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Copyright © 2007, Gerald Bamberger


Oscar was the fee simple owner of Birdacre, a tract of land in the state of Conundrum. In 2000, Oscar conveyed Birdacre as a gift "to Arnie Audubon for so long as it is used as a bird sanctuary, but if it is no longer so used, to Bulldozer." The conveyance was not recorded. Arnie caused a large sign reading "Audubon Bird Sanctuary" to be erected at the entrance to Birdacre, but did not otherwise enter the property.

In 2005, Oscar's infant granddaughter fell ill with the avian flu. Angry, and believing that an unrecorded conveyance was ineffective, Oscar quitclaimed Birdacre to Chromeandglass in exchange for a payment of $250,000. Chromeandglass, who planned to develop Birdacre for heavy industry, had seen the sign "Audubon Bird Sanctuary" but believed the sign referred to John James Audubon, the eighteenth century ornithologist, not Arnie Audubon. However, Chromeandglass knew of Bulldozer’s interest in Birdacre.

When Arnie Audubon learned that Birdacre had been sold to Chromeandglass, he feared that he would be unable to sustain a court battle against Chromeandglass, and quitclaimed his (Audubon's) interest to Chromeandglass in exchange for a payment of $25,000.

Conundrum's recording act provides that "no unrecorded conveyance of real property shall be valid against a subsequent good faith purchaser for value." Conundrum has adopted the common law rule against perpetuities, unmodified by statute.

In 2007, Chromeandglass leveled all the trees in Birdacre and commenced construction of an industrial plant. Bulldozer promptly and properly commenced a quiet title action. In this action, the court should find that title to Birdacre is in

(a)     Bulldozer, because Audubon's interest has been defeased, and Oscar had nothing to convey to Chromeandglass
(b)     Chromeandglass, because Bulldozer, as a donee, is not protected by Conundrum's recording act.
(c)     Chromeandglass, because Bulldozer's interest violates the rule against perpetuities.
(d)     Oscar, because he retained a possibility of reverter, and Birdacre is no longer being used as a bird sanctuary.

To see Professor Bamberger explain the answer in detail click here





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