Real Property: The Present Estates: Defeasible Fees

  • **Defeasible Fees
    • Fee Simple Determinable: (FSDPOR)
      • Creation: “To A for as long as” /“To A during”/ “To A until”
        • Grantor must use clear durational language
        • If stated condition is violated, forfeiture is automatic
      • Distinguishing characteristics:
        • Devisable/descendible/alienable, but always subject to the condition.
        • You may convey less than what you started with, but you can’t convey more—you can’t always get what you want.
      • Future interest:
        • Possibility of Reverter in the grantor (FSDPOR)
      • Fee Simple Subject to Condition Subsequent:
      • Creation: “To A, but if X event occurs, grantor reserves the right to reenter and retake”
        • Grantor must use clear durational language and
        • Must carve out the right to reenter.
      • Distinguishing characteristics: (Bobby Brown rule - It’s my prerogative)
        • Not automatically terminated, but
        • can be cut short at the grantor’s option if the stated condition occurs.
      • Future interest:
        • Right of entry in the grantor = Power of termination
    • Fee Simple Subject to Executory Limitation
      • Creation: “To A, but if X event occurs, then to B”
      • Distinguishing characteristics:
        • If condition is broke, the estate is automatically forfeited in favor of someone other than grantor.
      • Future interest:
        • Shifting Executory Interest
  • Note: 2 rules of construction
  • words of desire/hope/intention – insufficient to create a defeasible fee
  • absolute restraints on alienation are void—repugnant to public policy.