Hello Reader, this time Tabir Hukum will discuss about grants subject to condition precedent and invalid condition.
GRANTS SUBJECT TO CONDITION PRECEDENT
Before leaving the subject of conditional estates, a warning : be careful to distinguish between wording in grants that imposes a condition for keeping an estate and wording in grants that creates a condition for getting the estate in the first place. For example, a grant "to A and heirs providing A is 21" is not, as you might suppose, a fee simple subject to condition subsequent but a grant to A that is conditional on A reaching the age of 21 within the time limit allowed by various real property rules. In some contexts, we might call this grant a contingent remainder. There is a contingency that A must meet - being 21 - before A will get any estate under this grant. We can also say that the grant is subject to a condition precedent. A has no estate unless she meets the condition, but if she meets the condition within the required time, she gets a fee simple absolute. Reaching the age of 21, a state that, by definition, cannot continue, is not a condition that she has to maintain in order to keep her estate.
In drafting or interpreting conditional grants, you must think very carefully about the meaning and possible ambiguities of all words in the grants, because the same phrase can have different meanings, depending on the context. Take for example a grant "to A and heirs providing she is Prime Minister of Canada". We have here the magic words of limitation to create a fee simple, but what kind of fee simple ?. Is being Prime Minister a condition precedent, a condition subsequent, or both ?. If A becomes Prime Minister, is the fee simple estate hers henceforth, or will she lost it when she loses her office ?. Rather than litigating these questions, eliminate possible sources of ambiguity before your clients sign a document you have drafted.
INVALID CONDITIONS
If a grant contains a condition that violates the Rule against Perpetuities, the condition is invalid. Courts will also strike down conditions that create undue restraints on alienation, that offend against public policy, and that are uncertain. As well, in most jurisdictions, human rights legislation prohibits terms in agreements of purchase and sale of land, or terms in leases, that discriminate on the basis of grounds set out in the legislation. These very from jurisdiction to jurisdiction, but generally include race, colour, religion, national origin, ancestry, place of origin, age, physical disability, mental disability and marital status.
The legal consequences of a finding that a condition is invalid depends on the kind of estate the grant created. In grants subject to condition precedent, in which the potential grantee gets nothing until the condition is met, the grant fails completely if the condition is invalid. With determinable estates, the same result follows, although for a different reason. Since the condition in a determinable estate is considered to be an integral part of the words of limitation defining the duration of the estate, the grant is invalid and the grantee receives nothing if the condition is invalid. In contrast, because the estate subject to condition subsequent is conceptualized differently - as an estate with a condition added - an invalid condition is severed from the grant and the grantee receives an absolute estate.
Umpteen posts of tabir hukum about grants subject to condition precedent and invalid condition, hopefully the writing of tabir hukum about grants subject to condition precedent and invalid condition can be beneficial.
Books : In Writing Tabir Hukum :
Alan M. Sinclair and Margaret E. McCallum, 2005. An Introduction to Real Property Law (Fifth Edition). LexisNexis : Canada.
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| Figure Property Law : Conditional Freehold Estates - Grants Subject To Condition Precedent and Invalid Condition |
