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The Quest for Clear Land Titles -- Whither Possibilities of Reverter and Rights of Entry James A

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The Quest for Clear Land Titles -- Whither Possibilities of Reverter and Rights of Entry James A NORTH CAROLINA LAW REVIEW Volume 42 | Number 4 Article 3 6-1-1964 The Quest for Clear Land Titles -- Whither Possibilities of Reverter and Rights of Entry James A. Webster Jr. Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation James A. Webster Jr., The Quest for Clear Land Titles -- Whither Possibilities of Reverter and Rights of Entry, 42 N.C. L. Rev. 807 (1964). Available at: http://scholarship.law.unc.edu/nclr/vol42/iss4/3 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. THE QUEST FOR CLEAR LAND TITLES- WHITHER POSSIBILITIES OF REVERTER AND RIGHTS OF ENTRY? JAmEs A. WEBSTER, JR.* The future interests in real property known as "possibilities of reverter" and "rights of entry for condition broken" may not cause nightmares to title lawyers and their clients-but they well might.' This article is intended to espouse the idea that possibilities of re- verter and rights of entry for condition broken are often unreason- able and undesirable impediments to the free alienation of land and are in need of legislation to curb-their harmful effects. So long as a law permits the creation and existence of a par- ticular type of interest in land and so long as it serves a socially valuable purpose, it should be retained. When, however, limitations on the use or alienation of land cease to be beneficial and socially desirable such limitations should be curbed or prohibited. In most cases, perhaps, the individual landowner should be given the widest latitude of freedom to make his land usable and salable and to promote its value in the manner that he deems best. As to his own land the individual landowner is probably as knowledgeable as any- one concerning the way the land should be developed, what restric- tions, servitudes, covenants, or conditions should be created to maximize its potential profitable utilization and value. The home- made, self-taught "expert" in land development is not a rarity. When the landowner's ideas of making his lands usable, pro- ductive or profitable to their maximum extent do no real violence to society and its needs, he should be given the broadest leeway in efforts to achieve the total advantages deriving from his ownership. The total advantages of the ownership of land should include the right to impose reasonable and desirable safeguards curtailing, di- * Professor of Law, Wake Forest College. 'Possible liability threatens title lawyers if they do not exclude from their certificates of title potential possibilities of reverter and rights of entry for condition broken arising in the record at a point of time beyond that covered by title searches. Possible loss threatens clients if they know their title- searching lawyer has not certified against the existence of claims under possibilities of reverter and rights of entry for condition broken beyond the period included in the title examination. NORTH CAROLINA LAW REVIEW [Vol. 42 recting or restricting the methods and purposes for which the lands might be used by purchasers and subsequent owners when he makes a conveyance or devise of his land. The landowner, in imposing restrictive devices circumscribing the extent of subsequent owner- ship of "his" land because of restrictions, servitudes, covenants or conditions, can usually be relied upon to act rationally. He places a given restriction or limitation on the land for what he conceives, in the exercise of his best judgment, to be to his own economic bene- fit and to the economic benefit of the land, to promote and improve its usefulness and value. On the whole, his expertise and foresight in accurately predicting future needs and values is perhaps not sub- stantially inferior to that of any other group. In addition, the land- owner using restrictive devices as a private land use planner can usually be relied on for rationality because of his own peculiar economic relationship to the land which is too often lacking in official and professional land use planners. There is a strong public interest under the free enterprise system in the preservation of each individual landowner's control over the terms of the transfer and devolution of his property, both by inter vivos transfers and by testate succession. An equally important public policy is that property should be freely alienable and usable, i.e., capable of being transfered for utilization to meet society's demands. Free alienability is based on the policy that land assets, as other assets, should be largely manipu- lable by the "living" and not unreasonably immobilized by the 2 "dead.")) As both policies are designed to maximize the benefits of land ownership for a particular generation, they inevitably conflict. If a present landowner has power to dispose of his land under any conditions or restrictions designed to increase its value and utility to him and his successors, the conditions or restrictions may operate to render the land inalienable by future generations. It is the purpose of this paper to inquire, in light of these con- flicting policies, as to the social utility of the land restricting devices which allow the creation of possibilities of reverter and rights of entry for condition broken. Are there positive beneficial reasons for the retention of these common law future interests? Do the ad- ' Each generation should have the power of providing for subsequent ones as it thinks best, but it should not encroach on succeeding generations' free use of land. GRAY, THE RULE AGAINST PERPETUITIES § 268 (4th ed. 1942). 1964] THE QUEST FOR CLEAR LAND TITLES vantages from the legality of these interests to individual landowners outweigh the possible harm done to society generally by creating clogs on otherwise good real estate titles? Is there a feasible way to preserve the grantor's or devisor's freedom of disposition and ac- complish his immediate objectives, and yet limit these interests so as to assure future generations' freedom to use and alien the land without the controls, which may be completely useless, imposed by a former owner perhaps long dead? I. THE INTERESTS DESCRIBED It is no longer debatable in most jurisdictions, including North Carolina, that the future interests in realty known as the possibility of reverter3 and the right of entry for condition broken4 can be created as concomitant by-products existing whenever the possessory estates known as the determinable fee simple estate or the fee simple estate subject to a condition subsequent, respectively, are granted 'or devised. A. Possibility of Reverter A possibility of reverter is an untransferred potential residuum of an estate remaining in a grantor and his heirs or in a devisor's heirs when an estate of fee simple determinable is created in real property either by deed or will. The estate of fee simple determin- able is created when apt and appropriate words are used by a grantor or devisor indicative of an intent on the part of the grantor or de- visor that a fee simple estate conveyed or devised will expire auto- matically upon the happening of a certain event or upon the dis- continuance of certain existing facts.5 Typical language creating such estates may specify that a grantee or devisee shall have land "until" some event occurs, or "while," "during" or "for so long as" ' SIMES & SMITH, FUTURE INTERESTS § 283 (2d ed. 1956) [hereinafter cited as SIMES & SMITH]; McCall, Estates on Condition and on Special Limitation in North Carolina,19 N.C.L. REv. 334, 338-39 (1941) [hereinafter cited as McCall]. See, e.g., Charlotte Park & Recreation Comm'n v. Barringer, 242 N.C. 311, 88 S.E.2d 114 (1955), cert. denied, 350 U.S. 983 (1956); Elmore v. Austin, 232 N.C. 13, 59 S.E.2d 205 (1950). ' SIMES & SMITH § 251; McCall 346-48. See, e.g., Brittain v. Taylor, 168 N.C. 271, 84 S.E. 280 (1915). 'RESTATEMENT, PROPERTY § 44 (1936), provides: "An estate in fee simple determinable is created by any limitation which, in an otherwise effective conveyance of land (a) creates an estate in fee simple; and (b) provides that the estate shall automatically expire upon the occur- rence of a stated event." NORTH CAROLINA LAW REVIEW [Vol, 42 some state of facts continues to exist. This interest reposes in the grantor or his heirs or in a devisor's heirs from the effectiveness of the deed or will creating a determinable fee simple estate until the occurrence or non-occurrence of whatever limits the duration of the estate granted or devised. Upon the occurrence of the event or the cessation of the state of facts limiting the determinable fee simple estate, the possessory estate of the grantee or devisee terminates and the reposing interest in the grantor, his heirs or the devisor's heirs is immediately converted and activated from a mere future possibility of an estate to an existing possessory estate. The pos- sibility of reverter operates automatically, without the necessity of any act of re-entry, the institution of any lawsuit or the intervention of any court to revest the possessory title into the grantor, his heirs or the devisor's heirs.' B. Right of Entry For Condition Broken The future interest in real property known as the right of entry for condition broken 7 arises after the creation of the possessory estate known as the fee simple estate subject to a condition subse- quent." Typical language for the creation of a fee simple estate subject to a condition subsequent specifies that a grantee or devisee shall have a fee simple estate "on condition that," "provided that," but "to be null and void if" a certain event occurs, or to be forfeited upon the happening or failure of continuance of certain facts.
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