Property Spring 2026: Assignment For Week Three

 --Finish Intestate Succession Problems 1-5 8 0n p.264

--Casebook p. 267-281

==Casebook p. 281-297

If time permits:

Casebook P. 300-302

Johnson v. City of Wheat Ridge (p. 294)

Finally some decent drafting (see p. 294):

Each of the original deeds contains conditions that the property must be used for a public park to be named “Johnson Park.” The 1957 deed contains additional conditions, i.e., that, within certain time limits, the grantee shall provide a road into the land, clear away fire hazards, and make available a public water supply and lavatories on the premises. Each deed also contains the following language:

“In the event that any of the conditions set out above are not
complied with the failure to comply shall constitute a condition
subsequent terminating the estate of the Grantee and its assigns in
and to all of the real property, land, above described, and the Grantor,
his heirs and assigns may re enter and take possession of said
premises.”

Is there any doubt what kind of estate was created here? 

So now what's the problem?

Roberts v. Rhodes (p. 289)

 1902 Grantor (Roberts, the Plaintiff) conveys land to School District “it being understood that this grant is made only for school or cemetery purposes.”

The School District used the land for school purposes for over 60 years and then conveyed the land to Rhodes. The land has ceased to be used for school purposes.

What was the state of the title under the 1902 deed? FSD? FSSCS? Or Fee Simple Absolute?

Estates in Land

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.”

 

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.

 

 

Fee Simples Defeasible: Preview of Coming Attractions

Suppose Grutz, the owner of Blackacre in fee simple absolute, conveys it "to Richie Moberly and his heirs so long as the property is used as a wellness, yoga, and meditation center, and then to Good Bunny and his heirs."

What is the state of the title?

What does Richie have? What does Good Bunny have? What does the Grantor have?

Suppose the conveyance were simply "to Richie Moberly and his heirs so long as the property is used as a wellness, yoga, and meditation center." 

What would be the state of the title now?

Jane Austen & Property

In defense of learning the Fee Tail, it is impossible to understand the novels of Jane Austen without a solid understanding of the Fee Tail. Indeed, why not read Sense and Sensibility this weekend as a good introduction to our study of the Fee Simple and the Fee Tail! Or at least watch the movie (the Hugh Grant/Emma Thompson version is my fav)!

Fee Tail in Contemporary American Law

 The casebook (bottom of page 301 to 302) gives you a picture of how modern jurisdictions treat conveyances "to A and the heirs of his body." 

As Moynihan puts it, a majority of the 50 states have enacted a statute (such as in Nebraska) that "converts what would have been a fee tail at common law into a fee simple. Thus, if O, the owner of Blackacre in fee simple, conveys Blackacre 'to B and the heirs of his body,' B has a fee simple." 

The Restatement (Third) of Property takes the position that "the fee tail estate is not recognized in American law." --Moynihan book.

Interestingly, South Carolina appears to recognize the Fee Simple Conditional because it does not recognize the statute de donis as being in force in South Carolina. Thus, in South Carolina a conveyance "to Duncan and the heirs of his body" creates a Fee Simple Conditional in Duncan. Source: Moynihan Book.

For purposes of the exam [I know you worry about that] just be aware of statutes like the Nebraska statute mentioned above and as we have discussed it in class and on the blog.

Nebraska Stautes Abolishing Fee Simple Conditional and Fee Tail

76-110. Fee simple conditional and fee tail; abolished; effect of use.

The creation of fees simple conditional as they existed under the law of England prior to the statute de donis is not permitted. The creation of fees tail is not permitted. The use in an otherwise effective conveyance of property, of language appropriate to create such a fee simple conditional or a fee tail, creates a fee simple in the person who would have taken a fee simple conditional or a fee tail. Any future interest limited upon such an interest is a limitation upon the fee simple and its validity is determined accordingly. Nothing herein contained shall affect the operation of sections 76-111 to 76-113.

Source:Laws 1941, c. 153, § 10, p. 596; C.S.Supp.,1941, § 76-1010; R.S.1943, § 76-110.

Moynihan's Introduction to the Law of Real Property

Good news. Forget about ebay! One of you sent me this email yesterday:

I was just looking for Prof. Moynihan’s book after we talked about it in class. It looks like the college’s West subscription includes if for all students. Here is the link: https://subscription.westacademic.com/Book/Detail?id=27871&

And it’s the eighth edition!

Great Fee Tail Movie: Sense and Sensibility

 With Hugh Grant and Emma Thompson

Amazon Prime link

Post on X By Financial Planner: Good Advice About Keeping Wills and Trusts Up to Date

Father dies at 81. $2.7M estate. Three adult kids. He set up a trust in 1998. Never updated it. Kids can't touch principal until age 65. They're currently 52, 49, and 46. The trustee? His brother who died 6 years ago. Nobody caught it. Now a bank is the successor trustee. Charging $36,400/year in fees. The trust references his "wife" getting income. She died in 2015. He remarried in 2017. His second wife gets nothing. The trust still pays his first wife's estate. His 52-year-old daughter is a teacher. Makes $78K. Renting an apartment. She gets $14K/year from the trust but can't access principal to buy a house. The trust was written when his estate was $800K. Nobody adjusted for $2.7M. "Dad was so careful about planning." 26 years ago. Tax laws have changed many times. His family changed twice. He spent $5K on that trust in 1998. Never spent another dollar reviewing it. Now his kids are paying attorneys $40K to petition the court for trust reformation. The court might fix some of it. Decanting could help. But it's expensive, time-consuming, and not guaranteed. They're not fighting over money. They're fighting a document written for a different family in a different tax code. Your estate plan has an expiration date. Just because it's signed doesn't mean it still works. Review your estate plan every few years and with any major life change (births, deaths, marriage, divorce) . Or pay for your kids to fix it in court later.

Intestate Succession Statute

 I do not expect you to memorize or master the model intestate succession statute we are discussing. When you take wills and trusts as an upper level course, you will cover these issues in depth. We are taking a quick look only to help you understand the technical meaning of the word "heirs."

One Last FSD Hypo

 

 

                           John Dutton (Kevin Costner in a Cowboy Hat)

 Suppose John Dutton decides to convey The Yellowstone Ranch to his son, Kayce Dutton. John wants the Yellowstone to always remain as a cattle ranch, not as a resort for celebrities and billionaires to play rhinestone cowboy on vacation. How should he draft his deed to Kayce? 

He wants to make sure that the land will always remain a cattle ranch, not a sheep ranch or a wheat farm. What should he do? Notice that today he would probably create a trust and specify his intent in the trust agreement. But if we are talking about creating a FSD, how should he draft it? 

Here it is not enough to specify agricultural purposes or other generic references to farming and ranching. He should be very specific and say something like: "to my son Kayce and his heirs so long as the property is used only as a cattle ranch and for no other purpose." Something like that. Define as clearly as possible the grantor's purposes for the land.

 By the way, the Yellowstone series is all about land and its relationship to those who own the land and love it. 

Here is my favorite John Dutton property quotation. One day he sees some international tourists trespassing on his land to take group pictures and selfies. He tells them to get off his land, and says this:

"This is America, we don't share land here." 

Dutton has to be vigilant about protecting his land, because there is always someone wanting to take it from him and use it for some other purpose.

Why

                                                   Picture of Person Screaming
 

does the law

abhor a forfeiture?

Mega Dittoes Hypo

                                                          Picture of Rush Limbaugh

 

1940 John Walton conveys Walton's Mountain "to Little Schutzie and his heirs so long as the land conveyed is not used for commercial purposes"

 

Schutzie immediately moves into the farmhouse on the land and farms it continuously

1949 John Walton dies intestate

2026 Schutzie wants to sell Walton's Mountain to Rush Limbaugh [rumors of his death are fake news--Rush lives!], who would like to develop the property as a "Rush World" Theme Park, a dittohead's nirvana that would have rides, bookstores, Cuban cigar stores, souvenir shops, etc.

Rush consults with us about this land transaction.

What does Rush need to do to protect his investment and accomplish his goals for Rush World?

FSD & FSSCS: Nearly Identical Twins?

                                                     Picture of Mary-Kate and Ashley 

If you look at your chart on casebook page 253, you will see that there are three (actually we will talk about four) types of defeasible fee simples. 

Here they are:

a. Fee Simple Determinable (Grantor retains Possibility of Reverter)

b. Fee Simple Subject to a Condition Subsequent (Grantor retains Power of Termination)

c. Fee Simple Subject to an Executory Interest

d. Fee Simple Determinable with an Executory Limitation

Let's talk about the first two of these interesting estates, estates which bear a close, but not identical, resemblance to one another.

A Fee Simple Determinable is an estate of general inheritance and potentially infinite duration (i.e., it is a fee simple), but it is subject to a self-executing special limitation. In the words of Prof. Moynihan, "the fee simple determinable could come to an end or expire automatically upon the happening or non-happening of an event stated as a limitation in the conveyance or will creating the estate." Thus, Grutz conveys, "to the City of Lincoln so long as the land is used as a public library." The City of Lincoln has a Fee Simple Determinable, a fee that will terminate automatically if the City ever ceases to use the land as a public library.

What happens if the limitation occurs? What happens if the City ceases to use the land as a public library?

The land will automatically revert to the Grantor. The Grantor thus retains a future reversionary interest when he creates this Fee Simple Determinable--Grutz has a future interest known as a "Possibility of Reverter."


What about a grant "to Hattie and her heirs so long as she remains unmarried?"


Or one "to Hattie for her life so long as she remains unmarried?"

Fee Simple Subject to a Condition Subsequent is an estate of general inheritance and potentially infinite duration (i.e., it is a fee simple), but it is subject to a condition which, if broken, allows the Grantor to elect to terminate the Grantee's estate. Here is how Moynihan describes this estate: "A fee simple subject to a condition subsequent exists when the fee simple is subject to a stated condition subsequent (rather than a limitation) which, if it occurs, invokes a power in the grantor to terminate the estate granted on the happening of the condition, if the grantor so chooses. The grantor, however, need not exercise the power of termination, in which case the grantee's estate does not automatically end when the condition occurs; it continues until the grantor exercises the power to take back the property."

Example: Grutz, the owner of Blackacre in Fee Simple Absolute, conveys Blackacre "to John Dutton and his heirs on 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." The state of the title is:

Dutton--Fee Simple Subject to a Condition Subsequent

Grutz--Power of Termination (sometimes called a "Right of Re-entry")

Notice that the Grantor retains a different future interest in these cases. When the Grantor creates a Fee Simple Determinable he retains a Possibility of Reverter; when he creates a Fee Simple Subject to a Condition Subsequent he retains a Power of Termination (or Right of Re-entry).

Query: How would you describe the essential difference between the FSD and the FSSCS?

New Law School Building But With a Limitation

 Suppose Duncan owns a spectacular, state-of-the art building near campus. Duncan decides to donate the building to the University of Nebraska to be used as the new home of the Law College. So Duncan conveys the property “to the University of Nebraska and its heirs so long as the building is used as a college of law and is named the ‘Justice Antonin Scalia Law Building.’” Suppose in 15 years the then Dean decides to rename the building “the President Joe Biden Law Building.” What is the state of the title following these events? 

Notice the words "so long as"--these are words of limitation, words of duration. Similar words are "until" and "during"

Nebraska "Reverter or Rights of Entry" Statute

76-2,102. Reverter or rights of entry; limitation.

Neither possibilities of reverter nor rights of entry or reentry for breach of condition subsequent, whether heretofore or hereafter created, where the condition has not been broken shall be valid for a longer period than thirty years from the date of the creation of the condition or possibility of reverter. If such a possibility of reverter or right of entry or reentry is created to endure for a longer period than thirty years, it shall be valid for thirty years.

Oldfield v. Stoeco Homes, Inc (p. 281)

 Who is suing whom for what? 

Plaintiffs (residents and taxpayers of Ocean City) are suing the Defendants (owners of the relevant land (Stoeco) and the City government of Ocean City)

--seeking to have certain resolutions of the City extending the time for performance of certain conditions in the deed declared invalid 

 --and an order declaring that the land shall be forfeited and returned to the City.

And the issue is whether the City conveyed a Fee Simple Determinable or a Fee Simple Subject to a Condition Subsequent to Stoeco in the 1951 deed.

What was the significance in this case concerning which of the two estates had been conveyed to Stoeco?

Since the stated restriction had already occurred before the additional time was extended by the City—i.e., Stoeco failed to fill and grade the land within the 1-year time limit—if the deed created a Fee Simple Determinable, automatic forfeiture had already occurred and Stoeco’s interest failed.

The City had a Fee Simple Absolute back, and a time waiver would not be effective. The proper method of proceeding would be to re-convey the property to Stoeco via a new deed, but under the N.J. Constitution it would be unlawful to do so without consideration. P. 285

But notice if the original deed conveyed a Fee Simple Subject to a Condition Subsequent, forfeiture is optional not automatic. The City would be able to agree to postpone exercising its Power of Termination to allow Stoeco additional time to meet the conditions set forth in the deed.

So, what interest did the 1951 deed create—a FSD or a FSSCS?