Fee simple determinable

Key Takeaways

• A fee simple determinable lasts only as long as a stated condition holds true, and title returns to the grantor automatically the moment the condition fails.
• The tell is duration language in the granting clause: so long as, until, while, during. Those words build a determinable fee.
• A fee simple subject to a condition subsequent uses condition language instead (but if, provided that, on condition that) and does not end by itself. The grantor holds a right of re-entry and must act to retake the property.
• In Washington, RCW 64.04.060 provides that the word heirs is not necessary to create and convey an estate in fee simple, and validates older conveyances that omitted it but did not limit the estate conveyed. The limiting words are what make a fee determinable.

What It Means

A fee simple determinable is ownership with a built-in stop sign. The grantor conveys the whole bundle of rights but attaches a condition, and the estate lasts only as long as that condition holds true. When it fails, ownership ends by itself and returns to the grantor. Nothing has to be filed and nobody has to sue for the reversion to occur, which is what determinable means: the estate determines, or terminates, on its own terms.

Washington course material groups this estate with the fee simple subject to a condition subsequent under the heading Qualified Fee Estate, because both are a Fee Simple burdened by a condition. What separates them is what happens when the condition breaks. A determinable fee ends automatically, and the grantor's future interest, called a possibility of reverter, ripens into possession. A fee simple subject to a condition subsequent keeps running until the grantor exercises a right of re-entry.

The drafting words are the whole test. Duration words (so long as, until, while, during) create a determinable fee. Condition words (but if, provided that, on condition that, in the event that) create a condition subsequent. Either way the estate is a freehold of potentially unlimited duration, not a life estate, because it ends on an event rather than on a death. Our guides to estates in land and to life estates set the qualified fees next to the rest of the family.

How It Works in Washington

Washington has no statute that catalogs the freehold estates. What it regulates is how estates are created and moved, and that is where a determinable fee shows up in a real file. RCW 64.04.010 requires every conveyance of real estate, or any interest therein, to be by deed. RCW 64.04.020 sets the requisites: every deed shall be in writing, signed by the party bound thereby, and acknowledged by the party before some person authorized to take acknowledgments of deeds. The condition that makes a fee determinable therefore has to be written into the deed itself. A side promise or a handshake does not create one.

RCW 64.04.060 is the section that matters most here. It provides that the term heirs, or other technical words of inheritance, shall not be necessary to create and convey an estate in fee simple, and that conveyances made without those words, but not limiting the estate conveyed, are validated and declared to be conveyances of an estate in fee simple. Read the phrase but not limiting the estate conveyed closely, because it states the test in reverse. A Washington Deed that simply grants to Mary passes a fee simple absolute. A deed becomes determinable only when limiting language is added, such as so long as the premises are used as a public library.

For a broker the practical move is to treat this as a title question rather than a paperwork detail. A possibility of reverter is an outstanding interest in the land, so any granting clause carrying duration language belongs with the escrow closer and the Title Company before mutual acceptance, and the buyer should hear what the insurer will and will not cover before the inspection money is spent.

Example

In 1998 Ada Whitcomb deeds a 2.4 acre parcel in Chehalis to the Lewis County Historical Society. The granting clause reads: to the Lewis County Historical Society so long as the premises are used as a museum open to the public. Ada records the deed. She keeps no right to occupy the land and receives no payment, but she keeps a possibility of reverter.

The Society runs the museum for 26 years. In 2024 it closes the building and leases it to a coffee roaster for $2,850 a month. The moment the museum use stops, the determinable fee ends by its own terms and title returns to Ada's estate. No court order is required for the reversion itself, although her heirs will file a quiet title action so the record reflects it.

Change three words and the outcome changes. Had the 1998 deed read on condition that the premises are used as a museum, the Society would hold a fee simple subject to a condition subsequent. Title would stay with the Society after the museum closed, and Ada's heirs would have to affirmatively exercise a right of re-entry rather than simply clear the record.

Common Mistakes and Exam Traps

• So long as, until, while, and during signal a fee simple determinable. But if, provided that, and on condition that signal a fee simple subject to a condition subsequent. Item writers test the words, not the story.
• A determinable fee ends automatically. A fee simple subject to a condition subsequent does not, because the grantor must exercise a right of re-entry. Answer choices saying both revert automatically are wrong.
• The grantor's retained interest after a determinable fee is a possibility of reverter. After a condition subsequent it is a right of re-entry. The two names are frequently swapped in distractors.
• A fee simple determinable is still a freehold estate of potentially unlimited duration, not a life estate. It ends on a stated event, not on a measuring life.