Mountain Brow Lodge v. Toscano

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Mountain Brow Lodge(∏) v. Toscano (∆), Court of Appeals of Ca. 5th District, 1968 Are the conditions in the deed, restricting use and alienation, void? Issue Reasoning
The conditions on use and alienation are connected with an OR. So, just because the prohibition on sale is invalid doesn’t mean the other condition is also.

Clauses that prohibit the selling or transferring the land under penalty of forfeiture is an absolute restraint against alienation and is void.

Toscano’s parents conveyed a parcel of real property to the Lodge with the stipulation that ‘the property be restricted for the use of the Lodge. But if the Lodge stopped using the property OR tried to sell it, it reverted back to the GOR’ The Lodge brought a claim to quiet title to the land.

The GOR conveyed the property out of love and affection and intended it to be used for Lodge activities. So, when construed as a while and light of the surrounding circumstances, created a fee subject to a condition subsequent.

Use: (of property) a right which a person has to use or enjoy the property of another according to his necessities. No express language is necessary to create a fee simple subject to condition subsequent as long as the intent of the GOR is clear.

(Toscano are the trustees and administrators of the estate of the GOR)

Even though the condition restricting land use hampers or completely destroys the ability to alienate the land, it is valid. PP: If GEE don’t respect the wishes of the GORs, there will be less granting! The intentions of the GOR have to be respected.

Even though the condition restricting land use hampers or completely destroys the ability to alienate the land, it is valid.

Dissent Held Procedure P argues D argues

It’s all a restraint on alienation. Since no else can use the land, might as well be a prohibition on sale clause. If an org disbands in 100 yrs, the result will be a fragmented title to 100s of potential heirs. Easier to hold the property free of restrictions. Affirmed – but struck the alienation clause from the judgment The Lodge brought action to quiet its title to land. Court found in favor of Toscano. It’s an absolute restraint on our power of alienation and is void. The language is too imprecise: it must be a restriction on who uses the land rather than how it is used. The language meant to take effect only if the land is sold or transferred. The Language creates a fee simple subject to condition subsequent which is valid and enforceable.

Habendum: A statement in a legal document which describes the type of ownership, such as life or fee estate

Alienation: Conveyance or Tx of property to another.


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