As we have discussed before, American law descends from English law, and as a consequence many of our legal concepts and much of our legal language are borrowed directly from this source. This is perhaps most evident in our law of property. Much of our property law nomenclature derives straight from medieval English society. Today we will cover two terms which both take their origin from feudal England: fee simple and fee tail.
One of the overriding concerns of real property owners is the successful transmission of ownership to their property. To address this concern, our law of property has a variety of devices which are intended to assist property owners transmit their property in exactly the manner they wish it to be transmitted. Fee simple and fee tail are two such devices.
A fee simple is an ownership interest which confers upon its holder full control over the future disposal of the land with which it is associated. Hence, an individual who has a fee simple not only has a present ownership interest but also may decide who acquires ownership interests in the future. A fee simple with no restrictions whatsoever is referred to as a fee simple absolute. A fee simple absolute confers an interest which is unlimited and may not revert back to the grantor under any circumstances.
It is possible for a grantor to place restrictions on a fee simple. One common reason for this would be to ensure that a piece of property is used for a specific purpose; another reason would be to prevent a grantee from engaging in a particular type of behavior. A restricted fee simple is referred to as being either a fee simple determinable or fee simple subject to a condition subsequent.
Historically, to create a fee simple absolute, the grantor needed to use particular language. This language was as follows: “To the grantee and his heirs.” These words needed to be present or else a smaller estate was transferred.
In contrast to a fee simple, a fee tail necessarily restricts the ability of the grantee to transfer title of the land in the future. Traditionally, the underlying purpose of a fee tail was to prevent property from falling into the hands of persons who were not direct descendants of the original grantor. In other words, a fee tail was a mechanism created to maintain family wealth over successive generations.
To create a fee tail, the grantor had to use language such as the following: “To the grantee and the heirs of his body.” This language prevented the grantee from disposing of the land at will and automatically transferred ownership interest in the land to a direct descendant. Unlike a fee simple, therefore, a fee tail granted present possessory rights but did not allow the grantee to control the future direction of the land.
As mentioned earlier, these concepts are archaic and have roots which stretch back all the way to feudal England. However, it is still important to be aware of them as they contributed heavily to our modern law of property.
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Property owners looking to maximize their pocketbooks should take a moment to view this video on the tax benefits of property ownership