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VISITORS FROM SECTION J:SEE ME FOR AVAILABLE SEATS Bach, Concertos for Two Harpsichords (1732-36) Performed 1980 THE ENGLISH CONCERT Trevor Pinnock, Conductor, Harpsichord Kenneth Gilbert, Harpsichord

Mahrenholz v. County BoardDQ 97 RECAP/COMPLETION

GRANT VIOLATED Ms-FS Absolute 9/77 HH release to SD? Ms - FS Absolute NO VIOLATION SD-FSD HH-PR 9/77 HH release to SD? SD - FS Absolute Mahrenholz v. County BoardMAJOR EVENTS: FSD +PR

Mahrenholz v. County BoardMAJOR EVENTS: FSCS +RE • 3/51: Grant to SD#1: SD-FSCS Hs-RE • 2/69: Mrs.H dies intestate; HH sole heir? • 5/73: Property used for storage only • 5/77: HH conveys interest to Ms • 9/77: HH releases interest to SD#1

Mahrenholz v. County BoardMAJOR EVENTS: FSCS +RE • 2/69: Mrs.H dies intestate; HH sole heir SD-FSCS HH-RE • 5/73: Property used for storage only? (2 Possibilities: Violation or Not) • 5/77: HH conveys interest to Ms • 9/77: HH releases interest to SD#1

GRANT VIOLATED SD-FSCS HH-RE5/77 HH --> Ms? NO VIOLATION SD-FSCS HH-RE5/77 HH --> Ms? Mahrenholz v. County BoardMAJOR EVENTS: FSCS +RE2/69: SD-FSCS HH-RE

GRANT VIOLATED SD-FSCS HH-RE 5/77 HH --> Ms? SD-FSCS HH-RE 9/77 HH release to SD? NO VIOLATION SD-FSCS HH-RE 5/77 HH --> Ms? SD-FSCS HH-RE 9/77 HH release to SD? Mahrenholz v. County BoardMAJOR EVENTS: FSCS +RE

GRANT VIOLATED SD-FSCS HH-RE 9/77 HH release to SD? SD - FS Absolute NO VIOLATION SD-FSCS HH-RE 9/77 HH release to SD? SD - FS Absolute Mahrenholz v. County BoardMAJOR EVENTS: FSCS +RE

Mahrenholz: Summary of Possibilities

Mahrenholz v. County BoardDQs 98-101: DistinguishingFee Simple Determinable from Fee Simple on Condition Subsequent (Eagles)

Mahrenholz v. County BoardThe court says (Top para. P583) : “The type of interest held governs the mode of reinvestment with title if reinvestment is to occur.”DQ98. What does the court mean by “reinvestment” ?

DQ99: (P584 (3d full para.) “In Northwestern Univ. …, a conveyance was ‘made upon the ex-press condition that… Wesley Hospital… shall erect a hospital building on said lot … and that on the failure of … Wesley Hospital to carry out these conditions the title shall revert to North-western University.’ This language cannot be interpreted as creating anything but a fee simple subject to a condition subsequent…” WHY?

DQ100: In a deleted passage in its discuss-ion of McElvain, the court says that “as an action in ejectment was brought…, the dif-ference between a fee simple determinable and a fee simple subject to a condition sub-sequent would have no practical effect ….”Why does it believe this?

Mahrenholz P583: “[A] grantor should give a FSD if he intends to give property for so long as it is needed for the purposes for which it is given and no longer, but he should employ a FSCS if he intends to compel compliance with a condition by penalty of a forfeiture.” - Pretty fine distinction- Court is describing idealized use of the forms- Can use to argue a grant is FSD or FSCS

Use a FSD “to give property for so long as it is needed for the purposes for which it is given and no longer” • To Xavier, so long as he operates his dental practice on the premises. • To Yolanda, so long as she doesn’t remarry. • To Zebulon University, so long as it is used as a research laboratory.

Use a FSCS “to compel compliance with a condition by penalty of a forfeiture.” • To Xavier, but if the property is ever used for commercial purposes … • To Yolanda, but if alcohol is ever used on the premises … • To Zebulon University for construction of a science building, but if the building is not completed within 5 years or if it ever ceases to be used for educational purposes …

Mahrenholz v. County Board To the Trustees of School District No. 1: "to be used for school purpose only; otherwise to revert to Grantors herein.” DQ101: Fee Simple Determinable or Fee Simple on Condition Subsequent?

"to be used for school purpose only; otherwise to revert to Grantors herein.”: FSD • “only” suggests automatic • condition in 1st clause • “to revert” (v. “may re-enter”) suggests automatic • similar grants held FSD

"to be used for school purpose only; otherwise to revert to Grantors herein.” FSCS: • 2 clauses usually used for FSCS • No time words • Most states presume FSCS

Mahrenholz v. County BoardDQ102: Under what circumstances might the distinction between a fee simple determinable and a fee simple on condition subsequent be significant?

FSD v. FSCS: Consequences • Transferability after breach (Mahrenholz)

FSD v. FSCS: Consequences • Transferability after breach • Adverse Possession

FSD v. FSCS: Consequences • Transferability after breach • Adverse Possession • Income from land after breach (to grantor if FSD)

FSD v. FSCS: Consequences • Transferability after breach • Adverse Possession • Income from land after breach • Waiver/Estoppel by future interest holder (possible if FSCS)

Mahrenholz v. County BoardFALCONS: DQs 102-104(not 105)

DQ102: Why do so many grants fail to indicate clearly which interest is intended?

DQ103: IS STORAGE A “SCHOOL PURPOSE”? PARTIES’ LIKELYARGUMENTS?

DQ103:IS STORAGE A “SCHOOL PURPOSE”?What legal research could you do to help resolve this question?

DQ103:IS STORAGE A “SCHOOL PURPOSE”?What legal research could you do to help resolve this question?CASES ON “SCHOOL PURPOSE”CASES ON “CHURCH PURPOSE” ETC.

DQ103:IS STORAGE A “SCHOOL PURPOSE”?What factual research could you do to help resolve this question? (What facts matter?)

IS STORAGE A “SCHOOL PURPOSE”?What facts matter?: GRANTOR’S INTENT • CHECK GRANT OR RELATED DOX • WITNESSES TO TRANSACTION • ASK GRANTOR IF ALIVE • WITNESSES RE GRANTOR BELIEFS

DQ104. Why should we allow grantors to have any control at all of what happens to land after they have died?Come back to later w Shapira

CHECK COURSE PAGE FOR LOGISTICAL INFO: • CHAPTER 7: • Info on Exam • 2007 Exams • Schedule for Additional Postings • Written Assignments • E-Mail Qs/Responses re Assignments #4 & #5 • Prior Years’ Comments & Best Answers re #2 & #3 • Info on Picking Up/Getting Scores for Submitted Assignments

Back to OWLS:(7H): Thelma conveys "to Louise for 99 years if Louise so long live." Louise?

(7H): Thelma conveys "to Louise for 99 years if Louise so long live." What other interests are there? Louise: Term of years determinable.

(7H): Thelma conveys "to Louise for 99 years if Louise so long live." Louise: Term of years determinable. Thelma:Possibility of Reverter + Reversion = Reversion (Merger)

DOCTRINE OF MERGER If one person becomes the owner of two contiguous interests, the interests will “merge”

DOCTRINE OF MERGER If one person becomes the owner of two contiguous interests, the interests willmerge. Example: Eric has a life estate. Vanessa holds the reversion that follows it. If Eric purchases the reversion from Vanessa, it merges with his life estate and he will have a fee simple absolute.

DOCTRINE OF MERGER **MERGE** If one person becomes the owner of two contiguous interests, the interests will merge.

PROBLEM 7I Featuring Falcons

(7I) O conveys "to J and her heirs so long as the premises are not used for sale of beer, wine, or liquor, and if beer, wine, or liquor is sold on the premises, O retains a right to re-enter the premises." J opens a restaurant that serves several dishes cooked with wine or flamed with brandy and at Sunday brunch offers a free glass of champagne. The restaurant is successful, and 11 years after its opening D wants to buy it and add a bar. Advise D.

PROBLEM 7I:MULTI-STEP ANALYSIS • FSD or FSCS? • CONDITION VIOLATED? • EFFECT OF VIOLATION? • ADVICE RE PURCHASE

PROBLEM I:MULTI-STEP ANALYSIS • FSD or FSCS? • CONDITION VIOLATED? • EFFECT OF VIOLATION? • ADVICE RE PURCHASE

(I): O “To Julia and her heirs so long as the premises are not used for sale of beer, wine, or liquor, and if beer, wine, or liquor is sold on the premises, Orrin retains a right to re-enter the premises." Does Orrin’s interest vest automatically (FSD) or does he have to act (FSCS)?

FSD or FSCS? “So long as” & condition built into 1st clause suggest FSD Moment of violation clear, so can be FSD “Right to re-enter” & 2 clauses suggest FSCS Most states: presumption favoring FSCS Mahrenholz: More like punishment than purpose

(7I): O “To J … so long as … premises are not used for sale of beer, wine, or liquor, and if beer, wine, or liquor is sold on ... premises O retains a right to re-enter….”DOES ITVIOLATE GRANT IF J’s restaurant:(i) serves several dishes cooked with wine or flamed with brandy? (ii) at Sunday brunch offers complimentary glass of champagne?

IFVIOLATION, RESULT?If O has Possibility of Reverter?O gets legal title at moment of violation.If sufficient time has passed, J may have title through adverse possession

IFVIOLATION, RESULT?If O has Right of Entry (RE)?Assuming O has not acted, O still has REIf O is aware of Julia’s use of alcohol, may be held to have waived the right to enforce regarding these kinds of uses of alcohol.

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