[WSBARP] [WSBAPT] What the heck

[Mark Vohr]

Back to the law school exam, I always thought that a person with a life estate could freely convey their life estate if they could find someone willing to pay them to occupy the premises for as long as the life estate holder was alive.  I am not a property lawyer, so am I incorrect on this point?

Mark C. Vohr, J.D. CPG
Ohana Fiduciary Corporation
A Washington Trust Company
155 NE 100th St., Suite 209
Seattle, WA  98125
Telephone:  (206) 782-1189

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Roger Hawkes
Sent: Thursday, September 1, 2022 10:57 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Cc: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBAPT] What the heck

Phil: by definition in most cases a life estate means the grantee cannot dispose of his or her interest during life; why is that an illegal restraint on alienation?

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Philip N. Jones
Sent: Wednesday, August 31, 2022 5:50 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Cc: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] What the heck

Very odd. Looks like a life estate (which is OK) combined with a restraint on alienation (which is not OK).  Shame on he or she who drafted it.
Phil Jones
Philip N. Jones
Duffy Kekel LLP
Portland, OR
pjones at duffykekel.com<mailto:pjones at duffykekel.com>
(503) 853-1482 cell

On Aug 31, 2022, at 5:05 PM, Eric Nelsen <eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>> wrote:

Law school exam!

“In case of accident or death the property here-of will rightfully be returned to the Grantor.” This is too vague to be enforceable. What does accident mean? Death of whom? What does “rightfully” mean?

“In case of death of both parties the hereby property will be left in the name of [another person] with the agreement he cannot sell said property in his life time.” If “both parties” means Grantor and Grantee, then this is a failed attempt to create some kind of transfer on death contingency and doesn’t meet the statutory requirements, and likely was executed before the law was even enacted I am guessing.

“The Grantee agrees not to sell or lease the said property in the life-time of the Grantor.” This is phrased like a covenant and Grantee didn’t sign so I don’t think it would be enforceable. It’s phrased like a covenant, not a condition on the fee. It would be difficult to parse this into a valid fee determinable on a condition subsequent or other estate.

All that said, I bet a title company would list the language as an exception, so Grantee likely would need a declaratory judgment or quiet title action to remove the language as a cloud on title.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

Covid-19 Update - All attorneys are working remotely during regular business hours and are available via email and by phone. Videoconferencing also is available. Signing of estate planning documents can be completed and will be handled on a case-by-case basis. Please direct mail and deliveries to the Seattle office.

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Jeff at bellanddavispllc.com<mailto:Jeff at bellanddavispllc.com>
Sent: Wednesday, August 31, 2022 3:38 PM
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Subject: [WSBAPT] What the heck

Listmates:

By Statutory Warranty Deed, a person, for love and affection, conveys and warrants to Grantee, property.  After the legal description the following was added:

                In case of accident or death the property here-of will rightfully be returned to the Grantor.  In case of death of both parties the hereby property will be left in the name of [another person] with the agreement he cannot sell said property in his life time.
                The Grantee agrees not to sell or lease the said property in the life-time of the Grantor.

The deed was signed like any other deed, there are no witnesses.

Assuming Grantor is still alive, is Grantee prohibited from selling?  It seems the added language is in conflict with the convey and warrant language.  It possibly violates some legal rules.  Have any of you run into this before?

Jeff

W. Jeff Davis
BELL & DAVIS PLLC
Attorneys at Law
P.O. Box 510
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