What Is A Fee Simple Defeasible?
Fee simple defeasible, also referred to as defeasible fee, is a freehold estate where a new owner, the grantee, takes title to real estate from the previous owner, the grantor, subject to some specific condition. The owner benefits from all the powers, rights and interests of ownership as long as a certain condition is met, or until some event occurs. If the condition is violated, or event occurs, the property reverts to the grantor.
Fee Simple Defeasible Versus Fee Simple Absolute
Where a fee simple defeasible estate is a freehold estate where title is held as long as a certain condition is met, or until some event occurs, a fee simple absolute estate is not subject to any condition. In a fee simple absolute estate, ownership is absolute. In a fee simple defeasible estate, ownership is conditional.
Rights In A Fee Simple Defeasible Estate
Other than the condition specified as part of the defeasible fee, the rights powers of the owner are effectively the same as in a fee simple absolute estate. The owner that holds title in defeasible fee has a current and future possessory interest in the property.
The owner owns and controls all the interests and rights in the property and can sell or transfer these rights at will. A defeasible fee estate can also be willed to the owners heirs. A defeasible fee is thus a perpetual estate. However the condition remains a part of the defeasible fee estate. This means subsequent owners or heirs are also subject to the condition as part of ownership of the estate.
Fee Simple Determinable
A fee simple determinable estate is a type of a fee simple defeasible estate. In a fee simple determinable estate, an owner maintains an interest in the estate “as long as” a condition is met.
Ownership depends on continuously respecting some specific condition. Key catch phrases that imply a fee simple determinable estate include “as long as” or “while”.
For example, if an owner sells a property to a church “as long as” it is used for religious purposes, the church and all future owners of the defeasible fee must use the property for religious purposes. As long as the property had a religious use such as a chapel or church parking lot, the condition is upheld. If a subsequent owner built a gas station on the property, which has no religious purpose, the condition would be violated and the estate would revert to the original grantor or the grantor’s heirs.
Fee Simple Subject To Condition Subsequent
In a fee simple subject To condition subsequent, the ownership interest in the estate is held “unless” a specified event occurs or specific condition is met.
Key phrases to look for that indicate a condition subsequent are "but if," “until” or “unless.”
To illustrate the nuance of a condition subsequent, we can use the sale to the church above. If the owner, the grantor, sells the property to the church for religious purposes, the church holds on to the property, “but if” the property is not used for religious purposes for a period of time, the property would revert to the grantor. The church "not using" the property for religious purposes is a subsequent event and condition of title that triggers reversion of the interests in the property back to the grantor.