Also known as: defeasible fee simple · defeasible fee simples · fee simple defeasible · defeasible fee
Written by attorneys — see sources below.
A fee simple estate subject to termination upon the occurrence of a specified event or condition through a special limitation, condition subsequent, or executory limitation.
Dolores Diaz conveyed a decommissioned warehouse to Denise Donovan so long as the building served as a public emergency shelter, with title to pass automatically to a regional authority if that use ended. Donovan operated the shelter for years but later converted the space to commercial storage. The estate terminated automatically upon the change in use, and title vested in the authority without any need for reentry or court action.
The United States granted a strip of land to a railroad company for track purposes, with an implied condition that the land would revert if rail use ceased. Decades later the tracks were abandoned and the Marvin M. Brandt Revocable Trust claimed ownership of the underlying fee. The estate held by the railroad ended upon abandonment, confirming that the original grant created a defeasible interest rather than an absolute fee.
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 caseA defeasible fee simple is an estate in fee simple subject to a special limitation, condition subsequent, or executory limitation that can cause the estate to end automatically or upon election. A fee simple absolute lacks any such restriction and continues indefinitely without possibility of termination by those means.
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Words such as so long as, until, on condition that, or if the use changes followed by a shift of title to another party create a defeasible fee simple. A simple grant to a named grantee and heirs with no limiting language creates a fee simple absolute.
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Yes. On the intestate death of the owner the estate passes under the same rules of intestate succession that apply to a fee simple absolute, except that all interests remain subject to the original defeasibility.
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The estate immediately ceases without any action by the holder of the succeeding interest. Title shifts automatically to the person or entity designated in the limitation.
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…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…