Chapter 4

ESTATES IN LAND

An estate in land is the degree, quantity, nature and extent of interest a person holds in land. Estates in land are classified as either freehold or non-freehold. A person having a freehold estate has title to the land for an indeterminate length of time. Anything less than a freehold is called a non-freehold or leasehold and concerns lessees and tenants.

Common Law vs. Statutory Law.                

Comon law developed from usage and custom over long periods of time. The idea of freehold and non-freehold estates developed from common law which grew out of usage over hundreds of years in England and United States. Common law may also be modified by individual court decisions know as case law. Statutory law is enacted by legislation. Common law may be modified or may become the basis for statutory law. For example, almost all statutory laws pertaining to estates in land, transfer of title, mortgages and rights and obligations of landlords and tenants have come directly from common law.

FREEHOLD ESTATES

FEE SIMPLE ABSOLUTE     

In most real estate transactions the grantee receives a freehold estate with no limitations or conditions imposed upon the use or enjoyment of the land. This estate is called fee simple absolute or fee simple, and lasts, for an unlimited duration, potentially forever. A fee simple is an estate of inheritance. Upon the death of the owner, title passes to his or her legal heirs, unless the property is disposed by will. All deeds or instruments of conveyance automatically convey a fee estate unless the instrument contains words to the contrary.

FEE SIMPLE DEFEASIBLE.       

A fee simple defeasible estate is one that is subject to certain limitations imposed by the grantor. A fee simple defeasible is also referred to as a qualified estate. Title may be lost upon the happening or no happening of a specified event. A fee simple defeasible is an estate of inheritance. There are two kinds of defeasible fees: (1) Fee simple subject to a condition subsequent and (2) Fee simple determinable.

Fee Simple Subject To a Condition Subsequent.

This is conveyance of title upon the condition that a particular use or activity will not occur. The former owner retains an optional right to regain title if the prohibited activity occurs. For example, land conveyed, "on the condition that it never be used for a bar," is a fee simple on condition subsequent. The grantor or the grantor's heirs have the option of reclaiming title if the condition is broken.                  

Fee Simple Determinable

This is also called a base fee or fee simple on condition precedent. A fee simple determinable ends automatically if the owner fails to maintain the condition or limitation. Title automatically reverts back to the grantor or to the grantor's heirs. It is created by the use of the words "so long as." For example, property is granted to a church for "so long as" it is different use, whether by the original grantee or subsequent owners, title automatically reverts back to the original grantor.

LIFE ESTATE. A life estate is a non-inheritable, freehold interest in real estate for an unpredictable duration, limited to the life of the grantee (life tenant) or to the life of another (per autre vie). Life estates are used in cases where the grantor wishes to prevent the grantee from selling the property or using it as collateral for debts.

The grantee may exercise all rights or ownership, but upon the death of the person designated by the grantor the property reverts back to the grantor or to a third person (remainder person) . Any conveyance, mortgage or lease executed by the life tenant is nullified at the termination of the life estate. Upon termination of the life estate, the property passes to a remainder person described in the deed or instrument of title. For example, Able deeds property to Baker, "for life, and upon Baker's death, to Able's daughter Ellen." When Baker dies, Ellen, the remainder person, automatically receives title in fee simple. A life estate may also be set up so that when the life tenant dies, title will revert back to the original grantor or to the grantor's estate. This is known as a reversionary life estate.

LEGAL LIFE ESTATES. DOWER AND CURTESY, HOMESTEAD

Legal life estates were created by common law and statutory law to prevent a deceased property owner's survivors from losing their home to creditors of the deceased or to persons claiming title through actions of the deceased. They consist of dower, curtesy, and homestead.

DOWER and CURTESY.        

By common law, a married person was given an expectant or contingent one-third life estate in the held by his or her spouse at any time during their marriage. Dower and curtesy are inchoate (expectant) rights, which take effect only upon the death of the owning spouse. The wife's right is known as dower, the husband's right, curtesy. The purpose of dower and curtesy was to prevent married persons from leaving their spouses penniless at their death. For example, a married couple's home is owned solely by the husband who wills the property to his nephew. When the husband dies, his wife may claim a one third life estate in the property regardless of the terms of the will.       

Under common law, the expectant right of dower and curtesy could only be terminated by a signed release of the non-owning spouse. Thus, a husband who owned property in severalty could not convey good title unless his wife signed the deed releasing her dower right. If she failed to sign the deed, she would acquired a one-third life estate in the grantee's property when her husband died.        

By statute many states, including Massachusetts, have modified the law changing the time when a dower or curtesy right is obtained. In these states, the right is acquired only in the real estate owned  by the deceased at the time of death. Property transferred by the deceased by the prior to death is not subject to a claim of dower or curtesy, thus eliminating the necessity of requiring the non-owning spouse to sign the deed. 

Divorce terminates dower and curtesy rights. A decree of legal separation does not terminate dower and curtesy rights. For example, a wife who owned property in severalty became legally separated from her husband. When she died thirty years later, her husband had a right to a one-third life estate in the property even though she left a will leaving her property to her children. 

Dowel and curtesy rights are very rarely asserted, since the surviving spouse may be entitled to a better interest under the law of descent . By law, a surviving spouse is entitled to one-half of the real estate owned by the deceased spouse at the time of death. Thus, if a man dies leaving a will divesting his wife of all interest in his real estate, she can ignore the will and claim her rights of descent as though her husband had died intestate.

HOMESTEAD.                                                                                                    

The homestead law allows a portion of a family's home to be protected against claims of creditors. The Massachusetts Homestead Act, M.G.L., Chapter 188, Section 1, allows a homeowner to protect up to $500,000 of the next market value of a principal residence from the claims of certain creditors. Any homeowner may create a homestead exemption by recording, in  the country registry of deeds, a one-page sworn statement declaring a homestead on the property. A homeowner who is sixty-two or over or who is permanently disabled may declare up to $500,000 in homestead exemption.

The homeowner's creditors may attach the property but may not hold a sheriff's sale to satisfy the debt until the homeowner or his or her survivors vacate the residence. When the residence is sold the attaching creditors may assert their claims, subject to the $500,000 exemption. For example, a homeowner, with a $500,000 homestead exemption, dies, leaving his property to his widow who sells the house for $525,000. Only $25,000 is subject to the claims of the deceased's creditors.      

Exception To Homestead Exemption.          

Homestead does not exempt property from claims for taxes, for debts contracted prior to the homestead declaration, for a mortgage to finance the purchase of a home, and for court ordered alimony payments and child support.

NON-FREEHOLD ESTATES

The giving of possession or use of real estate without title creates a non-freehold or leasehold estate. Such an interest may either be in writing, in which case it is referred to as a lease or it may be  oral, in which case it is referred to, as a tenancy at will. In describing leases and tenancies, the  words "landlord" and "lessor" have the same meaning, as do the words "tenant" and "lessee". A demise  is the conveyance of the use of property by lease.

 Leasehold estates consist of:                                                                                 

1. tenancy for years,                                                                     

2. periodic tenancy,                                           

3. tenancy at will and

4. tenancy at sufferance.

TENANCY FOR YEARS. 

A tenancy for years is created by a written contract (lease) in which the lessor (owner) grants to a lessee (tenant) the right to use a parcel of real estate for a specified period of time, for which the lessee agrees to pay a stipulated rent. The lessee may use and enjoy the leased premises subject to the covenants (conditions) of the lease and must surrender possession to the landlord at the expiration of the lease. A lease can be for any period of time from one day to ninety-nine years.

PERIODIC TENANCY (Tenancy From Year to Year).  

A periodic tenancy continues for an uncertain length of time at an agreed rent which is payable at definite intervals, either monthly or yearly. If the yearly rent is reserved, the tenancy extends from year to year regardless of whether the rent is paid monthly or quarterly. This reservation of rent distinguishes a periodic tenancy from a tenancy at will. For example, a landlord and tenant agree to an annual (reserved) rent of $6,000, which the tenant pays in twelve monthly payments of $500 each. Even tough the rent is paid monthly, either party must give one year's notice to terminate. If it were a tenancy could be terminated with one month's notice.

TENANCY AT WILL.                  

A tenancy at will is the transfer of possession by the oral or written consent of the landlord for an agreed rent, but without agreement for a fixed term. A tenancy at will may also be created by operation of law. For example, a tenancy at will is established when the landlord accepts rent and gives the tenant a key to an apartment. A tenancy at will may be terminated by legal notice from either party. Generally, the notification time must be equal to one rental period. In Massachusetts, a minimum of thirty days notice is required, regardless of the rental period. A tenancy at will is terminated by death of the tenant, but not by death of the landlord.

TENANCY AT  SUFFERANCE.               

A tenancy at sufferance arises when a tenant, having come into possession of real estate lawfully, remains in possession after  the tenancy has been legally terminated. A tenant at sufferance is liable to the owner for use  and occupation of the premises. The landlord has the right to recover payment for such use only after the period of use has ended. If payment is accepted in advance, a tenancy at will is created. A tenant who remains in possession of an apartment after termination of a lease is known as a holdover tenant, and has the same rights as a tenant at sufferance.

LICENSE TO USE REAL ESTATE

A license is a privilege granted to one to use the land of another but without exclusive control or possession. A license to use real estate is a contractual arrangement and not  leasehold interest. Examples include rooming houses, hotel rooms, and a permit to erect a sign on a building or land. Except in Massachusetts , a license to use real estate may be terminated at any time regardless of the oral or written agreement between the parties. Massachusetts requires a thirty-day notice to terminate, if the licensee has been in possession of the premises for a period of three consecutive months or more.

EASEMENTS

An easement or right of way is a nonpossessory right to use the land of another for a specific purpose. An easement is an encumbrance since it burdens the land and diminishes its use and value. While an easement does not prevent transfer of title, failure to disclose the existence of an unrecorded easement may excuse a buyer from performance because of the seller's inability to convey "good and marketable" title. Easements do not include title or the right to remove anything from the land. Note : An "easement" provides legal use, but not ownership. Easements are categorized as being either appurtenant or in gross. An appurtenant easement is a right which the owner (dominant tenement) has of a parcel of land that in another parcel of land (servient tenement).  Two parcels of land are necessary for an appurtenant easement. Examples of appurtenant easements are common driveways, underground pipes, the right to use water from an adjoining parcel of land, and a right of way to cross another's land for access to a public way.

Appurtenant easements automatically pass with title to the land. For example, the owner of lot A has a right of way to cross the adjoining lot B to reach a public road. Lot A is the dominant owner and lot B is the servient owner. The transfer of title to either of the lots does not affect the easement.

An easement in gross is a limited right given to a person or business organization to use the land of a servient owner. There is no dominant owner since the right does not benefit another parcel of real estate. An easement in gross terminates with the user's death or discontinuance in the case of a corporation or other business entity. Examples of easements in gross are the rights of way for utilities, such as power, telephone service, cable TV, water and sewerage. A railroad right of way or the right granted to a person to cross another's land to reach a lake are also example of easements in gross.

EASEMENT OF LIGHT AND AIR.              

There is no natural right to have light or air come to a particular part of a person's land. For example, Mr. Brown owns land with a beautiful view of the ocean. The owner of the adjoining lot cannot be barred from building a house, which obstructs Mr. Brown's view even though Mr. Brown has enjoyed the view for over 20 years. Such a right may be acquired, however, by express grant, creating as easement for light and air.

CREATION OF EASEMENTS.                                                                                                                                   

Easements may be created by                                                                                                                           

1. express grant,                                                                   

2. prescription (adverse use) and                                                                    

3. necessity (implied).

Express Grant or Reservation.       

A deed may contain a clause granting as easement in favor of the property conveyed or reserving  an easement for the benefit of the land retained. Since easements represent an interest in real estate, they must be in writing in order to be enforceable. Thus, if the owner of lot A orally agrees to permit the owner of lot B to use a portion of lot A for a driveway, the agreement will not be binding upon a third person who subsequently busy lot A without actual knowledge of the agreement.

Prescription (Adverse Use).       

A prescriptive easement arises when a person adversely uses the land of another over a period of time established by statute. The use must be continuous, open and notorious and in such a manner that the owner of the land has an opportunity to prevent it from occurring. The combining of successive periods of users is known as tacking. By tacking, a person who has not been a continuous user for the entire statutory period may combine his or her use with that of a previous owner to establish a prescriptive easement.

Necessity (Implied).            

An easement by necessity will arise by implication of law to prevent a parcel of land from being landlocked. If a property owner sells a portion of a lot and leaves it without access to a street or public way, the law will impose an easement across the seller's remaining land as a means of access. A license to use another's real estate does not create an easement.

TERMINATION OF EASEMENTS.  

Easements may be terminated by the following events:              

1. The purpose for which an easement was established ceases to exist.        

2. Destruction of the servient tenement, as by condemnation for a public use.       

3. Abandonment or non-use by the owner of the easement.               

4. Merger of ownership of the dominant and servient tenements.               

5. Adverse possession or use of the dominant tenement by the servient tenement.              

6. Release of the dominant tenement to the servient tenement.       

7. A court decision in a suit to quiet title.                

8. Excessive use.

PREVENTION OF EASEMENTS BY STATUTORY NOTICE.                                                             

In many states, a property owner may prevent an easement from being established by posting a notice for six consecutive days or by serving notice to users. A record of this must be recorded within months of its occurrence.

DISCOVERY OF EASEMENTS.                        

Not all easements are recorded and therefore will not be discovered through a title search. Only careful inspection of the land or an engineer's survey will reveal easements created by prescription. The physical discovery of an unrecorded easement after the execution of a purchase and sale agreement does not automatically permit the buyer to withdraw from the sale unless the seller misrepresented its presence. If there is any doubt regarding the existence of an easement, the broker or salesperson should advise the buyer to have an attorney investigate the matter before concluding the deal.

PARTY WALL.       

A party wall is located upon or at the division line of two adjoining landowners and is used by both for the construction and support of their respective buildings. If the property line runs to the center of the wall, then each person owns one-half of the walls and has as easement in the other half. Each owner is responsible for maintaining his or her half of the wall for the support of the adjoining buildings. Party walls can be established by use or can be created by grant as in the case of adjoining property owners who agree to share a common wall for the construction of their buildings. 

ENCROACHMENTS.                

An encroachment results from the unlawful intrusion on or over the land of another by a building, structure, or roof overhang. Most encroachments occur by mistake as with the case of a driveway or a fence built without a survey. The encroacher can be ordered to remove the structure and may be subject to paying damages. Encroachments present a problem in selling property, since they are not revealed by a title search. An undisclosed encroachment may render a title unmarketable. A land survey will disclose most encroachments and is usually required by lenders and buyers.

KEY WORDS AND PHRASES