The Powerful Ownership of Fee Simple Defeasible

A Fee simple defeasible title is the second most powerful means of owning property. The only exceptions which exist are the basic four government regulations, which are taxation, escheat, eminent domain, and police power, and, or a covenants (restrictions) on a deed. A condition on a deed refers to a previous owner creating conditions on the deed that restrict or limit the use of property from a specific use.

A property initially becomes a fee simple defeasible once there is a covenant on the deed. An example of a restriction on a deed is if a previous owner restricted the sale of alcohol. During this violation, whether the current owner is aware of it or not, the sale or purchase of alcohol becomes prohibited. Since the deeds follow the land, if the sale of alcohol does take place, either the previous owner or any of his lineal descendants may seize the land immediately.

In this given example, since there is the sale of alcohol, most probably this means there is a liquor license on hand. This is a clear violation of a covenant on the deed, and therefore the property title can immediately be confiscated and given to the previous owner or his or her descendants. Not only is the property going to be taken, but since there must be a liquor license on hand that goes with the property, the liquor license is automatically forfeited as well.

The new owner of the liquor license would be the same individual who has now acquired the title of the property due to the violation of a covenant on the deed. The township or state cannot enforce the violation, only the previous owner or his/her descendants can do so.

A real life example of an issue relating to the violation of a deed was Evans v. Abney, 396 U.S. 435 (1970), argued 12–13 Nov. 1969, decided 29 Jan. 1970 by vote of 6 to 2. Evans is one of a series of Supreme Court decisions that have considered racially discriminatory land‐use covenants and other, privately created, racial land‐use limits. This case dealt a covenant on the deed stating the park can only be used by Whites.

The covenant stayed strong until it collided with the Civil Rights Act when it was created. The conclusion of the trial came forth when the defendant agreed and said "yes, the law states you cannot discriminate against one group different from the other, but, it would not be discrimination if we took the park away as a whole."

This statement held valid, not only because it was a loophole that was used, but also because testate law will always hold more importance than property law itself. Looking at the above examples clearly comes to show how important testate law is, and to what extent it is respected. As long as the testate laws do not violate or breach any regulations or rules set by any form of the government, it will be held as a priority.

NEXT: What is a Tenancy for Years?