by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

ESTATES IN LAND; DEFEASIBLE ESTATES: A conveyance in fee simple subject to a condition subsequent that land be used as a park within seven years is satisfied where evidence exists that the grantee erected a fence, mowed the grass, trimmed trees and further drafted plans for the parcel's ultimate development. City of Lincoln v. Townhouser, Inc., 534 N.W.2d 756 (Neb. 1995).

The grantor conveyed land to the City reserving a right of reentry if development of a park had not commenced within seven (7) years of acceptance. When the grantors gave notice that they were exercising their right of reentry, the City responded by seeking judicial declaration of their ownership. The grantor claimed that the City had merely maintained the tract instead of developing a park as the deed required.

The court noted that conditions subsequent contained in deeds are construed most strongly against the holder and forfeiture will not be enforced unless clearly established. Where use of land is the subject of the condition a breach occurs only when there has been such neglect to comply as to indicate an intention to disregard the condition. Proof of this level of negligence extends beyond the letter of the condition to the true spirit and purpose of the language.

As the city produced substantial evidence of continuous past improvements in addition to detailed plans for the parcel's future development, it was not possible to find that the condition was violated. The court pointed to the lack of specificity in the conveyance as particularly important in their decision. The language called only for "commencement" of development of the park and failed to indicate what type of park or facilities were required.

Comment: Is there a drafting lesson here? Or is there really only a lesson that courts will find a way to foil most forfeitures?

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