1How does the court address the following and what type of interest is it:
"Blackacre to A and his heirs but not to be sold."
Fee Simple Absolute - "A and his heirs."
Court prefers Fee Simple Absolute, which is freely transferable.
2How does the court address the following and what type of interest is it:
"Blackacre to A and the heirs of his body, then to B."
Fee Tail
"To A, but if A dies without issue, then to B."
3First, O conveys Blackacre "To A for life." Then, A conveys Blackacre "To B for life."
When does B's interest end?
When A dies or B dies, whichever happens first.
The transferee does not have any more interest than the transferor.
4A farmer conveys "the farm to my second wife for her life and then to her kids if she has any, if not then to my grandkids from my first wife."
Farmer didn't like his kids from first marriage. After putting in work on the land and not having kids, Wife 2 doesn't have funds to support herself and looks to sell part of the land contra to the residual interest holders.
What should the court do?
The court will look towards the grantor's intent.
While Wife 2 only had a life estate, the grantor didn't like his children and didn't want them to be supported by the land, especially not over the needs of his second wife.
Equity leans towards the second wife given her need and her time spent working the land.
(Baker v. Weedon)
5Which of the following does not create a FSD and what does the outlier create?
(A) To A so long as . . .
(B) To A until . . .
(C) To A provided that . . .
(D) To A during the continuance of . . .
(E) To A while . . .
(C) To A provided that . . .
This creates a Fee Simple Subject to Condition Subsequent.
6Which type of defeasible fee creates a fee simple that automatically ends when a stated event happens?
(A) FSD
(B) FSCS
(C) FSSEL
(A) Fee Simple Determinable
7What type of defeasible fee is created by the following conveyance?
"To A so long as he refrains from smoking, but if he smokes, grantor has right to repossess."
Fee Simple Subject to Condition Subsequent
8What type of defeasible fee is created by the following conveyance?
"To A and his heirs but if he smokes, his interest shall cease."
Fee Simple Determinable
9What property rights are retained by O and A, respectively?
"In 1990, O grants to A so long as he refrains from smoking, but if he smokes, grantor has the right to retake possession. In 1995, A starts smoking. Grantor does nothing to retake possession of the property. The state has a SoL of 10 years. In 2006, grantor wants to repossess."
If O never comes to collect under subject to condition subsequent, they don't waive their right to do so. O doesn't waive his right to collect over time and it isn't AP b/c O is still ALLOWING A to use the land (not on the property adversely)
Grantor may later be estopped from taking action if A improves the land with O's knowledge
10What property rights are retained by O and A, respectively?
"In 1990, O grants to A so long as he refrains from smoking. In 1995, A starts smoking. Grantor does nothing to retake possession of the property. The state has a SoL of 10 years. In 2006, grantor wants to repossess."
As a Fee Simple Determinable, the SoL for adverse possession applies and A has claim to the property.
11What type of defeasible fee transfers a fee simple subject to condition subsequent and in the same instrument creates a future interest in a third party rather than himself?
Fee Simple Subject to Executory Limitation
Upon occurrence of specified event, the interest goes to the 3rd party automatically and in fee simple absolute unless otherwise stated.
12What is the difference between the following conveyances?
(1) To A so long as he refrains from smoking, else to B
(2) To A and his heirs, but if he smokes, then to B
Both grants create a fee simple subject to executory limitation in A, and an executory interest in B.
Although example a uses a fee simple determinable type of language and example b uses a FSCS type of language, when A's interest is forfeited in favor of a person other than the grantor, it's called FSEL.
The executory interest is automatically possessory upon the occurrence of the specified event.
13O conveys to A and his heirs, it be my wish and purpose that the property be used for residential purposes.
What interest does A hold?
It's a mere statement of the grantors purpose or intent of granting, it didn't give restriction, so would be FSA.
14O conveys, "to A and his heirs," who promises on behalf of himself and his heirs, that the land will be used only for residential purposes. A builds commercial building on the land.
What happens to A's interest?
A's interest doesn't come to an end, it isn't deemed a limitation to the interest. This may trigger a lawsuit for damages for breach of covenant (like contract), but doesn't breach property interest
15"To A for life, and A promises not to transfer her interest to anyone else."
Is this likely to be upheld?
Promissory Restraints - mostly upheld by courts:
- Restriction is limited for A's life (for time)
- There's a future interest
- Preservation of property is important
- Try to prevent waste for future interest holder
- Practically speaking, it's difficult to transfer life estate anyways b/c it'd revert when person dies
16To A for life, but if A seeks to transfer his interest to anyone, his interest ends, and the interest goes to B.
Is this likely to be upheld?
Forfeiture Restraint - mostly upheld by courts:
- When A doesn't want the property, he still may rid himself of his interest
- Still goes to someone
17To A for life, but A has no power to transfer to any other person; or any other transfer by A is void.
Is this likely to be upheld?
Disabling Restraint - unlikely to be upheld:
- Would be a waste of resources
- Concern for creditors
- A can't assign the property away to creditors
18How can someone get around alienation restraints?
Create a trust!
19"To A so long as owner reads 5 hours of property law per day or it goes back to grantor."
Is this restriction likely to be upheld?
No, this is onerous. No one would want it, so it's unreasonable.
Exception - charities - courts overlook to encourage charitable gifts/donations
20Which will be upheld by the court? (select all that apply)
(A) "To my beloved wife, but if she remarries, property goes to children."
(B) "To my beloved wife so long as she is not married, else to my children."
- B will be upheld.
- The marriage restriction cannot be made to punish the wife for re-marrying.
- In B, the phrase "so long as" is used for a fee simple determinable, so it isn't a condition and isn't a punishment.
- "But if" is seen as a condition and therefore a punishment.
21"To A so long as he does not smoke"
What type of future interest does O hold?
Possibility of Reverter:
O has not given 100% of interest to A, because O can still get it back. Has given out present possessory interest, but holds a future interest
22"To A for life, but if A smokes again, O shall have a right to terminate A's interest".
What type of interests do A and O hold?
- O's interest is right of entry or power of termination
- Power of termination (right of entry) go hand in hand w/ condition subsequent kind of possessory estate
A has a fee simple subject to condition subsequent.
23In which of the follow does O hold a reversion?
(1) "to A for life"
(2) "to A for life, remainder to B"
(3) "to A for life, remainder to B if he graduates from law school"
(1) and (3) create reversion in O.
(2) leaves all residual interest in B.
(3) isn't possibility of reverter because it isn't based solely on a condition subsequent - must have some sort of determinable (A's death is not determinable)
24O grants "to A for life, then to B and his heirs".
Is there a remainder?
- B's heirs do not hold any interest, the property will go to B in fee simple absolute
- Yes, B has a remainder (based on above definition)
25O grants "to A for life".
Is there a remainder?
No remainder b/c there's no other grantee - grantor has the interest
26O grants land "to A for life, but if A smokes, the property goes to B.
Is there a remainder?
- B DOESN'T have remainder b/c smoking can cut short the natural expiration
- B's interest UPON CREATION isn't a remainder interest
- If A dies, then property still goes to B
B has a shifting executory interest
27O grants land "to A for life, then to B if B becomes a lawyer, else to C"
Is there a remainder?
- Yes, b/c its capable of becoming possessory
- There's a condition precedent attached - is contingent remainder
28O grants land "to A for life, then to B for 5 years, then to C for life, then to D and his heirs"
Is there a remainder?
- B's is a remainder, but it takes a form of term of years (in essence)
- C would have remainder after B's expires
- D could have reminder after C's life in fee simple absolute
29O grants land "to A for life, then to B and his heirs"
Vested remainder?
- B's interest is a vested remainder - waiting for A's death isn't a precondition
- Even if B dies before A, b/c it isn't subject to precondition, the interest doesn't disappear, the property goes to B's estate
30O grants land "To A for life, then to B and his heirs if B survives A"
Vested remainder?
- B's interest isn't a vested interest b/c surviving A is a condition here, expressly stated
- If B dies before A, land goes back to O
31O grants land "to A for life, remainder to B's children". At the time of the grant, B is unmarried and has no children.
Vested remainder?
There's no vested remainder b/c B's children don't exist at time of conveyance.
32O conveys "to A for life, then to B and his heirs"
What makes this an indefeasibly vested remainder?
There are no divesting conditions specifying how interest can be divested
33O grants "to A for life, then to B and his heirs, but if B does not complete law school within 10 years of his possession, then to C and his heirs".
What makes this a vested remainder subject to complete divestment?
- There's no precondition before comma, so there's a complete conveyance, so satisfies vested remainder
- After the comma, marks divesting condition
34O conveys Blackacre "to A for life, then to B and his heirs, but if B does not survive A, to C and his heirs". B dies before A and his will states: "I give everything to my son."
What estate does the son hold in Blackacre?
- "But if" interpreted as a divesting condition - B's interest IS transferable, however, interest divested when B dies by failing to meet condition, so B's child gets nothing
- Currently, vested remainder is ALWAYS transferable.
- Son still subject to the condition
35O grants "to A for life, then to B's children". B is currently 30 years old and has only one child.
Why is this a vested remainder subject to partial divestment?
Still vested remainder b/c at least one member of class was known and there's no condition precedent attached. Moreover, it's vested to a class of vestees, and class isn't yet closed, so subject to partial divestment/subject to open
36In 1990, O conveyed "to A for life, then to B's children. At the time of conveyance, B had one child C1. However, C1 died in 1991 while A was still alive. In 1992, B's other child C2 was born. In 1993, A and B died in one accident. What is the state of estates upon A's death?
W/out a divesting condition expressly written, interest goes to the estate of C1, and when C2 is born, it is divested between C1 and C2
37O grants "to A for life, then to B's children". At the time of the grant, B is an 80-year old woman and has two children. What interest do B's children hold?
This is still considered an open remainder (vested remainder subject to partial divestment).
38O grants "to A for life, then to B's children". At the time of the grant, B has one child and has had hysterectomy.
Is the class open or closed?
The class is not closed because they could still adopt and they are still alive.
39O conveys "to A for life, then to B's children". At the time of the conveyance, B has one child C1. What interest does C1 hold at the time of the conveyance and upon A's death when B is still alive?
The aim here is to avoid waste - Rule mandates the close of the class unless the grantor states otherwise to keep it open
C1 gets immediate possession, and unless the grantor has intended otherwise, the class is deemed closed
RULE OF CONVENIENCE
401. O conveys "to A for life, then to B's children. At the time of conveyance, B has one child C1. However, after the conveyance C1 dies while A and B are both alive. Shortly thereafter, A dies, survived by B who has no living children. What is the state of estates upon A's death? (Question: is the class closed?)
2. If C1 is alive and a child, would it stay open because the child couldn't really take possession at that time anyways?
1. C1's interest can only be partially divested, so it goes to his estate, and therefore when A dies, C1's estate is entitled to immediate possession
2. No, the guardian of the child would help the child manage the property
41O conveys "to A for life, then to B's children, but if B dies before A, to D and his heirs". At the time of the grant, B has one child C. What estate does C hold?
Still subject to open and complete divestment - B's children have vested remainder, subject to open, but then are subject to complete divestment if B dies before A
42O conveys "to A for life, then to A's children". A is unmarried and has no children.
What interest do the children have?
The children hold a contingent remainder because they are not born yet.
43O grants "to A for life, then to B if B has graduated from law school"
What is the state of estates?
B has a contingent remainder because condition precedent
O holds a reversion
Not possibility of reverter because this is not determinable - condition precedent
"If" is read as a precondition
44O grants "to A for life, and in the event of A's death, to B and his heirs"
What interest does B have?
This language is actually deemed a redundant language - this is a vested remainder
45O conveys "to A for life, then to B and her heirs if B survives A, and if B does not survive A, to C and his heirs".
What interest does B have at the time of conveyance?
B holds a contingent remainder subject to condition precedent (they must satisfy the condition before getting the property)
46O conveys "to A for life, then to B and her heirs, but if B does not survive A, to C and her heirs".
What future interest does B have at the time of conveyance?
B holds a Vested remainder subject to divestment
Traditional way to describe is subject to divestment, condition subsequent is used more for present possessory interest - subject to divestment is used for future interest
47O grants "to A for life, then to B and his heirs if B survives A". B dies before A. In his will, he gives "all my interest in this property to my son".
Is this a condition precedent, condition subsequent, or neither?
B surviving A is a precondition because of the lack of a comma
48O grants "to A and his heirs for as long as A works as a lawyer, otherwise to B and his heirs".
What is B's future interest?
Shifting executory interest
49O grants "to A and his heirs, but if A quits working as a lawyer, then to B and his heirs".
What is A's present possessory interest?
What is B's future interest?
1. A holds fee simple subject to executory limitation
2. B holds a shifting executory interest
50O, a person who is legally blind, conveys the land "to the person who restores vision in me".
What interest does the person who restores O's eyesight have?
Person who restores vision cuts short O's interest, giving them a springing executory interest
51O conveys Blackacre "to A for life, then to B if B gives A a proper funeral"
What future interest does B have?
Upon conveyance, A holds life estate; O holds a reversion subject to divestment; B holds a springing executory interest
It takes time to arrange a funeral no matter what, so there is a required time gap between A's death and the funeral, so it goes back to O; B's interest becomes possessory by divesting O's interest
52O conveys land "to A, but if A stops using the property for school purposes at any time during the next 20 years, then to B and his heirs". Starting from the 5th year, A stopped using the property for school purposes. B did nothing until at the end of the 20th year, when A claimed adverse possession against B. What is the result if the state's statute of limitation is 10 years?
B holds shifting executory interest; goes to A because of SoL period for AP
Executory interest is not vested until becoming possessory, and interest automatically becomes possessory upon occurrence of specified event (pertinent to rule of perpetuity)
53O conveys "to A for life, then to B and his heirs if B marries C"
i) What is the state of estates immediately after the conveyance?
i) Suppose B dies unmarried, what is the state of estate upon B's death?
i) Suppose after the grant and while A is still living, B marries C. What is the state of estates?
(1) Life estate to A
(2) B has contingent remainder
(3) O has a reversion
(1) Goes back to O or O's estate after A dies
(1) Because B's interest is vested, O has nothing left (no reversion)
54O conveys "to A for life, then to B and his heirs if B marries C, and if B fails to marry C, then to D and his heirs.
i) Suppose all these people are alive at the time of the grant, what is the state of estate?
ii) What is the state of the estates upon B marrying C?
(1) A has life estate
(2) B has contingent remainder
(3) D has contingent remainder
(4) O has reversion? Based on destruction rules - A can renounce life estate
(1) B's interest becomes a vested remainder and destroys D's interest
55T devises (in will) \$10,000 "to my cousin, Don Little, if and when he survives his wife"
i) What does Don Little have?
ii) Why do you suppose that the testator would make such a devise?
(1) Will takes effect upon T's death, testator's estate is entitled to \$10,000; becomes possessory when surviving wife and then becomes possessory by cutting short T's interest - springing executory interest
ii) He likes his cousin but does not like his current wife and doesn't want it to go to his current wife if DL dies first
56"To A for life, then to A's heirs".
What interests do A's heirs have?
A's heirs have contingent remainder because they are not known.
57O conveys "to A for life, remainder to A's children who reach age 21". At the time of A's death, A's child (B) is at age 15.
What interest does B have?
Under traditional common law?
Under the current majority?
At time of conveyance, we do not know who these children are (cannot be ascertained) - contingent remainder
Under common law, this interest is still not vested, and the interest is destroyed (B's interest) and property goes to next vested estate - O (holds a reversion - reversion is vested interest)
current majority: Upon A's death:
O: fee simple subject to executory limitation
B: executory interest
58O conveys "to A for life, then if she marries, to her spouse and his heirs, but if A dies without ever marrying, to the Red Cross". At the time of the conveyance, A is not married. Shortly after the conveyance, A (who is still single) renounces her life estate.
Traditional Common law?
Modern Statutory modification?
(a) Traditional common law
After renunciation
(i) A: life estate
(ii) A's spouse: contingent remainder GONE
(iii) Red Cross: alternative contingent remainder GONE
(iv) O's reversion turns into fee simple absolute
(a) Modern statutory modification
(i) O: fee simple subject to executory limitation (until A's death)
(ii) A's spouse: executory interest
(iii) Red Cross: executory interest.
591. O conveys "to A for life, then to B and her heirs if B survives A, and if B does not survive A, to C and his heirs". A renounces her life estate.
2. O conveys "to A for life, then to B and her heirs, but if B does not survive A, to C and her heirs". A renounces her life estate.
Compare results of the renouncing under the modern approach.
O - starts with nothing, reverts back to O and becomes fee simple subject to executory limitation
B and C, which both had contingent remainders, are now springing executory interests
O has nothing and stays that way
B gets fee simple subject to shifting executory interest
C get shifting executory interest
60O conveys "to A for life, then to B and his heirs if B is ever married to C"
(1) What is the state of estates immediately after the conveyance?
(2) Suppose A dies and B is still living and unmarried. What is the state of estates upon A's death?
(A) Under the traditional common law
(B) Under modern statutes
(a) Life estate to A
(b) Contingent remainder to B
(c) O has a reversion
(A)
(i) B's contingent remainder is destroyed
(ii) O's reversion becomes fee simple absolute
(B)
(i) B has a springing executory interest
(ii) O holds fee simple subject to executory limitation
61O conveys "to A and his heirs so long as A refrains from smoking". O later conveys "all my residual interest in the property to A".
Under the merger doctrine, what is the state of A's interest?
A has fee simple absolute.
62O conveys "to A for life, and then to B and his heirs". A subsequently conveys his life estate in the property to B.
Under the merger doctrine, what is the state of B's interest?
B has fee simple absolute.
63O conveys "to A for life, then to the first son of A who reaches age 21". At the time of the grant, A has one son who is 15. One year later, O conveys to A "all my residual interest in the property".
What is the state of estates after the first grant?
After the second (under the traditional Merger doctrine)?
(i) Immediately after O's first grant
1. A holds a life estate.
2. A's son holds a contingent remainder.
3. O holds a reversion.
(i) Immediately after O's second grant
Two consecutively vested interests (life estate and reversion) merge into Fee Simple absolute; contingent remainder in A's son is destroyed
64O conveys "To A for life, then to A's eldest child B, but if B dies before reaching age 21, then to C and his heirs". One year later, when B is only 15 years old, A conveys "all my residual interest in the property to C"
1. What is the state of estates under the merger doctrine?
2. When A is alive, B dies before reaching age 21. Then C dies. What is the final state of the interests?
(i) A has life estate
(ii) B's interest is a vested remainder subject to divestment
1. He is known
2. There is no condition precedent
(iii) C has executory interest
1. Can become possessory by cutting short B's interest
(iv) Upon A's conveyance to C, C holds A's life estate, and C holds an executory interest
1. The intervening interest stays, merger doctrine does not apply to B
a. An executory interest is not vested yet because the intervening event has not yet happened
b. A vested remainder cannot be destroyed by the merger doctrine, even if subject to divestment
2. C holds A's life estate and vested remainder = fee simple absolute in C. Now C dies. Property goes to C's estate.
65O conveys "to A for life, then to the first son of A who reaches age 21". At the time of the grant, A has one son who is 15. One year later, O conveys to A "all my residual interest in the property". In a jurisdiction that has abandoned the destruction by merger, what is the state of estate after O's second grant, at A's death (when the son is not yet 21), and when the son turns 21?
1. After the first conveyance:
a. A holds a life estate
b. O has a reversion
c. Son has contingent remainder
2. Under the modern rule, after O's second conveyance:
a. A holds life estate
b. A's son still holds contingent remainder
c. A now holds O's reversion
a. Life estate and reversion are now consecutively vested interests (A)
Under traditional common law, intervening interest (contingent remainder between life estate and reversion) is destroyed, but in modern rule, we will not apply the destruction rule, and hold that the contingent remainder stays
If B turns 21 before A dies:
a. A has life estate
b. B has a vested remainder
c. A's reversion is gone
If A dies before B turns 21:
a. A's estate has a Fee Simple Subject to Executory Limitation
b. B has a shifting executory interest
66O conveys "to A for life, then to A's heirs".
i) What is the state of estate without applying the Rule in Shelley's case?
ii) What is the state of estate with applying the Rule in Shelley's case?
i) A would have life estate and A's heirs have a contingent remainder
ii) fee simple absolute in A
67Which of the following results in fee simple absolute in A under the Rule in Shelly's Case?
"to A for life, remainder to A's heirs".
"to A for life, remainder to A's son".
The Rule in Shelly's Case would not apply if it said to son or daughter. The rule does not apply if the remainder is held by a specific person.
68If Rule in Shelly's Case still applies, how can you draft the gift in a way to avoid the consequence of the rule?
i) Do not have to create a remainder, can create a springing executory interest
(1) To A for life, then one month later to A's heirs
ii) Could also use a trust
69O conveys inter vivos "to A so long as A remains married, and if not then the property goes to O's heir".
How does the Doctrine of Worthier Title affect this conveyance?
"To A so long as A remains married."
Under the Doctrine of Worthier Title, O's heirs cannot be given a remainder or executory interest, rather, O has a reversion interest.
70O grants "to A for life, then to A's first child". At the time of the conveyance, A has no child
Evaluate regarding the rule against perpetuities.
i) A has life estate
ii) A's child has contingent remainder because child not yet born
(1) Subject to RAP?
(a) Yes
(2) What is the Contingency?
(a) we do not know who A's first child is - need to have child born is contingency
(3) Figure out when the contingency will be resolved - is there any time it will definitely be resolved?
(a) Yes, upon A's death, either he has a child, or he does not - contingency will resolve one way or the other upon A's death
(b) Is A alive at the time of conveyance? Yes. If can show that this contingency will resolve during the lifespan of a life in being at time of conveyance plus 21 years after their death, you have proven the validity of the contingency
(i) YES, THIS IS VALID UNDER RAP - cannot linger beyond A's life plus 21 years (cannot even linger past A's life)
(4) Who is the validating/measuring life?
(a) A
71O conveys "to A for life, then to B if he is admitted to the bar".
Evaluate regarding the rule against perpetuities.
i) A has life estate
ii) O has a reversion
iii) B has contingent remainder and is subject to RAP
(1) 21 years after all lives and beings are dead - NOT VOIDED
(2) CAN BE YOUR OWN VALIDATING LIFE
72"To A for so long as Cincinnati has no earthquake, else to B".
Evaluate regarding the rule against perpetuities.
i) Step 1
(1) A has fee simple subject to divestment/executory limitation
(2) B has shifting executory interest (cuts short A's interest)
ii) Step 2
(1) Present possessory is not subject to RAP
(2) B's interest is subject to RAP (exec interest)
iii) Step 3
(1) Contingency is if Cincinnati has an earthquake, property goes to B
iv) Step 4
(1) Contingency does not have a fixed time of resolution
v) Step 5
(1) Cannot identify a person alive - no validating life - RAP invalidates this interest
(a) Contingency can linger after the death of all living beings
73In 2016, O conveys "to A so long as Cincinnati has no earthquake, otherwise to B and his heirs". 2 years after the grant (while everyone is still alive)), Cincinnati has an earthquake. Under the traditional common law, does B's get the property?
Evaluate regarding the rule against perpetuities.
i) No, at the time of conveyance, the law does not take into consideration subsequent events
(1) RAP only takes into account info at time of conveyance
ii) Therefore, A has fee simple determinable, O has a possibility of reverter
74O conveys "to A for life, then to the first child of A who reaches age 40". At the time of the grant, A has two children, C1 (38 years old) and C2 (37 years old).
Evaluate regarding the rule against perpetuities.
i) A has life estate; child has contingent remainder; O has reversion
ii) Contingent remainder is subject to RAP
iii) Contingency is when child reaches 40
iv) Has fixed resolution on death of A plus 21 years
v) C3 cannot be a validating life because they were born after the conveyance
Because if C3 is born, and then all other life dies except C3, C3 cannot turn 40 within 21 years of a validating life's death - therefore, RAP says contingent remainder is void
75O conveys inter vivos "to A for life, then to O's first grandchild". At the time of the grant, O has children C1 and C2, but no grandchild
Evaluate regarding the rule against perpetuities.
(1) Then to O's first grandchild would be
ii) A has life estate; O's grandchild has contingent remainder; O has reversion
iii) Executory interest is subject to RAP
(1) Why not springing executory interest?
iv) Must have grandchild
v) Resolution would be at time of O's death, or C1's or C2's - C1 and C2 are
vi) This would be void because C3 could be born after conveyance, and have kid with another survivor of doomsday greater than 21 years from doomsday
(1) Skipping a generation is a red flag, not necessarily invalid, but a red flag
(a) Contingency does not depend on action or inaction of life in B
(b) When you see number that is larger than 21
(c) Skipping a generation
76O conveys land "to O's son for life, then to the son's widow for life, then to the son's first child if he is then living." At the time of the grant, O's son is married but has no children.
Evaluate regarding the rule against perpetuities.
i) O's son has life estate; widow has contingent remainder in form of life estate; son's child has contingent remainder; O has reversion
(1) Do not know who the widow will end up being
ii) Contingent remainders are subject to RAP
iii) Must get married and die to make the widow; also must have a child before making a widow
(1) Widow is legit because son is validating life - we know when this resolves (at his death)
(2) Widow could be different unborn person - and then doomsday happens leaving widow and child alive - then 25 years later, widow dies to give child property
iv) can resolve when
(1) O has no more sons? - O dies
O's last son dies - does he have a widow or a child
77O conveys in his will "to A for life, then to A's children who are alive 20 years after the deaths of all the people living in Cincinnati at O's death."
Evaluate regarding the rule against perpetuities.
Will invalidate if too difficult to determine resolution of contingency - too troublesome, cross it out
78To Church 1 so long as the property is used for Sunday bible studies, else to Church 2.
Evaluate regarding the rule against perpetuities.
RAP does not apply between two charities
79O conveys Blackacre "to the School Board, but if the property is not used for school purposes, to A and heirs." Can you help O structure the conveyance to avoid RAP?
i) To school board, so long as property is used for school purposes. All my (O's) residual interest in the property to A.
(1) O has possibility of reverter; possibility of reverter is not subject to RAP and is alienable
80O conveys "to B and his heirs, but if there is an earthquake in Cincinnati, then to C and his heirs."
O conveys "to B so long as Cincinnati has no earthquake, else to C"
Which parts of each conveyance are crossed out due to RAP?
but if there is an earthquake in Cincinnati, then to C and his heirs.
else to C.
81"To A for life, remainder to A's child who first reaches age 30". At the time of the conveyance, A has 1 child age 5. 10 years later, A dies, while the child is 15.
What happens to the above under the MODERN application of RAP?
Let's not destroy the interest now, let's wait to see if when A dies, if it is vested.
Here, does not go to kid because he wasn't 30 at time of death - goes back to grantor in fee simple absolute.
82A and B are tenants in common. If A conveys his interest to C, and later B dies intestate and all his interest goes to his son D. What is the state of estates upon B's death?
C and D are tenants in common
83O conveys land "to A and B as joint tenants on the dates each is admitted to the Ohio bar". A passes the bar in 2012 and B passes the bar in 2013.
Joint tenants?
Unity in time is missing, and therefore it is tenants in common
84A holds fee simple in his house and he wants to give B a gift by conveying the house to A and B as joint tenants.
Joint Tenants?
No, no unity in title or in time
85O grants Blackacre to A and B for A to hold 1/3 of interest and B to holds 2/3 of the interest.
Joint Tenants?
No unity of interest
86O conveys "To A and B as joint tenants so long as B is married to A, otherwise B's interest goes to C."
Joint Tenants?
No unity in interest because A cannot lose his interest, but B can (B is subject to executory limitation)
87A and B are joint tenants. They have signed a written agreement giving B the rentals from A's possession of the land for life. Does the agreement sever the joint tenancy?
It would because of right of possession but courts will sometimes ignore
88O conveys Blackacre to A, B and C as joint tenants. Subsequently A conveys his interest to D. Then B dies without a will, leaving H as his heir. What is the state of title? What if B dies leaving a will devising his interest in the property to H?
Depends on to what extent survivorship is severed when A conveys to D.
A's action severs joint tenancy in regard to A-B and A-C. Does not affect survivorship of B-C
D holds tenants in common with (B + C as joint tenancy/as one)
When B dies, all goes to C - D becomes tenants in common with C
89A and B are joint tenants of a family house. A wants to leave her interest to her son from the first marriage. She conveys her ½ interest to her lawyer, who then conveys the property back to her. Is the joint tenancy is destroyed?
Yes.
90Mr. and Mrs. Riddle purchased a parcel of real estate, taking title as joint tenants. Several months before her death, Mrs. Riddle granted herself an undivided ½ interest in the property. The document also provided that "The purpose of this Grant Deed is to terminate those joint tenancies formerly existing between the Grantor... and her husband.". Mrs. Riddle also executed a will on the same day disposing of her interest in the property. Mrs. Riddle died 20 days later. The executrix of the will and the husband were the parties in this case.
What is the result?
Holding: yes, joint tenancy can be destroyed by transferring to oneself.
91How can you draft a conveyance that avoids the consequence of destruction for joint tenancy?
Joint tenancy for life to A and B, the remainder to the survivor of A and B.
92A and B own Blackacre in joint tenancy. A conveys a 10-year term of years in Blackacre to C. After 5 years, A dies, devising all of his property to D. What are B's rights with regard to Blackacre in most jurisdictions today?
B's survivor interest trumps lease, so lease does not survive
Lessor cannot lease without any interest to lease, it is now in B
93H and W, owners of Blackacre in joint tenancy, are getting a divorce. They sign a divorce agreement providing that Blackacre will be sold and the proceeds divided equally between H and W. Before Blackacre is sold, W dies. Does H have survivorship rights in Blackacre?
No. This is merely an agreement as to how to dispose of the property, not a clear and unequivocal statement to sever the joint tenancy - still enforced the agreement on contract law principles
94O, a widower, opens a joint bank account with his niece, A. O tells A, "I will want your name on the account so that in case I am sick you can go and get the money for me". O dies. Is A entitled to the money in the bank account? Suppose that in addition to facts presented above, O also gives A the right of access to O's safe deposit box by adding A's name to the signature card. The lease agreement signed with the bank provides that the contents of the box are owned in joint tenancy with right of survivorship. The box contains \$324,000 US savings bonds and \$4,000 in cash. Is A entitled to the bonds and cash upon O's death?
(1) No, name is on account for convenience, not for intent to make joint tenancy
(2) Same is true for contents in safe deposits
95the deed to grantees was "jointly, as tenants in common, with equal rights and interest in said land, and to the survivor thereof, in fee simple... To have and to hold the same unto the said parties hereto, equally, jointly, as tenants in common, with equal rights and interest for the period or term of their lives, and to the survivor thereof at the death of the other.
What tenancy is created?
Survivorship is used but so is "in common"; where true intent cannot be determined, recent courts like tenancy in common to simplify division of property; old courts liked joint tenancy to keep the land from being split
96A and B are planning to be married. Two weeks before the ceremony, they buy a house and take title in "A and B as tenants by the entirety". Several years after the marriage, A moves out of the house and conveys his interest in the house to his brother C. C brings action to partition the property to what result?
(1) Neither co-tenant can unilaterally sever the co-tenancy - hinges on whether this is tenants by the entirety
(2) This would not be tenants in the entirety because they were not married at the time of conveyance
97H and W owned their home in New York (which follows the minority rule) as tenants by the entirety. H abandoned W. X, a judgment creditor of H, levied on H's interest in the dwelling and purchased it at execution sale (the interest was sold for way below its true value). X demanded from W ½ the reasonable rental value of the house. W refused. What are X's rights?
(i) What is the nature of the co-tenancy between W and X?
(ii) Can X unilaterally seek partition? - only limitation is cannot seek partition
(iii) Is X entitled to possess the property?
(iv) Is X subject to W's co-tenancy?
(v) When is X entitled to ½ rent from W? (defer to later discussion)
(vi) What if H dies before W or vice versa?
(vii) What if H & W divorce?
(i) What is the nature of the co-tenancy between W and X?
1. Tenants in common
2. W AND H STILL HAVE TENANCY IN THE ENTIRETY
(ii) Can X unilaterally seek partition? - only limitation is cannot seek partition
1. No. Creditor has husband's interest, creditor cannot do what husband couldn't otherwise do
(iii) Is X entitled to possess the property?
1. Yes, tenants in common are entitled to possess entire property
(iv) Is X subject to W's co-tenancy?
1. Yes, wife also has right to possess the entire property
2. Creditor can move in with the wife
(v) When is X entitled to ½ rent from W? (defer to later discussion)
1. No unless creditor is denied entry
(vi) What if H dies before W or vice versa?
1. If W dies first, H gets survivorship - the creditor might be entitled to the Wife's half of the interest
a. Jurisdiction is split on whether it is deemed "after acquired property"
2. If H dies first, W gets survivorship of entire property and X has NO claim over the property at all
(vii) What if H & W divorce?
1. Marriage officially ends, so it does not go to the other person, becomes tenancy in common only and then one person can unilaterally motion for partition
98Johnson v. Hendrickson, (S. D, 1946) (page 412, Note 2)
(1) 160 acres of farm of deceased (1/3 to widow and 2/9 to each of his 3 children).
(2) The remarriage of widow, the birth of twin boys by second husband, the family's home on a corner of the farm, and their purchase of adjacent farm from across the family house (Note: Children of first marriage grew up and left home).
(3) The passage of widow's interest to her second family at her death.
(4) Children of first marriage (partition by sale) v. widow's second family (partition in kind)
(5) Land owned by 6 co-owners (the largest individual interest was 2/9 and the smallest was 1/12).
(6) The division of the land into 4 parcels or more and resulting substantial decrease in value.
What kind of partition resulted?
(a) Partition in kind was difficult
(b) Would sharply lower the value of the land
(c) ENDED UP IN PARTITION BY SALE
99A and B are heirs of their father, who owned one item both A and B very much want - his old rocking chair. They cannot agree who is to have the chair. A brings a partition action. What relief should the court award?
Court can be creative in sanction a remedy - split the chair by time to each brother
100What is the difference between partition in kind and partition by sale?
In kind - divide up the land
Sale - sell the land and give the money proportionately
101A and B are tenants in common with regard to a two-bedroom apartment. B has a job overseas and does not plan on coming back in the next two years. A begins move her own stuff in B's apartment. Must A pay B rent?
No, unless B tries to come back and A does not let her move back in. A is still entitled to occupy the entire property even though A's interest may only be 40%
102The right to lease property without consent of the other co-tenants: do I need your consent before I lease out my interest?
Yes
103After having a stroke, H, anxious to avoid going into a nursing home or being cared for by professional nurses, entered into an agreement with wife. Husband promised Wife that if Wife personally cared for him at home for the rest of his life, Husband would devise her certain property by will. Thus, Wife personally cared for Husband at home until his death. When he died, Husband devised the property to his daughter by a prior marriage. Can W enforce the contract?
No, there is no consideration given because a wife is expected to care for her husband in sickness and in health.
104D's factory routinely emits invisible radiation that completely disrupts TV reception in Town T. As a result, no one in town can watch television. Can P, a resident of Town T bring a nuisance action against D? What if P can show that she contracted lung cancer due to the radiation?
Private citizen can bring both private and public suit if they suffered far and above the average citizen of the general public
General answer is no if he loses nothing beyond his ability to watch tv; but if they get lung cancer, they would be able to bring a public nuisance and a private nuisance suit
105A, over a period of time, maintains a wire over B's land
Trespass, Nuisance, or both? Why?
Wire is tangible and gives rise to trespass, and if it damages person over time, can also give rise to nuisance
106D's lemon-processing factor occasionally emits a mild lemon odor that wafts over nearby homes. The odor does not disturb normal residents, except P who is allergic to lemons.
Is this a private or public nuisance or neither?
Allergic plaintiff is not normal, so the D has not created a nuisance under "threshold"
107A's children playing in the backyard. B is nervous to noise and has had a few nervous breakdowns by the noise of children playing.
Is this a private or public nuisance or neither?
Not normal, so not a nuisance
108The plaintiffs claim that the threat of ground water contamination due to defendant's toxic waste operation has caused deterioration in property values. Evidence shows that property values indeed have declined but also that contamination will not occur.
Nuisance?
(i) This was a real case, the court said that it was not a nuisance because it happened out of fear, there was no actual contamination
1. Unfounded Fear alone is not enough
109Blocking light to a neighbor's property.
Nuisance?
No, unless the erection of an object constitutes spite or malice
110(i) Tension among 3 neighbors (over a tree striding over the 3 properties & complaints about property maintenance)
1. Fence (vinyl strips and a license plate over some of the cracks between the boards, 5-feet tall orange plastic construction fencing to neighbor's side of the fence)
2. Toilet seat birdhouse
3. Graffiti by vandals
4. No encroachment
Nuisance?
1. The fence
a. Statute that anything > 6ft of a fence has to meet certain standards; nothing for below 6ft
i. We cannot determine what is beauty
2. The toilet seat
a. Standing alone, unsightliness, is not a nuisance; should go through homeowner's association to make rules if they want to get rid of ugly or unpleasant
i. Inherently subjective
3. The graffiti
a. Unattractive and vulgar but not a nuisance
111A new railroad runs next to the plaintiff's farm and the noise of passing train caused the plaintiff's chickens to stop laying eggs.
Nuisance?
1. Railroad not really at fault; no one is really at fault, it's just that the uses of the D and P are incompatible with one another, let's see if the utility will outweigh the harm
2. To determine if there is a nuisance, often the P will have actually suffered harm but not be compensated
112Plaintiffs' land contained a dwelling, a restaurant, and accommodations for 32 habitable trailers which were rented out. The defendant's oil refinery was 1,000 feet away, emitting nauseating gas and odor.
Question: What would have been the outcome of a utility v. harm balancing?
1. Under threshold of views - yes.
2. Under balancing of utilities - people may find that the utility of the oil refinery outweighs the harm of the plaintiffs
a. Would have to declare D's use is not a nuisance and therefore have to deny P's recovery
i. Because harms P, most jurisdictions do not use it
113D establishes a boat-manufactory in a rural, uninhabited area; for 20 years, the factory routinely emits fumes, noise, and odors. P now purchases an adjacent parcel, builds a home on the land. Can P sue D for nuisance?
Plaintiff's lawsuit would be barred under the coming to nuisance doctrine
114Neighboring land owners alleged nuisance from dirt, smoke, and vibration emanating from the defendant's cement plant. Defendant's investment in the plant was in excess of \$45 million. There were more than 300 people employed there. Plaintiff's damage: \$185k
Did court consider the damaging health effect (to plaintiff and the community)?
What if plaintiff sells property to third party in the future
- Court ruled utility outweighed the harm and gave just monetary damage
- Supposed to cover past, present, and future damage
- Seller would have to make disclosure of the issue to the new buyer - would have to bring suit against seller, not plant
- Would be a coming to nuisance bar against the plant
115A and B hold adjacent lands (Whiteacre and Blackacre). In order to get to the beach, B must go across A's Whiteacre. A grants an easement "to Blackacre for foot passage to and from the beach".
What kind of easement? Which is the dominant estate and which is the servient estate?
Easement appurtenant
Whiteacre = servient
Blackacre = dominant
116Owner of Whiteacre grants the owner of the neighboring Blackacre an easement, using the language "Owner grants A, the owner of Blackacre, an easement for driveway purposes across the south 18 feet of Whiteacre."
What kind of easement?
(i) Runs with the land because it stays with the owner of the property; advantageous to claim it is appurtenant
(ii) Since both are referenced (land and owner) could be gross
(iii) COURTS WILL LOOK AT WHETHER OR NOT THIS RIGHT CAN REASONABLY BENEFIT THE PROPERTY
1. If it can, courts tend to treat it as appurtenant (preference for appurtenant) because it is easily identify who is the holder of the easement
2. Courts will look at nature of the easement
117A grants B an easement to across A's land to access the beach. B owns no land.
What kind of easement?
If it is for ingress and egress, courts will look at location of the property - does named person in the easement have a piece of property that is next door/close by?
If it is next door, it would seem to be for the land, not just the person - appurtenant
B has no land, so this would be in gross
118A grants B an easement to fish in A's backyard. B is A's next-door neighbor.
What kind of easement?
Because it is more for entertainment purposes, it is thought to be for the individual
GROSS
119A grants B a license to access beach via A's backyard. Subsequently, A sells her house to C. Can B enforce the license against C?
Yes, B cannot transfer an easement in gross, but A can hold over the license
120A owns Lot1 and Lot2. Lot2 can only access public roads through crossing Lot 1. A sells Lot2 to B.
Can B get an easement through Lot 1?
Yes, B has a reasonable necessity to continue accessing public roads via Lot 1. (unless it is just inconvenient to not be granted one)
121A owns Lot1 and Lot2. Lot2 must access the public road via Lot 1. A takes a vacation of 6 months in Ireland, during which period lot1 and lot2 are not occupied. Upon returning from Ireland, A sells lot2 to B. "Continuous prior use"?
I dont have the answer to this in my notes but feel like i should... do you guys? (p.7 ch 8)
122(i) A owned a tract of land with access to the highways on both the east side and the west side. A divided the land into two lots and conveyed the East Lot to B. Two years later, the highway adjacent to B's lot was blocked. Can B claim easement by necessity over A's lot?
1. No because it wasn't a necessity at time of severance, so they must have intended it to happen, there was no meeting of the minds at severance. Necessity only arose after severance. B cannot claim easement by necessity via common law over A's lot
123the landlocked parcel could only access to the public road on foot, down a steep cliff, and the cost for building another road would be \$700,000. Easement by necessity?
1. Not strict enough because it is just extremely inconvenient and refuse to recognize easement by necessity
2. Court is trying to push P to the modern condemnation statute
a. Denied under common, then go to modern condemnation statute and pay for easement
124A owns 5 adjoining lots of forest land, numbered 1 - 5. All 5 lots were previously owned by O, and A purchased the lots from O in separate transactions, in the sequence of lot 1, lot 2, ... lot 5. Lot 5 had no access to the public road except through one of the other 4 lots. A dies intestate. In distributing A's estate, court gives lots to A's 5 children in the following way: B for lot 1, C for lot 2, D for lot 3, E for lot 4, and F for lot 5. Sometime later, F sues the owners of lots 1-4, claiming easement by necessity. What result?
- Cannot have an easement over your own land, so previous easement via necessity from 5 over 4 goes away
- The court can identify an easement over any one of the lots that is least costly and all 5 people share the cost of creating the easement
125What are the elements of easement by prescription?
Actual use
Not claiming right to use, not to title
Adverse use and under claim of right (to use)
Open and notorious, and
Continuous (uninterrupted) use
Objective evil intent of wrongdoer doesn't matter
126A gives B an easement to access the public highway by using a driveway on A's land. B builds a gate at the entrance of the driveway and a mailbox with B's name on it.
Can B get an easement?
Yes, B can get prescriptive easement because the mailbox/fence was not part of the use granted
127A gives B an easement to access the public highway by using a driveway on A's land. B builds a gate at the entrance of the driveway and a mailbox with B's name on it.
Suppose B has been using the mailbox for 9 years, until one day in the 9th year, A notices it and says to B: "Hey, you've got nice-looking mailbox here. I wish you asked me first before you put this up, but since it looks good, I don't mind it there". Two years later, A asks B to remove the mailbox. The statute of limitation is 10 years. What's the result?
Would NOT be able to get prescriptive easement because A eliminated the adverse element
128A has found a short cut to the beach by crossing B's backyard. A uses the shortcut only when B is not around.
Can B get an easement?
This is concealed from the servient property and therefore not prescriptive
129A has been using B's backyard to access the beach. Upon discovering this, B writes a letter to A saying that he should stop using it and puts a 3-feet tall chain at the entrance of the footpath and a "No Trespassing" sign. However, A ignores the sign and uses the footpath, nonetheless.
easement?
Yes, this is not effective; it has not really stopped A from using B's property
130A has a beach house, and B owns adjacent land. B has been crossing A's backyard to access the a public road without A's permission for 6 years, when B sells his house to C. B tells C about this shortcut on A's property so C continues B's practice of crossing A's backyard for another 5 years. A now brings the lawsuit to stop C. The statute of limitations is 10 years. Can C tack on B's prescriptive use of A's property?
Yes, you can tack, as long as there is privity between B and C - a voluntary conveyance of the dominant estate
131A has a beach house, and B owns adjacent land. B has been crossing A's backyard to access the a public road without A's permission for 6 years, when B sells his house to C. B tells C about this shortcut on A's property so C continues B's practice of crossing A's backyard for another 5 years. A now brings the lawsuit to stop C. The statute of limitations is 10 years. Can C tack on B's prescriptive use of A's property?
Same facts as above, except that B lives 5 blocks away from A's land. Can C tack on B's prescriptive use of A's property?
No, because the easement is not appurtenant because the land is not next to A's
132Adjacent to Conrad Hilton's home is a golf club. Every day several golf balls are driven onto Hilton's property, and the players come onto his property to retrieve them. If this continues, will the golf club acquire a prescriptive easement over Hilton's property? If so, what should Hilton do to prevent a prescriptive easement from arising?
(1) If Hilton does nothing, the golf club can require a prescriptive easement
(2) They could give them permission to get the golf balls to prevent them from getting the easement
(a) But would have to worry about estoppel
(i) Would need to include - "this permission can be withdrawn at any time by the Hiltons"
133A owns lot 1 and B owns lot 2. A gives "Lot 2 the right to cross Lot 1 to access public road." Subsequently A conveys to X and B conveys to Y. Question: Does Y have an easement over land now owned by X?
Yes. This is easement appurtenant, it runs with the land
134A has an easement appurtenant over B's land. A subdivides her land into 20 residential units. Do all 21 families (including A) have right to the easement?
(a) Court determines/infers the intent of the original parties to the easement
(i) Was it intended for it to be divisible?
Key Factors:
(a) Division of the dominant estate is a normal development?
(b) Division was foreseeable?
(c) Substantiallynreasonable increase in burden on servient estate?
(i) THIS IS THE MOST IMPORTANT FACTOR
135A grants B an exclusive easement to fish in the pond on his land. No one else (including A) can fish there. B divides this easement into 10 sub-licenses.
Devisable?
(i) This is yes because B has exclusive easement, it serves B alone, so if he wants to share that benefit with others, it is his decision alone
(ii) It says because its only yours, you can decide to share it. But if 3 people shared that easement, it would be less power in those people
1. Caveat - sharing/division cannot create unreasonable burden
136In 1900, A owned both lots 1 and 2 and was crossing lot 1 to transport the crops he harvested on lot 2 by horse wagon to the outside world. In 1910, A sold lot 2 to B. In 1950, B stopped the agricultural use of the property and built a house on it. B seeks to drive a car across the same road. Can the easement be used for car passage instead of horse wagon?
i) Depends on the original parties' intent
(1) Court' presumptions in inferring intent:
(a) normal developments
(b) burden to servient estate
(2) (the example above)
(a) Is the change from agricultural land to residential house a "normal development"?
(b) Does the residential use of the property by B unreasonably burden the servient estate?
137A acquired prescription easement over B's lot to access the public road on foot. Can A ride a bike on this easement road? What about riding a motorcycle?
Courts are reluctant to expand the original scope because something like walking is much less disruptive than a motorcycle or a bike
138A tells (not in writing) B that she is giving up her right of way across B's land. In reliance on this statement, B erected a building across the road.
Can A reclaim the easement?
Estoppel May bar dominant from reclaiming estoppel if dominant releases easement
139B's land is surrounded by the lots owned by A and C. B has an easement over A's lot by necessity. Subsequently, a public road is constructed that connects directly to B's land. What results?
B would have some time to build a driveway to the road
B NEEDS READY ACCESS
140In Van Sandt v. Royster (lots 19 - 20 - 4), suppose that the city constructs a public sewer that connects directly to lot 4. Does the owner of lot 4 lose the implied sewer easement over lots 19 and 20?
- Prior use does not get ended when necessity comes to an end
- Courts interpret necessity to exist as long as necessity exist
- Regarding prior use, the it seems to be intent to allow use so it does not hinge on necessity
141A stops using her right of way across B's land for 5 years, and B builds a house on the easement road. Is A estopped from claiming her easement?
no matter how long you dont use it, non-use alone is NEVER enough to be considered abandonment. you need more factors than that
142A had a right of way across B's land. B erected a fence barring A from access for 25 years. A protested but to no avail. Statute of limitations is 10 years. What result?
(1) Here, dominant estate should have brought a lawsuit
Servient estate has blocked the use of the easement by the dominant estate - if by the end of the SoL dominant has not brought suit, then the use easement is terminated by adverse use of servient estate