11.1 Property Rights & Estates
Key Takeaways
- Real property is land and anything permanently attached to it; personal property is everything else, and a fixture starts as personal property but becomes real property when annexed
- The fee simple absolute is the largest freehold estate — it is freely transferable, inheritable, and potentially perpetual, while a life estate ends at the death of the measuring life
- Defeasible estates come in three flavors: fee simple determinable (automatic reverter), fee simple subject to condition subsequent (right of entry), and fee simple subject to an executory limitation (automatic shift to a third party)
- Joint tenancy requires the four unities — time, title, interest, and possession — and carries the right of survivorship; tenancy in common has no survivorship and requires only the unity of possession
- Roughly nine states follow community property, which generally treats property acquired during marriage as owned equally by both spouses
Real estate is one of the ten Knowledge Exam domains on the NALA Certified Paralegal (CP) exam (Real Estate and Property — 8 points under the Effective 2024 specifications), and it rewards rule memorization more than nuance. Most property questions turn on classic common-law definitions, so learn the vocabulary cold.
Real vs. Personal Property
Real property is land, the air above it, the subsurface below it (including mineral rights), and anything permanently attached to it — buildings, fences, and fixtures. Personal property (also called chattel) is everything else: furniture, vehicles, and intangible rights such as stocks and patents.
The exam loves fixtures. A fixture is an item of personal property so permanently attached to real estate that it becomes part of the realty — a chandelier wired into the ceiling is a fixture; a floor lamp is not. Courts apply tests of annexation, adaptation, and intention. This matters practically: fixtures pass with the deed at closing, so a paralegal drafting a purchase agreement should list disputed items (appliances, built-in shelving) expressly. Closely related: an emblement is a growing annual crop — the tenant who planted it may return to harvest it even after the tenancy ends.
Freehold Estates
A freehold estate is ownership of real property for an uncertain duration.
- Fee simple absolute — the most complete ownership recognized by law. It is freely transferable during life, passes by will or intestacy at death, and is potentially perpetual. If a deed says only "to A," the modern presumption is fee simple absolute.
- Defeasible estates — ownership that can end on the occurrence of a stated event:
- Fee simple determinable ("to A so long as the land is used for a school") ends automatically when the condition is broken; the grantor holds a possibility of reverter.
- Fee simple subject to condition subsequent ("to A, but if liquor is ever sold, the grantor may reenter") does not end automatically; the grantor holds a right of entry (power of termination) and must act on it.
- Fee simple subject to an executory limitation ("to A, but if A ever mortgages the land, then to B") shifts the estate automatically to a third party, who holds an executory interest.
- Life estate — ownership measured by a life. "To A for life" gives A a life estate measured by A's own life; "to A for the life of B" gives A a life estate pur autre vie, measured by B's life. The life tenant must not commit waste (affirmative or permissive damage that harms the future interest holder).
Future Interests
Future interests travel with the present estate:
| Future Interest | Held By | Follows |
|---|---|---|
| Reversion | Grantor | Life estate or lease, when nothing else is conveyed |
| Possibility of reverter | Grantor | Fee simple determinable |
| Right of entry | Grantor | Fee simple subject to condition subsequent |
| Remainder (vested or contingent) | Third party | Life estate (or other short estate) named in the same grant |
| Executory interest | Third party | Defeasible fee, by divesting or springing shift |
Exam trap: a remainder can only follow an estate that ends naturally (a life estate); it can never divest a fee simple. An interest that cuts a fee short is always an executory interest.
Language Cues on the Exam
Duration language identifies the estate. "So long as," "while," "during," and "until" signal a fee simple determinable (automatic termination). "On condition that," "provided that," and "but if ... the grantor may reenter" signal a fee simple subject to condition subsequent (the grantor must act). When the condition language names a third party as the next taker ("but if X, then to B"), it is a fee simple subject to an executory limitation. Exam questions also test waste: the life tenant must preserve the property for the remainderman — voluntary acts like demolishing structures (affirmative waste) and failures like letting the roof collapse (permissive waste) both create liability.
Concurrent Ownership
- Tenancy in common — the default co-tenancy. Each co-tenant owns an undivided fractional share, interests may be unequal, each share is freely transferable and inheritable, and there is no right of survivorship. Only the unity of possession is required.
- Joint tenancy — requires the four unities: time, title, interest, and possession (co-owners acquire equal interests at the same time, in the same instrument, with equal rights to possess the whole). Its hallmark is the right of survivorship: a deceased joint tenant's share passes automatically to the surviving joint tenants, outside probate. A joint tenant can secretly destroy the survivorship by conveying her share — a severance that converts her share into a tenancy in common.
- Tenancy by the entirety — joint tenancy between spouses, available in about half the states. Neither spouse can sever alone, and a creditor of only one spouse generally cannot reach the property.
- Community property — followed in roughly nine states (including California, Texas, and Arizona). Property acquired during marriage by either spouse's labor is owned one-half by each; property acquired before marriage or by gift or inheritance remains separate property.
Paralegal Perspective
When you review a deed into multiple grantees, the vesting language controls: "to A and B as joint tenants with right of survivorship" creates survivorship; "to A and B" generally creates a tenancy in common. Flag unusual vesting for the supervising attorney — vesting errors surface years later at probate or sale.
O conveys Blackacre "to A for life, then to B." A later dies. Which statement best describes the parties' interests before and after A's death?
A deed conveys land "to the City so long as the land is used as a public park." Years later the City builds a warehouse on the land. What happens to title?