FEE SIMPLE
fee simple.An interest in land that, being the broadest property interest allowed by law,
endures until the current holder dies without heirs; esp., a fee simple absolute. — Often shortened
to fee. — Also termed estate in fee simple; tenancy in fee; exclusive ownership; fee-simple title;
feudum simplex. [Cases: Estates in Property 5–7. C.J.S. Estates §§ 11–14, 20–21.]
“[Fee simple] is a term not likely to be found in modern conversation between laymen, who
would in all probability find it quite unintelligible. Yet to a layman of the 14th century the term
would have been perfectly intelligible, for it refers to the elementary social relationship of
feudalism with which he was fully familiar: the words ‘fee’ and ‘feudal’ are closely related…. The
estate in fee simple is the largest estate known to the law, ownership of such an estate being the
nearest approach to ownership of the land itself which is consonant with the feudal principle of
tenure. It is ‘the most comprehensive estate in land which the law recognises’; it is the ‘most
extensive in quantum, and the most absolute in respect to the rights which it confers, of all estates
known to the law’. Traditionally, the fee simple has two distinguishing features: first, the owner
(‘tenant’ in fee simple) has the power to dispose of the fee simple, either inter vivos or by will;
second, on intestacy the fee simple descends, in the absence of lineal heirs, to collateral heirs — to
a brother, for example, if there is no issue.” Peter Butt, Land Law 35 (2d ed. 1988).
“Fee simple.Originally this was an estate which endured for as long as the original tenant or
any of his heirs survived. ‘Heirs’ comprised any blood relations, although originally ancestors
were excluded; not until the Inheritance Act 1833 could a person be the heir of one of his
descendants. Thus at first a fee simple would terminate if the original tenant died without leaving
any descendants or collateral blood relations (e.g., brothers or cousins), even if before his death
the land had been conveyed to another tenant who was still alive. But by 1306 it was settled that
where a tenant in fee simple alienated the land, the fee simple would continue as long as there
were heirs of the new tenant and so on, irrespective of any failure of the original tenant’s heirs.
Thenceforward a fee simple was virtually eternal.” Robert E. Megarry & M.P. Thompson, A
Manual of the Law of Real Property 24–25 (6th ed. 1993).
fee simple absolute.An estate of indefinite or potentially infinite duration (e.g., “to Albert and
his heirs”). — Often shortened to fee simple or fee. — Also termed fee simple absolute in
possession. [Cases: Estates in Property 5. C.J.S. Estates §§ 11–12.]
“Although it is probably good practice to use the word ‘absolute’ whenever one is referring to
an estate in fee simple that is free of special limitation, condition subsequent, or executory
limitation, lawyers frequently refer to such an estate as a ‘fee simple’ or even as a ‘fee.’ ” Thomas
- Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 24 (2d ed. 1984).
fee simple conditional.An estate restricted to some specified heirs, exclusive of others (e.g.,
“to Albert and his female heirs”). • The fee simple conditional is obsolete except in Iowa, Oregon,
and South Carolina. — Also termed general fee conditional; conditional fee. [Cases: Estates in
Property 7. C.J.S. Estates §§ 13–14, 20–21.]
“The reader should be careful not to confuse this estate with estates having similar labels,
such as the ‘estate in fee simple subject to a condition subsequent’ ….” Thomas F. Bergin & Paul G.
Haskell, Preface to Estates in Land and Future Interests 29 n.19 (2d ed. 1984).
fee simple defeasible (di-fee-z<<schwa>>-b<<schwa>>l). An estate that ends either because
there are no more heirs of the person to whom it is granted or because a special limitation,
condition subsequent, or executory limitation takes effect before the line of heirs runs out. — Also
termed qualified fee. [Cases: Estates in Property 6. C.J.S. Estates §§ 13–14.]
fee simple determinable.An estate that will automatically end and revert to the grantor if
some specified event occurs (e.g., “to Albert and his heirs while the property is used for charitable
purposes”); an estate in fee simple subject to a special limitation. • The future interest retained by
the grantor is called a possibility of reverter. — Also termed determinable fee; qualified fee; fee
simple subject to common-law limitation; fee simple subject to special limitation; fee simple
subject to special interest; base fee; estate on limitation. [Cases: Estates in Property 6. C.J.S.
Estates §§ 13–14.]
“In theory, it should be easy to determine whether an instrument creates a fee simple
determinable or a fee simple subject to a condition subsequent. If the instrument includes a special
limitation (introduced by words such as ‘so long as’ or ‘until’) it creates a fee simple determinable,
whether or not it also includes an express reverter clause. If the instrument includes an express
condition or proviso (‘on condition that’ or ‘provided that’) and an express right to re-enter for
breach of the stated condition, it creates a fee simple subject to a condition subsequent. But deeds
and wills often fail to employ the appropriate words to create one of the two types of defeasible
estate or the others. Instead deeds and wills often contain a confusing mixture of words
appropriate for creation of both types of defeasible estate.” William B. Stoebuck & Dale A.
Whitman, The Law of Property 43 (3d ed. 2000).
fee simple subject to a condition subsequent.An estate subject to the grantor’s power to end
the estate if some specified event happens (e.g., “to Albert and his heirs, upon condition that no
alcohol is sold on the premises”). • The future interest retained by the grantor is called a power of
termination (or a right of entry). — Also termed fee simple on a condition subsequent; fee simple
subject to a power of termination; fee simple upon condition. [Cases: Estates in Property 7. C.J.S.
Estates §§ 13–14, 20–21.]
fee simple subject to an executory limitation.A fee simple defeasible that is subject to
divestment in favor of someone other than the grantor if a specified event happens (e.g., “to Albert
and his heirs, but if the property is ever used as a parking lot, then to Bob”). — Also termed fee
simple subject to an executory interest. [Cases: Estates in Property 6. C.J.S. Estates §§ 13–14.]
fee simple subject to a power of termination.See fee simple subject to a condition subsequent.
fee simple subject to common-law limitation.See fee simple determinable.
fee simple subject to special interest.See fee simple determinable.
fee simple subject to special limitation.See fee simple determinable.
fee simple upon condition.See fee simple subject to a condition subsequent.[Blacks Law 8th]