Concurrent Estates in Real Property II
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Leases and the Rule Against Perpetuities
LEASES AND THE RULE AGAINST PERPETUITIES EDWIN H. ABBOT, JUNIOR of the Boston Bar INTRODUCTION The purpose of this article is to consider the application of the rule against perpetuities to leases. A leasehold estate has certain peculiari- ties which distinguish it, as a practical matter, from other estates in land. At common law it required no livery of seisin, and so could be created to begin in futuro. Although it is not an estate of freehold the duration of the estate may be practically unlimited-it may be for 999 years or even in perpetuity. The reversion after an estate for years is necessarily vested, no matter how long the term of the lease may be, yet the leasehold estate is generally terminable at an earlier time upon numerous conditions subsequent, defined in the lease. In other words the leasehold estate determines without condition by the effluxion of the term defined in the lease but such termination may be hastened by the happening of one or more conditions. The application of the rule against perpetuities to such an estate presents special problems. The purpose of this article is to consider the application of the rule to the creation, termination and renewal of leases; and also its effect upon options inserted in leases. II CREATION A leasehold estate may be created to begin in futuro, since livery of seisin was not at common law required for its creation. Unless limited by the rule a contingent lease might be granted to begin a thousand years hence. But the creation of a contingent estate for years to begin a thousand years hence is for practical reasons just as objectionable as the limitation of a contingent fee to begin at such a remote period by means of springing or shifting uses, or by the device of an execu- tory devise. -
Doctrines of Waste in a Landscape of Waste
Missouri Law Review Volume 72 Issue 4 Fall 2007 Article 8 Fall 2007 Doctrines of Waste in a Landscape of Waste John A. Lovett Follow this and additional works at: https://scholarship.law.missouri.edu/mlr Part of the Law Commons Recommended Citation John A. Lovett, Doctrines of Waste in a Landscape of Waste, 72 MO. L. REV. (2007) Available at: https://scholarship.law.missouri.edu/mlr/vol72/iss4/8 This Conference is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Missouri Law Review by an authorized editor of University of Missouri School of Law Scholarship Repository. For more information, please contact [email protected]. Lovett: Lovett: Doctrines of Waste Doctrines of Waste in a Landscape of Waste John A. Lovett* I. INTRODUCTION One of the virtues of William Stoebuck and Dale Whitman's seminal hornbook, The Law of Property, is its extensive treatment of the subject of waste. ' Using half of a chapter, Stoebuck and Whitman introduce their read- ers to one of the great subjects of the common law of property, one that at- 2 3 4 tracted the attention of Coke, Blackstone, Kent, and many others. Their detailed analysis of the subject, which provides a general historical overview, a discussion of the seminal voluntary waste cases, Melms v. Pabst Brewing Co.,5 and Brokaw v. Fairchild,6 and a presentation of the legal and equitable remedies for waste, may strike some readers as old-fashioned. Although one recent law review article has called attention to several early nineteenth century waste cases, 7 relatively little contemporary academic scholarship has addressed waste doctrine in depth. -
Future Interests
Future Interests Interests in the Transferor • Reversion • Possibility of Reverter (NOT a possibility of reversion) • Right of Entry/Power of Termination Interests in the Transferee • Executory Interest • Vested Remainder • Contingent Remainder U N I V E R S I T Y of H O U S T O N Professor Marcilynn A. Burke Copyright©2007 Marcilynn A. Burke All rights reserved. Provided for student use only. D E Present and Future Interests F E Present Interest Future Interest A S Fee Simple Determinable Possibility of Reverter I B (transferor) L Fee Simple Subject to Executory Interest E Executory Limitation (transferee) E Fee Simple Subject to Right of Entry/Power of S Condition Subsequent Termination (transferor) T A T E S U N I V E R S I T Y of H O U S T O N Professor Marcilynn A. Burke Copyright©2007 Marcilynn A. Burke All rights reserved. Provided for student use only. 1 Vested Remainders • If given to an ascertained person AND • Not subject to a condition precedent (other than the natural termination of the preceding estate) • Precedent: (pri-seed-[c]nt) preceding in time or order; contingent upon some event occurring • Note: Not subject to the rule against perpetuities U N I V E R S I T Y of H O U S T O N Professor Marcilynn A. Burke Copyright©2007 Marcilynn A. Burke All rights reserved. Provided for student use only. Types of Vested Remainders 1. Indefeasibly vested remainders • Certain to become possessory in the future • Cannot be divested U N I V E R S I T Y of H O U S T O N Professor Marcilynn A. -
False Natural Law: Professor Goble's Straw Man, The;Note Goerge W
Notre Dame Law School NDLScholarship Natural Law Forum 1-1-1956 False Natural Law: Professor Goble's Straw Man, The;Note Goerge W. Constable Follow this and additional works at: http://scholarship.law.nd.edu/nd_naturallaw_forum Part of the Law Commons Recommended Citation Constable, Goerge W., "False Natural Law: Professor Goble's Straw Man, The;Note" (1956). Natural Law Forum. Paper 9. http://scholarship.law.nd.edu/nd_naturallaw_forum/9 This Note is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Natural Law Forum by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. THE FALSE NATURAL LAW: PROFESSOR GOBLE'S STRAW MAN To ALL WHO FOLLOW the trends here and abroad in legal philosophy, it has become apparent that the tide which has run so strongly against natural law theory for many decades, has now begun to turn. As the fatal emptiness in the heart of positivism becomes more exposed with each fresh assault upon freedom by evil ideologies and with every new example of antisocial individualism, the natural law position wins more attention and regains more of its ancient prestige.' For the natural law position, in the classical and Scholastic sense, is gradually revealing itself for what it is-as a strong central defense point between two extremes, seeking at once to secure for us proper individual freedoms and to impose upon us proper social duties.2 Significant in this turn of the tide is the article of George W. Goble entitled "Nature, Man and Law: The True Natural Law" (A.B.A.J., May 1955). -
Property—Future Interest—Partition by Remaindermen Allowed
University of Arkansas at Little Rock Law Review Volume 4 Issue 3 Symposium on Developmental Article 8 Disabilities and the Law 1981 Property—Future Interest—Partition by Remaindermen Allowed Jo Carol Jones Gill Follow this and additional works at: https://lawrepository.ualr.edu/lawreview Part of the Property Law and Real Estate Commons Recommended Citation Jo Carol Jones Gill, Property—Future Interest—Partition by Remaindermen Allowed, 4 U. ARK. LITTLE ROCK L. REV. 543 (1981). Available at: https://lawrepository.ualr.edu/lawreview/vol4/iss3/8 This Note is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in University of Arkansas at Little Rock Law Review by an authorized editor of Bowen Law Repository: Scholarship & Archives. For more information, please contact [email protected]. NOTES PROPERTY-FUTURE INTERESTS-PARTITION BY REMAINDER- MEN ALLOWED. Henry v. Kennedy, 273 Ark. 383, 619 S.W.2d 632 (1981). J.C. Kennedy died owning 560 acres in Desha County, Arkan- sas. He devised a life estate to his widow with a remainder, in equal shares, to his nephews Wilburn Kennedy and Cecil Kennedy. Wil- burn Kennedy conveyed his undivided one-half remainder interest to E.R. Henry, Jr. and Sterling L. Henry. The Henrys petitioned for partition under the Arkansas partition statute,' as owners of one- half of the remainder interest, against Cecil Kennedy. Because the property was not susceptible to partition in kind, the chancery court ordered a sale of the property, subject to the widow's life estate. On appeal, the Arkansas Court of Appeals reversed, holding that re- maindermen have no right to bring a partition action against other remaindermen when they have no present possessory interest in the property.2 On certiorari, the Arkansas Supreme Court reversed, holding that citizens of Arkansas who have a remainder interest in property may compel partition of their future interests regardless of whether they have any present possessory interest. -
Florida Sea Grant College Program Use of Future Interests in Land As A
Florida Sea Grant College Program Building 803 McCarty Drive A statewide university program for P O Box 110400 Coastal Research, Education & Extension Gainesville, FL 32611-0400 U.S.A. (352) 392-5870 FAX (352) 392-5113 [email protected] www.flseagrant.org Use of Future Interests in Land as a Sea-Level Rise Adaptation Strategy in Florida By: Thomas Ruppert, Esq.1 In a 2011 paper, James Titus of the U.S. EPA spends considerable time discussing the potential for the use of defeasible estates and future interests in land as potential tools for adaptation to sea-level rise (SLR). Defeasible estates and future interests in land—such as a fee simple determinable and fee simple subject to a condition subsequent—offer many potential strengths as tools for adaptation to SLR. As Titus indicates, for example, a fee simple determinable would allow a developer (D) to grant land to a buyer (B) “for so long as B does not attempt to armor the shoreline.” D thus has a possibility of reverter should B seek to protect B’s property from SLR via use of armoring. In theory this is an excellent idea as it would allow maximum use of land and would only impact B once SLR or erosion reaches a point that construction on the land is at the water-land interface and negatively impacting the coastal system—one of the harms that regulation often seeks to avoid. In reality in Florida, the situation presents more difficulties. Titus’ discussion mostly involves a generalized version of the common law of property. -
Future Interests in Property in Minnesota Everett Rf Aser
University of Minnesota Law School Scholarship Repository Minnesota Law Review 1919 Future Interests in Property in Minnesota Everett rF aser Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Fraser, Everett, "Future Interests in Property in Minnesota" (1919). Minnesota Law Review. 1283. https://scholarship.law.umn.edu/mlr/1283 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. MINNESOTA LAW REVIEW FUTURE INTERESTS IN PROPERTY IN MINNESOTA "ORIGINALLY the creation of future interests at law was greatly restricted, but now, either by the Statutes of Uses and of Wills, or by modern legislation, or by the gradual action of the courts, all restraints on the creation of future interests, except those arising from remoteness, have been done away. This practically reduces the law restricting the creation of future interests to the Rule against Perpetuities,"' Generally in common law jurisdictions today there is but one rule restricting the crea- tion of future interests, and that rule is uniform in its application to real property and to personal property, to legal and equitable interests therein, to interests created by way of trust, and to powers. In 1830 the New York Revised Statutes went into effect in New York state. The revision had been prepared by a commis- sion appointed for the purpose five years before. It contained a code of property law in which "the revisers undertook to re- write the whole law of future estates in land, uses and trusts .. -
Water Rights and Responsibilities in the Twenty-First Century: a Foreword to the Proceedings of the 2001 Symposium on Managing Hawai‘I’S Public Trust Doctrine
WATER RIGHTS AND RESPONSIBILITIES IN THE TWENTY-FIRST CENTURY: A FOREWORD TO THE PROCEEDINGS OF THE 2001 SYMPOSIUM ON MANAGING HAWAI‘I’S PUBLIC TRUST DOCTRINE By Denise E. Antolini1 I. INTRODUCTION Modern water allocation decisions inevitably involve difficult choices among competing consumptive and natural uses that are highly valued by diverse but equally passionate sectors of the community.2 Particularly in an island state like Hawai‘i, with its limited sources of fresh water, fragile environment, and unique economic challenges, debates over re-allocation of precious water resources and the merits of stream restoration are likely to become only more intense as human needs for 1 Assistant Professor of Law at the William S. Richardson School of Law, University of Hawai`i at Manoa; former Managing Attorney, Mid- Pacific Office, Sierra Club Legal Defense Fund (SCLDF), Honolulu, Hawai`i; J.D., 1986, University of California at Berkeley, Boalt Hall; A.B., 1982, Princeton University. Prior to joining the law school faculty, Ms. Antolini represented the “windward parties” (Wai_hole- Waik_ne Community Association, Hakipu`u `Ohana, Kahalu`u Neighborhood Board, and Ka L_hui Hawai`i) in the first phase of the Wai_hole contested case hearing. Special thanks to: Bill Tam, Michelle Kaneshiro-Oishi, and Christine Griffin of Carnazzo Court Reporting for their generous assistance. Contact the author at: antolini@hawai`i.edu. 2 See Robbie Dingeman, Wai_hole Water Allocation Rejected: Ruling Called Windward Victory, HONOLULU ADVERTISER, Aug. 23, 2000, -
Secret Destruction of Joint Tenant Survivorship Rights
Fordham Law Review Volume 55 Issue 2 Article 2 1986 An Invitation to Commit Fraud: Secret Destruction of Joint Tenant Survivorship Rights Samuel M. Fetters Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Samuel M. Fetters, An Invitation to Commit Fraud: Secret Destruction of Joint Tenant Survivorship Rights, 55 Fordham L. Rev. 173 (1986). Available at: https://ir.lawnet.fordham.edu/flr/vol55/iss2/2 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. An Invitation to Commit Fraud: Secret Destruction of Joint Tenant Survivorship Rights Cover Page Footnote * Professor of Law, Syracuse University. I wish to thank Lisa Gayle Bradley, Esq. for several helpful suggestions and for her able assistance in the preparation of this Article This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol55/iss2/2 AN INVITATION TO COMMIT FRAUD: SECRET DESTRUCTION OF JOINT TENANT SURVIVORSHIP RIGHTS SAMUEL M. FETTERS* INTRODUCTION JOINT tenancy is the most popular form of spousal residential prop- erty ownership in the United States.' Indeed, it is safe to say that * Professor of Law, Syracuse University. I wish to thank Lisa Gayle Bradley, Esq. for several helpful suggestions and for her able assistance in the preparation of this Article. 1. See E. -
Water Case 00-296
IN THE SUPREME COURT, STATE OF WYOMING 2002 WY 89 APRIL TERM, A.D. 2002 June 14, 2002 IN RE: THE GENERAL ADJUDICATION OF ) ALL RIGHTS TO USE WATER IN THE ) BIG HORN RIVER SYSTEM AND ALL ) OTHER SOURCES, STATE OF WYOMING, ) ) JACK APPLEBY, BRAD BATH, JIM BULINE, ) LEAH HEATHMAN, HORNECKER LIVESTOCK, ) INC., RALPH HORNECKER, TIM SCHELL, ) RALPH URBIGKIT, RALPH F. “RUSTY” and ) KATHY URBIGKIT, and DONALD VAN RIPER, ) ) No. 00-296 Appellants ) (Petitioners). ) Appeal from the District Court of Washakie County The Honorable Gary P. Hartman, Judge Representing Appellants: Sky D Phifer of Phifer Law Office, Lander, Wyoming Representing State of Wyoming: Thomas J. Davidson, Deputy Attorney General, Water and Natural Resources Division; Keith S. Burron, Special Assistant Attorney General, of Associated Legal Group, LLC, Cheyenne, Wyoming; and Brian C. Shuck, Special Assistant Attorney General, of Dray, Thomson & Dyekman, P.C., Cheyenne, Wyoming Representing Northern Arapaho Tribe: Richard M. Berley of Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, Washington Representing Eastern Shoshone Tribe: John Schumacher of Law Office of John Schumacher, Ft. Washakie, Wyoming Representing United States of America: John C. Cruden, Acting Assistant Attorney General, Environment & Natural Resources Division; John R. Green, Interim United States Attorney, and Carol Statkus and Thomas Roberts, Assistant United States Attorneys, Cheyenne, Wyoming; Lynn Johnson, Sean Donahue, and Jeffrey C. Dobbins, Attorneys, Department of Justice, Washington, D.C.; and Richard Aldrich, Field Solicitor, Office of the Solicitor, United States Department of the Interior, Billings, Montana Before LEHMAN, C.J.; GOLDEN, KITE, and VOIGT, JJ.; and E. JAMES BURKE, D.J. NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. -
Advanced Mineral Conveyancing and Title Issues - Part 1
Advanced Mineral Conveyancing By Sheryl L Howe Scott L Turner Welborn Sullivan Meek & Tooley, P.C. Denver Paper 1 SHERYL L. HOWE is an attorney with the Denver law firm of Welborn Sullivan Meek 85 Tooley, P.C., where her practice focuses on oil and gas, including title, transactions, and royally issues, along with a variety of other real property matters. She has practiced law in Denver since 1982 and has worked on oil and gas and natural resources matters throughout her legal career. Ms. Howe received her B.A. with honors from the University of Iowa in 1979. She attended the University of Colorado Law School and received her Juris Doctor in 1982. She is licensed to practice iaw in Colorado and Wyoming. SCOTT TURNER is an associate with Welborn Sullivan Meek 85 Tooley, P.C. in Denver, Colorado. Since joining the Firm in 2010, his practice focuses on title examination, oil and gas transactional work, and business and real estate services. Scott received his Bachelor of Arts degree from Indiana University with distinction in 1998 and then worked as a business and information technology consultant with Accenture, LLP for seven years in locales throughout the United States and abroad. Scott then attended the University of Colorado Law School, where he served as the Technical Production Editor of the Colorado Law Review. Upon graduation, Scott began his legal career as a real estate and business transactional attorney with a small law firm based in Denver and Vail, Colorado. Scott is an active member of the Colorado, Wyoming, and American Bar Associations. -
Grants of Easements and Estate Distinguished: Alienability Of
GRANTS OF EASEMENTS AND ESTATES DISTINGUISHED: ALIENABILITY OF POSSIBILITY OF REVERTER In re Wyatt's Claim 74 Ohio L. ribs. 450, 141 N.E.2d 308 (Ohio Zpp. 1955) In November 1901, J. B. Wyatt executed to the Western Ohio Railway Company a warranty deed to a strip of land which was part of a 90 acre tract held in fee by the grantor. A condition in the deed provided that if the grantee failed to use the premises for railway purposes, "the estate hereby granted [Emphasis Added] . shall cease and determine and the title . shall revert . [to] the grantor [,] his.heirs and assigns without further act or deed." In March 1902, J. B. Wyatt conveyed the fee in the 90 acre tract by warranty deed to John H. and J. D. Barnes and the grant excepted "the right and title of the Western Ohio Railway Company' . ." In 1932 the Railway Company forfeited its interest in the strip of land and the owners of the 90 acre tract treated the strip of land as their own.' However, when the Department of Highways appropriated the land for public use, the sole devisee of J. B. Wyatt's estate asserted ownership and claimed the proceeds' of the appropriation. The court of appeals found that the deed to the Railway Company conveyed only a "limited title to a right of way or an easement" and that the deed of the 90 acre tract divested the grantor of all interest in the premises. Relatively little difficulty should be encountered in distinguishing between a fee simple determinable and an easement, but the importance of such a distinction cannot be overemphasized.