Rules of Construction: Defeasible Fees

Question 1

What sort of words are insufficient to create a defeasible fee? Words of mere . . .

Answer 1

Hope, desire, or intention.

Question 2

Courts generally treat restrictions on land use with favor or disfavor?

Answer 2

Disfavor

Question 3

What will courts require in order to find a defeasible fee?

Answer 3

Clear and durational language

Question 4

Are absolute restraints on alienation permissible?

Answer 4

No.

Question 5

What is an absolute restraint on alienation?

Answer 5

An absolute ban on the power to sell or transfer that is not linked to a reasonable, time-limited purpose.

Question 6

What sort of restraints on alienation are ok under the defeasible fee system?

Answer 6

Those which containing a reasonable, time-limited purpose.

Question 7

O conveys: “To A, so long as she never attempts to sell.”

A has?

O has?

Explain

Answer 7

A has FSA

O has nothing

This seems like a defeasible fee (“so long as…”) BUT it contains an absolute restraint on alienation (“she never attempts to sell.”) This language is thus void and is stuck.

Question 8

O conveys: “To A, so long as she does not attempt to sell until the year 2016, when clouds on the title will be resolved.”

A has?

O has?

Explain

Answer 8

A has a FSD

O has a possibility of reverter.

The restriction here is linked to a reasonable, time-limited purpose. Thus, it is valid.