Fee Simple Determinable
What is the Fee Simple Determinable?
A fee simple estate that automatically terminates and reverts to the grantor upon the occurrence of a specified event, created by durational language such as 'so long as' or 'until.'
Source: Mahrenholz v. County Board of School Trustees, 93 Ill. App. 3d 366 (1981)
Definition
A fee simple determinable is a defeasible fee estate that is limited by specific durational language indicating that the estate will last only as long as a stated condition continues to be met. The hallmark of a fee simple determinable is the use of durational or temporal words such as 'so long as,' 'while,' 'during,' or 'until.' When the specified event occurs, the estate automatically terminates by operation of law without any action by the grantor.
The future interest retained by the grantor in a fee simple determinable is called a possibility of reverter. This interest is automatic and self-executing: the moment the condition is violated, title revests in the grantor (or the grantor's successors) without the need for reentry or judicial action. At common law, possibilities of reverter were not transferable inter vivos but were inheritable and devisable. Most modern jurisdictions have relaxed these restrictions.
The fee simple determinable is commonly used for charitable or institutional conveyances, such as grants of land for school or church purposes. For example, 'to the School Board so long as the property is used for educational purposes' creates a fee simple determinable with a possibility of reverter. If the school board ceases using the property for education, the estate automatically ends. Some jurisdictions have enacted statutes imposing time limits on the enforceability of possibilities of reverter to avoid the indefinite encumbrance of land titles.
Key Elements
- 1Durational language is used: 'so long as,' 'while,' 'during,' or 'until'
- 2Estate automatically terminates upon occurrence of the stated event
- 3Grantor retains a possibility of reverter
- 4No affirmative action by grantor is needed to reclaim the property
- 5The condition must be a legally permissible limitation
Landmark Cases
Mahrenholz v. County Board of School Trustees
93 Ill. App. 3d 366 (1981)
Distinguished between fee simple determinable and fee simple subject to condition subsequent based on the specific language of the conveyance, holding that the words 'to be used for school purposes only' created a fee simple determinable.
City of Palm Springs v. Living Desert Reserve
70 Cal. App. 4th 613 (1999)
Applied fee simple determinable principles to a charitable conveyance and enforced the possibility of reverter when the grantee ceased using the property for the specified purpose.
Mountain Brow Lodge No. 82 v. Toscano
257 Cal. App. 2d 22 (1967)
Addressed the validity of use restrictions in defeasible fee conveyances and distinguished lawful conditions from unlawful restraints on alienation.
Exam Tips
- Focus on the precise language of the conveyance: 'so long as' and 'while' signal determinable; 'but if' and 'provided that' signal condition subsequent.
- Remember that the estate terminates automatically -- the grantor does not need to take any action, unlike a fee simple subject to condition subsequent.
- If the conveyance uses ambiguous language, courts generally prefer a fee simple subject to condition subsequent over a fee simple determinable because forfeiture is disfavored.
Common Mistakes to Avoid
- Confusing the possibility of reverter (accompanies fee simple determinable) with the right of entry/power of termination (accompanies fee simple subject to condition subsequent).
- Failing to recognize that the automatic termination feature is what distinguishes the fee simple determinable from other defeasible fees.
Memory Aid
Determinable = Duration. Look for durational words (so long as, while, until). The estate Determines itself automatically.