PROPERTY E SLIDES 3-4-13. to Ernie for life then to Burt forever OLYMPIC: (4B) Kermit “to Ernie...

PROPERTY E SLIDES

3-4-13

OLYMPIC: (4B) Kermit “to Ernie for to Ernie for lifelife, then to Burt foreverthen to Burt forever.” (Common

• Ernie: Life Estate• Burt: Vested Remainder in Life Estate• Kermit: Reversion

OLYMPIC: (4B) Kermit “to Ernie for to Ernie for lifelife, then to Burt foreverthen to Burt forever.” (TODAY)

• Ernie: Life Estate

• Burt: ?

• Ernie: Life Estate• Burt: Vested Remainder in Fee Simple

- Default Estate Today is Fee Simple

• Kermit?

• Ernie: Life Estate• Burt: Vested Remainder in Fee Simple• Kermit: Nothing Left

When Ernie Dies?

• Burt: Fee Simple AbsoluteWhen Burt Dies?

Property passes by Burt’s will or through intestacy to Burt’s heirs.

OLYMPIC: (4C) Elmer “to Sylvester for to Sylvester for lifelife, then to Bugs and his heirsthen to Bugs and his heirs.”

• Sylvester: ?

• Sylvester: Life Estate• Bugs:?

• Sylvester: Life Estate• Bugs: Vested Remainder in Fee Simple

[Absolute]Bugs dies intestate without heirs.

What Effect?

• Sylvester: Life Estate• Bugs: Vested Remainder in Fee Simple – Bugs dies intestate without heirs. – Vested Remainder passes to State by Escheat (like rest

of Bugs’s property)

Sylvester Dies: What Effect?

• When Bugs died intestate without heirs, Vested Remainder passed to State by Escheat.

• When Sylvester dies, Vested Remainder becomes Fee Simple.

• So: State has Fee Simple Absolute

OLYMPIC: (4D) Mickey “to Minnie for life, then to Pluto for 99 years.”

•Minnie?

OLYMPIC: (4D) Mickey “to Minnie to Minnie for lifefor life, then to Pluto for 99 years.”

• Minnie: Life Estate• Pluto?

OLYMPIC: (4D) Mickey “to Minnie for life, then to Pluto for 99 years.” then to Pluto for 99 years.”

• Minnie: Life Estate• Pluto: Vested Remainder in Term of Years.• Anything Else?

• Minnie: Life Estate• Pluto: Vested Remainder in Term of Years.• Mickey: Reversion

• Minnie: Life Estate• Pluto: Vested Remainder in Term of Years.• Mickey: Reversion (eventually to his successors)– Somebody has to own the rights to the property after

the first two finite interests are completed. Because Mickey did not give away those rights, he must still have them at the time of the grant.

• Minnie: Life Estate• Pluto: Vested Remainder in Term of Years.• Mickey: Reversion (eventually to his successors)– Note we say that Mickey has a Reversion even though

we are pretty certain he won’t be alive when it becomes possessory (after all, he’s a mouse). When Pluto’s interest ends, Mickey’s successors will take possession.

OLYMPIC: (4E) Derek“to Bernie for life, then to Jorge for life, then to Roger and his

heirs.”

• Bernie?

OLYMPIC: (4E) Derek “to Bernie for lifeto Bernie for life, then to Jorge for life, then to Roger and his

heirs.”

• Bernie: Life Estate• Jorge?

heirs.”

• Bernie: Life Estate• Jorge: Vested Remainder in Life Estate.– Note that even though Jorge has to survive Bernie for

his interest to become possessory, we don’t describe this as a Contingent Remainder because the condition is not stated explicitly.

• Roger?

heirs.”

• Bernie: Life Estate• Jorge: Vested Remainder in Life Estate.• Roger: Vested Remainder in Fee Simple.

OLYMPIC: (4F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains

the age of 21.” Betty is 15.

• Veronica: ?

OLYMPIC: (4F) Reggie “to Veronica for to Veronica for lifelife, then to Betty and her heirs if Betty attains

• Veronica: Life Estate• Betty?

• Veronica: Life Estate• Betty: Contingent Remainder in Fee Simple

(condition of turning 21 must be met before she can get property)• Anything Else?

• Veronica: Life Estate• Betty: Contingent Remainder in Fee Simple • Reggie: Reversion– Always Created Along with Contingent Remainder– Covers Rights to Property After Veronica Dies if Betty’s

Condition Not Met

• Veronica: Life Estate• Betty: Contingent Remainder in Fee Simple • Reggie: Reversion

the age of 21.”

• Veronica: Life Estate• Betty: Contingent Remainder in Fee Simple • Reggie: Reversion• What if Betty turns 21 while Veronica is alive?

OLYMPIC: (4F) Reggie “to V for lifeto V for life, then to B and her heirs if B attains the age of 21.”

***B turns 21 while V alive***

• Veronica: Life Estate• Betty’s Contingent Remainder “vests” leaving her

with a Vested Remainder in Fee Simple• Reggie’s Reversion now can never become

possessory, so we say it “divests,” leaving him with nothing.

the age of 21.”

• Veronica: Life Estate• Betty: Contingent Remainder in Fee Simple • Reggie: Reversion• What if Betty dies at age 17 while Veronica is

alive?

OLYMPIC: (4F) Reggie “to V for lifeto V for life, then to B and her heirs if B attains the age of 21.”

***B dies at 17 while V alive***

• Veronica: Life Estate• The condition can never be met, so Betty’s

Contingent Remainder “fails” leaving her (and her successors) with nothing

• Reggie’s Reversion stays in place, so he or his successors will get the property when Veronica dies.

the age of 21.”• Veronica: Life Estate• Betty: Contingent Remainder in Fee Simple • Reggie: Reversion• What if Veronica dies while Betty is still age 17? – Life Estate is Over– Betty Can’t Take, Because Condition Not Met– We’ll Come Back to This After We Introduce Executory

Interests

YOSEMITE: Problem 4G

HALF DOME

YOSEMITE: (4G): “To my only son, Larry, for life, then to Larry's children

and their heirs." Larry has two living children, Moe and

Curly. • Larry?

Curly. • Larry: Life Estate• Moe & Curly?

Curly. • Larry: Life Estate• Moe & Curly: Vested Remainders (in Fee

Simple) Subject to Open– Remainders are still vested b/c M&C certain to get at least

a share of the property.– Use of “subject to open” makes clear that exact share of

the property they will get is uncertain; reduces if more children born.

– We don’t use phrase “subject to open” with contingent remainders, which are always uncertain.

Curly.• Larry: Life Estate• Moe & Curly: Vested Remainders (in Fee Simple) Subject

to Open• Larry has additional child, Stella.

Stella has?

and their heirs." Larry has 3 living children, Moe, Curly,

Stella.• Larry: Life Estate• Moe & Curly & Stella: Vested Remainders (in Fee

Simple) Subject to Open• Curly (C) dies, leaving his wife, Noreen, and a

child, Orrin; C's will devises all property to Noreen. What happens to C’s interest?

and their heirs." Larry had 3 children, Moe, Curly, Stella.

• Larry: Life Estate• Moe & Noreen & Stella: Vested Remainders (in

Fee Simple) Subject to Open– Nothing in grant requires that L’s children survive him– As in Problem 4C, Vested Remainder in Fee Simple

passes at death like any other property.• Larry dies. State of the title?

and their heirs."

• Larry Dies, ending Life Estate• Moe & Noreen & Stella: Share Fee Simple

Absolute (as Tenants-in-Common)– For this course, only need to know that they’d share;

don’t need to know term “tenants in common” or what it means.

LOGISTICS

• Chapter 4 Test Preparation (3/21)– Info & Instructions on Course Page; E-Mail Me if Qs– Bank of Sample Qs & Entire Fall 2007 Test Posted• You’ll Be Ready For Most by End of Week• After Class Thursday, I’ll Post

– List of Qs That Require Material We’ll Cover After Break– Answers to Qs You’re Ready For

• I’ll Post Rest of Answers & Fall 2010 Test After Class on 3/18

LOGISTICS

• Final Exam Test Preparation (3/21)– Instructions for Submitting Sample Exam Answers on

Course Page; E-Mail Me if Qs– If you want to submit more than one, first submission

must be by Friday of Spring Break– Samples of Exam Qs 1, 3, 4 posted on course page

with indication of what material they cover. • For now, mostly just to see what they look like• I’ll post comments and best answers soon

LOGISTICS

• Good Idea to Make Plans Soon for Next Six Weeks– Need to Do Substantial L.Comm.Work– Need to do Pre-Exam Outlining (etc.) for Other Four

Classes• My Recommendation: – Serious Work over Spring Break (4 days off; 5 days on)– One day a week during Late March & April for serious

review of one of your non-L.Comm Classes

DEFEASIBLE FEES

• Dotted Line indicates Conditional Interest• Open Circle indicates that it would cut off present

interest (usually at an unspecified time) as opposed to waiting for it to be complete.

DEFEASIBLE FEES:Two Relevant Distinctions

1.Automatic termination v. Needs action by future interest holder

2.Who holds future interest?: GrantorGrantor v. GranteeGrantee

DEFEASIBLE FEES:Restatement Terms

• Fee Simple Determinable

• Fee Simple on Condition Subsequent

• Fee Simple on Executory Limitation

DEFEASIBLE FEES:Fee Simple Determinable

• OPERATION: Self-Executing (Automatically Terminates Fee Simple When Condition Occurs)

• OPERATION: Self-Executing • KEY LANGUAGE: “So long as”, “While”,

“Until” (References to Time)

• OPERATION: Self-Executing• KEY LANGUAGE: “So long as”, “While”, “Until” • FUTURE INTERESTFUTURE INTEREST: “Possibility of : “Possibility of

Reverter” Reverter” (in GRANTOR)(in GRANTOR)

DEFEASIBLE FEES:Fee Simple Determinable:

Example

To Estelle and her heirs so long as asparagus is not grown on the property.

DEFEASIBLE FEES:Fee Simple on Condition

Subsequent

• OPERATION: Grantor (or Successor) Must Act to Terminate Fee Simple

Subsequent

• OPERATION: Grantor Must Act • KEY LANGUAGE: – “But if”, “provided that if”, “on condition that if”

PLUS– “O may [re]enter and [re]claim the land”

Subsequent

• OPERATION: Grantor Must Act• KEY LANGUAGE: “But if”, “provided that if”, “on

condition that if” PLUS “O may [re]enter and [re]claim the land”

• FUTURE INTERESTFUTURE INTEREST: “Right of [Re]Entry” : “Right of [Re]Entry” (in GRANTOR)(in GRANTOR)

DEFEASIBLE FEES:Fee Simple on Condition Subsequent :

Example

EXAMPLE: To Estelle and her heirs, but if asparagus is grown on the property, I can reenter and claim the land

DEFEASIBLE FEES:Fee Simple on Executory

Limitation

• OPERATION: Either self-executing or grantee has to act.

Limitation

• OPERATION: Either self-executing or grantee has to act.

• KEY LANGUAGE: Creates interest in 3d party if condition violated

Limitation

• OPERATION: Either self-executing or grantee has to act.• KEY LANGUAGE: Creates interest in 3d party if condition

violated

• FUTURE INTEREST: Executory Interest Executory Interest (in 3d party grantee)

DEFEASIBLE FEES:Fee Simple on Executory Limitation:

Examples

• To Estelle and her heirs so long as asparagus is not grown on the property, otherwise to Bob.

DEFEASIBLE FEES:Fee Simple on Executory Limitation:

Examples

• To Estelle and her heirs so long as asparagus is not grown on the property, otherwise to Bob

• To Estelle and her heirs, but if asparagus is grown on the property, Bob can reenter and claim the land.

DEFEASIBLE FEES:Restatement Terms (What We

Use)• FEE SIMPLE DETERMINABLE

(to grantor; automatic)

• F.S. ON CONDITION SUBSEQUENT (to grantor; must act)

• F.S. ON EXECUTORY LIMITATION (to grantee; either way)

Defeasible Fees & Matching Future Interests (Accessorizing)(Accessorizing)

• FEE SIMPLE DETERMINABLE & Possibility of Reverter

• F.S. ON CONDITION SUBSEQUENT & Right of Re[Entry]

• F.S. ON EXECUTORY LIMITATION & Executory Interest

TERMINOLOGY: ME v. WORKBOOK

Defeasible fee in the form of a Fee Simple Determinable BUT with the future interest in third party:

• Me (& Restatement): “Fee Simple on Executory Limitation”

• Workbook: “Fee Simple Determinable” (See Workbook p.42 fn19)

TERMINOLOGY: ME v. TEXTBOOK

• Textbook says Fee Simple on Executory Limitation terminates automatically (P580)

• For our purposes, assume that sometimes, a Fee Simple on Executory Limitation can operate like a Fee Simple on Condition Subsequent

• “To Sonny & his heirs, but if Sonny ever runs for Congress, Cher may enter and take the land.”

Defeasible Finite Estates: Examples

Term of Years on Condition Subsequent:“To Joshua for 20 years, but if he ever passes the

bar exam, my heirs can enter & retake.”

Life Estate on Executory Limitation“To Richard for life, but to Chris & his heirs if Chris

ever passes the bar exam.”

YOSEMITE: Problem 4H

HALF DOME

YOSEMITE: (4H): Thelma conveys “To Louise for 99 Years if Louise so long

live."

• Louise?

live."

• Louise: Term of years determinable.– Most likely to operate as a life estate, but L

might live 99 more years. – Used where there is some legal or tax reason

to avoid life estate.

live."

• Louise: Term of years determinable.

• What other interests are there?

live." • Louise: Term of years determinable.• Thelma: Possibility of Reverter plus

Reversion =Reversion (Merger)

Doctrine of Merger• If one person becomes the owner of

two contiguous interests, the interests will

Doctrine of Merger• If one person becomes the owner of two

contiguous interests, the interests will• Example: –Eric has a life estate. –Katie holds the reversion that follows

it. – If Eric purchases the reversion from

Katie, it merges with his life estate and he will have a fee simple absolute.

Doctrine of Merger• If one person becomes the owner of two

contiguous interests, the interests will

YOSEMITE: We’ll Return to Problem 4I After Mahrenholz (Probably

Tomorrow)

HALF DOME

MahrenhoMahrenholz v.lz v.

County County BoardBoard

ZION: Discussion Questions 63:Mahrenholz Major Events

TEMPLES & TOWERS OF THE VIRGIN

ZION DQ63: Mahrenholz Major Events• 3/51: Grant to SD#1• 2/69: Mrs.H dies intestate; HH sole heir• 5/73: Property used for storage only• 5/77: HH conveys interest to Ms• 9/77: HH releases interest to SD#1

ZION DQ63: Mahrenholz Major EventsFee Simple Determinable Fee Simple Determinable & Poss. Poss.

of Rev.of Rev.• 3/51: Grant to SD#1 SD=FSD + Hs=PRHs=PR• 2/69: Mrs.H dies intestate; HH sole heir ?

ZION DQ63: Mahrenholz Major EventsFee Simple Determinable Fee Simple Determinable & Poss. Poss.

of Rev.of Rev.• 2/69: Mrs.H dies intestate; HH sole heir

SD=FSD + HH=PRHH=PR• 5/73: Property used for storage only • 2 Possibilities: Violation or Not ?

ZION DQ63: Mahrenholz Major EventsFee Simple Determinable Fee Simple Determinable & Poss. of Poss. of

Rev.Rev.SD=FSD + HH=PRHH=PR

5/73: Property used for storage only

GRANT VIOLATEDHH-FEE SIMPLE ABS.

5/77 HH Ms

NO VIOLATIONSD-FSD HH-PRHH-PR5/77 HH Ms

Rev.Rev.5/77: HH Mahrenholzes

GRANT VIOLATEDHH-FEE SIMPLE ABS.

Ms-FEE SIMPLE ABSOLUTE

9/77 HH release to SD?

NO VIOLATIONSD-FSD HH-PR HH-PR

SD-FSD HH-PRHH-PRCan’t Transfer PR in Illinois Except

to Holder of Fee; Only Passes Through Intestacy

Rev.Rev.9/77: HH Release to SD

GRANT VIOLATEDMs-FEE SIMPLE ABS.HH has Nothing, So Release

Ineffective

Ms-FEE SIMPLE ABS.

NO VIOLATIONSD-FSD HH-PRHH-PR

Release to Holder of Fee Allowed; School District’s

Interests Merge

SD-FEE SIMPLE ABS.

ZION DQ63: Mahrenholz Major Events

Fee Simple on Condition Subsequent Fee Simple on Condition Subsequent &

Right of EntryRight of Entry• 3/51: Grant to SD#1 SD=FSCS + Hs=REHs=RE• 2/69: Mrs.H dies intestate; HH sole heir ?

ZION DQ63: Mahrenholz Major Events

Fee Simple on C.S. Fee Simple on C.S. & Rt. Of EntryRt. Of Entry• 2/69: Mrs.H dies intestate; HH sole heir

SD=FSCS + HH=REHH=RE• 5/73: Property used for storage only • 2 Possibilities: Violation or Not ?

ZION DQ63: Mahrenholz Major EventsFee Simple on C.S. Fee Simple on C.S. & Rt. Of EntryRt. Of Entry

SD=FSCS + HH=REHH=RE5/73: Property used for storage only

GRANT VIOLATEDSD-FSCS HH-REHH-RE

Right of Entry Only Can Become Fee if Holder Acts: HH Didn’t

5/77 HH Ms

NO VIOLATIONSD-FSCS HH-REHH-RE

5/77 HH Ms

SD=FSCS + HH=REHH=RE5/77: HH Mahrenholzes

Can’t Transfer RE in Illinois Except to Holder of Fee, so No

Change

Can’t Transfer RE in Illinois Except to Holder of Fee, so No

Change

SD=FSCS + HH=REHH=RE9/77: HH Release to SD

Interests Merge

SD-FEE SIMPLE ABS.

Interests Merge

SD-FEE SIMPLE ABS.

Rev.Rev.9/77: HH Release to SD

GRANT VIOLATEDMs-FEE SIMPLE ABS.HH has Nothing, So Release

Ineffective

Ms-FEE SIMPLE ABS.

NO VIOLATIONSD-FSD HH-PRHH-PR

Interests Merge

SD-FEE SIMPLE ABS.

Mahrenholz: Summary of Possibilities

FSD/PR FSCS/RE

Violation Mahrenholzes School District

No Violation School District School District

ZION: Mahrenholz & DQs 64-66: Distinguishing FSD from FSCSFSD from FSCS

TEMPLES & TOWERS OF THE VIRGIN

ZION: Mahrenholz & DQ64Distinguishing FSD from FSCSFSD from FSCS

The court says: “The type of interest held governs the

mode of reinvestment with title if reinvestment is to occur.” (Top para.

What does the court mean by “reinvestment”?

“In Northwestern Univ. …, a conveyance was ‘made upon the express condition that… Wesley Hospital… shall erect a hospital building on said lot … and that

on the failure of … Wesley Hospital to carry out these conditions the title shall revert to Northwestern

University.’ This language cannot be interpreted as creating anything but a fee simple subject to a condition subsequent…” (P584, 3d full para.)

Northwestern Univ.: •Grant to build hospital building on lot conveyed.•If FSD: Very difficult to identify precise moment when condition is violated and grantee loses fee•Interpret as FSCS – Grantor can exercise discretion about when grantee

has sufficiently shown non-compliance – Court doesn’t have to do line-drawing about when a

building isn’t built

In a deleted passage in its discussion of McElvain, the court says that “as an action in ejectment was brought…, the difference between a fee simple determinable and a

fee simple subject to a condition subsequent would have no practical effect

….”

Why does it believe this?

Mahrenholz Distinguishing FSD from FSCS (P583)FSD from FSCS (P583)

• Use FSD to give property “for so long as it is needed for the purposes for which it is given and no longer”

• Use a FSCS “to compel compliance with a condition by penalty of a forfeiture.” – Pretty fine distinction– Court is describing idealized use of the forms– Can use to argue a particular grant is FSD or FSCS

Use FSD to give property “for so long as it is needed for the purposes for which it is given and no longer” •To Xavier, so long as he operates his dental practice on the premises.•To Yolanda, so long as she doesn’t remarry.•To Zebulon University, so long as it is used as a research laboratory.

• Use a FSCS “to compel compliance with a condition by penalty of a forfeiture.”

• To Xavier, but if the property is ever used for commercial purposes …

• To Yolanda, but if alcohol is ever used on the premises …• To Zebulon University for construction of a science

building, but if the building is not completed within 5 years or if it ever ceases to be used for educational purposes …

ACADIA: Mahrenholz & DQs 67-70:

Acadia Sunrise

ACADIA: Mahrenholz & DQ67Distinguishing FSD from FSCSFSD from FSCS

To the Trustees of School District No. 1:

"to be used for school purpose only; otherwise to revert to

Grantors herein.”Arguments for FSD?Arguments for FSD?

"to be used for school purpose only; otherwise to revert to Grantors

herein.”•Arguments for FSD– “only” suggests automatic– Condition in clause creating fee, not subsequent clause – “to revert” (v. “may re-enter”) suggests automatic– Similar grants held FSD

•Arguments for FSCS?

"to be used for school purpose only; otherwise to revert to Grantors

herein.”•Arguments for FSCS– 2 clauses usually used for FSCS– No time words– Otherwise looks like “but if” (Wolfe)– Most states presume FSCS

ACADIA: Mahrenholz & DQ68Distinguishing FSD from FSCS: ConsequencesFSD from FSCS: Consequences

Under what circumstances might the distinction between a fee simple determinable and a fee simple on

condition subsequent be significant?

• Transferability after breach (Mahrenholz issue)• Adverse Possession (Clock starts running

immediately when condition violated if FSD)• Income from land after breach (Goes to future

interest holder if FSD)• Waiver/Estoppel by future interest holder (only

possible if FSCS)

Given significant consequences, why do so many grants fail to

indicate clearly which interest is intended?

Mahrenholz Distinguishing FSD from FSCS:FSD from FSCS:

Test Note #2: Test Will Include At Least One Grant (Yielding

Multiple Questions) with a Present Estate That Could Be Either Determinable or on Condition Subsequent, So You Need to Know Arguments

Distinguishing the Two. E.g., Problem 4I Includes This

Kind of Ambiguous Grant

ACADIA: Mahrenholz & DQ69Meaning of “School Purpose”

IS STORAGE A “SCHOOL PURPOSE”?•Parties’ Likely Arguments– For School District?– For Future Interest Holder?

IS STORAGE A “SCHOOL PURPOSE”?•What legal research could you do to help resolve this question?

IS STORAGE A “SCHOOL PURPOSE”?•Useful Legal Research includes:– CASES ON “SCHOOL PURPOSE”

– CASES ON “CHURCH PURPOSE” ETC. • What factual research could you do

to help resolve this question? (What facts matter?)

ACADIA: Mahrenholz & DQ69Meaning of “School Purpose”IS STORAGE A “SCHOOL PURPOSE”?

•Useful Factual Research includes:– Use of Space– Grantor’s Intent

•Useful Factual Research includes:– Use of Space• What is stored & how used? • Alternatives (crowding? Cost?)• How regularly is storage accessed?

–Grantor’s Intent

•Useful Factual Research includes:– Use of Space– Grantor’s Intent• Check Grant or Related Documents•Witnesses to Transaction• Ask Grantor if Alive•Witnesses re Grantor Beliefs

Mahrenholz Meaning of “School Purpose”

Test Note #3: Test Will Include At Least One Grant

Containing an Imprecise Term Like “School Purpose” and You Will Be Asked to Consider

Arguments About Whether a Particular Action or Activity Falls Within that Term.

ACADIA: Mahrenholz & DQ70

Why should we allow grantors to have any control at all of what

happens to land after they have died?

We’ll come back to after Spring Break w Shapira case.

YOSEMITE: Problem 4I

HALF DOME

YOSEMITE: (4I): O conveys "to J and her heirs so long as the premises are not used for sale of beer, wine, or

liquor, and if beer, wine, or liquor is sold on the premises, O retains a right to re-enter the premises."

• J opens a restaurant that serves several dishes cooked with wine or flamed with brandy and at Sunday brunch offers a free glass of champagne.

• The restaurant is successful, and 11 years after its opening D wants to buy it and add a bar. Advise D.

MULTI-STEP ANALYSIS Corresponds to Plausible Sequence of Multiple Choice Qs

•FSD or FSCS?•CONDITION VIOLATED?•EFFECT OF VIOLATION?•ADVICE RE PURCHASE

MULTI-STEP ANALYSIS •FSD or FSCS?•CONDITION VIOLATED?•EFFECT OF VIOLATION?•ADVICE RE PURCHASE

FSD or FSCS? Does Orrin’s interest vest automatically (FSD)

or does he have to act (FSCS)? Arguments for Each Position?

FSD or FSCS: Arguments Include:•“So long as” & condition built into 1st clause suggest FSD• Moment of violation clear, so can be FSD•“Right to re-enter” & 2 clauses suggest FSCS•“Retains” suggests FSCS b/c implies that O’s right can be held for some period of time after violation• Most states: Presumption favoring FSCS• Mahrenholz: More like punishment than purpose

MULTI-STEP ANALYSIS •FSD or FSCS?

•CONDITION VIOLATED?•EFFECT OF VIOLATION?•ADVICE RE PURCHASE

Does It Violate Condition if J’s Restaurant:(i)Serves several dishes cooked with wine or flamed with brandy? (ii)At Sunday brunch offers complimentary glass of Champagne?

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