What does it Mean to Own Property in Fee Simple Subject to a Condition Subsequent? |
Posted: March 16, 2018 |
Conveying real property is seldom as simple as it seems. Buyers and sellers of real estate are free to negotiate over several of the finer nuances of their transaction, including the exact type of interest in the land that is conveyed to the buyer. In some cases, the buyer takes a complete and theoretically eternal interest in the land. Other times, the buyer only takes land for a limited period of time, or only for so long as certain express conditions are met. Today, we are going to discuss the fee simple subject to a condition subsequent, one of the so-called “defeasible fee estates,” so named because of the fact that they could go on forever unless something occurs to sever them. Fee Simple Subject to a Condition Subsequent Defined A fee simple subject to a condition subsequent, much like a fee simple determinable, can go on forever as long as the subsequent condition is never triggered. However, it differs from a fee simple determinable in a few key ways. First of all, the conveyance of a fee simple subject to a condition subsequent uses conditional language, instead of duration language like a fee simple determinable. For example, a conveyance of a fee simple subject to a condition subsequent would look something like “I convey my land to my nephew, but if he divorces his wife, then I reserve the right to reenter and retake the property.” The other important difference, is that upon the occurrence of the triggering condition, the original seller of the property must take some action to reclaim the property. This action is called reentry, and it must be expressly reserved by the seller in the conveyance. Referring to our example conveyance above, the right of reentry is reserved by the language “… I reserve the right to reenter and retake the property.” Importantly, the original grantor of the property must exercise the right of reentry before title in the property reverts back to them. For example, if the nephew in our example divorces his wife, this would trigger the grantor’s right of reentry. However, if the grantor doesn’t exercise the right, the nephew retains title. This could go on indefinitely, with the nephew retaining title for decades. Whenever the grantor eventually does exercise the right of reentry, though, title is once again theirs, and the nephew has no interest in the property. Conclusion The fee simple subject to a condition subsequent is an interesting way for landowners to convey their property while ensuring that it retains a certain character or that the grantee conforms to a certain behavior. If someone does something with the property you sell them that you had forbidden in the conveyance, then you will be able get your land back by reentering and restoring it to your desired use. If you want to make this type of conveyance, but aren’t sure how to go about it, reach out to a real estate attorney in your area, and they will be able to use their experience with this type of real estate transaction to ensure that your intentions are carried out.
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