While many areas of modern American law have evolved substantially from their ancient English roots, our property law terminology still carries echoes of the feudal system that originated centuries ago. Two phrases that require decoding for today’s real estate world are “fee simple” and “fee tail” – holdovers from the medieval desire to control generational transfer of land ownership.
Fee Simple Absolute: Ultimate Ownership Power
The fee simple absolute represents the most complete bundle of property rights an owner can possess. It confers a freehold estate that is inheritable and allows the owner full power to use the land, sell it, or transfer interest upon their death with no limitations from any previous owners.
In feudal times, creating a fee simple required very specific language like “to the grantee and his heirs.” But today, courts have moved away from those arcane words in favor of interpreting deeds based on the parties’ intent for conveying full ownership rights.
Fee Simple Defeasible: Conditional Ownership
While uncommon today, it is still possible for a property owner to grant a fee simple estate that includes certain conditions or limitations on use and transferability. These are known as fee simple defeasible estates.
A fee simple determinable automatically terminates the owner’s rights if a specific condition is broken, reverting the property back to the previous owner. A fee simple subject to condition subsequent allows the original grantor to re-enter and reclaim the property if the condition is violated.
These defeasible fee estates were sometimes used to mandate that land be maintained for a particular purpose like farming or to prevent certain offensive activities on the premises. But they create clouded titles that most real estate transactions aim to avoid in modern practice.
Fee Tail: Bloodline Restrictions
Even more antiquated is the fee tail estate, which arose from the medieval desire to keep family estates consolidated across generations by restricting inheritance rights. The classic fee tail language was “to the grantee and the heirs of his body,” specifying that only direct descendants could inherit the property.
Fee tails were eventually phased out by most U.S. states over the centuries as they excessively restrained alienation of land against public policy interests. Only a handful of states still permit fee tail estates in some form today when specifically created, though the mechanism is rarely invoked.
Modern Fee Simple Dominates
While understanding these feudal property concepts provides historical context, the fee simple absolute is the overwhelming standard for contemporary real estate ownership and conveyancing in the United States. The strong policy preference is to avoid defeasible fees or archaic inheritance restrictions that could imperil marketable titles.
When reviewing deeds and property records, real estate professionals should be aware of these terms rooted in feudal traditions. But also recognize that courts today will likely interpret language based on the intent to grant or deny full fee simple ownership rather than revive restrictive feudal property forms that have been rendered largely obsolete.
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