Fee simple absolute in possession which basically means an ownership with the right to leave it to anyone you choose after death, with no limits being placed upon that ownership and enjoying immediate occupation29, consequently it is seen as the closest to complete ownership30which commonly has; ‘The potential to last forever, with a high probability that they will do so in an age when a last will and testament will avoid the consequences of a death intestate leaving no persons entitled to succeed.’31 Where restrictions of ownership are placed upon a fee simple they can come in the form of ‘conditional fee simples’ or ‘determinable fee simples.’ A conditional fee simple, be it a condition precedent or subsequent, may include words such as ‘unless’, ‘if’, ‘on condition that’ or ‘provided that’ during its construction.
It occurs where land is given but the condition attached inflicts some clause on the enjoyment or possession of the land, such as, ‘provided someone does not do something’.
Words such as ‘until’, ‘so long as’, ‘whilst’ or ‘during’ indicate a determinable fee simple.
Where it is held void the whole grant fails35 A fee simple qualified by a condition subsequent can be difficult to distinguish from a determinable fee simple; in Re Kings Trust36 Lord Porter M. said the difference was ‘little short of disgraceful to our jurisprudence.’ It is where land is granted but can be lost upon the occurrence of that subsequent condition but if that subsequent condition is in opposition to public policy such as alienation, Re Dunne’s Estate37, or uncertainty as well as public policy as was found in Re Johnston38 it will be held void.
Any type of an estate in land can be divided into two general categories, these are ‘freehold’ and ‘leasehold,’ both of which derive from feudal law and are capable of creating differing types of entitlement, the major difference in the two is the tenet of seisin which, although there is no clear explanation it relates to the link between tenure and estate but encompasses ideas of responsibility and ownership in that may people can have an interest in land but only one will own it.
The former of these two categories will be broken down into its three main types, namely, fee simple, fee tail and life estate1 before exploring the extent that it is possible to claim ownership of a freehold estate.In this case the proper words of limitation were not used whilst transferring a fee farm grant, initially the proper phrasing was ‘to X and his heirs’.The Conveyancing Act of 1881 purportedly removed the necessity for the inclusion of ‘and his heirs’ with the replacement of ‘in fee simple’ but unfortunately neither phrase was included resulting in the transfer of a life interest only.One of the few methods which existed under feudal law for the disposal of land was called substitution, the most basic explanation of which would be that a lord could substitute his own position in the pyramid with another, without creating further tiers in the pyramid through subinfuedation, but by granting them his own tenure, removing himself from the pyramid in relation to that particular piece of land21.Other interests in land were created as well under tenure but they were held to be sometimes something less than estates22 and sometimes, as in the case of Northern Ireland something engineered to suit the political climate of the times.As feudal tenure died out18 this meant ultimately it reverted to the Crown.Currently under s 16 of the Administration of Estates Act (NI) 195519 Escheat has been replaced by the concept of bona vacantia20 in intestate issues where there are no successors making Crown reversion statute based.When this in fact happened the Court looked at the subject of uncertainty and held that because of well recognised statute dealing with matters of faith and established precedents in wills and settlements it could not avoid on this ground33.Re Moore is an example of a conditional fee simple void for reasons of public policy; in this case the testator’s sister was to receive money while she continued to live ‘apart from her husband this was held to be contrary to public policy on issues of marriage.34’ A determinable fee simple occurs where a grantee receives an equitable estate until the determinable event occurs at which time it reverts back to the grantor immediately.Provided that rent is paid and tenant’s covenants are adhered to S.42 deals with the payment of rent or ‘compensation.’ In the Conveyancing Act 1892, S.3 states that; ‘Any lease which prohibits assigning or underletting’without consent of Landlord ‘Tennant shall not be fined unless the lease requires Tennant to pay ‘reasonable sum’ re legal expenses’.There are also leases renewable for lives forever now governed by s 36 of the Property (NI) Order 1997. For now it will be sufficient to point out that the very nature of both leases and landlord and tenant relationships can impact on land ownership.