Do you know the difference between leased fee and fee simple?

If the world of commercial appraisals had a dictionary of terms, we’re confident it would be pretty thick. We’ve covered some of the basic terminology in the past, but sometimes, it’s helpful to break down specific phrases even further, especially when regulatory compliance is involved. Today, we’re deep-diving into leased fee versus fee simple. Not only are these two terms ones that should be differentiated, but they’re also two terms that your regulator cares about.

What does leased fee mean?

In the simplest terms, the leased fee is a landlord’s right of use of property and the right to lease to others. For example, let’s say your client owns an office building and is the landlord to several office tenants under standard office leases. The tenants occupy the building. The landlord, in general, does not. It might be common in real estate circles to say that your borrower owns the “fee,” and that the handful of tenants that occupy the building own a “leasehold” interest which is a fancy way of saying they rent space.

What does fee simple mean?

Fee simple, on the other hand, is an unencumbered ownership right in a piece of property. Essentially, fee simple has the same definition as ownership. Fee simple is the most complete form of ownership in that the buyer owns the title for the property. In the example above, the landlord owns the fee simple.

When can the two terms get muddled?

The terms can become muddled when you order an appraisal. Let’s start with a pop quiz: When you are ordering an appraisal, how should you ask the appraiser to determine the property value? Should it be appraised as a leased fee or a fee simple? The answer may surprise you. You might be tempted to order the appraisal as a fee simple. After all, the landlord owns the property. However, ordering an appraisal as fee simple will give the appraiser the idea that they should research what the property would be leased for if it were leased today. In valuing the property under the income approach, the appraiser will perform market research and use techniques and comparables to determine the market rent. Then, the appraiser will use that market rent to value the building without taking the current leases into consideration.

Here’s where there can be some issues: Unless it’s a new property, chances are the office building’s tenants signed long-term leases with rock-solid rental fees, and they probably signed their leases years ago. Regardless of today’s booming real estate market, if the appraisal is completed with fee simple terms, the appraiser’s findings about the “market rent” don’t bear a resemblance to the cash flow that’s actually coming in based on the specific terms of those leases. If you want the appraiser to dig through the terms of those leases and use actual numbers in the income approach, then you need to order your appraisal as leased fee.

What if I order an appraisal the wrong way?

In most cases, it’s just a misunderstanding. But keep in mind, getting this wrong can cost time and money to correct. If you order a fee simple appraisal, the appraiser may not think to ask you about leases and rent rolls. He may assume there isn’t a lease in place. The appraiser may have to go back and review leases and rework his income analysis. Save yourself time and money, and order the appraisal correctly the first time.

Why does your regulator care?

When you’re dealing with a property with below-market rents, it might be tempting to view this distinction as an opportunity to influence value. However, if you order a fee simple appraisal, you could take advantage of the market rents even though your borrower’s locked into below-market rents. While it might sound tempting, trust us when we recommend to not do that. Regulators require that appraisers report appropriate deductions and discounts, and that includes, specifically, for properties with below-market rents. In a nutshell, your regulator is paying attention, so you should too.

Avoid any mishaps with banking regulations by making a distinction between leased fee and fee simple from the get-go. Not only will you save yourself valuable time (and money) on the front end, but you’ll rest easy knowing you’re doing the right thing appraisal after appraisal. Join our mailing list for even more insider tips, red flags, and scoop on all things appraisal management.