Property Class Notes 2/20/04

8. “Oglethorpe to Alec and his heirs provided the land is used for residential purposes”: Oglethorpe grants Alec a fee simple subject to a condition subsequent. Oglethorpe retains the right of entry.

9. “Oglethorpe to Adele and her heirs. Adele promises that the land will be used for residential purposes”: This language is ambiguous. We could interpret it generously as a fee simple determinable or fee simple subject to a condition subsequent. Or we could interpret it as a gift of an estate in fee simple absolute followed by a promise without consideration. Or we could interpret it as the two sides of a contract. [Braunstein says that Adele has a fee simple absolute, but Oglethorpe may have some contract rights. Adele would also have contract obligations. But there’s some question whether the contract is enforceable.]

10. “Oglethorpe to Adelaide and her heirs. Adelaide contracts, in consideration for the transfer, that the property will be used only for residential purposes”: This seems more clearly like a grant to Adelaide of an estate in fee simple absolute plus a contract. The remedy if Adelaide fails to use the property for residential purposes might be an action for breach of contract rather than an action to quiet title.

11. “Oglethorpe to Ariel for life, then to Brant and his heirs. Brant dies before Ariel. His will devises all of his property to your law school. Ariel then dies”: Oglethorpe grants Ariel a life estate. Brant gets a vested remainder in fee simple absolute. When Brant dies, OSU gets the vested remainder in fee simple absolute. Ariel retains the life estate. When Ariel dies, OSU’s future interest matures into a possessory estate in fee simple absolute. [Oglethorpe retains nothing.]

12. “Oglethorpe to Ava for life. Before either he for Ava dies, Oglethorpe conveys all of his property to Happy Hearts Lifecare Center”: Oglethorpe grants a life estate to Ava and retains a reversion in fee simple absolute. Then Oglethorpe gives the reversion to the Center [and Oglethorpe has nothing left]. Upon Ava’s death, the Center will have a possessory estate in fee simple absolute.

13. “Oglethorpe to Alonzo for life. Alonzo dies with a will leaving all of his property to his wife”: Oglethorpe grants Alonzo a life estate. Oglethorpe retains a reversion in fee simple absolute. Upon Alonzo’s death, Oglethorpe regains possession in fee simple absolute. The wife gets nothing.

14. “Oglethorpe to Antonio so long as he remains in Missouri”: This is highly ambiguous and problematic. The simplest thing for a judge to do at common law might be to ignore the condition and say that this grants Antonio a life estate because it doesn’t say “to Antonio and his heirs”. Oglethorpe would then have a reversion. On the other hand, the words “so long as” generally indicate a fee simple determinable. If Antonio was granted a fee simple determinable, then Oglethorpe would retain the possibility of reverter. But the problem is just how to interpret the condition. Does it mean that Antonio must never set foot outside of Missouri? Does it mean Antonio can never establish a residence or domicile outside of Missouri? If Antonio dies, does he “remain” in Missouri? What if he’s buried in Missouri? What if his body doesn’t leave, but Missouri ceases to be Missouri? Anyway, I don’t think there’s any such thing as a delifeable life estate. [Do we presume it’s a fee simple unless a contrary intention appears? Braunstein says that Oglethorpe’s estate could become possessory under two different conditions: either Antonio leaves Missouri or dies. So Oglethorpe would seem to have both a reversion and the possibility of reverter.]

15. “Oglethorpe to Antonio and his heirs so long as he remains in Missouri”: This has all the problems of the last example, except there’s no ambiguity as to the life estate. [There’s no life estate determinable in this case. It must be a fee simple defeasible, but the condition is ambiguous and poorly drafted. So Antonio has a fee simple determinable and Oglethorpe has the possibility of reverter.]

16. “Oglethorpe to Abner for life, then to Belinda, then to Charlotte and her heirs”: Clearly, Oglethorpe grants Abner a life estate. Then, even though it’s not explicit like it is with the first life estate, it must be the case that Oglethorpe grants Belinda a vested remainder for life (if that’s the right way to say it [it is]). “To Belinda” can’t be interpreted as a vested remainder in fee simple absolute given what follows. Finally, Charlotte gets a vested remainder in fee simple absolute. [Note that Belinda must outlive Anya in order to get her life estate.]

17. “Oglethorpe to Anya for life, then to Booker and his heirs if Booker survives Anya, but if Booker does not survive Anya, then to Oglethorpe”: Oglethorpe grants Anya a life estate. Booker gets a contingent remainder in fee simple absolute. Oglethorpe gets a reversion in fee simple absolute. [Notice that the words “but if Booker does not survive Anya” don’t seem to have any independent force. If those words were not there, you’d get the same result. But usually when we interpret text, we assume that everything means something. But there really isn’t any better way to interpret this.]

18. “Oglethorpe to Antoinette and her heirs so long as the land is farmed. After this conveyance, Oglethorpe transfers all of his property to his son Bob. Oglethorpe then dies leaving a will that transfers all of his property to the Humane Society. Oglethorpe is survived by his son Bob and his wife Corabeth. Antoinette reads of Oglethorpe’s death in the newspaper and stops farming. A week later, a troop of Girl Scouts camping on the land suffers severe but nonfatal injuries due to a landslide. They want to know who owns the land so that they can file suit”: Oglethorpe grants Antoinette a fee simple determinable. Oglethorpe retains the possibility of reverter. Oglethorpe then transfers the possibility of reverter to Bob. Bob still has the possibility of reverter at the time of Oglethorpe’s death. When Antoinette stops farming, the property automatically reverts to Bob. Therefore, Bob owns the land at the time of the landslide. [There’s an issue here! It depends on whether the possibility of reverter is alienable or not! Before 1960, the possibility of reverter was not alienable inter vivos in Ohio and thus Oglethorpe would still have the possibility of reverter. So either Bob or the Humane Society would end up with the possibility of reverter, or maybe the possibility of reverter isn’t devisable either. In that case, Bob and Corabeth would be the heirs and would have the possibility of reverter. So Bob got the possibility of reverter if it was alienated, the Humane Society got the possibility of reverter by will, or Bob and Corabeth get the possibility of reverter by inheritance.]

What if I own some land and you want to buy it, but I don’t want any industrial stuff on the land. I make you promise to use the land for residential purposes only. But say you then sell it to some third party. Can that third party build a gas station on that land? The third party is not in privity of contract. One way to handle this is to use some determinable fee. But then the remedy in case of breach is very severe: you lose everything, and all the property will revert to me!

But there are other ways to handle the same issue that we will cover when we do equitable servitudes.

The vested remainder is a property right even though it’s not a possessory right. It can be sold, transferred, or devised in a will.

A deed is effective when it’s delivered. A will has no legal effect so long as the testator is alive.

Maybe there is such a thing as a life estate determinable! Yeah, there is! That’s what Braunstein says. There could even be something like a fee tail determinable. Yikes!

There could also be a lease subject to a condition subsequent! There could be a life estate subject to an executory limitation! All kinds of crazy crap!

“Did you take note of that? I don’t want you coming back to me later and saying ‘you lied twice’.”

No matter what language is used, the property interest that the grantor retains will always be a reversionary interest.

There are three ways to transfer property. You can alienate it, you can devise it, or you can inherit it.

To alienate property means to sell it inter vivos, while you’re alive. To devise property means to dispose of property by will. If you inherit property, it means you die without a will and it goes to your statutory heirs.

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