a condition by penalty of a forfeiture.” • To Xavier, but if the property is ever used for commercial purposes … • To Yolanda, but if alcohol is ever used on the premises … • To Zebulon University for construction of a science building, but if the building is not completed within 5 years or if it ever ceases to be used for educational purposes …

  9. OLYMPIC: Mahrenholz & DQ3.09-3.11 EEL GLACIER

  10. Olympic: Mahrenholz & DQ3.09Distinguishing FSD from FSCS "to be used for school purpose only; otherwise to revert to Grantors herein.” • Arguments for FSD?

  11. Olympic: Mahrenholz & DQ3.09Distinguishing FSD from FSCS "to be used for school purpose only; otherwise to revert to Grantors herein.” • Arguments for FSD • “only” suggests automatic • Condition in clause creating fee, not subsequent clause • “to revert” (v. “may re-enter”) suggests automatic • Similar grants held FSD • Arguments for FSCS?

  12. Olympic: Mahrenholz & DQ3.09Distinguishing FSD from FSCS "to be used for school purpose only; otherwise to revert to Grantors herein.” • Arguments for FSCS • 2 Clauses usually used for FSCS • No time words • “Otherwise” looks like “but if” • Most states presume FSCS

  13. Olympic: Mahrenholz & DQ3.10Distinguishing FSD from FSCS: Possible Consequences of the Distinction: • Transferability after breach (Mahrenholzissue) • Adverse Possession (Clock starts running immediately when condition violated if FSD) • Income from land after breach • Goes to future interest holder if FSD (See Lasater @ P532) • Waiver/Estoppel by future interest holder • Only possible if FSCS

  14. Olympic: Mahrenholz & DQ3.10Distinguishing FSD from FSCS: Consequences Given significant consequences, why do so many grants fail to indicate clearly which interest is intended?

  15. MahrenholzDistinguishing FSD from FSCS: Test Note #2: Test Will Include At Least One Grant (Yielding Multiple Questions) with a Present Estate That Could Be Either Determinable or on Condition Subsequent, So You Need to Know Arguments Distinguishing the Two. E.g., Problem 3I Includes This Kind of Ambiguous Grant

  16. Olympic: Mahrenholz & DQ3.11Meaning of “School Purpose” IS STORAGE A “SCHOOL PURPOSE”? • Parties’ Likely Arguments • For School District? Yes, because … • For Future Interest Holder? No, because …

  17. Olympic: Mahrenholz & DQ3.11Meaning of “School Purpose” IS STORAGE A “SCHOOL PURPOSE”? • What legal research could you do to help resolve this question?

  18. Olympic: Mahrenholz & DQ3.11Meaning of “School Purpose” IS STORAGE A “SCHOOL PURPOSE”? • Useful Legal Researchincludes: • CASES ON “SCHOOL PURPOSE” • CASES ON “CHURCH PURPOSE” ETC. • OTHER LEGAL LIMITS ON SCHOOL ACTIVITIES (to demonstrate what the term could reasonably be understood to mean)

  19. Olympic: Mahrenholz & DQ3.11Meaning of “School Purpose” IS STORAGE A “SCHOOL PURPOSE”? • Useful Factual Researchincludes: • Use of Space: Relevant Qs/Investigation? • Grantor’s Intent

  20. Olympic: Mahrenholz & DQ3.11Meaning of “School Purpose” IS STORAGE A “SCHOOL PURPOSE”? • Useful Factual Researchincludes: • Use of Space • What is stored & how used? • Alternatives (Crowding? Cost?) • How regularly is storage accessed? • Grantor’s Intent: Relevant Qs/Investigation?

  21. Olympic: Mahrenholz & DQ3.11Meaning of “School Purpose” IS STORAGE A “SCHOOL PURPOSE”? • Useful Factual Researchincludes: • Use of Space • Grantor’s Intent • Check Grant or Related Documents • Witnesses to Transaction • Ask Grantor if Still Alive • Witnesses re Grantor Beliefs

  22. Mahrenholz Meaning of “School Purpose” Test Note #3: Test Will Include At Least One Grant Containing an Imprecise Term Like “School Purpose” and You Will Be Asked to Consider Arguments About Whether a Particular Action or Activity Falls Within that Term.

  23. Mahrenholz & DQ3.12 Why should we allow grantors to have any control at all of what happens to land after they have died? We’ll come back to after Spring Break w Shapiracase.

  24. LOGISTICS: Chapter 3 Test Preparation • I’ll Post Toward Top of Course Page by Wed. of Break: • General Test Info & Instructions Page; E-Mail Me if Qs • Assignments for Classes after Break including • Additional Instructions for Problems 3I & 3O • Additional Instructions for DQs following Shapira • Bank of Sample Qs & Entire Fall 2007 Test Along with: • List of Qs That Require Material We’ll Cover After Break • Answers to Qs You’re Ready For

  25. LOGISTICS: Chapter 3 Test Preparation • DF 3/21 & 3/23: 2016 Multiple Choice Test • I’ll Post by Afternoon of Wed. 3/22: • Rest of Answers to Already Posted Qs (that we are covering) • Additional Tests & Answers • In Addition to Regular Office Hours 3/20-3/22, I’ll Post & Hold Additional Office Hours: • Thurs lunchtime 3/23 • Fri afternoon 3/24 • Sat afternoon 3/25 • Sun afternoon  early evening 3/26

  26. OTHER LOGISTICS I’ll Post on Course Page During Break: • Chapter 4-5 Materials & Updated Syllabus • Updated Assignment Sheet Covering the Rest of March • Completed Versions of Info Memo #2 and #3 • Comments/Best Answers for Some Other Posted Exam Qs Additional Final Exam Preparation • 1st Sample Exam Question (Optional) Due Wed. 3/15 @ 5pm • Follow Instructions on Course Page • If you do a Lawyering Q, first look at comments on Rev Probs 1M/1N • I’ll Be Around Most of Break; E-Mail to Make an Appointment

  27. Executory Interests

  28. 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.

  29. 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.

  30. 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

  31. 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 grantor’s fee simple or reversion • Physical Model/Analogy (if helpful)

  32. Executory Interests EXAMPLES Shifting Executory Interest: To Danny & his heirs so long as no tobacco is grown on the land, otherwise to Arturo and his heirs.

  33. Executory Interests EXAMPLES Springing Executory Interest: To Yujia if she passes the California bar exam. Grantor who started with Fee Simple Absolute is left with Fee Simple on Executory Limitation

  34. (3F) Reggie“to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Let’s Return to Problem 3F & Riverdale High

  35. (3F) 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 Can’t Take; Condition Not Met • So Who Gets What?

  36. (3F) 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 isn’t ready, she loses her “table.” • Reggie’s Reversion becomes Fee Simple Absolute

  37. Doctrine of Destructability of Contingent Remainders (Common Law)First Common Application If contingency not met when prior estate ends, contingent remainder is destroyed.

  38. Doctrine of Destructability of Contingent Remainders Today: Overruled by statute or caselaw in everyAmerican jurisdiction except …

  39. Doctrine of Destructability of Contingent Remainders (Today) Overruled by statute or caselaw in every American jurisdiction except …

  40. (3F) 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. • Betty’sremainderbecomes an executory interest. • Reggie takes possession and has fee simple on executory limitation (cut off if B turns 21)

  41. (3F) 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)

  42. 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.

  43. Doctrine of Destructability of Contingent Remainders Second Common Application • Alexa “to Brittany for life, then to Katie if Katie passes a bar exam.

  44. Doctrine of Destructability of Contingent Remainders Second Common Application (Common Law) • Alexa “to Brittany for life, then to Katie if Katie passes a bar exam. • Brittany purchases Reversion from Alexa  • Life Estate & ReversionMerge  Fee Simple Absolute • Katie’s ContingentRemainder is Destroyed ↓ ↓ ↓ Merge & Destroy ↓ ↓ ↓

  45. Today (Everywhere except Florida)Merger without Destruction • Alexa “to Brittany for life, then to Katie if Katie passes a bar exam. • Brittany purchases Reversion from Alexa • Life Estate & ReversionMerge  Fee Simple on Executory Limitation • Katie’s ContingentRemainder Becomes an Executory Interest ↓ ↓ ↓ Merge ↓ ↓ ↓

  46. EVERGLADES: Problems 3J-3L EGRET IN MANGROVE SWAMP

  47. Everglades: (3J): Mary "to Rhoda for life, then to Ted if Ted gives Mary a proper funeral." • Rhoda?

  48. Everglades: (3J): Mary "to Rhoda for life, then to Ted if Ted gives Mary a proper funeral." • Rhoda: Life Estate • Ted?

  49. Everglades: (3J): 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?

  50. Everglades: (3J):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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