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Flashcards in 10) Future Deck (151):
1

reformation/cy pres

court changes "offending language" to make conveyance good

2

vested remainder-- is there a reversion?

NO -- o loses reversion when it vests

3

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

4

life in being

persons named in the conveyance or intervening generations(?), alive and ascertained at time of the dash "measuring life" or "validating life"

5

subject to condition subsequent

CONDITIONAL WORDS O (or whoever has the right) has to affirmatively enter to get it back -- reversion not automatic!!

6

consent to sell clauses -- enforceability

usu not enforced "repugnant to the fee"

7

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

8

normal intestate hierarchy

spouse (and kids from other marriage) kids parents siblings certain other relatives

9

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

10

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

11

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.

12

future interests in grantOR

reversion possibility of reverter right of entry

13

no relatives to inherit?

property escheats to the state

14

life estate: duty: voluntary waste

acts of COmission to damage property (cutting down trees, demolish the house)

15

life estate: duty to keep property in repair: 3 kinds of waste to not commit

1) voluntary 2) permissive 3) ameliorative

16

restraints on alienation (CL vs now)

CL per se void, now: subject to general test of reasonableness.  BUT total restraint on alienation generally void.

17

reasonableness test for restraints on alienation

weigh harm of restraint vs utility of enforcing

18

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

19

term of years: reverter?

has REVERSION IN O, unless otherwise specified

20

4 present possessory interests in property

1) FSA 2) Fee tail 3) life estate 4) term of years

21

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

22

vested

certain who will get the future interest

23

O to A for life

life estate

24

trusts--def

grantor conveys property to trustee, for benefit of beneficiary -- trustee has legal title but bound to use the trust for the beneficiary

25

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

26

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)

27

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?

28

RAP modern reforms (3)

(only if told we're using in W): 1) wait and see 2) reformation/cy pres 3) uniform/statutory rules

29

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

30

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

31

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

32

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

33

contingent remainder

haven't vested bc one of the 2 conditions not met. either: we dnk who grantee is OR condition not satisfied yet

34

precatory terms

no legal effect, just show intent

35

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

36

H: RAP applies to option to purchase commercial property

Symphony Space Inc v. Pergola Properties Inc

37

life estate: who pays mortgage?

LE holder: pays interest remainderman: principal

38

fee tail ex

O to A "and the heirs of his body"

39

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

40

contingent remainder examples (3)

child (none born yet) condition not sure to meet terms of art like "widow" (who will be the widow?)

41

2 other obsolete CL doctrines re transfer of property

1) Rule in Shelley's case 2) doctrine of worthier title

42

joint tenancy: encumbrance exception

ok unilateral encumbrance but can't encumber cotenant's right of survivorship

43

presumption against future interests

and in favor of FSAs

44

remainder

follows naturally from the prior estate -- waits until prior estate ends (eg term of years, life estate) -- dn terminate prior estate

45

exectuory interests: 2 kinds

shifting springing

46

contingent remainder often triggered by one of these (4)

1) birth 2) age 3) actiity/stated condition 4) key words (heir, widow)

47

subject to condition subsequent: who gets what

A: present possessory interest O: right of entry

48

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

49

devisees

inhereit under a will

50

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

51

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

52

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)

53

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

54

term of years ex.

O to A for 10 years

55

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.

56

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

57

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

58

O to A

fee simple absolute

59

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

60

life estate: duty to keep property in repair: exception/limitation

dnh to improve value of property

61

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

62

trust

legal arrangement where one person/entity holds title to preoprty for benefit of another

63

testator/testatrix

one who dies leaving a valid will

64

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

65

Fee simple determinable

words OF DURATION --reverter automatic when condition not met

66

vested remainders and reversions?

no -- vested remainder creates no reversion

67

RAP assumptions

no sperm banks, surrogacy etc. BUT DO HAVE THE FERTILE OCTOGENARIAN

68

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

69

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

70

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")

71

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?

72

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

73

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

74

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?

75

O to A for the life of B

life estate per autre vie

76

life estate: duty to keep property in repair: 2 components

1) pay certain costs 2) not commit waste

77

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"

78

life estate: duty: permissive waste

acts of Omission (failure to make repairs on home)...

79

2 kinds of remainders

vested contingent

80

fi: fee simple absolute

the largest estate you can get -- every stick in the bundle, do whatever you want with it

81

future interests in grantEE

remainders executory interests

82

FSD vs FSSC: which do courts prefer and why?

FSSC bc presuption against forfeitures (bc reversion not automatic)

83

fee tail

mostly obsolete. will pass to actual blood relatives until bloodline runs out

84

times when O can convey

at death, OR WHILE ALIVE

85

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

86

Fee simple determinable: examples

O to A so long as (while, during) use for residential purposes

87

consent to sell clauses: exceptions

charities condos

88

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

89

ameliorative waste: sometime exception

complete and permanent change of surrounding conditions has deprived property of its value as prev used

90

fee tail: what do courts do when someone tries to make one?: majority

give an FSA instead

91

reversion

when future interest ends naturally, it automatically reverts to grantor unless assigned someone else

92

trusts: purpose/relationship

--an alternate way to resolve some future interests issues

93

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

94

Doctrine of worthier title

O to A for life, then to O's heirs now just O to A for life

95

heirs

entitled by law to inherit property if owner dies INTESTATE

96

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

97

RAP: when does the clock start?

at the creation of interest (moment of conveyance--for will, moment testator dies)

98

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)

99

defeasible fees

property can be taken from recipient by triggering event

100

reversion vs remainder

Reversion = in grantOR remaidner = in grantEE

101

FS determinable: who gets what?

A: present possessory interest O: possibility of reverter (tho could be specified to someone else)

102

potential limitations on estates

1) FS determinable 2) subject to condition subsequent 3) subject to executory limitation

103

RAP/marketable title acts

it can happen

104

life estate

--you can (live?) in property for whole life, but then it reverts back to O (or goes to someone else if designated)

105

presumption against forfeiture: FSSCS vs. FSD

FSSCS better, bc current interest not automatically forefeited when condition violated

106

fee simple absolute, ex.

O to A O to A and her heirs*

107

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

108

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

109

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

110

vested remainder subject to partial divestment aka

subject to open

111

trusts: grantor aka

settlor, trustor

112

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

113

life estate: reverter?

has REVERSION in O, unless otherwise specified

114

O to A "and the heirs of his body"

fee tail

115

vested remainder

meets requirements as below can sell it

116

VR subject to total divestment aka

subject to divestment

117

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

118

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

119

executory interest

future interest that belongs to someone other than the grantor

120

right of entry

as above, right to reclaim

121

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)

122

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...)

123

rule against new estates

must use an existing category

124

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

125

Symphony Space Inc v. Pergola Properties Inc

H: RAP applies to option to purchase commercial property

126

O to A for as long as A lives

life estate

127

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

128

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

129

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

130

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

131

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

132

total restraints on alienation generally void bc (2)

—> repugnant to the fee —> NW realty, bundle of sticks

133

every contingent remainder creates...

a reversion in O

134

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

135

O to A for 10 years

term of years

136

term of years (3)

expires naturally by its own terms after certain # of years --O has revision (unless otherwise specified) --possible have conditions

137

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)

138

restraints on alienation (CL vs. modern view)

CL: strong presumption in favor of grantor modern view: reasonableness test

139

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)

140

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

141

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

142

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)

143

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

144

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

145

you can only sell what you have: meaning

if it is subject to conditions and someone buys it, they are subject to identical conditions

146

interpreting ambiguous wills (3)

1) grantor's intent (language, circumstances) 2) presumption against future interests 3) presumption against forfeiture

147

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

148

life estate ex

O to A for life O to A for as long as A lives

149

Possible limitations (3)

1) determinable 2) subject to condition subsequent 3) subject to executory limitation

150

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

151

subjet to condition subsequent: exception to right of entry

laches--can't wait too long