PROPERTY A SLIDES
3-6-17
National Oreo Cookie Day
National Dentist’s Day
Monday March 6
Music to Accompany White v. Brown
Vivaldi, Four Seasons (1723)
Itzhak Perlman, Violin
London Philharmonic Orchestra
(Recording 1977; Remastered 1987)
1978 Grammy Award for Best Classical
Performance (Soloist with Orchestra)
Tempest at the Teapot:
Part B
EVERGLADES (Argument B1)
ACADIA & BADLANDS (Argument B2)
Tempest at the Teapot:
EVERGLADES (from Argument B1):
Arguments re Whether the Aerial Violates §83.52 of the
Florida Statute
Arguably Relevant Subsections?
Tempest at the Teapot:
EVERGLADES (from Argument B1):
Arguments re Whether the Aerial Violates §83.52
• (5) Use and operate in a reasonable manner all electrical …
appliances….
• (6) Not destroy, deface, damage, impair, or remove any part of the
premises …
• (7) Conduct himself or herself … in a manner that does not
unreasonably disturb the tenant's neighbors or constitute a breach
of the peace.
Pros & Cons of Each? Best Result?
Pet & Aerial: Argument B3
Adequacy of Notices: Issues re 1st Notice
• No Pet at Time Notice Sent
• “Defacement” Not Specified
• Sent Automatically to All Tenants
• L Continued to Accept Rent Although Aerial
Not Removed
Tempest at the Teapot:
From Argument B2:
• Assume that the aerial violated Fl. Stat. §83.52
(“deface”), but that the May 2016 notice did not serve
as a sufficient “right to cure” notice regarding the
aerial.
• Can M evict F for the aerial immediately (without
giving a right to cure notice) under §83.56(2)(a)?
• Back to Types of Eviction Arguments Used for Tim’s
Party at Start of Chapter 2.
Tempest at the Teapot: Argument B2
ACADIA for Tenant
BADLANDS: for Landlord
Opportunity to Cure: 83.56(2)(a) v. (b)
(a) No Cure : “destruction, damage, or misuse of the landlord's or
other tenants' property by intentional act”
(b) Can Cure: “having or permitting unauthorized pets, guests, or
vehicles; parking in an unauthorized manner or permitting such
parking; or failing to keep the premises clean and sanitary”
• Aerial (assume “Deface” under 83.52(6))
• Literal Arguments
• Comparative Arguments
• Policy Arguments
Caselaw & Policy Arguments on Exams
• Policy Arguments Appear in Different Places on Test. E.g.,
• Last Step in 83.56 Eviction Problems
• Arguments in Opinion/Dissent Q
• Possible Ways to Resolve Short Problems Like 2G or 2H
• Usually No Binding Precedent
• Can Cite Cases as Supporting Particular Policy Ideas
• E.g., Javins = Need to Protect TNTs w/o Much Bargaining Power
• Can use “E.g.” to Make Clear Not Treating as Binding
Chapter 3: Small Changes in This Week’s
Assignments
Problem 3G (S76)
Problem 3I (S82)
ACADIA
• TYPO: “Larry” should be
“Hughie”
• Supplement
with
corrected page S76 on
course page.
• Originally
assigned
for
Thursday to EVERGLADES
• Shifted to Monday after Break
and reassigned to SEQUOIUA
• Revised Assignment Sheet on
Course Page
WHITE
v.
BROWN
White v. Brown (S71-75)
Interprets Jessie Lide’s Will
I wish Evelyn White to have my home to
live in and not to be sold.
I also
leave my personal property to Sandra
White Perry.
My house is not to be
sold.
Issue: What Interest in the Home Does This
Language Create?
White v. Brown: DQ3.01
White majority says “the free alienation of property [is]
one of the most significant incidents of fee
ownership.”
Significance Includes:
1. Allows land to move to owner who can make most
valuable use of it.
2. Means land is relatively liquid asset maximizing owner’s
control & freedom (can sell or mortgage for $).
SEQUOIA: DQs 3.02-3.04
SEQUOIAS
White v. Brown
Sequoia: DQ3.02
I wish Evelyn White to have my home to live in
and not to be sold. … My house is not to be sold.
The White majority complains that “the words
chosen by the testatrix are not specific enough to
clearly state her intent."
White v. Brown
Sequoia: DQ3.02
I wish Evelyn White to have my home to live in
and not to be sold. … My house is not to be sold.
What do you think
Jessie Lide’s intent is?
Why must house not be sold?
White v. Brown
Sequoia: DQ3.02
I wish Evelyn White to have my home to live in
and not to be sold. … My house is not to be sold.
Why does the majority have problems discerning
Jessie Lide’s intent?
White v. Brown: Possible Characterizations
I wish Evelyn White to have my home to
live in and not to be sold.
•Fee Simple
•Life Estate
•Conditional Fee
• So long as not sold
• So long as E lives there
•Conditional Life Estate
White v. Brown
Sequoia: DQ3.03
WHAT ARE THE MAJORITY’S ARGUMENTS
THAT MS. LIDE INTENDED TO CREATE A FEE
SIMPLE?
White v. Brown
Sequoia: DQ3.03
MAJORITY ARGUMENTS (FEE SIMPLE)
• Presumption: Grant Conveys Whole Estate
JL had FSA, so presume she gave FSA to EW
• Same idea as “default estate today is fee simple”
•
• No Gift Over (Will describes no interest in home after EW’s
death)
• Partial Intestacy Disfavored (Try to read will to address all of
JL’s property)
White v. Brown
Sequoia: DQ3.03
WHAT ARE THE DISSENT’S ARGUMENTS
THAT MS. LIDE INTENDED TO CREATE A LIFE
ESTATE?
White v. Brown
Sequoia: DQ3.03
DISSENT ARGUMENTS (LIFE ESTATE)
• Presumption: All Language Used Has Meaning (same idea re
statutes, contracts, etc.)
• Language Here Consistent with Life Estate:
Says: “to live in”
• Says: “not to be sold”
•
• Contrast Language in Gift to Niece: No Limits (standard
construction argument: different language=different meaning)
White v. Brown
Sequoia: DQ3.03
I wish Evelyn White to have my home to live
in and not to be sold.
I also leave my
personal property to Sandra White Perry.
My house is not to be sold.
Whose Arguments Seem Stronger?
White v. Brown
Holds Interest is Fee Simple Absolute
• Could you Read Grant as Fee Simple Conditioned on
Land Not Being Sold?
• No. Restraints on Alienation are Inconsistent with Fee Simple.
• Even if Condition Explicit, Court Would Pencil It Out as Against
Public Policy.
THUS…
White v. Brown
Holds Interest is Fee Simple Absolute
Result:
The Property Can Be Sold!!!
White v. Brown
Sequoia: DQ3.04
Imagination Exercise: Possible Relevant Facts Not in Opinion
• Legal Relevance Here:
•
•
•
Both Sides Rely on “Presumptions”
Means Can Use Other Facts to Overcome/Rebut
Important Exam Skill
•
•
Big Part of Lawyering Q
Can Use for Short Problems/Issue-Spotter
•
•
If Consistent with Rest of Facts
If Relevant to Issues Raised
White v. Brown
Sequoia: DQ3.04
Imagination Exercise: Possible Relevant Facts Not in Opinion
• To Add Weight to Majority Position (Fee Simple)?
• To Add Weight to Dissent Position (Life Estate)?
White v. Brown
What Actually Happened?
1. EW had stroke, moved in w daughter
2. Probably wants to sell house b/c rental income not much
3. Significance of case:
• If life estate, most of value goes to nieces/nephews
• If fee simple (as court held), EW gets money for medical & living
expenses
White v. Brown
Grantor’s Intent v. “Channeling” Function
1. Recurring problem with estates/future interests: laypeople
don’t know relevant categories.
2. Thus, they don’t know how to signal what they wish to
future court.
3. Important roles that lawyers play in helping with wills:
a. Ask Qs to discern client wishes (“What if Evelyn gets sick?”)
b. Channel client desires into language that gives legal effect to
those wishes.
White v. Brown
Test Note #1:
Test Will Include At Least One Grant (Yielding Multiple
Questions) That Could Be Either Fee Simple or Life Estate, So
You Need to Know Arguments Distinguishing the Two
QUESTIONS?
Vested v.
Contingent
Remainders
FUTURE INTERESTS THAT FOLLOW
FINITE ESTATES
REMAINDER
Future interest in a third party that follows naturally upon the
termination of a finite estate. It is always expressly conveyed by the
grantor.
VESTED REMAINDER
1. Grantee is living ascertainable person (can presume
this if granted to a named individual.)
VESTED REMAINDER
1. Grantee is living ascertainable person AND
2. Clause creating the remainder contains no condition on
grantee taking the property except expiration of prior
estate.
VESTED REMAINDER
1. Grantee is living ascertainable person AND
2. Clause creating the remainder contains no condition on grantee
taking the property except expiration of prior estate
Example: To Aaron for life, then to Oona and her heirs.
CONTINGENT REMAINDER
• Grantee is presently unborn or unascertainable *OR*
• Clause creating the remainder contains a condition on
grantee taking the property
REMAINDERS: EXAMPLES
“To Fred for life, then to Fred’s firstborn child.”
• Fred has Life Estate
• Interest in Child
• Follows Life Estate, so it’s a Remainder
• If Fred presently has no children, grantee is unborn, so Remainder
is Contingent .
Suppose Fred has a child,
Pebbles…
REMAINDERS: EXAMPLES
“To Fred for life, then to Fred’s firstborn child.”
• Fred has Life Estate
• Interest in Child
• Follows Life Estate, so it’s a Remainder
• Once Fred fathers his first child, grantee is born and
ascertainable, so Remainder is now Vested.
• Thus, we say that, at the birth of Pebbles, the Contingent
Remainder “Vests”
REMAINDERS: EXAMPLES
“To Fred for life, then to Fred’s oldest child living at
Fred’s death.”
• Fred has Life Estate
• Interest in Child
• Follows Life Estate, so it’s a Remainder
• Even if F has living children now, can’t know which of the children
will be alive at F’s death, so grantee is unascertainable, so
Remainder is Contingent .
REMAINDERS: EXAMPLES
“To Fred for life, then to Wilma and her heirs if
Dino survives Fred.”
• Fred has Life Estate
• Interest in Wilma
• Follows Life Estate, so it’s a Remainder
• Condition must be met before Wilma can take, so Remainder is
Contingent.
Contingent v. Vested Remainders:
Memory/Comprehension Aids
• Meaning/Derivation of Vested Right
• Clearly Established Right that’s Hard to Undo
• E.g., “Vested” Employee Benefits
• Derivation: Putting on Robes of Office (Investment)
• Analogy:
• Vested Remainder  Theater Ticket
• Contingent Remainder  Lottery Ticket
Life Estate + Vested Remainder
To Fred for Life, then to Wilma and her heirs.
Life Estate + Contingent Remainder
Barney “to Fred for Life, then to Wilma and her heirs if
Dino survives Fred.”
I’ll Show Contingency by Drawing Dotted Line, Off of the Primary
Time Line, that Begins at the End of the Finite Estate
Life Estate + Contingent Remainder
Barney “to Fred for Life, then to Wilma and her heirs if
Dino survives Fred.”
What happens to property when Fred dies if Dino doesn’t
survive Fred? Someone must get it!
Life Estate + Contingent Remainder
Barney “to Fred for Life, then to Wilma and her heirs if Dino
survives Fred.”
What happens to property when Fred dies if Dino doesn’t
survive Fred? If grant doesn’t distribute some of the
available rights, then those rights are retained by the
grantor.
Life Estate + Contingent Remainder
Barney “to Fred for Life then to Wilma and her heirs if
Dino survives Fred.” Barney retains a reversion.
HINT: If there’s a contingent
remainder, the grantor always
retains a reversion.
REMAINDERS “IN …” :
• “To Fred for life, then to Wilma for life.”
Wilma has a vested remainder in life estate
• “To Fred for life, then to Wilma and her heirs if Dino survives
Fred.
Wilma has a contingent remainder in fee simple absolute
TERMINOLOGY: ME v. WORKBOOK
• Workbook: Describes all present possessory estates (Fee
Simple Absolute, Life Estate, etc.) as a “Possessory Estate in …”
TERMINOLOGY: ME v. WORKBOOK
• Workbook: Describes all present possessory estates (Fee
Simple Absolute, Life Estate, etc.) as a “Possessory Estate in …”
• My Test Questions: Will not use the italicized phrase.
TERMINOLOGY: ME v. WORKBOOK
• Workbook: Describes all present possessory estates (Fee
Simple Absolute, Life Estate, etc.) as a “Possessory Estate in …”
• Maybe there to help you remember important rule: You can
have only one present possessory estate at any given time
with respect to a particular parcel of land.
TERMINOLOGY: ME v. WORKBOOK
• Workbook: Adds language to define nature of future interests
in grantor. E.g.,
• Reversion in Fee Simple Absolute
• Possibility of Reverter in Fee Simple Absolute
TERMINOLOGY: ME v. WORKBOOK
• Workbook: Adds language to define nature of future interests
in grantor. E.g.,
• Reversion in Fee Simple Absolute
• Poss. Of Reverter in Fee Simple Absolute
• My Test Questions: Only will add this sort of language for
remainders
Olympic: Problems 3A-3B
EEL GLACIER
Olympic: (3A) O conveys Baconacre "to Mayer
and her heirs”
Mayer's only child, Armour, runs up large bills.
Can Armour's creditors reach any interest of Armour
in Baconacre?
Olympic: (3A) O conveys B-Acre "to Mayer and
her heirs”
Point of 3A is meaning of “and her heirs”
• Clarifies that M has a Fee Simple
• Creates no interest in anyone else
• Presumptive heirs have a “mere expectancy”
Olympic: (3A) O conveys Baconacre "to Mayer
and her heirs”
Mayer wishes to sell Baconacre and use the
proceeds to take a trip around the world.
Can Armour prevent Mayer from doing this?
Olympic: (3B) Kermit “to Ernie for life, then to Burt
forever.” (Common Law)
• Ernie?
Olympic: (3B) Kermit “to Ernie for life, then to Burt
forever.” (Common Law)
• Ernie: Life Estate
• Burt: ?
Olympic: (3B) Kermit “to Ernie for life, then to Burt
forever.” (Common Law)
• Ernie: Life Estate
• Burt: Vested Remainder
• Remainder b/c Follows Life Estate
• Vested b/c Burt is Named (so Living & Ascertainable
Muppet) and No Condition Precedent
• Vested Remainder in …?
Olympic: (3B) Kermit “to Ernie for life, then to Burt
forever.” (Common Law)
• Ernie: Life Estate
• Burt: Vested Remainder in Life Estate
At Common Law
• To Create Fee Simple Interest, need “and his Heirs.”
• Without language indicating fee simple, default estate is Life
Estate.
Olympic: (3B) Kermit “to Ernie for life, then to Burt
forever.” (Common Law)
• Ernie: Life Estate
• Burt: Vested Remainder in Life Estate
• Who Owns the Rest (rights to property after both Ernie & Burt
are dead)?
Olympic: (3B) Kermit “to Ernie for life, then to Burt
forever.” (Common Law)
• Ernie: Life Estate
• Burt: Vested Remainder in Life Estate
• Kermit: Reversion (in Frog Green!)
• Follows finite interest if not explicitly granted to someone else
State of the Title When Ernie Dies?
Olympic: (3B) Kermit “to Ernie for life, then to Burt
forever.” (Common Law)
• Burt: Life Estate
• Kermit: (retains) Reversion
• When Burt Dies?
Olympic: (3B) Kermit “to Ernie for life, then to Burt
forever.” (Common Law)
• Kermit (or Kermit’s Successors) have Fee Simple
Absolute
Olympic: (3B) Kermit “to Ernie for life, then to Burt
forever.” (Common Law)
• Ernie: Life Estate
• Burt: Vested Remainder in Life Estate
• Kermit: Reversion
Olympic: (3B) Kermit “to Ernie for life, then to Burt
forever.” (TODAY)
• Ernie: Life Estate
• Burt: ?
Olympic: (3B) Kermit “to Ernie for life, then to Burt
forever.” (TODAY)
• Ernie: Life Estate
• Burt: Vested Remainder in Fee Simple
- Default Estate Today is Fee Simple
• Kermit?
Olympic: (3B) Kermit “to Ernie for life, then to Burt
forever.” (TODAY)
• Ernie: Life Estate
• Burt: Vested Remainder in Fee Simple
• Kermit: Nothing (not easy being green)
State of the Title When Ernie Dies?
Olympic: (3B) Kermit “to Ernie for life, then to Burt
forever.” (TODAY)
• Burt: Fee Simple Absolute
When Burt Dies?
Olympic: (3B) Kermit “to Ernie for life, then to Burt
forever.” (TODAY)
• Burt: Fee Simple Absolute
When Burt Dies?
Property passes by Burt’s will or through intestacy to
Burt’s heirs.