Fee Simple Determinable vs. Condition Subsequent (CA)

Diagram summarising fee simple determinable under California and federal law — Visual summary of fee simple determinable

What Is a Fee Simple Subject to a Condition?

Not every California fee is absolute. Some estates come with strings attached — and those strings determine whether the land snaps back to the original owner automatically, or only after someone takes action to reclaim it.

A defeasible fee, in one sentence: it is a fee simple that can terminate before its natural infinite duration if a specified condition occurs, ending either automatically (fee simple determinable) or through the grantor’s affirmative re-entry (fee simple subject to condition subsequent).

California recognizes three defeasible fees: the fee simple determinable, the fee simple subject to condition subsequent, and the fee simple subject to executory limitation. Getting the labels right is only step one — the real skill tested on the Bar Exam is reading the deed’s exact language and matching it to the correct category.

Fee Simple Determinable: Automatic Reversion

A fee simple determinable is created with durational language: “so long as,” “while,” “during,” or “until.” A city that conveys land “to the school district so long as the land is used for a public school” has created a fee simple determinable, retaining a possibility of reverter.

The defining feature is automatic termination. The instant the school district stops using the land for school purposes, title reverts to the city by operation of law — no lawsuit, no notice, no re-entry required. The former owner (or, more likely, its successors decades later) may simply discover that title has already passed back.

Fee Simple Subject to Condition Subsequent: The Grantor Must Act

A fee simple subject to condition subsequent uses conditional language: “provided that,” “on condition that,” “but if.” Here the grantor retains a right of entry (also called a power of termination), which must be affirmatively exercised.

If O conveys land “to A, provided that the land is never used for commercial purposes, and if it is, O may re-enter and retake the premises,” A’s estate does not end automatically when A opens a storefront. O must take an affirmative step — commonly, filing an action or serving notice — to terminate A’s estate. In California, the power of termination is itself governed by statute (Cal. Civil Code §§ 885.010–885.070), which limits how long a dormant right of entry can be enforced against a current owner, addressing the “long tail” problem these old conditions create.

Fee Simple Subject to Executory Limitation

The third variant sends the property to a third party, not back to the grantor, when the condition is triggered. “To A, but if the land is ever used for anything other than a residence, then to B” creates a fee simple subject to executory limitation in A, with B holding a shifting executory interest. This estate is where the Rule Against Perpetuities most often becomes a problem, because B’s interest could theoretically vest far in the future.

Comparing the Three Defeasible Fees

Type	Triggering Language	Future Interest Retained	How Estate Ends
Fee simple determinable	“so long as,” “while,” “during,” “until”	Possibility of reverter (in grantor)	Automatically
Fee simple subject to condition subsequent	“provided that,” “but if,” “on condition that”	Right of entry / power of termination (in grantor)	Grantor must affirmatively re-enter
Fee simple subject to executory limitation	Same conditional language, naming a third party	Executory interest (in a third party)	Automatically shifts to the third party

Why This Distinction Matters in Practice

The determinable-versus-subsequent line is not just a vocabulary test — it changes real outcomes for lenders, title companies, and successors in interest.

Financing and title insurance. Lenders are wary of property burdened by a possibility of reverter or right of entry, because their collateral could vanish if the condition is breached. Title insurers frequently exclude coverage for losses tied to old defeasible conditions, or require the grantor’s successors to release the reversionary interest before insuring clean title.

Recording and notice. A defeasible condition buried in a century-old recorded deed may still bind a later buyer, but only if it falls within the buyer’s chain of title. A California bona fide purchaser who inspects the property and observes an obvious violation of a recorded condition may be charged with inquiry notice even if they never read the old deed. That said, conditions recorded far outside the normal chain-of-title search can sometimes be cut off — this is exactly the kind of fact pattern where the recording acts and marketable-title concepts intersect with defeasible fees.

Waiver. A common trap: students assume a grantor waives a right of entry by not immediately re-entering after a breach. That’s wrong. A right of entry is not waived by mere delay; the grantor’s silence is not consent, though a long-dormant power of termination can eventually be cut off by statute or by the Rule Against Perpetuities’ modern reforms.

Worked Example

O deeds a parcel “to the Oakview Community Church, so long as the land is used for religious worship.” Thirty years later, the church closes and sells the property to a developer, who begins building condominiums.

Question: Who owns the land now?

Analysis: The durational language — “so long as” — signals a fee simple determinable. The moment the land stopped being used for religious worship, title reverted automatically to O (or O’s heirs, if O has died) by operation of the possibility of reverter. The developer’s purchase from the church is irrelevant to title, because the church’s estate had already terminated the instant the condition failed; the church had nothing left to sell. O’s successors can bring an action to quiet title without needing to prove anything beyond the change in use.

Common Mistakes to Avoid

Confusing “so long as” (automatic termination) with “provided that” (requires re-entry) — examiners deliberately use close, similar-sounding language to test this.
Assuming the grantor waives the right of entry through delay; it does not waive automatically.
Forgetting that the grantor’s heirs inherit a possibility of reverter or right of entry and can enforce it generations later.
Missing that defeasible fees make property difficult to mortgage or insure, a very real practical consequence beyond the exam.

FAQ

What words create a fee simple determinable versus a condition subsequent?

“So long as,” “while,” “during,” and “until” create a determinable fee with automatic reversion. “Provided that,” “but if,” and “on condition that” create a condition subsequent requiring the grantor to re-enter.

Does a fee simple determinable end automatically even without a lawsuit?

Yes. Title reverts to the grantor (or successors) by operation of law the moment the condition is violated — no court action is required, though a quiet title action is often used afterward to clear the record.

Can a right of entry be enforced by a grantor’s descendants decades later?

Generally yes, subject to statutory limits. California Civil Code sections on powers of termination (§§ 885.010 et seq.) cap how long a dormant right of entry can be asserted against a current possessor, but the interest itself is inheritable.

Key Takeaways

California recognizes three defeasible fees: determinable, subject to condition subsequent, and subject to executory limitation.
“So long as / while / during / until” = automatic termination; “provided that / but if / on condition that” = grantor must re-enter.
The retained future interest differs by type: possibility of reverter, right of entry, or a third party’s executory interest.
Defeasible fees complicate financing and title insurance because the estate can terminate unexpectedly.
A right of entry is not waived by mere delay, though California statute limits how long it can be enforced.

This article is educational and is not legal advice. Consult a licensed California attorney about your situation.