What is Fee Simple in Real Estate?
When buying or selling a property, you may come across the term “fee simple.” What does fee simple mean, and why is it important in real estate? Fee simple is the highest form of property ownership, and it’s the most common type of homeownership in the U.S. Here’s a closer look at the meaning of fee simple and how it works in practice.
Key Points
• Fee simple is the highest form of property ownership, granting full control and rights to use, sell, or lease the property indefinitely.
• It includes two types: fee simple absolute (unrestricted) and fee simple defeasible (conditional).
• Owners must be aware of encumbrances like deed restrictions, easements, encroachments, and liens that can affect property use.
• Fee simple ownership often results in higher property values and easier financing due to fewer restrictions.
• Fee simple ownership is the most common type of property ownership, impacting property value, financing, and marketability.
Definition of Fee Simple
Fee simple, also known as fee simple ownership, provides full control and rights to a property. This includes the right to use, sell, or lease the property as the owner sees fit. Another important aspect of fee simple definition: Ownership is indefinite, meaning that it can be passed on to heirs or beneficiaries for any amount of time.
Fee simple ownership dates back to the feudal system in medieval England. While this system originally required services on behalf of both the tenant and landlord, it gave rise to our modern system of private property rights.
Fee simple meaning can vary based on the type of fee simple ownership, which we’ll elaborate on below.
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Types of Fee Simple Ownership
There are two types of fee simple ownership that you’ll want to acquaint yourself with before you make a home purchase, whether you’re buying a foreclosed home or getting a home mortgage loan for a vacation property: fee simple absolute and fee simple defeasible.
Understanding both types of fee simple ownership can help buyers uncover any conditions on a property before making an offer on a home. Here is an overview of the different types of fee simple ownership:
• Fee simple absolute: This form of fee simple ownership gives unrestricted rights to a property title in perpetuity. The property can be used, leased, sold, or transferred without any limitations other than liens, local zoning, or failure to pay property taxes. This type of fee simple ownership is the most common.
• Fee simple defeasible: This type of ownership comes with certain restrictions and conditions. As with fee simple absolute, owners can keep their property in perpetuity. But if conditions are violated, even after closing, the property could legally be transferred back to the seller or a designated third party. For example, fee simple defeasible could require that property remains as agricultural land. As you might imagine, if you are selling a property, this could affect how much a house is worth.
Rights and Responsibilities of Fee Simple Owners
Fee simple owners have considerable rights in how they use their property within the limits of zoning. Owners also have the right to lease, sell, improve, bequeath, or mortgage the property.
There are also responsibilities to be mindful of as a property owner. If you own a condo or apartment, for example, you typically have fee simple ownership of the individual unit. However, the owners may also be responsible for the upkeep of shared common areas, which often have restrictions on their use.
Fee Simple vs. Other Forms of Property Ownership
Fee simple is one of several forms of property ownership. Here are some other types of property ownership to keep in mind.
• Leasehold ownership: Whereas fee simple grants indefinite ownership, leasehold ownership is subject to the duration and terms set in a lease agreement. In a leasehold arrangement, landlords can set conditions on how a tenant uses the property, such as restricting pets in an apartment. When the lease ends, the lessee’s rights to use the property end.
• Life estate: This is a type of joint ownership that transfers a property to another person after the owner’s death. This allows an heir, or grantor, to receive the property without going through probate. The owner retains their full rights to use the property, but selling the property or mortgage refinancing would require the grantee’s approval.
Importance of Fee Simple in Real Estate Transactions
Buying a home or property is a major investment. It’s important to understand how fee simple impacts property value, financing, and the marketability to prospective homebuyers.
Generally speaking, fee simple ownership comes with higher property values than other forms of ownership, since there are fewer restrictions on how it’s used. Because owners have full control of the property, it also makes the homebuying process and commercial real estate transactions less complex. This reduced risk can help buyers secure financing and enhance a property’s appeal when it’s time to sell.
Limitations on Fee Simple Ownership
There are limitations to any type of property ownership, including fee simple. Fee simple ownership is subject to encumbrances — legal claims against a property from a party other than the owner. In other words, encumbrances impact an owner’s ability to use and transfer the property.
The main types of encumbrances to be aware of include: deed restrictions, easements, encroachments, and liens.
• Deed Restrictions: These are rules and restrictions on how a property can be used by the owner. They’re often used by homeowner’s associations (HOA) to limit how a property can be improved and used.
• Easements: This type of encumbrance grants land use rights or property access to a third party. For example, an easement can grant a neighbor access to a shared driveway.
• Encroachments: This occurs when a neighbor violates an owner’s property rights by putting up a structure that limits the full use of the property. A common example is building a fence that crosses a property line.
• Liens: This gives another party the right to seize a property for nonpayment of a debt. Examples include HOA fees, home mortgage loans, and property taxes.
Another potential limitation to note is eminent domain, which allows governments to claim private property if it’s considered necessary for public use. In the rare case of eminent domain, owners are compensated for the value of their property.
How to Obtain Fee Simple Ownership
To reiterate, fee simple ownership is the most common type of property ownership. Checking the deed is the most reliable way to confirm whether a property is fee simple or another type of ownership. Once you’ve ticked this off your to-do list you can get on to other things, like ordering up a home inspection and preparing your moving checklist.
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Fee Simple in Commercial Real Estate
Fee simple ownership applies to both residential and commercial real estate. Since fee simple is the highest form of ownership with the least restrictions, it can make obtaining financing easier for commercial properties. With fee simple ownership, keep in mind that local zoning dictates what commercial activities can take place at a specific property.
The Takeaway
It’s important to take note of any encumbrances that could impact how a property is used before getting to the closing table. If you’re in the market for a new home or investment property, keep in mind that fee simple ownership is the most common type of property ownership in the U.S. and fee simple ownership — specifically fee simple absolute ownership — grants the greatest level of control and rights over a property.
Unless you’re a realtor or building out a portfolio of properties, fee simple and other real estate terms may go beyond your needs. But understanding your rights with different types of homeownership can help inform your property search.
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FAQ
Is fee simple a good thing?
Yes, fee simple absolute (one of two types of fee simple property) gives unrestricted rights to a property title in perpetuity. The property can be used, leased, sold, or transferred without any limitations other than those imposed by liens, local zoning rules, and unpaid property taxes.
What are the restrictions on a fee simple property?
The only restrictions on a fee simple absolute property are those posed by local zoning rules — and of course any restrictions posed as a result of unpaid property taxes or mortgage debt, for example. Fee simple defeasible property has more restrictions. Specifically, the property could legally be transferred back to the seller or a designated third party if a pre-established rule of ownership isn’t followed. For example, a rule might specify that property be used for agricultural purposes.
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