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Property I
University of Oregon School of Law
Osofsky, Hari M.

Property 2006

Present Interest

Words often used to create the interest

FI: in grantor

FI: in 3rd person


“to A”
“and her heirs”


“so long as”

Possibility of Reverter


“provided that”
“on condition”
“but if”

Right of re-Entry
–For Condition Broken (or power of termination)


“until (or unless)…. Then to…”
“but if…, then to…”

Executory Interest

Life estate

“for life”



–estate and interest
–apply rules of construction
–apply the facts of the conveyance

Destructibility of contingent remainder

1) RAP
2) Destruction C/R
3) Merger
4) Doctrine of worthier title
5) Rule for Shelley’s case


Two situations

Where the class of persons entitled to the remainder is not known at the time of the conveyance

i. O to A for life, then to children of B
ii. If B has no children at the time of conveyance, it’s a contingent remainder—the ID of the children cannot be ascertained.
iii. If B has a child in A’s life, then the interest becomes vested, but subject to open assuming B can still have more children.

Where the remainder will take effect only on the happening of an event that is not certain to occur.

i. O to A for life, then to B if B has earned a college degree.
ii. A has PPI in LE
iii. B has contingent remainder in FSA
iv. O has reversion in FSA

Destructibility at common law: O to A for life, then to B if B has children.

i. If B doesn’t have children at the time of A’s death, at common law B’s remainder is destroyed
ii. In a state where remainders are indestructible, on A’s death, the estate will go back to O, who will have a reversion in FSSEL. If B has children some day, they will have a springing executory interest in FSA.
Automatically goes back to O if the use isn’t fulfilled. Magic words are “so long as” and “unless” and “during” and “until.” The grantor’s interest is called Possibility of reverter, and when the condition is no longer met, O get the property back without doing anything. (for adverse possession, time begins to run immediately when condition is violated.)

O wants future descendants to have an interest in getting the land back, but doesn’t want it to be automatic. They will have to assert their rights by entering the land when its used contrary to the terms of the initial grant. Magic words are ‘but if” “provided that” and “O shall have right of re-entry.” Time for Adverse possession usually starts running when the grantor asserts his right to re

ight never become a lawyer & A might have a kid who becomes a lawyer many many years later.
O to O’s grandkids that reach age 21. This is okay, because once O’s kids die, we’ll know for positive 21 years later who gets it! You can measure this by anyone’s live who is alive at the time of the creation of the interest.
O to A for life, then to A’s kids who reach 25. Void because you can’t prove it will necessarily vest or fail within 21 years. Maybe A dies immediately after giving birth . . . then the kid won’t have turned 25 yet 21 years later.
O to A for life, remainder to those of B’s siblings who reach age 21. This is okay because B’s parents can be used as measuring lives.
O to the school board as long as used for X purposes, then to A and his heirs. Void . . . strike the part about A & leave it with the board in fee simple determinable, with O’s possibility of reverter.

i. O to the school board as long as used as X, then to the Red Cross. This is okay because it’s in the charity-to-charity rule.

O to the school board, but if used for X purposes, to A and his heirs. Void . . . strike the part about A . . . which leaves “O to the school board.” So the board gets it in fee simple absolute! This is what happens with fee simple subject to an executory reverter.

Remember that you can ADOPT a kid at any age. So you’re never “too old” to have kids & getting your tubes tied doesn’t matter.

Watch out for “wife” or “widow” without naming any names: they may not be born yet!