Property - Dobris - F04 - Script Goldmine1 by xiuliliaofz


									Wednesday, August 23, 2004

Dobris; office in 2105; stop by anytime; OH Thur 3:15-5:00; appointments / drop-ins ok.

752-1600 /

Assignment is posted.

Read through Pg. 41 for next class.

Class participation may be taken into account (both semesters)

Sarah Ziarri – Tutor;
OH: M 10-11, Tu 10-11 @ tutor carrels

Books: Durkeminer & Krier, Property. Additionally, you can buy a book on future interests.
    Bergen and Haskell “Preface to estates and land and future interests”
    Estates in land and future interests nutshell
    Lawrence & Minsner: A students guide to estates and land and future interests
    Linda Edwards Estates and Land

Books will go back to publisher in a few weeks. Ask around to see if you should buy one and
which one.

Dobris will refer to Nutshell more than the others in class.

First in time is first in right
    First quote in book; taken from Roman law, so very old.
    “First come, first served” – Brinklow
    A lasting part of Anglo-American culture
    Longevity and wide appeal of rule suggests that it is a good rule with usefulness (though
        these conditions alone sufficient to make a rule good)

Much of property law is the study of old rules, which sometimes do and sometimes don’t change.
Property law is at times rigid and unchanging.

Pg. 19 – The rule of capture… Pierson v. Post

Context: wild animals
Historically, also applies to: oil, gas, water

Possession = Control + Intent

Issue: Ownership of wild animals captured on land possessed by no one.

What acts (facts) amount to possession of wild animals under the rule of capture?
   Majority took these as possible definitions of ownership:
       Killing the animal and then taking the animal
       Mortally wounding the animal while continuing to pursue it
       Trapping the animal, as with a net or trap
       Maiming the animal during continued pursuit
       Cornering the animal with no hope of escape
   Majority did not accept as “capture”:
       Pursuit alone

Taking the capture rule at face value, does it make sense to reject hot pursuit? Yes. Capture is
not a part of pursuit but instead its end. In the literal sense, the hunter does not capture the
animal until after he is finished pursuing it and hot pursuit need not necessarily end in capture.

Was the fox deprived of its liberty and brought under control by host? Not by Post.
Was there a clearly manifested intent to capture the fox? Yes.

…so… there was no control, but there was intent.

Pg. 21 – line 16 – definition of capture implied.

Spectrum of possible fact situations… Where do we draw the bright line? Where do we say to
post “ok; it’s yours now and you have a right that we will recognize and for which we will give
you a remedy.” When do we say to Pearson “ok, Pearson; if you take it, you can keep it.”

Court decided that mere hot pursuit was not enough.

Case described as new and novel by court. State statutes not helpful; no cases resembling case at
hand; no local commentators, either. Because no other sources were available on this issue,
course referenced historical (nonbinding) foreign works regarding this issue.

Wednesday, August 25, 2004

Pierson v. Post cont’d…

Was the court compelled to reach this verdict? No; they were unsure.

Used a combination of formal and practical considerations.
        Hoped to preserve peace and order
        Practical instrumental goal – encourage fox killing
        Rule for future use
        Reduce amount of litigation to reduce quarrelling and reduce use of court resources
        Certainty of outcome – provide clear rules
        Reward labor
        Courts want to reward and redeem expectations (of both Pearson and Post)
        Want to promote fairness in society
Why is a strict rule of physical capture to be labeled a certain rule? If you have a strict rule of
physical capture, it is a certain rule. Why is rule that “he/she who possessed the fox owns it” not
a certain rule? Because “possession” is a word/abstraction. It is an extraction; it is elastic. We
know what it means because we say what it means. Even if it is a matter of control, what
constitutes control? What is the virtue of certainty / certain rules? Certainty allows for
consistency. Fewer cases will come to court because lawyers can resolve before case comes to
court. It is easier to administer a clear rule. Certainty encourages investment in property.

Problems with certainty: Certain rules are inflexible and may not work in complex situations.
For every problem, there is an answer that is clear, simple, and wrong. Certain rules are likely
to be flexible, changing as world changes.

Why all of this fussing over a fox? Pride; honor; grudge. Post was Dutch; Pierson was English.
The English conquered the Dutch. Two litigants were young men egged-on by their fathers.

What would you say to a furious Ludwig Post if he came into your office? Over a fox, lawyers
would tend to not encourage Post to sue. Probably both parties were wealthy landowners, given
that they were the class of people that go fox hunting. People of this sort often tell their lawyers
what to do.

Pg. 24, Question 3: Agreement from both sides (including opposition) that first in time was the
governing principle in this case… but first what? First killing or first hot pursuit? If first
possession is the rule, then what is possession?

What kinds of action/labor/investment/expectation are sufficient to give rise to (possessory)
rights in the circumstances before the court?

Rule Making: Certain rules of property law lower transaction costs. If we know that Pierson
owns the fox, then the transaction costs will be lowered. If we put the ownership in Pierson then
whoever wants it can bargain for it. Is fox hunting really about ownership of dead foxes? Is it
really about the business of killing vermin? It is a sport/game. Pierson disrupted the hunt. He
was a spoil sport. Was the litigation about something other than possession? Yes. It was about
fair play. Post probably would have done better if he had focused on the socially unwholesome
behavior of Pierson in terms of his interference with the activity.

Competition: This case is in part about the nature of competition. Competition is the essence of
sport and commerce. We seek to foster fair competition. Leads us to wonder what kinds of
activity constitute unfair competition amounting to infringement on property rights?

Livingston wanted to settle this by hunter’s custom. Is that a good idea? If hunter’s customs
included unwholesome things or affected unrelated quarrels, that would be relevant to the
courts. This case was used in resolving Barry Bonds baseball case (baseball equated to fox).
Social customs considered relevant so long as those customs are wholesome. A hunting custom is
to use fox tail to paint some fox blood on child’s face. If we are to use customs in law, they had
better take into account the interests of the greater society.
If we assign the fox on the basis of labor/investment, who would win? Livingston says it would be
Post. Livingston complains that nobody told him what kinds of dogs were being used. Big dogs
suggest a serious operator. It buttresses his complaint. If they were big, he could have argued
more forcefully in favor of Post. Livingston says, “For ought that appears on the case” = he
doesn’t know from the facts of the case…

Monday, August 30, 2004

Who is the villain in Pierson v. Post. Pierson seems to be the villain in Pierson v. Post. Post
seems to be the victim. Pierson’s conduct seems unfair. So, why does the law find on the side of

Suppose that Post had been hunting the fox for a week and Pierson just woke up one morning
and killed the fox? Should we award Post’s labor? What if Post is simply inefficient and a bad

What would Post say? Post brought himself within a reasonable prospect of getting the fox. He
could say that he should then be entitled to consideration by the courts.
In the trial, Post argued for a rule of reason (see “reasonable” italicized on pg. 23).
        - Rules of reason are flexible and appeal to common sense.
        - Rule of reason, however, imports uncertainty into decisionmaking.
        - Rule of reason imports discretion on behalf of judges. Makes it difficult to predict
             results. More expensive system; don’t know outcome until you have had a litigation.

What was Livingston’s instrumental goal when he proposed his rule of reason? Advocated
destruction of foxes. Why did Livingston think that a rule of reason would lead to more capture
and killing? He thought that without a rule of reason, hunters would become dispirited. He was
making an empirical guess about the human mind. Was Livingston right?

Rhetorical: Which rule would be the more dispiriting? The actual physical capture rule of the
majority, or the reasonable prospect of actual physical capture of the dissent?

       What type of fishing rules the ocean fisheries today? Fishing fleets go out with factory
       ships that use big nets that cover miles. They have factory freezing equipment and a
       mothership. They have all of this equipment so that they can catch the most fish by
       getting there first. Rule of capture applies to high seas because it is lawless. Are the
       fisherpeople dispirited to the point of not fishing? No! The conditions do not keep them
       from fishing.

       So, was Livingston right when he said that nobody will hunt foxes if the rule of capture is
       used? Dobris says that he was wrong.

       Is the fishing analog persuasive? Do sport and commerce follow the same rules? Dobris
       thinks that they often do.
We may have fewer hunters if we warn them off once hunters like Post have a reasonable
prospect of getting the fox. Pretend that Post hoists a yellow flag when he truly has a reasonable
prospect of capture. Pierson discontinues his hunt. A reasonable prospect is still not a guarantee
that the fox will be killed. Odds of catching the fox will be improved if both Pierson and Post
pursue at the same time.

Dobris argues that the reasonable prospect of actual physical capture rule (Livingston) will be
more dispiriting than the actual physical capture rule.

Let’s take the social goal of the case to a level of abstraction with which most people can be

         Say that society has goal of successfully managing its wildlife population.
                  Goal could be either to manage wildlife
                  o By getting rid of noxious beasts
                  o Preserving wildlife
         Either side can argue Pierson v. Post. If you love foxes above all other things, what rule
         of law do you want? It is against the law to kill foxes. Assume that you can’t have that
         rule, though. What rule do you want? You would then want a rule that led to the death of
         the fewest foxes. You would want a reasonable prospect rule because it discourages (at
         least some) hunters from pursuing the fox (a Pierson would not get to keep the fox if he
         killed it and a Post might fail to catch it without backup from a Pierson).

         Fox hunting is in trouble in England because foxes are dying out.

Pg. 26

Ghen v. Rich

People would have known the rules regarding the hunting of whales. Hunter sued person that
purchased the whale at auction.

Rule: Bomb lance in the whale plus payment of finder’s fee makes hunter the owner.
       - Without this rule, there would be less/no hunting of whales.
       - Always nice to respect a custom and redeem settled expectations.
       - No overinvestment in capture or holding/trading costs.
       - If you’re a fin-back whale, you are more likely to die when this rule is upheld in
       - 19th century technology did not allow the ship to stay attached to the whale. Whale
          could pull the whole ship down. Fishing boats were actually very small.
       - Technologically, we do not need this rule today.
       - What risk is there in establishing a rule that accommodates the current technology?
          o Nobody will bother with the new technology.
          o Rule will become obsolete and lead to absurdities in future cases.
Rule of salvage (splitting the difference) is very rare. Decisions tend to be binary – no splitting
the difference. We seem to need friend/foe winner/loser type outcomes.

Wednesday, September 01, 2004

Did Keeble have possession of all the ducks as defined in Pierson v. Post? No. Why did Keeble

Keeble’s goal was to bring ducks to market – to feed people. Social goal in Pierson v. Post was
to rid us of noxious beasts. Both cases resulted in an important social goal being met. In PvP,
goal of killing foxes; goal of feeding us in KvH.

Pierson v. Post had Keeble case, but not in its complete form; there is thought that PvP may
have been decided differently with full version of KvH.

Keeble won because we want to encourage someone who is laboring to feed us and Keeble won
because he was the victim of villainous conduct… should we also apply those abstractions to

If you were representing Duck Lovers of America, might say that policy goal of protecting ducks
more important than policy goals of protecting labor/investment and feeding people.

Keeble suggests a litigation tactic that might have helped Post if he had used it. Could have said
that it wasn’t a matter of possession but a matter of disturbance (Hickeringill’s disturbance was
like Pierson’s under this view). Focus on misconduct of your opponent. If Pierson’s misconduct
had been focused upon by Post’s lawyer like Keeble had focused upon misconduct of
Hickeringill, Post might have won.

What kind of competition do we accept? Fair competition. Fair competition encourages
participation. Even fair competition harms its victims. We accept competition that advances the
social ball, drives prices down, gives more options, and doesn’t dispirit competitors.

This case is a ringing endorsement of competition in the market and of achieving social goals.

Problem 1 on page 36:

T captures animal… T1 takes animal… T returns and takes back animal… T sues T1 for return
and T1 says that T had no right to take animal.

T has some kind of a property right as against T1. Title is relative. T has a better right than T1
and a worse right than O when O comes to take the animal on T’s behalf from T1. We generally
do not recognize the rights of a 3rd party (party O). Courts do not generally recognize the jus
tertíi of a 3rd party. T had first in time right to animal.
See footnote 16: Suppose that F has a neighbor with a herd of deer. Doe takes up with buck in
neighbor’s herd and is fed by neighbor. Doe has a kid; whose is it? It belongs to the owner of the
doe. All legal cultures rule on this the same way for 2000 years. “The kid follows the damme.”
Why? It is easy to figure out who the mother is, but father is less certain. Doe is programmed by
nature to raise the kid. Encourages investment in breeding.

Salvage fee tends to be very rare.

We learned (and will learn)…
   First in time is first in right
   Property rights are relative
   T (first in time) can have a relatively better right than T1 even when T is a trespasser
   Property law implements social goals
   Substantial reliance on market in allocation of property
   Rights of true owner most important; rights of 3rd parties (not a party to case) do not
       usually count
   Kid follows the dam
   When market is perceived to fail, we will often step in with some kind of government
   Property defined by some is the right to exclude others
   Property is usually transferable
           o Right to sell
           o Right to bail out
           o Right to transfer objects of bounty at time of death (or earlier)
   Allows resources to migrate to their highest and best use

Pgs. 107-111; read carefully.

Wednesday, September 08, 2004

Mon. 107-125 (midpage / focus on HANNAH)
Wed. 107-125 (midpage / reread Hannah but we will do more)

Armory v. Delamirie
Will the law protect a mere possession? Yes
Can possessor claim trover against a later possessor? Yes
Will the law protect a mere finder? Yes
Can a finder maintain trover against

Will law protect bailor in his relationship with his bailee if the bailor‟s claim is based on a
finding? Yes. [Bail (handle on a pail); bailor (one who hands item over); bailee (recipient of the

What are the two basic remedies in our civil courts? Equity‟s remedy is the injunction; law‟s
remedy is money (damages).
Peering through the cause of action, what was the apparent remedy here? Money damages.

What was the apparent commercial nature of this lawsuit? A forced sale.

What is really going on here? This was a forced purchase/sale. Boy was the seller selling the
jewel. Buyer was Delamirie.

When things are complex, follow the money.

What does the sweepsboy have after the suit is completed and the apparent remedy is perfected?
Money. What does the jeweler have (from what we can tell)? The original jewel.

Whose title does the goldsmith have? He has the sweepsboy‟s title to the jewel. It is a finder‟s
title, so it is superseded by the original owner or anyone who stands on the timeline between the
original finding/creation of the jewel and the finding by the boy. In other words, prior (in time)
finders also have stronger claim.

Judgment from court serves as title for jewel for the jeweler.

As between the chimney sweeps boy and the smith, who is the owner of the jewel? Jeweler
bought stones and title in a forced sale. If you wanted to wear the stone the Saturday night after
the case came down, you would buy them from the smith. Would you pay the full appraised
value? No; an earlier owner can still claim the jewel, so you may have to pay and then give the
jewel up.

You are a personal assistant to Bill Gates. You are an employee at will (can be fired anytime for
any reason). You have cosmic knowledge and a time machine. You have 1 hr. to deliver piece of
jewelry to Melinda Gates with a perfect title. All of the people involved have a claim to the
jewel; you would have to deal with the smith and any prior finders, including any true owner.

Title is relative; a thing can have more than one owner.

Assume that each of us lives in rented quarters. If one wants the whole place to become vacant,
he would have to deal with both the landlord and each individual renter.

Why did the court protect the sweeps boy? He wears 3 hats.
  1. Bailor
  2. Finder
  3. Stand-in for the true owner

Right of boy protected because
   1. Can‟t have a world where people are allowed to just take things; will lead to fighting or
       merchant distrust. Bailing is a useful practice; we want to protect bailors.
   2. Boy is stand-in for owner, so we want to protect rights of true owners and to protect the
       labor of the finder.
   3. Protect the luck of the finder.
   4. If finders not protected, what would they do with their found goods? They would hide
      them away. It would damage fair trade and commerce. Items would be lost for society;
      found property couldn‟t migrate to its highest and best use.

Let‟s pretend the smith‟s apprentice had a legal theory in mind when he chose to keep the stones:
Since boy is not true owner, his right to ownership isn‟t any stronger than my own. Courts frown
on the justertii defense / rights of true owner.

Makes sense to create a world where we protect possession.

Anderson v. Gouldberg… Note 4 (pg. 110): does it make a difference if the jewel was stolen?
No. We are protecting possession. We do not want to live in a world of vigilante justice; we
don‟t want 3rd parties enforcing what they think is the law.

Judicial efficiency argument. Difficult to prove nature of a possession. Simpler just to prove the

We don‟t want to reward lying in court.

What is the remedy in Anderson v. Gouldberg? Gets wood back, which is preferable to damages
for sake of judicial efficiency: don‟t have to determine the value of the wood.

Tuesday, February 15, 2011

Delamerie was one of the great smiths of all time. Let his father lie in a pauper‟s grave.

Anderson v. Gouldberg – The thieves won their stolen goods.

Remedies: Returning the actual thing reduces error; you know that the person gets back exactly
the value of what they lost, as opposed to when you find an economic value.

In thing terms, when is getting the thing back more attractive to the plaintiff than the damages?
    If the thing has a unique (non-economic) value
    When the thing has appreciated in value, you want the actual item back. When it has
         depreciated in value, you want damages instead.
    When there is a risk of non-payment (if the person being sued is not good for the money).

Hannah v. Peel:

Finder has claim against all except true owner and prior owners.
    So, the issue is whether Peel had possession before Hannah. Court says no.
Does owner of locus in quo who has never entered locus possess property attached to soil as
against a licensee or a tenant (in this case, the gov‟t/military)?
Why no possession by ?
   Possession=control+intent
   No control or intent.
   Object was not physically attached to the property.

Pg. 118 (top): If Peel had resided in Gwernhaylod House, would he have had possession? He had
never gone into possession of the premises. Would physical taking of possession have lead to a
different result? British make a lot of this question; we make less of this question.

If Hannah was a painter and he found the brooch, would it be different? Yes. He would be
working for Peel. Peel‟s expectations: country was at war; house was taken away twice by gov‟t.
     Unstated business premise: invitee comes for specific purpose and no other; not proper
        for contractor to receive a windfall worth more than contract price or for him to take
        ceiling tiles, etc.
     Court could say that the owner of the property is deemed to be in possession of lost
        property under these circumstances.
Pg. 33, footnote 14: Constructive = Way of pretending that whatever the word it modifies depicts
a state of affairs that actually exists when it actually does not. Constructive possession by home-
owner necessary to make possession real in law because owner of house did not know of brooch
and had not taken possession of it.

Hannah is the sentimental favorite; the plucky corporal. Hannah was probably a Torrie. Corporal
probably in Labor party. In election of July 1945, Churchill and other Torries all voted-out.
Returning soldiers voted in droves for Labor. Gwernhaylod house torn down in 1950. Soldiers
probably did serious damage to the house during the war.

Would we let Peel keep the jewel if Hannah was a trespasser? Yes because trespasser‟s right not
as strong as landowner‟s right. Peel could be said to have had constructive possession.

Why does Peel beat the trespasser? Social policy purpose: we don‟t want to reward trespass.

How can we explain difference in result that licensee Hannah wins but trespasser Hannah loses
in hypo and when licensee Hannah wins, it‟s because Peel has no constructive possession but
when trespasser Hannah wins, it‟s because Peel does have constructive possession.

“Constructive” term is a tool of social policy. Title is relative and court uses law to promote
social objectives. “Foolish consistency is the hobgoblin of small minds.” Property rights
represent values and are thereby constrained.

Tuesday, February 15, 2011

Hannah likely from Scotland; Peel likely a wealthy Englishman.
Bridges v. Hawkesworth: Why did Bridges get to keep the pocketbook? Semi-public place.
When you run a semi-public place like a shop, things happen that you might not like to have
happen. The pocketbook was considered “lost” goods. Finder gets to keep lost item when he is
on the premises of a semi-public place.

South Staffordshire Water Co. v. Sharman: 2 rings found by poolmen embedded in the pool. The
pool was private. Landowner gets to keep the rings. Access is very private (unlike the store in
Bridges v. Hawkesworth, which is semi-private)

Elwes v. Briggs Gas Co.: Item was embedded in the soil (unlike Hannah and unlike Bridges
cases). Landlord had possession. Had the parties ever discussed the matter of the boat? Yes, if
the boat is considered as a mineral, but is it really fair to call the boat a “mineral”? Apparently
not. The agreement to have mineral rights was specific enough to not include things like
unexpected boats found underground.

McAvoy v. Medina (not embedded within Hannah case): Shopkeeper/Barber wins the case. Why
is this different from Bridges v. Hawkesworth case? Lost versus mislaid distinction. Lost in
Bridges / mislaid in McAvoy.
Courts have recognized 3 categories:
Lost: Unintentionally parted with.
Mislaid: Intentionally parted with and then forgotten.
Abandoned: When you intentionally remove something from your possession.

      How did the court in McAvoy know that the money was mislaid? It was on the table.
      How did the court in Bridges know that the money was lost? It was on the floor.
      How did we know that the parcel in Bridges wasn‟t mislaid on the table and then lost on
       the floor? We don‟t.

The owner of the land has a stronger claim to mislaid property than to lost property. Advantage
of simplicity in rule that things on the floor are lost and things on table are mislaid… but rule is
overly simple; won‟t people knock things onto floor to make them “lost,” etc.

What result if employee finds money in men‟s room at his place of employment? Who gets the
money? The employee. The restroom is public or semi-public. In the restroom, is the employee
really on duty? He was on his break.

What if it‟s on a table in a passenger‟s cabin and found by a maid? It would go to the
landowner/operator. Maid was acting within her scope of employment; the inn is arguably
private. Found it within the person‟s room and on the table (as opposed to the floor). Maids are
very tightly controlled by their employers; they have no expectations.

Public/private distinction. Floor/table distinction.

You could argue that employees do better in America than they do in England. Then you could
argue that employees have a higher status in this country than they have (socially) in England.
We had frontier once. There were no servants/masters on frontier. We all expect to be lucky.
Finder gets to keep abandoned property. True owner has forsaken ownership. Finder has given
thing value. There is still a value to society and the finder realizes it.

Lawsuits tend to come in specific forms:
   1. The true owner against the finder.
           a. The finder of abandoned property generally can keep it.
   2. The finder vs. a 3rd party.
           a. The first finder generally has the right to prevail over everyone but the true owner
               and generally any finder gets to keep the property as against later 3rd parties.
   3. The finder vs. the owner of the locus in quo (place in question)
           a. Generally, the item belongs to the owner of the place if the finder was a
           b. If the finder was an invitee or a licensee, courts are wildly divided.
           c. If the item was found in a private home, the private homeowner usually wins.
           d. Hannah v. Peel was the exception that proves the rule; or it wasn‟t a private home.
               Why wasn‟t it a private home? Because the government was leasing the house
               during a time of war
           e. If the premises are truly private, the owner of the premises tends to get the
           f. If the premises are open to the public, the courts are against wildly divided
                    i. Some courts distinguish between lost/mislaid (we all like simple, clean
                           1. lost  finder
                           2. mislaid  property owner
                   ii. On land vs. under the land distinction
                           1. on  finder
                           2. under  property owner

Policy goals
    1. Return item to true owner
    2. Reward expectations of the parties before the court
           a. As unique individuals and
           b. As stand-ins for general populations in society
    3. Encourage honesty
    4. Encourage use of assets
    5. Have efficiency in settling disputes
    6. Have certainty in human affairs
    7. Avoid trespass
    8. Avoid chaos and fighting
    9. Reward effort
    10. Reward luck

Tuesday, February 15, 2011
Statute of Limitations: Period of time that limits right to sue. After statute of limitations runs,
you generally cannot successfully pursue your cause of action.

I own Blackacre (a parcel of land) and someone is on it. What can I do about it?
     Self help (kick them off)
          o Most jurisdictions dramatically limit landowner‟s legal right to engage in self-
     Sue

What is the crucial cause of action if you choose to sue? Ejectment (not trespass) is the
traditional course action to recover repossessed land.

What happens when SofL on cause of action of ejectment runs? The one who owned the land
cannot successfully sue.

Who owns Blackacre when statute of limitations runs when we forget the doctrine of adverse

Describe all of the interests in Blackacre.
    I (the original owner) have the paper title.
    The person who you failed to eject has possession of the land.

Statute that limits cause of action of ejectment also limits allowance of self-help.

Property is what the law says it is. If you have no access to a legal remedy, you don‟t have much;
you have a piece of paper. You are the better off as the person with the legally invincible
possession, but you might hesitate to make a major investment in that possessor‟s rights.

What will happen in this case? Your paper title to Blackacre will be cancelled. New original title
will be given to the adverse possessor. That is adverse possession.

What are the policies behind adverse possession?:
   Use it or lose it – give it to someone who wants it
           o Reward the busy beaver
           o Reward the more vigorous claimant
           o Reward the one that will make greater social use of the land
   Reduce uncertainty: We need a definitive answer so that we can know where we stand
   Cure weak (paper) titles
           o If title is weak, it has some existence.
           o Person with weak title may be person you would see as the true owner.
           o Sometimes it is not crystal clear who owns the whole place or where the actual
              boundary is.
           o Living in a place buttresses the weak title.
   Reinforce expectations
   Good for the community
      Encourages people to check their land more often than the length specified by the statute
       of limitations
            o Helps adverse possessor to be informed of the risks that he/she is taking and of
               potential for misinvestment that exists.
            o Society tries to encourage active use of the land. Regular checks incline owner to
               keep it maintained and to notice if something has gone wrong.
            o Criminal activity could occur on Blackacre; marijuana could be growing, etc.
            o May discover tort hazards that could result in future liability.
            o May decide to sell the land to someone who will make better use of it instead of
               having to go out and check the land.
      Owner is the “sleeper,” sleeping on his/her rights.
            o Rip Van Winkle falls asleep for 20 years while hunting to escape wife‟s continual
            o Punish the Rip Van Winkles of the world.

Any statute of limitations has the virtue of eliminating stale claims. Stale claims are difficult to
prove. Evidence decays. Like answering a 5 year old Christmas card or a 20 year old love note.
Judicially inefficient – stale claims would tie-up the courts; cause us to dedicate our judicial
resources to low-priority claims. Possible that court will make wrong ruling, breeding disrespect
for law and demoralizing judges. The rectification costs become too high. There is something
unwholesome about enforcing ancient claims.

Arguments against adverse possession:
    Original owner pays for the land and gets nothing back when there is adverse possession.
    Demoralizing for paper owner.
    Reduces value of land ownership.
    Someone walks in and takes away something that is not there; we are protecting thieves
     and rewarding aggression.
    Involuntary transfer from true owner to adverse possession; we always want to be wary
     of involuntary transfers.
    Tends to produce premature development.
         o If you believe in development, you want it to occur naturally/organically.
         o Development is not always good for society, but this doctrine promotes
    Passive ownership of undeveloped real property may be unwise or onerous.

If you want to keep your land, what will you do? You want to build a fence. The fence identifies
the boundary. The fence is good for the fencing contractor. Increased investment in protection
and monitoring costs that is arguably not as productive as other investments might be.

Speculators buy land cheap to hold it for future development.

Conservationists may want land to lie fallow/undeveloped.

Think of your expectations regarding your seat in this room. Someone arrives late and doesn‟t
get his seat; this is somewhat akin to adverse possession.
Judges make mistakes.

Van Valkenburgh v. Lutz: The area was hilly; Lutzes cut a traveled way through brush. Built
house for Charlie on L.19. Opposite to the traveled way, the Lutzes put logs. Arguably enclosed

Tuesday, February 15, 2011

Monday Skip 147-153 except prob. 3 on pg. 152
Wednesday: Howard v. Kunto (to pg. 162)
    Ignore drawing (map)
    What‟s “right” result?
    Who technically owned the Kunto lot each year from 1938-trial?
    What‟s the deep meaning of FN19 on pg. 154?
Eventually, we will get to problems on 161 (disabilities)

Van V. would claim that he bought the place in buying a tax title. Claimed that he had equivalent
of a “pink slip” (for the car) for the land. What would Lutz say he bought? A piece of paper.

Lutz would say that he was:
    On the property
    Using it
    Improving it
    Met requirements of doctrine of adverse possession.
          o Claims new original title in 1935 or, at worst, by 1943 (based on 1928 return
              home and intensification of farm use

Lionel Huts: Real lawyer for Lutz; granddaughter was a Simpson‟s creator.

When Lutz verbally acknowledges Van V‟s right:
   Gift? No.
   Oral transfer of land has no meaning, so if he had the title, he couldn‟t give it up in this
   Speaks arguably to what he was thinking over the 20 years.
         o But what he was thinking is irrelevant

Pled initially just for right of passage, which acknowledges that Van V. owns the land.
    Was it transfer by pleading in an easement case? No.
    Was it a case of res judicata? No.

You don‟t give up title to land by the act of pleading in a first-cousin-type situation.
This case is brought by Van V.‟s cause of action of ejectment against Lutz.

In will, Lutz gives wife whole estate, including new original title of adverse possession for L.19.

Van V. had nobody as a witness for his case. Suggested that community believed in Lutz‟s right
to adverse possession. Fact that trial court came out in favor of Lutzes suggests that higher court
is wrong. It is said that nobody knows the truth like the trial court. Trial court knows the facts
better than higher courts. Note that first appellate decision also came out in favor of Lutz.

How do judges feel about taking owners‟ land away from them just because statute of limitations
has run? Judges feel bad when they take away peoples‟ property. Long ago, courts came up with
safeguards that stood between the owner and the loss of her land. What are the safeguards
against land loss? Elements of adverse possession are the safeguards that the judicial laws put
upon the idea that when the statute of limitations runs, you‟ve lost your cause of action (law will
not give you a remedy or let you engage in self-help).

Before adverse possessor gets the land of O, the adverse possessor must pass several tests (in
addition to statute of limitation test).
Adverse possessor must demonstrate these things about her possession:

Monday, September 27, 2004

Hurdles that protect the landowner from adverse possession of another taking his land (pg. 139)
are elements of the cause of action of adverse possession:
    1. Actual and exclusive possession
           a. Definition: Actual physical occupation as an owner would occupy
           b. Purpose is:
                    i. To trigger the statute of limitations
                   ii. To show the extent/substance of the claim made by the adverse possessor
           c. Exclusive (definition) = not shared with:
                    i. The owner
                   ii. Other non-claimants
    2. Open and notorious possession
           a. Definition Self-defining, visible, and obvious
           b. Purpose: to put the owner on notice
    3. Adverse (“hostile”) and under claim of right (“claim of title”)
           a. Definition: Not subordinate / not permissive; the adverse possessor‟s state of
               mind is irrelevant (“objective test” looks at actions, not state of mind; majority
           b. Purpose: To protect owner so she isn‟t lulled into thinking that there is no claim
                    i. Others see deeper meanings:
                           1. Some say it must be truly hostile: Must be an intent to dispossess
                                   a. “I spit on your claim”
                           2. Some say must be truly good-faith
                                 a. Dobris: “an angel”
         c. Some courts require subjective good faith, which they usually hang onto the label
             “claim of right”
   4. Continuous (for statute of limitations period)
         a. Definition: Unbroken, as an owner would act
         b. Purpose: To protect the owner

Why do we do all of this?
  To protect landowner‟s right to ownership of his own land.
  It is a big deal to take someone‟s land away.
  We want to be fair and look fair.
  We want people to respect the courts and we want the courts to protect property rights.

Why is there confusion about these elements?
  Disputes – there is > 1 policy/idea
  No clear consensus on what is right

Was Van Valkenberg entitled to all of this TLC? Seems as if no. Van V. had just a tax title (piece
of paper).

What is a dream manifestation of a person who satisfied most all of these requirements:
  1. Adverse possessor enters on Blackacre
  2. Put up a fence around property with giant billboard stating that this is adverse possessor‟s
       property exclusively
  3. Adverse possessor does not emerge from the land for 20 years

When all is said and done, good faith is the problem. One US state went from “good faith is
required”  “state of mind is irrelevant”  “good faith is required.”

Why is good faith a problem (when we say “adverse” and under claim of right)?
  1. We don‟t know what other people are thinking
  2. We reward someone who has made a mistake / reward a weakling
  3. We reward someone who is unpleasant/aggressive
  4. We reward a thief
  5. We are uncomfortable rewarding imperfect people and imperfect conduct.

Why is a slippery element good (i.e. continuous could be taken literally or be taken to mean
cultivating the land, etc.)?
    1. Allows flexibility in order to reach just outcomes

Why is a slippery element bad?
  1. Discretion of individuals
  2. Different answers to similar questions
  3. Unpredictability
           a. So, premium on litigation
           b. So, premium on lawyers capable of correctly predicting outcomes
Lutz is about several elements:
   1. Actual
           a. Court says no “actual”
                    i. No enclosure
                   ii. No cultivation or improvement
           b. Dobris says that the logs and cultivation did exist
   2. Open and notorious
           a. Was garage encroachment on Pg. 134 open and notorious?
   3. Claim of right
           a. Court denies claim of right
                    i. Because of prior lawsuit which seemed to admit Van V‟s ownership of
                   ii. Incorrect state of mind

Under reasoning from case, you can never prove claim of right / claim of title.

Pg. 134, line 4: Lutz knew at the time that it was not on his land
2nd paragraph (“Similarly…”): “…he thought he was getting it on his own property”
This demonstrates a lack of self-consistency.

Prof. Helmholz (pg. 143): Lutz had no good-faith claim. We don‟t reward trespassers/thieves.
We may say we do, but we don‟t. Classic form of legal scholarship / classic form of street-wise
litigation. Dobris: “Lutz was trash.”

Dobris: 2 complaints
    1. Lutz case was wrong.
    2. What happened before lawsuit began?
           a. Was there a cause of action?
           b. No cause of action?
                   i. Was there a cause of action that went to sleep?
           c. Was Lutz estopped from pleading the affirmative defense of the statute of
               limitations? (no mention here)
Dobris sees a mushy refusal to be bound by the statute of limitations. The case is a crock in favor
of the Helmholtz explanation – people who know that they are trespassing don‟t win their cases.

Subjective standards:
           Black box
           People can lie
           More court time
           Need to litigate
           Proof is often lacking
           Sloppy and sentimental

Why don‟t we require the adverse possessor to seek out the true owner?
   This is not how the law developed
   Legislature does not expect people to do this.

Color of title:
    Entry under a flawed piece of paper / defective written instrument.
            o The appearance/semblance of title.
    Color of title requirement was good for true owners with large tracts and who aren‟t
            o Makes it cheaper/easier to own a large tract
            o Helped the railroad in Western states / anti-populist
            o Helped owners of large ranches
    But these days, usually color of title helps an adverse possessor.
            o Color of title  access to a shorter statute of limitations
            o Ability to claim land: Constructive possession of the whole plot based on adverse
                possession of only a part.
    Many jurisdictions use the doctrine, sometimes (but not always) making title easier for
       adverse possessor. Many jurisdictions give advantages to those with color of title (paper)
       and others require it. Falls under “claim of right” / good faith.

Constructive = “deemed to be.”

Suppose that you have a deed to some land that and the deed is fatally flawed (maybe your land
doesn‟t coincide at all with the deed). If you have color of title, you will be deemed to possess all
of the land covered under the flawed deed. Without color of title, you only possess the part of the
land that you have adversely possessed (it was adversely possessed because it wasn‟t within the
bounds of your deed).

Will start next class with problem on Pg. 152; will treat it as an adverse possession question.

Wednesday, September 29, 2004

Problem 3 on Pg. 152:

Adverse possession cause of action (4 elements):
   Actual and exclusive
   Open and Notorious
   Adverse/Hostile (3 tests)
          State of mind is irrelevant (objectively)
          I thought I owned it
          I thought I did not own it and I took it anyway

Cause of action elements for adverse possession from pg. 152:
    Actual and exclusive? Yes.
          Open and notorious? Probably (assume yes for now and move on to check out other
               o It was only 3‟. Is an intrusion of 3‟ open and notorious? Not clearly.
          Adverse? (we don‟t know what jurisdiction we are talking about in this hypothetical, so
           we should evaluate on all 3 tests individually / if we knew what state and what rules of
           that state, we could just do the test for that jurisdiction)
               o State of mind irrelevant? Yes.
               o “I thought I owned it”? Yes.
               o “I thought I did not own it and took it anyway”? No.
          Continuous? Yes.

In conclusion, adverse possession is probably satisfied.

Of what relevance is A‟s tearing down the fence according to Dobris? She has a new original
title under doctrine of adverse possession. Tearing down the fence suggests Lutz case; akin to
Lutz‟s statement in lawyer‟s office that he thought that he didn‟t own the land. But we transfer
land by deeding it, not by tearing down a fence or by saying that “the land is yours.” We don‟t
recognize abandonment of a new original title perfected under the doctrine of adverse

If you want to sell or rid yourself of land taken by adverse possession, you should do that using a

So, the  gets to take the 3‟ strip that she had taken by adverse possession (tacking).

Howard v. Kunto:
Hood Canal



Ownership of land:
X-1  McCall (1932)  X (1946)  Y  Miller  Kuntos (1959

Problem is that everybody is living one lot to the east of the land that their deeds actually
describe. (Everyone‟s piece of paper describes the lost next door)

What does Howard do when he finds out that he has the wrong paper deed? He goes to Moyer
and shows the Moyers that their deed actually refers to the Kunto lot and that Howard‟s deed
actually refers to Moyer lot. Howard wants the piece of paper that says that he owns the Kunto
lot. Moyer is compelled to take the deed to the land that he is living on from Howard, securing
his own ownership to his land. At the end of the transaction, Moyer has “dodged the bullet”
because he owns deed referring to his own land; Howard owns deed referring to Kunto‟s
Howard sues Kunto to evict him.

Law serves the people. In a situation like this, what do homeowners want? They want to stay put
/ keep their houses. People want stable titles to property / stable titles to residential real-estate…
so people have to get to keep their houses. Rule: the kid follows the dam. You should be very
cautious when you conclude that people lose their houses.

What does that tell you about Howard‟s decision to take Kunto‟s title and then sue him? It‟s not
sensible; there is a problem; let‟s solve it. Much of the time, the outcomes in the law are wise
and emerge from common sense and notions of human decency, not from manipulation of

How did court solve this problem of giving people their own houses? Adverse possession.

FN 19 on 154: Fault of trial court. Judge is a lawyer. Same judge who came out wrong also
couldn‟t get around to deciding case wrongly.

Adverse possession resolves disputes. So useful that if they didn‟t have it, would have to invent

Taking away Kunto land for family summer house disturbs titles to dozens of houses up and
down Hood Canal. Judges are politicians and making a decision that displaces people tends to be
politically unpopular.

Why did the case tell us about the dock survey by the Millers? It was the 2nd survey that was
wrong in confirming a mistaken belief.

What is the key element in this case (in teaching terms)? Continuity of ownership. Tacking.

What is the continuity issue? Is summer use of a summer house continuous? Yes. Is continuous
use of a hunting lodge during hunting season a case of continuous use? Yes.

Tacking: You are concatenating two periods of ownership by different people to see if they are
within the statute of limitations. The tacking together of inchoate (incomplete) titles to build a
title of adverse possession.

Tacking is when you possess land in addition to the land that you own. Normally

What is privity? Glue – A sharing between some individuals. Successive or mutual relationship
to some property.

What does privity have to do with tacking? When there is privity, we allow tacking to take place.
Privity glues the inchoate titles together to form continuity.
What is this court‟s definition of privity? Bottom of 158: Privity = judicial recognition of the
need for some reasonable connection between successive occupants of real property so as to raise
their claim of right above the status of the wrongdoer or the trespasser.

Traditional definition of privity: Pg. 154, FN 20: Last 3 deeds, including ‟s deed, were executed
in other states. Should have been pointing-out. The court complains about the lack of a pointing-
out of Blackacre. In traditional definition of privity, someone points-out / says “this is what you
are buying.” Courts, then, should encourage people to go to the premises being transferred so
that there is not a question whether the seller and buyer are talking about a specific parcel of

In order to tack inchoate titles, there must be privity (a connection between prior possessors).
This court says that any (reasonable) connection satisfies privity requirement. Goal of this court
was to allow people to keep their homes. Wanted to be able to use doctrine of adverse possession
/ tacking. In order to use doctrine of tacking, court had to check-off the privity box. In order to
do this, they had to expand requirement of privity with goal of giving the people their summer

Adverse possession is a cleanup doctrine and this is a situation that needed cleaning-up. Chose
not to be fussy.

Court does not want to have a parade of lawyers citing this case in order to justify all sorts of
future claims of adverse possession. Pg. 156 “1” and “2” – keeps things specific to case to
prevent future misuse by precedent.

Kunto is the owner after the case is done.

Whoever had the perfected original title under the doctrine of adverse possession was the
original owner. Someone got that before Kunto. Maybe it was passed to Kunto and maybe it

Howard‟s paper title died in 1946.

Pg. 161: Disabilities

A just society does not always take land from minors, mentally disabled, prisoners, etc. without
giving them a break.

Tolling: Under certain circumstances, the statute of limitations is tolled; its effect is stayed or
stopped as at a toll booth.

(see other notes for disabilities problems)

Wednesday, October 06, 2004
Acquisition of property
    By find
    By adverse possession
    By gift of personal property (gift of personalty / non-realty)  this is the new subject

Acts of intentional transfer (of personal property): We conceive of ownership as a bundle of
rights (not unlike a bundle of twigs). One of the stalks in the bundle is the right to alienate the
property / to transfer it.
     Property can be transferred for consideration
     Can be donative

To accomplish an inter vivos (between the living / donor and donee are both alive) gift of
personal property, we require:
 Intent
 Delivery
           o “Deed” (which is itself delivered)
           o Delivery of the thing (/ chattel)
                    Actual delivery – Manual transfer hand-to-hand / manual labor
                    Symbolic(al) delivery – A symbol is a sign by which one knows or infers a
                       thing; an emblem.
                            One transfers the symbol instead of the thing.
                            It could be a symbol in the classic sense (a drawing or a miniature
                            But often the symbol is a piece of paper …
                                   o that has some words relating to a gift on it
                                   o that fails as a deed.
                    Constructive delivery – Deemed to be / construed to be by the law.
                            Usually the transfer of the means of access to the thing
                                   o A key
                                   o A map
                                   o A description of the place in which I lost my manuscript
           o It is a truism that if an object can be handed over, it must be handed over if the
              gift is to be seen as complete.
 Acceptance

EX: You say “this wristwatch that I am wearing I am giving to you.” It is not given unless the
watch itself is given. If I gave you a watch by handing it over and I also gave you a piece of
paper that purported to transfer the watch, the piece of paper would either have no meaning or
would serve merely as a historical record of the manual transfer.

Say I wanted to give you a lion – how would I do it? Let‟s assume intent and acceptance. We
must arrange a method of delivery: 1) write a deed (“Official Lion Deed”) transferring
possession; some courts will accept this deed, but others won‟t. You must deliver the deed.
Suppose, however, that we are not in a state that recognizes delivery of deed. Then what do you
do to transfer the lion? Go to the lion and have a ceremony. Maybe both put hand on lion and say
that you are transferring possession to her. Paper the ceremony (an historic record). What if that
is not practical? Then you must transfer the symbol. The symbol could be a picture of a lion on a
piece of paper. It might be a flawed lion deed “I give you my lion…” (signed) but not notarized /
not the official contract, etc. The piece of paper in this case must be said/shown to symbolize the
lion. Or we could have a real symbol (a model of a lion, etc.).

If we wanted to arrange a constructive delivery of a lion, we would transfer the keys to the cage
and say what is being given and paper the ceremony.

Handing the item over:
   Want the wrench of delivery.
   The donor is protected from being misunderstood when he hands something over.
   We don‟t want aunt/uncle stuck making gift he/she didn‟t really want to give.
   Handing over the thing also provides evidence

Newman v. Bost:
Van Pelt – At age 52, employed orphan girl aged 18. Lived alone. 10 years later, he was
paralyzed; dying; tried to give Julia his stuff but died without an actual will.

The piano: Got insurance on piano. Said he gave her the piano. Called it “Miss Julia‟s piano.”
Intent clearly satisfied. Piano stayed in parlor both before and after it was given. Issue of delivery
is major question. This court did not see delivery.

While he was healthy, Van Pelt paid Julia to stay in house with him.

Enos Houston (a man, not a woman) was called in. Van Pelt had Enos call in Julia. Gave her
keys and said that he would give her everything in the house. Pointed out bureau and other
furniture, etc. Keys opened a bureau drawer that contained a life insurance policy payable to his
estate, plus some cash… and Van Pelt died.

Overall, Julia lost. Court didn‟t like people living in sin; didn‟t like hussies; didn‟t like hicks;
didn‟t like 52-year-olds and 18-year-olds. Julia had won at trial; won on facts in front of jury of

In the abstract, the heirs are entitled to Van Pelt‟s property. In the abstract, Julia‟s claim is that
Van Pelt gave her a bunch of stuff before he died. Claims that she just wants what she was given
before VP died; what he had after he died as a part of his estate is not included.

Administrator of the estate (the ) says that Julia‟s gifts didn‟t work. Focused on elements
(specifically, the delivery element).
How do you give a gift of a piano? Go to piano – make sure something happens – some laying
on of hands; some sort of manual delivery; make sure that donee gets piano out of the house;
have lots of witnesses.

Monday, October 11, 2004

Lawrence and Minsner, Student‟s guide to estates in land and future interests (workbook)
Bergen and Haskell, Preface to estates and land 2nd edition (history-intensive / Dobris‟ favorite)
Future Interests Nutshell
Linda Evans, Estates and Land
Flashcards also an option

Future interests: Important to trusts and estates practice. Important to development as lawyers.
Sometimes we still think in this old-fashioned way about law.

Bergen and Haskell 1-18

Learn the vocab of future interests cold. Work problems given. Look at every conveyance as a
problem. Force yourself to think it over before reading the explanation.

Lawyer‟s canned history of 1066-1290.
4 things:
    1. How land became inheritable
    2. How land became alienable
    3. How land became devisable
    4. How we came to accept idea that ownership was divisible

William of Orange / William the Conqueror conqouored England in 1066; quickly sought to
keep people and land under control using system of Feudalism, the social, military, and
economic system of England. Mixed-in religion, too.

Believed that people are what they owned. William said “I own England,” as the spoils of war.
Then gave land out to the barons (who helped him win the war) in exchange for promises of
fealty (obedience) and of service. Classic service was knights service. So many knights per year
were dedicated to fighting for the king.

Fealty was serious business. Must get down in chapel and stay there all night. Joan of Arc on
knees with sword before her – swore fealty/obedience to the king.

Tenants in Chief

Barons were tenants of the king, tenants in sheaf. The king was their landlord. The barons and
the king had a tenurial relationship. The king infeudated the barons. The barons themselves
chose to become landlords. A baron parceled out some land in exchange for someone else‟s
promise of service to the baron. That someone else was a mesne (“mean”) lord. Every baron
was both a tenant of the king and a landlord of someone else. Those tenants of the barons
themselves became landlords, so there were multiple levels of tenants. Each time there was a
new level of tenant, there was a new landlord-tenant relationship created. That is, there was a
new subinfeudation.

Everyone was subservient to someone except the king. Everyone a tenant except the king.
Everyone made land productive by assigning it out to someone and taking a rent/fee.

King             King                                                        “A”
Barons           1st Tenants of the king                                     Tenants in Chief “B”
Knights          Middle Lords                                                Mesne Lords “C”
Workers          Tenants in demesne                                          “D” (demean)

Allowed to create subtenant at will without approval of your lords.

Ownership acknowledged as being divisible.

A multiplicity of people had an interest in Blackacre. Who owned Blackacre? Everyone in the

Today, if your building is sold, you cannot be evicted until your lease runs out; in that way, you
have part-ownership of the area where you are a tenant.

1066: All that the baron owned was a (temporary) life estate. In 1067, land was not inheritable;
could not descend to one‟s heir. Barons did not like this and it was bad for business. Did not
inspire barons to work very hard. Didn‟t yield a stable system.

When baron died in 1067, heir could try to get land back for $. The money payment was called a
“relief.” It was about equal in effect to an inheritance tax. No guarantee, however, that relief
would be accepted and that land would be returned to the heir.

A man would work harder knowing that his son would inherit Blackacre. Ordinarily, the heir was
the eldest son. If no son, all daughters took equally. Why one heir? Avoided inefficiencies of
multiple owners. Why the eldest? Family constellations guide determined that place in family
was important. Eldest children most dutiful and rule obedient; best people for building a social
order. Men were perceived as superior fighters, so men preferred.

Barons insisted in their negotiations on inheritable interests in land – interests that would pass by
intestacy to their heirs.

How did a transferor create an inheritable estate?
   “To A”  A life estate (letters are law professors abbreviations for human lives); an
      estate for A‟s life.
      “To A and his heirs” created an estate of inheritance. Since A was expected to have >1
       heir, “To A and his heirs” must have meant more than just to little A Jr.
      If you died without heirs, your estate escheated to an overlord.
           o If a baron died without heirs, his overlord (the King) got his land back.
           o If a baron died and the baron‟s interest escheated to the King, the King became
               the knight‟s landlord.
                    Modern similar case: If your building is sold, you get to stay as a tenant.
                    Everyone moved up landowning pyramid, but not the social pyramid.
      What was the exact method of transfer of these interests?
           o Feoffment (“feffment” ontogeny: fiefdom-feif-fee) with livery (ontogeny:
               delivery) of seisin (“season” ontogeny: possession) = A fee with delivery of
                    Transferor would go to land with transferee
                    Transfer plot of earth or twig
                    Say magic words, i.e. “To A and her heirs”
                    Why?
                           England was small country
                           People like ceremonies
                           Witnessable and would impress itself on participants/observers
                           Could not read/write
                    Oral transfer of land
                    Standard method of transferring land until 1846.
           o Possession or “seisin” was of great importance – someone had to be there to pay
               dues to overlord, train soldiers, etc.
           o Only those of a certain duration could be given: Freehold interests. Only
               Freehold (life estate and fee) interests were transferred by feoffment with livery
               of sesin.

It still paid to be an overlord – one got to enjoy the feudal incidents and collect big feudal dues
(like club dues).
Fees examples:
      Relief (like inheritance tax)
Dues examples:
      Escheat (getting the land back if no heirs)
      Wardship (right to loot the land if tenant died while heir still a minor)
      Marriage (right to pick mate for an heir and get paid for it)
Inheritability but no free alienability.

Unruly landowners pressed for more property rights. How close could you get to free
alienability? You could subinfeudate. You could also substitute – replace yourself on the
pyramid – but you would have to pay off your overlord (ex. Knight could sell his spot to another
but had to pay off knight‟s landlord). Cost money to realize your investment (as if it would cost
you money to sell your house and move).

Lords pressed for free alienability.
A, King  B, Baron  C, Knight; D, Knight‟s Son (the boy). When rights transfer to son, the
Baron will take the rents of the Ward. No other legal way to pass land from knight (C) to son.
Lifetime transfer to eldest son. C, while still alive, went out and found B and got cash from D. D
gave C $X.XX and then C subinfeudated his son D for a meaningless service (not night‟s service
but a peppercorn or a rose at midsummer, etc. This makes it so that when C dies, B gets to be the
guardian to a peppercorn and the $X.XX is returned to the son.

In 1290, passed statute of quia emptores. Allowed fee substitution (owner could put successor
into pyramid without consent of overlord). This led to decline of feudalism.

Wednesday, October 13, 2004

One does not own land/earth. One owns an estate in land – a durational interest in the land. We
are talking about ownership projected on the plane of time.

If you have a fee simple absolute, you own an undivided durational interest. It is eternal. It is not

Imagine a “forever” – you can do anything you want with it.
    Give it away
    Sell it
    Devise it in my will
    Die without a will, knowing that it will got to my heirs if I own it when I die


This “forever” is an ownership described in durational/timeline terms.
This “forever” is an estate of general heritability.
    Can pass to heirs forever

O owned the “forever” and transferred it to A. What if O dies? The “forever” remains.

A “forever” can be cut into pieces:
    HYPO1
          o “Forever” is an undivided durational interest
          o General inheritability
          o O  A for 10 years
          o Then remaining time to B and B‟s heirs (“Bhh”)
          o Who owns the “forever”?
                   Both A and B together own the “forever.”
                   This is like the pyramid of ownership where all of the landlords and
                      tenants jointly own Blackacre
                   This is also like Armory v. Delarmerie where all past owners are part-
                      owners of the broach.
      HYPO2: What if ownership of the “forever” is assigned to A, then B, then C, then D and
       D‟s heirs (“Dhh”)?
          o Who has the right to possess black acre?
          o Who possesses Blackacre?
                    A, B, C, and Dhh
          o If you wanted to buy Blackacre, with whom would you do business?
                    A, B, C, and D
                    If you buy only A‟s interest, when A dies, you lose the land.
                    Sub-HYPO If you want to buy a house lived in currently by a tenant in a 1
                      family house, with whom do you do business?
                           Both the tenant and the landlord (owner of the house)
                           In some loose sense, you as a tenant own Blackacre along with
                              your landlord
          o How long will D have to wait to get Blackacre?
                    Until after A, B, and C are all dead.
                    It might be unlikely that D will ever come into possession of Blackacre.
          o Abstractly, how long will it take before the D interest becomes possessory?
                    It is a period of lives (here, A, B, and C‟s lives) in being (here, while they
                      are alive)
                    If A, B, and C‟s lives were represented as burning candles, D‟s interest
                      becomes possessory after the last candle has burned out.
          o If Blackacre is flawless, perfect, exquisite commercial real-estate and A, B, and C
              are healthy infants, is D‟s piece of the timeline financially valuable?
                    Yes. Don‟t forget, D‟s heirs claim the land even if D does not.
                    One would pay less for D‟s piece of the timeline than for the whole
                      timeline… but it would have to be discounted.
                    D has a right to take possession in the future
                    A charity got 7 years of property in the future and it was highly valuable
                      even though the ownership was not immediate.
                    D‟s right was to take possession in the future and forever (forever by
                      virtue of one‟s heirs)
                    Will D ever get to possess Blackacre? Maybe / maybe not.
                    When will that interest become possessory? When A, B, and C die.
                    Sub-Hypo: What if A, B, C, E, F, G, H, … When does D‟s interest
                      become possessory? In 80-100 years… eventually, all of the candles will
                      burn-out / all of the people will die.
          o Sub-HYPO: If you were an avid skier and Blackacre is right next to a ski lift, who
              would you want to be in this scenario?
                    You want to be A.
                           What does A have that is so crucial to you in this hypo?
                                  o A has the possessory interest.

The present estates / The possessory estates (same meaning)
    The first estate on the timeline is the possessory estate.
    All of the other estates are future estates or future interests
    J High handout: All of the present freehold estates
      Durational interest in the land
      Present Freehold Estates: Ownership projected on the plane of time
           o Fee simple absolute
                    Most important freehold estate
                    Language creating it: “to A and his heirs”
                            “Forever to A”  just a life estate
                            Unless the exact terms are used (like “open sesame” in Ali Baba),
                               the fee simple absolute is not granted. Like on a computer, if you
                               type the command improperly, you don‟t get the response.
                    Duration: infinite / unlimited
                    Undivided durational interest
                    Transferrability of present estate: Transferrable by deed, will, or intestate
                       succession (DWI)
                    Associated future estate: none
                    Diagrammed as: |-------------------------------------------
                    When someone sells you their house, they transfer their “forever” / their
                       fee simple absolute.
           o Fee simple determinable
           o Fee simple subject to a condition subsequent
           o Fee simple subject to an executory limitation
           o Fee tail
           o Life estate
      All transferred by feoffment with livery of sesin

HYPO3: A has a daughter and a son. O passes the forever to A.
   If A sells the forever to B, daughter and son cannot successfully complain in a court of
     law because they have no interest in Blackacre.
   If A dies having sold Blackacre, his heirs have no interest in Blackacre.

“To A and his heirs”
    Words of purchase (the “who gets the estate”): “To A”
    Words of limitation (the “what he/she gets”): “and his heirs”
    A gets the fee simple absolute.
    In modern times, if it says just “to A,” A gets the same thing. In modern times, a transfer
       to A is the same as a transfer to A of a fee simple absolute.

Monday, October 18, 2004

Words of…
Purchase: Who purchased the present estate (but could also be gifted, etc.)?
Limitation: What are the limitations on what recipient got?

“To A for life”
    A has a life estate
      “To A” = words of purchase / the “who”
      “For life” = words of limitation / the “what”

A dies intestate. Survived by son and daughter. O conveyed Whiteacre to heirs of A and their
     What is the state of the title? Answer: S and D have a fee simple absolute.
     Words of purchase: the heirs of A (= S & D)
     Words of limitation: “and their heirs”  they get a fee simple absolute
     Diagrammed |--------

Why did only “to A and his heirs” work to create a fee simple absolute back then? Just because.
Ali Baba explains it all. Words have „magic‟ powers.

Must be able to state the title; must be able to recognize all of the present/future interests. You
are on your own.

Fee Simple Defeasible Present Freehold Estates

Defeasible Fee Simple

Defeasable Present Estate: Fee simple capable of undone/voided on the plane of time.

Defeasible = capable of being made void
Defenestrate = being thrown out the window.

Elements of the fee simple determinable:
    Present Estate
          o Fee Simple Determinable
    Language
          o “To A and his heirs” + Words of duration
                   Words of duration:
                           “So long as”
                           “While”
                           “Until”
                           “During the time that”
    Duration
          o Potentially infinite, so long as event does not occur, but it is < 
    Transfer
          o Deed
          o Will
          o Intestacy
    Future Estate
          o Possibility of reverter
          o Occasionally, an executory interest
“O  Ahh, so long as the premises are used for residential purposes only and if not used the land
is to revert to Ohh.”
      A has a fee simple determinable
             o (created by green print)
             o Fee simple because potentially infinite
             o Potentially because only infinite until it determines (terminates) / comes void
                     When?
                           If ever used for non-residential purposes
      O has future interest: possibility of reverter
             o (created by orange text)
      |---FeeSimpleDeterminable---(Ahh so long as)---…PossibilityOfReverter…(O)…
             o Present estate is first estate on timeline; it is the fee simple determinable
             o Future estate/interest is the possibility of reverter.
             o If we drop the express possibility of reverter,
                     Courts will imply a possibility of reverter
                     This means that the orange text is not necessary; same deal without it
                     Why?
                           Requirement is still there that ownership will end if not used for
                               residential purposes, but problem that without POR, FSD defaults
                               to nobody unless courts create POR.
                           Someone must always be seized of Blackacre
                           Someone must always be there to fight for the King
      Who owns Blackacre?
             o Both Ahh and Ohh.
             o A has some kind of fee simple but it‟s a fee simple determinable.
                     Does not own the whole timeline
             o O also owns a piece of the timeline
             o If you want to buy the land, you must deal with both O and A.
                     A has present estate
                     O has future estate
                     What if a buyer wanted land for residential purpose?

Present and future estates stay the same as they move around. When FSD goes from A  B, it
didn‟t change. When POR goes from O  C, it did not change. If you wanted to buy Blackacre,
you negotiate with all of the people that have present and future interests.

If you bought the both the present (FSD) and future (POR) estates, what would you own? Fee
simple absolute.

“O  Ahh so long as premises are used for religious purposes only. What is the state of the
      Fee simple determinable with the possibility of reverter.
      Is possibility of reverter express or implied?
           o It is implied (that the land will go back to Ohh if not used for religious purposes)
           o It‟s not there but we know that a court would imply it for us
           o Reason is historical
                 Someone always had to provide knights for the king
                 Land always had to be seized
           o When you are stating the title, always fill the forever line

The conditional language is not a guarantee that it is a fee simple determinable, but “ so long as,”
“while,” “until,” “during the time that,” are good clues that it is very likely a fee simple

Fee simple determinable expires automatically under its own terms when the even occurs. It dies
because its day has come. It was programmed to live as long as it lived. Its durational length is
the shorter of infinity or the occurrence of a condition imposed on its use. That is why it does not
fill the forever line.

We are talking about present freehold estates and have finished Fee Simple Absolute and Fee
Simple Determinable.
    Forever line always full
    FSAbsolute always fills forever line
    FSDeterminable never fills forever line
           o Always followed by something
           o That something is always either
                   A possibility of reverter or
                   An executory interest

Fee Simple Subject to a Condition Subsequent

Present estate is FSSCS
    Present Estate:
           o Fee Simple Subject to Condition Subsequent
    Language:
           o “To Ahh on condition Blackacre is used for residential purposes, but if used for
                nonresidential purposes, grantor shall have right to reenter”
           o “…provided that…”
    Duration:
           o Potentially infinite until condition is broken or right and entry is exercised.
    Transfer
           o Deed
           o Will
           o Intestate
    Future Estate
           o Right of Entry/Reentry
           o Power of Termination
    |-------(A fee simple Subject to Condition Subsequent)----------------
                  O ROE
           o O has right of entry/reentry
                      O has power to come back for the land.

Wednesday, October 20, 2004

Remainders: 97-99 of Nutshell
Contingent Remainders: 73-80 of Bergen and Haskell and Ch. 6 of Nutshell

Fee simple subject to a condition subsequent

“O  to Ahh, but if used for nonresidential purposes, Ohh shall have right to reenter”
    What if A transfers his interest to B who now has a fee simple subject to condition
      subsequent and B uses Blackacre for commercial purposes – can O reenter?
          o Yes
          o A had fee simple subject to condition subsequent
          o B gets fee simple subject to condition subsequent
          o B breaks condition
          o So O can re-enter.
    “O  to Ahh, but if provided that used for nonresidential purposes, Ohh shall have right
      to reenter”
          o Still the same as the original title

“O  Ahh on condition used for residence, but if not Ohh may reenter.”
    What‟s the state of the title?
    Fee simple subject to condition subsequent followed by (3 ways of saying it…)
         o Right of reentry
         o Right of entry
         o Power of termination
    What if we only have: “O  Ahh on condition used for residence, but if not Ohh may
         o State of title is a fee simple absolute
                 (according to Dobris; book does not agree)
         o Words of reentry are not implied.
         o Why did we express a possibility of reverter?
                 We would not have filled the forever line.
         o No right of entry  erase the noose from the timeline.
         o You simply have a fee simple absolute.

We have very precise ways of expressing very different estates. Only “open sesame” will open
the cave.

Consider the following conveyances:
“To Ahh, so long as used for residential purposes and if not so used, it reverts to Ohh.”
    Classic fee simple determinable
    Ends automatically
“To Ahh, but if not used for residential purposes Ohh may re-enter.”
    Classic fee simple subject to condition subsequent followed by right of entry
    Subject to elective termination

What if the event occurs and A remains on the land, looking solely at adverse possession, which
would A prefer to have (fee simple determinable or fee simple subject to condition subsequent).
If it ends automatically and A is still there, the clock starts ticking right then and there.
Otherwise, you must wait for the owner with the right of entry to elect to give you the boot. The
inchoate title being built under adverse possession begins with the occurrence of the event (the
selling of liquor, etc.).

In real life, fee simple subject to condition subsequent can be better
     waiver
     estoppel
     laches

We are hostile to possibility of reverter / right of entry. Why? They are clocks on bland title.
Represent deadhand control. Prevents property from migrating to highest/best use.

We distinguish between fee simple determinable followed by possibility of reverter and fee
simple subject to condition subsequent followed by right of entry.

We are cataloging the present freehold estates and, more specifically, we have been cataloging
the defeasible fee estates. We are learning how to read and catalog them. It is a system of
taxonomy/classification like memorizing stamps / zip codes.

Fee simple subject to an executory limitation
    Present Estate
           o Fee simple subject to an executory limitation
    Language
           o To Ahh, but if B marries C to Bhh
    Duration
           o Potentially infinite until the condition in broken
    Transferrable
           o Deed
           o Will
           o Intestacy
    Future Interest
           o Executory interest
                   Note that what follows fee simple subject to executory limitation is an
                       executory interest

|------A‟s FeeSimpleSubjectToExecutoryInterest------------------
        \..............B‟s ExecutoryInterest.............................
Executory Interest is similar to ROE (automatic) in a stranger.

The limitation creates the executory interest which kills the [fee simple subject to executory

“To X church forever, but if they fire Pastor Brown, to the Red Cross.”
    How long will the uncertainty last?
          o Until Pastor Brown dies
                    Then Church has opportunity to hire a new leader
                    Then Church has fee simple absolute
                    When Pastor Brown dies, you erase the noose
          o For a period to be measured by a life in being
    It‟s all in the words.
          o As Abe Lincoln said, “it‟s like the difference between a horse chestnut and a
               chestnut horse.”
          o Intent is irrelevant; only “open sesame” will open the door

The fee tail
    Present Estate
            o Fee Tail
    Language creating fee tail
            o “To A and the heirs of his body”
    Duration
            o Potentially infinite, so long as there are descendants of the first taker
    Transfer
            o By deed but all that is transferred is an estate for life of another
            o Not devisable
            o Descendable to heirs of body
    Future Interest
            o Reversion
            o Remainder

In theory, you could have a fee tail established in 13th Century, but it would be unusual.

“To A and the heirs of his/her body”
|-----------A‟s FeeTail---|---O‟s Reversion------

“To A and the heirs of his/her body and then to Bhh.”
|-----------A‟s FeeTail---|---B‟s Remainder------

“O A and the heirs of his/her body”
    A fee tail
    Diagrammed: |---A fee tail---|---O‟s Reversion---
        o O‟s reversion is implied (in fee simple absolute)
           o Implied to fulfill the forever line
                    So that knights associated with Blackacre can always be brought forward
                        to fight the French.
      HYPO under these conditions: „A dies leaving her only child B as her sole heir. What is
       the state of the title?‟
           o B now has a fee tail
           o O still maintains reversion in fee simple absolute.
           o Sub-HYPO: „B dies, devising all of her property to C‟
                    O has a fee simple absolute
                              Future estate  present estate (fee simple abosolute)
                    C gets nothing
                    Line has expired
                    Fee tail evaporates

The Life Estate
    Present Estate
          o Life Estate
    Language
          o NO SPECIAL LANGUAGE (“magic words”) REQUIRED
          o “To A for life”
          o A during his life
          o Preferred estate, so no magic required
    Duration
          o Life of designated person
    Transferred
          o By deed if during measured life
          o By will or intestate if established per autre vie
                 An estate for the life of another
    Future Interest
          o Remainder
          o Reversion
          o Possibility of reverter
          o Right of entry
          o Executory interest

Diagrammed: |---A‟sLifeEstate---|---O‟sReversion---

Life estate is piece of timeline measured by human life. It is all of the following:
-Present estate
-Possessory estate
-Freehold estate

RECAP: We have 4 kinds of fee simple
-Subject to condition subsequent
-Subject to executory limitation

Monday, October 25, 2004

O  “A for Life”

What is the state of the title?
   A has a life estate and O has a reversion in a fee simple absolute.

A transfers life estate to B:

What is the state of the title?
   B has a life estate per autrie vie (for the life of another) and O has a reversion in a fee
       simple absolute.
           o B‟s ownership ends with A‟s death

B dies intestate. What is the state of the title?
    B died owning life estate of another.
    B‟s property goes to B‟s heirs.
            o Including the life estate per autre vie
    B‟s heirs have a life estate per autre vie and O has a reversion in fee simple absolute


There are such things as defeasible life estates.

Life estates have the same set of divisions that fee simples have:
     Determinable life estate
     Life estate subject to condition subsequent
     Life estate subject to an executory limitation

O  A “so long as he lives and remains a widower.”

What is the state of the title?
   A has a determinable life estate and O has possibility of reverter.


O  A for life, but if A remarries, O may reenter.
State of title:
     A has a life estate subject to a condition subsequent and O has possibility of reverter in
        fee simple


O  A for life, but if A remarries, to B for life of A
      A has life estate subject to executory limitation; B has an executory interest (future
         estate); O has

Term For Years:
    Nonfreehold estate
    Leasehold: O  A for one year
          o A has term for years; O has reversion future interest.
          o |--A‟sTermForYears---|---O‟sReversion---

Again, same subclasses as fee simple or life estate
    Determinable term for years
    Term for years subject to condition subsequent
          o Most modern leases are of this kind
          o If you don‟t pay your rent during your 12 month term of years, you get booted.
    Term for years subject to an executory limitation


All present estates except fee simple absolute has some sort of future interest associated.
Anything “To Ahh” is some sort of fee simple. Every one that has “for life”  probably life
estate. If it has specific time limitations, it is probably a term for years.

Memorize everything. Like a job interview.


Future interests…
    are pieces of the timeline that do not give a present right of possession.
    carry a future interest label AND an estate label.

Consider: O  “A for life”
Foolproof method for stating the title:
    Does A have a present estate or a future estate?
          o A has a present estate.
                     What present estate?
                           A life estate.
       Have we fully stated the title?
           o No.
       Who has the rest of the title?
           o O has it
                   Does O have a present estate or a future estate?
                           A future estate (ESTATE LABEL)
                                    o What future estate?
                                         A reversion
                                                 A reversion in what?
                                                        o Fee simple absolute (TIME LABEL)

Future interests are property interests that do not give a present right of possession.

O  A for 10 days, remainder to Bhh
    Who has the present estate?
          o A
    What is it?
          o A term for years.
    What is its duration?
          o 10 days
    Can B possess Blackacre today?
          o No.
    Does B have future interest?
          o Yes.
    What does B have?
          o A remainder in fee simple absolute.
    Who has the more valuable interest?
          o B
    Can you guarantee that the remainder will become possessory within the world of future
          o Yes.
    Can you guarantee that B will come to possess Blackacre?
          o No.
          o B might die within the next 10 days or
          o B might sell his interest

Future interest retained by the transferor / left in the grantor:
    Reversion
    Possibility of reverter
    Right of entry

A reversion is what‟s left in O after O has conveyed a term for years, a life estate, or a fee tail.
The reversion is always a reversion in what O had before the conveyance.

A reversion is freely:
    Alienable (deed)
    Devisable (will)
    Descendable (intestacy)

A possibility of reverter is freely:
    Alienable IN MANY PLACES (deed)
    Devisable (will)
    Descendable (intestacy)

Right of Entry
    Alienable IN SOME JURISDICTIONS (deed)
           o In other jurisdictions, it is alienable only with the reversion or by release to the
               holder of the preceding estate.
    Devisable (will)
    Descendable (intestacy)

Wednesday, October 27, 2004

Future Interests in Transferees

Future interests created in 3rd persons (transferees) must be remainders (vested/contingent) or
executory interests.

There is no such thing as a reversion, possibility of reverter, or right of entry created in a 3rd
person. These rights may be transferable to a 3rd person, but they are not created in a 3rd person;
they stay what they are when they are transferred.
     “once a possibility of reverter, always a possibility of reverter”

O is the 1st party
A is the 2nd party
B is the 3rd party

    Definitions
         o (see handout with 10 notes)
         o A remainder must be perfectly behaved:
                  No cutting off of a previous estate
                  No cutting off of previous estate and no time gap between prior estate and
         o Sesin isn‟t torn from the bloody hands of A
                  Sesin passes organically / naturally / as it was meant to be to B upon A‟s
                  No gap
       o ¶4
                 Taking here refers to taking the sesin
                 Met needs of feudal times
                 Meant an ascertained person was always there to take the sesin
                        To fight for England
   Various kinds of remainders
       o Vested remainders
                Indefeasibly vested remainder
                        ¶6
                        Examples (note that all 3 examples are the same):
                             o A for life remainder to Bhh
                             o A for life then to Bhh
                             o To A for life, then to 1st child of A to reach 21 and that
                                 child‟s heirs.
                                      And A has child, B, who is 21
                                              Note that changing facts can change the
                                                 nature of a future interest… if B is <21,
                                                 these 3 future interests are no longer the
                                      “and that child‟s heirs”
                                              Words of limitation
                                      B owns the future interest: an indefeasibly vested
                                         remainder in fee simple absolute
                                      B could not possess in the future only by
                                              Selling his interest
                                              By dying
                Vested remainder subject to open
                        A.k.a (¶5)
                             o Vested remainder subject to partial defeasence
                             o Vested remainder subject to partial divestment
                        ¶7
                             o Gift to class capable of increase with at least one member
                                 of class qualified (to take/inherit/etc.)
                        These remainders may be cut-down in size or partially cut-off
                             o Cut down like black knight from Monty Python and the
                                 Holy Grail
                                      This would never happen to an indefeasibly vested
                                      Could happen to vested remainder subject to open
                        When B is born, the black knight is fully composed
                             o ¶4: Remainder is vested if it is in an ascertained person.
                             o Remainder starts out as vested (because it meets ¶4
               o Remainder in ¶8 is vested even though it may be cut-down
                   in size / there may be partial defeasance / partial divestment
                   (limb loss)
               o Limb loss / partial defeasance / partial divestment
                        Will occur when/if more people are born into the
                        That would occur if C, another child of A, was born
                            and thus entered the class
        Footnote:
               o Total defeasance is also possible
                        There are vested remainders subject to open that are
                            also subject to complete defeasance (see complete
                            defeasance below)
        Example: “To A for life and then to A‟s children”
               o AND A has >1 child
               o Children have a remainder
                        A future estate in a transferee
                        It is a remainder
                        It is vested
                                 Subject to open
                                        o In a fee simple absolute
   Vested remainder subject to complete defeasance
        A.k.a.
               o Vested subject to complete divestment
        ¶9
        Subject to being cut-off
        Remainder beneficiary is in existence and ascertained and interest
           is not subject to a condition precedent
        Subject to condition subsequent plus an executory interest or a
           right of entry
        If condition subsequent  subject to complete defeasance
        Might come to an end prematurely (completely defeased)
        Hardest part of recognizing/classifying this remainder lies in cases
           where it must be distinguished from a contingent remainder.
               o This involves distinguishing a condition precedent from a
                   condition subsequent.
        Consider example:
               o To A for life remainder to Bhh
                        A has a remainder
                                 A vested remainder because in an
                                    ascertainable person (B) and because there is
                                    no condition precedent to B taking
                                 No condition must be satisfied before the
                                    interest becomes possessory
                                                There is no condition precedent – there is
                                                not conditional language at all in this
                                             Not only is it vested, it is also indefeasibly
                                                    o Because it is certain to become
                                                       possessory and it can‟t be cut-off or
                                                       cut-down in size
                                    B may not get possession, but in the world of future
                                       interests, someone will step-in to fill timeline with
                                       possessory interest
                        Ex2: To A for life then to Dobris hh
                             o Dhh
                             o |---A---|---Dhh(RemInFSA)----------
                             o Goes to Dhh if Dobris dies without a will
           o Contingent remainders

Monday, November 01, 2004

“To A for life, remainder to B, provided, however, if B dies under age 25, then to C.”
    Not indefeasibly vested
    B has a vested remainder subject to complete defeasance while B is < 25
    If B is >25 while A is alive, B has indefeasibly vested remainder in a fee simple absolute
    What if A dies while B<25?
           o B gets present estate: Fee Simple subject to executory limitation
                    B has stepped out of the future and into the present… but the noose stays
                      around his neck.
           o Until B turns 25, C has shifting executory interest
                    Future estate
                    End of noose is held by C.
           o Once B turns 25, B gets a fee simple absolute
           o If B dies <25, C gets a fee simple absolute
                    Via the “noose”
           o If B dies <25 while A is still alive, what does C have?
                    C has future estate
                    Transferee
                    Indefeasibly vested remainder

Present or future estate?
Transferor or transferee?
Remainder or executory interest?
Indefeasable or subject to complete defeasance or subject to open?
If a transfer is of a full durational piece of the timeline, followed by conditional language which
takes away what has just been given, then one is looking at a condition subsequent.

Colloquially: “To A for life and then to B, I give you Blackacre, but if you don‟t survive to 25,
B, then I take it away from you and I give it to C.”

A condition subsequent plus the correctly stated future interest is the noose around the neck: the
instrument of the potential cutting-off. A condition subsequent comes afterwards in the grant.
The grant is the grant of Blackacre.

    Expect to find a remainder, which durationally is probably in a fee simple absolute (but
       doesn‟t have to be), a comma, a condition, and then an executory interest or a right of
    The condition will likely be stated in terms of “… , but if …” or “… , provided ,

To A for life, remainder Bhh, but if B marries C, then to Dhh.
    To induce B to not marry C
    B has fee simple subject to executory limitation
    If B marries C, B loses the land.
    |---A‟sLifeEstate---|---Bhh---

To B for life, then to Chh, but if C does not marry during B‟s life, then to Dhh.
    To induce C to marry during B‟s life
    What is the state of the title?
    Who has what present/future interests?
            o Present
                     B: Life estate
            o Future
                     C: Vested remainder subject to complete defeasance
                            Not a contingent remainder because stated condition is a condition
                     D: Shifting executory interest in a fee simple absolute
            o Reversion
                     A/O (owner): Has nothing
                            No reversionary interest because forever line (below) is already
    |---BLife---|---VestedRemainderSubjectToCompleteDefeasance---
A condition subsequent is a condition subsequent because the language of condition is
subsequent in the sentence to the language creating the first future interest.
    Subsequent = following in time-order or in place
    It is that simple.

A condition subsequent is a condition subsequent because the future interest first vests in the
owner and if it is to be lost then there must be a later divestment, a subsequent divestment.

        A grant of a piece of the timeline
        A comma
        A “but if…” or equivalent language
        Conditional language and a right of entry or an executory interest

In other words, we have agreed that following conditional language usually creates a condition

Contingent Remainders (Ch. 6 of Nutshell; Pgs. 73-80 of Bergen and Haskell)
    Contingent remainder is a remainder in an ascertained person which is subject to a
       condition precedent OR it is a remainder in an unborn or unascertained person.
   1. Condition precedent
          a. Language of condition precedes the grant
          b. The language of condition is part of the description of the taker
   2. The taker is unborn or unascertained
          o Examples of unborn/unascertained:
                   “A for life, remainder to heirs of A (A is alive)”
                           A living person has no heirs, therefore contingent because the
                             taker/takers are unborn/unascertained.
                           Heirs will be ascertained once A dies
                   “A for life, remainder to oldest child of A alive at A‟s death (A is alive)”
                           Taker is certainly unascertained and possibly unborn
                   “A for life, remainder to the then dean of the UCD law school (A is alive)”
                           Until A dies, we will not know who the remainder beneficiary is
                           What if A is 95 years old?... is the Dean born yet? Still don‟t know.
What does O have in all the conveyances just demonstrated?
    O has nothing express
    But O does have reversion interest if it turns out there is no taker
          o Someone must be seized of blackacre
          o Must fill forever line
          o King always needs a knight to come from Blackacre
    |---AforLife---|…C R…

Wednesday, November 03, 2004
Contingent Remainder
(that is a contingent remainder because it contains):
    1. Condition precedent
             a. The language of condition precedes the grant
             b. The language of condition is part of the description of the taker
    2. The taker is unborn or unascertained

Contingent remainder that is a contingent remainder because of a condition precedent:
“To A for life, and if B survives A, remainder to Bhh”
    A: Life estate
    B: Contingent remainder because the language of condition.
           o Language of condition comes first
    This is a rule of construction of language
    Other side of condition subsequent

Contingent remainder that is a contingent remainder because the language of condition is part of
the description of the taker.
“To A for life, remainder to B if B has married C.”
     Problem: Conditional language comes after grant but it‟s not a condition subsequent.
     No pause, no comma, no but-if.
     Grant of the piece of the timeline comes first
     Conditional language comes after the grant
     Resembles a condition subsequent but it is not a condition subsequent.
     If you look at the conveyance and conclude that the condition has to be satisfied before
       the remainder beneficiary can go into possession, then it is usually a condition precedent.

“To A for life, remainder to A‟s then living children, and if none, to B‟s then living children.”
    A:
           o Present estate
           o Life estate
    A‟s then living children:
           o Future estate
                    Remainder
                            Contingent
                                  o Because takers unascertained and possibly unborn; we
                                      don‟t know who A‟s then living children will be
                                  o As long as A is alive, A can still have more children (if
                                      nothing else, by adoption)
    B‟s then living children:
           o Future estate
                    Transferee
                            Remainder
                                  o Contingent
    O:
           o Future estate
                 Transferor
                         Reversion (if A and B have no living children when A dies)
                         A TRUE Reversion

Alternate contingent remainders… pg. 275

O conveys “to A for life, then to Bhh if B survives A, and if B does not survive A to C and his
     Why does O have a reversion when there are alternative contingent remainders?
          o Because you must fill the forever line
     Reversion is in a fee simple absolute

“A for life, then if B survives A to Bhh, and if B does not survive A then to Chh.”
    A
            o Present estate
                      Life estate
    Bhh
            o Future interest
                      Transferee
                             Contingent remainder
                                    o Because it is based on a “condition precedent”
                                    o Condition precedent because it comes first.
                                            Condition precedes “to Bhh”
    Chh
            o Future interest
                      Transferee
                             Contingent remainder
    O
            o Future interest
                      Reversion
                      TECHNICAL Reversion
                             Because “and his heirs” are words of limitation
                             The fee simple absolute has been given in this grant

If paired future interests in transferees are competing for a place on the timeline, the pairing is
either 2 alternative contingent remainders (i.e. alt. contingent remainder + alt. contingent
remainder) OR a vested remainder subject to complete defeasance plus an executory interest.
     The first future interest that you find in the conveyance is always a remainder, but the
        question if “what kind?”
     And once you know what the 1st one is, then you know what the 2nd one has to be.
     VRSTCD + EI vs. ALT CR + ALT CR

B & H 71-72 and Future Interests Nutshell §6.4

“A for life, then to Bhh, but if B does not survive A, to Chh.”
      A
           o Present estate
                 Life estate
      B
           o Future estate
                 Transferee
                         Vested remainder subject to complete defeasance
                             o Because subject to condition subsequent
      C
           o Future estate
                 Transferee
                         (Shifting) Executory Interest
                             o Because preceding was a vested remainder and not a
                                  conditional remainder
                             o Usually, this will be a shifting executory interest
      O
           o NOTHING
      |---AforLife---|---VRSTCDinA;FSAinB---∞

“A life, then if B survives A, to Bhh, otherwise to Chh”
    A
            o Present estate
                     Life estate
    B
            o Future estate
                     Conditional remainder
                             (There is a condition preceding the grant)
    C
            o Conditional remainder (alternate)
                     Because this is a package
    O
            o Technical reversion

            /          \∞
|---AforLife           /

So, when there are two or more future interests:
     Contingent remainder
           o Determined by condition precedent or if there is an unascertained person or if
              condition is description of the taker
           o Any other remainder is an alternate contingent remainder
           o Owner has a technical reversion or a real reversion
      Vested remainder
          o Determined by condition subsequent and an ascertained person
          o …subject to complete defeasance
          o Followed by an executory interest
          o Owner has nothing or a real reversion

Monday, November 08, 2004

A condition subsequent is a divesting condition. It usually comes after the grant. The condition
takes effect after vesting. The condition subsequent is a sign of a vestd remainder subject to
complete defeasance followed by an executory interest (or a right of entry).

A condition precedent is one that must be satisfied before vesting or possession is possible. It
comes before the grant or is part of the description of the taker. A condition precedent is a sign of
a contingent remainder.

Intention is immaterial; the outcome is a consequence of the formulation in words.

When 2 future interests are duking it out for a place on the timeline, there is only one winner. It
is quite likely that it will either be:
    1. a vested remainder subject to complete defeasance + an executory interest OR
    2. Alternative contingent remainders

Seisen led to some interesting rules:
    1. Destructability of contingent remainders
    2. No springing interests
    3. No shifting interests

Seisen must always be in someone. Once set in motion, seisen can keep on moving. So, if the
conveyance is to A life, remainder to B, O gives the seisen to A and A can pass it on to B, but if
there is ever a gap, seisin snaps back to O and can‟t come out unless O reconveys it.

A GAP means that there is nobody there to take the seisin. If nobody is there to take the seisen,
that means the end of England.

Think of Seisen as a rubber band or a telephone cord.

Consider: “to A for life, then to Bhh if B is 25.”
    B is <25 and A is alive.
    What is the state of the title
           o A has a present estate
                   Life estate
           o B has a future estate
                     A contingent remainder
                     Because the language is tied-up in the description
            o O has a reversion
A dies, offers seisen to B, but B cannot take it, so it bounces back to O.
B‟s contingent remainder was destroyed. It can‟t spring back out of O when B becomes 25. Why
not? Rule banned springing interests.

A contingent remainder had to vest on/before the termination of the preceding estate. If it did
not, it was destroyed.

A remainder has to be perfectly behaved. Must politely wait.

If life tenant A died while B < 25, seisen would snap back. Telephone cord exemplified a natural
termination of the preceding estate (A‟s life estate) causing the destruction of the contingent
reminder (B‟s contingent remainder). B‟s contingent remainder is destroyed.

If B had a properly drafted vested remainder subject to complete defeasance, B could have kept
the remainder (taken the seisen), though under 25.

Consider: O  “A for life, then to Bhh, but if B dies <25, O shall have a ROE.”
            o Says “then to Bhh” as a standalone clause without any condition.
            o B or B‟s heirs get the land
                    B gets to keep Blackacre (unlike in first case)
Note that O probably had same intentions in this and in past example, but consequences can be
different because of the way in which it was drafted.

Purpose is not to teach how to draft future interests, but to demonstrate that there are different
ways of doing the same thing that give different results. “2 ways around a barn”

In first conveyance, B had to be 25 before she could take the seisen; in 2nd conveyance, B gets to
take the seisen; only divested if she subsequently dies under age of 25.

There are artificial terminations in addition to natural terminations. Artificial termination of
primary interest to us is the termination of the preceding estate by merger.

Merger is a doctrine that is separate from the doctrine of destructability of contingent

O has FSA, transfers Blackacre to A for life.
     A has life estate present interest
     O has reversion in FSA
If O transfers the reversion to A, A owns the full timeline; gets FSA by merger.
Similarly, if someone wants to own the place where you are leasing, they buy you and your
landlord out, merging the two estates.

We know that contingent remainders were destructable and that there was such a thing as
merger. Sometimes, when a merger takes place, a contingent remainder that stands in the middle
gets destroyed. The contingent remainder that isn‟t ready gets destroyed. Destructability of
contingent remainders is a dying doctrine.

Lives in being: The rules survive so long as the people who use them are still alive.

Nutshell Pgs. 129-131 (or to 136 if ambitious)

No springing interests

Doctrine of Seisen imposed on law around 1500 that there would be no springing interests.

No freehold estate could commence in the future = no springing interests.

You could not say “to Ahh 1 week hence.” Why? Because passing seisen was a present act / act
of free will. It was inconceivable (when these rules were handed down) that it could happen next
     Marriages were business deals; this was a problem when trying to make deal for marriage
        of your children
     O has son, Prince Harold the Weak who nobody wants to marry. Princess Albertina the
        Wary will marry Harold only if she can be paid enough. Albertina wants to be sure she
        gets the property and O does not want to convey property and then have Albertina walk
            o How could they arrange the transfer of Blackacre?
            o O  “to Ahh upon her marriage to Harold.”
                      But this was not possible because there were no springing interests.
            o Just as there was a rule against springing interests, there was a (3rd) rule against
                 shifting interests… so you could not say: O  “to Ahh, but if she doesn‟t go to
                 college next fall to Xhh.”
                      X‟s interest shifts off A‟s interest
            o Springing interests spring out of the grantor
            o Either springing or shifting interest would tear sesin out of present holder‟s hands.
                 It would be an unnatural termination/ending of preceding estate. Has religious
     To get around no springing and no shifting interest rules, there was a conveyance that
        represented “another way around the barn.”
            o O  “to Thh, to the use of Ahh upon her marriage to H.”
                      T has the LEGAL present estate in FSA
                      Ahh has EQUITABLE springing executory interest in a fee simple
                      O has EQUITABLE fee simple subject to an executory limitation



Monday, November 15, 2004

Executory Interests – difference between legal title and equitable title.

O  Thh, to the use of Ahh, but if she doesn‟t go to college next fall to the use of Xhh.
    Legal title: In T
    Equitable title:
          o A has FSSEL
          o X has shifting EI

|---T‟sFSA---∞ |---A‟sFSSEL---∞

Common law satisfied because seisen is in T. T was a “feofee to uses” – Thad legal FSA which
T held for use of A and X.

If T tried to do anything funny with the estate, A could go to equity and force the use of the land.

Seisen rules applied only in law, but not in equity. No executory interests because of seisen.

People started using this a lot
    Bad for treasury
           o Reduced feudal dues
    Bad for kingdom
    Statute of Uses said that uses of sort described were executed (destroyed) and seisen
       passed through the feoffee to uses to the holders of the equitable interests.
           o Converted all the equitable estates to legal estates
           o This gave world 2 new legal future interests
           o Law courts now recognize 2 new future interests
                    1: Springing executory interest
                            Indestructible
                       2: Shifting executory interest
                             Indestructible
                       Exception to statute of uses formed basis for modern trust

O –B/A Bank as Trustee to collect rent and pay income to A life and to convey the remainder
to B.
     Bank: Legal FSA
     A: Equitable life estate
     B: Equitable IVR in FSA

O  Thh, for the use of A life, remainder Bhh

Law                             Equity
|---T‟sFSA---∞                  |---A‟sEQ.L/E---|---B‟sEQ.IVRinFSA---∞

       Pre 1536, this existed as above. Post 1536, the statute of uses “executed” the uses. Seisen
        passed from T to A and B.

       Conveyance really was read as A life, rem B.

We get: |---Alife---|---B‟sIVRinFSA---∞

All EIs cut short (or divest) except one – the future interest in a transferee which follows a fee
simple determinable, ex:

O  Ahh so long as liquor is not served during A‟s life, and if so served, to Bhh.

This is a future interest in a transferee, but is it a remainder or an executory interest? It is an
executory interest that is neither shifting nor springing because there is no cutting short. By
definition, the fee simple determinable, when it terminates, comes to a natural ending.

Practice with executory interests:

“To Ahh, provided however if A dies without going to college to Bhh.”

What is the state of the title?
   A
           o Present estate
                    Fee simple subject to executory limitation
   B
           o Future estate
                    Executory interest (by definition)
                              Shifting
                                  o In FSA
      O
           o Nothing

         B‟s E.I.

If something were to happen to B‟s E.I., A gets FSA: |---A‟sFSA---∞

Devise to Ahh upon her graduation from college (A is not a college grad).

What is the state of the title?
   A
           o Future interest
                    Executory interest
                              Springing EI (even though it comes from O‟s successors)
   O
           o O DEVISED, so it is implied that O is dead
   O‟s heirs
           o Present estate
                    Fee simple subject to executory limitation

A devise is a transfer by will

O  A life, then to Bhh, but if B dies before A to Chh (all are alive)
          Present estate
                  Life estate
          Future estate
                                  Subject to complete defeasance
          Future estate
                          Executory interest
O  A life, remainder to B when she is 21

What is state of title if B < 21
   A
           o Present estate
                      Life estate
   B
           o Future estate
                      Remainder
                              Contingent
   O
           o Reversion

If B dies before age 21, contingent remainder is destroyed (assuming that we are in a
jurisdictions where contingent remainders are destructable) and O gets FSA.

What if contingent remainders are not destructable if A dies before B is 21? O has fee simple
subject to executory limitation. O takes seisen, but the contingent remainder is not destroyed.
This is either “a springing executory interest” or “a contingent remainder that acts as if it were a
springing executory interest.”

O  A life, and 1 day after A‟s death to B if living (all are living).

What‟s the state of the title?
   A
           o Present estate
                    Life estate
   O
           o Future estate
                    In transferor
                             Reversion
   B
           o Future estate
                    In transferee
                             From TRANSFEROR
                             1-day time gap
                                 o Cannot be a remainder
                                 o So executory interest
                                          Springing (because it comes from O)

Purpose was to avoid destruction of future interest in B based on destructibility rule by making B
have an executory interest. Destructability only applied to contingent remainders, so this
guaranteed that interest in B would not be destroyed. Note that the time gap forces any following
estate to not be contingent, so it must be EI.

Executory interests are by definition contingent. (the divesting condition is a condition precedent
to their taking effect, is the standard explanation)

To Ahh, provided however, at the end of 15 years to Bhh.

      A
           o FSSEL
      B
           o EI
                      Shifting
      O
           o Nothing

Resembles term for years + vested remainder in FSA, but that is not accurate.

O  To Bhh 20 years hence

      O
          o Present estate
                Fee simple subject to executory limitation
      Bhh
          o EI
                Springing

What if springing interest fell off? O would have FSA.

Wednesday, November 17, 2004

To Ahh so long as A remains a bachelor and if he marries, to Bhh.
    A
          o Present estate
                   Fee simple determinable
    B
          o Transferee
                   Executory interest
                         Shifting
       O
            o Nothing

This is the unusual future interest in a transferee that follows a fee simple determinable.

Executory interest (not a remainder) for historical reasons.
What would we have if EI fell off? A has FSA.




There is no express possibility of reverter; possibility of reverter in O is implied to fill the
forever line.

Rule in Shelly‟s case

O  A life, remainder to the heirs of A and their heirs (A is alive)
    A
          o Life estate
    A‟s heirs
          o Remainder
                  Contingent (because unascertained / living person has no heirs)
    O
          o Reversion in FSA

This is what seems to be there, but Rule in Shelly‟s Case converts the estate into FSA in A.
Shelly‟s case changes “remainder to the heirs of A” into “Remainder to Ahh” (FSA) (“like
global replace command in word processing program”)

O  A life, remainder to the heirs of A and their heirs (A is alive)
…Changes into…
O  A life, remainder to Ahh (A is alive)

       A
        o       Life Estate
        o       Indefeasibly vested remainder in FSA
        o        FSA
        o       Equivalent to “to Ahh”
…Same as…
O  To Ahh
Doctrine of Worthier title

“The worthier title passes at death by descent or devise and not by conveyance.”

O  A life, remainder to heirs of O.
    A
          o Life estate
    Heirs of O
          o Future estate
                  Transferee
                          Remainder
                                  o Contingent
                                  o Conveyance, so O is alive! He has no heirs! (so
    O
          o Reversion

“Remainder to heirs of O” is invisible.

If Doctrine of worthier title applies, A has life estate and O has reversion

Under the doctrine of worthier title, a remainder in the heirs of the grantor is a nullity.

Rule against perpetuities:

Perpetuities rule comes from English law.

Bergan and Haskell
Laurence and Mintzer
Future Interests Nutshell
Schwartz, a Sudent‟s guide to the Rule Against Perpetuities
Simes, Future Interests, 2nd Edition, Ch. 24
51 HLR 638
85 Columbia Law Review 1648

Rule against perpetuities came into existence because executory interests were held to be
indestructible. If executory interests were held to be destructible, we would never have needed
the rule. It is a modern doctrine from about 1681.

Society, through its courts, has determined that land and other forms of property should not be
tied up for too long. The dead hand should not control the allocation of society‟s resources for
too long. Capital should break free from time to time. Great Aunt Agatha cannot control her
property forever… but rich folks want to be able to push their relatives around. They want to be
able to tie up their property in knots and people want protection of trusts to tie up their property
for a while. Magic long-term trusts save taxes, so you have competing social interests… so a
compromise was worked out. You can tie your property into a knot for a while (a reasonable
period of time)… but if you‟re greedy and exceed that reasonable time period, then your effort is
void. There is a rule against tying up your property for too long (a.k.a. rule against perpetuities).

We want property to be owned outright; want assets to rise to highest/best use. Don‟t want many
knots to be tied in property.

Regrettably, we don‟t do this directly; we use very indirect system for accomplishing the goal of
preventing assets from being overly tied-up. Must learn the artificial system.

Recap: You can‟t tie up your property too long.

Abandon common sense.

Imagine you‟re on a strange island where they do things in funny ways. If you want to date, you
must stand in a funny position. You are forced to follow the silly system because that‟s only way
you get result you want.

We test future interests to see if they offend us (will they tie up property for too long?).

Only 3 future interests are potentially offensive:
    Vested remainder subject to open
    Contingent remainder
    Executory interest
   (Every other present/future interest is spared from the rule of perpetuities)

Step 1: Classify all the interests without thinking about rule of perpetuities. If you try to do it any
other way, your head will explode
        All that society asks is that the future interests vest or fail to vest within a certain period.

“The interest being tested must become a vested estate – vested either in interest or vested in
possession – within a reasonable period of time”
    It has to cease to be a contingent remainder, etc. within a reasonable period of time. Must
       cease being contingent and become vested within reasonable period of time.
    “Vested in interest” – must change from bad into good future interest in reasonable
       period of time
           o Must “grow up”
    “Reasonable period of time” as we define a reasonable period of time.

Only the potentially offensive interests must be tested. Everything else is, by definition, okay.

Similar to logic: we only worry about dangerousness among 3 breeds of dogs (pit bulls,
rottweilers, german shepherds)
       Rule against perpetuities is a test of vesting
       Trick: Vested remainder subject to open isn‟t vested
            o Because of executory interest trying to get into class of takers
            o We require that the class close within the periof of the Rule.
       “Reasonable period”: All the law requires is that contingent interests vest or fail to vest
        within a period of a life or lives in beings, plus 21 years.
            o Lives in the womb are lives in being.

       Interests cannot vest too far out in time.
       Contingent remainders aren‟t vested, so we test them.
       Executory interests aren‟t vested, so we test them.
       Vested remainders subject to open aren‟t vested for rule against perpetuities purposes
        because of interests of those trying to get into the class of takers.

No interest is good unless it must vest, or fail to vest, not later than 21 years after some life/lives
in being [or in gestation] at the creation of the interest. Or it will be destroyed.

Rule against perpetuities is a rule against remoteness in vesting.

Interests cannot vest too remotely in time and hope to survive the rule.

Rule has special biology and set of sub-rules
   1. A person can live to any age
   2. A person can die at any age
   3. A person can marry at any age
   4. Women can give birth at any age
   5. A child conceived is a “life in being”
   6. Events that usually take a short time can take forever (except preganancies)
   7. Interests must be good at the time of creation

Monday, November 22, 2004

Rule against Perpetuities
= a rule against uncertainty
= a rule against remoteness in vesting

We are happy if an interested is vested and we don‟t test it, but if it is unvested, we do test it.
   Vested Remainder Subject to Open
   Contingent Remainder
   Executory Interest
  All must vest within a reasonable period of time
  Tested at time of creation of the creation of the interest.
If interest is testamentary, time of creation (and testing) is when testator, T, dies.
If interest is inter-vivos, we test it when the transfer becomes irrevocable.

Imagine that there are 2 sides:
Proponent: On one side is the person claiming the interest is “good.” She seeks to prove that the
interest will vest or fail to vest within the period of the rule.
Opponent: On the other side, the person claims that the interest is “bad.” Tries to show that
interest will vest or fail to vest outside period specified by rule.

2 cops at roadblock: all VRSTO, CR, and EI are asked to exit car and prove that he will vest or
fail to vest within period of rule.
      If you prove you will vest or fail to vest within period of rule, everything is okay; if not,
         you get shot.

Common law rule requires a guarantee. If there is slight chance that the interest will not vest or
fail to vest within period of rule, then it is destroyed.

The proponent (the kid in the car) can offer any life as tentative proof that the interest is good,
but the opponent can kill the offered life (hypothesize the death of the offered life). Says “let‟s
kill A right now and see what happens. Does that cause interest to vest or fail to vest?” Must be
able to show that A‟s death saves the interest by causing the interest to vest or fail to vest.

When A dies, the interest must vest or fail to vest.

You can offer any life, but the only lives that turn out to matter are those that are connected to
the vesting. Those lives are in the instrument or in the world of the instrument.

O  “To A for life, remainder to B if then living.”

First, write down the parties:
     A
            o Life estate
                    Vested in Possession (possessory)
                    No need to test under the rule
     B
            o Contingent remainder
                    When does B‟s contingent remainder vest or fail to vest?
                    When A dies.
                            If B is then living, the seisen passes over (“vests”)
                                 o Becomes present estate (FSA / vested in possession)
                            If B is then dead, the seisen passes back to O.
                                 o Contingent remainder fails to vest (it is destroyed)
                            Does this take place within a life/lives in being?
                                 o Yes; A‟s life.
                            So is RAP satisfied?
                                 o Yes.
                             Contingent remainder can get back in the car.
      O
           o Reversion (implied)
                 No need to test

Why not test A‟s interest or O‟s interest.
   A‟s interest is already vested
   O‟s interest is not one of 3 subject to RAP.
          o Reversions are defined as vested.

O  “To A for life, S for life, then to such of S‟s children as are alive at S‟s death.”
      (A, S, and O are alive)
    A
          o Present estate
                   Life estate
    S
          o Future interest
                   Transferee
                           Remainder
                                   o Vested remainder subject to complete defeasance
                                   o Indefeasibly vested remainder (classified by different books
    S‟s children
          o Future interest
                   Contingent remainder (because unascertained)
    O
          o Reversion

Which interests do we test?
          o (none present here)
   EI
          o (none present here)
   CR
          o Here, S‟s children have a CR
          o When does offensive unvestedness disappears?
                   When S dies.
                           We will then know who gets contingent remainder, if anyone
          o Is that a reasonable period of time for society to bear burden of unvestedness?
                   Yes.
          o This interest is saved by a life.
                   S‟s life.
          o When will uncertainty disappear?
                   When S dies.
O  A life, S life, then to such of S‟s children as reach 21 (A, O, and S are alive)

      A
           o Life estate
      S
           o Vested remainder subject to complete defeasance
      S‟s children
           o Contingent remainder IF none have reached 21
           o Vested remainder subject to open IF a child of S has reached 21
           o (this difference has nothing to do with RAP; just regular classification; both are
               on the list)
      O
           o Reversion IF no child has reached 21 yet
           o Nothing IF child has already reached 21

Within what period will S‟s childrens‟ interest vest/fail to vest?
    Within S‟s life + 21 years.
    Proponent says: I propose S‟s life saves the interest.
    Opponent says: What if I kill S?
          o It turns out that killing S saves the future interest in S‟s children. How?
                  All of S‟s children much reach 21 within S‟s life + 21 years.
                  Not a problem; 21 years after S dies, S‟s children will be at least 21

“X  A life, remainder to A‟s then living children (and their heirs).”
    A
          o Life estate (vested in possession)
    A‟s then living children
          o Contingent remainder
    X
          o Reversion

When does the interest vest or fail to vest?
    Interest vests when A dies if there are any children.
    Interest fails to vest when A dies if there are no children.
Uncertainty disappears when A dies.

“To A for life, remainder to such of A‟s children who reach 21.”
    A‟s children have a contingent remainder if none are 21 when the interest is created.
    A‟s children have vested remainder subject to open if/when one of them reaches 21.
    This is okay because all of A‟s children will be alive at A‟s death (or in the womb and
       alive for RAP purposes), so all will reach 21 or fail to reach 21 if rule is satisfied.
    RAP satisfied
       Worst case analysis: When does vesting or failure to vest occur?
          o 21 years after A‟s death, uncertainty will disappear.
          o Life in being = A.
                   At worst, we have to wait until A dies and 21 years pass.
          o What if it said 22 years?
                   It violates the rule
                   In that case, we would have to wait until 22 years after A dies to remove
                      the uncertainty.

No interest is good unless it will vest or fail to vest within a life/lives in being +21 years.
If an interest offends us, we destroy it.

“To Bhh, but if liquor is ever served, to Chh.”
    B
          o Fee simple subject to executory limitation
    C
          o Executory interest
                    (on the list of estates to be interviewed under RAP)
                    When will liquor be served?
                            Unknown / undefined
                            When will vesting or failing to vest of the E.I. occur?
                            We don‟t know.
                            So the EI is no good.
                            SO B GETS FSA
    O
          o Nothing

“To Bhh so long as liquor is not served, then to Chh”

       B
            o FSD
       C
            o EI
                       We don‟t know when liquor will be served
                       Uncertainty will therefore not end at any determinable time in the future
                       EI is void.
                       SO O GETS A POSSIBLITY OF REVERTER
       O
            o Nothing

Wednesday, November 24, 2004
Monday, November 29, 2004

Won‟t call on anyone on Wednesday; will spend most of the time on Wednesday discussing the

Rule Against Perpetuities – Rule against remoteness in vesting. Every interest must vest within a
reasonable period of time. If it is going to vest too far out in time, we destroy it.

Every interest must vest or fail to vest during a life/lives in being +21yrs.

RAP Problems:
  1. X conveys by deed to A for life, remainder to first daughter of A to reach 25.
         a. Remainders are indestructible
                i. A
                       1. Life Estate VIP
               ii. 1st D
                       1. Contingent Remainder
                              a. Test: Can any life save the interest? (can you think of any
                                  situation where the remainder would vest after the required
                                  period of a life/lives in being + 21 years?)
                                        i. Yes.
                                       ii. But the vesting occurs outside the period of the rule
                                           under some circumstances and even one such
                                           situation proves the conveyance to be no good
                                           under RAP.
                                      iii. Example of how vesting could be too remote
                                               1. 1 year passes after conveyance; daughter is
                                                   born to A; 1 day passes; All people in the
                                                   world alive on day of the conveyance die
                                                   (including any other daughters of A)… “25
                                                   years” pass. Vesting occurs 25 years into the
                                                   future, when A‟s first daughter to reach 25
                                                   reaches 25.
                                               2. Property is tied up too long; too long to
                                                   allow vesting.
                              b. Test: Can any death save the interest? (will the death of any
                                  life cause the interest to vest or fail to vest?)
                                        i. If X dies, that death does not cause the interest to
                            ii. If A dies, that does not cause the interest to vest
                           iii. No other (random) lives will cause the vesting,
                           iv. Our search for a life is futile
                     c. Test: When does the uncertainty lift? When does the
                        vesting occur? When does the offense of tying up of
                        property come undone?
                             i. When does the vesting occur? When the first of A‟s
                                daughter turns 25.
                            ii. Is that guaranteed to occur within a period of
                                life/lives in being +21 years?
                                     1. No.
                     d. So, contingent remainder in daughter is no good because it
                        might not vest or fail to vest after life in being +21 years.
               2. No good under RAP, so contingent remainder is surgically
                  removed. What is left? A has a life estate and X has a reversion.
      iii. X
              1. Reversion
b. Remainders are destructible
       i. A
      ii. 1st D
              1. Contingent Remainder
                       a. When will contingent remainder vest or fail to vest?
                               i. After A dies.
                              ii. If no daughters have turned 25 yet, the CR is voided
                             iii. What does that mean?
                                      1. The contingent remainder will be vested or
                                          destroyed when A dies, so
                                      2. We know in advance that the contingent
                                          remainder will vest or fail to vest within
                                          (A‟s) life in being (+21 years).
                                      3. A‟s life/death saves the conveyance from
                                          RAP uncertainty
                                      4. So this is kosher under RAP
     iii. X
c. What if A has a 25 year old daughter on the day of the conveyance?
       i. A‟s daughter has an indefeasibly vested remainder; only this daughter can
          inherit the title.
      ii. No suspects (EI / CR / VRSTO), so no test of RAP
d. What if A was dead on the day of the conveyance and A had 3 daughters
   (M,N,O), triplets aged 1 and contingent remainders are indestructible?
       i. A
              1. Nothing (dead, so no life estate)
      ii. M, N, O
              1. Springing EI (but not relevant; must be tested even if CR)
                              a. When does the uncertainty disappear?
                                     i. When the first one turns 25
                                            1. It will probably be the first one out of the
                                    ii. Or all of them die
                                  iii. Uncertainty disappears when either the first one
                                        turns 25 or when last one dies <25.
                                   iv. Rule: must vest or fail to vest within life/lives in
                                        being +21 years.
                                    v. Do we have any lives in being?
                                            1. Yes.
                                                    a. X
                                                             i. But killing X won‟t cause
                                                                vesting/failure to vest
                                                    b. M, N, O
                                                             i. Vest or fail to vest when:
                                                            ii. first one turns 25, or
                                                           iii. when all of them die
                                   vi. Will this occur during life/lives in being?
                                            1. Yes.
                                                    a. Whose lives?
                                                             i. MNO
                                            2. The interests are good; they are their own
                                                measuring lives.
                                            3. Note: class is closed
              iii. X
                     1. FSSEL
      e. What if the conveyance said “21 years old” instead of 25 years old and contingent
         remainders are indestructible?
              i. This is OK under RAP.
             ii. All of A‟s daughters will be in being or in gestation when A dies and one
                 of them will turn 21 or all of them will die, so it will vest or fail to vest,
                 within 21 years after A‟s death.
      f. If A was a man and he died leaving behind a female child he (A) had sired, in his
         mate‟s womb, that bun in the oven would be able to enter the 1st daughter
              i. So, it‟s really life, or lives in being +21 years +periods of gestation as
             ii. Basically, we generally just ignore periods of gestation
2. X conveys by deed to A for life, remainder to first child of A, whenver born, to become a
   member of the clergy.
      a. Remainders are indestructible
              i. X
                     1. Reversion
             ii. A
                     1. Life
                  iii. 1st C
                           1. Contingent Remainder
                                  a. Method 1:
                                           i. When first child of A becomes member of clergy,
                                              we will know who owns the property in FSA.
                                          ii. When will this occur?
                                                  1. We don‟t know.
                                                  2. Could be within 21 years after A dies.
                                                  3. Could never happen.
                                         iii. Fails under RAP
                                  b. Method 2:
                                           i. Look for a life to save the interest.
                                          ii. Any lives save the interest?
                                                  1. A
                                                          a. A‟s death does not result in
                                                              vesting/not vesting.
                                                          b. A‟s life does not result in vesting/not
                                                  2. 1st C
                                                          a. If you kill all of A‟s children on day
                                                              of conveyance, A can still have more
                                                              children afterward, so that doesn‟t
                                                              cause vesting.
                                                  3. X
                                                          a. X‟s life is as unrelated as any other
                                                              (random) life to the vesting/not
                                                              vesting here.
                                  c. Method 3: Can we think of a situation where vesting might
                                      occur outside the period of the rule?
                                           i. Yes, we can…
                                          ii. One possibility means that is it; case closed; RAP is
                                              a worst case scenario analysis system.
                                         iii. A could have a child after the conveyance.
                                              Everyone else alive in the world could die. It could
                                              take >21 years for the child to become a member of
                                              the clergy (to vest)… there is no guarantee the
                                              uncertainty will disappear within the period of the
          b. Remainders are destructible
   3. X conveys by deed to A for life, remainder to children of A for life, and upon the death of
      the last surviving child of A, to such of A‟s grandchildren as may then be living.

The RAP is a rule against remoteness in vesting. If interests vest too far into future, RAP
destroys them. Rule hates contingencies; it hates uncertainty that lasts too long.
RAP is satisfied if you can show any kind of a guarantee that the interest will vest or fail to vest
within the period of the rule.

Sometimes the doctrine of destructibility will provide that certainty.

Wednesday, December 01, 2004

Everything will be fair game on the Midterm.

1 hr. essay / 40 multiple choice questions / closed-book / 4 hrs. / essay first; collect blue books or
typed answer; if not turned in on time  no credit. Can start multiple-choice early (though
nobody does). Few paper take full 4 hrs. Nobody gets to take test early.

Multiple choice: 5 choices each; no penalty for guessing; one answer only.

No mean deductive tricks; if instincts tell you what the answer is, follow your instincts. Know
what you think before you read the choices; if clueless, go with first guess.

Look for 5 complain/explain forms on back of test; Dobris will take off a point for misuse of
complaint system, but if you saw a twist that maybe Dobris didn‟t see, mention it.

Many future interests questions
Some perpetuities questions

Essay questions:
Issues must be identified and succinctly discussed in competent fashion.
Credit for little “frame” introduction, ex: “This question involves the landlord‟s duty to repair.”

If you use bluebooks, hide your tricks in a scrap bluebook. “Nobody wants to see the puppeteer‟s

      Don‟t be cute in your answer unless you are cute.
      Don‟t kiss up in the blue book.
      Don‟t ask for mercy.
      Don‟t give up; don‟t throw in the towel.
      Don‟t say you don‟t know.
      Don‟t get hostile in the bluebook.
      Don‟t overprepare/overreact
          o Think first, then write

Every paper starts with an A and you give it away.
Dobris doesn‟t care about case names, but if you‟ve got it, flaunt it… but don‟t blow it. Keep
your promises.

Problems tend to be classification puzzles. It will be unclear. You will often need to discuss 2
sides of things.

Goals as exam writer:
    All answers organized one way.
    Should not have time to write long answers.
    Should spread among a scale.
    Hard but not too hard exam.

If you blank/panic on essay, think out loud; do party or chronological analysis; if necessary, react
to each sentence. Don‟t turn in an empty bluebook. An empty bluebook is a zero.

You will be protected by the curve.

Your property essays will be awful.

Dobris put “how to take a law school exam” articles in reserve.

Don‟t use personal abbreviations. Only use standard abbreviations.

No fine-point pens; no pencils. Don‟t cross-out obsessively.

Don‟t make things harder for graders/teachers.

Read the facts, organize well, don‟t pad your answer, don‟t make up facts, don‟t hide from the

Credit for essay > Credit for multiple choice.

Bring pen even if you type.

Doctrine of worthier title, Rule in Shelly‟s case, and RAP – you will know you‟re dealing with it.
Contingent remainders – assumed indestructible unless you are told otherwise.

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