Defeasible estate

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Property law

Part of the common law series

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Nonpossessory interest

Easement · Profit Covenant running with the land Equitable servitude

Related topics

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Contract law · Tort law Wills, trusts and estates Criminal law · Evidence

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A defeasible estate is created when a grantor transfers land conditionally. Upon the happening of the event or condition stated by the grantor, the transfer may be void or at least subject to annulment. Historically, the common law has frowned on the use of defeasible estates as it interferes with the owners' enjoyment of their property and as such has made it difficult to create a valid future interest. Unless a defeasible estate is clearly intended, modern courts will construe the language against this type of estate. Two types of defeasible estates are the fee simple determinable and the fee simple subject to condition subsequent.

Because a defeasible estate always grants less than a full fee simple, a defeasible estate will always create one or more future interests.

[edit] Fee Simple Determinable

A fee simple determinable is an estate that will end automatically if the condition of the grantor occurs and the interest will revert to the grantor or the heirs of the grantor. The future interest created with this estate is called a possibility of reverter. Durational language such as, "to A as long as the property is used for a park" creates this type of estate.

Some jurisdictions in the United States have abolished this interest. For one example, Kentucky abolished the fee simple determinable and possibility of reverter by statute in 1960. There, an attempt to create such an interest is construed as a fee simple subject to condition subsequent (see below), and a person who would have possibility of reverter at common law will instead have a right of entry.^[1]

[edit] Fee Simple Subject to Condition Subsequent

A fee simple subject to a condition subsequent is created when the words of a grant support the conclusion that the grantor intends to convey a fee simple absolute but has attached a condition to the grant so that if a specified future event happens the grantor will get its fee simple absolute back, provided that the grantor retains a right of entry. The fee simple subject to condition subsequent does not end automatically upon the happening of the condition The future interest is called a "right of reentry" or "right of entry."

The right of entry is not automatic, but rather must be exercised to terminate the fee simple subject to condition subsequent. To exercise right of entry, the holder must take substantial steps to recover possession and title; actual physical entry is not required, but must do more than just proclaim intention to take back, such as file suit.

The language used to create this interest is, "to A, but if A sells alcohol on the land, then grantor has the right of reentry."

Common uses include language such as "may", "but if", "however", or "provided that..."

[edit] References

1. ^ Kentucky Revised Statutes Annotated § 381.218 (2006).