Theory

Property-Things you own [Thing; You; Others]

(Things includes: intangible vs tangible ( real property vs chattels))

4 Relationships:

1 Thing vs You;

2 Others vs Things;

3 You+Others vs Things;

4 You vs Others

Utilitarianism: moral and useful

Personhood

Locke’s Labor Theory applies more on IP law today

Edmund Burke: Property provides stable and secured society

Johnson v. McIntosh (based on positive laws rather natural justice) Utilitarian philosophy

cases impact the first-in-time principles of properties,

Discovery principle comes from customs, limited to Christian.

Right of granting land is only belong to the U,S, while the Native American have no right
to transfer

The US receive such principle-based right inherited from Britain by treaty.

Therefore, if Johnso wins, Britain’s right is not legitimatize, where the inherited
relationship and subsequently the right of the U.S. would be nullified.

Pierson VS. Post Utilitarian philosophy

Common law won

Who owns the fox?

Use occupancy to determine ownership——What actions required for occupancy of

wild animal in terral nullius

Think of (easiest)-See-chase-tool grab-hand grab-kill-control (hardest)

Courts Opinion:

mortal wounding + chase

trap with nets or toils

intercept + deprive of natural liberty

Keeble v. Hickeringill

Customs won

Businesses; own lands;

Promote duck industry

Avoid wrongful interference

Ghen

Customs won

Promote industry and certainty

White V. Samsung

According to statue law, no likeness

According to common law, no name, no likeness, however the law can be expanded

Likeness, name alike are only tools, appropriation of identity matters.

Right of publicity protects everyone, but most case is about famous people.

Note that there is relative ownership level legitimacy. T trespass o land for wild animals, T1
steal it. O>T>T1.

Jhon Doe/ Jane Doe: 某人/甲乙

Tresspass Exception: Necessity or Implied Consent

Defense for trespass

Exception

No constitute trespass

Trespass law is constitutional invalid

Shack V. State:

Dealing with invited visitors and people from organization

Issue: Do Shack and Teresa have right to go to living court of the farm?

Rule 1 : Charitable group with charitable purpose wshould be allowed to gain access to the
worker

Rule 2: Worker can receive visitor on his own will as long as not hurting anyone
Rule 3: Solicitor or peddler alike can be barred as long as the employer is not only for his own
commercial advantage nor did the needs of workers deprived.

Only rule 1 is applicable for the cases, however, the court expanded to rule 2 & 3

Methods to deal with problem of neighbors

Self-hep

Tolerate or avoidance

Involve 3rd party

In traditional English law, spite fence (a sole hatred purpose structure (maybe trees) alike) is
OK.

Spite fence: intention to hurt neighbor and for sole purpose

Nuisance: 1) intentional, but require no malice 2) non-trespassory(no material enter other’s

property), 3) unreasonable, and 4) substantial interference with 5) the use and enjoyment of
the plaintiff's land

The court use objective method to define usefulness, usually depends on the opinions of
expert. Anything more than 0$ is useful.

Prak v. Maretti: overturns precedent with the modern concern of technological change and
conservative development.

Adverse possession

Reason: Land is important resources-Limited resources-People lucky to have land-So they

should have responsibility not to waste it-Therefore society wants to promote effective use of
land-Adverse possession helps to maintain the usefulness of the land

Common law Elements:

C+H+O+A+T+E or extra statutory requirements

Continuous + Hostile + Open + Actual + Time + Exclusive possession for the AP(adverse
possessor) to win

Continuous (frequency): can’t have significant interruption, depend on the nature and
characteristics of land which reasonable possessor will use it. (consecutive gap might be more
unreasonable than the non-consecutive gap of the same period)

Hostile(permission or thinking): 4 TEST:

AP must show he cannot have permission from true owner(ALL STATES AGREE ON
THIS!!! Most states assume silence no permission)
 Color of title: a defective document that appears to give AP ownership, but is
legally ineffective.

Good faith test: AP must honestly mistake that he own the property.

Bad faith test: AP must intend to make the land their own, even knowing it belongs
to another.

Open: Visible for a true owner came by to do reasonable inspection.

Actual(reasonable usage): what AP do to have to be actually possessed, not only physically be

there

Some state says that pure recreational usage is also reasonable

Time: stature requirement, under certain circumstances, extension is OK, like unsound or
minors. Note that death also remove disability, where true owners’ relatives can claim the
estate.

• An action to recover the title to or possession of real property shall be brought

within 21 years after the cause of action accrued, but if a person entitled to bring the
action is, at the time the cause of action accrues, within the age of minority or of
unsound mind, the person, after the expiration of 21 years from the time the cause
of action accrues, may bring the action within 10 years after the disability is removed.

21 AT LEAST. 21 years deadline, if disabled, 10 years extended when cured. If

cured in the 20th year, you still have 30 years to claim. The disabled must be
appeared before the trespass.

Assume trespass happened in 1980, disabled removed at 1996, then

extended to 2006

Assume trespass happened in 1980, disabled removed at 1990, then

extended to 2001

Exclusive: 1. Not share with true owner; 2. Not share with anyone else
 Invitation or visitor(for dinner alike) is not share

Extra statutory requirements

Van Valkenburgh v. Lutz：Lutz’s activities: clear land; farming; farming; crops; raise chickens;
build shack; plant fruit trees; one room dwelling; build a garage

Different adverse possessor by time

Tacking is allowed if privity(voluntary transfer of relationship like orally or written sell, gift,
will, ) exists between the current adverse possessor.

Must show all the adverse possessor in the statute given time must fit CHOATE

Find to Possess

Lost; Abandoned; Mislaid; Treasure trove

Analyze steps:

Spot Character:

True owner

Finder

Subsequent possessors

Owner of the site where chattels found

Who is suing who and where (public or privacy )

Finder vs. True owner

General rule: True owner have priority to anyone; unless he abandoned property

Haslem v. Lockwood

Abandoned property: must do some action to demonstrate intent (CM rules)

Finder vs. Subsequent possessors

General rule: 1st finder have stronger possessory right s to any subsequent
possessors, first in time

Armory v. Delamirie (laws of agency)

Finder vs. Owner of site

General rule complicated:

Finder trespassed, owner of site will always prevail

Finder is an employee, find during course of employment，employer prevail

 Finder on the site for limited purpose (e.g. temporary worker), owner of site
prevail

Item embedded/buried in soil, owner of site prevails

Exception: treasure trove (depends on state, some say owner, some say
finder)

Item found in private place, owner of site prevails

Exception: Hannah V. Peel. Owner never moved to the house

Item in public space:

Mislaid: owner of site (note that if the site is rented, most states give it to
tenant for true owner’s convenience, a few states give it to owner of site
for the possibility that tenant stays shorter) ALL FOR CONVENIENCE OF
TRUE OWNER

Lost: Finder
 Gift

Figure out fake and real gift

Fake / Imposter of gift:

1. Gratuitous promises:

Unenforceable

E.g. “I’ll bring you a gift tomorrow”

2. Contractual promises

Enforceable under CONTRACT LAW

3. Testamentary Gifts: Left (or attempted left) via will, basically promise

Enforceable under LAW OF GIFT

E.g. “When I died, I would give you 1 million USD”

Analyze steps: is the will valid-if invalid or no will-distribute by law-usually to

intestate successor

Real Gift:

Definition: Voluntary transfer of property now without consideration

Type:

1. Inter vivos gifts

a) Legal effect: once completed, irrevocable (Donor cannot revoke gift to the donee)
b) Exception: conditional gifts recognized by law (engagement ring)
i. Majority rule: engagement rings are considered conditional gifts; some state
will depend on fault-approach and no-fault approach (no ring back to men)
ii. Minority rule: Albinger VS Harris, logic: most of the time donor is men; Women
do most work for wedding; woman pay most for weddings
2. Gifts causa mortis (gift due to ear of impending death, same as conditional gift)
a) Compare with testamentary gift: give the gift instantly before death
b) Legal effect:
i. Donor can revoke any time before his death
ii. Automatically revoke by law if recovered from well-founded problem causing
fear of death. Some state does not required a direct match between the
disease recovered and diseased feared of.

Elements:

1. Voluntary (Donative intent) to give gift

2. Now
3. No consideration
 4. Property
5. Delivery of gift (if already possessed by donee, no need to delivered again)
a) Manual delivery (physical), unless not practical or impossible or very
inconvenient, then
i. Symbolic delivery
ii. Constructive delivery: deliver some last step access of gift, such as key,
wedding gifts to agents
Note that, Wechat delivery money is constructive delivery as it required
clicking. If the gift is still in the hand of meddler, donor can change his mind

6. Acceptance by donee (usually presumed/acquiesced)

Gruen V. Gruen: The ownership and possession can be separated

If there is ambiguity with the nature of the property, court tend to choose nature that is less
strict and more marketable

Fee simple: without inherent or external limitiation

Presumption rule

Life estate: with inherent limitation(with natural expiration date), without external
limitation

Future interest of original owner

Waste rule: (Receiver shall not waste the property, devalue it)

Voluntary waste

Permissive waste: permit through inaction of devalue “killing” property, accident

or natural deterioration of property.

Ameliorate waste: Changes made which improve value (Accepted by modern

law, rejected by common law)

Fee simple defensible: With external limitation, without inherent limitation; so long
as, as long as, provided that, on condition that, but if, however

Determinable:

with condition, that definitely automatically goes back to grantor if grantee breach.

Grantor have future interest.

Grantee can sell to others with previous condition

Subject to condition subsequent: (preferable when there is vagueness with FSD)

with condition, but goes back to grantor if 1) grantee breach condition and 2) grantor
find out and sue grantee within certain years, otherwise the right waived.
 Subject to executory limitation

Absolute Defeasible
Fee simple: will never end in FSD(determinable)
itself
FSCS
FSEL, same as FSD, but
future interest is for the 3rd
person, rather than grantor
Life estate
Fee tail

Future interest:(held by grantor)

Reversion: wait for grantee’s right naturally expired

Possibility of reverter: （SD: FSD, LESD, FTSD）

Right of entry/re-entry:（SCS: FS-SCS, LESCS,FTSCS）

Future interest: (held by grantee):

Remainder (no choice but have to wait previous right of others expired naturally)

Contingent：

Either condition precedent

Or unascertainable

Vested

Indefeasible: no other condition + held by ascertainable person （i.g. O to A for life,

then to A’s first child, the person can be future people）

Subject to open: at least 1 ascertainable person + at least 1 unascertainable

person

Subject to divestment：(condition subsequent)

Executive

Shifting: cut short grantee

Springing: cut short grantor

Condition subsequent VS. Condition precedent

Check before giving, check after giving.

 Grammar: if comma separate condition(in front of “but if”), it is subsequent.

*NOTE: this is a study guide to help you understand the rules in an easier way. It does not necessarily replace
the need to take notes during class.

I. In the next few classes, we learn what it means to “own” land (real property)

II. In US law, a person does not technically “own” land – it is more legally accurate to say that he owns
certain legally-enforceable rights concerning land, in the form of a present estate and/or a future interest

III. An important theme here is that property ownership can be divided over time, with one person having
the right to current possession and another having the right to obtain possession in the future – the
foundation of the modern land ownership system is recognition of the rights of present possession (the
present estate) and future possession (the future interest)

a. We already saw this in the Gruen v. Gruen case – remember the piece of property at stake – the
painting – the court said the father owned the present “estate” (interest) in the painting, while the
son owned the future interest in the painting – the father has present possession of the painting for
his life, while currently, the son owns a future interest in the painting that will become possessory
after his father dies

IV. In real property, we say that, the owner of the right to possess the land NOW owns what is called the
possessory estate = present estate = estate (all synonyms). If you own the possessory estate/present
estate/estate in land, what this means is, this entitles you as the owner to immediate, current possession
of the land

V. In real property, we say that, the owner of the right to possess the land IN THE FUTURE (i.e., not now)
owns a future interest in the land. If you own a future interest, you aren’t currently entitled to
immediate possession, but your future interest may become possessory in the future, and you will have a
present estate in the future

VI. This system of present estates and future interests in real property ownership in the US is based on
English land ownership history (discussed in the CB – we will not cover it in class)

VII. Present estates are divided into freehold and nonfreehold estates. We will focus on freehold estates in
this unit. Nonfreehold estates are basically leases/leaseholds – don’t worry about them. We cover them
later in the course.

VIII. Some preliminary vocabulary for this entire unit – just make sure you are familiar with these terms (you
may know some of these already)

a. Decedent
b. Testate and intestate
 c. Heirs
d. Devise (verb) and devisees
e. Bequeath (verb) and bequest
f. Issue
g. Collateral
h. Conveyance
IX. We are going to proceed methodically – first through all the possible present estates recognized by the
law, and then future interests, and then put everything together

X. *TIP* = on property exams and on US bar exams, how will you most likely be tested on present estate
and future interests? You will get a hypothetical conveyance (e.g., “O to A”). Then you will be asked to
identify what present estates and/or future interests are created by the conveyance – IOW, who owns
what? The key remember is, almost all questions will ask you to identify the present estates and/or
future interests AT THE TIME OF THE CONVEYANCE

XI. Present Estates (Freehold)

a. Only 3 types: FEE SIMPLE, FEE TAIL, and LIFE ESTATE

b. The difference among them is their duration
c. Each present estate can be either absolute or defeasible
i. Absolute = means the duration of the particular freehold estate is restrict only by the natural
limitation (if any) that defines and characterizes that type of estate
ii. Defeasible = means the particular freehold estate is subject to some provision that may end
that particular estate if something happens

d. Fee Simple
i. The fee simple can be a “fee simple absolute” or a “fee simple defeasible”
ii. The key to remember about a fee simple is it, inherently, innately, BY NATURE, is potentially
of unlimited duration – i.e., it has NO NATURAL LIMITATION, it has no limitation by its nature
– has no natural expiration
iii. Think of it like the Energizer Bunny that never ends – or like sunlight – by nature it has no
limitation, always will shine
iv. A fee simple absolute – no inherent ending
1. Over 99 percent of the land held in the US is in fee simple absolute
2. No inherent ending – by its very nature, no limitation – can last forever
3. Fully alienable, devisable, descendible – most marketable estate
4. If you have a fee simple absolute, what can you do? Keep land forever, sell it, give it
to someone else who can keep it forever, or can devise to someone who can then
keep it forever. If the owner of an FSA dies intestate, the owner’s heirs will inherit
the land
5. The presumption today is that a grantor intends to convey an FSA unless he uses
clear language to indicate he wants to convey something other than an FSA – any
ambiguities in the conveyance language are resolved in favor of an FSA
6. Sometimes an FSA is just called a “fee simple”
7. How to create an FSA?
 a. Historically, you needed to use the precise formula – see e.g., Cole v.
Steinlauf, which illustrates the historical common law insistence that exact
formula/wording be used to create the fee simple absolute: “O to A and his
[or her] heirs.” This traditionally was the formula to create an FSA. O
granted A an FSA. Note “and his [or her] heirs” is meaningless – it’s just the
formula language. The heirs don’t have anything right now.
b. Nowadays, the modern approach -> almost all jurisdictions in the US no
longer require the words “and his [or her] heirs”
i. Examples
1. O to A and his heirs.
2. O to A.
3. O to A and his heirs forever.
4. O to A forever.
5. O to A my friend.
6. O to A for perpetuity.
7. O to A in fee simple.
v. FEE TAIL
1. Unlike the fee simple, which we have just discussed, the fee tail is naturally,
inherently limited. So it’s not an Energizer Bunny. It’s a generic, cheap brand battery
Bunny that is by nature, inherently limited – won’t last that long.
2. We are not going to spend much time on the fee tail, since it’s basically been
abolished in all states.
3. The operative language: “O to A and the heirs of his body” – to create a fee tail in A,
you need to use this precise formula/language.
4. “O to A and the heirs of his body.” What present estates are created by this
conveyance?
a. Well, from the formula language, you know A has a fee tail. What does this
mean, what can A do? A can possess the land right now. When he dies, the
land automatically passes to his issue (his next lineal descendants) –
regardless of whether he dies intestate or testate, regardless of whether he
sell it or not.
b. Fee tails keep the land within the family
c. If A died without heirs, the property returns to O.
vi. LIFE ESTATE
1. Unlike the fee simple, and similar to the fee tail, the life estate is a naturally limited
estate – again, think of it as a cheaper, generic battery bunny that is just naturally not
as long-lasting as the Energizer bunny. If you own a life estate, you have something
that doesn’t last forever, like the fee simple Energizer bunny.
2. Operative language: “O to A for life.” Note you don’t need this precise formula – but
to create a life estate in A, O needs to use some language which indicates he’s only
giving a life estate to A.
a. Other examples:
i. “O to A for his life.”
ii. “O to A for as long as A lives”
iii. “O to A for his lifetime”
 iv. “O to A for the course of his life”
v. “O to A for as long as he breathes”
vi. “O to A until A croaks”
vii. “O to A until he sleeps with the fishes”
viii. … and so forth (you get the idea, hopefully)
ix. Remember – if there is ambiguity in the language – courts will
generally presume the grantor conveyed an FSA, not a life estate.

1. See White v. Brown case for this proposition:

a. The ambiguous language: “I wish Evelyn White to
have my home to live in and not to be sold” – court
said this conveyance language was ambiguous – “to
live in” part suggests life estate, but then the “not to
be sold” part makes it sound more permanent
b. Court resolves the ambiguity in favor of an FSA (see
TN Code Ann. 64-101 and 64-501) – and removes
the “not be sold” condition, saying it is an absolute
restraint on alienation
c. As Lide’s attorney, how would you have drafted the
will to avoid any ambiguity?
3. So if A has a life estate, what can he do now?
a. We say A owns a life estate in the land.
b. A is called a life tenant.
c. He only has the right to possess the property in his/her lifetime.
d. When A dies, his life estate simply ends, and possession of the land goes
back to O. A cannot devise the life estate to anyone else.
e. A could transfer his life estate (when he is living) to someone else, like say
Mr. B, but then B has a life estate pur autrie vie = a life estate measured by
the life of another, in this case, A. What does this mean? If B dies before A,
then B’s heirs or devisees can take the life estate measured by A’s life. If A
dies before B, then B’s life estate pur autrie vie ends, and O retakes
possession.
4. So, if you see “O to A for life” conveyance – can you see what’s going on? Who owns
what at the time of the conveyance?
a. A has a present estate = has possession now = life estate
b. Right now, O has a future interest = he can’t take possession now, but at
some point in the future he will (because we know he will, when A dies). But
right now, we say O has a called a reversion, which we will study later).
5. Obligations of a life tenant
a. Because the grantor retains a future interest, the law imposes certain
obligations on the life tenant – basically he/she needs to ensure that, upon
his/her death, the property goes back to the grantor in substantially the
same condition as was received
b. To protect the interests of the grantor, the common law has a doctrine called
the doctrine of waste
 i. A life tenant is permitted to use the land for present purposes as a
reasonable owner would (e.g., reasonable wear and tear is OK), but
is not permitted to commit waste
ii. Waste = actions of a life tenant that permanently impair the
property’s value or the interests of the future interest holders
iii. Three types of waste recognized under the common law:
1. Voluntary =
2. Permissive =
3. Ameliorative =
iv. Historical approach (also called the “common law” approach) = very
conservative. Life tenant cannot alter the property in ANY
substantial way. In other words, under this approach, the future
interest holder could sue the life tenant if the life tenant committed
any of the 3 types of waste
v. Modern approach (exemplified in the Woodrick v. Wood case!)  an
action in waste lies only where alterations reduce the value of the
property (i.e., only voluntary and permissive waste are actionable)
vi. Which approach do you think makes more sense?

XII. Defeasible present estates (e.g., defeasible fee simple, defeasible life estates, etc.)
a. OK. Let’s pause a moment. So far we have covered situations where a grantor conveys a fee simple
absolute or a life estate absolute or a fee tail absolute.

b. However, in the real world, sometimes the grantor may want to add on an external limitation or
condition to the present estate he is conveying

i. Common example – donating or conveying land for charitable purposes. Maybe you have
lots of land, and you want to convey the land to some organization or school. But you want
to make sure they use that land in a certain way. So you want to add on an external
limitation.
c. This added limitation makes the estate defeasible (i.e., meaning, subject to the possibility of
prematurely terminated at a future time) – so, for example, if a grantor wanted to add a limitation to
a fee simple, the fee simple would become a defeasible fee simple – i.e., a fee simple capable of
being de-feased by the occurrence of a particular event
d. Three kinds of defeasible fee simples: fee simple determinable, fee simple subject to condition
subsequent, and a fee simple subject to an executory limitation
e. You can also have life estate determinable, life estate subject to condition subsequent, etc., but we
will focus on defeasible fee simples
f. Before we continue, one important thing to remember is – defeasible fee simples (e.g., fee simple
determinable, fee simple subject to condition subsequent, fee simple subject to executory
limitation) – they are still types of fee simples. They are still Energizer bunnies, everlasting
Energizer bunnies by their nature. It’s just that we are throwing on an external limitation or
condition, that if triggered, may cause the bunny to stop. But by nature, they can still potentially
last forever – they have no NATURAL expiration date.
i. Fee Simple Determinable = upon the occurrence of some specified event, the fee simple
determinable automatically terminates. Once that event occurs, the fee will revert back to
the grantor (or his heirs or successors)
1. Operative language: look for language “so long as” / “while / until / during
2. “O conveys Blackacre to A so long as Blackacre is used for educational purposes”.
What present estates and/or future interests are created by this conveyance?
a. Who has the right of present possession? A does. A has a fee simple
determinable
b. O has a future interest right now, which may become possessory if the stated
condition is broken – if broken, O’s future interest becomes automatically
possessory and A’s fee simple determinable automatically terminates. We
call O’s future interest a possibility of reverter
c. But do you see one important thing – A’s fee simple determinable could
potentially last forever – by its nature, it can last forever if the condition
does not break
d. So what happens if A starts using the land for commercial purposes?
e. A’s FSD automatically ends, O’s future interest (possibility of reverter)
becomes possessory automatically and O then has a FSA. If A refuses to
leave the land, he is trespassing (but the adverse possession clock starts to
run against O).
3. If you have an FSD, you can sell it, transfer it to someone else, but that person will
also be subject to the condition
ii. Fee Simple Subject to Condition Subsequent = grantor has the right and power to terminate
the estate of the grantee if a specific event occurs
1. The key difference between fee simple subject to condition subsequent and fee
simple determinable is the fee simple subject to condition subsequent ends only if
and when the grantor enforces the right to retake possession if the condition is
broken
2. Operative language: but if/provided that / on condition that / however
3. “O to A and his heirs provided that the property is used solely for classical music
orchestra performances and classical music orchestra rehearsals.”
a. A has an FSCS. O has a future interest which we call a right of entry.
b. A’s FSCS could last forever, no natural expiration date.
c. A’s FSCS will end if the condition is violated – for example, if A has jazz
concerts on the property, what happens?
i. Condition violated. But assuming O does nothing to enforce his right
of entry, A’s FSCS continues. Only if and when O enforces his right of
entry (e.g., bringing a lawsuit or taking substantial steps), does A’s
FSCS end. Then O will get the property back in FSA.
ii. Most jursidictions impose some time limit for O to exercise his right
of entry, otherwise if he waits too long, he will be deemed to have
waived his right – varies state by state (usually must exercise within
around 40 years)
4. If you have an FSCS, you can sell it, transfer it to someone else, but he/she will be
bound by the condition too
 iii. What if the language is ambiguous between an FSD and FSCS? See for example, the
Mahrenholz v. County Board of School Trustees case
1. Majority of courts in the US resolve an ambiguity between FSD and FSCS in favor of
FSCS – why?
a. “Equity abhors a forfeiture”
b. Hypo (on the map and in the casebook): Suppose that V, a staunch
vegetarian, conveys his restaurant “to M so long as only vegetarian meals or
sold on the premises, but if not then V may re-enter and reclaim the
premises.” After several years, M conveys the property to P. Immediately, P
begins to offer special happy hours during which drinks are served with
complimentary fish nuggets. P also offers a boutique Brazilian wine that
includes traces of beetle larvae. Six years later, P offers to sell the restaurant
to your client. What advice would you give your client?
iv. Fee Simple Subject to Executory Limitation
1. Essentially the same as a fee simple determinable except that the future interest
belongs to a 3rd party rather than the grantor – if the condition is broken, the third
party’s future interest (executory interest) automatically becomes possessory
2. “O to A, so long as the land is used for classical music performances only, and if the
land is used for any other music performances, then to B.”
a. A right now has a fee simple subject to executory limitation.
b. B has a future interest which is called an executory interest.
c. What happens if A starts playing jazz on the property?

XIII. Future Interests – difficult!

a. Future interests created in / held by the grantor/transferor – only three possible types
i. Reversion = transferor retains a reversion when he conveys a smaller (i.e., more naturally
limited) estate than the one he has. A transferor’s reversion has to wait patiently for the
transferee’s possessory estate (present estate) to expire/end naturally
1. “O to A for life.”
a. A = life estate
b. O = future interest -> O is transferor -> reversion. He has to wait pateintly
until the life estate held by A naturally expires. And because a life estate is
naturally limited and has a natural expiration (it’s the cheap, generic battery
bunny remember?), it has a natural expiration
ii. Possibility of reverter = it’s the future interest held by the transferor that follows a
determinable estate (e.g., a fee simple determinable)
1. “O to A and his heirs so long as the land is used for a cockroach farm.” What present
estates and future interests (if any) are created by this conveyance?
a. A =?
b. O=?
iii. Right of entry = it’s the future interest held by the transferor that follows an estate subject to
a condition subsequent (e.g., FSCS)
1. “O to A and his heirs; however, if the land is not used for a cockroach farm, then back
to O.” What present estates and future interests (if any) are created by this
conveyance?
 a. A = ?
b. O = ?
iv. **Can a grantor have both a reversion AND a right of entry?
1. “O to A for life, but if A divorces, then back to O.
a. A=?
b. O=?
b. Future interests created /held by a grantee/transferee
i. Remainder = a future interest held in a transferee that is 1) capable of becoming possessory
immediately upon the natural expiration of the previous estate, and 2) does not divest (cut
short) any interest in a prior transferee
1. “O to A for life, then to B.” (don’t be confused with reversions, which are what -> “O
to A for life, [then back to O.”]
a. A = ?
b. B = ?
c. Does O have anything else now?
2. Two types of remainders: vested and contingent
a. Vested remainders:
i. Indefeasibly vested remainders = a remainder is vested if 1) it is
created in an ascertainable person at the time of the conveyance
AND 2) it is not subject to a condition precedent other than the
natural termination/expiration of the prior estate
1. Ascertainable = person has been born AND identified
a. “O to A for life, then to B.” “O to A for life, then to
A’s current property law teacher” (A is currently
taking property law from Professor X)
b. “O to A for life, then to A’s first child (but A doesn’t
have any children now).
2. Condition precedent = condition other than the ending of
the prior estate that must be met BEFORE the remainder is
ready to become possessory (distinguish from condition
subsequents, which are vents that might cut short / divest
an interest AFTER it has become possessory)
a. Easy way to distinguish between condition
precedent and condition subsequent – the
university scholarship example: “Here’s the
scholarship. But you better maintain a certain GPA,
otherwise we will take the scholarship away” vs.
“Here’s a scholarship, but before we give it to you,
let us check what your GPA is, if it satisfies the
requirement – oh it does? Here you go!”
b. “O to A for life, then to B if B has reached 21 years of
age” vs “O to B for life, then to D, but if D does not
survive B, then to E.”
ii. Vested remainder subject to divestment = remainder that is vested
but subject to condition subsequent
 iii. Vested remainder subject to open = remainder that is vested, but
held by one or more living members of a group or class that may be
enlarged in the future
1. “O to A for life, then to O’s grandchildren.” (O has 2
grandchildren at the time of the conveyance)
b. Contingent remainders = if a remainder is not vested, then it’s contingent =
either given to unascertainable person OR subject to a condition precedent
i. “O conveys to B for life, then to D if D becomes the prime minister of
Singapore.”
ii. Executory Interests = future interest in a transferee that MUST DIVEST / cut short another
estate or interest to become possessory – it doesn’t wait patiently for the natural expiration
of the prior estate
1. If the executory interest divests the transferor, it is called a springing executory
interest
2. If the executory interest divests the transferee, it is called a shifting executory
interest
3. “O to A, provided that if A ever allows the farm chickens to run away, then to B.”
a. A=?
b. B=?
c. O=? anything left?

XIV. Putting it all together – now that you understand the concepts, here is a chart for you, follow these steps
to tackle any future interests question! [see also PDF]
XV. Practice questions – identify which present estate(s) and future interest(s), if any, are created by the
below conveyances:
a. O to B and his heirs forever. B: FSA; O:nothing
b. O to C for life.
c. O conveys to E and her heirs provided that E never marries. E: FS-CS; O: right of entry
d. O to F, my pet cat.
e. O to G for life. G then conveys his estate to M.
f. O to Google for life.
g. O to B until he dies.
h. O to C for life, then to X.
i. O to E for life, then to Z for life. O: Possibility of reveter E:LEA Z: Remainder vested indefeasible
j. O to F for life. F then conveys her interest to Google Inc.
k. O to G and the heirs of his body.
l. O to D and the children of his body.
m. O to B and his heirs so long as the land is not used as a nightclub.
n. O to C and her heirs, but if Boston becomes a state then D has the right to re-enter and retake the
estate.
o. O to D for life, then to M while the well continues to provide water.
p. O to E and his heirs provided that alcohol is never served on the premises.
q. O conveys to First Baptist Church provided that the land is used as a church, then to Google.
r. O to C, but if C ever drinks alcohol, then to D.
 s. O to C for life, then to D if D lives to the age of 30.C: Lea; D: remainder contingent in FSCS; O: return
of entry
t. O to E for life, then to F’s children and their heirs (assume F has never had any children at the time of
the conveyance)
u. O to G for life, then to H, but if H does not survive G, then to I. G: LEA H: Remainder vested subject to
diversion; I: Executory shifting; O:nothing
v. O to J for life, then to K for life, then to L’s children (assume that L is alive and has one child, M, at the
time of the conveyance) J: LEA; K: indefeasible vested remainder; L’s children: vested remainder
subjected to open; O:nothing.
w. O to B for life, then to C, but if D should return to New York, then to D.
x. O to E when E is admitted to a law school.
y. O to G for life, then to H if H becomes a lawyer.

*Extra material – Rules Furthering Marketability and the Rule Against Perpetuities (RAP)

I. Introduction

a. Having now gone through present estates and future interests, you should be at a stage where you
can look at a conveyance language and comfortably identify which present estates and future
interests (if any) are created by the conveyance.

b. Today we will learn some additional rules – specifically, rules which further the marketability of the
estates and/or future interests – which might apply. In other words, the rules you learn today are
some additional rules which you need to think about after you identify all the present estates and
future interests created by the conveyance

c. We focus on two particular rules:

i. Rules regarding restraints on alienation

ii. The Rule Against Perpetuities

iii. We will not cover The Rule in Shelley’s Case and the Doctrine of Worthier Title or the
Doctrine of Destructibility of Continent Remainders – these have basically all been abolished
in the United States

II. Rules Against Restraints on Alienation

a. Over time, courts have set out a number of rules that are designed to increase the marketability and
alienability of land. We will cover some today.

b. For example, take these conveyances:

i. “O to A, but any transfer after this will be void.”

ii. “O to A, but A promises never to transfer the land.”

 iii. “O to A, but if A attempts to transfer the property, then to B.”

c. The above are restraints on alienation. Courts generally don’t like them. Why not?

d. Rule = absolute (total) restraints on alienation of a fee simple is VOID – courts will strike out the
restraint language, and it will be as if it never existed

i. So, in the above three examples, what does A have?

e. Rule = racial restraints are not enforceable – under the SCOTUS case Shelley v. Kraemer (1948),
restraints prohibiting the transfer or use of the property to or by a person of a specified racial,
religious, or ethnic group are not enforceable

i. “O to A, provided that A promises the land is never used by or sold to a Native American
person.”

ii. “O to A, but if the property is transferred or leased to a Native American person, then back
to O.”

f. What about partial restraints on alienation? This is harder and outside the scope of our course. But
generally speaking, in more and more states, there is a trend which states that partial restraints on a
fee simple are valid if reasonable (remember though, racial restraints are never enforceable, whether
they are absolute or partial). “Reasonableness” is of course a tricky concept – for a partial restraint
to be valid, the partial restraint must have a reasonable purposes and be limited in duration. This is
also called the modern reasonableness test

III. The Rule Against Perpetuities (RAP)

a. The point of the RAP is basically to reach a balance between on the one hand upholding personal
autonomy and dignity of grantors to convey property according to their own wishes on their own
terms (e.g., wanting to keep it within a family, wanting to impose certain conditions on the transfer
as they see fit) and on the other hand promoting marketability by limiting a grantor to control the
disposition of land – a limited resource in society – far beyond his death (the so-called “dead hand
control”).

b. The other justification for the RAP is it avoids a dynastic culture or dynastic situation where grantors
can limit marketability of land by creating speculative future interests which will restrict the land’s
alienation for potentially hundreds of years

c. One of the most feared subjects in the 1L curriculum; considered a “rite of passage” by many law
students

d. Considered such a difficult case that at least in one judicial opinion (Lucas v. Hamm, 1961), the CA
Supreme Court dismissed a malpractice complaint against a lawyer who prepared a will that violated
the RAP (see p. 350 in the CB).

i. However – caveat for those interested in this area -> unclear whether this case still is
considered valid CA law today. A later CA case (Wright v. Williams, 1975) questioned the
 conclusion of Lucas and argued that the RAP is really not as “esoteric” as was made out to
be.

ii. In practice today, in jurisdictions where the RAP is still part of the law, many lawyers when
drafting wills will insert a savings clause (see p. 351 in the CB) which prevents an potential
violation of the RAP and “saves” the clause/condition of the conveyance that otherwise
would have violated the RAP and been struck out

e. The classic formulation (By Harvard professor John Chipman Gray):

i. No interest is good unless it must vest, if at all, not later than 21 years after some life in being
at the creation of the interest

1. Why 21 years? Equivalent roughly to “one generation” of family members. But note
21 years was to some extent an arbitrary number chosen by common law judges
who developed the RAP

ii. Let’s break down the RAP by parts first:

1. No interest …. RAP only applies to contingent remainders and executory interests

and vested remainders subject to open (sometimes also referred to as “class gifts” –
see e.g., p348(c) in the CB(

a. the good news = other interests (e.g., indefeasibly vested remainders, vested
remainder subject to divestment, etc.) are not covered. So, you don’t need
to check the RAP on these interests. You can sometimes get some RAP
questions on the bar exam right simply by knowing which interests the RAP
does or does not apply to! That is good news.

2. Vest, if at all …. The RAP is a “what might happen” test – vest does not mean the
same as possession! The point here is – unless it can be shown that a contingent,
speculative interest will necessarily vest OR not (i.e., are we sure the
contingency/ambiguity will be resolved?), the contingent interest is void from the
outset. In other words, if you cannot show that the interest will necessarily vest or
not vest (i.e., fail) within the period, it is void. So, put another way, “vest, if at all” =
means the contingency must be resolved, one way or the other (vest, or fail) within
the required period

a. Think of “vest, if at all” this way – e.g., applying to a law school – when you
apply to law school, there is a contingent situation, a contingency -> you
don’t know if you will be accepted, or not. You have to wait for the
contingency to be resolved -> ie, resolution is NOT the same as admission –
it simply means (like vesting does in the RAP case), that the contingency is
resolved – i.e., you will know whether you have succeed (admitted) or failed
(not admitted). Nobody would like it if a law school kept you hanging there
and the contingency would never be resolved. All law schools have to get
back to you at some point, many guarantee a specific day/time when the
contingency will be resolved (ie you know if you’ve “vested” (accepted), if at
 all (or not accepted). How would we feel if a law school took the application
and sat on it for 20 years? 30 years? 50 years? The RAP basically limits the
time a contingency can remain unresolved.

3. Not later than 21 years after some life in being at the creation of the interest

a. 21 years – just the standard number chosen by common law judges

b. Life in being = look for a person in being (alive) when the future interest is
created who enables you to prove whether the interest will vest or fail
during that person’s life, or at that person’s death, or within 21 years after
that person’s death. As a practical matter this often is some identified
person in the conveyance – some identified person who can affect vesting

i. Look first to people mentioned in the conveyance and eliminate

ones that don’t affect vesting. Then see if you can prove the interest
will vest or not within the life of any one of the remaining persons or
within 21 years after one of those person’s death

c. At the creation of the interest = When is an interest “created”?

i. For inter vivos conveyances -> when deed creating the interest is
dfelivered/signed/finalized

ii. For conveyances by will -> when the grantor (testator) dies, not
when he signs it. This makes sense because remember any
disposition of property by will is only valid when the testator actually
dies.

d. What happens if an interest is voided under the RAP?

i. Cross that out – as if it never existed. See what remains in the rest
of the conveyance. That’s what the parties get.

f. So, think of the RAP this way:

i. All it takes for RAP to cross out/ void an interest is just one series of events – a possible,
hypothetical series of events – where we cannot be sure whether the contingent interest will
vest or not vest (e.g., in the law school analogy above, whether you will be accepted or not
accepted) within 21 years of a LIB at the creation of an interest. SO you can imagine a
scenario where the contingent interest will neither vest nor be certain to fail to vest within
the relevant time period.

ii. Ask yourself – is there any possibility, however remote or stupid, that the vesting of a future
interest will remain uncertain beyond the time period permitted by the RAP

iii. Put another way – any absurd sequence of events – no matter how ridiculous or unlikely –
under which the future interest might vest beyond the perpetuities period?
 g. recommended method – use drawing, use visuals

i. Draw a vertical line down, map out conveyances in order

ii. Draw a horizontal lines, mapping out life timelines of each person (e.g., persons idfentified in
the question/conveyance)

iii. Draw 3 vertical lines (guidelines)

1. Date of the conveyance (i.e., creation of the interest)

2. Death of a life in being

3. 21 years after the life in being

iv. Then, you have to use your imagination and think hypothetically – look at the 21 years part –
can you think of a person or situation where someone’s interest violates RAP?

IV. Example: Inter vivos conveyance. “O to A so long as no liquor is ever sold on the premises, and if
condition is violated, then to B.”

V. Example: O writes a will: “O to A, then A’s kids, then to A’s grandkids.”

VI. Example: “O to A for life, then to A’s first daughter to reach the age of 25” (assume at the time of the
conveyance that A is alive and has 2 daughters under the age of 25)

VII. Example: “O to A for life, then to the first of A’s now-living daughters to reach the age of 25” (assume A is
alive at the time of the conveyance and has 2 daughters under 25)

VIII. Practice Problems – you try now, and we go over these. Assume RAP applies to these.

a. O conveys “to B for life, then to M if M lives to be age 50.”

b. O devises “to Boston, but if the land is not used as a school, then to H and his heirs”

c. O conveys “to D provided that if it ceases to be used as a church, then to G if he is living”

d. O conveys “to E and her heirs so long as the land is used for school purposes, then to S.”