o Some grantors would choose to give the land to their children rather than, say, a school, if they couldn’t create defeasible fees this would deter the giving to charities and quasi-charitable organizations Fee Fee Fee simple absolute simple determinable (possibility of reverter) simple subject to condition subsequent (right of entry) Restrictions on Alienability and Use of Land Use restrictions, unlike alienation restrictions, are enforceable Modern rule : restrictions on the alienation of property will not be upheld even though use restrictions will be upheld where they hamper or complete impede alienation Restriction on Alienation of Land 19
PROPERTY OUTLINE – STERK 2013 o Common law : future interests in the transferor (possibility of reverter and right of re-entry) could be sold, transferred, or inherited eliminate restrictions on alienation of property EXCEPTION : Mahrenholz v. County Board of School Trustees held that while the possibility of reverter can be sold, transferred, or inherited, the right of re-entry can’t right of re-entry is inalienable and can only be inherited o Rationale Figure out who holds the right of entry (this may be difficult for an older grant), making it difficult to track down the original grantor/heirs and thus carry out the possibility of collaboration between the grantor and the lodge (in context of Mountain Brow Lodge ) Further, if the grantor has died and devised a will to multiple heirs, there will be multiple people who hold interests in the land and the costs of transacting with all of them will make it very difficult for the above collaboration Restrictions on Use of Land o Modern rule : use restrictions may still be upheld even if they hamper or completely impede alienation can sever an enforceable use restriction from an invalid restraint on alienability ( Mountain Brow Lodge ) Mahrenholz v. County Board of School Trustees (IL 1981) [CB 226] Huttons 1 ½ acre to school district ( “this land to be used for school purposes only ; otherwise to revert to grantors herein” ) Huttons remaining acres to Jacqmains (under IL law, conveyed no interest to school grounds) Jacqmains Mahrenholz (didn’t convey interest to school grounds) Huttons die Harry is heir 1973: school district changes use of land Harry Mahrenholz Harry school district Huttons created a fee simple determinable followed by possibility of automatic reverter. “Only” triggered automatic, mandatory reverter rather than a permissive return. No language indicating that the grantor “may” reenter the land. Harry had fee simple absolute, which he passed on to Mahrenholz; also passed on possibility of reverter. Court held that the possibility of automatic reverter is alienable, but that the right of re-entry can only be inherited , but can’t be transferred. Remanded to determine if school district had actually stopped using the grounds for “school purposes.” Rule :
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