Pg 3 Flashcards
What is the key defining feature of a fee simple determinable?
It is always accompanied with a possibility of reverter that is retained in the grantor, or it is possible to have an executory interest created in a third-party grantee as long as it is expressly provided for
When does a fee simple determinable expire?
When the owner dies intestate without an heir or the stated event happens, whichever happens first. The right to immediate possession reverts to the grantor at the moment the stated event happens.
Is a fee simple determinable ever cut short by a stated event?
Never, it only ends by expiring through the occurrence of the stated event
When would be a situation that a court would refuse to strictly construe a fee simple determinable and would instead find that there was a fee simple absolute?
If forfeiture would serve little purpose except to transfer wealth, or would be a big penalty for a small wrong
If there was a provision that land could never have alcohol on it, and then one bottle of wine got opened one time on the land, what would the courts likely do?
They would likely not want to find the necessity of a reverter, so they would probably construe it to be a fee simple absolute
If an owner conveys to a church his land so long as it is used as a church, how long does this fee simple determinable estate continue until?
Until it is not used as a church anymore, and then it expires, and the land reverts automatically to the owner
How is duration determined for a fee simple determinable?
The wording must give a specific delineation for how long the estate will last
If the land goes from “A to B and his heirs so long as liquor isn’t served on the premises” is that enough to be durational language for a fee simple determinable?
Yes
Is a fee simple determinable smaller than a fee simple absolute?
Yes because of the special limit that can cause it to expire.
Who keeps the residue that is created when a fee simple determinable is created?
The creator/heirs that have the possibility of reverter, or if the land was simultaneously transferred to a third person by a gift-over which is called an executory interest, then that person
If there is no express provision for reverter or gift-over in a fee simple determinable, is that OK?
Yes, as long as the special limitation language is used, it is not necessary to express a reverter provision, because that arises by operation of law anyway
If there is no special limitation language used and a document just states the purpose the conveyance is made for, what is necessary in order for a court to know that a fee simple determinable was created?
There must be an express reverter clause, otherwise it would be a fee simple absolute that was created
When does the statute of limitations for recovery of possession start running when a fee simple determinable is involved and the former owner stays in possession once the land reverts to the grantor?
As soon as the former owner continues to wrongfully possess the land
What are mesne profits?
Reasonable rental value of land for the period of wrongful possession
When is estoppel available when a fee simple determinable is involved?
It can be given to the former possessor of the land if he substantially changed position in reliance on an express or implied representation by the owner of the reverter that he didn’t intend to assert his rights
What is a fee simple determinable with an executory limitation?
If land is transferred to A and his heirs until he marries B, then to B and her heirs.
That means that A gets a fee simple determinable because of the express limitation “until he marries B” but upon marriage there is a gift over to B that stops any reverter to the transferor. The only future interest that can follow a fee simple is an executory interest, so B’s interest is an executory interest in a fee simple absolute
What is a fee simple subject to condition subsequent?
After creating a fee simple, a limitation/condition subsequent provides that a conveyor or his successor in interest shall have the power to terminate on the occurrence of a stated event. This involves an express condition that is attached to the transfer of a fee simple estate.
On termination, possession returns to the grantor or his successors, but is not automatically terminated. It is only terminated if the grantor exercises his reserved right to re-enter the property. When that terminating event occurs, the person that created the estate has the power to terminate, but does not have to
What is the key to a fee simple subject to condition subsequent?
The conditional language. I.e.: “on condition that, provided that, however, but if, but in the event that.“
When does a fee simple subject to condition subsequent end?
At the grantor’s election, and then the land goes to the grantor as a right of re-entry/power of termination. It either expires when the owner dies intestate or is divested if the grantor elects because of a stated event, whichever comes first
What must be done for a grantor to exercise his right of re-entry for a fee simple subject to condition subsequent?
The granter would have to go to court, quiet title in the property, defeat the fee, and then his right of entry/power to terminate is settled
How long can a fee simple subject to condition subsequent potentially continue?
Until the line of heirs runs out, so it has the same quality of ownership as a fee simple absolute, but the possibility of ending early through expiration or divestment via a right of re-entry is based on the occurrence of a stated event
What is the key defining feature for a fee simple subject to condition subsequent?
The election to the grantor to take back the land if the event happens, because the grantor does not have to divest/cut short the grantee’s estate. If at the moment of the stated event, nothing happens, then the grantee’s estate continues unaffected until the grantor elects to use his right of reentry
What is important to be included in the fee simple subject to condition subsequent?
That there must be express words of reentry, otherwise the conveyance is considered to be a fee simple absolute
What is involved in a right of re-entry for a fee simple subject to condition subsequent?
The grantor retains a future interest, so if the stated event happens and the grantor elects to exercise his right of re-entry and retake possession, then the grantee’s estate is cut short/divested due to the subsequent condition. The grantor can then exercise this by reentry
What happens if the possessor refuses to voluntarily turn over his estate under a fee simple subject to condition subsequent?
Then the grantor must bring an action in ejectment to recover possession of the property.
A right of re-entry is really what for a fee simple subject to condition subsequent?
A right to sue, not to enter. The grantor retains an election to divest the fee simple on a stated event which is really just a power of termination.
How do you create a right of reentry for a fee simple subject to condition subsequent?
You need both words of condition and words of reentry
If a document says “to A and his heirs on condition that the land be used for a cemetery only, and if it is ever used for anything else, the grantor can enter and terminate A’s estate.” What type of fee is that?
Fee simple subject to condition subsequent.
This gives the grantor the right to re-enter and oust A if the breach happens, and on reentry the owner of the fee is divested of his estate and the grantor is reverted with a possessory fee simple. But just a breach without reentry does not defeat the estate of the owner of that fee simple
When does the statute of limitations start under a fee simple subject to condition subsequent?
Only when the grantor gives notice or starts an action for possession. The SOL does not start as soon as the breach happens
If it is not clear whether durational or conditional language is used, what is the default?
Fee simple on condition subsequent
What must be clearly proven before a forfeiture is allowed under a fee simple on condition subsequent?
That the terminating event occurred
If the purpose of a limit or condition under a fee simple subject to condition subsequent is being substantially achieved, is forfeiture allowed?
No
Can a fee simple subject to condition subsequent be terminated without actual entry?
Some jurisdictions say that starting an action to recover possession is enough, while others say that the person must manifest the election to terminate by giving notice before he can start an action to recover possession
What are possible defenses for fee simple subject to condition subsequent if the grantor doesn’t terminate within a reasonable time after the breach?
Election, waiver, estoppel, and some courts even say that it bars the person from later exercising that right. Courts can also give equitable relief against the forfeiture if the grantor can be made whole through damages or an injunction.
How do you use the defence of waiver under a fee simple subject to condition subsequent?
If the grantor knows about the breach and shows indifference to it, or even approval, that likely waives his right of reentry
Are rights of reentry assignable under a fee simple subject to condition subsequent?
Yes, and they are also deviseable and inheritable
What is a fee simple subject to executory limitation?
A fee simple that automatically terminates on the occurrence of a designated event/condition and passes title to a third-party instead of the grantor/heirs that are expressly designated in the creating instrument. This is based on an event that is certain to happen, so the duration is finite. Essentially the property passes from A to C
What is necessary in order for a fee simple subject to executory limitation to be created?
There must be words of conveyance to create the fee simple (“and his heirs”) and then it must specify that it is subject to divestment/expiration on a certain event (“but if, or until”), and then there must be an executory interest that is given to a third-party that will take effect when the stated event occurs (“then to C and his heirs“)
How does a fee simple subject to executory limitation end?
It ends automatically and the land goes to the third-party as an executory interest
