Under the English common law system, fee simple is a term used for estate in land and may be referred to as fee simple absolute. It is a type of freehold ownership and a method for real estate to be owned within countries with common law systems. Additionally, it provides the highest ownership of interest possible which may be held within real property. In regions under civil law systems, an allodial title is reserved for the government. Meanwhile, a fee simple provides ownership rights which are limited by government power of compulsory purchases, taxation, escheat, and police power. Furthermore, a fee simple estate in land may be limited even more by specific conditions or encumbrances within a deed, for instance conditions which require land to be used for the purpose of a public park, and if the condition is broke, the interest reverts back to the grantor. This is known as a fee simple conditional.
The wording ‘fee’ originated from the word ‘fief’, which translates to feudal landholding. Various varieties of feudal land tenures existed throughout history, with the majority of them involving a tenant being required to supply the overlord some service, such as that of knight services (military). In the circumstance of the overlord also being King Grand Jerjeanty, various services may have been required, including giving horses during a war, or taking role as the King’s ceremonial butler.
It was these fiefs which resulted in the increase of complex relations between tenant and landlords that we have today. Additionally, the duties are required on both sides. For instance, for obtaining the tenants homage or fealty, in return an overload would have the responsibility of protecting the tenant. Therefore, when feudal land tenures were finally eliminated, all of the fiefs had converted into the ‘simple’ laws that we have today, without conditions being attached to tenancy.
The Crown has allodium or radical title for all land within England according to English common law, therefore, the Crown is the ultimate land owner. Although, ownership may be granted by the Crown within an abstract entity, known as estate in land, involving that which is owned instead of land that is represented.
Fee simple estates may be referred to as a “fee-simple title” or “estate in fee simple”, and occasionally called “freehold” within Wales and England. Since feudalism had been introduced in England during the Norman period, a ‘holder’ or tenant of the fief was unable to sell (alienate) the property from the overlord’s possession. Although, tenants had the ability to divide parcels of land and then grant part of the land as subordinate fief to a sub-tenant. This process is referred to as subinfeudation or sub-enfeoffing.
In 1290, subinfeudation was abolished by Statute of Quia Emptores, rather the sale for fee simple estates were allowed.
Henderson, Ernest F. Select Historical Documents of the Middle Ages, (London: George Bell and Sons, 1910), 149–150. Excerpt retrieved 2007-10-31