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So I'm studying property, and I feel pretty good about it. I'm using the Gilbert's supplement, which has been wonderful up until now.

So I understand present and future interests, and RAP, until this point. For RAP, it matters whether the executory interest is subject to a fee simple determinable or a fee simple subject to an executory limitation. That is all well and good, but I was under the impression that a fee simple determinable was a fee simple determinable because it would go back to the grantor, and not to a third party (which would make it a fee simple subject an executory limitation).

Basically, I thought the main difference between a fee simple determinable and a fee simple subject to an executory interest was the future interest associated with them. Is this the case?

I thought I understood it, but now I get to RAP and the supplement is making a distinction between exectuory interests that follow fee simple determinables (void EIs turn it into a fee simple determinable to the grantor) and fee simple subject to executory limitations (void EIs turn it into a fee simple absolute).

EDIT: If anyone reads this and gets confused, I am convinced the supplement is just worded confusingly. And it doesnt mean that an executory interest can follow a fee simple determinable.

I'm not sure if this helps you at all but....

the casebook we use (Rabin) does NOT distinguish between FSS to condition subsequent and FSS to executory interest. It has them both under FSS to condition subsequent (which is a type of defeasible fee).

HOWEVER our prof told us specifically, "I know the book doesn't distinguish it, but I want you guys to. They're basically the same thing, but I still want you to distinguish them"

I think you should definitely distinguish the differences between FS determinable and FSS to condition subsequent. (FSD has a possibility of reverter in the grantor, while FSS to cond. subs. has a right of entry or power of termination in the grantor.)

Whether you need to make the further distinction between FSS to cond subsequent and FSS to executory interest might be up to your prof.

ColtsFan88 wrote:So I'm studying property, and I feel pretty good about it. I'm using the Gilbert's supplement, which has been wonderful up until now.

So I understand present and future interests, and RAP, until this point. For RAP, it matters whether the executory interest is subject to a fee simple determinable or a fee simple subject to an executory limitation. That is all well and good, but I was under the impression that a fee simple determinable was a fee simple determinable because it would go back to the grantor, and not to a third party (which would make it a fee simple subject an executory limitation).

Basically, I thought the main difference between a fee simple determinable and a fee simple subject to an executory interest was the future interest associated with them. Is this the case?

I thought I understood it, but now I get to RAP and the supplement is making a distinction between exectuory interests that follow fee simple determinables (void EIs turn it into a fee simple determinable to the grantor) and fee simple subject to executory limitations (void EIs turn it into a fee simple absolute).

EDIT: If anyone reads this and gets confused, I am convinced the supplement is just worded confusingly. And it doesnt mean that an executory interest can follow a fee simple determinable.

You are correct in that the difference between FSD and FSSEI is who ultimately has the future interest- the grantor or a 3rd party. Because the RAP only voids the CRM, EI or VRM Subject to Open that violates it, it could give rise to a variety of different combinations. That is gonna be on a case by case basis.

Seems to me you are spot on and that supplement is whacky.

- Fee Simple Determinables revert to the grantor; They are not subject to RAP.
- Fee Simpe Subject to Executory Limitations shift or spring to a third party; They are subject to RAP.

Anything more is beyond the scope of this class.

Of course, that is exactly what you said; Ignore the supplement's tomfoolery.