3.2 West Virginia Property Law
Key Takeaways
- Fee simple absolute is the highest, most complete form of ownership; life estates and leaseholds are lesser interests
- Joint tenancy requires the four unities (time, title, interest, possession) and carries right of survivorship; tenancy in common does not
- Tenancy by the entirety is available only to married couples and includes automatic survivorship and protection from one spouse’s individual creditors
- A general warranty deed offers the most buyer protection; a quitclaim deed conveys only whatever interest the grantor has, with no warranties
- Liens, easements, deed restrictions, encroachments, and lis pendens are encumbrances that can affect title and value; recording with the county clerk establishes priority and notice
Understanding ownership estates, co-ownership, deeds, and encumbrances is essential for both the national and West Virginia portions of the exam.
Estates in Land
Fee Simple Absolute
The highest and most complete form of ownership:
| Characteristic | Description |
|---|---|
| Duration | Infinite — lasts indefinitely |
| Rights | The full bundle of rights (use, possess, exclude, transfer) |
| Transfer | May be sold, gifted, or devised by will |
| Inheritance | Passes to heirs by intestate succession if there is no will |
Life Estate
Ownership measured by a person’s lifetime:
| Party | Rights |
|---|---|
| Life tenant | Use and enjoy the property during the measuring life; cannot commit waste |
| Remainderman | Receives the property when the life estate ends |
Leasehold Estates
| Type | Duration |
|---|---|
| Estate for years | A fixed term with a definite end |
| Periodic tenancy | Renews automatically until proper notice (month-to-month) |
| Estate at will | Continues at the will of both parties; terminable by either |
| Estate at sufferance | A holdover tenant remaining without permission |
Co-Ownership
Tenancy in Common
| Feature | Description |
|---|---|
| Interests | Separate, undivided interests in the whole |
| Shares | May be unequal |
| Transfer | Each owner may sell or encumber their own share |
| Death | No survivorship — a deceased owner’s share passes to their heirs/estate |
Tenancy in common is the default when two or more unrelated people take title without specifying survivorship.
Joint Tenancy
| Feature | Description |
|---|---|
| Four unities | Time, Title, Interest, Possession — all required to create it |
| Shares | Must be equal |
| Survivorship | A deceased joint tenant’s share passes to the surviving joint tenants |
| Severance | Selling one share converts that interest to a tenancy in common |
Tenancy by the Entirety
A special form reserved for married couples in West Virginia:
| Feature | Description |
|---|---|
| Eligibility | Married couples only |
| Survivorship | Automatic right of survivorship |
| Transfer | Both spouses must sign to convey or encumber |
| Creditor protection | Generally shielded from one spouse’s individual creditors |
| Divorce | Converts to a tenancy in common |
Exam contrast: Joint tenancy and tenancy by the entirety both carry survivorship; tenancy in common does not. Only married couples can hold as tenants by the entirety, and that form adds creditor protection neither of the others provides.
Deeds and Transfer
Types of Deeds (by warranty)
| Deed type | Warranties to the grantee |
|---|---|
| General warranty | Fullest protection — warrants title against all defects, even before the grantor owned it |
| Special (limited) warranty | Warrants only against defects arising during the grantor’s ownership |
| Bargain and sale | Implies the grantor holds title, but with no express warranties |
| Quitclaim | No warranties; conveys only whatever interest the grantor actually has |
Most protection = general warranty deed. Least = quitclaim. Quitclaims are common for clearing clouds on title (e.g., releasing a possible interest), not for ordinary arm’s-length sales.
Essential Deed Elements
| Element | Requirement |
|---|---|
| Grantor | Competent and properly identified; must sign |
| Grantee | Identifiable |
| Consideration | Something of value (may be nominal) |
| Granting clause | Words of conveyance |
| Legal description | Accurate identification of the land |
| Delivery & acceptance | The deed must be delivered and accepted to transfer title |
| Recording | Filed with the county clerk — not required for validity but protects priority and gives notice |
Legal Descriptions
| Method | How it works |
|---|---|
| Metes and bounds | Uses a point of beginning, compass directions, distances, and monuments to trace the boundary back to the start — common in West Virginia’s older, irregular parcels |
| Lot and block (plat) | References a recorded subdivision plat by lot, block, and subdivision name |
| Government rectangular survey | Uses principal meridians, base lines, townships, ranges, and sections (less common in WV’s terrain) |
Much of West Virginia’s land predates rectangular survey and is described by metes and bounds, which is why precise monument and boundary references matter in title work.
Encumbrances
An encumbrance is any claim or limitation that affects title or use without necessarily preventing transfer.
Liens (financial claims)
| Lien | Priority note |
|---|---|
| Property tax liens | Generally highest priority |
| Special assessment liens | High priority |
| Mortgage/deed-of-trust liens | Priority by date of recording |
| Mechanic’s liens | Priority rules vary by when work began |
| Judgment liens | By date of recording |
Generally, first to record has priority — except statutory super-priority liens like property taxes, which jump ahead regardless of recording date.
Easements
| Easement type | Description |
|---|---|
| Appurtenant | Benefits an adjacent parcel (the dominant estate) and runs with the land |
| In gross | Benefits a person or entity (e.g., a utility), not a parcel |
| Prescriptive | Acquired by open, continuous, hostile use over the statutory period |
| By necessity | Created when a parcel would otherwise be landlocked |
Other Encumbrances
| Type | Effect |
|---|---|
| Deed restrictions / restrictive covenants | Private limits on use (e.g., subdivision rules) |
| Encroachments | A structure or improvement physically intruding onto an adjoining parcel |
| Lis pendens | Recorded notice that litigation affecting title is pending |
Exam tip: Separate liens (financial claims you can pay off) from non-financial encumbrances (easements, restrictions, encroachments) that limit use or physically intrude. A lien clouds title until satisfied; an easement may permanently affect how the land can be used.
Recording and Notice
Deeds, mortgages/deeds of trust, and many encumbrances are recorded with the county clerk where the property sits. Recording is not required to make a deed valid between the parties, but it provides constructive notice to the world and establishes priority among competing claims — the practical reason every buyer records promptly and obtains title insurance.
Which co-ownership form is available only to married couples and includes automatic survivorship?
Which deed provides the buyer the MOST protection?
What are the four unities required to create a joint tenancy?
A recorded notice that litigation affecting title to a property is pending is called: