Present estates and defeasible fees

Black-letter propositions

1. 01

   Fee simple absolute is potentially infinite and freely transferable.

2. 02

   Fee simple determinable ends automatically upon a stated event and leaves the grantor a possibility of reverter.

3. 03

   Fee simple subject to condition subsequent gives the grantor a power of termination requiring action.

4. 04

   Fee simple subject to executory interest shifts automatically to a third person.

5. 05

   A life estate ends at the measuring life and carries duties against affirmative and permissive waste.

Use this attack sequence under time

Common wrong turns

• Purpose language may create a covenant rather than a defeasible estate.
• Modern deeds generally presume fee simple without words of inheritance.
• A life tenant cannot exploit resources merely because use would be profitable.

Worked example

O conveys 'to A while used as a school, then to B.'

Practice this topic

The fee simple and its variants

Cornell describes the fee simple as the greatest possible property interest in land, with all traditional property rights, and says there can only be one fee simple at a time for a given piece of land. There is a presumption in the modern day that a fee simple is transferred unless the grant indicates a lesser interest. In its pure form, a fee simple absolute, the owner keeps title and possession regardless of future events.

Three other fee simples exist. A fee simple determinable automatically reverts to the grantor if a certain condition is met. A fee simple subject to a condition subsequent gives the grantor the right to repossess if the condition is met. A fee simple subject to an executory interest transfers to a third party other than the grantor if the condition is met.

Life estates

A life estate is an interest that lasts only for the life of a specific person, usually the possessor. Cornell says the holder cannot leave the property by will because the interest ends at death, has full rights to possess and use it, and may transfer the interest during life. If the measuring life is someone other than the possessor, it is a life estate pur autre vie.

A deed to John Doe for life, then to Jane Doe, gives John a life estate and Jane a remainder. A buyer from John takes only what John had, so the estate still ends when the measuring life ends.

Cornell notes that a fee simple owner can divide the fee simple into smaller fee simples for as many people as they wish, or grant a life estate that returns possession to the fee simple holder when the life estate holder dies. When you classify an estate, quote the words of the grant and identify who holds the interest that follows.

Frequently asked questions