75 Am. U. L. Rev. 1457 (2026).

Abstract

The ideal of American fee simple property rests on a popular misconception. Many Americans often think of fee simple property in terms of absolute ownership. In reality, however, fee simple title has many similar features of a “public” leasehold in practice, which has significant implications for understanding the relationship of private property “owners” to the state. The American state, at all levels, effectively serves as a landlord over private property “owners,” mirroring the traditional role of the king in feudal England.

The American Revolution is often framed as a sea change in property rights and individual liberty. But efforts to entrench fee simple property rights during the Founding and Framing gave way to an erosion of property rights protections. Instead, remarkable continuity over time exists in the functional tenant relationship between private property owners and the state throughout English and American history.

From America’s founding, several features of property law, such as property taxes, have underscored the existence of a “Leasehold World.” Yet the rise of the modern administrative state has morphed the boundaries of ownership and created layers of public limits on private ownership that echo leasehold limitations. As a result, the American property regime has moved away from the Founders’ and Framers’ liberty-based conception of property rights and toward a system of “public leaseholds” that subordinates those rights to public policy interests and extensive regulation. This Article argues that the pendulum has swung too far towards the erosion of fee simple interests. Private property owners should either receive greater procedural safeguards as tenants of the state or greater insulation from government interference as owners.

* Professor of Law, George Washington University Law School. I want to thank Arjit Roshan for his exceptional research assistance.