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base fee

As defined and explained in realestatedefined.com

1.(Eng)An estate in land that arises when the holder of an entailed estate, who is not in possession, or has not obtained the consent of the protector of the estate, executes a disentailing assurance (i.e. any conveyance or transfer of a fee simple estate), thereby seeking to bar the rights of succession. In that event, the recipient of the estate receives a ‘base fee’. Thus, it is a fee simple that will not pass the recipient’s own issue (as they are ‘barred’), but could still pass to other successors if the issue of the holder of the estate fail. In other words, a base fee would be an absolute estate in fee simple, except that the holder of that estate risks the possibility that the person who is entitled to the immediate remainder (or, if he is dead, the person entitled to his estate) may be entitled to regain the fee simple. In English statute law, a base fee is defined as “that estate in fee simple into which an estate in tail [entailed estate] is converted where the issues in tail are barred, but persons claiming estates by way of remainder or otherwise are not barred”, Fines and Recoveries Act 1833, s. 1. One means by which a base fee may come into existence may be illustrated by an example: assume an interest in land is held by A for his life, and then the estate has been granted to B as an entailed interest (e.g. to B and ‘the heirs of his body’), and then to C in tail, but, if C has no issue, to B in fee simple. Then if B disposes of his entailed interest to X, X’s interest would last only until B dies; but if B has ‘disentailed’ his heir (i.e. defeats the claims of his heirs, or any other person claiming a right to an estate in the land) without A’s consent, then X would receive a base fee. (A is generally the ‘protector of the estate’ as, in essence, that is his function). X’s base fee continues as long as B has living descendants, and the estate then passes to C—the greater the number of heirs of B the nearer X’s interest approaches a fee simple. If A’s consent to the disentailing had been, or is at a later date obtained, or A dies before B, the interest may be enlarged into a fee simple by B executing a new disentailing assurance and thereby depriving C of an interest he might have hoped would ultimately come into his possession (Fines and Recoveries Act 1833, ss. 34–49; Law of Property Act 1925, s. 176). A base fee may be enlarged into a fee simple by (i) the tenant in tail in remainder executing a new disentailing deed, i.e. a declaration by B that he holds a fee simple rather than an entailed interest, either with the consent of the protector of the protector or after the protectorship has ceased (e.g. after the death of A) (FRA 1883, ss. 19, 35); (ii) the base fee and the fee simple absolute in remainder being united in the same person, as by B (or any one to whom he has conveyed his base fee) acquiring C’s fee simple interest (FRA 1883, s. 39); or (iii) in certain circumstances, by a grant by will by B, provided he is in possession of the land—the grantee receiving a fee simple in a similar way as if B had made a disentailing deed (Law of Property Act 1925, s. 176(1)(3)).  See also determinable fee, qualified fee, strict settlement.

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bibliographic references:

Cheshire and Burn's Modern Law of Real Propertyem> (17th ed. Oxford: 2006), pp. 498–9.
Megarry & Wade: The Law of Real Propertyem> (7th ed. London: 2008), § 3–7078.
39 Halsbury's Laws of England, Real Property (4th ed. not Reissue), §§ 449–54.

2.(US)A fee interest in land that may last forever, but must come to an end on the occurrence of some event or act specified when the interest is created. An estate in land that is less than a fee simple absolute because it must come to an end, without a conveyance, on the happening of a contingent event or on the occurrence of a qualifying condition annexed to the estate that is intended to bring it to an end. In general, a base fee is any fee estate that is not assured of lasting forever, i.e. it is a qualified fee and it is the uncertainty as to when or if the estate will come to an end that makes the interest a base fee and not an absolute fee simple (Scobey v. Beckman, 111 Ind App 574, 41 N.E.2d 847, 850 (1942)). An estate granted to a person and his heirs with a condition attached that provides that the estate will come to an end and revert to the grantor (or his heirs or estate) upon the occurrence of a qualifying event, e.g. “to A and his heirs until he marries”. However, such an interest is still a fee and may last forever if the qualifying event does not happen. ‘Base fee’ may also be used to refer to any estate that has a qualification attached to it: whether it is a conditional fee (or a ‘fee simple defeasible upon condition subsequent’ or a ‘defeasible fee’); or a ‘qualified fee’, also called a determinable fee. However, more strictly speaking, ‘base fee’ is used to refer to the latter: “generally the terms ‘limited’, ‘determinable’, ‘qualified’, or ‘base’ fee, as applied to title to real estate are used synonymously”, United States v. Union Pacific R. Co., 230 F.2d 690, 694 (10th Cir. Wyo 1956). In The American Law Institute’s Restatement of Property, the term ‘base fee’ is considered to have “no meaning which requires its use in a Restatement of American Law”, Ch. 4, Introductory Note: Special Note; the term being only applicable to the estate created “when a tenant in tail levied a fine purporting to pass an estate in fee simple absolute” (see 1. above).

bibliographic references:

31 Cor.Jur.Sec., Estates (St. Paul, MN), § 14.


3.(Eng)A form of feudal land tenure by which the 'tenant' held land at the will of the lord of the manor in return for base services, i.e. villeinage. Also called 'base tenure' or a sometimes a 'base estate'.

Terms in bold are defined elsewhere in the Encyclopedia.
Further explanation of the style of reference material is provided in the User Guide (available to subscribers)

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