Fee Simple Subject to Condition Subsequent

A fee simple subject to condition subsequent is a defeasible fee estate created when the grantor uses conditional language (such as 'but if,' 'provided that,' 'on condition that,' or 'however') followed by a provision reserving the right to reenter and retake the property if the condition is violated. Unlike a fee simple determinable, which terminates automatically, this estate continues even after the condition is breached until the grantor affirmatively exercises the right of entry (also called the power of termination).

The future interest retained by the grantor is the right of entry or power of termination. This interest is optional and discretionary: the grantor may choose whether to enforce the condition or waive it. At common law, the right of entry was neither alienable nor devisable inter vivos, though it was inheritable. Modern statutes in many jurisdictions have altered these rules to permit transfer.

Courts generally favor construing ambiguous defeasible fee language as creating a fee simple subject to condition subsequent rather than a fee simple determinable. This preference arises because the condition subsequent requires affirmative action by the grantor to terminate the estate, whereas the determinable terminates automatically, and courts disfavor forfeitures. The distinction carries practical significance: in the period between breach and the grantor's exercise of the right of entry, the grantee retains title and possession, and the statute of limitations on the grantor's action may begin to run.