"O to A, but if ..., O has the right to re-enter and re-take." Which estate is created?

• A. Fee simple determinable
• B. Fee simple subject to condition subsequent
• C. Fee simple subject to executory limitation
• D. Fee simple absolute

Answer: (C)

The key idea is how the condition and future interest are allocated between the grantee and the grantor. When a grant to A includes a limitation that the grantor may reclaim the property if the condition is breached, and the grantor retains the right to enter and retake, that creates a fee simple subject to a condition subsequent. Here, the transfer to A is subject to a catch that triggers the grantor’s re-entry and retaking upon breach. The grantor’s future interest is a right of entry (the power to terminate and retake), not an automatic shift of title to a third party. Therefore the estate is a fee simple subject to a condition subsequent.

This contrasts with a fee simple determinable, where the land automatically reverts to the grantor upon the event, or with an executory limitation, where a third party must take title upon breach. If the language instead said that upon breach the land would automatically go to someone else, that would illustrate an executory limitation, not a right of entry.