Also known as:defeasible fee simple · defeasible fee · fee simple defeasible · qualified fee simple
Written by attorneys — see sources below.
An estate in fee simple subject to a special limitation, a condition subsequent, an executory limitation, or a combination of such restrictions. The estate possesses potentially infinite duration and passes by inheritance yet ends automatically or upon exercise of a power when the stated event occurs.
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Common Examples
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Shelter Use Limitation Divests City
The State Facilities Commission conveyed a decommissioned armory to the City of Fairview so long as the building served as a public emergency shelter, with title to vest automatically in the Regional Emergency Management Authority if that use ended. Fairview operated the shelter for years but later converted the building to general municipal offices. The estate ended upon the change in use, and title shifted to the Authority without any further action by the grantor.
Railroad Right of Way Reverts on Abandonment
The United States granted a railroad right of way across federal land to a private railroad company. The grant contained an implied condition that the land revert if the railroad ceased using the strip for its intended purpose. When the railroad abandoned the line decades later, the estate terminated and the United States regained full ownership of the strip.
Marvin M. Brandt Revocable Trust, et al. v. United States134 S. Ct. 1257 (2014)
In 1908 the Laramie, Hahn's Peak and Pacific Railroad obtained a 200-foot-wide right of way across public lands in Wyoming under the General Railroad Right-of-Way Act of 1875. The railroad completed construction of its line in 1911. The line later passed through several owners and was used primarily to transport timber and cattle.
In 1976 the United States issued a land patent conveying an 83-acre parcel in Fox Park, Wyoming, to Melvin and Lulu Brandt. The patent conveyed to the Brandts fee simple title to the land "with all the rights, privileges, immunities, and appurtenances, of whatsoever nature, thereunto belonging, unto said claimants, their successors and assigns, forever." The patent stated that the land was granted "subject to those rights for railroad purposes as have been granted to the Laramie[,] Hahn's Peak & Pacific Railway Company, its successors or assigns." The right of way crossed approximately ten acres of the patented parcel.
In 1996 the Wyoming and Colorado Railroad notified the Surface Transportation Board of its intent to abandon the right of way. After removing the tracks and ties and obtaining Board approval, the railroad completed abandonment in 2004.
In 2006 the United States filed suit seeking a judicial declaration of abandonment and an order quieting title to the right of way in the Government. The complaint named the owners of 31 parcels crossed by the abandoned right of way, including Marvin Brandt who held the Fox Park parcel through a family trust. Brandt contested the claim and filed a counterclaim asserting that the right of way was a mere easement extinguished by abandonment. The district court granted summary judgment to the United States. The Court of Appeals for the Tenth Circuit affirmed. The Supreme Court granted certiorari.
What language creates a defeasible fee simple estate rather than a fee simple absolute?
Words such as so long as, until, or upon a stated event followed by automatic passage of title to another party create a defeasible fee. The grant must expressly limit duration by a special limitation, condition subsequent, or executory limitation. Broad words of inheritance alone produce a fee simple absolute unless the instrument adds one of those restrictions.
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Does a side agreement outside the deed convert a fee simple into a defeasible fee?
No. Only language appearing in the deed itself can limit the estate granted. A separate side letter or private agreement may create contractual obligations but does not reduce the quantum of the estate conveyed by the recorded instrument.
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What happens to a defeasible fee when the triggering event occurs?
The estate ends automatically if limited by a special limitation or executory limitation. No reentry or court action is required. Title passes immediately to the holder of the next succeeding interest.
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Can a corporation hold a defeasible fee simple estate?
Yes. The estate may be held by any person or entity capable of holding a fee simple absolute. The defeasibility restriction operates the same way regardless of the holder's corporate status.
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134 S. Ct. 1257 (2014)
…for which it was granted." Ibid. In essence, the Court held, "the grant was of a limited fee," ibid. —commonly known as a defeasible fee, see Restatement (First) of Property § 16 (1936)—rather than fee simple. Thus, if the railroad were to abandon its use of the right of way, the property would revert to the United…
Real PropertyOwnership of real property · Present estatesNEXTGENFoundational