> ## Documentation Index
> Fetch the complete documentation index at: https://lawmaxxing.com/llms.txt
> Use this file to discover all available pages before exploring further.

# Session 07 Notes

> Organized class notes for Property session 07

## Waste

**Remedies for Waste**: Injunction or damages (p. 289)

### Three Types of Waste (p. 292)

1. **Affirmative Waste**
   * Liability from injurious acts with more than trivial effects
   * Generally means acts that substantially reduce property value

2. **Permissive Waste**
   * Essentially negligence
   * Failure to maintain property

3. **Ameliorative Waste**
   * Tenant increases (rather than decreases) market value of the land

## Defeasible Estates (p. 294-295)

### Fee Simple Determinable

**Definition**: A fee simple that will end automatically when a stated event happens

**Key Characteristics**:

* **Durational language**: "so long as," "while," "during," "until"
* **Automatic forfeiture** upon breach
* Grantor retains **possibility of reverter**

**Example**: O conveys Blackacre to Hartford School Board "so long as the premises are used for school purposes"

* If school use ceases, fee simple automatically ends
* Property reverts to O automatically

**Important Distinction**:

* Words of **motivation** or **desire** are insufficient
* "For school purposes" (without durational language) = fee simple absolute
* "So long as used for school purposes" = fee simple determinable

### Fee Simple Subject to Condition Subsequent

**Key Characteristics**:

* **Conditional language**: "but if," "on condition that," "provided that"
* **NOT automatic** - requires grantor to exercise right of entry
* Grantor has **right of entry** (also called right of re-entry)
* Discretionary - grantor chooses whether and when to re-enter

**Example**: O conveys to Hartford School Board "but if the premises are not used for school purposes, grantor has the right to re-enter and retake the premises"

**Key Difference from Determinable**:

* Condition subsequent requires **affirmative action** by grantor
* NOT automatic forfeiture
* Property interest is **voidable** (not void)

### Fee Simple Subject to Executory Limitation

**Key Characteristic**: Interest goes to **third party** (not back to grantor)

**Example**: O to A, but if alcohol is consumed, then to B

* A has fee simple subject to executory limitation
* B has executory interest

## Case Law

### Paul Smith's College v. Roman Catholic Diocese (p. 298)

**Facts**:

* 1937 deed conveyed land to Diocese "for so long as the premises shall be used for church purposes"
* Deed stated if not used for church purposes, "title shall revert to Paul Smith's College"
* Also stated grantor has "right to re-enter and retake possession"
* Diocese ceased using property as church in 1970s

**Issue**: Fee simple determinable or fee simple subject to condition subsequent?

**Holding**: Fee simple determinable

**Key Language Analysis**:

* **"For church purposes only"** - strict limitation
* **"Shall be void"** (not "voidable") - indicates automatic forfeiture
* **"So long as"** - durational language
* Mixed with "right to re-enter" language (typically indicates condition subsequent)

**Court's Reasoning**:

* "Void" vs. "voidable" distinction is controlling
  * **Void** = automatic termination (determinable)
  * **Voidable** = can be terminated at grantor's discretion (condition subsequent)
* "Only" shows strict limitation
* "Shall be void" indicates automatic forfeiture
* Despite "right to re-enter" language, the "void" terminology controls

**Exam Tip**: When analyzing mixed language:

1. Look for "void" vs. "voidable"
2. Durational words ("so long as," "only") suggest determinable
3. Right of re-entry suggests condition subsequent
4. Court must determine which language controls based on grantor's intent

### Mountain Brow Lodge (Odd Fellows) v. Toscano (p. 305)

**Facts**:

* Deed stated property "restricted for the use and benefit of second party \[lodge] only"
* Also stated: "in the event of sale or transfer by second party, same is to revert to first parties"

**Issue**: Does the restriction create a defeasible fee or a restraint on alienation?

**Court's Analysis**:

**Second Part (Sale/Transfer Clause)**:

* "In the event of sale or transfer" = clear **restraint on alienation**
* **INVALID** - crossed out by court

**First Part (Use Restriction)**:

* "Restricted for use and benefit of second party only"
* Argument: implies lodge can't sell (wouldn't be for their use anymore)
* Court rejected this interpretation

**Holding**: Fee simple subject to condition subsequent

**Reasoning**:

1. Second clause explicitly penalized sale/transfer (restraint - invalid)
2. Grantor wouldn't be repetitive in first and second clauses
3. First clause creates condition on **use**, not on **transfer**
4. Intent was to restrict use to lodge purposes, NOT to prevent alienation
5. Dissent argued it's an indirect restraint on alienation

**Default Rule for Ambiguity (p. 302)**: In cases of hopeless ambiguity, presume **fee simple subject to condition subsequent**

* Rationale: Avoids harsh automatic forfeiture
* Protects grantee who may not be aware of consequences
* Defaults to requiring grantor's affirmative action

### Conflicting Language Example (p. 302-303)

**Hypothetical**: O to A "so long as premises not used for sale of beer, wine, or liquor, and if such beverages are sold, O retains right to re-enter"

**Problem**: Mixed signals

* "So long as" = determinable language
* "Right to re-enter" = condition subsequent language

**Professor's Analysis**:

* Book authors: "so long as" controls → determinable
* Professor's view: "right to re-enter" controls → condition subsequent
* Latter part shows O's intent about what happens on breach

**Additional Complexity**: A opens restaurant that:

* Cooks with wine/brandy
* Offers complimentary champagne with brunch

**Question**: Is this a breach?

* Not "selling" liquor (champagne is free, cooking uses it)
* Could argue champagne price is included in brunch cost

## Transferability of Future Interests (p. 301)

**Modern/Majority Rule**:

* Possibility of reverter and right of entry are **transferable** inter vivos and devisable

**Common Law/Minority Rule**:

* These interests are NOT transferable inter vivos or devisable
* Exception: Can transfer to owner of possessory fee

## Condemnation of Defeasible Fees (p. 311)

### Ink v. City of Canton

**Issue**: When government takes land held in defeasible fee via eminent domain, how is compensation divided?

**Majority Rule**:

* Holder of defeasible fee gets **100% of fair market value**
* Rationale: Defeasible fee could last forever; future interest holders may never take

**Minority Rule (Ohio Supreme Court)**:

* Compensation should be **apportioned** between:
  * Defeasible fee holder
  * Future interest holders (possibility of reverter, etc.)
* Rationale: Fairness and equity
  * Especially where defeasible fee holder received property as gift (paid nothing)
  * Prevents unjust windfall

**Holding**: Ohio court adopted minority view - compensation divided

## Restraints on Marriage (p. 318-319)

**Public Policy**: Government favors promotion of marriage

**Two-Part Analysis**:

1. **Purpose of coercing abstention from marriage** (INVALID)
   * "To A for life, but if A marries, then to B"
   * Language: "but if" - penalizes marriage
   * Intent: Punishment for marrying

2. **Purpose of providing support until marriage** (VALID)
   * "To A for life so long as A remains unmarried, then to B"
   * Durational language: "so long as"
   * Intent: Support A until spouse can provide support
   * Presumption: Spouse will provide support after marriage

**Historical Context**: Pre-modern law when women couldn't own property and needed male support

## Review Problems (p. 319)

### Problem 1

**Conveyance**: O to A and her heirs, but if Blackacre used for non-agricultural purposes, O has right to re-enter

**Analysis**:

* O: Fee simple absolute (initially)
* A: **Fee simple subject to condition subsequent**
  * "Her heirs" = fee language
  * "But if" = conditional language
  * Limited by use restriction
* O: **Right of entry**

### Problem 2

**Facts**: Same as Problem 1, but A begins construction of residences; O dies and devises estate to B

**Analysis**:

* A: Still has fee simple subject to condition subsequent (breached)
* B: Inherits O's **right of entry**
* B can exercise right at any time
* If B exercises right, B gets **fee simple absolute**

### Problem 3

**Conveyance**: O to A and her heirs so long as Blackacre used for residential purposes only

**Analysis**:

* O: Fee simple absolute (initially)
* A: **Fee simple determinable**
  * "So long as" = durational language
  * "Only" = strict limitation
* O: **Possibility of reverter**

### Problem 4

**Facts**: Same as Problem 3, but A builds factory; O dies and devises estate to B

**Analysis**:

* A breached → automatic forfeiture (determinable)
* Property automatically reverts
* B: **Fee simple absolute** (inherited what became O's possessory estate after automatic reversion)

### Problem 8

**Conveyance**: O to A and his heirs, but if A ever drinks alcohol, then to B and her heirs

**Analysis**:

* O: Fee simple absolute (initially)
* A: **Fee simple subject to executory limitation**
  * Goes to third party (B), not back to O
* B: **Executory interest** in fee simple absolute

**Later**: B conveys interest to C

* C: Executory interest in fee simple absolute

**Later**: A drinks whiskey

* Breach occurs
* C: **Fee simple absolute** (executory interest divests A)

**Important Limitation**: Condition is "if **A** drinks alcohol"

* Only applies to A personally
* If A dies without drinking, A's heirs get fee simple absolute
* B's (or C's) executory interest falls away
* Executory interest can only divest **A**, not A's heirs

## Future Interests - Introduction

**Definition**: What someone could potentially get later (not present possessory interest)

**Focus**: Analyzing interests of O, B, C, D (NOT A - A has present possessory interest)

### Remainders

**Definition**: Future interest in a **grantee** that is capable (but not certain) of becoming possessory upon **natural expiration** of prior estate

**Key Requirement**: Natural expiration = **death**

* Remainder NEVER follows a **fee** (fees don't naturally expire)
* Remainders follow **life estates**

**Two Categories**:

1. **Vested Remainders**
2. **Contingent Remainders**

### Vested Remainders - Three Types

#### 1. Indefeasible Vested Remainder

**Characteristics**:

* Grantee is **ascertainable** (known person)
* **No conditions** to fulfill before taking
* **Guaranteed** to get it when prior estate ends

**Example 1**: O to A for life, then to B

* A: Life estate (measuring life = A)
* B: **Indefeasible vested remainder in fee simple absolute**

**Example 2**: O to A for life, then to B for life

* A: Life estate (measuring life = A)
* B: **Indefeasible vested remainder in life estate**
* O: **Reversion** (property returns to O when B dies)

**Reversion Rule**: Future interest in grantor that automatically becomes possessory upon natural expiration of preceding estate

#### 2. Vested Remainder Subject to Partial Divestment (Subject to Open)

**Key Concept**: **Class gift** - going to group of people

**Example**: O to A for life, then to B's children; B has one child, C

**Analysis**:

* O: Fee simple absolute
* A: Life estate (measuring life = A)
* C: **Vested remainder subject to partial divestment** (or "subject to open")

**Rationale**:

* B can have more children
* Class is still "open"
* C's share could be diluted by additional class members
* Like sharing pizza - more siblings = smaller slices

**When B dies**:

* Class closes (no more children possible)
* All children become **indefeasibly vested**
* Each child: Indefeasible vested remainder in fee simple absolute

**Class Members**:

* If C has child D, and C dies before B:
  * D steps into C's interest
  * D shares proportionally with other class members

#### 3. Vested Remainder Subject to Complete/Total Divestment

**Example**: O to A for life, then to B, unless C gets an A+ in property, then to C

**Analysis**:

* A: Life estate (measuring life = A)
* B: **Vested remainder subject to total divestment**
  * B is named (ascertainable)
  * No conditions **B** must fulfill
  * But B's interest can be completely taken away
* C: **Shifting executory interest** in fee simple absolute
  * Takes from B if condition met

**If C gets A+ while A alive**:

* C divests B
* C: **Indefeasible vested remainder** in fee simple absolute

**Distinction from Subject to Open**:

* Subject to open: Share gets **smaller** (partial)
* Subject to total divestment: Interest **completely taken away**

### Contingent Remainders

**Two Scenarios**:

#### 1. Grantee Unascertainable

**Example 1**: O to A for life, then to B's heirs (B alive)

* B's heirs: **Contingent remainder**
* Rationale: Can't identify heirs until B dies
* O: **Reversion** (in case contingency never occurs)

**Example 2**: O to A for life, then to A's wife (A married 50 years)

* A's wife: **Contingent remainder**
* Rationale: "Wife" doesn't identify specific person
  * A could divorce and remarry
  * A could die without a wife
* O: **Reversion**

#### 2. Subject to Condition Precedent

**Example**: O to A for life, then to B if B gets A+ in property

* B: **Contingent remainder** in fee simple absolute
  * B must fulfill condition **before** taking
  * B is subject to condition precedent
* O: **Reversion** (if B never gets A+)

**If B gets A+ while A alive**:

* Condition fulfilled
* B's interest **transposes** to **indefeasible vested remainder**

**Cardinal Rule**: Whenever conveyance ends with contingent remainder, assume O has **reversion**

### Executory Interests (Brief Introduction)

**Two Types**:

1. **Shifting executory interest** - divests another grantee
2. **Springing executory interest** - divests grantor

**Note**: Full treatment deferred to next session

## Future Interests in Grantor

1. **Possibility of reverter** (follows fee simple determinable)
2. **Right of entry** (follows fee simple subject to condition subsequent)
3. **Reversion** (follows life estate when no complete disposition)

## Key Terminology Distinctions

* **Void** = automatic termination, gone immediately

* **Voidable** = can be terminated at holder's discretion

* **Reversion** = follows **life estate** only

* **Possibility of reverter** = follows **fee simple determinable**

* **Right of entry** = follows **fee simple subject to condition subsequent**

## Exam Tips

1. **Mixed language problems**: Determine grantor's intent; when ambiguous, default to condition subsequent

2. **Future interests never follow fees with natural expiration**: Remainders only follow life estates

3. **Automatic reversion with contingent remainders**: Always give O a reversion when remainder is contingent

4. **Transposition of interests**: Contingent can become vested; subject to open can become indefeasible

5. **Personal conditions**: "If **A** does X" only applies to A, not A's heirs

6. **Class gifts**: Subject to Rule Against Perpetuities (upcoming topic)

## Next Topics

* Executory interests (springing and shifting)
* Rule Against Perpetuities
* Future interests casebook chapter