PLEASE PUT ASSIGNMENT #4 FACE DOWN IN BASKET ON CHAIR MUSIC: Bach, Concertos for Two Harpsichords (1732-36)

THE ENGLISH CONCERT Trevor Pinnock, Conductor,

HarpsichordKenneth Gilbert, Harpsichord

Performed 1980

DQ121: Storage as “School Purpose”

DQ121: IS STORAGE A “SCHOOL PURPOSE”?

PARTIES’ LIKELY ARGUMENTSFor 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 7IFeaturing

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 canheld 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

LOGISTICSShapira (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 EstateBetty: Contingent Remainder in Fee SimpleReggie: 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 destroyeddestroyed.

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 destroyeddestroyed

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 EstateTed?

(7J):Mary "to Rhoda for life, then to Ted if Ted gives Mary a proper

funeral."

Rhoda: Life EstateTed?: Contingent Remainder (in f.s.)Other?

(7J): Mary "to Rhoda for life, then to Ted if Ted gives Mary a proper

funeral." Rhoda: Life EstateTed?: 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 EstateWhat 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 EstateMary: ReversionTed: 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 MISTAKESCOMMON MISTAKES•Contingent Remainder Subject to Open•Contingent Remainder Subject to Divestment•Executory Interest Subject to Divestment

COMMON MISTAKESCOMMON MISTAKES

Contingent Remainder Subject to OpenContingent Rem. Subject to DivestmentExecutory 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 EstateKramer?

(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 EstateKramer: Vested Remainder (in f.s.) subject to divestmentElaine?

(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 EstateKramer: 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 EstateTweety’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 EstateTweety’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 EstateTweety’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 EstateTweety’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 EstateHeckle/Jeckle: Contingent remainders (in f.s.)Peggy: Alternative contingent rem. (in f.s.)Daffy: Reversion