2.1 Estates, Ownership Forms, Rights, and Interests
Key Takeaways
- Fee simple absolute is the most complete estate; defeasible fees end on a condition (determinable = automatic reverter; condition subsequent = right of re-entry).
- A life estate ends at the measuring life; remaining title goes to a remainderman or reverts to the grantor.
- Joint tenancy needs the four unities (Time, Title, Interest, Possession) and carries survivorship; tenancy in common is the unmarried default with no survivorship.
- Tenancy by the entirety adds the unity of marriage and protects spousal property from unilateral conveyance.
- Encumbrances (liens, easements, encroachments) burden title without being ownership; tax liens take priority and appurtenant easements run with the land.
An estate is the degree, quantity, nature, and extent of a person's interest in land. The first split the exam tests is between freehold estates (ownership of indefinite duration) and leasehold estates (a tenant's possessory interest for a stated term). This section covers freehold estates and the concurrent-ownership forms; leaseholds are covered with landlord-tenant material.
Freehold Estates
All freehold estates trace back to the most complete form and step down from there.
- Fee simple absolute is the highest, most complete ownership: indefinite duration, fully inheritable, and freely transferable. When an exam fact pattern gives no limiting condition, assume fee simple absolute.
- Defeasible fees are fee estates that can be lost if a stated condition occurs.
- Life estates last only for the duration of a measuring life.
Defeasible Fees
Two defeasible fees are tested, and the difference is how the estate ends.
- Fee simple determinable ends automatically when a stated condition is violated. The signal language is durational: "so long as," "while," or "during." Title reverts to the grantor through a possibility of reverter.
- Fee simple subject to a condition subsequent does not end automatically; the grantor must act to retake the property. The signal language is conditional: "but if," "provided that," or "on condition that." The grantor holds a right of re-entry (power of termination).
Memory hook: determinable = durational language = automatic reverter; condition subsequent = conditional language = grantor must re-enter.
Life Estates
A life estate grants ownership for the duration of a designated life, then passes on.
- The life tenant may use and profit from the property but must avoid waste (damage that harms the future interest).
- When the measuring life ends, title passes to the remainderman if a third party is named, or reverts to the grantor (a reversion) if no remainderman is named.
- An estate pur autre vie is measured by the life of someone other than the life tenant.
A related concept is the legal life estate created by law, such as a homestead, or historic dower and curtesy spousal rights (largely replaced by statutory elective shares today).
A deed conveys land 'to the City of Bangor so long as it is used as a public park.' If the city later stops using it as a park, what happens to the title?
Concurrent Ownership (Co-Ownership)
When two or more people own the same property at the same time, the central exam issue is the right of survivorship.
- Tenancy in common (TIC) is the default form for unmarried co-owners. Each owner holds an undivided fractional interest that can differ in size, may be transferred or willed independently, and carries no survivorship. A deceased co-owner's share passes to their heirs.
- Joint tenancy carries the right of survivorship: when one joint tenant dies, the surviving joint tenants absorb the share automatically, bypassing probate. It requires the four unities.
- Tenancy by the entirety is a joint tenancy between spouses with an added unity of marriage, protecting marital property from one spouse's unilateral conveyance or creditors of the other.
The Four Unities and Severance
Joint tenancy requires the four unities, remembered as T-TIP:
| Unity | Requirement |
|---|---|
| Time | All owners take title at the same moment |
| Title | All take through the same deed or instrument |
| Interest | All hold equal fractional interests |
| Possession | All have an undivided right to the whole |
If any unity is broken, the joint tenancy is severed and becomes a tenancy in common for that share. For example, if one of three joint tenants sells their interest, the buyer becomes a tenant in common while the other two remain joint tenants with each other.
Partition is the legal remedy a co-owner uses to divide the property (in kind) or force its sale when co-owners cannot agree.
Other Ownership Vehicles and Encumbrances
Property may also be held in an ownership-in-severalty (one owner alone), in a land trust, by a partnership or corporation, or as a condominium (individual unit plus a share of common elements) or cooperative (shares in a corporation that owns the building plus a proprietary lease).
Finally, distinguish ownership from encumbrances, which burden title without being ownership:
- Liens are monetary claims; property tax liens take priority over earlier-recorded private liens.
- Easements grant a use right; an easement appurtenant runs with the land.
- Encroachments are unauthorized physical intrusions onto a neighbor's parcel.
Classifying the fact pattern correctly (estate vs. co-ownership vs. encumbrance) is the skill the exam rewards on this topic.
Three siblings own a cabin as joint tenants with right of survivorship. One sibling sells her one-third interest to an outside buyer. How is title held afterward?