Fee Simple Flashcards
Re: Lunham (1871)
Grantor of fee simple land tried to have fee simple land revert bank to them if it was subdivided. Court said this was not possible for a fee simple estate and held the clause void.
Re: McDonnell (1965)
Vague or inoperable conditions for holding land in trust will render it void, because it sets up a condition that no court can enforce.
Re: Dunne [1988]
A case in which a bequest prohibited a house/lands never be sold to certain families. Besides the difficulty of the courts enforcing such a measure, the court is not interested in perpetuating an old quarrel.
What is a conditional fee simple?
It is one subsequent to an artificial “cutting off”.
For example, “To Mary in fee simple, unless she becomes a solicitor”
If the event specified in the condition occurs, the grantor can excerise a right of entry for the condition broken.
In the example above, if Mary became a solicitor, then the right of entry for the grantor occurs
Example words which may suggest a conditional fee is present:
1. Provided that
2. On a condition that
3. But if
4. If it happen that
Characteristics of a conditional fee simple:
1. Words suggesting premature cutting short
2. Followed by right of entry
3. Does not terminate automatically
4. The condition is separate from the estate.
What is a determinable fee simple?
A determinable fee simple is a fee simple which will end AUTOMATICALLY on the happening of a contingency.
“to Be and his heirs until he qualifies as an accountant”
Example words which may suggest a determineable fee is present:
1. While
2. During
3. As long
4. Until
Characteristics of a determinable fee simple:
1. Words suggesting natural continuation.
2. Followed by the possibility of reverter.
3. Terminates automatically.
4. The event is part of limitation.
What happens if a conditional fee simple is struck out on the grounds of it infringing on public policy or human rights?
The grantee is left with a fee simple absolute.
So if the condition “to A in fee simple provided she remains unmarried” was written, the condition is void because it infringes on the right to marry, but it can be severed from the rest of the limitation so that A obtains the fee simple free of condition.
What happens if a determinable fee simple is struck out on the grounds of it infringing on public policy or human rights?
The whole determinable interest is void.
So if the condition “to A in fee simple until she marries” was written, the whole determinable interest is void and A gets nothing.
Re: Johnston [1986]
Property was left to a minor on condition that he reside on the property with his aunt. The aunt did not want him to live there.
Condition void on public policy grounds - courts didn’t want to separate kid from parents.
Re: DeVere’s Will Trusts [1961]
Condition of changing surname in order to inherit land is no longer enforceable, as it is hard to determine when a name change is truly complete and there is an argument as to whether name changes are legally required.
Re: Burke’s Estate
Condition re: someone being a practicing Catholic voided - how can a court evaluate this?
c.f. Re: McKenna [1947]
Condition voided because of religion, even though it was more measurable than most such conditions (it required a priest to certify someone was being a “true Catholic”)
What is the difference between conditions subsequent and conditions precedent?
Conditions precedent: “to John in fee simple provided that he shall have qualified as an accountant”
The fee simple cannot vest until John satisfies the condition
Condition subsequent: “to John in fee simple but if he qualifies as a solicitor”
What happens if the court isn’t sure if it is a condition subsequent or a condition precedent?
The court will lean “towards a construction which will hold it to be a condition subsequent, for that construction will lead to an early vesting of the gift, and there is a presumption in favour of early vesting”.
Does Shelly’s Rule still apply in Ireland? (The need to qualify a statement when passing on a fee simple.)
No. It was abolished by the 2009 land act.
s.67 LCLRA – words of limitation are no longer required to pass the fee simple.
There is a presumption that any will/deed will pass the greatest interest in the land which the testator/grantor has to give unless the contrary appears.
s.67 purports to be retrospective subject to a right for impacted land owners to apply to court to retain their rights for 12 years after 1 December 2009.
What is a gift over?
A “gift over” occurs in a will or trust when property is devised to one person, but with the condition that if a specific event occurs (or fails to occur), the property will “shift over” to another person.
