base fee

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.

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)