help me with this property questions

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pleasetryagain
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help me with this property questions

Postby pleasetryagain » Wed Apr 27, 2011 11:06 pm

Lucy conveys blackacre "to Dudette for life, but if Dudette fails to use the property as a boutique, then Dude and his heirs may enter and take the property."

What interests do the following have?

Dudette:
Dude:
Dudes heirs:
Lucy:

chanel1285
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Re: help me with this property questions

Postby chanel1285 » Wed Apr 27, 2011 11:15 pm

Dudette: present possessory interest in life estate subject to executory limitation
dude/dudes heirs: shifting executory interest in fee simple absolute
Lucy: nothing

I think... I'm trying to re-learn this stuff now too.

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pleasetryagain
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Re: help me with this property questions

Postby pleasetryagain » Wed Apr 27, 2011 11:19 pm

chanel1285 wrote:Dudette: present possessory interest in life estate subject to executory limitation
dude/dudes heirs: shifting executory interest in fee simple absolute
Lucy: nothing

I think... I'm trying to re-learn this stuff now too.


I am pretty good with future interests.. the "may enter and take the property" threw me off.

dakatz
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Re: help me with this property questions

Postby dakatz » Wed Apr 27, 2011 11:20 pm

Dudette - Life estate subject to executory interest

This interest can be divested upon by Dude's interest. Note the break in the language with the comma and the "but". That part of the grant condition is not part of Dudette's interest, but part of Dude's)

Dude - Executory interest in fee simple absolute

This is the only part that is confusing me because it seems like something we may not have covered in my class. As far as I know, an executory interest takes possession immediately upon expiration of the prior estate. But this executory interest (which is must be since it can divest) states that Dude or his heirs "may enter and take the property". I'm not sure quite how this changes things so I apologize for any confusion my answer my cause. But I just wanted to preface this. There may be different types of executory interests, but I do not know about anything more than a plain old EI.

For the reasons mentioned earlier, this is an executory interest. Once again, the break in the language indicates that the condition is part of Dude's grant. Thus, it can divest upon Dudette's.

Dude's Heirs - Nothing

"and his heirs" are merely words of limitation to signify that a fee simple is being created. In fact, one does not have "heirs" until one is dead. They are not legally held to exist while one is alive. Thus, if Dude's kids see the land being ruined by Dudette, they cannot bring an action for waste or anything like that because they have no interest, present or future, in the estate. They will only gain such an interest when they become "heirs" (i.e. when Dude dies and passed along his future interest to them).

Lucy - Reversion in Fee simple absolute

From my understanding of this grant, Dude can only take the property if Dudette fails to use the property as a boutique. But if Dudette does use it as a boutique until the moment of her death, then Dude's interest will have definitely failed to vest. And the estate would revert back to the grantor with no other interest following hers. The way "then" is used here is a bit different than I have ever seen it in practice problems. Here, it only seems to indicate what would happen in the event of the condition being triggered, not necessarily what will happen upon natural expiration of the prior estate. Thus, it seems that Dude can only take possession based on the triggering of that condition.

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pleasetryagain
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Re: help me with this property questions

Postby pleasetryagain » Wed Apr 27, 2011 11:26 pm

thanks to both. if anyone else can shed some light on the whole "enter and take" thing it would be greatly appreciated.

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swc65
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Re: help me with this property questions

Postby swc65 » Wed Apr 27, 2011 11:35 pm

chanel1285 wrote:Dudette: present possessory interest in life estate subject to executory limitation
dude/dudes heirs: shifting executory interest in fee simple absolute
Lucy: nothing

I think... I'm trying to re-learn this stuff now too.



Lucy has future interest in fee simple absolute

If the condition stated never occurs and Dudette dies then it would revert back to Lucy.

Am I right on this or not? Help me out. I am trying to learn this crap too.
Last edited by swc65 on Wed Apr 27, 2011 11:37 pm, edited 1 time in total.

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swc65
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Re: help me with this property questions

Postby swc65 » Wed Apr 27, 2011 11:36 pm

pleasetryagain wrote:thanks to both. if anyone else can shed some light on the whole "enter and take" thing it would be greatly appreciated.



enter and take is no different than if the grant had just read "to Dudette for life, but if Dudette fails to use the property as a boutique, then to Dude and his heirs"

Or ""to Dudette for life, but if Dudette fails to use the property as a boutique, then to Dude"


Dudette has a present life estate subject to condition subsequent.

dakatz
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Re: help me with this property questions

Postby dakatz » Wed Apr 27, 2011 11:44 pm

swc65 wrote:
pleasetryagain wrote:thanks to both. if anyone else can shed some light on the whole "enter and take" thing it would be greatly appreciated.



enter and take is no different than if the grant had just read "to Dudette for life, but if Dudette fails to use the property as a boutique, then to Dude and his heirs"

Or ""to Dudette for life, but if Dudette fails to use the property as a boutique, then to Dude"


Dudette has a present life estate subject to condition subsequent.


This is not correct. Dudette can't have anything "subject to condition subsequent". Anything subject to a condition subsequent would create in a grantor a right of entry (or right of termination). But here, it is Dude, not the grantor, who has the ability to take the property (yet we cannot call it a right of entry since this is a future interest that can only be created in the grantor). You can't use "subject to condition subsequent" or "right of entry" when you are talking about the passage of an estate from a grantee to another grantee.

dakatz
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Re: help me with this property questions

Postby dakatz » Wed Apr 27, 2011 11:46 pm

swc65 wrote:
chanel1285 wrote:Dudette: present possessory interest in life estate subject to executory limitation
dude/dudes heirs: shifting executory interest in fee simple absolute
Lucy: nothing

I think... I'm trying to re-learn this stuff now too.



Lucy has future interest in fee simple absolute

If the condition stated never occurs and Dudette dies then it would revert back to Lucy.

Am I right on this or not? Help me out. I am trying to learn this crap too.


This I agree with. If Dude's interest definitely fails to vest (i.e. the condition is never triggered) then the property would revert back to Lucy, the grantor, who would hold it in fee simple absolute.

sarryn
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Re: help me with this property questions

Postby sarryn » Wed Apr 27, 2011 11:47 pm

Actually, when you're creating an interest subject to an executory limitation (interest passing to a third party on determinable/condition subsequent), the third party does not receive a "right of re-entry" or "right of entry" the property simply passes to him or her on the occurrence of the event. Therefore, I think, the "enter and take" is meant to be a trick. Instead, all it means is that on the happening of the condition, the interest instantly passes to Dude, he does not have to "re-enter and take.

edit: seems dakatz beat me to it.

sarryn
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Re: help me with this property questions

Postby sarryn » Wed Apr 27, 2011 11:49 pm

dakatz wrote:
swc65 wrote:
chanel1285 wrote:Dudette: present possessory interest in life estate subject to executory limitation
dude/dudes heirs: shifting executory interest in fee simple absolute
Lucy: nothing

I think... I'm trying to re-learn this stuff now too.



Lucy has future interest in fee simple absolute

If the condition stated never occurs and Dudette dies then it would revert back to Lucy.

Am I right on this or not? Help me out. I am trying to learn this crap too.


This I agree with. If Dude's interest definitely fails to vest (i.e. the condition is never triggered) then the property would revert back to Lucy, the grantor, who would hold it in fee simple absolute.


I disagree, Lucy has no interest. The interest is passed, and then there is a comma and states that if the property is failed to be used for boutique it will go to Dude, etc...

dakatz
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Re: help me with this property questions

Postby dakatz » Wed Apr 27, 2011 11:54 pm

sarryn wrote:
dakatz wrote:
swc65 wrote:
chanel1285 wrote:Dudette: present possessory interest in life estate subject to executory limitation
dude/dudes heirs: shifting executory interest in fee simple absolute
Lucy: nothing

I think... I'm trying to re-learn this stuff now too.



Lucy has future interest in fee simple absolute

If the condition stated never occurs and Dudette dies then it would revert back to Lucy.

Am I right on this or not? Help me out. I am trying to learn this crap too.


This I agree with. If Dude's interest definitely fails to vest (i.e. the condition is never triggered) then the property would revert back to Lucy, the grantor, who would hold it in fee simple absolute.


I disagree, Lucy has no interest. The interest is passed, and then there is a comma and states that if the property is failed to be used for boutique it will go to Dude, etc...


What makes you say Lucy has no interest? The grant merely states what happens in the event that the defeasibility condition is triggered. We can't read "then" in its typical sense (i.e. then upon termination of all prior estates), since it is used in this context specifically to tell us what happens if the defeasibility condition is triggered. There is nothing in here about what happens upon the natural termination of the estate. Compare the grant above to this:

"To Dudette for life, but if Dudette ever stops using the property as a boutique, then to Dude and his heirs"

In this grant, if you read then in its normal sense (then upon termination of all prior estates), you find out exactly what happens upon the termination of the prior estate whether it ends on its own, or whether it is divested early. In either case, it goes to Dude and his heirs and Lucy would have nothing. But my variation is not the same as what OP wrote.
Last edited by dakatz on Wed Apr 27, 2011 11:59 pm, edited 1 time in total.

random5483
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Re: help me with this property questions

Postby random5483 » Wed Apr 27, 2011 11:57 pm

pleasetryagain wrote:Lucy conveys blackacre "to Dudette for life, but if Dudette fails to use the property as a boutique, then Dude and his heirs may enter and take the property."

What interests do the following have?

Dudette:
Dude:
Dudes heirs:
Lucy:



Dudette: Life Estate subject to an executory limitation
Dude: Executory Interest.
Dude's heirs: Executory Interest.
Lucy/Lucy's heirs: Reversion.



Lucy and her heirs hold the future interest of reversion. Dude and his heirs only get the property if Dudette fails to use the property as a boutique. If Dudette uses the property as a boutique till her death, then Dude may never take the property. Thus, the reversion future interest by default is in Lucy. Also, the rule against perpetuities is not applicable for reversion.

I disagree with those who say Lucy has no interest. There is no conveyance to Dude UNLESS Dudette fails to meet the requirements of her life estate. By default when nothing is stated the reversion is to the conveyor/conveyor's heirs.

sarryn
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Re: help me with this property questions

Postby sarryn » Thu Apr 28, 2011 12:00 am

Dakatz: You are 100% correct, I misread the "to dudette for life" to read "do dudette."

I change my answer.

dakatz
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Re: help me with this property questions

Postby dakatz » Thu Apr 28, 2011 12:01 am

random5483 wrote:
pleasetryagain wrote:Lucy conveys blackacre "to Dudette for life, but if Dudette fails to use the property as a boutique, then Dude and his heirs may enter and take the property."

What interests do the following have?

Dudette:
Dude:
Dudes heirs:
Lucy:



Dudette: Life Estate subject to an executory limitation
Dude: Executory Interest.
Dude's heirs: Executory Interest.
Lucy/Lucy's heirs: Reversion.



Lucy and her heirs hold the future interest of reversion. Dude and his heirs only get the property if Dudette fails to use the property as a boutique. If Dudette uses the property as a boutique till her death, then Dude may never take the property. Thus, the reversion future interest by default is in Lucy. Also, the rule against perpetuities is not applicable for reversion.

I disagree with those who say Lucy has no interest. There is no conveyance to Dude UNLESS Dudette fails to meet the requirements of her life estate. By default when nothing is stated the reversion is to the conveyor/conveyor's heirs.


Dude's heirs DO NOT have anything. "and his heirs" are words of limitation, not words of purchase. It merely indicates that a fee simple is being granted. Heirs don't even exist as a legal concept until one is dead. If your father has a future interest in a piece of land, you CANNOT bring an action for waste since you are not an heir yet. Trust me on this one.
Last edited by dakatz on Thu Apr 28, 2011 12:02 am, edited 1 time in total.

sarryn
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Re: help me with this property questions

Postby sarryn » Thu Apr 28, 2011 12:02 am

random5483 wrote:
pleasetryagain wrote:Lucy conveys blackacre "to Dudette for life, but if Dudette fails to use the property as a boutique, then Dude and his heirs may enter and take the property."

What interests do the following have?

Dudette:
Dude:
Dudes heirs:
Lucy:



Dudette: Life Estate subject to an executory limitation
Dude: Executory Interest.
Dude's heirs: Executory Interest.
Lucy/Lucy's heirs: Reversion.



Lucy and her heirs hold the future interest of reversion. Dude and his heirs only get the property if Dudette fails to use the property as a boutique. If Dudette uses the property as a boutique till her death, then Dude may never take the property. Thus, the reversion future interest by default is in Lucy. Also, the rule against perpetuities is not applicable for reversion.

I disagree with those who say Lucy has no interest. There is no conveyance to Dude UNLESS Dudette fails to meet the requirements of her life estate. By default when nothing is stated the reversion is to the conveyor/conveyor's heirs.


I think you're right except heirs have no interest. Heirs are ascertained upon Dude's death.

random5483
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Re: help me with this property questions

Postby random5483 » Thu Apr 28, 2011 12:03 am

dakatz wrote:
random5483 wrote:
pleasetryagain wrote:Lucy conveys blackacre "to Dudette for life, but if Dudette fails to use the property as a boutique, then Dude and his heirs may enter and take the property."

What interests do the following have?

Dudette:
Dude:
Dudes heirs:
Lucy:



Dudette: Life Estate subject to an executory limitation
Dude: Executory Interest.
Dude's heirs: Executory Interest.
Lucy/Lucy's heirs: Reversion.



Lucy and her heirs hold the future interest of reversion. Dude and his heirs only get the property if Dudette fails to use the property as a boutique. If Dudette uses the property as a boutique till her death, then Dude may never take the property. Thus, the reversion future interest by default is in Lucy. Also, the rule against perpetuities is not applicable for reversion.

I disagree with those who say Lucy has no interest. There is no conveyance to Dude UNLESS Dudette fails to meet the requirements of her life estate. By default when nothing is stated the reversion is to the conveyor/conveyor's heirs.


Dude's heirs DO NOT have anything. "and his heirs" are words of limitation, not words of purchase. It merely indicates that a fee simple is being granted. Heirs don't even exist as a legal concept until one is dead. If your father had a future interest in a piece of land, you CANNOT bring an action for waste since you are not an heir yet. Trust me on this one.



I agree. Perhaps I should have clarified. If Dude is dead, then his heirs have the executory interest. I merely answered it using the template that was provided.

keg411
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Re: help me with this property questions

Postby keg411 » Thu Apr 28, 2011 12:06 am

Even though the grantor can convey the right of entry, I'm still pretty sure it's called an executory interest here.
Also, the life estate with the condition is tricky, because I didn't read it that way at first either.

dakatz
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Re: help me with this property questions

Postby dakatz » Thu Apr 28, 2011 12:16 am

Given that I had my property exam earlier today, I shouldn't be thinking about this stuff anymore. In fact, we had 2 questions based on these estate grants. Got a part of one wrong, and I'm mentally trying to recoup, thinking that if I get these examples right, it will retroactively change the wrong answer I stupidly typed in this morning. I'm guessing that getting just one piece wrong isn't too catastrophic, but this section was supposed to be money in the bank for me.

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swc65
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Re: help me with this property questions

Postby swc65 » Thu Apr 28, 2011 12:19 am

dakatz wrote:
swc65 wrote:
pleasetryagain wrote:thanks to both. if anyone else can shed some light on the whole "enter and take" thing it would be greatly appreciated.



enter and take is no different than if the grant had just read "to Dudette for life, but if Dudette fails to use the property as a boutique, then to Dude and his heirs"

Or ""to Dudette for life, but if Dudette fails to use the property as a boutique, then to Dude"


Dudette has a present life estate subject to condition subsequent.


This is not correct. Dudette can't have anything "subject to condition subsequent". Anything subject to a condition subsequent would create in a grantor a right of entry (or right of termination). But here, it is Dude, not the grantor, who has the ability to take the property (yet we cannot call it a right of entry since this is a future interest that can only be created in the grantor). You can't use "subject to condition subsequent" or "right of entry" when you are talking about the passage of an estate from a grantee to another grantee.



You right. Subject to executory interest is just a defensibility condition that when triggered goes to a third party (I just have it in my head as "det or subj to cond. sub. + 3rd party= EI)

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swc65
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Re: help me with this property questions

Postby swc65 » Thu Apr 28, 2011 12:21 am

Dont listen to the man behind the computer, I'm an idiot! :)
Last edited by swc65 on Thu Apr 28, 2011 12:39 am, edited 1 time in total.

random5483
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Re: help me with this property questions

Postby random5483 » Thu Apr 28, 2011 12:29 am

Not sure. Since there are two future interest involved here anyways. But, I am sure someone can clarify.

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swc65
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Re: help me with this property questions

Postby swc65 » Thu Apr 28, 2011 12:41 am

keg411 wrote:Even though the grantor can convey the right of entry, I'm still pretty sure it's called an executory interest here.
Also, the life estate with the condition is tricky, because I didn't read it that way at first either.


Isn't it just a redundancy. As in you could write "O to A and his heirs in fee simple." Which is the same as "O to A and his heirs" or "O to A"

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Richie Tenenbaum
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Re: help me with this property questions

Postby Richie Tenenbaum » Thu Apr 28, 2011 12:42 am

swc65 wrote:
So if you have O to A for life, then to B and her heirs. If B dies before A the property goes back to O upon A's death, not B's heirs. At least that's what I thought.


You would have:

O| A's LE | B has vested remained in FSA

B's vested remainder in FSA is heritable, devisable, and alienable, so his future interest will pass to his heirs on his death.

*If you need help remembering this, just keep in mind that vested remainders CANNOT be destroyed (though after executory interests became allowed, Vested remainders CAN be subject to total divestment (i.e. O to A for life, then to B and his heirs; if A sells alcohol on land then to C)).

**Another thing to keep in mind (which my be simpler than the above): If you have a vested remainder, you are not going to have a reversion.

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swc65
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Re: help me with this property questions

Postby swc65 » Thu Apr 28, 2011 12:54 am

Richie Tenenbaum wrote:
swc65 wrote:
So if you have O to A for life, then to B and her heirs. If B dies before A the property goes back to O upon A's death, not B's heirs. At least that's what I thought.


You would have:

O| A's LE | B has vested remained in FSA

B's vested remainder in FSA is heritable, devisable, and alienable, so his future interest will pass to his heirs on his death.

*If you need help remembering this, just keep in mind that vested remainders CANNOT be destroyed (though after executory interests became allowed, Vested remainders CAN be subject to total divestment (i.e. O to A for life, then to B and his heirs; if A sells alcohol on land then to C)).

**Another thing to keep in mind (which my be simpler than the above): If you have a vested remainder, you are not going to have a reversion.


You are right, I think i just misheard my professor with an example (or he mispoke- which has happened often). Also, we only learned present estates. But it is really tough to determine those without knowing all the other stuff, I think.




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