The Four Rights of Fee Simple

Fee simple grants to the owner four rights in land. They consist of the right of disposition, the right of use, the right of possession, and the right of exclusion.

The right of disposition is as it sounds, namely the ability of the fee simple owner to sell and convey the property in question. As noted by another Indiana case: “A man is prohibited from violating the law of the land by his will, as fully as by his deed; but he is at liberty to dispose of his property as he pleases, if in so doing he violates no law.”^[1]

The second right inherent in fee simple absolute is the “right of use.” Similarly to the right of disposition, this right is simply the right to use the land as the owner wishes. In Indiana, cases have stated the right as follows:

An owner of land has the right to occupy and improve it in such manner and for such purposes as he may see fit including changing the surface or by erecting buildings thereon.^[2]

The third right inherent in fee simple absolute is called the “right of possession.” In essence, this means that the person with fee simple not only has ownership of the property, but the current right to be on the property. An Indiana case states:

[A]ppellants executed and delivered a warranty deed conveying to appellees the fee simple title of appellants to the real estate. At that point in the evidence, appellees stood with a prima facie good title to the real estate and the presumptive right of possession.^[3]

In other words, the person with fee simple absolute title is also presumed to be the person who has the right to be on the land.

Finally, the person with the right of possession is also the person with the right to eject others off the land; in other words, the “right of exclusion.” This means that the property owner may choose who to permit on the land and who to keep off the land. I apologize for the longish quote from this case, but it is very interesting:

One of the time-honored principles of property law is the absolute and unconditional right of private property owners to exclude from their domain those entering without permission. “[T]he proprietor of a theater, unlike a carrier of passengers, is engaged in a strictly private business. He is under no implied obligation to serve the public and ... is under no duty to admit everyone who may apply and be willing to pay for a ticket. This long-standing principle of property law has been frequently reaffirmed, subject only to statutorily imposed prohibitions on exclusions for characteristics such as race and religion.^[4]

With “fee simple” and its four characteristics in mind, we turn to looking at how property may be held by one or more people.

[1] McCray v. Lipp, 35 Ind. 116, 119 (1871)

[2] Long v. IVC Indus. Coatings, Inc., 908 N.E.2d 697, 702 (Ind. Ct. App. 2009)

[3] Pringle v. Broadstreet, 154 N.E.2d 413, 420 (Ind. Ct. App. 1958)

[4] Donovan v. Grand Victoria Casino & Resort, L.P., 934 N.E.2d 1111, 1113 (Ind. 2010) (internal citations omitted)