Also known as: defeasible fee · defeasible fee simple · fee simple defeasible · defeasible estate · qualified fee
Written by attorneys — see sources below.
A possessory estate in land of potentially infinite duration that is subject to termination upon the occurrence of a specified event or condition. The estate ends automatically under a special limitation or executory limitation or may be cut short by exercise of a right of entry under a condition subsequent.
Deborah Dunn conveyed her farmland to her son Demetrius Douglas and his heirs so long as the land remained in agricultural use. When Demetrius later subdivided the property for residential development, the estate terminated automatically under the deed's special limitation. The land returned to Deborah's estate without any further action by her heirs.
Dominion Capital received a federal land grant for a railroad right of way across rural acreage. After the railroad ceased operations and removed the tracks, the estate ended because the land was no longer used for the granted purpose. The United States regained full ownership of the strip without needing to bring an ejectment action.
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.
View caseDaphne Doyle's will devised her estate to her granddaughter Denise Donovan and the heirs of her body on her father's side. Because Denise had no lineal descendants from that side of the family at her death, the estate terminated. Title passed to the other grandchildren named in the will rather than to Denise's general heirs.
Johnson entered into an agreement to purchase land and paid a deposit toward the purchase price. The land had been devised under the will of Royal Whiton, specifically passing to his five grandchildren pursuant to the seventh clause of that will. Subsequently, the five grandchildren executed a deed conveying the property and tendered it to Johnson as the buyer. Johnson refused to accept the deed, asserting that Sarah A. Whiton, one of the grandchildren, lacked the ability to convey a fee simple absolute in the land due to the terms of the will. As a result, Johnson commenced this action to recover the deposit paid under the purchase agreement. The seventh clause of Royal Whiton's will contained the following language regarding the disposition to his granddaughter: “After the decease of all my children, I give, devise, and bequeath to my granddaughter, Sarah A. Whiton, and her heirs on her father’s side, one third part of all my estate, both real and personal, and to my other grandchildren and their heirs respectively the remainder, to be divided in equal parts between them.” This dispute over the quality of title offered by the tendered deed was presented to the Supreme Judicial Court of Massachusetts, where Holmes, J., considered the matter and issued the court's opinion.
View caseA defeasible fee is an estate of potentially infinite duration that ends or may be cut short upon a stated event or condition. A fee simple absolute has no such terminating limitation and continues indefinitely unless voluntarily conveyed or devised.
Supporting sources
Yes. The owner may sell, mortgage, lease, or otherwise deal with the land and is subject to the same creditor claims and eminent domain liability as a fee simple absolute owner. The defeasibility merely qualifies the duration of those rights.
The estate ends immediately under a special limitation or executory limitation. No affirmative action by the holder of the future interest is required to terminate possession.
Supporting sources
Yes. Multiple owners may hold a defeasible fee as tenants in common, joint tenants, or tenants by the entirety, and each retains the same partition rights that would apply to a fee simple absolute held in the same form.
Supporting sources
…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…