Fee Simple Absolute
- “To A” or “To A and his heirs”
-Infinite duration - Devisable, descendible, and alienable
- No accompanying future interest
-A living person has no heirs, only heir apparents
Defeasible fees
Fee simples with a condition attached
-Defeasance = forfeiture
-Therefore, defeasible fees are potentially infinite but can be terminated upon the happening of a stated event
Three types:
-Fee Simple Determinable
-Fee Simple Subject to Condition Subsequent
-Fee Simple Subject to an Executory Interest
Fee Simple Determinable
- Created by durational language
-Terminates upon the happening of a stated event and automatically reverts to the grantor (estate automatically forfeited -disfavored by courts)
-“To A for so long as . . .” - Devisable, descendible, and alienable
- Accompanied by possibility of reverter (future interest)
-Automatically reverts back to grantor upon happening of a stated event
-Devisable, descendible, and alienable
Fee Simple Subject to Condition Subsequent
- Created by conditional words + express grantor’s right to re-enter
-Grantor reserves the right to terminate the estate upon the happening of the stated event (estate not automatically forfeited)
-Sloppy drafting lead to FSSCS b/c policy disfavors forfeiture of estates
-“To A, but if X event occurs, grantor reserves the right to re-enter and retake” - Devisable, descendible, and alienable
- Accompanied by right of entry (future interest)
-Right of grantor to terminate the estate upon the happening of the stated event
-Also called a power of termination
-Devisable and descendible
Fee Simple Subject to an Executory Interest
- Third party will take upon forfeiture of a stated event
-Automatic forfeiture
-“To A, but if X event occurs, then to B” - Devisable, descendible, and alienable
- Accompanied by shifting executory interest (future interest)
-Cuts grantee’s ownership short in favor of third party
Rules of construction for defeasible fees
Courts disfavor restrictions on free land use and won’t find a defeasible fee unless there is clear, durational language needs
-Words of desire, hope, or intent will not create a defeasible fee
-Absolute restraints on power to sell or transfer are void
-Conditions and limitations violating public policy are void
>i.e., conditions cannot penalize marriage, but can give support until marriage or in event of divorce
Life estate
- A life estate is measured by the life or lives of one or more persons
-Not in terms of years
-“To A for life”
Life estate pur autre vie (life of another)
A life estate measured by a life other than the grantee’s
-If A, the holder of a life estate, conveys their interest to B, B has a life estate for the life of A
-To A for the life of B
