April 28, 2025 • 22 mins
Welcome back to the Law School Toolbox podcast! In this episode, we're diving into a topic from Property Law -- Present and Future Estates. Specifically, we discuss the default property interest, the fee simple absolute and defeasible fees, along with the corresponding future interests.
In this episode we discuss:
- The definition of present estates and future interests
- The fee simple absolute
- Types of defeasible fees
- Shifting and springing executory interests
- Examples illustrating the above concepts
Resources:
- "Listen and Learn" series (https://lawschooltoolbox.com/law-school-toolbox-podcast-substantive-law-topics/#listen-learn)
- California Bar Examination – Essay Questions and Selected Answers, July 2011 (https://nwculaw.edu/pdf/bar/July%202011%20Essays%20and%20Sample%20Answers.pdf)
- California Bar Examination – Essay Questions and Selected Answers, July 2015 (https://www.calbar.ca.gov/Portals/0/documents/admissions/gbx/July2015_CBXSelectedAnswers_EssayQuestions1-6_R.pdf)
Download the Transcript
(https://lawschooltoolbox.com/episode-501-listen-and-learn-present-and-future-estates-part-1/)
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Thanks for listening!
Alison & Lee
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Lee Burgess (00:05):
Welcome back to the Law School Toolbox podcast!
Today, as part of our “Listen and Learn”series, we’re discussing a topic in
Property – present and future estates.
Your Law School Toolbox hosts are AlisonMonahan and Lee Burgess – that’s me.
We’re here to demystify the lawschool and early legal career
experience, so you’ll be the bestlaw student and lawyer you can be.
(00:26):
We’re the co-creators of the Law SchoolToolbox, the Bar Exam Toolbox, and the
career-related website CareerDicta.
Alison also runs TheGirl’s Guide to Law School.
If you enjoy the show, pleaseleave a review or rating on your
favorite listening app, and ifyou have any questions, don’t
hesitate to reach out to us.
You can reach us via the contactform on LawSchoolToolbox.com,
and we’d love to hear from you.
And with that, let’s get started.
(00:53):
Today, we’re going to diveinto a hot topic in Property
Law - Present and Future Estates.
Since this topic is too large tocover in one episode, today we’re just
going to discuss the default propertyinterest, the fee simple absolute,
and defeasible fees, along withthe corresponding future interests.
(01:14):
Stay tuned for a future episode coveringlife estates, reversions, and remainders.
So, let’s get started.
Present estates, which are sometimesreferred to as freehold estates,
address who has the right tocurrently possess real property.
A future interest, in contrast,is an ownership interest in
(01:34):
existing real property, but theright to possession won’t commence
until sometime in the future.
Essentially, a future interest holderdoes not currently have the right
to possess the property, but willearn that right upon the occurrence
of a specific event or condition.
The most common form of property ownershipis the fee simple absolute, which is
(01:57):
often shortened to just the “fee simple”.
This is an absolute ownership interestof a potentially infinite duration.
This is traditionally what we think ofwhen we think of property ownership.
When you purchase a home, you havetitle to your home and that home
will be passed on to your heirs,unless you sell or otherwise transfer
(02:17):
that property to someone else.
A fee simple absolute does not terminateunless the owner dies without any heirs.
When an owner dies without heirs,the property will go to the state.
But in all other circumstances,when an owner dies, the property
will pass on to the owner’s heirs,then to their heirs, and so on.
(02:38):
Present and future interests can seem veryabstract at first, so let’s illustrate
this with an example (02:44):
O conveys Willow Lane to A. O is conveying a fee simple
absolute to A, because they are conveyingthe entire property interest to A. A
will, therefore, have absolute ownershipover the property until they die.
Willow Lane will then pass to A’s heirswhen A dies and continue on like that
(03:06):
indefinitely, unless someone down the linedies without any heirs or the property
is otherwise transferred to someone else.
Fee simple absolute is also consideredto be the default form of ownership.
Whenever a conveyance of propertyis ambiguous, such that it cannot
be determined what type of interestthe grantor intended to give away,
(03:30):
it is assumed the grantor iintendedto convey a fee simple absolute.
An understanding of the fee simpleabsolute is important to our discussion
on defeasible fees, because all otherpresent and future estates are carved
out of the fee simple absolute.
To visualize this, think of thefee simple absolute as a pie.
(03:52):
When an owner divides theirinterest in property, they are
giving away pieces of that pie.
All those pieces – the present andfuture interests – must add up to the
fee simple absolute, or the whole pie.
This is because the fee simpleabsolute is essentially the
title to the entire property.
So, if the owner only gives awaytheir present estate in the property,
(04:16):
they must retain a future interestin that property or give that future
interest away to someone else.
One way an owner might carve outthat fee simple absolute is through
the conveyance of a defeasiblefee – our main topic for today.
A defeasible fee is also an ownershipinterest of potentially infinite duration,
(04:37):
but unlike with a fee simple absolute,that ownership may be terminated upon
the occurrence of a specific event.
Essentially, with a defeasible fee,you will receive an ownership interest
that will indefinitely pass on toyour heirs; however, that interest can
be terminated if you, or later yourheirs, don't meet certain conditions
(05:00):
or do something that is prohibited.
If the specified condition happens,you forfeit your ownership interest and
that interest either reverts back to thegrantor or passes on to someone else.
Who ultimately receives the propertyafter your interest is lost depends
on the type of defeasible fee at play,which we’ll talk about in a moment.
(05:22):
But if that condition never occurs,your ownership interest will continue
on forever and pass to your heirsand their heirs, etcetera - just
like with a fee simple absolute.
There are three types of defeasiblefees: [1] fee simple determinable;
[2] fee simple subject to conditionsubsequent; and [3] fee simple
(05:46):
subject to an executory limitation.
Each of these present estates createsa corresponding future interest: [1]
possibility of reverter; [2] right ofre-entry; and [3] executory interest.
Like mentioned above, thedefeasible fee and the future
interest it creates are both carvedout of the fee simple absolute.
(06:11):
Each are pieces of the whole pie, andtogether they add up to the entire
title interest of the property, alsoknown as the fee simple absolute.
Let’s start by looking atthe first type of defeasible
fees - a fee simple determinable.
Here, the grantee holds a feesimple interest in the property
(06:32):
until a specifc condition occurs.
A fee simple determinable islimited by durational language.
So, you want to look for words or phraseslike “so long as”, “while”, “during”,
“until”, or other similar such language.
A fee simple determinable will terminateautomatically when the condition
(06:53):
happens, and the fee simple interestthen reverts back to the grantor and
their heirs, if the grantor has passed.
Let’s consider an example (07:01):
O conveys Willow Lane to A, so long
as the property is used as a farm.
In this example, O is conveying a feesimple interest to A. A will retain
that interest indefinitely, until theproperty stops being used as a farm.
Once A or any future heirs stopusing the property as a farm,
(07:25):
the property automaticallyreverts back to O or their heirs.
O or their heirs will then own a feesimple interest in the property once more.
This is because once A’sinterest reverts back, there
are no more pieces to carve out.
The whole pie is intact againand back in O’s possession.
(07:48):
To understand this better, let’slook more closely at O’s interest.
When O conveys Willow Lane to A, solong as it's used as a farm, what
interest does O retain in the property?
O is going to retain a future interestknown as a possibility of reverter.
Remember, this is a future interest,because O doesn’t have the right
(08:10):
to possess Willow Lane currently.
They gave that right away to A.But they retain the future right
to possess Willow Lane if itever stops being used as a farm.
This is called a possibility of reverter,because the property will only revert back
to O if it is no longer used as a farm.
(08:33):
If Willow Lane continues to be usedas a farm for the rest of time, then
it will never revert back to O. So,that reversion is only a possibility.
Next, let’s talk about fee simple subjectto condition subsequent, which I’m going
to shorten to just “condition subsequent”for the purposes of our discussion.
(08:55):
Here, the grantee holds a fee simpleinterest in the property, but if a
condition happens, the grantor hasthe right to terminate the estate.
The key here is to look forconditional language, such as
“but if”, “on the conditionthat”, “provided that”, etcetera.
Unlike with a fee simple determinable,a condition subsequent does not
(09:18):
terminate automatically whenthe specified condition occurs.
This is because the future interestthe grantor retains with a condition
subsequent is a right of re-entry.
There is a judicial process thatthe grantor must go through in
order to exercise their right ofre-entry and take back the property.
(09:39):
You don’t need to know thespecifics of that process for the
bar exam or your law school exams.
You just need to know that thegrantor must go to court in order
to retake the property when you’redealing with a condition subsequent.
Until that happens, the granteewill continue to own the land, even
though the condition has occurred.
Consider this example (09:59):
O conveys Willow Lane to A, but if the
land is used for non-agriculturalpurposes, the grantor may re-enter.
Here, if the land is ever used foranything other than agriculture, O can
go to court and retake the property.
However, if O never exercises thatright of re-entry, A gets to keep their
(10:23):
interest, even though the propertyis not being used for agriculture.
That is the major differencebetween a condition subsequent
and a fee simple determinable.
There is no automaticreversion back to the grantor.
Our last defeasable fee is a fee simplesubject to an executory limitation.
(10:43):
Here, the grantee holds a fee simpleinterest in the property, but if a
condition happens, the title automaticallypasses to a named third party.
Since a fee simple subject to anexecutory limitation can be limited
by either durational or conditionallanguage, the key thing to look for in
identifying this type of estate is thatthe conveyance is to a third party.
(11:07):
With fee simple determinable and conditionsubsequent, the property reverts back
to the grantor, but with fee simplesubject to an executory limitation,
the property will pass to someone else.
Let’s discuss this example (11:20):
O conveys Willow Lane to A, so long as the land
is used as a farm, then to B. O grantsthe property to A. A and A’s heirs
can keep the property indefinitely, solong as they use the land as a farm.
When the land is no longer used as afarm, it goes to B, not back to O. B
(11:47):
then holds a fee simple absolute andwill keep the property indefinitely.
It will never revert back to O. O hasgiven away the whole pie – one piece to
A and one piece to B. A forfeited theirpiece to B, so now B holds the whole pie.
Now, what type of interest does the thirdparty - B in our example - hold in a fee
(12:12):
simple subject to an executory limitation?
They hold a future interestcalled an executory interest.
An executory interest is going tocut the prior estate short upon the
occurrence of a specified condition.
In our example, A would have had theproperty indefinitely, but B’s executory
(12:33):
interest cut A’s interest short whenA stopped using the land as a farm.
This type of interest is executory,because B isn’t entitled to the property
until the condition is breached.
If the property continues tobe used as a farm indefinitely,
B will never get the property.
Executory interests are a littlemore complicated than the future
(12:56):
interests we discussed previously.
There are two sub-types of executoryinterests: shifting executory interests
and springing executory interests.
We'll start with shiftingexecutory interests.
Shifting executory interestscut short a prior estate
created in the same conveyance.
(13:17):
They essentially “shift” the propertyinterest from one grantee to another on
the happening of the specified condition.
For example, O conveys Willow Lane toA, but if B returns from London, then to
B. B has a shifting executory interest.
(13:38):
If they ever return from London, theywill cut A’s property interest short
and that interest will “shift” to them.
A springing executory interestcan form in one of two ways.
First, a springing executory interestmay divest the grantor of their interest.
Consider, O conveys Willow Laneto A, if A graduates law school.
(14:03):
If A ever graduates from lawschool, A will divest O of
their interest in Willow Lane.
In contrast, if A never graduatesfrom law school, O will retain
Willow Lane indefinitely.
The second way a springing executoryinterest might form is if the property
temporarily reverts back to the grantorto fill a gap in possession of the estate.
An example of this would be (14:28):
O conveys Willow Lane to A for life, and one
year after A’s death, to B. Here, Oconveyed a life estate to A. I know we
haven’t covered life estates yet, butyou don’t need to know the specifics
for the purposes of this example.
Just know that O gave the propertyto A for the duration of A’s life.
(14:52):
Now, in this example, B does not get theproperty until one year after A’s death.
That leaves a one-year gap inthe possession of Willow Lane,
but we can’t just leave theproperty unowned for the year.
So, to “fill the gap”, Willow Lane willrevert back to O for one year following
A’s death. Once one year has passed,Willow Lane will “spring” from O to
(15:16):
B, who will then hold a fee simpleabsolute in the property indefinitely.
Hopefully you’re still with me!
I know that was quite a lot of rulesto take in, so let’s walk through
a couple of hypos to see how theserules play out with more context.
Our first hypo is adapted from Question2 on the July 2015 California bar exam,
(15:38):
but we’ve edited it a bit to focus solelyon the present and future estate issue.
Since we did not discuss restraintson alienation in this podcast episode,
please ignore any potential issuesrelated to that topic in this question.
Focus solely on identifying the typepresent and future estate at issue.
(15:58):
As I read through this hypo, try to keepin mind what we’ve learned so far today.
In particular, look for thatkey language we talked about.
Does the conveyance useconditional or durational language?
Is the property passing back tothe grantor or to a third party?
The answers to those questionswill help you identify the type
of defeasible fee at play here.
(16:19):
With that said, let’sdive into the question:
” Oscar owned a fee simpleabsolute interest in Greenacre.
He conveyed a fee simple defeasibleinterest in Greenacre to Martha and
Lenny for so long as neither Martha norLenny make any transfer of Greenacre.
In the event of such a transfer, Greenacreshall automatically revert back to Oscar.
(16:44):
What property interest in Greenacre, ifany, do Oscar, Lenny, and Martha possess?”
Okay, so here, Oscar startedoff with the entire pie.
He has a fee simple absolute.
He then conveys the property toMartha and Lenny on the condition
that neither transfer the property.
Again, for our purposes, we’regoing to ignore any potential
(17:07):
validity issues with this conditionplacing a restraint on alienation.
We’re just going to focuson what type of estates are
created through this conveyance.
The first question we want to askis whether this conveyance uses
durational or conditional language.
Oscar used the phrase “so longas”, which is conveying the length
of time that something will last.
(17:29):
So, this is durational language.
The next question we want to askis whether the property reverts
back to Oscar or passes to someoneelse upon the occurrence of the
condition, or when either Marthaor Lenny transfer the property.
Here, the hypo specifically told us thatGreenacre will “automatically revert
(17:51):
back to Oscar” if such transfer occurs.
So, since we have durational languageand the estate will revert back to
the grantor, Oscar has granted Marthaand Lenny a fee simple determinable.
Oscar, therefore, holds apossibility of reverter.
It’s a possibility, because Oscaronly gets Greenacre back if Martha
(18:12):
or Lenny transfer the property.
Otherwise, Greenacre remains withMartha and Lenny indefinitely.
Because Oscar holds a possibility ofreverter, Greenacre will automatically
revert back to him if Marthaor Lenny transfer the property.
He does not need to go to courtto take the property back.
(18:33):
Hopefully this hypothetical helpedprovide some context as to how these
issues might play out on an exam.
Let’s walk through anotherexample to be certain.
This hypothetical is pulled from Question5 on the July 2011 California bar exam.
Like with our first example, we’veadapted it to reflect only the present
and future estates issue, and youshould ignore any potential issues
(18:56):
regarding restraint on alienation:
”Prior to 1975, Andy ownedBlackacre in fee simple absolute.
In 1975, Andy by written deedconveyed Blackacre to Beth and Chris.
The deed provides (19:12):
’If Blackacre, or any portion of Blackacre, is transferred
to a third party, either individuallyor jointly, by Beth or Chris, Andy
shall have the right to immediatelyre-enter and repossess Blackacre.’
What interest in Blackacre, ifany, did Andy initially convey
to Beth, Chris, and himself?”
(19:34):
Here, Andy initially ownedBlackacre in fee simple absolute,
so he held the whole pie.
He then conveyed a piece ofthat pie to Beth and Chris.
What type of present estate doyou think Andy conveyed here?
Let’s go through our“key language” questions.
Did Andy use durational orconditional language here?
(19:54):
This is not quite as clear asour first example, because the
conveyance isn’t written in thetraditional ”O to A, if…” structure.
What the deed essentially says isif either Beth or Chris transfer
Blackacre, Andy can retake the property.
This is not conveying any senseof time, so we aren’t looking
(20:15):
at durational language here.
Rather, Andy has established a condition: If Beth or Chris transfer Blackacre, (20:17):
undefined
they lose their interest in the property.
Now, if Beth or Chris transferBlackacre, who gets the
property - Andy or a third party?
Here, the deed says “Andy shall have theright to immediately re-enter.” Andy is
retaining a right to retake the property,so he’s granting Beth and Chris a fee
(20:41):
simple subject to a condition subsequent.
Because Andy conveyed acondition subsequent, we know
that the future interest heretained is a right of re-entry.
It is important to note herethat the property is not going to
automatically revert back to Andyif Beth or Chris transfer Blackacre.
Don’t let the deed’s use of“immediately” confuse you.
(21:03):
When a grantor retains a right ofre-entry, they must go to court and
proceed through the required judicialprocess to take back the property.
If Andy never goes to court to retakeBlackacre, Beth or Chris and/or
whomever the property was transferredto will continue to possess Blackacre.
(21:23):
And with that, we’re out of time!
If you enjoyed this episode of theLaw School Toolbox podcast, please
take a second to leave a review andrating on your favorite listening app.
We'd really appreciate it.
And be sure to subscribeso you don't miss anything.
If you have any questions orcomments, please don't hesitate
to reach out to myself or Alisonat lee@lawschooltoolbox.com or
alison@lawschooltoolbox.com.
(21:44):
Or you can always contactus via our website contact
form at LawSchoolToolbox.com.
Thanks for listening, and we’ll talk soon!
Welcome back to the Law School Toolbox podcast!
Today, as part of our “Listen and Learn”series, we’re discussing a topic in
Property – present and future estates.
Your Law School Toolbox hosts are AlisonMonahan and Lee Burgess – that’s me.
We’re here to demystify the lawschool and early legal career
experience, so you’ll be the bestlaw student and lawyer you can be.
(00:26):
We’re the co-creators of the Law SchoolToolbox, the Bar Exam Toolbox, and the
career-related website CareerDicta.
Alison also runs TheGirl’s Guide to Law School.
If you enjoy the show, pleaseleave a review or rating on your
favorite listening app, and ifyou have any questions, don’t
hesitate to reach out to us.
You can reach us via the contactform on LawSchoolToolbox.com,
and we’d love to hear from you.
And with that, let’s get started.
(00:53):
Today, we’re going to diveinto a hot topic in Property
Law - Present and Future Estates.
Since this topic is too large tocover in one episode, today we’re just
going to discuss the default propertyinterest, the fee simple absolute,
and defeasible fees, along withthe corresponding future interests.
(01:14):
Stay tuned for a future episode coveringlife estates, reversions, and remainders.
So, let’s get started.
Present estates, which are sometimesreferred to as freehold estates,
address who has the right tocurrently possess real property.
A future interest, in contrast,is an ownership interest in
(01:34):
existing real property, but theright to possession won’t commence
until sometime in the future.
Essentially, a future interest holderdoes not currently have the right
to possess the property, but willearn that right upon the occurrence
of a specific event or condition.
The most common form of property ownershipis the fee simple absolute, which is
(01:57):
often shortened to just the “fee simple”.
This is an absolute ownership interestof a potentially infinite duration.
This is traditionally what we think ofwhen we think of property ownership.
When you purchase a home, you havetitle to your home and that home
will be passed on to your heirs,unless you sell or otherwise transfer
(02:17):
that property to someone else.
A fee simple absolute does not terminateunless the owner dies without any heirs.
When an owner dies without heirs,the property will go to the state.
But in all other circumstances,when an owner dies, the property
will pass on to the owner’s heirs,then to their heirs, and so on.
(02:38):
Present and future interests can seem veryabstract at first, so let’s illustrate
this with an example (02:44):
O conveys Willow Lane to A. O is conveying a fee simple
absolute to A, because they are conveyingthe entire property interest to A. A
will, therefore, have absolute ownershipover the property until they die.
Willow Lane will then pass to A’s heirswhen A dies and continue on like that
(03:06):
indefinitely, unless someone down the linedies without any heirs or the property
is otherwise transferred to someone else.
Fee simple absolute is also consideredto be the default form of ownership.
Whenever a conveyance of propertyis ambiguous, such that it cannot
be determined what type of interestthe grantor intended to give away,
(03:30):
it is assumed the grantor iintendedto convey a fee simple absolute.
An understanding of the fee simpleabsolute is important to our discussion
on defeasible fees, because all otherpresent and future estates are carved
out of the fee simple absolute.
To visualize this, think of thefee simple absolute as a pie.
(03:52):
When an owner divides theirinterest in property, they are
giving away pieces of that pie.
All those pieces – the present andfuture interests – must add up to the
fee simple absolute, or the whole pie.
This is because the fee simpleabsolute is essentially the
title to the entire property.
So, if the owner only gives awaytheir present estate in the property,
(04:16):
they must retain a future interestin that property or give that future
interest away to someone else.
One way an owner might carve outthat fee simple absolute is through
the conveyance of a defeasiblefee – our main topic for today.
A defeasible fee is also an ownershipinterest of potentially infinite duration,
(04:37):
but unlike with a fee simple absolute,that ownership may be terminated upon
the occurrence of a specific event.
Essentially, with a defeasible fee,you will receive an ownership interest
that will indefinitely pass on toyour heirs; however, that interest can
be terminated if you, or later yourheirs, don't meet certain conditions
(05:00):
or do something that is prohibited.
If the specified condition happens,you forfeit your ownership interest and
that interest either reverts back to thegrantor or passes on to someone else.
Who ultimately receives the propertyafter your interest is lost depends
on the type of defeasible fee at play,which we’ll talk about in a moment.
(05:22):
But if that condition never occurs,your ownership interest will continue
on forever and pass to your heirsand their heirs, etcetera - just
like with a fee simple absolute.
There are three types of defeasiblefees: [1] fee simple determinable;
[2] fee simple subject to conditionsubsequent; and [3] fee simple
(05:46):
subject to an executory limitation.
Each of these present estates createsa corresponding future interest: [1]
possibility of reverter; [2] right ofre-entry; and [3] executory interest.
Like mentioned above, thedefeasible fee and the future
interest it creates are both carvedout of the fee simple absolute.
(06:11):
Each are pieces of the whole pie, andtogether they add up to the entire
title interest of the property, alsoknown as the fee simple absolute.
Let’s start by looking atthe first type of defeasible
fees - a fee simple determinable.
Here, the grantee holds a feesimple interest in the property
(06:32):
until a specifc condition occurs.
A fee simple determinable islimited by durational language.
So, you want to look for words or phraseslike “so long as”, “while”, “during”,
“until”, or other similar such language.
A fee simple determinable will terminateautomatically when the condition
(06:53):
happens, and the fee simple interestthen reverts back to the grantor and
their heirs, if the grantor has passed.
Let’s consider an example (07:01):
O conveys Willow Lane to A, so long
as the property is used as a farm.
In this example, O is conveying a feesimple interest to A. A will retain
that interest indefinitely, until theproperty stops being used as a farm.
Once A or any future heirs stopusing the property as a farm,
(07:25):
the property automaticallyreverts back to O or their heirs.
O or their heirs will then own a feesimple interest in the property once more.
This is because once A’sinterest reverts back, there
are no more pieces to carve out.
The whole pie is intact againand back in O’s possession.
(07:48):
To understand this better, let’slook more closely at O’s interest.
When O conveys Willow Lane to A, solong as it's used as a farm, what
interest does O retain in the property?
O is going to retain a future interestknown as a possibility of reverter.
Remember, this is a future interest,because O doesn’t have the right
(08:10):
to possess Willow Lane currently.
They gave that right away to A.But they retain the future right
to possess Willow Lane if itever stops being used as a farm.
This is called a possibility of reverter,because the property will only revert back
to O if it is no longer used as a farm.
(08:33):
If Willow Lane continues to be usedas a farm for the rest of time, then
it will never revert back to O. So,that reversion is only a possibility.
Next, let’s talk about fee simple subjectto condition subsequent, which I’m going
to shorten to just “condition subsequent”for the purposes of our discussion.
(08:55):
Here, the grantee holds a fee simpleinterest in the property, but if a
condition happens, the grantor hasthe right to terminate the estate.
The key here is to look forconditional language, such as
“but if”, “on the conditionthat”, “provided that”, etcetera.
Unlike with a fee simple determinable,a condition subsequent does not
(09:18):
terminate automatically whenthe specified condition occurs.
This is because the future interestthe grantor retains with a condition
subsequent is a right of re-entry.
There is a judicial process thatthe grantor must go through in
order to exercise their right ofre-entry and take back the property.
(09:39):
You don’t need to know thespecifics of that process for the
bar exam or your law school exams.
You just need to know that thegrantor must go to court in order
to retake the property when you’redealing with a condition subsequent.
Until that happens, the granteewill continue to own the land, even
though the condition has occurred.
Consider this example (09:59):
O conveys Willow Lane to A, but if the
land is used for non-agriculturalpurposes, the grantor may re-enter.
Here, if the land is ever used foranything other than agriculture, O can
go to court and retake the property.
However, if O never exercises thatright of re-entry, A gets to keep their
(10:23):
interest, even though the propertyis not being used for agriculture.
That is the major differencebetween a condition subsequent
and a fee simple determinable.
There is no automaticreversion back to the grantor.
Our last defeasable fee is a fee simplesubject to an executory limitation.
(10:43):
Here, the grantee holds a fee simpleinterest in the property, but if a
condition happens, the title automaticallypasses to a named third party.
Since a fee simple subject to anexecutory limitation can be limited
by either durational or conditionallanguage, the key thing to look for in
identifying this type of estate is thatthe conveyance is to a third party.
(11:07):
With fee simple determinable and conditionsubsequent, the property reverts back
to the grantor, but with fee simplesubject to an executory limitation,
the property will pass to someone else.
Let’s discuss this example (11:20):
O conveys Willow Lane to A, so long as the land
is used as a farm, then to B. O grantsthe property to A. A and A’s heirs
can keep the property indefinitely, solong as they use the land as a farm.
When the land is no longer used as afarm, it goes to B, not back to O. B
(11:47):
then holds a fee simple absolute andwill keep the property indefinitely.
It will never revert back to O. O hasgiven away the whole pie – one piece to
A and one piece to B. A forfeited theirpiece to B, so now B holds the whole pie.
Now, what type of interest does the thirdparty - B in our example - hold in a fee
(12:12):
simple subject to an executory limitation?
They hold a future interestcalled an executory interest.
An executory interest is going tocut the prior estate short upon the
occurrence of a specified condition.
In our example, A would have had theproperty indefinitely, but B’s executory
(12:33):
interest cut A’s interest short whenA stopped using the land as a farm.
This type of interest is executory,because B isn’t entitled to the property
until the condition is breached.
If the property continues tobe used as a farm indefinitely,
B will never get the property.
Executory interests are a littlemore complicated than the future
(12:56):
interests we discussed previously.
There are two sub-types of executoryinterests: shifting executory interests
and springing executory interests.
We'll start with shiftingexecutory interests.
Shifting executory interestscut short a prior estate
created in the same conveyance.
(13:17):
They essentially “shift” the propertyinterest from one grantee to another on
the happening of the specified condition.
For example, O conveys Willow Lane toA, but if B returns from London, then to
B. B has a shifting executory interest.
(13:38):
If they ever return from London, theywill cut A’s property interest short
and that interest will “shift” to them.
A springing executory interestcan form in one of two ways.
First, a springing executory interestmay divest the grantor of their interest.
Consider, O conveys Willow Laneto A, if A graduates law school.
(14:03):
If A ever graduates from lawschool, A will divest O of
their interest in Willow Lane.
In contrast, if A never graduatesfrom law school, O will retain
Willow Lane indefinitely.
The second way a springing executoryinterest might form is if the property
temporarily reverts back to the grantorto fill a gap in possession of the estate.
An example of this would be (14:28):
O conveys Willow Lane to A for life, and one
year after A’s death, to B. Here, Oconveyed a life estate to A. I know we
haven’t covered life estates yet, butyou don’t need to know the specifics
for the purposes of this example.
Just know that O gave the propertyto A for the duration of A’s life.
(14:52):
Now, in this example, B does not get theproperty until one year after A’s death.
That leaves a one-year gap inthe possession of Willow Lane,
but we can’t just leave theproperty unowned for the year.
So, to “fill the gap”, Willow Lane willrevert back to O for one year following
A’s death. Once one year has passed,Willow Lane will “spring” from O to
(15:16):
B, who will then hold a fee simpleabsolute in the property indefinitely.
Hopefully you’re still with me!
I know that was quite a lot of rulesto take in, so let’s walk through
a couple of hypos to see how theserules play out with more context.
Our first hypo is adapted from Question2 on the July 2015 California bar exam,
(15:38):
but we’ve edited it a bit to focus solelyon the present and future estate issue.
Since we did not discuss restraintson alienation in this podcast episode,
please ignore any potential issuesrelated to that topic in this question.
Focus solely on identifying the typepresent and future estate at issue.
(15:58):
As I read through this hypo, try to keepin mind what we’ve learned so far today.
In particular, look for thatkey language we talked about.
Does the conveyance useconditional or durational language?
Is the property passing back tothe grantor or to a third party?
The answers to those questionswill help you identify the type
of defeasible fee at play here.
(16:19):
With that said, let’sdive into the question:
” Oscar owned a fee simpleabsolute interest in Greenacre.
He conveyed a fee simple defeasibleinterest in Greenacre to Martha and
Lenny for so long as neither Martha norLenny make any transfer of Greenacre.
In the event of such a transfer, Greenacreshall automatically revert back to Oscar.
(16:44):
What property interest in Greenacre, ifany, do Oscar, Lenny, and Martha possess?”
Okay, so here, Oscar startedoff with the entire pie.
He has a fee simple absolute.
He then conveys the property toMartha and Lenny on the condition
that neither transfer the property.
Again, for our purposes, we’regoing to ignore any potential
(17:07):
validity issues with this conditionplacing a restraint on alienation.
We’re just going to focuson what type of estates are
created through this conveyance.
The first question we want to askis whether this conveyance uses
durational or conditional language.
Oscar used the phrase “so longas”, which is conveying the length
of time that something will last.
(17:29):
So, this is durational language.
The next question we want to askis whether the property reverts
back to Oscar or passes to someoneelse upon the occurrence of the
condition, or when either Marthaor Lenny transfer the property.
Here, the hypo specifically told us thatGreenacre will “automatically revert
(17:51):
back to Oscar” if such transfer occurs.
So, since we have durational languageand the estate will revert back to
the grantor, Oscar has granted Marthaand Lenny a fee simple determinable.
Oscar, therefore, holds apossibility of reverter.
It’s a possibility, because Oscaronly gets Greenacre back if Martha
(18:12):
or Lenny transfer the property.
Otherwise, Greenacre remains withMartha and Lenny indefinitely.
Because Oscar holds a possibility ofreverter, Greenacre will automatically
revert back to him if Marthaor Lenny transfer the property.
He does not need to go to courtto take the property back.
(18:33):
Hopefully this hypothetical helpedprovide some context as to how these
issues might play out on an exam.
Let’s walk through anotherexample to be certain.
This hypothetical is pulled from Question5 on the July 2011 California bar exam.
Like with our first example, we’veadapted it to reflect only the present
and future estates issue, and youshould ignore any potential issues
(18:56):
regarding restraint on alienation:
”Prior to 1975, Andy ownedBlackacre in fee simple absolute.
In 1975, Andy by written deedconveyed Blackacre to Beth and Chris.
The deed provides (19:12):
’If Blackacre, or any portion of Blackacre, is transferred
to a third party, either individuallyor jointly, by Beth or Chris, Andy
shall have the right to immediatelyre-enter and repossess Blackacre.’
What interest in Blackacre, ifany, did Andy initially convey
to Beth, Chris, and himself?”
(19:34):
Here, Andy initially ownedBlackacre in fee simple absolute,
so he held the whole pie.
He then conveyed a piece ofthat pie to Beth and Chris.
What type of present estate doyou think Andy conveyed here?
Let’s go through our“key language” questions.
Did Andy use durational orconditional language here?
(19:54):
This is not quite as clear asour first example, because the
conveyance isn’t written in thetraditional ”O to A, if…” structure.
What the deed essentially says isif either Beth or Chris transfer
Blackacre, Andy can retake the property.
This is not conveying any senseof time, so we aren’t looking
(20:15):
at durational language here.
Rather, Andy has established a condition: If Beth or Chris transfer Blackacre, (20:17):
undefined
they lose their interest in the property.
Now, if Beth or Chris transferBlackacre, who gets the
property - Andy or a third party?
Here, the deed says “Andy shall have theright to immediately re-enter.” Andy is
retaining a right to retake the property,so he’s granting Beth and Chris a fee
(20:41):
simple subject to a condition subsequent.
Because Andy conveyed acondition subsequent, we know
that the future interest heretained is a right of re-entry.
It is important to note herethat the property is not going to
automatically revert back to Andyif Beth or Chris transfer Blackacre.
Don’t let the deed’s use of“immediately” confuse you.
(21:03):
When a grantor retains a right ofre-entry, they must go to court and
proceed through the required judicialprocess to take back the property.
If Andy never goes to court to retakeBlackacre, Beth or Chris and/or
whomever the property was transferredto will continue to possess Blackacre.
(21:23):
And with that, we’re out of time!
If you enjoyed this episode of theLaw School Toolbox podcast, please
take a second to leave a review andrating on your favorite listening app.
We'd really appreciate it.
And be sure to subscribeso you don't miss anything.
If you have any questions orcomments, please don't hesitate
to reach out to myself or Alisonat lee@lawschooltoolbox.com or
alison@lawschooltoolbox.com.
(21:44):
Or you can always contactus via our website contact
form at LawSchoolToolbox.com.
Thanks for listening, and we’ll talk soon!
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