DUNCAN-PROPERTY
ESTATES IN LAND
Fee Simple Absolute
1. Grutz–to
Alexander Hamilton and his heirs.
Life Estate
2. Grutz–to
Alexander Hamilton for life
3. Grutz--to
Alexander Hamilton
4. Grutz–to
Alexander Hamilton forever
5. Grutz–to
Alexander Hamilton and his assigns forever in fee simple absolute (“and I
really mean it, judge”)
Examples
2-5 all create life estates measured by the life of Hamilton under the rules of
the common law (remember that the magic words “and his heirs” were necessary to
create a fee simple at common law). Notice, however, that under statutes in
force in most jurisdictions today examples 3, 4 and 5 would create a fee simple
absolute in Hamilton (assuming Grutz had a fee simple absolute to begin with).
Where the life estate is measured by the life of a person other than the
grantee (e.g. “to Alexander Hamilton for the life of James Madison”) it is
called a life estate pur autre vie (for the life of
another).
Fee Simple Determinable
6. Grutz–to
Alexander Hamilton and his heirs so long as the property is used for residential purposes.
7. Grutz–to
Alexander Hamilton and his heirs until the property ceases to be used for
residential purposes.
8. Grutz–to
Alexander Hamilton and his heirs while the property is used for residential
purposes.
Notice
that, in general, it is not necessary to specifically provide for the
possibility of reverter in creating a fee simple determinable. However, in
light of the judicial hostility to defeasible estates, it is good practice
(i.e. good draftsmanship) to provide expressly that upon the happening of the
stated contingency the estate granted shall automatically terminate and revert to the grantor and his heirs in fee simple absolute.
Perhaps something like this: Grutz–to
Alexander Hamilton and his heirs so long as the property is used for
residential purposes, and if the land ever ceases to be used for such purposes, the land shall automatically revert to the Grantor and his heirs." Even though it is not necessary, the additional language makes clear beyond any doubt that the Grantor was conveying a Fee Simple Determinable and retaining a Possibility of Reverter. Abhor away oh ye of little faith!
Fee Simple Subject To A Condition Subsequent
9. Grutz–"to
Thomas Jefferson and his heirs on the condition that the property not be used
for commercial purposes, but if the premises are ever used for such purposes,
the grantor or his heirs shall have the right to re-enter and take possession."
Words and phrases indicating a condition are these: "on condition that"; "provided that"; "however"; and "but if."
Notice
that many courts will refuse to construe a conveyance as a fee simple subject to a
condition subsequent unless, in addition to words of condition, an express
right of re-entry or power of termination is provided for.
Just to be clear, as Professor Moynihan explained: The basic difference between a FSD and a FSSCS “is that the former automatically expires by force of the special limitation…whereas the FSSCS continues despite the breach of the specified condition until it is divested or cut short by the exercise by the grantor of his Power of Termination.”
Just to be clear, as Professor Moynihan explained: The basic difference between a FSD and a FSSCS “is that the former automatically expires by force of the special limitation…whereas the FSSCS continues despite the breach of the specified condition until it is divested or cut short by the exercise by the grantor of his Power of Termination.”
A legal dictionary may help us understand:
Condition Subsequent
Definition: A rule in a contract that allows interest to be defeated if a specific event occurs or doesn’t occur.
Definition: A rule in a contract that allows interest to be defeated if a specific event occurs or doesn’t occur.
