Property - Waste

Front 1

3 types of Waste

Back 1

1. Voluntary or affirmative
2. Permissive
3. Ameliorative

Front 2

Voluntary Waste

Back 2

e.g. destroying buildings
or removing timber

Front 3

Permissive Waste

Back 3

- reasonable repairs to prevent deterioration
- need not rebuild casualty damage
- Need not spend more than the rental volue

Front 4

Voluntary waste

Back 4

1. Life tenant many not impair property's "nature, character, and improvements."
Brokaw v. Fairchild
p. 289
- unless it would be useless otherise?

2. Life tenant may not impair market value of property
- Many courts say life tenant may demolish or replace to make reasonable use if it doesn't diminish value of remainder.

Front 5

If grantor has just referred to my property at such and such street address, would the court have reached the same conclusion that you can't change those improvements at all?

Back 5

The court would have reached a different conclusion. This property is not isolated and alone, still has value - contrast Mills brewery case, tiny island of land.
p. 292, you can change the inheritence but life tenant - if it is a complete loss of value, it is OK to change the improvements, tear it down and put something else up....here the loss is not so drastic.

Front 6

If we did not have a drastic loss of value but also did not have in the will "to preserve my residence", what would court do?

Back 6

Some kind of change, even drastic change will be acceptable and will not be waste...some courts are more interested in impact on market value (value of the property interest) others are interested in really what the grantor intended.

Front 7

This court in Brokaw.....

Back 7

as long there is residential use going on, then this is not such a drstic use - but if you could demonstrate that the property is unrentable.... Court would sympathize - and say, when you have that type of extreme loss, it is ok to tear it down and rebuild.

Front 8

Subtext in Brokaw that makes the court less sympathetic to a contingent remainder.....

Back 8

they aren't attached to this house, they want to just tear it down and rebuild to increase value of all of the real estate

Front 9

Who or what interests in the property pursuant to will (what are the interest owners)?

Baker v. Weedon p. 296

Back 9

1. Anna - life estate
2. Anna's children - contingent on her having those children (contingent precedent have to be born) - best not to express it this way, but to say the contingent remainder b/c takers are not ascertainable

3. John's grandchildren - alternative contingent remainder

Front 10

Alternative contingent remainder

Back 10

if first remainder fails then 2nd or alternative contingent remainder prevails

Front 11

1. What about ROP? with Anna's unborn children - when would Anna's children have a vested remainder?

2. Is that moment certain to happen during Anna's lifetime (someone who is alive at the time of the conveyance)?

3. John's grandchildren vested?

Back 11

1. at the time they are born

2. Yes, this satisfies the ROP

3. If it is ever to vest, it will happen when she dies, if she has no children, Yes, ROP also satisfied b/c will happen during lifetime (at the end) of Anna.

Front 12

If card 11 were not in the will, then you have a problem, b/c the vesting moment is Anna dying w/out children w/out isseu, but this is only onw type of contingency

1. if Anna dies w/out children

2. if rule of Convenience does not come to the rescue, John could still have another child and grandchild of that child could qualify nmor than 21 years,,,, but b/c of the will we know that all children will be born in the lifetime... also satisfies the ROP

Back 12

There can be more than one reason the remainder is contingent and be sure you look at this.

Front 13

When will a court force the sale of a life tenant and remainder?

Life tenenat v. Remaindermen

Back 13

G/R: as follows

a. Waste
b. Selling property
- court may order when "necessary for the preservation of all interests in the land"
- Definitely when estate is losing value and income isn't enough to maintain and pay tax - remaindermen would lose money, even though getting money out of the sale, but would not get the money out of the appreciation of the property over the next however many years - this would make a sale in contra to interest of remainder

Front 14

Future Interests

RULE OF CONVENIENCE

Back 14

1. applies only to remainders to a group

2. anyone born after life estate ends and after remainder has vested in at least one person, is excluded from class

3. Presumptive rule of interpretation, manifest contrary intent will be followed

CAUTION: considerable uncertainty b/c ROC is not applied very often
What type of contra-interest is suffiecient.

Applies only when we are uncertain about who the takers will be

Class remains open if we know who the takers wil be, but not sure if they will meet the conditions at the appropriate time.

Front 15

Life estate - Anna could sell this part to X but NOT remainder b/c she does not own.

Back 15

But who is gonna buy it? Can't build on it, and as soon as she dies, it goes to remainder.... Now, Anna and X could sell together and sell FSA to X.

Front 16

Restraints on Alienation

Back 16

1. Disabling (transfer void)
- always valid (unless reinterpreted)

2. Forfeiture (transfer forfeits estate)
- may be valid on life estate
- common w/leaseholds

3. Promisory
- may be valid if limited in time and scope
- common with leaseholds

Front 17

Restraints on Alienation

Back 17

Courts construen this as narrowly as possible

Policy is the same as for ROP