Fee simple subject to condition subsequent

Key Takeaways

• A fee simple subject to condition subsequent does not end on its own when the condition is broken; the grantor has to act to end it.
• The interest the grantor keeps is a right of entry, also called a power of termination.
• A fee simple determinable ends automatically when the stated event happens, and the interest the grantor keeps there is a possibility of reverter.
• Washington voids a right of entry or possibility of reverter that limits use or occupancy on the basis of a protected class (RCW 49.60.224).

What It Means

A fee simple subject to condition subsequent is full ownership with a string attached. The grantee holds a Fee Simple, lives in the property, mortgages it, sells it, and leaves it to heirs. What makes the estate different is that the deed states a condition, and if the grantee breaks that condition the grantor gets the option to take the property back.

The word option carries the whole idea. Breaking the condition does not move title by itself. The grantor, or whoever inherited the grantor's interest, has to step forward and end the estate, and until that happens the current owner keeps everything an owner has. The interest the grantor held back is a right of entry, which you will also see written as a right of re-entry or a power of termination.

Deed language is how the two Qualified Fee Estate types are told apart. Words of condition such as but if, provided that, on condition that, and the grantor may reenter signal a condition subsequent. Words of duration such as so long as, while, and until signal a fee simple determinable, which ends by itself the moment the stated event happens. Both are freehold estates of indefinite length, so neither is a lease, and neither is the same thing as a Deed Restriction a neighbor enforces. What separates them is the consequence of a breach, and on an exam that is almost always the point being tested.

How It Works in Washington

Washington requires the condition to live in the deed. RCW 64.04.010 provides that "every conveyance of real estate, or any interest therein, and every contract creating or evidencing any encumbrance upon real estate, shall be by deed," so a condition subsequent sits in the recorded instrument where a title search will find it and a title company will take exception to it.

Taking the property back means going to court, not changing the locks. RCW 7.28.010 lets "any person having a valid subsisting interest in real property, and a right to the possession thereof" recover it "by action in the superior court of the proper county," with judgment quieting title or removing a cloud from it. That action is how a right of entry gets enforced in practice, and it is why the estate can sit in breach for years without changing hands.

The most important Washington limit is a civil rights limit. RCW 49.60.224(1) voids "every condition, restriction, or prohibition, including a right of entry or possibility of reverter, which directly or indirectly limits the use or occupancy of real property on the basis of race, creed, color, sex, national origin, citizenship or immigration status, sexual orientation, families with children status, honorably discharged veteran or military status," disability, or the use of a service animal. RCW 49.60.224(2) makes it an unfair practice "to insert in a written instrument relating to real property a provision that is void under this section or to honor or attempt to honor such a provision in the chain of title." A racially restrictive condition in a 1940s deed is unenforceable here, and trying to honor it is itself a violation. Our guide to estates in land maps where this estate sits, and our life estate explainer covers the other common way ownership gets cut short.

Example

In 1998 Harold Vance deeds 2.4 acres outside Ellensburg to the Swauk Valley Grange for $1, on the express condition that the land be used only as a community meeting hall, and providing that if it is used for any other purpose the grantor or his heirs may reenter and terminate the estate. In March 2026 the Grange leases the hall to a for-profit fitness studio for $2,800 a month.

Nothing happens to title on the day that lease starts. The Grange still owns the parcel in fee, and when it lists the property at $340,000 the buyer's title report shows the 1998 condition as an exception to coverage. Harold's daughter Alma inherited the right of entry. If she wants the land back she has to bring an action in Kittitas County Superior Court under RCW 7.28.010 and prove the breach. If she does nothing, the Grange keeps the studio, keeps the $2,800 a month, and can sell the parcel with the condition still riding along for the next owner.

Common Mistakes and Exam Traps

• Words of duration such as so long as, while, and until point to a fee simple determinable. Words of condition such as but if, provided that, and on condition that point to a condition subsequent.
• The grantor's future interest has two different names. A possibility of reverter goes with a fee simple determinable. A right of entry, or power of termination, goes with a condition subsequent.
• Breaking the condition does not transfer title by itself. Until the right of entry is exercised the current owner still holds a fee simple and can sell, mortgage, or devise the property.
• This is a freehold estate, not a leasehold. The duration is indefinite even though the estate can be cut short.