Fee Simple Absolute
Definition
The fee simple absolute is the largest ownership interest recognized in real property. It confers absolute ownership of potentially infinite duration, freely alienable inter vivos, devisable by will, and descendible by intestacy. There is no future interest held by the grantor or any third party.
Elements
Creation:
- Common law: “To A and her heirs” — the words “and her heirs” were words of limitation (describing the estate), not words of purchase (creating an interest in the heirs).
- Modern law: “To A” or “To A in fee simple” suffices in most jurisdictions; courts presume the grantor conveys the maximum estate unless contrary intent appears.
Characteristics:
- Absolute ownership: No conditions, limitations, or durational restrictions.
- Infinite duration: Not subject to any temporal limitation; continues until transferred.
- Freely alienable: May be transferred inter vivos without restraints (unreasonable restraints on alienation are void).
- Devisable and descendible: Passes by will or intestacy if not transferred during life.
- No retained future interest: Grantor retains neither a reversion nor a possibility of reverter.
Comparison with Related Estates
| Estate | Key Feature | Future Interest |
|---|---|---|
| Fee simple absolute | No limitations | None |
| Fee simple determinable | Ends automatically on condition | Possibility of reverter (grantor) |
| Fee simple subject to condition subsequent | May be cut short; grantor must act | Right of entry (grantor) |
| Fee simple subject to executory limitation | Ends on condition; shifts to third party | Executory interest (third party) |
| Life estate | Measured by life of transferee or another | Reversion or remainder |
Key Cases
- White v. Brown: Illustrates judicial preference for fee simple construction absent clear contrary intent; will language “to live in and not to be sold” construed as fee simple.
Policy / Rationale
- Fee simple absolute promotes free marketability of land and economic efficiency.
- Alienability allows land to move to its highest and best use.
- Simplicity of title facilitates mortgage lending and commercial transactions.
- The law disfavors conditions and limitations on alienation.