In Defense of the Fee Simple

Katrina M. Wyman*

Prominent economically oriented legal academics are currently arguing that the fee simple, the dominant form of private landownership in the United States, is an inefficient way for society to allocate land. They maintain that the fee simple blocks transfers of land to higher value uses because it provides property owners with a perpetual monopoly. The critics propose that landownership be reformulated to enable private actors to forcibly purchase land from other private owners, similar to the way that governments can expropriate land for public uses using eminent domain. While recognizing the significance of the critique, this Article takes issue with it and defends the fee simple.

The Article makes two main points in defense of the fee simple.

First, addressing the critique on its own economic terms, the Article argues that the critics have not established that there is a robust economic argument for dispensing with the fee simple. The critique that the fee simple leads to the misallocation of land rests on three empirical premises for which the critics have yet to provide much evidence. The critique also downplays or overlooks important economic benefits of the fee simple.

Second, departing from the economic discourse of the critics, the Article argues that the fee simple is valuable because it gives landowners a perpetual right to choose, free from the dictates of others, whether to transfer their land. Thus the fee simple expands the choices of landowners and promotes their independence and autonomy. Eliminating the fee simple would leave landowners vulnerable to the whims of others, and less free and autonomous. Landownership is not only about efficiency, but also about individual freedom.

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© 2017 Katrina M. Wyman. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Sarah Herring Sorin Professor of Law, New York University School of Law. Thank you to Vicki Been, Anna di Robilant, Robert Ellickson, Lee Anne Fennell, Lewis Kornhauser, Yael Lifshitz, Cherie Metcalf, Jim Phillips, Eric Posner, Shitong Qiao, Richard Revesz, and Jeremy Waldron for comments and suggestions. This Article also benefitted from presentations at Queen’s University Faculty of Law in Kingston, Ontario; NYU School of Law; and the Association of Law, Property and Society conference in Ann Arbor, Michigan. Thank you to the editors of the Notre Dame Law Review for their editorial assistance, and to Kartik S. Madiraju and Alex St. Romain for superb research assistance. The Filomen D’Agostino and Max E. Greenberg Research Fund at New York University School of Law provided generous financial assistance.