waste, the delayed right of entry and restraints on alienation

Question 1

what are the three types of waste

Answer 1

Voluntary waste - a life tenant’s AFFIRMATIVE ACTION causes a decrease in the land value

Permissive waste- a life tenant’s FAILURE to take reasonable care of th eland causes a decrease in land value

Ameliorative waste- a life tenants AFFIRMATIVE ACTION changes the property but INCREASES its values
The law of waste usually arises in the context of life estate

Question 2

what kind of waste is commited if a life tenant fails to fix a leaky roof

Answer 2

permissive

Question 3

what kind of waste is commited if a life tenant fails to pay taxes

Answer 3

permissive

Question 4

when does the obligation to keep property in good repair stop

Answer 4

when another third party causes an affirmative harm

Question 5

can a life teant commit waste against the remainderman or the reversioner?

Answer 5

no

Question 6

Moore v Phillips

Facts:
Ada had a life estate in a farm and the remainderman belonged to the plaintiffs
After ada died, the ps realized the state of the farm was deplorable and sued ada’s estate on the theory of waste to recover damages for the deteriatoion of the farmhouse

Issue: is a claim of permissive waste by a daughter against her mother’s estate barred by laches or estoppel when most of the waste occurred in the last few years of the mother’s life? /is the life tenant liable to the remainderman for waste?

Answer 6

a life tenant is obligated to maintain the property in good repair so as to prevent decay and waste and preserve the property for those owners with FIs; additionally, where the injury is contiuing in nature, the statue of limitations does not commence until the life tenant dies

Question 7

what kind of waste was committed in the moore case (daughter sues mother’s estate after house becomes dilapidated)

Answer 7

Permissive waste was committed in this case – Ada just didn’t take care of the property and it suffered as a result

Question 8

Melms v Pabst - estate holder destroys useless house, increasing property value
Facts- melms built the house in question, and at the time melms owned the adjoining real estate as well as the brewery. Melms died and both the house and brewery were sold and CONVEYED TO THE DEFENDANT

D only got a LIFE ESTATE in the house, and the Ps were the owners of the fee, subject to a life estate (but the Ds thinks they hold a fee simple absolute)
The home because an isolated lot, and the D removed the building and graded it down, making it useful and profitable as the conditions of the area had changed drastically, and the Ps, as the reversioners, sued

Issue: did the defendant’s actions constitute an ameliortive waste?/ may a life tenant commit waste if permanent changes in the surrounding area make the property worthless in its current condition and the waste would make the land valuable?

Answer 8

Holding: no the D’s action did not constitute a waste; yes
Reasoning

The old common law rule would have made it waste as it defined any material change as waste
Brock v. dole - any material change in the nature and character of the buildings made by the life tenant is a waste, even if the property is enhanced by the alternation
However, here, there was a complete change of conditions, NOT PRODUCED BY THE DEFENDANT, but resulted from causes which no one could control

Question 9

does the holding of melms apply to leasing an apartment?

Answer 9

THIS RULING DOES NOT APPLY TO LEASING AN APARTMENT
The landlord has the right to expect that the property he gives you will be in the condition that was given because thats how he makes money
Its temporary, unlike the life tenant/remainderman

Question 10

what is the cavaet to the right of entry?

Answer 10

it does not automatically become a present interest when the condition is broken in a FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT

The holder of the RIGHT OF ENTRY must ACT to exercise their right to terminate the present posessor’s estate

This is why the right of entry is aka the power of termination

Question 11

Mahrenholz v county board of school trustees- land deeded to school board ‘to be used for school purposes only’ ; deed language granting land for an ambiguous purpose and otherwise reverting the land to the grantor creates a fee simple determinable followed by a possibility of reverter

Issue: was the 1941 deed conveying a fee simple st condition sub(followed by a right of entry that is not automatic) OR a fee simple determinable(followed by possibility of reverter which is automatic)

Answer 11

Holding: a fee simple determinable with a possibility of reverter is created when the lang used in the deeds shows the grantors’ INTENT to create such an estate

Question 12

Metropolitan Park District v Unknown heirs of Rigney- FS subject to condition subsequent or FS determinable?

Facts: in 1884 the rigneys conveyed by deed the property in question to the Tacoma light and water company; the deed language said that the property was to be used for the purpose of providing a right of way to conduct fresh water by ditch canal, flume etc and if it stops being used that way the grantors get it back
The company used it as the deed provided until about 1883 when it conveyed the property to the city of tacoma
The city stopped using it for those purposes in 1905 and tured it into a park and tennis courts
The condition was broken in 1905, but the Ps didn’t claim the right of reentry until 1965 with this suit

Issues:
1. Can the present posessor of a FS st CS adversely possess against the holdr of the right of entry, and if not
2. Whether the lapse of an EXTENSIVE period of time between a breach and an election of forfeiture wavies or otherwise extinguish the condition?

Answer 12

1. The grantee of an estate cant acquire title by AP following a breach of the condition put prior ot a claim of forfeiture, HOWEVER
2. The lapse of an extensive period of time between a breach and an election of forfeiture DOES waive or otherwise extinguish the condition

Question 13

what is a restraint on alienation?

Answer 13

a purported transfer of real property that precludes any grantee from selling the property

Question 14

what are the three types of restraints on alienation

Answer 14

Promissory restraint- involves a promise by the grantee to refrain from transferring the property

Forfeiture restraint- occurs where the grantor specified that the grantee forfeits title to the property if the grantee attempts to transfer the property

Disabling restraint- if a grantor specifies that an attempted transfer is void

Question 15

does the law recoginze restraints on alienatios

Answer 15

no, but they will sometimes recognize partial restraints on alienation

Question 16

what is an example of a partial restraint on alienation

Answer 16

b may not transfer blackacre within the first seven years of this conveyance

Question 17

how do courts determine if an alienation is partial or absoulte?

Answer 17

Courts look to nature, duration, and purpose of the restraint to determine if its a partial or complete restraint on alienation

Question 18

are future interests transferable/alienable?

Answer 18

yes

Question 19

what are the three ways that a FI can be transfered

Answer 19

nter Vivos conveyance (transfer while living)
Devise (transfer through a valid will)
Intestate succession (transfer through inheritance without a will)

Question 20

White v Brown: Woman writes her own confusing will

Facts: woman writes a will that says ‘i appoint my niece to be the executrix of my estate. ‘I wish evelyn white to have my home to live in and NOT BE SOLD’
White thinks the will means that she is vested with a fee simple title to the home
Brown contend that the will conveyed only a life estate to white, leaving the remainder to go to them under the laws of interstate succession

Issue
1. Is it a fee simple interest or a life estate
2. Is the restraint “to live in and not to be sold’ enforceable

Answer 20

Holding
1. If you have ambiguous language, read it as fee simple!
2. No!