Sections within this essay:Background
Forms of Title
Joint Tenancy with Right of Survivorship
Tenancy in Common
Tenancy in the Entirety
Obtaining Title to Property
Ownership of Land by Aliens
Forms of Leaseholds
Tenancy at Will
Tenancy for Years
Identifying Property Boundaries
Adverse Possession Issues
American Land Title Association
American Society for Photogrammetry & Remote Sensing
National Society of Professional Surveyors (NSPS)
The concept of land estates in American law arose out of the feudal system in England which consisted of present interests and future interests in estates which were parcels of land. These concepts developed into the modern law of possessory rights.
The most common form of ownership, when a homeowner purchases a home, is the fee simple absolute. The holder of a title in fee simple has full possessory rights now and in the future for an infinite duration. There are no limitations on its inheritability. The holder of the estate can sell the entire estate or any part of it and dispose of it by will at time of death. When a condominium or townhouse is purchased, the owner typically purchases the residential unit in fee simple and obtains the right to use the common areas. Each unit has its own tax bill, deed, mortgage and ownership rights but shares in the maintenance of the common areas.
In this type of title each owner holds an undivided share of the estate. There is a right of survivorship which means on the death of one joint owner, the surviving owner or owners retain an undivided right to the entire estate, which is not subject to the rights of the heirs of the deceased co-owner.
In a title held as a tenancy in common, each owner has an undivided interest in the entire property. Each tenant has the right to possession of the whole property. There is no right of survivorship. Each tenant has a distinct proportionate interest in the property, which passes by succession. There is a presumption that a conveyance to two or more persons is a tenancy in common.
This is a marital estate, which can only be created between a husband and wife. It is similar to a joint tenancy except that the right of survivorship cannot be destroyed, since severance by one tenant is not possible. An existing marriage is requisite for a tenancy by the entirety. In many states there is a presumption that a tenancy by the entirety is created in any conveyance to a husband and wife. This type of title is considered somewhat archaic and the majority of states have abolished this type of tenancy, favoring instead that the couple take title to the property as joint tenants with right of survivorship.
A purchaser of real estate has the right to receive a clear, marketable title to the property being purchased absent an agreement to the contrary. In most jurisdictions, a buyer obtains a title examination and title insurance through a title company. If the purchase is financed through a bank, the bank will require title insurance to protect the bank against loss resulting from claims by third parties against the real estate. In some states, attorneys offer title insurance as part of their services in examining title and providing a title opinion. The attorney's fee may include the title insurance premium. In other states, a title insurance company or title agent directly provides the title insurance. A lender's title insurance policy will not protect a purchaser. The purchaser must buy an owner's policy in order to obtain protection, and doing so is generally less expensive if acquired at the same time and with the same insurer as the bank's policy.
Banks and title insurance companies often require a survey to mark the boundaries of the property. A survey is a drawing of the property showing the perimeter boundaries and the location of any buildings or structures on the property. The total cost of a title insurance policy varies depending on several factors including, the amount insured and the searches requested.
The actual transfer of title to real property typically occurs via a deed at the closing of the transaction. There are various types of deeds:
- Quitclaim Deeds: These deeds contain no covenants by the grantor. These are typically used when two owners hold title to a property and one owner releases the other, perhaps due to sale of the property or a divorce of the parties.
- Warranty Deeds: These deeds contain covenant or warranties from the grantor, including that the grantor has the right to convey the property and that there are no encumbrances on the property. A general warranty deed warrants title against defects arising before as well as during the time the grantor has title. A special warranty deed contains the same covenants, but only warrants against defects arising during the time the grantor has title.
A deed must be in writing and should clearly identify the parties and the land involved. In order to protect a purchaser or lender from the subsequent rights of third parties over the real estate, it is essential to record the relevant documents by filing in a county recording office. Significant differences with regard to recording procedures and requirements exist from county to county. Most recording statutes provide that the deed must be acknowledged before a notary public to be recorded.
In addition to putting others on notice regarding ownership of the property, recording also tracks chain of title. When title insurance is purchased, the title insurer checks the chain of title to determine whether any defects occurred in prior conveyances and transfers. Such defects can then be put right or excluded from coverage.
The regulation of the rights to hold real property of individuals who are not citizens of the United States is left to the states. Generally, any alien or nonnational may take, hold, convey and devise real property. There are not many federal restrictions on nonnationals owning or investing in real property in the United States.
A leasehold is an estate in land with an ascertainable period of possession. The tenant has a present possessory interest in the premises, and the landlord/owner has a future interest. When a tenant signs a lease, the type of right that tenant has in the property is known as a leasehold.
This is a tenancy for a term of successive periods such as year-to-year or month-to-month. There is no definite termination date, and it continues until terminated by either the landlord or tenant. It is terminated by proper notice, which is usually statutorily prescribed. This tenancy may be created by express written agreement, by oral agreement, or by operation of law.
The landlord and tenant both have the right to terminate the tenancy at will. The parties must have an agreement or understanding that either party can terminate at any time. The tenancy has no stated duration and lasts as long as the landlord and tenant desire. In most states, the acceptance by the landlord of regular rent will cause the courts to consider the tenancy to be a periodic tenancy. No notice is required to terminate a tenancy at will at common law. However, in most states, statutes require notice of termination to be given at least one month in advance.
This tenancy continues for a fixed period of time and has certain beginning and termination dates. Since the parties know when the tenancy will end, the term expires at the end of the period without notice required by either party.
A tenant who was lawfully in possession of a leasehold and stays too long at the end of the tenancy is called a tenant at sufferance, commonly known as a holdover tenant. This tenancy lasts until the tenant is evicted or until the landlord elects to hold the tenant to an additional term.
If two or more people who own a property as tenants in common or if people who are not married to each other own a property as joint tenants with right of survivorship develop a dispute concerning the property, any owner may bring a partition action with the court to get the property divided between owners. While the lawsuit is pending, all owners will have equal access to and interest in the property. This arrangement applies regardless of whether the mortgage is in one owner's name or the name of all owners.
If a survey was done when at the time of the purchase of the property, the survey should reflect the boundary lines. Prior to erecting a fence on a boundary line, an updated survey could be ordered which reflects the accurate boundary lines. This may be impossible, due to perhaps the age of the property or the wording of the deed. (Some older deeds can contain legal descriptions such as "52 feet from the bend in the stream" on a piece of land, which has only a dry riverbed where a stream once existed.) In such a situation, the owner may file a quiet title lawsuit and request the judge determine the boundary lines of the property. This procedure is generally more expensive than a survey due to the legal filing fees. Another perfectly acceptable alternative is for adjacent property owners to agree on a physical object, such as a fence, which could serve as the boundary line between the properties. Each owner would then sign a quitclaim deed to the other, granting the neighbor ownership to any land on the other side of the line both owners had agreed upon.
If the piece of property in dispute has been used by someone other than the owner for a number of years, the doctrine of adverse possession may apply. State laws vary with respect to time requirements; however, typically, the possession by the non-owner needs to be open, notorious, and under a claim of right. In some states, the non-owner must also pay the property taxes on the occupied land. A permissive use of property eliminates the ability to claim adverse possession.
Local fence ordinances usually regulate height and location, and sometimes the material used and appearance. Residents of subdivisions are often subject to even stricter Homeowners' Association restrictions. In residential areas, local rules typically restrict backyard fences to a height of six feet and front yards to a height of four feet. Exceptions exist and a landowner can seek a variance if there is a need for a higher fence. While some jurisdictions have specific aesthetic zoning rules with respect to fences, as long as a fence complies with local laws it cannot be taken down simply because it is ugly. In fact, unless the property owners agree otherwise, fences on a boundary line belong to both owners when both are using the fence. Both owners are responsible for keeping the fence in good repair, and neither may remove it without the other's permission. In the event that trees or other vegetation hangs over the fence, most states agree that the property owner may cut tree limbs and remove roots where they cross over the property line, provided that such pruning will not damage the basic health and welfare of the tree.
Sometimes disputes arise between neighbors when trees belonging to one property owner fall on and damage or destroy adjacent property. In such cases, the tree owner is only responsible for damage if some failure to maintain the tree contributed to the damage. If the damage was solely the result of a thunderstorm or act of God, the tree owner will not be responsible as the damage could not have been foreseen. If, however, the tree owner allows the tree to grow so that it uproots the fence, it would be considered an encroachment onto the adjacent property. In that instance, the tree owner would be required to remove the offending tree. Leaves, bean pods, or acorns which fall off and end up on adjacent property are considered a natural occurrence and are the responsibility of the landowner on whose property they ultimately come to rest.
In the old courts of England, the owner of livestock was held strictly liable for any damages to person or property done by the livestock straying onto the property of another. The mere fact that they strayed and damaged crops, other livestock or personal property was sufficient to hold the owner liable for the injuries inflicted by cattle, sheep, goats, and horses. This strict liability position made sense in the confines of a small island such as England, but in the United States with herds of livestock wandering over vast expanses of land, a different process developed. The legislatures enacted statutes which provided that livestock were free to wander and that the owner was not responsible for damage inflicted by those livestock unless they entered land enclosed by a legal fence. These became known as open range laws. Subsequently, certain states reversed the open range laws and required the owners of livestock to fence in their livestock. This position was similar to the common law position, only instead of strict liability, the livestock owner could be held liable only upon a showing that the livestock escaped due to the owner's negligence.
Modern Law of Deeds to Real Property. Natelson, Robert, Aspen Law, 1992.
Neighbor Law: Fences, Trees, Boundaries and Noise. Jordan, Cora, Nolo Law, 2001.
1828 L Street, NW
Washington, DC 20036-5104 USA
Phone: (800) 787-ALTA
Fax: (888) FAX-ALTA
5410 Grosvenor Lane, Suite 210
Bethesda, MD 20814-2160 USA
6 Montgomery Village Avenue, Suite #403
Gaithersburg, MD 20879 USA
Phone: (240) 632-9716
E-Mail: [email protected]