Select Page

Property II
St. Johns University School of Law
DiLorenzo, Vincent M.

Property II
Professor DiLorenzo
Spring 2010
Freehold Estates
default rule – if not explicitly stated otherwise, a conveyance of land is a fee simple estate
at early common law, “and his heirs” was required to create a fee simple estate
no property rights are given to the heirs – therefore “To A and her heirs” – only A has any rights in and to the property
“To A for life, then to B”
A and B both take interest immediately
B’s interest in the fee simple estate is subject to A’s life estate
when A dies, his interest in the land ends
there is a constructional preference for the type of estate that would least likely lead to forfeiture – but always look at the intention of the grantor in determining what type of fee simple estate there is
fee simple absolute
holder has the entire bundle of rights
right to possess
right to use
right to fruits and profits
right to alienate
right to destroy
rights are exclusive and perpetual
rights are appraised at full market value
no restrictions – not subject to an imposed condition
therefore title is never lost or forfeited
fee simple subject to a covenant
does not cause forfeiture – even if the condition is breached
results in injunctive relief or damages
recognizable when there is a covenant but no words of forfeiture
fee simple determinable
e.g. “O to A so long as the parcel is used as a one-family residence”
words of purchase – to A
words of limitation – since there are none, A takes a fee simple estate
since this is subject to a condition it is not a fee simple absolute
however, there would be a forfeiture of the land by A when the home is no longer used as a one-family home
when the condition is breached, the estate goes back to the original owner – loss of title is automatic
phrases associated with fee simple determinable –
“so long as”
“then the property automatically reverts to O”
in NY its called a fee on limitation
the interest in O is a reversionary interest
therefore O still has an estate after giving it to A
fee simple subject to conditions subsequent
when there is a breach of the condition, the property can revert back to the grantor – loss of title is not automatic
the owner would still be A until O brings a lawsuit in court to declare the forfeiture effective
if O never gets that declaration, then A is still the owner
phrases associated with fee simple subject to conditions subsequent –
“right to reenter”
“may cause a reversion of the estate”
“may lead to a forfeiture”
when it is ambiguous, the courts prefer a fee simple subject to conditions subsequent over a fee simple determinable
in NY its called a fee on condition
interest in O is a right of reentry
rights of reversion and reentry are transferable inter vivos
e.g. “O to A so long as the property is used as a one-family home, then to B”
A has a fee simple determinable
B has a remainder interest – whenever there is a conveyance to another individual it is a remainder interest
O has nothing
defenses and modifications
NY RPAPL § 612
10 years after the occurrence of the reverter or the first breach of condition
specifically targeted to determinable fees and conditions subsequent
even though determinable fee is supposed to be automatic, O loses his rights if he does not make a claim within 10 years
STATUTORY MODIFICATIONS of the fee simple determinable and the fee simple subject to conditions subsequent
NY RPL § 345
for conditions created before 9/1/1958 – the holder of the reversiona

 O is not obligated to continue the lease.
NOT perpetual – ends when the life estate holder dies
required magical words at common law – “O to A and the heirs of his body”
the fee tail descends to A’s lineal descendents, generation after generation
creates successive life estates, not title
when A’s blood line ends, it goes back to the heirs of O
the possessive interest is alienable – but the interest following that is not
A does not have the power to convey to someone else that is not an heir after his death
A only has a life estate – therefore no right to convey future interest
every state has abolished the fee tail – 2 different forms of abolishment
1. the original owner takes a fee simple absolute
e.g. “to A and the heirs of his body”
creates a fee simple absolute in A
neither A nor A’s issue or heirs take anything under above conveyance
2. the original owner takes a fee simple absolute BUT
e.g. “O to A and the heirs of his body”
if O alienates future interest to B…
B will take the fee simple if and only if at A’s death, A leaves no surviving issue
if that occurs, the B receives their future interest in fee simple absolute
if that does not occur, A receives a fee simple absolute
O does NOT have a reversionary interest
NY RULE – NY EPTL 6-1.2[l`
anything that would have been a fee tail in NY is now considered a fee simple
and if no valid future is limited thereon, it is a fee simple absolute