2.1 Estates, Ownership Forms, Rights, and Interests

Freehold estates

An estate is the degree, quantity, nature, and extent of a person's interest in land. Freehold estates last an indefinite duration; leasehold estates last a fixed or determinable period and are covered with landlord-tenant material.

The fee simple absolute is the highest form of ownership. It is freely inheritable, has no time limit, and carries the full bundle of rights. Exam answers default to fee simple unless the facts name a condition.

Defeasible fees

A defeasible fee is ownership that can be lost if a stated condition occurs. Two types are tested:

• Fee simple determinable — uses durational words ('so long as,' 'while,' 'during'). Title reverts automatically to the grantor (a possibility of reverter).
• Fee simple subject to condition subsequent — uses conditional words ('on condition that,' 'but if'). The grantor must take action to retake title (a right of re-entry).

Trap: 'so long as it is used as a library' is determinable (automatic), while 'but if liquor is sold' is condition subsequent (grantor must act).

Life estates

A life estate grants ownership for the duration of a measuring life. When that life ends, the estate passes to a remainderman (named third party) or returns to the grantor as a reversion.

• Ordinary life estate: measured by the life tenant's own life.
• Pur autre vie: measured by the life of another person ('for the life of Maria').

A life tenant may use and profit from the property but commits waste if they damage it or impair the future interest. They cannot leave it by will, because the estate ends at death.

A second variety is the legal life estate created by law rather than by deed, such as a homestead, dower, or curtesy right that protects a spouse or family. These arise automatically under statute, not from words in a grant.

Worked example. Owner deeds land 'to Ben for life, then to Carla.' Ben holds a life estate; Carla holds a remainder. If Ben sells his interest to David, David holds a life estate pur autre vie measured by Ben's life — David's interest ends when Ben dies, not when David dies. If the grant had instead said 'then back to me,' the grantor would hold a reversion rather than Carla holding a remainder.

Forms of ownership (concurrent ownership)

Ownership in severalty is ownership by one person or one legal entity alone. The word means 'severed' from others, not 'several owners' — a classic vocabulary trap.

When two or more parties own together, the form determines survivorship and transferability:

In a tenancy in common, a deceased owner's share passes to their heirs or devisees, not the co-owners. This is the default when a deed to two unrelated buyers is silent.

Joint tenancy and the four unities

Joint tenancy carries the right of survivorship: when one joint tenant dies, their interest passes automatically to the surviving joint tenants, outside probate. It requires the four unities (mnemonic PITT):

• Possession — equal right to possess the whole
• Interest — equal fractional shares
• Time — acquired at the same moment
• Title — acquired by the same deed

If a joint tenant sells their interest, the new owner takes as a tenant in common (time and title unities are broken), while remaining original joint tenants stay joint tenants among themselves.

Worked example. A, B, and C are joint tenants, each 1/3. C sells to D. A and B remain joint tenants (together 2/3); D is a tenant in common with a 1/3 share. If A then dies, A's share passes by survivorship to B, who now owns 2/3 as a tenant in common alongside D.

Encumbrances and other interests

An encumbrance is a claim, charge, or right that affects title or limits use, yet does not destroy ownership. The owner still holds title; the encumbrance simply rides along with it. The exam splits these into money claims and non-money claims, and rewards candidates who can label each fact pattern precisely.

Money claims (liens): mortgages, mechanic's liens, judgment liens, and property-tax liens. A lien attaches to the title and must usually be satisfied (paid) at the time of sale so the buyer takes clear title. A general lien (a judgment) hits all of the debtor's property; a specific lien (a mortgage or mechanic's lien) attaches to one named property.

Use rights (easements): a right to use another's land for a stated purpose.

• An easement appurtenant benefits an adjoining parcel (the dominant tenement) and burdens the servient tenement. It runs with the land and transfers automatically.
• An easement in gross benefits a person or company (such as a utility) and needs no second parcel.

Other interests. An encroachment is an unauthorized physical intrusion — a fence, wall, or roof eave over the boundary — and is usually revealed by a survey rather than a title search. A license is a revocable, personal permission to use land (a concert ticket, a hunting permit); it is not an interest in real estate and not an encumbrance.

Trap: an easement appurtenant transfers automatically with the dominant parcel even if the new deed never mentions it, while a license dies when it is revoked or when the licensor sells the land.