2.1 Estates, Ownership Forms, Rights, and Interests
Key Takeaways
- Ownership is a bundle of rights: possess, use, control, exclude, dispose - encumbrances remove individual sticks.
- Fee simple determinable ends automatically ("so long as"); condition subsequent requires re-entry ("but if").
- Joint tenancy requires the four unities (Time, Title, Interest, Possession) and carries right of survivorship.
- Right of survivorship overrides a will; tenancy in common interests pass to heirs and can be sold separately.
- Easements appurtenant run with the land; partition forces a sale or division when co-owners cannot agree.
Ownership of real property is best understood as a bundle of rights rather than a single thing. The classic five sticks are the rights to possess, use (enjoy), control, exclude, and dispose. A buyer of fee simple gets the whole bundle; a tenant under a lease borrows only the possession stick for a term. Encumbrances pull individual sticks out: an easement removes part of the right to exclude, a lien limits disposition, and a deed restriction limits use. Exam questions reward you for spotting which stick a fact pattern is affecting.
Freehold Estates
A freehold estate lasts an indefinite period and carries ownership. The three you must know:
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Fee simple absolute - the highest, most complete ownership; indefinite duration; freely inheritable and transferable. This is the default estate assumed when a deed grants property "to A and his heirs."
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Fee simple defeasible - ownership that can be lost if a stated condition is violated. A determinable fee ends automatically (look for "so long as," "until") and the grantor holds a possibility of reverter. A fee subject to a condition subsequent requires the grantor to take action to re-enter (look for "but if," "on condition that").
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Life estate - lasts for the life of a named person. The life tenant may use the property but must not commit waste (damage that harms the future holder).
Where a Life Estate Goes Next
When a life estate ends, the property passes to a future interest. If the grantor named a third party to receive it, that party holds a remainder. If the property returns to the original grantor (or the grantor's heirs), that is a reversion. A pur autre vie life estate is measured by the life of someone other than the life tenant - for example, "to my caregiver for as long as my mother lives."
When the measuring person dies, the estate ends regardless of who is living on the property.
Leasehold (Non-Freehold) Estates
A leasehold conveys possession but not ownership. Four types:
| Estate | Term | Notice to End | Memory Hook |
|---|---|---|---|
| Estate for years | Fixed start and end date | None - ends automatically | "Years" = definite |
| Periodic estate | Renews period to period | Required (e.g., 30 days) | Month-to-month |
| Estate at will | Indefinite, either party ends | Reasonable/statutory notice | "At will" |
| Estate at sufferance | Holdover after lease ends | None - tenant has no right | Trespasser-ish |
Trap: an estate for years does not have to last a year. A 6-month lease with fixed dates is still an estate for years because it self-terminates.
Forms of Concurrent Ownership
Severalty means sole ownership by one person or entity ("severed" from others). Concurrent ownership means two or more owners.
| Form | Survivorship? | Equal Shares? | Key Rule |
|---|---|---|---|
| Tenancy in common | No | No (can be unequal) | Each share passes to heirs; sellable alone |
| Joint tenancy | Yes | Yes | Requires four unities; sale severs |
| Tenancy by the entirety | Yes | Yes | Married spouses only |
| Community property | Varies | Yes (50/50) | Spouses; community-property states |
The four unities of joint tenancy (memorize T-T-I-P): Time, Title, Interest, Possession - acquired at the same time, by the same deed, in equal shares, with equal right to possess the whole.
Survivorship vs. Inheritance
The single most-tested distinction: right of survivorship beats a will. In joint tenancy and tenancy by the entirety, a deceased owner's share passes automatically to the surviving co-owners - it never enters probate and a will cannot redirect it. In tenancy in common, there is no survivorship: a deceased owner's undivided interest passes to that owner's heirs or devisees.
If one joint tenant sells, the buyer becomes a tenant in common with the remaining owners (the four unities are broken for the new owner), while any remaining joint tenants keep survivorship among themselves.
Three people own a property as joint tenants. One sells her one-third interest to an outside buyer. What is the result?
Partition and Co-Owner Disputes
When co-owners cannot agree on selling or managing property, any owner may file a partition action. Partition in kind physically divides the land; partition by sale orders a sale and divides the proceeds, and is more common because most parcels cannot be split evenly. Partition is available to tenants in common and joint tenants but not to tenants by the entirety (spouses must divorce first).
Easements, Licenses, and Encroachments
These non-ownership interests appear constantly.
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Easement appurtenant - benefits an adjacent parcel. The dominant tenement enjoys the benefit; the servient tenement bears the burden. It "runs with the land" and transfers automatically on sale.
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Easement in gross - benefits a person or company, not a parcel (utility lines). No dominant tenement.
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Easement by prescription - acquired through open, notorious, continuous, hostile use for the statutory period.
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License - temporary, revocable permission (a ticket to a concert). Not an interest in land.
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Encroachment - an improvement that unlawfully extends onto a neighbor's land; discovered by survey.
A deed conveys land "to the city for so long as it is used as a public park." If the city later builds offices there, what happens to the title?