Future Interests

A shifting executory interest cuts short someone other than the grantor.

Comes up against rules 3 and 4

• A to B for life but if B marries C then to D in fee simple
  • Shift in fee simple
  • Remainder designed to take effect in D's possession by cutting short B's prior estate
  • Void by rule 3
  • Escapes rule 3 bc determinable event ("until")
  • Caught by rule 4

  Springing Interests

  Policy: Avoid gap in seisin

  Courts looked at the time the gift was created and said if gift caused a gap in seisin, a future interest in possession springing up would be void.

  • A to B in fee simple if B reaches 21
    • B is not 21 so there is a gap in seisin, violates rule 1
    • No gap at the time of creation. Court said we will wait and see if it becomes a problem (rule 2)
    • No possibility of meeting rule 2

    Inter Vivos vs. Testamentary Disposition

    • Court will imply the words "to the use of" to save intent to shift (creates equitable title)
    • "To the use of" must be used explicitly to create executory limitation

    Validity of Conditions

    • Undue restraint on alienation
    • Undue restraint on marriage (not considered in detail here)
      • Allowed to give property "while unmarried" in the sense of helping out a single woman. Not interpreted as intending to punish marriage
      • Racial or religious conditions can be void for uncertainty [Re Tuck]
      • Sex, race, creed, colour, nationality, ancestry, or place of origin [Land Title Act, s 222]
      • Religion, marital status, family status, disability, sexual orientation, gender identity or expression, age [Human Rights Act]
        • Broader but maybe less applicable to the property context: Applies to purchase, tenancy, employment, but dispositions in general?
        • If event expressed in condition subsequent, condition is invalid, leaving the disposition to have effect
          • Courts may sometimes strain to find events are conditions subsequent to avoid intestacy

          Restraints on Alienation

          • Restraints on alienation prima facie repugnant: Right to alienate is part of what is given in transfer
            • A determinable interest is therefore not a restraint on alienation: Less is given from the beginning [Re Leach]

            Re Brown: Door is open to say that a partial restraint can be made even more partial by a time feature