Defeasible Fees
Elements
To identify and analyze a defeasible fee:
- Is the base estate a fee simple? (All defeasible fees begin as fee simples)
- Is there a condition or limitation attached? (Without one, it is fee simple absolute)
- What type of condition?
- Durational (“as long as,” “while,” “until”) → Fee Simple Determinable
- Conditional (“but if,” “provided that,” “on condition that”) → Fee Simple Subject to Condition Subsequent
- Condition shifting to a third party → Fee Simple Subject to Executory Limitation
- Who holds the future interest? (Grantor or third-party transferee?)
- Does the estate terminate automatically, or must the grantor take action?
Rule
A defeasible fee is a fee simple absolute with a forfeiture condition — an estate that may last forever or may come to an end upon the happening of a specified future event.
Elements
To identify a defeasible fee, ask:
- Is the base estate a fee simple? (All defeasible fees begin as fee simples)
- Is there a condition or limitation attached? (Without one, it is fee simple absolute)
- What type of condition?
- Durational (“as long as,” “while,” “until”) → Fee Simple Determinable
- Conditional (“but if,” “provided that,” “on condition that”) → Fee Simple Subject to Condition Subsequent
- Condition with gift to third party → Fee Simple Subject to Executory Limitation
- Who holds the future interest? (Grantor or third-party transferee?)
- Does the estate terminate automatically, or must the grantor take action?
Three Types
Fee Simple Determinable (FSD)
- Effect: Automatically terminates upon the happening of the condition; title reverts to grantor by operation of law without any action
- Future interest: Possibility of reverter (remains in grantor)
- Magic words: “as long as,” “while used for,” “until,” or any durational language
- Example: “To the Hartford School Board as long as used for school purposes”
Fee Simple Subject to Condition Subsequent (FSSCS)
- Effect: Does NOT automatically terminate; grantor must affirmatively exercise right of re-entry to reclaim title
- Future interest: Right of re-entry / power of termination (remains in grantor)
- Magic words: “but if,” “provided that,” “on condition that,” “however”
- Example: “To the Hartford School Board, but if the premises are not used for school purposes, the grantor has the right to re-enter”
Fee Simple Subject to Executory Limitation (FSSEL)
- Effect: Automatically terminates upon the condition; title shifts to a third party
- Future interest: Executory interest (in a third-party transferee)
- Example: “To A and his heirs as long as used as a tavern, but if not to B and her heirs”
Key Distinctions
| Type | Automatic? | Future Interest | Holder |
|---|---|---|---|
| FSD | Yes | Possibility of reverter | Grantor |
| FSSCS | No (must re-enter) | Right of re-entry | Grantor |
| FSSEL | Yes | Executory interest | 3rd party |
Restraints on Alienation
- Absolute restraints on alienation are void as against public policy
- Use restrictions (requiring use of the land) are generally valid even if they prevent sale
- Courts disfavor forfeitures and will construe ambiguous language away from FSD/FSSCS
Policy
- Allow conditional gifts for specific purposes (schools, churches, parks)
- Tension with free alienability of land
- Courts read durational language broadly but are hostile to forfeiture
Key Cases
- Mahrenholz v. County Board of School Trustees — distinguishing FSD from FSSCS; “used for school purposes only” read as FSD (durational)
- Mountain Brow Lodge v. Toscano — use restriction valid; restriction on alienation struck; remaining estate is FSD