Temporal Sharing of Land

• Author: Christian Turner
• Pages: 39-95

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2. Temporal Sharing of Land

2.1. Estates in Land

2.1.1. Introduction

A TAXONOMY OF PRESENT AND FUTURE INTERESTS

We have already discussed a few situations in which property is transferred from one party

to another. What used to belong to O now, after the transaction, belongs to A. We now consider

land transactions in which O desires to grant property to A but, perhaps, not forever. Maybe O

wants A to have the property for awhile before turning it over to B. Perhaps O wants A to have the

property, maybe even forever, but if certain events occur the property should go to B.

The law permits O to grant property with conditions and time limits. As we will see, and

later consider more deeply, it restricts such arrangements to a small number of types. Our immediate

task is to determine from the language of a grant which type of arrangement we have. Think of it as

learning to identify animals in a park. There may be only a few different animals, and our task is to

distinguish one from the other based on identifying characteristics. So too here. Grantors can and

do use a wide variety of language and may specify all sorts of temporal relationships, but the law

requires us to reduce this language, to map it onto, the small set of permissible relationships.

A warning: some property courses delve deeply into various accounts of the medieval history

of these arrangements. This is not such a course. Nor will we be concerned with being able to

unravel the most complex of temporal divisions or the most obscure doctrines. Our goal is only to

gain familiarity with the basics of the common law system of estates in land, being able to identify

the elements of traditional grants and to understand typical disputes that arise from such grants.

First things first: The grants that we will consider look more or less like the following

O to A [condition] then to B.

What this grant by O does is to give the property to A for awhile and then, maybe, to B. A

has the present interest. B holds what is called the future interest. Makes sense: at the time of the grant, A

has the property now, and B will take the property, if at all, later. So this grant creates a present

interest and a future interest. This is what I meant above by “types of relationship.” What present

interest and what future interests are created by the grant? That’s the initial question we will be trying to

answer when we read a grant.

Distinguishing fee simple interests from everything else

We now ask several questions, each with two answers. Answering this series of questions will

tell use precisely what present and future interests we have. Let’s take these questions one by one,

and we’ll return to them to summarize.

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Question 1: Is the present interest possibly infinite or definitely finite in duration?

That is, might A retain the property, under the grant, forever, or is A guaranteed not to retain

the property forever under the grant? Now, of course A won’t really live on the property for all

time, but the question here is whether the grant will definitely cut off A’s ownership, and thus that of

anyone who has taken from A by will or grant, involuntarily.

If the present interest is possibly infinite in duration, we call it a fee simple. If the present

interest is definitely finite, it is either a life estate or leasehold. This distinction is typically, though not

always, easy to discern in a grant. A life estate will almost always state that A’s interest is only “for

life,” and a leasehold will almost always set out a fixed time limit. By contrast, a fee simple will not

be so limited. Traditionally, a fee simple would be created by language such as

O to A and his heirs [with perhaps some conditions here].

The “and his heirs” part is meant to indicate that A’s interest should not expire and revert to

O or go to some other party on A’s death. These days, however, using such language or explicitly

stating that the grant is “in fee simple” is unnecessary. Courts will presume a fee simple in the

absence of clear language otherwise.

Distinguishing types of fee simple interests and their corresponding future interests

We will ask three questions to distinguish the three types of defeasible fees.

Question 2: Is the present interest definitely infinite or is it possibly finite?

If there is no condition in the grant that could cause A to lose the property to someone else,

then A has a fee simple absolute. There is obviously no future interest following a fee simple absolute,

since nothing in the grant could lead to someone else becoming the owner. A fee simple absolute is

created by simple language

O to A.

You could get fancy and write something like: O to A and his heirs; or O to A in fee simple

absolute. But this isn’t necessary. The law has a strong presumption in favor of interpreting language

to grant the biggest present interest possible, and there isn’t anything bigger than the fee simple

absolute. If we find a fee simple absolute we’re done.

If, on the other hand, the grant contains a condition that could cause A to lose the property

to someone else, then we say that A has a defeasible fee (which I like to think of as a fee that can be

“de-feed”). The “someone else” who could get the property has a future interest. Because A has a

fee, though, this other person’s future interest may never become possessory. At the time of the

grant, we just don’t know what’s going to happen. There are three kinds of defeasible fees, each with

a corresponding future interest. They are: (1) the fee simple subject to an executory interest (the “someone

else” has, surprise, an executory interest), (2) the fee simple determinable (the “someone else” has a possibility

of reverter), and (3) the fee simple subject to a condition subsequent (the “someone else” has a right of entry).

Those are all the types of defeasible fees and their corresponding future interests. Now let’s figure

out how to tell them apart.

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Question 3: Is the future interest in the grantor, O, or someone else?

If it’s in someone else, we’re pretty much done. Such a grant would look like

O to A, but if something happens, then to B.

Here A has a defeasible fee so long as it’s uncertain whether this something will ever

happen. But if that thing does happen, then the grant specified that B should get the property. In

other words, the future interest is in B. B is not the grantor.

In this case, we say that A has a fee simple subject to an executory interest and that B has an

executory interest. In particular, we may say that B has a shifting executory interest, because the

happening of the condition will shift ownership from one person who is not the grantor to another

person who is not the grantor.

If the future interest is in the grantor, then we have a further question to ask in order to

name the interests. Note that unless the grant mentions a third party, we assume the future interest

is in the grantor. We’ll look at some sample language below.

Question 4: Where the future interest is in the grantor, will the happening of the condition

vest ownership in the grantor automatically or only if the grantor asserts his or her right to retake

the property?

If it’s automatic, we have a fee simple determinable in A and a possibility of reverter in O. Courts

differ on whether this alternative is presumed. But a guaranteed way to specify that reversion to the

grantor should be automatic is to use what is often called “durational language.” For example,

O to A so long as the property is only used for residential purposes.

O to A until alcohol is consumed on the premises.

“So long as,” “while,” “until,” and the like are key words that all courts will interpret as an

intent to specify an automatic reversion to O and thus an intent to create a fee simple determinable /

possibility of reverter.

If the reversion is not automatic, we call the present interest a fee simple subject to a condition

subsequent and the future interest a right of entry. Some courts will insist on something approaching an

explicit reference to a “right of entry” or “right to enter and retake.” Some look for a non-durational

formulation of the condition - “but if” or “upon condition that.” And still others will presume that

reversion is not automatic unless it’s absolutely clear the grantor intended otherwise. The following

will surely create a FSSC / Right of Entry:

O to A, but if alcohol is ever served on the property, then I shall have a right of entry.

Note that this distinction does not arise with executory interests. For whatever reason, if the

future interest is in someone other then O, the property transfers automatically on the happening of

the condition.

Summary

It may take awhile to explain and to read through this initially, but distinguishing fee interests