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Difference between fee simple determinable & fee simple subject to subsequent condition

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Difference between fee simple determinable & fee simple subject to subsequent condition:

      • A fee simple determinable ends automatically, it is followed by some remainder interest that is contingent, after time of perpetuity rule passes, title is reverted to grantor – gets fee simple. But, if grantor doesn’t do anything for a while, grantee will start acquiring title to the land through adverse possession.

      • A fee on condition subsequent is a fee simple that could be divested by someone exercising a right of reentry or power of termination, but these aren’t certain w/in time period, therefore, if this right is void, then fee simple continues on & becomes fee simple absolute.

      • Difference in fee simple determinable and fee on condition subsequent important when dealing with statute of limitations.

        • If fee on condition subsequent, person challenging claim must take active measures and will only have certain amount of time to do so.

        • If fee determinable, land automatically reverts back to grantor and occupier may try to use adverse possession doctrine to attempt to keep property.

          • Courts to some extent, when they confront someone who has drafted a document and meant to do some

          • Court will sometimes give effect to the intentions of the drafter, but will usually do what looks like it makes sense and is a fair result


  • Wolf v. Hallenbeck (1942) – Grant to a grantee to build a single family dwelling by certain date; failure to complete this condition will result in reversion

        • Court said too harsh to require a house to be built since materials are rationed during the war, so consider condition of building house on land a fee on condition subsequent

        • Since P didn’t sue in time to comply with statute of limitations power of termination no longer possible

        • Court is uncomfortable with notion that simply because a condition is breached the estate should be forfeited entirely

  • Oldfield v. Stoeco Homes, Inc. (1958) – city sold land to D on condition that he fill swamp. Obviously fee simple determinable. But ct holds it to be fee on condition subsequent and city had to take active measures against D

        • Automatic reverter would be too harsh against D

        • Since both parties have ongoing relationship, allowing P right of reentry will enable them to renegotiate

        • Court ignores text because city doesn’t actually want land back, just want the action taken. When real intentions in conflict w/ expressed intentions = court gives effect to real intentions.

  • Board of Education v. French (1957) – Language is land is granted to grantee for public library purposes forever but then it is used as a grocery store  seems to be language of fee simple determinable but court holds it is fee simple absolute

        • The library has outgrown its existing facilities and has moved to new location. Couldn’t build the new library on the land because wasn’t big enough

        • Between the heir of the grantor (who never had any expectation of getting the land or money from it) and the library, the library should get the money

        • Intention of the grantor was to give a piece of land for a library so as long as the proceeds from the sale of the land are used for library purposes, the presumed intentions of the grantor are being kept and the court will give effect to that since it seems to make sense and is just

  • Charlotte Park & Recreation Comm’n v. Barringer (1955) – Reverter provision = in the event that the lands are not kept for playground and recreational purposes for use of the white race only then the land will revert

        • Clear language of fee simple on condition subsequent but court holds it to be fee simple determinable

        • Court says that if parties use courts to enforce this condition, violates 14th amendment = since it is a fee simple determinable, courts do not have to be used because reverter is automatic

        • Court wants it to be fee simple determinable because doesn’t want courts involved = allows racist result

        • This case shows how a court will try to make sense out of something and have the result that it wants regardless of deed

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