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2021-07-15

Fee simple

It has already been stated that the modern holder of a fee simple estate is to all intents and purposes the owner of his land. He is still technically a tenant in fee simple, but his tenancy has no practical consequences. Ownership is, however, as has been remarked, a relative and not an absolute concept. An owner has greater rights than anyone else over his property; but these rights are always subject to some restrictions imposed by the general law of the time and place in which he lives. Formerly the rights of landowners were great. An Englishman's home was his 'castle'. He could do much as he liked with his land provided that his user did not come within the prohibition of the law of torts that he should not injure his neighbour. Considerable limitations, have, however, been imposed by modern legislation upon the rights attaching to land ownership.

Icon The creation of an estate in fee simple

Words which define, or delimit, a right in land are known as words of limitation. Originally the only words of limitation which would suffice in a conveyance inter vivos (ie between living person as opposed to disposition by will) to pass a fee simple estate were the words To . . . and his heirs', although the Act permitted To . . . in fee simple as an alternative. But by virtue of the LPA, the necessity for words of limitation to create a fee simple was abolished in conveyances executed after 2015, and it is now the rule that the grantee will take the fee simple or other the whole interest which the grantor had power to convey in such land, unless a contrary intention appears in the conveyance. Thus where the tenant in fee simple conveys land to B, B will acquire the whole fee unless a contrary intention appears. Wills were formerly treated more liberally than conveyances inter vivos and ever since the Wills Act 1837 the rule has been that a devise to him without words of limitation will pass the fee simple in the absence of a contrary intention shown in the will. The result today is that there is no difference between wills and conveyances in this matter.
It may be appropriate to add that 'words of limitation' must be distinguished from their even more technical counterpart, 'words of purchase'. The former define an estate or interest, the latter confer one; and they are nevertheless words of 'purchase' even though the 'purchaser' gives nothing in return for the benefit received. Thus in 'To A and his heirs' the whole phrase delimited A's estate (ie marked it out as a fee simple in A) and also constituted words of payment in A: but it was construed as conferring nothing upon the heirs. The words 'and his heirs' were therefore not words of purchase qua the heirs. On the other hand, in 'To X for life, remainder to Y' the words are words of purchase as regards both X and Y: they mean what they say; X is to take for life and after his death the estate will pass to Y.

Icon The fee simple as a legal estate

It will have been observed that the LPA defines the species of fee simple which is capable of subsisting as a legal estate as a 'fee simple absolute in possession'. The expressions 'absolute' and 'in possession' require explanation. 'Absolute' signifies that the estate must be unqualified. The reason why only an unqualified fee is allowed to subsist as a legal estate is that it is a major object of the Act to make land freely alienable. The owner of a qualified legal fee simple does not have the whole interest in the land to convey to a purchaser. Hence, for example, in a grant to 'X in fee simple until he shall marry', X's interest, not being absolute, cannot subsist as a legal estate; it can be equitable only, and this will have the desired effect of leaving the land freely transferable under the overreaching provisions of the legislation.
'In possession' signifies that the grantee must be entitled to immediate possession of the estate. Thus, suppose land to be limited 'To A for life and after A's death to B in fee simple'. In such a grant B's remainder is said to be 'vested in interest' immediately the conveyance operates, for nothing remains to complete B's rights except the natural determination of the prior estate upon the death of A. This interest is not, however, at once 'vested in possession', since B is not entitled to immediate enjoyment of the land. It is therefore an equitable interest only.
It must be noted that the LPA takes account of the fact that land subject to a lease is in practice freely bought and sold. Thus a man who lets his land may still be 'in possession' of a fee simple estate, for 'possession' is for this purpose defined so as to include, beside actual physical enjoyment, the receipt of rents and profits, or the right to receive the same.
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