General Real Property Law: Estates in Land

Types of Freehold Estates

*Fee simple* (also called fee simple absolute or indefeasible fee) *Defeasible fee* (also called fee simple defeasible) *Life Estate*

Fee simple (or Fee Simple Absolute)

-The highest interest in real estate recognized by law. Fee simple ownership is absolute (unconditional) ownership: the holder is entitled to all rights to the property. -It is limited only by public and private restrictions, such as zoning laws and restrictive covenants. - Because this estate is of unlimited duration, it is said to run forever. Upon the death of its owner, it passes to the owner's heirs or as provided by will. A fee simple estate is also referred to as an estate of inheritance or simply as fee ownership.

Fee Simple Defeasible (or Defeasible Fee)

A conditional estate—that is, its existence is conditioned upon the occurrence or nonoccurrence of some specified event. Two types of defeasible estates exist: those subject to a condition subsequent and those subject to a special limitation. *Tip*: think of a fee simple defeasible as an estate that can be defeated if a certain condition is not met. *It is a conditional estate whereas a fee simple absolute estate is unconditional or indefeasible.*

Freehold estates

A freehold estate is an estate of ownership. In other words, the holder of a freehold estate owns the land and the ownership is not subject to any claims of ownership by the government or fealty to lords. The owner freely holds the land and all appurtenances. -Last for an indefinite length of time, such as for a lifetime or forever.

Erosion

An owner can lose land through erosion, the slow, gradual wearing away of soil over time.

Littoral Rights

Closely related to riparian rights are the littoral rights of owners whose land borders commercially navigable lakes, seas and oceans. Owners with littoral rights enjoy unrestricted use of available waters, but own the land adjacent to the water only up to the mean (average) high-water mark. All land below this point is owned by the government. Riparian and littoral rights are appurtenant (attached) to the land and cannot be retained when the property is sold. Any rights to use the water belong to whoever owns the bordering land and cannot be retained by a former owner after the land is sold.

Riparian Rights

Common-law rights granted to owners of land along the course of a river, stream or similar body of water. Although riparian rights are governed by laws that vary from state to state, they generally depend upon whether the waterway is *navigable* (that is, a waterway suitable for commercial ship traffic) or *nonnavigable.* The landowners' rights to the use of the water will also vary depending upon state law. If the waterway is nonnavigable, as a general rule, the only limitation on the owner's use of the water is that the owner cannot interrupt or alter the flow of the water or contaminate it in any way. In addition, an owner of land that borders a nonnavigable waterway usually owns the land under the water to the exact center of the waterway unless otherwise specified in the deed. Land adjoining commercially navigable rivers, on the other hand, is usually owned to the water's edge, with the state holding title to the submerged land. Navigable waters are considered public highways that are open to commercial ship traffic. Missouri statutes specify that there are two navigable waterways in the state: the Mississippi River and the Missouri River. Many of our state's rivers also come under the Ozark National Scenic Riverways and the rules are different as to where private property lines exist along the waterways. Also, there are several rivers in Missouri along which the government has established meander lines (an invisible line that is a certain number of feet away from the mean high water mark). Property owners along those rivers own the land to the meander line.

Conventional life estate (also called an ordinary life estate) is created intentionally by the owner. Life estate: A form of ownership that ends upon a person's (the owner or a person other than the owner) death. Life estate in remainder: A form of life estate in which the ownership will transfer to a specifically named person upon the death of the person upon whose lifetime the life estate is measured. Life estate in reversion: A form of life estate in which the ownership reverts back to the grantor (the creator of the life estate) upon the death of the person upon whose lifetime it is measured. Life estate pur autre vie: A form of life estate in which the duration of the ownership by the life tenant is measured by the lifetime of someone other than the life tenant. Life tenant: The one who holds (owns) a life estate. Remainderman: The one named to receive ownership upon the death of the person upon whose life the life estate is measured.

Conventional life estate (also called an ordinary life estate) is created intentionally by the owner. Life estate: A form of ownership that ends upon a person's (the owner or a person other than the owner) death. Life estate in remainder: A form of life estate in which the ownership will transfer to a specifically named person upon the death of the person upon whose lifetime the life estate is measured. Life estate in reversion: A form of life estate in which the ownership reverts back to the grantor (the creator of the life estate) upon the death of the person upon whose lifetime it is measured. Life estate pur autre vie: A form of life estate in which the duration of the ownership by the life tenant is measured by the lifetime of someone other than the life tenant. Life tenant: The one who holds (owns) a life estate. Remainderman: The one named to receive ownership upon the death of the person upon whose life the life estate is measured.

Doctrine of prior appropriation

Each state has strict laws that govern the ownership and use of water as well as the adjacent land. The laws vary among the states, depending upon how arid the state is. Where water is plentiful, for instance, many states rely on the simple parameters set by the common-law doctrines of riparian and littoral rights. Where water is more scarce, a state may control all but limited domestic use of water according to the *doctrine of prior appropriation*

Therefore, when a person owns land, it is referred to as a ______ estate?

Freehold estate

Curtesy

Interest that a husband has in the real estate of his deceased wife. To help you avoid confusion on these two for purposes of your real estate exam, just remember that "dower" (the one with the W in it) is the wife's interest in the estate of her husband. Remembering only one is sufficient because if you are asked about the other one, you will remember that the one with the W in it is not the husband's interest.

Estate

Is defined as, "the degree, quantity, nature and extent of interest that a person has in real and personal property." In other words, it is everything that a person owns and includes even leasehold interests in property that the person does not own.

Navigable

Navigable rivers, on the other hand, is usually owned to the water's edge, with the state holding title to the submerged land. Navigable waters are considered public highways that are open to commercial ship traffic. Missouri statutes specify that there are two navigable waterways in the state: the Mississippi River and the Missouri River. Many of our state's rivers also come under the Ozark National Scenic Riverways and the rules are different as to where private property lines exist along the waterways. Also, there are several rivers in Missouri along which the government has established meander lines (an invisible line that is a certain number of feet away from the mean high water mark). Property owners along those rivers own the land to the *meander line.*

Riparian Rights Littoral Rights

Notice that riparian begins with an R for rivers and streams Littoral begins with an L for lakes, seas and oceans. So, riparian rights govern properties that are bordered by rivers and streams and littoral rights govern properties that are bordered by lakes, seas and oceans.

Homestead

Protection of some or all of the equity in the family home from claims of unsecured creditors during the occupant's lifetime.

Reliction

Reliction occurs when a waterway changes course. One owner gains and another loses land. It is usually caused by flash flooding when an object such as an uprooted tree blocks waterflow and causes a river to breach it banks and seek another course. This has occurred on occasion in northern Missouri and farmers were in jeopardy of losing hundreds of acres of land. In such a situation, it is not uncommon for the state to intervene and remove the blockage so that the waterway can resume its normal course.

Right of Reentry: Riparian Rights:

Right of Reentry: The future interest left in the transferor of property who transfers an estate on condition subsequent. Riparian Rights: The rights of owners of land adjacent to or abutting on watercourses such as streams and rivers.

Special Limitation Fee Simple Determinable

The estate ends automatically on the current owner's failure to comply with the limitation. If the limitation is violated, the former owner (or his or her heirs or successors) reacquires full ownership. A fee simple subject to a special limitation is also called a *fee simple determinable* because it may end automatically. The language used to distinguish a special limitation—*the words so long as or while or during*—is the key to creating this estate *For example:* A grant of land from an owner to her church *"so long as the land is used only for religious purposes"* is a fee simple with a special limitation. The church has the full bundle of rights possessed by a property owner, but one of the "sticks" in the bundle—the "control" stick, in this case—has a string attached. If the church ever decides to use the land for a nonreligious purpose, the original owner will, in effect, "yank the string" and title will revert to her (or to her heirs or successors).

Dower

The interest that a wife has in the real estate of her deceased husband. To help you avoid confusion on these two for purposes of your real estate exam, just remember that "dower" (the one with the W in it) is the wife's interest in the estate of her husband. Remembering only one is sufficient because if you are asked about the other one, you will remember that the one with the W in it is not the husband's interest.

nonnavigable water

The landowners' rights to the use of the water will also vary depending upon state law. If the waterway is nonnavigable, as a general rule, the only limitation on the owner's use of the water is that the owner cannot interrupt or alter the flow of the water or contaminate it in any way. In addition, an owner of land that borders a nonnavigable waterway usually owns the land under the water to the exact center of the waterway unless otherwise specified in the deed.

*condition subsequent*

This means that the new owner *must not perform some action or activity.* There is a prohibited action. The former owner retains a right of re-entry so that if the condition is broken, the former owner can retake possession of the property through legal action. *Conditions in a deed are different from restrictions or covenants* because of the grantor's right to reclaim ownership, a right that does not exist under private restrictions. For example: A grant of land "on the condition that" there be no consumption of alcohol on the premises is a fee simple subject to a condition subsequent. If alcohol is consumed on the property, the former owner has the right to reacquire full ownership. It will be necessary for the grantor (or the grantor's heirs or successors) to go to court to assert that right, however.

Title

Title, contrary to common usage with regard to real estate, actually means *ownership and all the rights that go with it.*

Accretion

When erosion or avulsion occur, the soil that is washed away doesn't simply disappear, but is washed up down stream somewhere. The owners of land downstream may benefit from erosion or avulsion by gaining land through the washing up of those soil deposits. The process of gaining land through the washing up of soil deposits is called accretion. The soil deposits themselves are referred to as *alluvion* or *alluvium.*

Avulsion

When land is suddenly torn away by flooding, landslides, etc., the owner loses land through avulsion.

legal life estate

is not created voluntarily by an owner. Rather, it is a form of life estate established by state law. It becomes effective automatically when certain events occur. Dower, curtesy and homestead are the legal life estates currently used in some states. (We do not have dower and curtesy in Missouri).

When a person has a leasehold interest in real estate (he/she is renting the property), the person has a _______ estate?

nonfreehold estate (sometimes called a "less than freehold" estate).