PROPERTY HELP - what is this? Future estate question. Forum

[bchirco]

"Fred left the farm to bob on his deathbed so long as bob promised to farm it forever."

My friend and I aren't sure if this is a fee simple determinable vs a life estate since the condition is connected to his life.

Any help?

[Mal Reynolds]

First you should probably ask whether the conditions of a gift causa mortis are satisfied. You might be worried about fraud since this occurs on his deathbed. But since you can't transfer land through manual delivery, it might be ok. Even better if Bob was given a deed or something else.

This actually sounds like he was given a FSA. There was a condition precedent attached to the land, but Bob fulfilled the condition pretty quickly. He was given the land so long as he "promised" to farm it forever. As long as he promises he will do it in front of Fred, it sounds like the land is Bob's forever. He could even stop farming the land as it should be fine. The so long as language sounds like fee simple determinable, but it seems like a red herring in this case since a promise is just a one time thing, and not some ongoing obligation that Bob will have to be wary of for the time he owns the land.

I don't know why you think forever means life estate. That just adds more credence to the FSA theory since that means the land could stay in his family and heirs.

A less strict judge might not give a lot of weight to the word promise and read it as a fee simple determinable, subject to divest whenever Bob stops farming the land.

[RedGiant]

"Fred left the farm to bob on his deathbed so long as bob promised to farm it forever."

My friend and I aren't sure if this is a fee simple determinable vs a life estate since the condition is connected to his life.

Any help?

The reason this is confusing is because it's not clear. You could argue it either way--does the grant happen now (before he dies):
"To Bob so long as Bob promises to farm it forever" or does it come into existence once Fred dies. That's what matters. Not clear from the wording here. Chalk it up to an unclear question and move on.

[History_Buff]

First you should probably ask whether the conditions of a gift causa mortis are satisfied. You might be worried about fraud since this occurs on his deathbed. But since you can't transfer land through manual delivery, it might be ok. Even better if Bob was given a deed or something else.

This actually sounds like he was given a FSA. There was a condition precedent attached to the land, but Bob fulfilled the condition pretty quickly. He was given the land so long as he "promised" to farm it forever. As long as he promises he will do it in front of Fred, it sounds like the land is Bob's forever. He could even stop farming the land as it should be fine. The so long as language sounds like fee simple determinable, but it seems like a red herring in this case since a promise is just a one time thing, and not some ongoing obligation that Bob will have to be wary of for the time he owns the land.

I don't know why you think forever means life estate. That just adds more credence to the FSA theory since that means the land could stay in his family and heirs.

A less strict judge might not give a lot of weight to the word promise and read it as a fee simple determinable, subject to divest whenever Bob stops farming the land.

Really good answer, and as you said in jurisdictions that value grantor intent it would be FSD, but the stricter view jurisdictions would be FSA. No way in hell it's a life estate. Forever is one of those signpost words that pretty much always indicates a fee of some sort, usually FSA.

As far as FSD goes you want to look for phrases and words like As long as, so long as, during, while, and until.

Oh and one more thing, if it is determined to be FSD then his heirs have to keep farming it or O gets reverter. (It's automatically O's if it is ever unfarmed, as opposed to Fee Subject to Condition Subsequent where there has to a more proactive role by O and O's heirs. ) Although if O just doesn't check on it for the statutory period then the grantee would just adversely possess since grantee would have color of title (easier to adversely possess). Been a while since I took property, this is just what I remember. Feel free to correct me if I'm wrong.

[HabeasTortoise]

I agree with most of what is here in regards to the ambiguity and type of estate created, however I would like to add two things. First, courts are always hesitant about restrictions on land, and try to give the new interest holder the greatest estate possible (NY for example abolished the FSD). As such, it is doubtful this transfer created a life estate but we are still missing crucial details about the intention of the grantor. You could also argue that this created something along the lines of a fee tail (since it is a stark impossibility one could farm forever and the condition would have to run to the grantees heirs), and thus would create a fee simple absolute. A good public policy argument would also run along the lines that forcing someone to take the affirmative action to farm is tantamount to indentured servitude (though he is still receiving consideration), and void. I also didn't see any mention of the rule of perpetuities. Because this condition would never technically vest, it may run into a problem there.