Fee Simple Determinable vs. Fee Simple Subject to Condition Subsequent
A detailed comparison of these two property rules, including key differences, exam strategies, and guidance on when to apply each.
Overview
Fee simple determinable and fee simple subject to condition subsequent are both defeasible fees, meaning they are fee simple estates that can be cut short upon the occurrence of a specified event. The critical distinction lies in whether the estate terminates automatically or requires the grantor to take affirmative action to reclaim the property.
A fee simple determinable is created with durational language such as "so long as," "while," "during," or "until." When the specified event occurs, the estate automatically reverts to the grantor without any action required. The future interest retained by the grantor is called a possibility of reverter. For example, "to A so long as the property is used for school purposes" creates a fee simple determinable in A with a possibility of reverter in the grantor. If the property ceases to be used for school purposes, title automatically reverts.
A fee simple subject to condition subsequent is created with conditional language such as "on condition that," "provided that," or "but if." Critically, the grant typically includes an express right of re-entry or power of termination. Unlike the fee simple determinable, the estate does not terminate automatically when the condition is broken. Instead, the grantor must exercise the right of re-entry to reclaim the property. Until the grantor acts, the grantee retains title. The future interest retained by the grantor is called a right of entry (or power of termination).
Key Differences
| Aspect | Fee Simple Determinable | Fee Simple Subject to Condition Subsequent |
|---|---|---|
| Language of creation | Durational: 'so long as,' 'while,' 'during,' 'until' | Conditional: 'on condition that,' 'provided that,' 'but if' |
| Termination mechanism | Automatic forfeiture upon occurrence of the event | Requires grantor to exercise right of re-entry |
| Future interest in grantor | Possibility of reverter | Right of entry (power of termination) |
| Grantee's title after breach | Title immediately reverts to grantor | Grantee retains title until grantor acts |
| Statute of limitations | Runs from the moment the condition is violated | Runs from when the grantor elects to re-enter |
| Courts' preference | Disfavored because automatic forfeiture is harsh | Slightly preferred because it gives the grantee more protection |
Exam Tips
Property exam questions love to test whether students can identify the type of defeasible fee from the language of the grant. The key is the specific words used: durational language ("so long as") signals a fee simple determinable, while conditional language ("provided that," "but if") signals a fee simple subject to condition subsequent. When the language is ambiguous, courts tend to construe against forfeiture, favoring the fee simple subject to condition subsequent because it requires the grantor to act. Always identify the corresponding future interest (possibility of reverter vs. right of entry) and discuss whether the condition has been violated, whether forfeiture is automatic or requires action, and whether the statute of limitations has run.
When to Apply Which
Apply fee simple determinable when the grant uses durational language and the question turns on whether title automatically reverted upon the condition's violation. Apply fee simple subject to condition subsequent when the grant uses conditional language and includes a re-entry clause. The practical distinction matters because under a fee simple determinable the grantee loses title instantly, while under a fee simple subject to condition subsequent, the grantee remains the owner until the grantor takes action. This affects statute of limitations, adverse possession, and the rights of third-party purchasers who may have acquired interests from the grantee.