MODULE 4.2
COMMON LAW REMAINDER RULES
No Remainder After a Fee Simple.
Your answer should also state that the possibility of reverter will automatically
become an estate in fee simple when the land is no longer farmed. Of course,
G or her heirs may fail to repossess the land and their right to do so is
subject to limitation of actions.
Note also that G's interest is subject to the perpetuity rule as
modified by statute, as mentioned in connection with A's interest.
Note that the effect of the rule against a remainder after a fee
is that you cannot grant a possibility of reverter to a third person in
the conveyance that creates the determinable fee simple, and, hence, the possibility. At
common law this meant that
the possibility always remained in the grantor and the grantor's heirs.
By statute, a possibility of reverter can now be assigned, but only by a
subsequent instrument: Conveyancing and Law of Property Act, s.10;
Succession Law Reform Act, s.2.
Thus, in this problem, G could execute another deed in favour of B in which
she conveyed her possibility of reverter.
It is submitted that the suggestion that the statutes allow you to do it
all in one instrument (see Re Tilbury West Public School Board and Hastie
(1966), 55 D.L.R. 407 (Ont. H.C.J.)) is wrong.
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