Fee simple ownership guide

What is fee simple ownership?

When you buy or sell property, you might come across the term fee simple or fee simple absolute. Fee simple is the standard form of ownership in the world of real estate, granting the holder the title to the land and the stuff on it. It’s one of several types of property ownership in Canada, along with condo/strata, leasehold, and others. We’ll touch on leasehold ownership further down; click here for an explanation of strata and condo ownership.

“Fee simple ownership is the most prevalent type of common law estate,” says Vancouver-based realtor Haydn Eviston. “It is what most people think of when they speak of ‘owning’ land.”

“Fee simple is often referred to as freehold ownership,” he continues. “It is the highest form of property ownership as it has the fewest restrictions.”

How does fee simple ownership work?

Fee simple or freehold ownership in Canada has these important qualities:

1. The owner of the property is not restricted in their use of the property in any way, except by usual laws, bylaws, or building codes.
2. The ownership is for an indefinite duration; it does not expire.
3. The owner has the freedom to sell or grant their property to anyone else.

Number 3 includes appointing heirs to inherit the property when the owner dies. Not all types of ownership allow the owner to name an heir.

A life estate, for example, grants the owner full rights to the property for the duration of their life. After they pass away, however, the estate passes to whoever’s named in the will that granted the life estate in the first place; the life estate owner can’t pass it down to their own heirs. Life estates are uncommon in Canada, so don’t worry too much about them.

Back to fee simple ownership: When the property passes to an heir, they become the owner, with all the associated rights. They can develop, sell, or gift the property however they see fit.

Types of fee simple ownership

Fee simple absolute

Fee simple and fee simple absolute are effectively interchangeable. Fee simple absolute is the type of ownership we’ve talked about throughout the article: complete, no-restrictions ownership of property.

Almost all fee simple ownership in Canada is of the absolute variety.

Fee simple defeasible

Fee simple defeasible ownership is very similar, in that the owner has the right to do almost anything they wish with their property. However, fee simple defeasible ownership imposes certain conditions. If the conditions are broken, the owner can lose their right to the property, with ownership reverting to the original grantor or another party.

Fee simple defeasible ownership is divided into three subcategories, depending on the nature of the conditions:

• Fee simple subject to condition subsequent. Also known as right of reentry, fee simple subject to condition subsequent gives the grantor the option to take the property back if one or more conditions aren’t met.
• Fee simple determinable. This form of ownership automatically reverts back to the grantor once the conditions aren’t met. An example of this is the life estate — the inheritor of a life estate gets fee simple determinable ownership of that property. They have total ownership and can do whatever they want, but when the owner dies the property reverts back to the party that originally granted the life estate (or their heirs).
• Fee simple subject to executory limitation. This form is very similar to the previous one. However, instead of property reverting back to the grantor, it’s automatically transferred to a third party if any conditions are violated.

Remember, most real estate in Canada has a fee simple absolute title. Most home buyers don’t need to worry about these sub-types of ownership (and that’s what you have realtors and lawyers for, anyway).

What is the difference between a leasehold a fee simple property?

We’ve established what fee simple or freehold ownership is. What about leasehold ownership?

“In contrast [to freehold], leasehold is the opposite of fee simple in that the owners have complete access to the property but do not own the land,” says Eviston.

Leasehold ownership is also common in Canada. Undoubtedly, you’re familiar with signing a lease, whether it’s on an apartment, an office, or a car. When you lease a piece of property, you have leasehold ownership of that property.

A lease is where the property’s owner (the lessor) enters into an agreement with someone else (the lessee) to let them use the property for a set period of time. Normally, this agreement involves the lessee paying the lessor for the use of their property — we sometimes call these payments “rent.”

The lessee can use the property for the duration of the lease. They don’t have fee simple ownership, so they can’t sell the property or give it away, but they can generally modify the property to suit their needs (depending on the terms of the lease).

Basically, they have limited ownership of the property for the duration of the lease agreement.

Once the lease agreement ends, the property returns to the owner/lessor. If the lessee made any modifications to the property during the lease, the owner gets those as well. For example, if you lease a plot of land and build a workshop on it, the property’s owner would take possession of the workshop once the lease is up.

There are a few common terms associated with leasehold ownership that are worth knowing:

Leasehold terms

• Lease term: The period that the lease agreement lasts. The lease for an apartment is commonly 1 year, while the lease for a commercial building may be 10-20 years. Lease agreements often give the lessee the option to extend the lease after it expires.
• Lease rent: The compensation paid by the lessee in exchange for the use of the property.
• Fixed period: A lease that expires after a set period. Residential leases are often fixed for a period of one year, after which they revert to month-to-month, indefinite leases.
• Renegotiation date: Leases, especially long ones, may have specified dates after which the lease rent can be re-negotiated. For example, a 20-year lease might allow the lessor and lessee to re-negotiate the rent every 5 years.
• Reversion: When the leased property returns to the owner after expiry of the lease. During the lease, the owner has a “reversionary interest” in the property, meaning the property will revert to them at a future date.
• Surrender: When the lessee gives up possession of the property to the owner. This requires agreement between both parties, as the lessee can’t break a lease before the lease term is up without permission from the property’s owner.
• Leased fee interest: Basically, another way of saying someone has leasehold ownership is to say they have “leased fee interest” in the property. The “fee” is the right to the property, and the lessee is leasing that fee from the owner.

How does fee simple ownership work with home insurance?

The type of home insurance policy that one buys does change depending on the type of ownership. However, the occupation of the property is also a key factor.

If the owner of a freehold property lives there themselves, they’d buy a homeowner’s policy. If they rent it out to others, they’d buy a landlord insurance policy and their tenant would buy a tenant insurance policy.

When it comes to leasehold property, most leased residential properties are ready-to-live-in homes, like apartments or townhouses. There aren’t many people who lease empty land to live on and build their own house.

Accordingly, most people who lease their homes need tenant insurance policies as well. They don’t own the building they live in, so they don’t need to insure it — their landlord (the freehold owner) does.

Finally, condo owners need condo insurance policies. Condo insurance policies have features unique to condo ownership, mainly that they’re meant to work with the condo corporation’s master insurance policy.

If you’re unsure about what type of insurance you need for your home, get in touch with your insurance provider. They’ll be happy to help you figure out the best policy for your ownership and occupation status.

Where does the term “fee simple” come from?

The “fee” in fee simple doesn’t have anything to do with money. In this case, “fee” comes from the word “fief,” which you may remember from high school history class.

In feudal societies like medieval England, a lord or monarch could grant land to others in exchange for services given or pledged. These land holdings were called fiefs, and they were the only way someone other than the Crown (the ruling monarch) could own land.

In modern times, landowners can sell or grant their land to whomever they wish. But, since Canada’s laws were born from British common law, our legal system is full of vintage terms that originate from feudalism — like fee simple.

If you have fee simple ownership, it means the property is yours to do with as you wish. Your only obligations are to obey the law (including zoning laws and building codes) and pay your taxes and debts.

“Although land [in Canada] is technically owned by the Crown (that’s why we pay property taxes), the holder of fee simple property can use the land, exclude others from it, and dispose of it,” says Eviston.

Commonly asked questions

Is fee simple always best?

“Best” is a matter of one’s personal viewpoint.

“Freehold ownership offers you more than just a depreciating asset (the building); it gives you the land as well,” says Eviston. “Which is where the majority of value is when it comes to Vancouver real estate.”

So, while it may be true that fee simple ownership is the best in terms of holding the most value to the owner, there are situations where someone might not consider that important.

For example, if you live in a major city, you may not be able to afford to buy a freehold property.

Many people don’t own property at all; in famously-expensive Vancouver, for example, more than half of households are rental properties.

Are condos fee simple?

Condo ownership is not quite the same as fee simple ownership. It’s similar, but because condos are restricted by strata bylaws, they aren’t considered fee simple properties. You can still modify, sell, or lease your condo, but anything you do with it has to adhere to your strata council’s bylaws.

As well, condo ownership includes shared property with the other owners in the condo building — hallways, elevators, parking lots, and so forth.

However, there are some properties in Canada known as freehold condos. Many of these are fee simple townhouses, in which the owners do own the building and land in addition to some common property shared with neighbours.

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