Assignments for Week Six (Feb. 27-Mar 1)

 Finish Our Coverage of RAP

  Concurrent Ownership

Casebook p. 371-379; 385-405

Casebook P. 412-420

 

 Maybe we will start our discussion of the Takings Clause of the US Constitution:

Read Prof. Linder's Introduction to Takings Clause (link);Casebook p. 791-807 (Public Use Requirement)

"Who Says You Can't Physically Partition a Single Family House?"

Here is an interesting post from the PropertyProf blog (link):

CNN has a fascinating story about a Cambodian couple who cut their house in two when they divorced. (More accurately, the husband cut the house in half and moved his part to land owned by his parents). You MUST click through to see the picture.

Capitol Savings & Loan Case (p. 350)

Suppose Grutz conveys:

to A and his heirs, but if the property is ever owned or occupied by any "colored person or persons," then to B and his heirs

Assume that the property is sold to an African-American family and B files a lawsuit asking the court to enforce the forfeiture and quiet B's title in fee simple.

Are racist conditions or restrictions consistent with public policy?

Do such restrictions violate federal, state and local fair housing laws and similar anti-discrimination laws?

Would judicial enforcement violate the Equal Protection Clause of the US Constitution?

What about a covenant in a modern "exclusive development" that restricts use of the land to single family residential use only and requires single family houses to "be no less than 3500 square feet of finished living area, and to be constructed with brick exterior walls and cedar shake shingle roofs?"

Is this consistent with modern public policy and fair housing laws? Why or why not?

What about a covenant that required owners of property in the development to have annual incomes of $250,000 or more?

Contrary to public policy? Why or why not?

Assignments for Week Five (Feb. 20-22)

 Casebook p. 323 -328; Blog Post (formerly Handout 5)

 Casebook p. 334-355

Maybe we will get to this one:

 Casebook p. 355-361; 366-370; Blog Post (formerly Handout 6)

If You Are Struggling With Estates and Future Interests

 My instincts inform me that many of you are getting this material, but some of you are struggling. 

If you are getting it, good work! Keep it up!

If you are struggling, you need to try to master the material before you come to class. Read the casebook pages as many times as it takes for you to have a basic understanding of what they are saying. Read and re-read the blog posts until you understand what I am teaching there. When we discuss these materials in class, 70% or 80% of what we discuss should be confirming (and embedding in your memory) what you already know. If this is not the case for you, you need to work harder before you come to class. 

You either know this material or you don't. Like in language vocabulary, there is a right answer and many wrong answers. You need to master the materials so you can identify the correct answer.

But again, many of you are getting this. Bravo!

 If you are not, then more work is the only cure that may help.

Let's Re-write Ben Potter's Will in Caccamo case

Ben Potter’s will devised Blackacre to his granddaughter, “Anna Naomi Coverdale, in fee simple and absolutely forever; but in case the said Anna Naomi Coverdale should die without leaving lawful issue of her body begotten then and in that case I give, devise and bequeath all the same over unto” the children of William B. Potter in fee simple.

If we were counseling Ben Potter in preparation for drafting his will, what should we have asked him about his intentions concerning his granddaughter, Anna?

Did he want her to have a Fee Simple Absolute, an estate she could sell and liquidate into cash?

Did he want her to have a Fee Tail, an estate that could be converted into a Fee Simple Absolute?

Or did he want her to enjoy the property during her lifetime and at her death pass it on to her children if she had any, or else to the children of William Potter?

 Let's try to draft this provision in Ben Potter's will to better accomplish his purposes and to do so without resorting to an unusual defeasible fee. 

How about this: "to Anna for her life, and at her death to her then living children, but if no children of Anna survive her, then to the then living children of Ben Potter and their heirs."

Caccamo case (p. 302)

The Late, Great Quincy-the-Wonder-Dog's 2009 Halloween Costume (Photo by Kat Duncan)

Ben Potter’s will devised Blackacre to his granddaughter, “Anna Naomi Coverdale, in fee simple and absolutely forever; but in case the said Anna Naomi Coverdale should die without leaving lawful issue of her body begotten then and in that case I give, devise and bequeath all the same over unto” the children of William B. Potter in fee simple.

So what do you think Ben Potter was trying to convey to Anna?

 

Fee Simple Absolute: “to Anna and her heirs in fee simple absolute”

 

Fee Simple Defeasible: “to Anna and her heirs in fee simple absolute, but if at the time of her death she is not survived by a lineal descendant, then to the children of William Potter in fee simple absolute.” [Definite Failure of Issue] 

 

Fee Tail: “to Anna and her heirs in fee simple absolute, but if her line of descendants should ever fail, then to the children of William Potter in fee simple absolute.” [Indefinite Failure of Issue]

Take a look at the Nebraska statute on this issue:

76-111. Definite failure of issue, defined.

Whenever property is limited upon the death of any person without heirs or heirs of the body or issue general or special, or descendants or offspring or children or any such relative described by other terms, such limitation, unless a different intent is effectively manifested, is a limitation to take effect only when such person dies not having such relative living at the time of his death or in gestation and born alive thereafter, and is not a limitation to take effect upon the indefinite failure of such relatives; nor, unless a different intent is effectively manifested, does it mean that death without such relative, in order to be material, must occur in the lifetime of the creator of the interest.

Source:

Laws 1941, c. 153, § 11, p. 596; ; C.S.Supp.,1941, § 76-1011. ;

Assignments for Week Four (Feb. 13-15)

Casebook P. 300-305; Blog Post (formerly Handout 3)

Casebook p. 307-323; Blog Post (formerly Handout 4)

Assignments for Week Three (Feb. 6-8)

Casebook p. 237-248 (for background only); p. 251-276

Casebook p. 276-297

We will take 3 classes to get through both assignments. There is a lot here.