Section C1 SIT Section E1

Section C1 SIT Section E1MUSICMUSIC::

CHANTCHANTThe Benedictine Monks of Santo The Benedictine Monks of Santo

Domingo de Silos (1994)Domingo de Silos (1994)

FHA Bans Discrimination Because of “Handicap”

1. Traditional anti-discrimination claims of unequal treatment

• Refusal to rent or sell §3604(f)(1)• Discriminatory terms §3604(f)(2)


1. Traditional anti-discrimination claims of unequal treatment

2. Specialized types of claims to insure access

Physical Access as Civil Rights Issue

• Stairs & Curbs• Doorknobs• Height of Counters & Light Switches &

Water Fountains• Depth of carpet• Width of Doorways


1. Traditional claims of unequal treatment2. Specialized types of claims to insure access• Physical accessibility requirements for new

multi-unit buildings• Reasonable accommodations §3604(f)(3)(B)• Reasonable modifications: §3604(f)(3)(A)

Reasonable Accommodations §3604(f)(3)(B)

• Exceptions to generally applicable policies & programs to insure access

• Same idea as job or exam accommodations for disabilities or for religion

• E.g., Parking spaces accompanying rental or condo unit (wider, closer, sooner)

Reasonable Accommodations §3604(f)(3)(B)

Legal Requirements1.Necessary for enjoyment of unit2.Reasonable. Usually means:•No undue hardship (comparative/proportional)•No substantial burden (quantitative)•No fundamental alteration of program (qualitative)

Can Use This Test for Reasonable Modifications as Well

Reasonable Modifications§3604(f)(3)(A)

In Effect, a Form of Reasonable Accommodation

•Usual Rule (Waste): T can’t modify premises w/o L’s permission•Statute forces exception to rule to allow access to housing •L must allow modification if “necessary” to use housing & “reasonable”

Reasonable Modifications§3604(f)(3)(A)

• §3604(f)(3)(A) interpreted by 24 CFR §100.203• Promulgated by U.S. dept. of Housing & Urban

Development pursuant to authority granted by Congress

• Treat regulation as binding interpretation of statute

Reasonable Modifications:U.S. v. Freer (WDNY 1994) (S201-03)

1. Trailer park – Typically resident owns trailer– Resident rents space from owner of trailer park

2. Resident wants to install ramp at own expense; park owners refuse.

3. Gov’t action against park owners on behalf of resident


Necessity for ramp is pretty straightforward1.5 steps (needs to be carried or assisted)– Can’t participate in normal activities– Afraid to leave home; injured in past while being

assisted

2.Alternative proposed by D much steeper3.Ct: “no question” that refusal to allow ramp

effectively denies equal opportunity to use home


DQ108: Meaning of “Reasonable”1.Statutory Language gives little guidance2.Regulation doesn’t define “reasonable”; just gives

two pretty easy examples.


DQ108: Meaning of “Reasonable”1. Statutory Language gives little guidance2. Regulation doesn’t define “reasonable”; just pretty easy examples.

3.Freer: “no undue financial or administrative burden”; suggests 3-part test from Reas. Accom.:

• No undue hardship• No substantial burden• No fundamental alteration of program


DQ108: Meaning of “Reasonable”3-part test from Reas. Accom.:• No undue hardship• No substantial burden

• No fundamental alteration of program. Means?– Maybe big change to building or interference w fancy

architecture (Trailer park??!!)– Maybe if rental is personal home, L gets more leeway?


Reasonableness of Proposed Ramp• D’s Claims:

1. Would impede trailer removal2. Would cause parked cars to stick out into access road

• Court: Ramp is Reasonable on Preliminary Record1. No evidence of financial harm2. Can be disassembled in 3 hours , so no difficulty removing trailer3. Photograph sheds substantial doubt on claim re impeding traffic

Discussion Questions 109-10featuring BARLEY


DQ109: How Far Can You Go?• Court: Ramp is Reasonable on Preliminary Record

1. No evidence of financial harm Increases local taxes by $40 a year?

2. Can be disassembled in 3 hours , so no difficulty removing trailer

3. Photograph sheds substantial doubt on claim re impeding traffic



1. No evidence of financial harm

2. Can be disassembled in 3 hours , so no difficulty removing trailer 9 hours (What is too long?)

3. Photograph sheds substantial doubt on claim re impeding traffic



1. No evidence of financial harm Increases local taxes by $40 a year?

2. Can be disassembled in 3 hours , so no difficulty removing trailer

3. Photograph sheds substantial doubt on claim re impeding traffic Most cars passing by must slow down to get around

Reasonable Modifications:Restoration of Premises: §100.203(a)

• Landlord’s interest protected:1. Can condition modification on agreement to restore2. Can require $ put in escrow to cover cost of restoring

• Reg: Only need to restore if “reasonable to do so”1. Examples clarify: No need to restore if wouldn’t

bother future tenants 2. E.g., wider doorways, reinforced walls


DQ110: Must ramp installed on exterior of multi-unit building be removed?

203(a): In the case of a rental, the landlord may, where it is reasonable to do so, condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.

Reasonable to do so here?


DQ110: Must ramp installed on exterior of multi-unit building be removed?

203(a): In the case of a rental, the landlord may, where it is reasonable to do so, condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.

Other Arguments?

CHAPTER 7:

The Shadow The Shadow of of

the Pastthe Past

SPOT BUTCH

LEARN THEIR NAMES

Laypeople Don’t Know Categories

Leads to Tension Between:• Channeling Function (Telling State What to Do

w Property Conveyed) &• Grantor’s Intent

See White v. Brown

RECURRING ISSUES

• Grantor’s Intent v. Dead Hand Control

RECURRING ISSUES

• Grantor’s Intent v. Dead Hand Control

• Grantor’s Intent v. Alienability

PRESENT POSSESSORY

ESTATES

PRESENT POSSESSORY ESTATES

• Present v. Future (Tenant v. Landlord)

PRESENT POSSESSORY ESTATES

• Present v. Future • Possessory v. Non-Possessory:

(Tenant v. Trust Beneficiary)

FEE SIMPLE ABSOLUTE

FEE SIMPLE ABSOLUTE

• “Simple”= can go on forever (to distinguish from “Fee Tail”)

FEE SIMPLE ABSOLUTE

• “Simple” = can go on forever (to distinguish from “Fee Tail”)

• “Absolute” = no conditions (to distinguish from conditional or “defeasible” fees, which we’ll introduce next week.)

• Right to possess and use forever• Right to transfer all present and future

rights (inheritable/devisable)• Right to liquidate assets• Default estate today

FEE SIMPLE ABSOLUTE

FEE SIMPLE ABSOLUTE

Lloyd grants Redacre “to Mimi and her heirs.”

FEE SIMPLE ABSOLUTE


WORDS OF PURCHASE:

WHO GETS THE ESTATE?

FEE SIMPLE ABSOLUTE


WORDS OF PURCHASE: WHO GETS THE ESTATE?

WORDS OF LIMITATION:

WHAT ESTATE DO THEY GET?

RELEVANT TIME FRAMES

• “At Common Law”: Dates prior to modern streamlining of the rules.

(e.g., 1600-1800)

RELEVANT TIME FRAMES

• “At Common Law”: Dates prior to modern streamlining of the rules. (e.g., 1600-1800)

• “Today”: Dates after modern stream-lining of the rules. (e.g., 1950-present)

RELEVANT TIME FRAMES• “At Common Law”: Dates prior to

modern streamlining of the rules. (e.g., 1600-1800)

• “Today”: Dates after modern streamlining of the rules. (e.g., 1950-present)

• Precise line between them varies from state to state and from issue to issue, so you don’t need to know where it is.

FINITE ESTATES

TERM OF YEARS

FEE TAIL

LIFE ESTATE

FINITE ESTATES

TERM OF YEARS: TO ANN FOR 10 YEARS

FEE TAIL

LIFE ESTATE

TERM OF YEARS

• Finite period specified • Can alienate, devise, inherit (until term

ends)• Need explicit time language to create:

(“for 99 years”)

FINITE ESTATES


FEE TAIL: TO CAL & THE HEIRS OF HIS BODY

LIFE ESTATE:

ISSUE v. HEIRS

• Issue = Direct (= “Lineal”) Descendants (Children, Grandchildren, etc.)

ISSUE v. HEIRS

• Issue = Direct Descendants • Heirs = People who inherit your property at

the time of your death under the relevant Intestacy Statute

ISSUE v. HEIRS

• Issue = Direct Descendants • Heirs = People who inherit your property at

the time of your death under the relevant Intestacy Statute

• You cannot have heirs until the moment of death

FINITE ESTATES



LIFE ESTATE:

FEE TAIL: TRADITIONAL RULES

• Grantee(X) has present & future possessory right until death– Only X’s issue can take after X's death– Only issue of issue who took can take in future– Equivalent to chain of life estates (thus finite)– Error in course materials S209: goes to grantee’s line

• Present holders can only alienate life estates

FEE TAIL: TRADITIONAL RULES

• Creation at common law: “to A & heirs of his body”– Grant creates no interest in A's issue until A dies.– B/c chain of life estates, won't know who takes till A

dies

• Can have special fee tails– “To A & heirs of his body by W”– “ To A & male heirs of his body”

FEE TAIL: TODAY

• Traditional fee tail abolished in every American jurisdiction.

• What to do if grantor uses language “heirs of his/her body?”

• Statutes determine; different solutions in different states.

• Outside scope of course.

FINITE ESTATES



LIFE ESTATE: TO BEA FOR LIFE

• Right to possess and use forever• Right to transfer all present and future

rights (inheritable/devisable)• Right to liquidate assets• Default estate today

FEE SIMPLE ABSOLUTE

• Right to possess and use only for lifetime of original grantee

LIFE ESTATE

• Right to possess and use only for lifetime of original grantee

• Right to transfer only rights for lifetime of original grantee (not inheritable/ devisable)

LIFE ESTATE

What if a living person transfers a life estate?

• Opal conveys Gemacre “to Ruby for life”, retaining a reversion for herself.

• Ruby then conveys her life estate “to Esmeralda.”

• What does Esmeralda have?

What if a living person transfers a life estate?• Opal conveys Gemacre “to Ruby for life”, retaining a

reversion herself.• Ruby then conveys her life estate “to Esmeralda.”

• Esmeralda has a life estate pur autre vie (for the life of another). The duration of the interest is still measured by Ruby’s life.

• Right to possess and use only for lifetime of original grantee• Right to transfer only rights for lifetime of original grantee

(not inheritable/devisable)• Right only to present income; can’t liquidate capital

(Doctrine of Waste)

LIFE ESTATE

• Right to possess and use only for lifetime of original grantee• Right to transfer only rights for lifetime of original grantee

(not inheritable/devisable)• Right only to present income; can’t liquidate capital

• Default Estate at Common Law

LIFE ESTATE

DEFAULT ESTATE (“To Bill.”)What does Bill get if not specified?

• Common Law: Default was Life EstateBill gets Life EstateGrantor keeps Reversion

DEFAULT ESTATE (“To Bill.”)What does Bill get if not specified?

• Common Law: Default was Life EstateBill gets Life Estate; Grantor keeps

Reversion

• Today: Default is Fee Simple– Bill gets Fee Simple Absolute– Grantor keeps nothing

FUTURE INTERESTS THAT FOLLOW FINITE ESTATES

•REVERSION

•REMAINDER


REVERSIONREVERSION

Future interest retained by grantor when s/he conveys a finite estate without indicating who will have rights when it expires.


REVERSIONREVERSION

Future interest retained by grantor when s/he conveys a finite estate without indicating who will have rights when it expires. E.g.:

Ceci conveys Greenacre “To Didi for life.” (No other instructions.)

Ceci retains a reversion.


REMAINDERREMAINDER

Future interest in a third party that follows naturally upon the termination of a finite estate. It is always expressly conveyed by the grantor.


REMAINDERREMAINDER

Future interest in a third party that follows naturally upon the termination of a finite estate. It is always expressly conveyed by the grantor. E.g.:

Fifi conveys Tanacre “To Gigi for life, then to J.J.”

J.J. has a remainder. Fifi retains nothing.

QUESTIONS?

WHITE v.

BROWN

DQ111: White majority states that “the free alienation of property [is] one of the most significant incidents of fee ownership.” Why is it significant? 1. Allows land to move to owner who can make most valuable use of it

2. Means land is relatively liquid asset (can sell or mortgage for $)

Discussion Questions 112-14featuring CORN

DQ112:The White majority complains that

“the words chosen by the testatrix are not specific enough to clearly state

her intent."

What do you think Jessie Lide’s intent is?

I wish Evelyn White to have my home to live in and not to be sold. I also leave my personal property to Sandra White Perry. My house is not to be sold.

Why does the majority have problems

discerning Jessie Lide’s intent?

I wish Evelyn White to have my home to live in and not to be sold. Possible Characterizations

• Fee Simple • Life Estate

• Conditional Fee– So long as not sold– So long as E lives there

• Conditional Life Estate

DQ113: WHAT ARE THE MAJORITY’S ARGUMENTS

THAT MS. LIDE INTENDED TO CREATE A FEE SIMPLE?

MAJORITY ARGUMENTS(FEE SIMPLE)

• Presumption: grant conveys whole estate• No gift over• Partial intestacy disfavored

DQ113: WHAT ARE THE DISSENT’S ARGUMENTS

THAT MS. LIDE INTENDED TO CREATE A LIFE ESTATE?

DISSENT ARGUMENTS(LIFE ESTATE)

• Use all language (presumption): grantor said to limit power to sell

• Grant says “to live in”• No limits in gift to niece

I wish Evelyn White to have my home to live in and not to be sold. I also leave my personal property to Sandra White Perry. My house is not to be sold.

Whose Arguments Seem Stronger?

RESULT OF HOLDING OF WHITE v. BROWN

The Property Can Be Sold!!!

DQ114:What additional facts might add weight to the majority opinion?

To the dissent?

White v. Brown: What Happened?

1. E had stroke, moved in w daughter2. Probably wants to sell house b/c rental

income not much3. Significance of case:– If life estate, most of value goes to

nieces/nephews– If fee simple (as court held), E gets money for life

& medical expenses

White v. Brown: “Channeling”

1. Recurring problem with estates/future interests: laypeople don’t know relevant categories.

2. Thus, they don’t know how to signal to future court to show what they wish.

3. Important role that lawyers play in helping with wills is to channel client desires into language that will give legal effect to those wishes.

QUESTIONS?

Monday & Tuesday

1. Waste2. Monday Readings for Chapter 7 up through

Problems 7A-7F (WHEAT)3. Qs on Written Assignments #3 & #44. Then back to Anti-Discrimination Law– Finish Marable– Review Problem 6G (Oats & Rice) (Finish

Wed/Thu if necessary

Mid-September Crisis

Mid-October Crisis

Mid-October Crisis:POSSIBLE CAVEATS

• Fall Break is New• New LComm Schedule replaced 1st Open

Memo with 2d Closed Memo

Mid-October Crisis:The Upside

Mid-October Crisis:SOME ADVICE

1. Don’t Miss Classes


1. Don’t Miss Classes

2. If You Get Behind in Reading, Skip Ahead to Current Class & Catch Up Later


1. Don’t Miss Classes2. If You Get Behind in Reading, Skip Ahead to

Current Class & Catch Up Later

3. Eat, Get Sleep & Take Short Breaks


1. Don’t Miss Classes2. If You Get Behind in Reading, Skip Ahead to

Current Class & Catch Up Later3. Get Sleep & Take Short Breaks

4. Plan Catch-Up Work and Outlining for One Course Each Weekend

Mid-October Crisis: Like Doing Law School Exam Questions

• Can’t do everything as well as you’d like; do the best you can with time you have

• Be very careful not to waste time• Identify what work is most important for you

and spend time accordingly• Be realistic in your expectations; don’t get

upset that you are not superhuman.• This too shall pass!

Documents

Section C1 SIT Section E1