xlawschoolhopefulx wrote:musicfor18 wrote:brotherdarkness wrote:musicfor18 wrote:brotherdarkness wrote:Sorry for the big pictures. Idk how to fix so whatever.
Anyway that appears to be creating the right of re-entry in the third party without magic words. But the lecture notes say that you must say "has the right to re-enter."
ETA -- Am I violating copyright laws by posting these pics? Fuck. I'll take it down shortly. For ppl with Barbri books, this is Real Property Set 1 Question 8.
There's no "right of re-entry" in a third party. That's an executory interest.
Okay so if the condition subsequent is in a third party (i.e., executory), then no magic words. But if it's in the grantor, then magic words?
Not exactly. The condition subsequent isn't "in a party." It's just a condition that will cause the interest to shift somehow. The question is who does it shift to? If it shifts to a third party, then the third party's interest is called an "executory interest." By definition, that interest wouldn't exist unless you used some words to express it (i.e., "but if . . . . . , then to B"). If it shifts back to the grantor, it's a right of re-entry. The question is whether there will be a right of re-entry if the grant doesn't expressly say so. Barbri seems to say no; you have to expressly reserve it in the grant. If you don't, then the court is left to figure out how to construe the grant. For example: "To A, provided that A never serves coffee on the premises." Is it merely precatory language that the court will strike, giving A a fee simple? Or the court may construe it as a covenant not to serve coffee on the premises, etc. But, at least according to Barbri's outline and Franzese's lecture, the court will not imply a right of re-entry in the grantor.
Now I'm confusing myself reading these comments.
Let's say the grant is "To A, provided that A never serves coffee on the premises." Would this violate RAP, since presumably coffee could be served on the premises for 50+ years and then suddenly they stop serving it? If so, couldn't it never be anything other than a FS to A, even if it expressly grants an executory interest in a third party or a right of reentry in the grantor? What am I missing?
My understanding is that the RAP only applies to contingent remainders, executory interest, vested remainders subject to open, and options, rights of first refusal, and the like. Since this would revert back to the grantor, the RAP does not apply. Can someone confirm?