Real Property

Question 1

Fee simple subject to condition subsequent

Answer 1

Grantor retains power to terminated /ee’s estate on happening of specified event. OR must expressly reserve right of entry. Upon the happening, the estate of the EE continues until the OR sues or re-enters to terminate the fee simple. Words that create a fee simple subject to condition subsequent usually include “upon condition that,” “provided that,” “but if,” and “if it happens that.”

Question 2

Fee simple determinable

Answer 2

An estate that automatically terminates upon the happening of a stated event and reverts back to the OR. It is created by use of durational, adverbial language such as “for so long as,” “while,” “during,” or “until.” The EE takes land subject to termination of the estate upon happening of the event.

Courts look to avoid the forfeiture of estates. Thus, an ambiguous term is often interpreted in favor of creation of a fee simple condition subsequent because forfeiture is not automatic.

Question 3

Adverse possession

Answer 3

Adverse possession is established when the claimant has a continuous possesion of a parcel for a given statutory period, their possession is open and notorious, actual or exclusive, and hostile to the interests of the current owner.

The claimant need not physical possess the parcel for the entire time, only what is regular and reasonable consistent with what the average owner would make of the property. Possession is open and notorious such that the usual owner would make of the land and is sufficient to put the true owner on notice of the possession. Hostile possession is that which occurs without the owner’s consent. Exclusive possesion means not sharing possession with the true owner.