10) Future Flashcards
reformation/cy pres
court changes “offending language” to make conveyance good
vested remainder– is there a reversion?
NO – o loses reversion when it vests
wait and see
wait and see if future interest vests w/in 21 year period (vs speculating about whether or not it will). If yes good, if not destroyed
life in being
persons named in the conveyance or intervening generations(?), alive and ascertained at time of the dash “measuring life” or “validating life”
subject to condition subsequent
CONDITIONAL WORDS O (or whoever has the right) has to affirmatively enter to get it back – reversion not automatic!!
consent to sell clauses – enforceability
usu not enforced “repugnant to the fee”
shifting executory interest
shifts from someone else (not from O), and comes into being bc it cut short a prior estate O to A, but if ceases to be used as a school during A’s lifetime, then to B B’s e.i. is shifting bc comes from A. sometimes the unborn children have it
normal intestate hierarchy
spouse (and kids from other marriage) kids parents siblings certain other relatives
cy pres in trusts – how court decides if it’s necessary or not (old vs new way)
–used to be burden on party seeking reformation to prove “general charitable intent” but now more common –older cases, had to be basically impossible to achieve original purpose of trust but now often ok if just broadly impractical, wasteful, unreasonable
rule of convenience
class closes when prior estate ends (eg life estate holder dies) – people who would’ve vested later don’t get any property interest
life estate per autre vie
life estate measured by someone else’s life: O to A for the life of B. B is the measuring life.
future interests in grantOR
reversion possibility of reverter right of entry
no relatives to inherit?
property escheats to the state
life estate: duty: voluntary waste
acts of COmission to damage property (cutting down trees, demolish the house)
life estate: duty to keep property in repair: 3 kinds of waste to not commit
1) voluntary 2) permissive 3) ameliorative
restraints on alienation (CL vs now)
CL per se void, now: subject to general test of reasonableness. BUT total restraint on alienation generally void.
reasonableness test for restraints on alienation
weigh harm of restraint vs utility of enforcing
F: charitable trust to create public park for whites only, H: can’t apply cy pres when clear violation of testator’s intent, so trust fails (partly bc so specific) dissent: state action $ used for park
Evan v. Abney
term of years: reverter?
has REVERSION IN O, unless otherwise specified
4 present possessory interests in property
1) FSA 2) Fee tail 3) life estate 4) term of years
Northwest Real Estate Co v. Serio
F: deed says can’t sell or rent it for 5 yrs w/o consent of old owner H: void as repugnant to FS
vested
certain who will get the future interest
O to A for life
life estate
trusts–def
grantor conveys property to trustee, for benefit of beneficiary – trustee has legal title but bound to use the trust for the beneficiary
life estate: ameliorative waste
improvements that may improve value of property but remainderman dn nec want (destroys house and makes mansion) NOTE: this was actionable at common law but less favored now
W reasonableness test for restraints on alienation
weigh the utility of the restraint against the injurious consequences of enforcing the restraint (this conveyance and future precedent)
steps to analyzing present estates and future interests (6)
1) what is the PPI? 2) what limitations are there (if any)? 3) is there a future interest? 4) future interest enforceable? 5) has trigger event occurred? 6) what is legal effect?
RAP modern reforms (3)
(only if told we’re using in W): 1) wait and see 2) reformation/cy pres 3) uniform/statutory rules
FSSEL and event could take place years from now
ex: O-A+ heirs as long as used as school, otherwise C+heirs what if they stop using it as a school after 100 years…C’s interest could come into being after A’s life + 21 years
fee simple subject to executory limitation
future interests belong to someone other than the grantor doesn’t matter if the language sounds like FSD or FSSCS can be from gap in seisen
Violates RAP: age is a condition precedent, parent alive, age greater than 21+ gestation
contingent remainder to unnamed grantee who will take at an age greater than 21, RAP is violated if grantee’s parent is still alive O to A for life, then to B’s first child to reach 25 and heirs
FSD vs FSSCS vs FSSEL
FSD: condition in favor of O FSSCS: condition for O if O retakes FSSEL: condition in favor of 3rd party
contingent remainder
haven’t vested bc one of the 2 conditions not met. either: we dnk who grantee is OR condition not satisfied yet
precatory terms
no legal effect, just show intent
McIntyre v. Scarbrough
F: D had life estate and lived on land in mobile home, sold land to P. Ps sue for waste. H: Life estate holder has to leave bc waste extreme (dn pay taxes or maintain property) N: unusual result – usu need acts of commission for extreme remedies, + principle against forfeiture
H: RAP applies to option to purchase commercial property
Symphony Space Inc v. Pergola Properties Inc
life estate: who pays mortgage?
LE holder: pays interest remainderman: principal
fee tail ex
O to A “and the heirs of his body”
Rule Against Perpetuities
No interest is valid unless it must vest, if at all, w/in a life in being + 21 years + period of gestation
contingent remainder examples (3)
child (none born yet) condition not sure to meet terms of art like “widow” (who will be the widow?)
2 other obsolete CL doctrines re transfer of property
1) Rule in Shelley’s case 2) doctrine of worthier title
joint tenancy: encumbrance exception
ok unilateral encumbrance but can’t encumber cotenant’s right of survivorship
presumption against future interests
and in favor of FSAs
remainder
follows naturally from the prior estate – waits until prior estate ends (eg term of years, life estate) – dn terminate prior estate
exectuory interests: 2 kinds
shifting springing
contingent remainder often triggered by one of these (4)
1) birth 2) age 3) actiity/stated condition 4) key words (heir, widow)
subject to condition subsequent: who gets what
A: present possessory interest O: right of entry
what we need to know by the time of the life in being + 21 years
don’t care if they GET it by then just if we will KNOW that they will, or that no one will. We need to know WHEN we’ll know: exactly who they’ll get the interest, that they’ll get, what % they’ll get. INCLUDES: all conditions will have occurred and no more people can be added to class of recipient
devisees
inhereit under a will
selling life estate?
yes, you can if A sells to X, then X has what A had X has life estate per autre vie – A remains the measuring life
VR subject to partial divestment: def
we know who will have some of the interests, but something could happen in the future to make the interests shrink O to A for life then to B’s children in equal shares C is a child but more could be born subject to rule of convenience
springing executory interest
interest in favor of a 3rd person where there has been a gap in ownership from the prior estate FROM GRANTEE (gets possession after natural termination of prior estate)
RAP could apply to: (4) (and one is a quasi-exception)
1) contingent remainders 2) executory interests 3) vested remainder subject to partial divestment *usu not an issue now bc rule of convenience* 4) options to buy and rights of first refusal
term of years ex.
O to A for 10 years
contingent remainder – is there a reversion? if unstated
every contingent remainder has a reversion in O, even if not stated UNTIL IT VESTS. THEN O LOSES REVERSION.
life estate: duties of life tenant: can’t injure or dispose of property to injury of rights of remaindermen – def
ok to use for LE’s benefit as has been used before. If open mine, ok for LE to mine and take the minerals. But if no previous mine, not ok start one
RAP DN APPLY TO: (3)
interests vested at time conveyance made, ie: 1. all PPIs 2. all interests of grantor (reversion, possibility of reverter, right of entry) 3. vested remainders absolute/total divestment
O to A
fee simple absolute
group gift
ex: O to A for life, then to B’s children to reach 25 bc unborn w shifting executory interest W HAS RULE OF CONVENIECE..vested members will take
life estate: duty to keep property in repair: exception/limitation
dnh to improve value of property
consent to sell clauses: condos
enforced if requires assn to act reasonably OR form of preemptive rights: assn retains option to buy back from buyer
trust
legal arrangement where one person/entity holds title to preoprty for benefit of another
testator/testatrix
one who dies leaving a valid will
alternative contingent remainder (and–reversion?)
2 “ifs” O to A for life, then to B and heirs IF B gets married, if B dn get married, then to C+ heirs *O keeps implied reversion here
Fee simple determinable
words OF DURATION –reverter automatic when condition not met
vested remainders and reversions?
no – vested remainder creates no reversion
RAP assumptions
no sperm banks, surrogacy etc. BUT DO HAVE THE FERTILE OCTOGENARIAN
F: will to daughter “keeping free from encumbrances” and if does encumber then will give to kids. Daughter dn leave to granddaughter. GD argues it was only a life estate w remainder, not FSA H: LE w remainder based on intent. It can’t be what it looks like which is FS w conditions
Edwards v. Bradley
fee tail: what do courts do when someone tries to make one?: minority
allow FT for 2 generations (where A is generation 1), in 2nd gen converts to FSA
rule of convenience – applications beyond kids
you only have util (eg life estate holder dies) to meet the condition…class is closing (“if B graduates from law school”)
future interests: technical process (6 steps)
1) classify the possessory estate 2) ID the limitations if any 3) is there a future interest 4) is the future interest enforceable? 5) if yes, has the trigger event occurred? 6) if yes, what is the legal effect?
requirements to vest (2)
AT TIME OF VESTING: 1) grantee is ascertained (we know who B is) (includes B must have come forward if B is a secret child) 2) any conditions that B must meet are met
F: deed says can’t sell or rent it for 5 yrs w/o consent of old owner H: void as repugnant to FS
Northwest Real Estate Co v. Serio
steps to analyzing RAP
1) label the conveyance and interests 2) does RAP potentially apply to this conveyance? 3) If yes, is it violated? 4) if yes, remedy?
O to A for the life of B
life estate per autre vie
life estate: duty to keep property in repair: 2 components
1) pay certain costs 2) not commit waste
Subject to condition subsequent: examples
O to A but if not used as a school, then O can reenter and retake “on the condition that” “provided that”
life estate: duty: permissive waste
acts of Omission (failure to make repairs on home)…
2 kinds of remainders
vested contingent
fi: fee simple absolute
the largest estate you can get – every stick in the bundle, do whatever you want with it
future interests in grantEE
remainders executory interests
FSD vs FSSC: which do courts prefer and why?
FSSC bc presuption against forfeitures (bc reversion not automatic)
fee tail
mostly obsolete. will pass to actual blood relatives until bloodline runs out
times when O can convey
at death, OR WHILE ALIVE
Johnson v. Whiton
F: will “to Sarah and her heirs on her father’s side 1/3 part of all my estate” H: dn limit Sarah’s ability to alienate bc can’t create a new estate so it’s a FSA
Fee simple determinable: examples
O to A so long as (while, during) use for residential purposes
consent to sell clauses: exceptions
charities condos
COMMON VIOLATIONS OF RAP (4)
1) age is a condition precedent and parent is alive and age is greater than 21+ gestation 2) FSSEL and event could take place years from now 3) unborn spouse trap 4) group gift
ameliorative waste: sometime exception
complete and permanent change of surrounding conditions has deprived property of its value as prev used
fee tail: what do courts do when someone tries to make one?: majority
give an FSA instead
reversion
when future interest ends naturally, it automatically reverts to grantor unless assigned someone else
trusts: purpose/relationship
–an alternate way to resolve some future interests issues
cy pres in trusts
courts can equitably modify purpose based on donor intent when the original purpose is now impractical or impossible. If can’t modify trust fails
Doctrine of worthier title
O to A for life, then to O’s heirs now just O to A for life
heirs
entitled by law to inherit property if owner dies INTESTATE
future interests: 4 kinds of possessory estates
*you can only have 1!* 1) fee simple absolute 2) fee tail 3) life estate 4) term of years
RAP: when does the clock start?
at the creation of interest (moment of conveyance–for will, moment testator dies)
remedies when RAP violated (3)
–wipe out whole thing and do FSA, or just strike the offending parrts, or could modify to try to give effect to grantor intent (eg make kid 21 instead of 25, name the widow)
defeasible fees
property can be taken from recipient by triggering event
reversion vs remainder
Reversion = in grantOR remaidner = in grantEE
FS determinable: who gets what?
A: present possessory interest O: possibility of reverter (tho could be specified to someone else)
potential limitations on estates
1) FS determinable 2) subject to condition subsequent 3) subject to executory limitation
RAP/marketable title acts
it can happen
life estate
–you can (live?) in property for whole life, but then it reverts back to O (or goes to someone else if designated)
presumption against forfeiture: FSSCS vs. FSD
FSSCS better, bc current interest not automatically forefeited when condition violated
fee simple absolute, ex.
O to A O to A and her heirs*
F: D had life estate and lived on land in mobile home, sold land to P. Ps sue for waste. H: Life estate holder has to leave bc waste extreme (dn pay taxes or maintain property) N: unusual result – usu need acts of commission for extreme remedies, + principle against forfeiture
McIntyre v. Scarbrough
Is RAP violated?
pikc a measuring life (must be alive and ascertaiend, ok if in utero, ok if not specifically named) relevant to whether or not conditiont akes place then figure it out
Future interests: interpretive principles (5)
1) you can only sell what you have 2) rule of convenience 3) rule prohibiting creating new estates 4) presumption against future interests 5) presumption against forfeiture 6) grantor’s intent
vested remainder subject to partial divestment aka
subject to open
trusts: grantor aka
settlor, trustor
savings clauses
drafting around the RAP eg: gives court or trustee power to reform to avoid invalidity, or say if interest violates the rule it shoudl be construed to vest only in those who may legally take it under the rule
life estate: reverter?
has REVERSION in O, unless otherwise specified
O to A “and the heirs of his body”
fee tail
vested remainder
meets requirements as below can sell it
VR subject to total divestment aka
subject to divestment
Rule in Shelley’s cse
O to A for life, then to A’s heirs, where we dnk who the heirs are. Now just O to A
life estate: duties of life tenant to remainderman (3)
1) fudiciary/quasi fiduciary rship 2) can’t injure or dispose of property to injury of rights of remaindermen 3) maintain property in repair, prevent decay and waste
executory interest
future interest that belongs to someone other than the grantor
right of entry
as above, right to reclaim
future interests (3 in grantor, 2 in grantee)
GrantOR 1) reversion 2) possibility of reverter 3) riht of entry grantEE 1) remainder (vested vs contingent) 2) execturoy interests (shifting vs springing)
life estate: duties of life tenant: can’t injure or desposte of property to injury of rights of remaindermen – exception
OK TO USE PROPERTY for exclusive benefit of LE (w/in confines of the rule…not reall an exception…)
rule against new estates
must use an existing category
O to A and her heirs, what does “and her heirs” mean?
fee simple absolute NOTE: THIS DOES NOT MEAN THAT THE HEIRS ACQUIRE ANY RIGHTS…A can still sell it to someone else etc
Symphony Space Inc v. Pergola Properties Inc
H: RAP applies to option to purchase commercial property
O to A for as long as A lives
life estate
vested remainder absolute
“O to A for life, then to B and heirs” B has vested remainder absolute bc he will for sure get it sometime, tho might not be soon if B dies, his estate gets it
FSD, FSSC and AP (and an ex)
AP starts when condition violated ex: condition violated, so in FSD automatically reverts to O, but if O dnd anything to claim, could later be AP’d
Edwards v. Bradley
F: will to daughter “keeping free from encumbrances” and if does encumber then will give to kids. Daughter dn leave to granddaughter. GD argues it was only a life estate w remainder, not FSA H: LE w remainder based on intent. It can’t be what it looks like which is FS w conditions
Uniform Statutory Rule Against Perpetuities
validates future interests that owuld otherwise violate RAP if interest vests at any time w/in 90 years of creation (vs life+21) only to interests thatw ould’ve been invalid under the traditional rule courts can reform deed w grantor’s intent
F: P gives land “for purpose of hospital,” then family wants it back when used for something else: FSD or FSSC H: bc no specific limiting language assumed to be FSA (presumption in favor of FSAs)
Wood v. Board of County Commissioners of Fremont Cty
total restraints on alienation generally void bc (2)
—> repugnant to the fee —> NW realty, bundle of sticks
every contingent remainder creates…
a reversion in O
VR subject to total divestment
O to A for life, then to B + heirs, but if B dn graduate from med school, then to C+heirs *C here has shifting executory interest
O to A for 10 years
term of years
term of years (3)
expires naturally by its own terms after certain # of years –O has revision (unless otherwise specified) –possible have conditions
life estate: duty to keep property in repair: costs must pay
1) interest on mortgage (BUT PRINCIPAL PAID BY FUTURE GRANTEE) 2) taxes and insurance (but could k around)
restraints on alienation (CL vs. modern view)
CL: strong presumption in favor of grantor modern view: reasonableness test
future interests: 3 interpretive rules
(1) can’t grant more than you have [if your estate is encumbered by eg F.I. and you pass it to someone, theirs will be encumbered in the same way too] (2) unless grant has limiting language, presumption that you gave away the full interest (3) whatever is not granted remains with the grantor (ex. if you don’t specify what happens after, it goes back to grantor)
F: will “to Sarah and her heirs on her father’s side 1/3 part of all my estate” H: dn limit Sarah’s ability to alienate bc can’t create a new estate so it’s a FSA
Johnson v. Whiton
executory interest
future interest in 3rd party that cuts short the prior estate (OR happens after it ends), eg bc of happening of a conditions
Wood v. Board of County Commissioners of Fremont Cty
F: P gives land “for purpose of hospital,” then family wants it back when used for something else: FSD or FSSC H: bc no specific limiting language assumed to be FSA (presumption in favor of FSAs)
future interest (def +3)
right to take possession in future under specified circumstances. It might never happen, but you still have the future interest at the moment it’s created becomes “possessory” when trigger event occurs
F: charitable trust to create public park for whites only, H: can’t apply cy pres when clear violation of testator’s intent, so trust fails (partly bc so specific) dissent: state action $ used for park
Evans v Abney
you can only sell what you have: meaning
if it is subject to conditions and someone buys it, they are subject to identical conditions
interpreting ambiguous wills (3)
1) grantor’s intent (language, circumstances) 2) presumption against future interests 3) presumption against forfeiture
Evan v. Abney
F: charitable trust to create public park for whites only, H: can’t apply cy pres when clear violation of testator’s intent, so trust fails (partly bc so specific) dissent: state action $ used for park
life estate ex
O to A for life O to A for as long as A lives
Possible limitations (3)
1) determinable 2) subject to condition subsequent 3) subject to executory limitation
Uniform/statutory rules – one big difference
unlike the RAP, some jurisdictions have laws t hat also cut off the GRANTORS possible future rights (possibilities of reverter and rights of entry) if they’re going too far into the future
subjet to condition subsequent: exception to right of entry
laches–can’t wait too long
