[WSBARP] [WSBAPT] What the heck

[Eric Nelsen]

This conversation is bouncing between two different listservs and I don’t know who is on which, but at any rate—

Dwight Bickel reminds us that a life estate can be transferred, though it still ends at the end of the original grantee’s life; in the hands of the new owner it’s a “life estate pur autre vie” (life estate on another’s life).

Re restraint on alienation, I hesitate to disagree with Philip, but having litigated this some years back I think a restriction on alienation that is keyed to the Grantor’s life can be considered reasonable and enforceable because Grantor might die while Grantee is still alive, freeing the Grantee from the restraint; but a restraint on alienation for the Grantee’s life clearly prohibits Grantee from ever transferring or selling their interest ever, and is considered unreasonable and unenforceable.

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 <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Philip N. Jones
Sent: Thursday, September 1, 2022 11:18 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

I was thinking of the restriction on sale during the life of the grantor.

Philip N. Jones
Duffy Kekel LLP
900 S.W. Fifth Ave. Suite 2500
Portland, OR 97204
pjones at duffykekel.com<mailto:pjones at duffykekel.com>
(503) 226-1371 – office
(503) 853-1482 – cell
(503) 226-3574 - fax

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 Roger Hawkes
Sent: Thursday, September 1, 2022 10:57 AM
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

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
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>; 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
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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