Qualified estates and future interests are ways and means of giving land conditionally.

The law is very severe on these types of transactions because, as a general principle, the law frowns on conveyance of land which are conditional and which complicate ownership and title.

Not surprisingly, as concessions were developed, the topics have become extremely complex. In spite of our best efforts to explain these mechanisms in plain language, and considering the intimidating learning curve involved, what follows can only of limited use to the general public. The cost of error in real property law is huge. With that caveat, the following is merely to assist those that wish to discover the basic principles of conditional interests in Canadian real property law.

Lloyd Duhaime, Barrister & Solicitor, Victoria, British Columbia, Canada, © 1994-2001.

"The doctrine of estates in expectancy contains some of the nicest and most abstruse learning of the English law."
(Blackstone)

In this article, reference will be made to "seisin" which is a feudal system term referring to that party which has actual possession of land. The feudal system allowed for land to be granted in exchange for services to the land lord. Once land transfers became complicated with contingent interests, future interests, remainders, etc., it became important for the land lord to know, at all times, who was responsible and accountable for the services owed to him. In a nutshell, it was the person who was in possession of the land at the moment those services became due. Thus the notion of "seisin."

REVERSIONS v. REMAINDERS

Reversion

"To Bob for life" means that the property reverts back to the grantor (or his heirs) upon the death of Bob. This is called a reversion and is also an interest that can be alienated (i.e. bought or sold or conveyed by will). It differs from a remainder which, upon the failure or termination of, for example, a life estate, the land stays away from the grantor and goes to some other third party.

Reversions are also immune from the rule against perpetuities because they are vested.

Remainder

"To Bob for life and after his death to Susan in fee simple" creates a remainder because, upon the death of Bob, the land is transferred to Susan. A remainder is a future interest but a very real one. For example, it can be bought and sold even before it comes to term. In the above example, Bob holds a life estate and Susan owns what can be called "a fee simple in remainder."

A remainder is said to differ from a reversion in that the reversion does not depend on any act of the parties but takes effect by operation of the law.

For remainders attached to gifts not given by will but by inter vivos transfer (i.e. the giver is alive), there are four rules which apply:

1. An estate of freehold is void if it is designed to take effect in the future, unless it is supported by a prior particular estate created by the same instrument.
A conveyance to take effect of March 30, 1998 which reads "To Adam on April 25, 1998"

There is an unacceptable gap of 15 days here. The gift must be supported by a "prior particular estate." If there is a gap of even one day between the transfer and possession, the grant is void. A remainder cannot be allowed to just suddenly spring up at some point in the future.

"To Adam for life, remainder to Bob and his heirs."

This is valid because there is no gap; Bob taking when A dies.

Where Adam is not yet 21, "To Adam in fee simple at age 21."

Again, an unacceptable gap of seisin.

Adam being childless at the time of the grant and: "To Adam's first son."

No prior particular estate to support the remainder to the first son.

2. A legal contingent remainder is void unless it vests at or before the termination of the prior particular estate.
"To Adam for life, remainder to Barbara provided she remarries after Adam's death."

Void because the marriage requirement means that Barbara's interest is uncertain since she might not be married by the time of Adam's death. Again, a gap of possession or "seisin."

"To Adam for life, remainder to Barbara provided she marries before Adam's death."

This solves the problem by closing any possible gap. There is an explicit reversion to the grantor (or his heirs) if Barbara is not married at the time of Adam's death.

"To Adam for life, with a remainder to all of Adam's children who reach 21." This is known as a "class gift" and all those children having not reached 21 by the time of Adam's death will be cut off. In other words, the class close at the death of the life tenant (Adam).This subrule is supported by a case known as Festing v. Allen.
3. A remainder is void if it is to take effect by cutting short a prior estate.
"To Adam for life, provided he does not remarry, but if he does, then to Barbara."

This violates the rule. The common law only lets the original grantor re-enter this way under the rules of a defeasible interest/condition subsequent, explained below.

"To Adam for life or until he remarries, and then to Barbara." This is a determinable interest (life estate) which does not violate the rule.
4. A remainder after a fee simple is void.
"To Adam in fee simple, remainder to Barbara in fee simple."

The remainder to Barbara is void and of no effect. Once a total and absolute estate, a fee simple, has been conveyed, there is nothing left to give Barbara.

"To Adam in fee simple, but should the house ever cease to be a dwelling house, then to Barbara in fee simple." Void as violating rule #4. Once a fee simple estate is granted, the grantor is out of the picture and can no longer dictate.

DEFEASIBLE v. DETERMINABLE INTERESTS

Defeasible Interest/Condition Subsequent

Also known as the "right to entry for condition broken," this interest resembles a reverter insomuch as it is also the grantor that re-takes in this case, except that this is a contingent interest and not a vested one. It is not only conditional or "contingent" on the condition being broken but it is also contingent on re-entry by the grantor or his/her heirs.

"To the United Church in fee simple, on the condition that if the land shall no longer be needed for church purposes, my estate may re-enter." A qualification is attached to the gift which, if the event happens or if the beneficiary does or does not do something specified, the interest is "defeated." Thus, this is a "defeasible interest"; a fee simple that can be defeated upon the occurrence of a specific event.

A defeasible interest is also referred to as a condition subsequent upon which, if it should occur, the fee simple becomes voidable and the land may be reclaimed by the grantor or his heirs when they re-enter the land. The key words are "may" as the grantor (or his heirs) do not have to re-enter. Until re-entry occurs, the estate to the grantee (the "church" in the above example) continues. This differs substantially with the determinable interest, described below, where the fee simple estate ends completely when the event occurs. Also, some provinces do not allow the right to re-enter linger on forever. British Columbia's Limitations Act (section 3(5)(f)) requires that the re-entry occur within 6 years of the breach of the condition subsequent.

If a condition subsequent is voided, the estate then becomes absolute existing as if the condition had never been imposed. Note also that a full estate is given. One legal expert compared the condition subsequent to the determinable interest by saying that the former is a twelve inch ruler whereas the latter is a twelve inch ruler with an inch lopped off.

The courts will normally interpret a conveyance to be a defeasible interests/condition subsequent if the following words are used:

  • "on condition that"
  • "but if"
  • "provided that", and
  • "if it happens that."

Determinable Interest

"To the United Church in fee simple until the land is no longer needed for church purposes." Here, the words mark the utmost time of an estate rather than, as in the case with a defeasible fee simple, marking an event which, if it takes place, could defeat the estate if the grantor (or his heirs) re-enter. A determinable fee simple creates an estate and then says clearly how long it is to last. The terminating event is part and parcel of the estate granted. Similar to a defeasible interest except that determinable interests have a time-based or chronological connotation. A reversion (see above) is possible in this case, to the grantor or his heirs.

The important aspect of the fee simple determinable is that the fee simple to the church, to use the above example, automatically ends when the "land is no longer be needed for church purposes." In lawyer's words: "A determinable interest comes to an end automatically upon the occurrence of the terminating event." It is like a time bomb wrapped around the estate, detonating when the event occurs.

This differs substantially from the normal fee simple, which goes on forever until one of the owners dies without a will or heirs, and from the defeasible or condition subsequent interest (discussed above) which is only voidable upon breach of the condition, voided once the grantor or his heirs re-enter the land.

Words which the courts have held to mean a determinable interest include:

  • "while"
  • "during"
  • "so long as", and
  • "until."

There are enormous judicial consequences to a court finding an interest to be "defeasible" or "determinable." If the condition is a determinable interest and it found to be void (eg. against public policy or uncertain), the entire gift fails.

Words in a conveyance, such as a will, are not always clear and the differences can be subtle. One author suggests that the words "as long as she continues to reside in Canada" or "but only so long as" could be interpreted either way.

VESTED v. CONTINGENT REMAINDERS

"An estate is vested in interest when there is a present fixed right of future enjoyment. An estate is contingent when a right of enjoyment is to accrue on an event which is dubious and uncertain." {Pearson v. IRC (1981) AC 753.}

All future interests are either vested or contingent. The owner of a vested interest is guaranteed his estate; he or she has nothing to do but wait. So a vested interest is more valuable than a contingent interest. Under common law, a contingent interest was not something you could sell, since it may transpire to be worthless, if the condition never occurs. But many states now have legislation which allows such interests to be sold, caveat emptor.

Vested Interest

All reversions are necessarily vested, by its very nature as the grantor stands ready to resorb the estate.

An interest with no condition or limitation, not even the determination of the recipient, except the natural end of the present estate, are called "vested interests." The estate is fixed and certain either immediately or in the future. There are no "ifs" or "buts" about it. The two conditions of a vested interest are, therefore:

  1. The person(s) entitled to take is ascertained; and
  2. The interest is ready-to-go subject only to the termination of the prior estate.

When in doubt between a vested or contingent interest, as far as concerns land, Canadian courts prefer vested interests so as not to leave the estate uncertain. This is a rebuttable presumption.

A remainder which is subject to a condition subsequent is called a "vested remainder." See also the discussion on the Rule in Shelley's Case in Canadian Real-Estate Law: Fee simple ... NOT!

"To Adam for life, remainder to Barbara."

The classic example of a vested interest, Adam vested in possession, Barbara vested in interest.

"To Adam for life with remainder to Barbara for life with remainder to Charlie in fee simple if he survives Adam."

Since Adam's death is not a "dubious and uncertain" event, but a certainty, Barbara's interest is vested but Charlie's is obviously contingent.

Contingent Interest or Condition Precedent

Contingent interests are subject to the rule against perpetuities.

An interest is said to be contingent if vesting is delayed until some condition precedent occurs. A condition precedent suspends an interest from vesting unless or until a certain event takes place such as leaving a house to "the first person to place flowers on my grave." A remainder, for example, can be either vested ("to Sam for life with remainder to melanie in fee simple") or, if the remainderman is not ascertained, contingent ("To Sam for life with remainder to Melanie's oldest child living at her death").

The validity of the condition could have major impacts on the conveyance. If a real property conveyance is attached to a condition precedent which is void, the entire conveyance is void (the law is different if the property is not real-estate). This is what happened in the Re Going case discussed in the Case Law page.

Where a will is ambiguous, there is a presumption that the condition is a condition subsequent and not a condition precedent.

"To Adam's oldest son living at his death." This is a contingent interest.
"To the survivor of Barbara or Charlie." This is a contingent interest.
"To Barbara, a child, if she attains the age of 21." This is a contingent interest.
"To Barbara if she becomes a member of the Law Society." This is a contingent interest.

PUBLIC POLICY & UNCERTAINTY

Conditions are themselves subject to some basic rules:

  • Conditions which operate as absolute restrictions on the alienation of the fee simple estate are void. The court's guideline is "whether the condition takes away the whole power of alienation substantially" (Re Macleay 1875 L.R. 20). A condition which forbids sale to the whole world except to, or without the permission of a specific person, is void as an absolute restraint on alienation;
  • A restraint that is partial, such as disallowing leasing, is valid;
  • Restrictions based on first marriage appear to be void on grounds of public policy but, oddly, not so for second marriages.
  • A condition preventing a beneficiary of a will from challenging the will through litigation is void as contrary to public policy (Re Bronson (1958) Ontario Reports 367);
  • The law of contract governs most of the other validity of conditions such as voidness for uncertainty or impossibility. The test for uncertainty in the case of conditions subsequent is that the beneficiary of the estate must be able to know, clearly, what act(s) would defeat the estate (Sifton v. Sifton 1938 A.C. 656). It is much more difficult to have a condition precedent held void for uncertainty as the courts will be satisfied if the condition is capable of "some meaning."

Many of the above principles are discussed in the Re McColgan case summarized in Duhaime's Real-Estate Law Case Law page. In the McColgan case, the condition was deemed to be defeasible (condition subsequent). Consequently, the voidness of the condition for reasons of uncertainty ("until her death or until she is not residing therein personally") meant that the estate went to the beneficiary absolutely. The Re Down case, summarized in the Case Law page, also struck down a condition subsequent ("provided he stays on the farm") as uncertain and found a grant to be without condition. Finally, the decision in In Re Moore is worth reviewing as it shows that the field is complex. A sum of money was to be paid "during such time as she may live apart from her husband before my son attains the age of 21 years." Even though the clause was held to be "a determinable limitation," the court invalidated it because it was to promote the separation of husband and wife. The consequence of this was that the whole gift failed.