Also known as: shifting interest · shifted interests · shifting executory interests · executory interests
Written by attorneys · grounded in primary & secondary sources — see below
A future interest in land that becomes possessory by cutting short a preceding estate held by another person. At common law such interests were prohibited because livery of seisin had to take effect immediately. After the Statute of Uses they were recognized as executory interests.
Sydney Santos holds a fee simple conditional under her uncle's deed. Before any children are born she conveys the parcel outright to Steven Silva who immediately mortgages it to Sterling Manufacturing. The mortgage and any later subleases remain subordinate to the executory interest that will become possessory if Sydney dies without surviving issue.
Sylvia Santos conveys mineral rights to Southland Foods in fee simple determinable. The deed reserves a shifting future interest in favor of Simone Sanders that will divest Southland Foods if the minerals are ever extracted for non-food uses. When extraction begins the interest in Simone Sanders becomes possessory and cuts short the prior estate.
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A grantor could not create an estate in a stranger that would cut short a prior freehold estate. The prohibition arose because livery of seisin had to take effect at once and could not be held for a future grantee.
The statute executed uses and thereby validated shifting and springing executory interests that had been prohibited at common law. After 1536 a grantor could create future interests that divested a prior estate upon a specified event.
Shifting interests are the functional equivalent of executory interests that divest a preceding estate. Modern doctrine recognizes them as valid executory interests rather than prohibited shifting uses.
Yes. Before the birth of issue the holder may convey any interest that a fee simple absolute owner could create, but every such interest remains subordinate to any valid executory interest that follows the conditional fee.