Real Property (Fee Simple Determinable)

Smith, a devout member of the Saints Church, conveys his property, Blackacre, “to Romney so long as he remains a member of the Saints Church and if not then Smith may re-enter and reclaim Blackacre.” After several years, Romney, and several other members of the Saints Church, become disenchanted with the Saints Church’s teachings. Romney and the disenchanted members decided to form a new church. The new church, The Reformed Saints Church, severed all ties with the original Saints Church. Although the religious principles of the original Saints Church and the Reformed Saints Church are similar, the Reformed Saints Church rejects some of the beliefs of the original Saints Church. Smith remains a member of the original Saints Church.

It has been fifteen years since Romney began attending the Reformed Saints Church. During that time he has not had any communication with Smith. Romney has offered to sell Blackacre to your client, Clinton. Clinton is very interested in purchasing Blackacre from Romney but wants to know if there are any problems with receiving a good title from Romney.

What advice would you give Clinton? Fully explain your answer.

*****

In order to attain Clinton’s wish to purchase Blackacre from Romney, we must decide an issue, whether or not Romney has a title to Blackacre as a fee simple.

When the grantor retains the power to terminate the estate of the grantee upon the happening of a special event, “a fee simple determinable” is created.

In the event that the language is ambiguous, such as “so long as”, courts have a constructional preference for a fee simple subject to condition subsequent. In that case, the grantor has to take affirmative action to reclaim the estate.

Upon happening of a special event stated in conveyance, the title of the estate of the grantee continues until the grantor exercises her power of termination by making re-entry.

An occupant