Classification of Interests in Real Property

Classification of Interests in Real Property

1. Freehold Estates

   • Fee Simple
     • Fee Simple Absolute
       • Not defeasable
     • Fee Simple Defeasable
       • Fee Simple Determinable
         • possibility of revertor
         • "So long as"during"until"while"
       • Fee Simple Subject to Condition Subsequent
         • Estate terminates upon happening/non of stated contingency
         • "On condition that"subject to the condition"but if"
         • Not automatic reversion, but right of re-entry
   • Fee Tail
     • Common Law-"to the heirs of his body"
     • Per autre vie- life estate measured by life of another
     • modernly obsolete
   • Life Estates
     • curtsey and dower obsolete
     • Upon death life estate passes to heirs
   • possession under legal title carving out ownwership over time

2. Non Freehold Estates

   • mere possession-no legal title
     • ll require written instrument to comply with Sof F
       • Duties and responsibilities of tenant
         • pay rent, make ordinary repairs and quit premises in timely manner
           • Cannot commit waste
             • voluntary
               • injury to land-extraction-liable
             • emeliorating
               • beneficial changes- not liable
             • permissive
             • equitable
             • destruction, decay waste
         • liable to 3rd parties
   • Tenancy for Years
     • specific period of time terminable at some date or event
     • more than 1 year
   • Tenancy from period to period
     • automatic renewal year to year, mo to mo
     • Modernly-1 yr termination requires 1 mo notice
   • Tenancy at Will
     • No fixed duration- termination agreed by both landlord and tenant
     • Termination w/ notice for sale or death of either party
   • Tenancy at Sufference
     • wrongful hold over on prop
     • landlord option to evict or extend

3. Concurrent Estates

   • Joint Tenancy
     • Survivor retains rights of deceased joint tenant
     • unities-time, title, interest and possession required + owner's intent in a deed
     • Co-ownership/undivided interest
       • Modernly disfavored
     • Terminated by an agreement inter vivos or partition or mortgages
   • Tenancy by the Entirety
     • Married couple
     • unities-time, title, interest and possession and person required + reference to marriage
     • By the whole- no rights of partition
     • Severance by right of survivorship or divorce
     • immune from individual creditors, but not taxes
   • Tenancy in Common
     • No right of survivorship
     • ownership in part but can be in total possession- consideration in proportion to property
     • freely alienable
     • Subject to creditors
     • Modernly- Automatically presumed if mot written
     • merger when title vests in one person through sale
   • Rights and duties of tenants
     • may compel contribution from co-tenants for taxes
       • but not for repairs
     • right to possess whole estate and retain profits,
   • ownership by 2 or more persons

4. Non-Possessory Interests

   • Easements
     • Appurtenant- runs with the land and requires two parcels
       • Dominant
       • Servient
     • In Gross- Can run w/ the land only oneparcel
       • Servient
     • Negative
       • prevents serviant tenament from doing some act or use of- don't build yr building too high
     • Affirmative
       • gives a right of affirmative use to dominant tenement owner- pathway to driveway
     • Implication
       • In subdivision schemes
       • Easement by necessity by grant or reservation
     • Prescription
       • 5 elements- adverse use, open,notorious,continuous, for the statutory period
     • Easements Extinquished by merger, written release, abandonment, prescription, destruction, estoppel, or condemnation(eminent domain)
     • rt to enter land of another w/out trespass
       • for limited use, ingress egress
   • Profits
     • Rt. to enter land to extract r remove something
   • Covenants running with the land
     • 1) Signed writing-complies with SofF
     • 2) Must be the intent of "assigns" or "Successors" intend to run w/ the land
     • 3) Must touch and concern the land- increase or curtail value and use
     • 4) privity of estate- interest from one contracting party toanother
     • between a contract and an easment
       • not an interest in the land
     • extinguished by merger abandonment estoppal release
     • breaches recoverable like contracts
   • Equitable Servitudes
     • 1) Signed writing-complies with SofF
     • 2)Intention- determine who may enforce
     • 3)Noticeof the existance of the servitude written or constructive
     • land use restrictions enforcible in equity
   • Licenses
     • Permission to enter land w/out tresspass
       • Irrevocable if coupled w/ an interest
     • does not have to comply w/ SofF

5. Future Interests

   • Reversions
     • Estate remaining in grantor who as conveyed a lesser estate
   • Possibility of reverter
     • Estate remaining in grantor who as conveyed a determinable estate
       • or a fee simple determinable
     • ripens upon occurence of stated event
     • Automatic reversion
   • Right of Re-entry
     • grantor retains the option to re-enter
     • subject to a condition subsequent
   • Remainders
     • Contingent
       • uncertain if it will become possessary
       • subject to condition precedent that terminates previous estate
     • Vested
       • automatic at termination of the estate
       • vested subject to divestment
       • vested subject to partial divestment
     • Interest in3rd person effective after natural termination of previous fee tail or life estate
     • created at the same time in the same instrument as the previous estate of lessor duration than conveyor
   • Executory Interests
     • Upon happening/non of stated event estate goes to third party/second grantee
     • shifting
     • springing requires a time lapse before estate goes to 2nd grantee

6. Rights Incident to Possession

   • Adverse Possesion
     • 1)Continuous
       • tacking
       • privity
     • 2) Actual
       • possession and use
     • 3) Visable
       • appearance of ownership
     • 4)Exclusive
       • no simultaneous use by owner
     • 5) Hostile
       • wrongful possession
     • 6) Open and Notorius
     • Disability to recover defenses
   • Lateral/Subjacent Support
     • rt to have land supported in natural state by adjacent landowner
     • liable for damage if building collapse would occur in nat. state
     • rt to have land supported in natural state by owners of underground interest
     • liable for damage if collapse would occur in nat. state
   • Water Rights
     • Riparian rt to all domestic water use
     • commercial use limited to reasonable
     • prior appropriation/first come first serve

7. Conveyancing

   • Record by Statute
   • Deeds
   • alienation
   • requires a writing
   • wills

8. Mortgages