Chapter 8 - § 8.3 • FREEHOLD ESTATES — ESTATES IN FEE
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§ 8.3.1—Fee Simple
The terms "fee," "fee simple," and "fee simple absolute" are interchangeable.74 A "fee" is an absolute estate in perpetuity, and the largest possible estate a person can have, being, in fact, allodial in its nature.75 All lands in Colorado are held allodially.76
At common law, an estate in fee simple was one granted or devised to a natural person and his heirs.77 The words "and his heirs" were words of limitation and not of purchase.78
In Colorado, C.R.S. § 38-30-107 provides:
Every estate in land which is granted, conveyed, or devised to one, although other words necessary to transfer an estate of inheritance are not added, shall be deemed a fee simple estate of inheritance if a lesser estate is not limited by express words or does not appear to be granted, devised, or conveyed by operation of law.79
Under this statute, words of inheritance are not necessary to convey a fee simple estate.80 Nor are words of assignment (i.e., "and his assigns").81 But under Colorado law prior to 1868, the absence of the words of limitation "and heirs and assigns" in a document conveying an interest in real property meant that the conveyance passed only a life estate.82 The statute applies to reservations as well as grants.83 The use of words of inheritance, even though not required by statute, still gives rise to a fee simple estate. The meaning or effect of words of inheritance is not changed by the statute; only the necessity for their use has been removed.84 The words "and his heirs" are to be regarded merely as words of limitation and not words of substitution when employed in a testamentary gift to a designated individual. Hence, they must be regarded as not preventing a lapse of the gift upon the death of the donee in the testator's lifetime, unless the intention to make substitution can be gathered from other language of the will.85 The statute creates a rebuttable presumption only, and if the evidence shows that no fee simple title was intended to be granted, the statutory presumption is overcome.86
An estate in fee simple may be held in undivided interests by two or more persons.87 Undivided interests in parcels of land owned in fee simple are themselves fee simple estates.88 The dictum in In re Sullivan's Estate,89 that "the very fact of holding the title jointly or in common with someone else prevents a holding in fee," is not supported by the authorities cited. A fee simple estate may exist in severed mineral rights.90
§ 8.3.2—Fee Tail
Prior to May 25, 1983, an attempt to create a fee tail in a person resulted in the person becoming seised of a life estate, and the remainder "shall pass in fee simple absolute to the person to whom the estate would first pass on the death of such first grantee, devisee, or donee in tail, according to the course of the common law, by virtue of such devise or conveyance."91
On and after May 25, 1983, an attempt to create a fee tail in a person results in the person becoming seised of a fee simple.92
§ 8.3.3—Fee Simple Conditional
At common law, before the enactment of the Statute De Donis93 in 1285, a grant or devise to A and the heirs of his body created a fee simple conditional. (This estate should not be confused with the estate referred to below as a conditional fee. See § 8.3.7.) Upon the birth of issue to A, however, A could convey the estate in fee simple absolute. If he did not do so, the estate passed to the heirs of his body, who in turn held the estate in fee simple conditional. By virtue of the Statute De Donis, all limitations that previously would have created estates in fee simple conditional thereafter created estates in fee tail. The estate in fee simple conditional has never existed in Colorado.94
§ 8.3.4—Defeasible Fees
In General
Fee simple estates may be made defeasible in two ways. Either a limitation may be placed upon the grant, or the grant may be made subject to a condition subsequent. Such limitations or conditions are not void95 unless they constitute an unconstitutional discrimination,96 or are to the utter subversion of the estate, such as prohibiting entirely the alienation or use of the estate.97 A limitation may be a special limitation or an executory limitation.98 If a special limitation is placed upon the grant, the grantee takes a determinable fee and the grantor retains a possibility of reverter. If an executory limitation is placed on the grant, the grantee takes a determinable fee and a third person (i.e., not the grantor or those who can take from him or her only by descent) takes an executory interest.99 If the grant is made subject to a condition subsequent, the grantee takes a conditional fee and the grantor retains a right of entry, sometimes referred to as a power of termination.
Repetition of Prohibition or Restriction
On or after January 1, 1966: If an inter vivos instrument taking effect on or after January 1, 1966, or a will of a testator dying on or after that date, or an appointment made on or after that date, including an appointment by inter vivos instrument or will under a power created before that date, purports to convey or devise an interest in real property on special limitation or subject to a condition subsequent that prohibits or restricts a use of such interest, which has been purportedly or in fact previously prohibited or restricted by an earlier conveyance or devise or appointment on special limitation or subject to a condition subsequent, then it is conclusively presumed that no new special limitation or possibility of reverter or condition subsequent or right of entry is thereby created with respect to such use. This is true whether or not any such earlier special limitation or condition subsequent is still enforceable, unless the grantor in such inter vivos instrument or the testator in such will or the person who exercises such power of appointment expressly recites in the inter vivos instrument, will, or appointment an intention to create a new special limitation and possibility of reverter or a new condition subsequent and right of entry, and that
he or she intends the same to be in addition to any other special limitation and possibility of reverter or new condition subsequent and right of entry that may exist. In the absence of such an express recital, which may appear in a codicil to a will making such devise or appointment, the language of special condition and possibility of reverter or of condition subsequent and right of entry is conclusively deemed to be only a recognition of any prior special limitation and possibility of reverter and condition subsequent and right of entry that may exist.100 The presumption does not apply in certain circumstances where a notice of claim has been filed.101
Prior to January 1, 1966: If an inter vivos instrument taking effect prior to January 1, 1966, or a will of a testator dying prior to that date, or an appointment made prior to that date, including an appointment by inter vivos instrument or will, purports to convey or devise an interest in real property on special limitation or subject to a condition subsequent that prohibits or restricts a use of such interest, which has been purportedly or in fact previously prohibited or restricted by an earlier conveyance or devise or appointment on special limitation or subject to a condition subsequent, then it is conclusively presumed that no new special limitation or possibility of reverter or condition subsequent or right of entry is created with respect to such use. However, they may be created if a notice of claim to the contrary was filed for record within one year after January 1, 1966;102 but if on January 1, 1966, a person is the owner of and in possession of the interest by reason of the occurrence prior to that date of the use prohibited or restricted by special limitation or condition subsequent, that person was not required to file any notice in order to preserve the validity at the time of such occurrence of the special limitation and possibility of reverter or of the condition subsequent and right of entry upon which his or her ownership and possession depended.103 If the notice of claim to the contrary is not filed for record (except by a person in possession on January 1, 1966, as mentioned above), the language of special limitation and possibility of reverter or of condition subsequent and right of entry is conclusively deemed to be only a recognition of any prior special limitation and possibility of reverter and condition subsequent and right of entry that was then in existence.104
Applicability and limitations: An inter vivos instrument, will, or appointment is considered as purporting to prohibit or restrict a use that has been previously prohibited or restricted notwithstanding that any previous inter vivos instrument, will, or appointment included more real property or less real property, or more or fewer prohibitions or restrictions.105 The statutory provisions regarding repetition of prohibition or restriction are not applicable to a special limitation or possibility of reverter or condition subsequent or right of entry contained in a conveyance, devise, or appointment for a public, charitable, religious, or educational purpose,106 or to any special limitation or possibility of reverter or condition subsequent or right of entry with respect to a lease; mortgage, deed of trust, or other lien to secure a debt; communication, transmission, or transportation line, or pipeline, railroad, or public road; easement or right of way; reservation of or lease of or conveyance, devise, or appointment of an interest in oil, gas, or other minerals, or right to take oil, gas or other minerals; or any interest in water or water rights.107
§ 8.3.5—Barriers to Understanding the Colorado Law of Defeasible Estates
In State of Colorado v. Franc,108 the Colorado Supreme Court was so bold as to say:
There has been some confusion in attempts of courts to...
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