Defn of property; Justifications

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Restraints on alienation

  • FSA –
Can’t have complete restraints – strike offending

language (Mountain Brow Lodge) and leave the

rest as a FSD or whatever (some places just get rid of all conditions)

- exception – for charitable groups

Partial restraints – allowed if

Disabling restraint – not allowed in most places; prohibits

sale of the life estate w/o saying what will happen

Forfeiture restraint – says who gets the property if the

restraint is violated; usually allowed

Stupid to have the distinction b/c you know what’s going to happen with a disabling restraint, too - reversion

Rights of future interest holders

the value of the remainder (economic or character)

  • affirmative – life tenant takes actions that decrease the


  • ameliorative – increases the economic value but

changes the character

(probably have to show that grantor intended the

land to pass unchanged to the remainder person and that the property can be reasonable used in the unchanged condition; Also affected by how much the difference in economic value is)

  • Permissive – letting the property fall into ruin

  • Economic waste – party under-utilizes the property compared

to the maximal use

(Waste claims work against each other – Someone says ameliorative waste – the other person says it would be economic waste not to do it)

Defeasible Estates

FSD – automatically ends

  • some places don’t recognize it – only FS on CS (so

there’s only right of entry)

  • Ambiguous grants – often construed as FS on a CS so

that the land will not change hands unless the

grantor wants it back

  • possibility of reverter for grantor:

  • can pass by intestacy or will

  • Modern rule – can transfer inter vivos

  • Can give it to the person who holds the other rights (the FSD) (Mahrenholtz)

  • If you don’t take possession, you lose your FSA by adverse possession

  • so long as A uses

  • while used

  • until it is no longer used

FS on a CS – have to assert rights (right of entry)

  • sounds like a FSA – then adds the condition

  • Right of entry for grantor

  • transferable by will or intestacy

  • modern law – transferable inter vivos

  • can give it to the person who holds the other rights (Mahrenholtz)

  • Adverse possession – some states S of L start wen the condition is violated; some say you can’t adversely possess against a right of entry (b/c the holder doesn’t own the land yet)

  • Tacking of violations allowed when there’s a time limit on right of entry

  • To A but if A stops..

  • To A provided however that…

Note – restraint on marriage – only valid if it seems intended to provide for the person til marriage, not to prevent their marriage p.20
FS with a covenant

  • can get damages for breach of the covenant

  • language sounds like there’s a promise between the grantor and holder

  • To A. A promises that…

  • To A. It is OUR understanding that…

  • Not hopeful language – that’s just a FSA

  • I leave B.. to A with the understanding that…

  • I leave B.. to A with the intention that…

FS with an executory limitation

  • A FS that may be cut short if a condition occurs – and the estate will go to a 3rd party


Only applies to: vested r’s subject to open, contingent remainders

and executory interests

Who are the measuring lives (mentioned and parents of mentioned)?

See whether anyone could be born after the grant and break the rule


Strike offending language until there’s a valid grant left

Modern – 1) wait and see (for 21 yrs after measuring lives are dead)

2) Uniform statutory – common law, then look to see if

it vests or fails within 90 yrs, then wait and see for 90 yrs after measuring lives are dead

Directory: sites -> default -> files -> upload documents
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