A Natural Flow Of Water That Runs Through Land The Characteristics of the Fee Simple in Real Estate Law

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The Characteristics of the Fee Simple in Real Estate Law

The Fee Simple is the most ample Jamaica real estate known to law; it is the most ample because it is likely to last the longest and because it gives to its owner the widest powers of enjoyment of the land. Consequently if we take the powers of fee simple owner as a datum line we shall be able to see how far the powers of the owners other freehold estates and interests fall short of this.

What powers of enjoyment has the fee simple owner? Broadly, his powers may be considered as of two kinds – his rights of enjoying the land as he pleases and his rights of alienation, or passing the land or houses for sale in Mandeville Jamaica on to others, as he may desire. In theory both these powers are enjoyed to an unlimited extent by the fee simple owner, but in practice there limitations on both.

Rights to enjoying Jamaica Property And Land

The rights which a fee simple owner has to enjoy the Jamaican land may be considered under two headings: what he is entitled to enjoy and how he is entitled to enjoy it.

(a) Subject matter of enjoyment – Theoretically the owner of the fee simple in land enjoys everything on the land, beneath it and above it. The Latin maxim – “oujus est solum ejus usque ad caelum et ad inferos”, meaning, whoever owns the soil owns also everything up to heaven and down to hell. Thus the owner is entitled generally to everything found on or under his land which has no other owner “treasure trove,” however, belongs to Crown as do gold and silver ores wherever found. The Jamaica landowner is also entitled to the use of the airspace above his land, though the air space does not belong to him since air is incapable of ownership. There are certain things, too, which even though found on land, do not belong to the landowner; such things come within the category of res nullius or “things belonging to nobody”, and include air.

(b) Method of enjoyment – Although a fee simple owner can do practically anything he likes with his land he must always show consideration for the rights of others. At Common Law a fee simple owner may do anything he pleases on his land so long as he does not thereby interfere with any legal right enjoyed by any other person. This rule is embodied in the maxim sic utere tuo ut elienum non laedas (so use your own Jamaica property that you do not injure that of others). If for instance a landowner deposits some material on his land which gives off a smell offensive to his neighbors he may be interfering with his neighbor’s rights to the ordinary enjoyment of their land: if this is so then he has committed a “nuisance” and may be restrained by injunction.

In addition to this curtailment of the landowner’s absolute powers of enjoyment, his powers may be restricted by virtue of estates or interests which have been granted by him or his predecessors in title, or by contracts of one kind or another such as licenses or restrictive covenants.

Apart from restrictions imposed by the two rules above mentioned, the landowner can at common Law, do what he pleases. Various statutes however, particularly in recent times, have very severely restricted the landowner’s powers of enjoyment.

Natural rights of a fee simple owner

There are certain rights which belong to the property owner simply because he is the owner of the land: these are sometimes called “natural rights” to distinguish them from a large number of rather similar rights, like easements, which may be acquired by the landowner in addition to his natural rights. The most important natural rights are:

(a) Air: The right to receive any flow of air to the premises in an unpolluted state. A landowner is not entitled to the flow of air to his land and any neighbor who prevents the air from flowing, say, to blow smoke away from a chimney-pot is not interfering with any right of the landowner. But if air does flow the owner is entitled to have it unpolluted. Precedent for this existed with respect to houses for sale in Montego Bay Jamaica, construction polluted the air with dust and caused several problems for neighboring residents.

(b) Water:

(i) the sole right to fish in water on his land

(ii) the right to receive the accustomed flow of water in any natural stream on his land and to receive it unpolluted.

(iii) the right to use a reasonable quantity of the water flowing in any natural stream on his land subject to the right of owners lower down the stream to receive the accustomed flow.

(c) Support: The right to have his land, in its natural state, supported by the land of his neighbor; this natural right does not extend to buildings put upon the land. If A’s neighbor, B digs a pit on his own land which results in A’s land collapsing into the hole this is an interference with A’s natural right of support.

These natural rights are part of the bundle of rights which make up the fee simple estates. They are not rights which must be acquired from other Jamaica real estate owners as are easements and other incorporeal hereditaments.

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