3.2 North Dakota Property Law
Key Takeaways
- North Dakota recognizes fee simple, life estates, joint tenancy (with survivorship), and tenancy in common
- Joint tenancy requires the four unities of time, title, interest, and possession
- North Dakota is not a community property state, but homestead rights require both spouses to join in conveying or mortgaging the homestead
- Warranty, special warranty, and quitclaim deeds offer different levels of grantor protection
- Deeds are recorded at the county recorder to give constructive notice; property tax liens generally hold first priority
North Dakota property law governs how real property is owned, transferred, and encumbered. Several rules — homestead spousal consent, severed mineral rights, and lien priority — carry distinctive North Dakota weight.
Forms of Ownership
Fee Simple Absolute
The highest, most complete form of ownership: unlimited in duration, fully inheritable and transferable, and the default standard for residential property.
Life Estate
A life estate lasts only for the measuring life. The life tenant has use and possession but cannot commit waste (cannot damage the property or impair the remainder). At the life tenant's death, the property passes to the remainderman.
Concurrent (Co-) Ownership
| Type | Features |
|---|---|
| Joint Tenancy | Equal shares with right of survivorship |
| Tenancy in Common | Possibly unequal shares, no survivorship |
Joint Tenancy and the Four Unities
Joint tenancy requires four unities, and its hallmark is the right of survivorship.
| Unity | Requirement |
|---|---|
| Time | All owners take title at the same time |
| Title | All take by the same deed/instrument |
| Interest | All hold equal shares |
| Possession | All have an equal right to possess the whole |
Key point: With right of survivorship, a deceased joint tenant's share passes automatically to the surviving joint tenants — outside probate.
Tenancy in common is the default for co-owners when survivorship is not specified: shares may be unequal, there is no survivorship, and a deceased co-owner's share passes through their estate to heirs.
Marital Property and Homestead
North Dakota is not a community property state. Each spouse can own separate property, and ownership generally follows title.
| Rule | Effect |
|---|---|
| Separate property | Each spouse may own property individually |
| Marital interest | Generally determined by title |
| Homestead | A spouse must join in any conveyance or mortgage of the homestead |
Critical ND rule: To sell or mortgage the homestead, both spouses must sign, even if only one spouse is on the title. A deed or mortgage of the homestead signed by only one spouse can be void. North Dakota's homestead law also shields a portion of home value from certain creditors.
This homestead spousal-consent requirement is a favorite state-exam item.
Deeds and Their Warranties
| Deed Type | Warranties |
|---|---|
| Warranty Deed | Full warranties against all title defects, whenever arising |
| Special Warranty Deed | Warrants only against defects arising during the grantor's ownership |
| Quitclaim Deed | No warranties — conveys only whatever interest the grantor has |
A quitclaim is common to clear clouds on title (e.g., releasing a possible interest) but gives the grantee no protection. For a deed to be valid in North Dakota, it must be in writing, name an identifiable grantor and grantee, contain an adequate legal description, be signed by the grantor, and be delivered to and accepted by the grantee.
Recording and Constructive Notice
| Requirement | Detail |
|---|---|
| Where | County Recorder's office where the land sits |
| Why | Provides constructive notice to the world |
| Priority | Generally "first to record" prevails |
| Effect | Protects against later claims by parties without notice |
Exam point: Title transfers when the deed is delivered and accepted, not when it is recorded. Recording does not transfer title — it protects the grantee's priority by giving public notice.
Encumbrances, Lien Priority, and Subsurface Rights
| Encumbrance | Description |
|---|---|
| Liens | Financial claims (mortgage, tax, judgment, mechanic's) |
| Easements | A right to use another's land |
| Covenants (CC&Rs) | Private restrictions on use |
| Encroachments | A physical intrusion onto adjoining land |
General lien priority:
| Priority | Lien |
|---|---|
| 1st | Property tax and special assessment liens (super-priority) |
| 2nd | Mortgages, by recording date |
| 3rd | Judgment liens |
| 4th | Mechanic's liens (may relate back to start of work) |
North Dakota note: Mineral, oil, gas, and other subsurface rights are frequently severed from the surface, especially in the western oil region. A buyer may receive surface ownership while a third party owns the minerals beneath — a material fact the state exam tests under "property rights conveyed separately from the surface." Always investigate whether minerals and water rights run with the land.
Worked Example: Homestead and Survivorship
Two scenarios the exam likes to combine. First, a married couple lives in a home titled only in the husband's name. He signs a mortgage alone to fund a business. Because it is the homestead, North Dakota law requires both spouses to join — the wife's signature is missing, so the mortgage of the homestead can be void. Second, three siblings own a cabin as joint tenants. One sibling dies; her interest passes automatically to the surviving two by right of survivorship, bypassing her will and probate. Had they held title as tenants in common, her share would have passed through her estate to her own heirs instead.
Exam tip: "Both spouses must sign the homestead conveyance/mortgage" and "joint tenancy = automatic survivorship" are two of the highest-yield North Dakota property facts.
Which statement is TRUE about joint tenancy in North Dakota?
Is North Dakota a community property state?
What is required for a homestead conveyance in North Dakota?
In North Dakota, what is required to validly sell or mortgage homestead property titled in only one spouse's name?