Property
Class Notes
More on Ocean City
There
was an adverse possession claim in this case.
Why did it fail? Adverse
possession started to run in 1967, so there couldn’t possibly be adverse
possession. There was a claim that the
original deed to the
But
the key is that if we have a fee simple determinable, which is what the court
finds that we have here, adverse possession starts to run as soon as the
determining condition occurs. In this
case, that’s when the
Higbee Corporation v. Kennedy,
Executor
Higbee
is kind of confusing. The deed is quite
old. There are two conditions: one is
that the grantee gets to use the property as a road for as long as he wishes
to, but on the other hand, the grantee agrees to construct and maintain a fence
on the property. The two conditions are
phrased somewhat differently. The
“provided” language attached to the “road” condition sounds like a fee simple
subject to a condition subsequent.
However, the “forfeiture” language in regard to the “fence” condition
sounds like a fee simple determinable.
In the end, it says that the land is to “revert to the party of the
first part”. That makes it look like a
fee simple determinable.
But
the court concludes that this is a fee simple subject to a condition subsequent
based on a preference. The court kind of
throws up its hands and gives up. What’s
the difference in terms of the statute of limitations? If it’s a fee simple determinable, the
reversion to the grantor is automatic.
If it’s a fee simple subject to a condition subsequent, the grantor must
exercise some option to reclaim the property.
So
what difference does that make to the statute of limitations? With the fee simple determinable, the statute
of limitations starts to run when the condition has been breached. But what about with the fee simple subject to
a condition subsequent? Is the
possession wrongful before the grantor or his heirs attempt to take possession? No way!
The clock doesn’t start ticking until the grantor takes action to try to
get in and the grantee refuses entry.
Footnote
5 says that at common law these interests were not transferable. In fact, the possibility of reverter did not
become alienable in
When
we do the Rule Against Perpetuities, we’ll see why this is a big deal.
What
was the intent of the grantor in this case?
We haven’t the vaguest idea! Why
would you grant something to someone for “as long as they want to use it”? Why not just grant it to them? And what’s the deal with the fences? This is nutty, crazy!!! It’s futile to try to come back 100 years
later to ascribe some intention to the grantor.
For
modern purposes, the nature of the
condition will become more important to us.
More on the future interests
of the defeasible fees
The
possibility of reverter, right of entry, and reversion are all vested
interests. That means that they are all
essential parts of the fee simple absolute.
They are not contingent. They are retained
parts of the fee simple absolute, which was vested. Even if the owner transfers away a big chunk
of his fee simple absolute, the part that he keeps is still vested. Therefore, the rules we’ll look at next week
(like the Rule Against Perpetuities) don’t work to invalidate these interests. The point of those rules is to make land
marketable. We want to be able to put
the interests back together again so we can get the land into commerce.
Originally,
the possibility of reverter and right of entry were unlikely to be alienable or
devisable. In modern times, they are
generally alienable, devisable and inheritable.
1.
“Oglethorpe to Alice and her heirs”: Oglethorpe grants
2.
“Oglethorpe to Alexia and the heirs of her body”: Oglethorpe grants
Alexia a fee tail (at common law).
Oglethorpe retains a reversion in fee simple absolute. In a minority of states, the language that
creates a fee tail is construed to create a fee simple absolute.
3.
“Oglethorpe to Able and his heirs so long as the property is used for
residential purposes”: Oglethorpe grants Able a fee simple determinable. Oglethorpe retains the possibility of
reverter. The fact that there is no
language expressing a retained right of entry will tend to make a fee simple
determinable more likely on average. The
thing that distinguishes the fee simple subject to a condition subsequent from
the fee simple determinable is that the fee simple determinable ends automatically and the fee simple subject
to a condition subsequent doesn’t. The fee simple determinable is sort of like a
lease.
4.
“Oglethorpe to Anne and her heirs, but if the property is not used for
residential purposes, to Beardsley and his heirs”: Oglethorpe grants Anne a fee simple subject
to an executory limitation. Oglethorpe
grants Beardsley an executory interest in fee simple absolute.
5.
“Oglethorpe to Albert to life”: Oglethorpe grants Albert a life
estate. Oglethorpe retains a reversion
in fee simple absolute.
6.
“Oglethorpe to Annalee for life, then to Boone and his heirs”:
Oglethorpe grants Annalee a life estate.
Boone gets a vested remainder in fee simple absolute. Oglethorpe has nothing because he’s given
away a vested estate and remainder in the same amount of that which he had.
7.
“Oglethorpe to Axl Rose for life, then to Brandy and her heirs if
Brandy survives Axl Rose”: Oglethorpe grants Axl Rose a life estate. Brandy gets a contingent remainder in fee
simple absolute. Oglethorpe retains a
reversion in fee simple absolute. “If
Brandy survives Axl Rose” is a condition precedent.
An
executory interest is contingent, not
vested. An executory interest is always given away, never retained. We’ll learn
more about them when we talk about the Statute of Uses.
Two
classes of future interests can be created in transferees: (1) remainders and
(2) executory interests. Any time you
see a vested fee, the interest that
follows it must be an executory interest.
A remainder cannot divest the
preceding interest.