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Author Topic: Two future interests questions...  (Read 1054 times)

ajstyles

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Two future interests questions...
« on: December 03, 2006, 10:28:09 AM »
Confused about 2 questions:

1. O conveys blackacre to Church unless Church prohibits singing. At time of conveyance Church allows singing.

Why wouldn't this be a fee simple determinable?

2. O to A for life, then to B so long as B continues to care for my elderly mother.

Is B's interest vested remainder in fee simple determinable or life estate in fee simple determinable?

(* Yes the commas have been correctly placed / omitted)

J D

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Re: Two future interests questions...
« Reply #1 on: December 03, 2006, 11:00:58 AM »
Confused about 2 questions:

1. O conveys blackacre to Church unless Church prohibits singing. At time of conveyance Church allows singing.

Why wouldn't this be a fee simple determinable?

2. O to A for life, then to B so long as B continues to care for my elderly mother.

Is B's interest vested remainder in fee simple determinable or life estate in fee simple determinable?

(* Yes the commas have been correctly placed / omitted)


1.  It's a fee simple subject to a condition subsequent because the grant is worded using conditional ("unless") language.  It would be a fee simple determinable had the grant been phrased using temporal or durational language, e.g., "to church while church prohibits singing."

2.  B has a vested remainder subject to complete divestment because of the condition subsequent (i.e., he has to care for O's mother, and if he doesn't he loses his interest). 
"I never think of the future.  It comes soon enough."--Albert Einstein

jgsmith

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Re: Two future interests questions...
« Reply #2 on: December 03, 2006, 07:39:36 PM »
Sorry JD, but you are wrong about 1. 1 is a Fee Simple Determinable. "Unless" isn't conditional, but it is a word of duration. Words of duration: "so long as" "during" "while" "unless" and "until."


rhapsody

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Re: Two future interests questions...
« Reply #3 on: December 03, 2006, 10:42:54 PM »
I agree with jgsmith on case #1.  Remember that O has a possibility of reverter.

As to case #2 -- it can't be subject to divestment; O used words of duration in the grant to B, so the possessory estate is determinable and O again has a possibility of reverter.  The problem is that O seems to have given B a vested remainder in life estate pur autre vie (O's elderly mother's life), but also determinable (B could lose possession before O's mother dies).  It is at least clear that B can only fulfill the condition during his own life -- but then again, O did not explicitly say "to B for life."  That would argue in favor of B's interest being a vested remainder in fee simple determinable.  Since fee simple estates are preferred over life estates, I would go with the fee simple determinable, but I think it could be either.  Anybody else have an opinion?

jgsmith

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Re: Two future interests questions...
« Reply #4 on: December 03, 2006, 11:12:51 PM »
I agree with Rhapsody for #2. The modern trend is to find a fee simple over a life estate unless the Grantor clearly indicates the conveyance to be a life estate. In my opionion, O has given B a vested remainder in fee simple determinable. The phrase "to B"  and "as long" indicate this. As long as he cares for O's mother, he retains the estate, but if he ceases to care for her the state automatically reverts (because of the possibility of reverter) to O (if he isn't alive it will go to his heirs)

J D

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Re: Two future interests questions...
« Reply #5 on: December 03, 2006, 11:26:46 PM »
Let me just lay out my thought processes: I don't see how "unless" is durational rather than conditional.  It's a key word used to frame conditional statements: "If X then Y" is logically equivalent to saying "It is not the case that X unless Y."  If you could provide some sort of citation or link, it would help me see your point, but I'm inclined to just disagree with you there, as a matter of logic and English.

As for example 2, my reasoning is this: it's obviously a remainder being given to B (because a fee simple cannot follow a life estate, and it's an interest being created in someone other than the grantor).  The question then becomes whether it is contingent or vested.  It's not contingent, because it is given to an ascertained person, and not subject to any condition precedent (he doesn't have to do anything in order to earn the remainder; it's already his).  But it is subject to divestment in that he can lose it completely if he fails to care for O's mother; this is a condition subsequent on which his remainder depends, and it is a way that his future interest can be cut short, even after it's been given to him (and even before A dies, I would think).  I suppose you could say in the alternative that he has a vested remainder in fee simple determinable, but I'm not sure what practical difference it makes: if he has a vested remainder subject to divestment, then wouldn't O have a reversion anyway (which seems to be just as automatic as a possibility of reverter, from what I remember)?

In any case, ask your property professor.  It's been a year and I was never thrilled for this stuff anyway.  :P
"I never think of the future.  It comes soon enough."--Albert Einstein

rhapsody

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Re: Two future interests questions...
« Reply #6 on: December 04, 2006, 09:41:44 AM »
It's arguable whether the law of possessory estates and future interests makes sense entirely as a matter of logic and English.  ;)

The other reason the future interest in case #1 is a fee simple determinable is that there is no comma separating the grant to Church from the condition "unless Church prohibits singing."  The time limit is contained in the grant itself.  Look up Peter T. Wendel, A Possessory Estates and Future Interests Primer (2d ed. 2005) at chapter 3.  This is an excellent book with really great examples.  It doesn't mention "unless" in particular, but I don't think "unless" is functionally different from "as long as" or "while" when there is no comma after the grant and preceeding the condition.

In case #2, if B's interest were a vested remainder subject to divestment, it would have to be followed by a springing or shifting executory interest.  Both of these are future interests in grantees, not the grantor.  In case #2, O did not specify who holds the future interest following B's, so it goes back to O, and therefore must be either a reversion, a possibility of reverter, or a right of re-entry.  See Wendel, ch. 7.

eli250

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Re: Two future interests questions...
« Reply #7 on: December 04, 2006, 11:17:48 PM »
My casebook specifically lists "unless" as an indication of fee simple determinable.  Glad I read this too, because I assumed it would lead to condition subsequent.

J D

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Re: Two future interests questions...
« Reply #8 on: December 04, 2006, 11:43:13 PM »
My casebook specifically lists "unless" as an indication of fee simple determinable.  Glad I read this too, because I assumed it would lead to condition subsequent.

Which casebook do you use out of curiosity?  I think we used Dukeminier and Krier 5th ed. last year, and according to my notes "until" made a fee simple determinable, but it didn't address "unless" at all.  ???

Glad I'm not going into real estate law.  ::)
"I never think of the future.  It comes soon enough."--Albert Einstein

eli250

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Re: Two future interests questions...
« Reply #9 on: December 05, 2006, 09:28:40 PM »
My casebook specifically lists "unless" as an indication of fee simple determinable.  Glad I read this too, because I assumed it would lead to condition subsequent.

Which casebook do you use out of curiosity?  I think we used Dukeminier and Krier 5th ed. last year, and according to my notes "until" made a fee simple determinable, but it didn't address "unless" at all.  ???

Glad I'm not going into real estate law.  ::)

My prof. wrote the case book.  His name is Jim Smith and he is a very smart man, but a terrible teacher.  He's one of those guys who is a professor so he can do all the research and publishing.  He doesn't care at all about the teaching.