---
title: "Fee Simple Subject to Condition Subsequent"
type: Legal Rule
source: https://casebriefly.com/legal-rules/fee-simple-subject-to-condition-subsequent
---

# Fee Simple Subject to Condition Subsequent

A fee simple estate that may be terminated at the grantor's election upon the occurrence of a specified condition, requiring the grantor to affirmatively exercise a right of entry to reclaim the property.

## Definition

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.

## Elements

- Conditional language is used: 'but if,' 'provided that,' 'on condition that,' or 'however'
- Express reservation of a right of entry or power of termination by the grantor
- Estate does not terminate automatically upon breach of the condition
- Grantor must affirmatively exercise the right of entry to reclaim the property
- Grantor may elect to waive the breach and allow the estate to continue

## Key Case

Mahrenholz v. County Board of School Trustees, 93 Ill. App. 3d 366 (1981)

## Landmark Cases

| Name | Citation | Significance |
| --- | --- | --- |
| Mahrenholz v. County Board of School Trustees | 93 Ill. App. 3d 366 (1981) | Provided a thorough analysis distinguishing fee simple determinable from fee simple subject to condition subsequent based on the language of the grant. |
| Mountain Brow Lodge No. 82 v. Toscano | 257 Cal. App. 2d 22 (1967) | Upheld a condition restricting use of property to lodge purposes, distinguishing valid use restrictions from invalid restraints on alienation. |
| Oldfield v. Stoeco Homes, Inc. | 26 N.J. 246 (1958) | Illustrated judicial reluctance to enforce conditions subsequent that have become obsolete or where enforcement would cause disproportionate hardship. |

## Exam Tips

- The critical difference from fee simple determinable is that condition subsequent requires the grantor to ACT -- the estate does not end automatically.
- If the conveyance has conditional language but no express reservation of a right of entry, courts may still imply one, but some jurisdictions require express reservation.
- Watch for statute of limitations issues: the grantor's right of entry may be barred if not exercised within the statutory period after breach.

## Common Mistakes

- Assuming the estate terminates automatically upon breach -- it does not. The grantee retains title until the grantor exercises the right of entry.
- Confusing the right of entry with a possibility of reverter; they are distinct future interests that accompany different defeasible fees.

## Mnemonic Or Memory Aid

Condition Subsequent = Choice by grantor. The grantor must Choose to act ('but if... grantor may reenter').

## Related Rules

- fee-simple-determinable
- fee-simple-absolute
- fee-simple-subject-to-executory-limitation

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Source: [Fee Simple Subject to Condition Subsequent — CaseBriefly](https://casebriefly.com/legal-rules/fee-simple-subject-to-condition-subsequent)