Defeasible estate
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A defeasible estate is created when a grantor transfers land conditionally. Upon the happening of the event or condition stated by the grantor, the transfer may be void or at least subject to annulment. Historically, the common law has frowned on the use of defeasible estates as it interferes with the owners' enjoyment of their property and as such has made it difficult to create a valid future interest. Unless a defeasible estate is clearly intended, modern courts will construe the language against this type of estate. Two types of defeasible estates are the fee simple determinable and the fee simple subject to condition subsequent.
Because a defeasible estate always grants less than a full fee simple, a defeasible estate will always create one or more future interests.
[edit] Fee Simple Determinable
A fee simple determinable is an estate that will end automatically if the condition of the grantor occurs and the interest will revert back to the grantor or the heirs of the grantor. The future interest created with this estate is called a possibility of reverter. Durational language such as, "to A as long as the property is used for a park" creates this type of estate.
Some jurisdictions in the United States have abolished this interest. For one example, Kentucky abolished the fee simple determinable and possibility of reverter by statute in 1960. There, an attempt to create such an interest is construed as a fee simple subject to condition subsequent (see below), and a person who would have possibility of reverter at common law will instead have a right of entry.[1]
[edit] Fee Simple Subject to Condition Subsequent
A fee simple subject to a condition subsequent does not end automatically upon the happening of the condition; the future interest in this estate must be claimed by the holder of the interest. The future interest is called a "right of reentry" or "right of entry." The language used to create this interest is, "to A, but if A sells alcohol on the land, then grantor has the right of reentry."
[edit] References
- ^ Kentucky Revised Statutes Annotated § 381.218 (2006).
