Transcript PLEASE PUT ASSIGNMENT #4 FACE DOWN IN BASKET ON …

PLEASE PUT ASSIGNMENT #4 FACE
DOWN IN BASKET ON CHAIR 
MUSIC: Bach, Concertos for Two
Harpsichords (1732-36)
THE ENGLISH CONCERT
Trevor Pinnock, Conductor, Harpsichord
Kenneth Gilbert, Harpsichord
Performed 1980
DQ121: Storage as “School Purpose”
DQ121: IS STORAGE A
“SCHOOL PURPOSE”?
PARTIES’ LIKELY ARGUMENTS
For School District?
For Future Interest Holder?
DQ121:IS STORAGE A
“SCHOOL PURPOSE”?
What legal research could you do to
help resolve this question?
DQ121:IS STORAGE A
“SCHOOL PURPOSE”?
What legal research could you do to
help resolve this question?
CASES ON “SCHOOL PURPOSE”
CASES ON “CHURCH PURPOSE” ETC.
DQ121:IS STORAGE A
“SCHOOL PURPOSE”?
What factual research could you do
to help resolve this question? (What
facts matter?)
IS STORAGE A “SCHOOL PURPOSE”?
What facts matter?: USE OF SPACE
• What is stored & how used?
• Alternatives (crowding? Cost?)
• How regularly is storage accessed?
IS STORAGE A “SCHOOL PURPOSE”?
What facts matter?: GRANTOR’S INTENT
•
•
•
•
CHECK GRANT OR RELATED DOX
WITNESSES TO TRANSACTION
ASK GRANTOR IF ALIVE
WITNESSES RE GRANTOR BELIEFS
DQ122. Why should we allow
grantors to have any control at
all of what happens to land
after they have died?
Come back to later w Shapira
PROBLEM 7I
Featuring
Halloween Corn
(7I) 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.
PROBLEM 7I:
MULTI-STEP ANALYSIS
•
•
•
•
FSD or FSCS?
CONDITION VIOLATED?
EFFECT OF VIOLATION?
ADVICE RE PURCHASE
PROBLEM I:
MULTI-STEP ANALYSIS
• FSD or FSCS?
• CONDITION VIOLATED?
• EFFECT OF VIOLATION?
• ADVICE RE PURCHASE
(I): O “To Julia 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, Orrin retains a right to re-enter the
premises."
Does Orrin’s interest vest
automatically (FSD) or does he
have to act (FSCS)?
FSD or FSCS?
• “So long as” & condition built into 1st clause suggest
FSD
• Moment of violation clear, so can be FSD
•“Right to re-enter” & 2 clauses suggest FSCS
•“retains” suggests FSCS b/c implies that O’s right can
held for some period of time after violation
• Most states: presumption favoring FSCS
•Mahrenholz: More like punishment than purpose
PROBLEM 7I:
MULTI-STEP ANALYSIS
• FSD or FSCS?
• CONDITION VIOLATED?
• EFFECT OF VIOLATION?
• ADVICE RE PURCHASE
(7I): O “To J … so long as … premises are not used for
sale of beer, wine, or liquor, and if beer, wine, or liquor is
sold on ... premises O retains a right to re-enter….”
DOES IT VIOLATE GRANT IF J’s restaurant:
(i) serves several dishes cooked with wine or flamed
with brandy?
(ii) at Sunday brunch offers complimentary glass of
champagne?
PROBLEM 7I:
MULTI-STEP ANALYSIS
• FSD or FSCS?
• CONDITION VIOLATED?
• EFFECT OF VIOLATION?
• ADVICE RE PURCHASE
IF VIOLATION, RESULT?
If O has Possibility of Reverter?
O gets legal title at moment of violation.
If sufficient time has passed, J may have title
through adverse possession
IF VIOLATION, RESULT?
If O has Right of Entry (RE)?
Assuming O has not acted, O still has RE
If O is aware of Julia’s use of alcohol, may be held
to have waived the right to enforce regarding these
kinds of uses of alcohol.
PROBLEM 7I:
MULTI-STEP ANALYSIS
• FSD or FSCS?
• CONDITION VIOLATED?
• EFFECT OF VIOLATION?
• ADVICE RE PURCHASE
Note that if J sells a defeasible fee to D, D
takes subject to any condition not made
irrelevant by the sale.
• To J so long as alcohol is never used on the
premises.
– Wording of condition not limited to J; appears
to apply to anyone
– Condition survives sale.
COMPARE:
• To J so long as J never uses alcohol on the
premises.
– Condition only places limit on J.
– Essentially void if J is not the owner.
– Once J is dead, condition can never be violated,
so owner would have fee simple absolute.
11 years after its opening
Donald wants to buy restaurant
and add a bar. Advise Donald.
Plausible Advice to Donald Includes:
• Buy both present estate and future interest (or “all rights”
of both J and O) to merge into f.s.absolute
• Serve free liquor & raise prices (and argue waiver if O
questions)
• Make purchase contingent on J insuring right to use
alcohol (winning suit re adverse possession/ waiver/etc.;
buying future interest; waiver K with O)
LOGISTICS
• Choosing 1L Elective: I’ll Discuss on the Friday
Before You Register
• Seating available in front for this unit
• Exam Drafting :
– E1 Names
– Schedule: Draft, Seal, Reinforce
LOGISTICS
• Office Hours
– Extra Office Hours Next Week
– Listed on Course Page & on My Door
– No Appointments & Multiple People
– Wed & Thu Evenings in Library Rooms
LOGISTICS
• Postings
– Sample Questions on Course Page Now
– Answers/Explanations Posted Today
– Tuesday: Two Complete Old Exams & Answers
– Thursday: Write-Up of 7P-7S
LOGISTICS
Shapira (M/T):
• DQ123 (Barley) asks re arguments in case; I’ll
frame in terms of key distinctions made by court:
– Court distinguishes between X & Y
– What is the distinction it makes?
– Why is it significant?
EXECUTORY INTERESTS
• Future interest in grantee
• Cuts off prior vested interest (present estate or
reversion or vested remainder) rather than
waiting for it to expire naturally.
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
EXECUTORY INTERESTS
• Future interest in grantee
• Cuts off prior vested interest rather than
waiting for it to expire naturally.
• Shifting Executory Interest cuts off another
grantee
EXECUTORY INTERESTS
• Future interest in grantee
• Cuts off prior vested interest rather than waiting for
it to expire naturally.
• Shifting Executory Interest cuts off another grantee
• Springing Executory Interest cuts off grantor
EXECUTORY INTERESTS
(EXAMPLES)
Shifting Executory Interest:
To Justin & his heirs so long as no
tobacco is grown on the land, otherwise
to Eric and his heirs.
EXECUTORY INTERESTS
(EXAMPLES)
Springing Executory Interest:
• To Crystal if she passes the California bar
exam.
(7F) 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 happens if Veronica dies
when Betty is 17?
(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?
(Common Law):
If contingency not met when prior estate ends,
contingent remainder is destroyed.
Betty has nothing.
Reggie has fee simple absolute.
DOCTRINE OF DESTRUCTABILITY OF
CONTINGENT REMAINDERS
If contingency not met when prior estate
ends, contingent remainder is destroyed
DOCTRINE OF DESTRUCTABILITY OF
CONTINGENT REMAINDERS
Overruled by statute or caselaw in every
American jurisdiction except …
DOCTRINE OF DESTRUCTABILITY OF
CONTINGENT REMAINDERS
Overruled by statute or caselaw in every
American jurisdiction except ... Florida
(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? (Modern
View): If contingency not met when prior estate ends, we
wait to see if it is met later.
Betty’s remainder becomes an executory interest.
Reggie has fee simple on executory limitation
(7F) Reggie “to Veronica for life, then to Betty and her heirs if
Betty attains the age of 21.”
Veronica dies; Betty is 17 (Modern View)
DOCTRINE OF DESTRUCTABILITY OF CONTINGENT
REMAINDERS
(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.
(7F) Reggie “to Veronica for life, then to Betty and her heirs if
Betty attains the age of 21.”
Veronica buys R’s reversion. If destructability applies:
V has fee simple absolute.
(7F) Reggie “to Veronica for life, then to Betty and her heirs if
Betty attains the age of 21.”
Veronica buys R’s reversion (Modern View:
Merger Without Destruction)
Problems 7J-7K-7L
(7J): Mary "to Rhoda for life, then to
Ted if Ted gives Mary a proper funeral."
Rhoda?
(7J): Mary "to Rhoda for life, then to
Ted if Ted gives Mary a proper funeral."
Rhoda: Life Estate
Ted?
(7J):Mary "to Rhoda for life, then to Ted
if Ted gives Mary a proper funeral."
Rhoda: Life Estate
Ted?: Contingent Remainder (in f.s.)
Other?
(7J): Mary "to Rhoda for life, then to Ted if
Ted gives Mary a proper funeral."
Rhoda: Life Estate
Ted?: Contingent Remainder (in f.s.)
Mary: Reversion
(7J): Mary "to Rhoda for life, then to
Ted if Ted gives Mary Rhoda a proper
funeral."
Rhoda: Life Estate
What difference does change make?
(7J): Mary "to Rhoda for life, then to Ted if Ted gives
Rhoda a proper funeral."
Ted can’t possibly give Rhoda a “proper” funeral
by the time Rhoda dies. Thus, Ted’s interest
cannot be a remainder; there will be a gap
between the end of R’s life estate and Ted’s
interest. So Ted has …?
(7J): Mary "to Rhoda for life, then to Ted if Ted gives
Rhoda a proper funeral."
Rhoda: Life Estate
Mary: Reversion
Ted: Springing Executory Interest (in f.s.)
EXAM TIP:
USE COMMON SENSE!!
• Can’t give a “proper” funeral to a
person until after the person has died.
EXAM TIP:
USE COMMON SENSE!!
• If an interest is conveyed in a will,
the grantor is dead.
Vested Remainder Subject to
Divestment
=
Vested Remainder Subject to
Complete Defeasance (P596)
CONTINGENT REMAINDER v. VESTED REMAINDER
SUBJECT TO DIVESTMENT
(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.
(2) To A for life, then to B & her heirs, but if B dies
before 21, then to C & his heirs.
CONTINGENT REMAINDER v. VESTED REMAINDER
SUBJECT TO DIVESTMENT
(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.
(2) To A for life, then to B & her heirs, but if B dies before 21,
then to C & his heirs.
A alive; B dies at 17: (1+2) B gets 0; C gets fee simple
at A’s death
CONTINGENT REMAINDER v. VESTED REMAINDER
SUBJECT TO DIVESTMENT
(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.
(2) To A for life, then to B & her heirs, but if B dies before 21,
then to C & his heirs.
A alive; B turns 21: (1+2) B has vested
remainder; C’s interest fails
CONTINGENT REMAINDER v. VESTED REMAINDER
SUBJECT TO DIVESTMENT
(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.
(2) To A for life, then to B & her heirs, but if B dies before 21,
then to C & his heirs.
A dies; B is 17: (1) Grantor has fee simple on
executory limitation; B & C have springing
executory interests.
(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.
(2) To A for life, then to B & her heirs, but if B dies before 21,
then to C & his heirs.
A dies; B is 17: (1) Grantor has fee simple on
executory limitation; B & C have springing executory
interests. (2) B has fee simple on executory
limitation; C has shifting executory interest.
VESTED REMAINDER SUBJECT TO DIVESTMENT v.
VESTED REMAINDER IN FEE SIMPLE ON EXECUTORY
LIMITATION
To A for life, then to B & her heirs, but if B dies before
turning 21, then to C & his heirs.
Condition can occur before B obtains possession.
VESTED REMAINDER SUBJECT TO DIVESTMENT v.
VESTED REMAINDER IN FEE SIMPLE ON EXECUTORY
LIMITATION
To A for life, then to B & her heirs, but if B ever uses
the land for commercial purposes, to C & his heirs.
(Condition cannot occur before B obtains possession)
COMMON MISTAKES
•Contingent Remainder Subject to Open
•Contingent Remainder Subject to Divestment
•Executory Interest Subject to Divestment
COMMON MISTAKES
Contingent Remainder Subject to Open
Contingent Rem. Subject to Divestment
Executory Interest Subject to Divestment
(7K): “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?
(7K): “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?
(7K): “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 Remainder (in f.s.) subject to
divestment
Elaine?
(7K): “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 Remainder (in f.s.) subject to
divestment
Elaine: Shifting executory interest (in f.s.)
(7L): 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?
(7L): 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?
(7L): 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 remainders (in f.s.)
(must survive Tweety)
Peggy?
ALTERNATIVE CONTINGENT
REMAINDERS
Two contingent remainders for which the event that
causes one to vest will destroy the other.
ALTERNATIVE CONTINGENT REMAINDERS
Two contingent remainders for which the event that causes each one
to vest will destroy the other.
Here, only two possibilities: either (1) Tweety will be
survived by children (who would then take) or (2) he
won’t (Peggy takes)
(7L): 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 remainders (in f.s.)
(must survive Tweety)
Peggy: Alternative contingent rem. (in f.s.)
Other?
(7L): 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: Contingent remainders (in f.s.) Peggy:
Alternative contingent rem. (in f.s.)
Daffy: Reversion (even when alternate
contingent remainders)
(7L): 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
Heckle/Jeckle: Contingent remainders (in f.s.)
Peggy: Alternative contingent rem. (in f.s.)
Daffy: Reversion