Urbanization has dramatically altered the way in which land generates and forfeits value. The dominant economic significance of patterns of land use and the opportunity costs of foregone complementarities have made the capacity to reconfigure urban property essentially. Yet the architecture of our workhorse tenure form—the fee simple—is ill-suited to meet these challenges. The fee simple grants a perpetual monopoly on a piece of physical space—an ideal strategy when temporal spillovers loom large, interdependence among parcels is low, most value is produced within the four corners of the property and cross-boundary externalities come in forms that governance strategies can readily reach. But times have changed. Categories of externalities that were once properly ignored by the fee simple have become too important to continue neglecting. This paper argues for alternative tenure forms that would move away from the endless duration and physical rootedness of the fee simple.

Nearly all privately owned real estate in the United States is held in fee simple absolute, or fee simple (FS) for short. Every law student learns that the FS is the most extensive of all the estates in land endless in duration, unencumbered by future interests, alienable, bequeathable, and inheritable. Behind these descriptive elements lies the implicit normative message that the FS represents the endpoint of real property’s evolution, a more or less final answer to the question of how a modern society should structure access to land.  This paper challenges that message. Property is a mechanism for delivering access to resources. The FS embodies a particular way of packaging and characterizing that access, one that resonates with a “thing-based” property paradigm.