Property Class Notes 2/19/04


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 United States was invalid.  If that had been true, the United States would have entered under color of title and might have obtained adverse possession over the parcel.  In this case, the owner granted the property to the intended grantee.  The grantor could argue that the possession was not hostile.


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 United States stopped using the land as a lifesaving station.  Compare that to the next case.


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 Ohio until the late 50’s or early 60’s.  That’s a fairly recent development!  The only way it could be transferred prior to that was that it could be released.  In other words, the grantor could release it to the grantee, who would then have a fee simple absolute.


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.


Review problems


1.          “Oglethorpe to Alice and her heirs”: Oglethorpe grants Alice a fee simple absolute.  Oglethorpe has nothing, and Alice’s heirs have nothing (they don’t exist yet).  “And her heirs” are words of limitation, not words of purchase.

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.


Back to Class Notes