VII. Titles and Estates

Absolute Title – A title that is clear with out any liens or judgments.

Abstract of Title – A historical summary of all the recorded instruments and proceedings that affect the title of property.

Adverse Possession – One means of acquiring (gaining) ownership of real estate, or the right to use real estate, without purchasing it or getting a deed. This is also called squatter’s rights, by which a person can acquire title after occupancy for a statutory time period (stipulated in state law). Occupancy must be:

  • Actual
  • Open
  • Notorious
  • Exclusive
  • Hostile
  • Continuous

Adverse possession does not apply to public lands. Also, permission to use the land given by the owner, as with a lease, does not qualify because it is not hostile. (Years?)

Alienation – Involuntary separation by operation of law. Applies to real (and personal) property

Bad Title – A condition where complete real estate ownership is impaired by unsettled claims, including liens, which are debts recorded on the property. It may prevent an owner from selling the property. Cause of bad title include unpaid taxes, unpaid liens, incorrect survey, building code violations, and forged documents.

Bundle of Rights – The bundle of rights theory is the theory that ownership of realty (real estate) implies a group of rights such as occupancy, use, and enjoyment, and the right to sell, devise, give or lease all or part of these rights. For example, under the bundle of rights concept, Abel may sell mineral rights, hunting rights, easements, and other partial interests, then give a life estate to his wife and the remainder to their daughter.

Chain of Title – A history of conveyances and encumbrances affecting a title from the time that the original patent was granted, or as far back as records are available. In other words, it is a summary of every time the property was transferred (by sale or gift) and every time it was mortgaged. The chain of title is helpful in preparing an attorney’s opinion of title, which provides a professional opinion of whether the owner has a marketable or insurable interest in the property.

Clear Title – A marketable title, free of clouds and disputed interests.

Cloud on the Title – Is an outstanding claim or encumbrance that, if valid, would affect or impair the owner’s title.

Common law – The body of law that has grown out of legal customs and practices that developed in England. Common law prevails unless superseded by other law. For example, in many disputes between neighborhing landowners over damages from the activities of one or the other, the courts apply common law to reach a settlement.

Condemnation – The process of taking private property for public use with compensation to the owner under eminent domain. It is used by governments to acquire land for streets, parks, schools, etc., and by utilities to acquire necessary property. Condemnation can also mean declaring a structure unfit for use.

Condemnor / Condemnee – The government or agency with governmental authority that is empowered to take private property for public use upon payment of just compensation. The condemnee is the property owner who is losing part or all of his or her property to government or an entity having governmental authority. Some entities who may be condemnors are:

  • State highway department
  • Public utility (for right-of-way purposes
  • Common carrier pipeline

Descent – The acquisition of property by an heir when the deceased has left no will. For example, Abel dies without having prepared a will. His wife and son are awarded title to Abel’s real estate by the courts. They are said to acquire title by descent.

Dower or Curtesy – Under common law, dower is the legal right of a wife or child to part of a deceased husband’s or father’s property. Curtesy is the right of a husband to all or part of his deceased wife’s realty, regardless of the provisions of her will. Curtesty rights exist in only a few states.

Emblement – A growing crop. Annual crops are generally considered personal property. For example, Abel, a tenant, has planted corn on Baker’s land. Three days prior to harvesting, Baker informs Abel that the land lease has expired. Abel has the right to emblements and so he can harvest the corn.

Eminent Domain – Is the right of the government, a public utility, or a common carrier pipeline to acquire property for a necessary public use by condemnation, the owner must be fairly compensated. It can be exercised by cities, public education institutions and public utilities.

Equitable Title – The interest held by one who has agreed to purchase but has not yet closed the transaction. For example, Connie has agreed in writing to buy George’s house, with closing to be arranged in two weeks. In the interim, valuable minerals are found on the property. Since Connie has equitable title, the minerals belong to her. Similarly,  if the property were condemned for public use, she would be the one to receive compensation for it.

Escheats – The reversion of property to the state in the event that the owner dies without leaving a will (intestate) and has no legal heirs.

Estate – This refers to:

  • The degree, nature, and extent of interest that a person has in real property. The highest form of estate is fee simple SEE DEFINITION, under which the owner can use the property at will and dispose of it without restriction. A tenancy at sufferance (estate at sufferance) SEE DEFINITION is perhaps the lowest form of estate
  • All of the property, real or personal, that one owns and leaves at death. For example, Aunt Miriam dies, leaving an estate of $1 million, comprising a house valued at $200,000 and $800,000 worth of securities.

Estate at Sufferance – The wrongful occupancy of property by a tenant after the lease has expired. For example, Abel’s lease has expired, but he remains on the property. He has an estate at sufferance and may be ejected at the landlord’s whim.

Estate at Will / Tenancy at Will – The occupation of real estate by a tenant for an indefinite period, terminable by one or both parties at will. Under an estate at will, the landlord may evict the tenant at any time, and the tenant may vacate at any time. The tenant may have certain rights, however, such as ownership of emblements (crops as a result of annual cultivation).

Estate for Life or Life Estate – An interest in property that terminates upon the death of a specified purpose. For example, Abel deeds his wife an estate. When she dies, the property will go to Abel’s son. She may use the property an may not commit waste, but normal wear and tear is acceptable.

Estate for Years – Is an interest in land allowing possession for a specified and limited time. For example, the tenant under a five-year lease holds an estate for years.

Estate in Reversion – An estate in reversion is an estate left by the grantor for himself or herself to begin after the termination of some particular estate granted by him or her. For example all landlords have estate in reversion that becomes theirs to possess when a lease expires.

Estovers – The legally supported rights to take necessities from property. For example, Marie has a life estate on property. She needs to cut timber for firewood to hear the residence. The remainderman, Baker, complains that Marie is damaging the property, which may be called “waste”. The law supports Marie’s use of the estovers as she has been doing. However, if Marie had been cutting timber to sell, that would likely exceed her estovers.

Fee Simple, Fee Absolute, Fee Simple Absolute, Fee Simple Estate – The complete ownership of real property. The owner is entitled to the entire property with unconditional power of disposition during the owner’s life, and upon his death, the property descends to the owner’s designated heirs. This is the greatest or highest form of ownership.

Free and Clear TitleA title to a property without encumbrances; generally this refers to a property free of mortgage debt. This requires clearing any clouds on the title and satisfying any liens that may exist.

Game Warden – May be employed by a government entity to prevent poaching on publicly owned lands.

GENERAL vs. SPECIFIC LIEN

Good and Marketable Title – Ownership of a piece of real estate that can be shown, usually by title search or abstract of title, to be vested in the owner of record and free of claims or liens that would impair its marketability. It is so free from defect that a court will enforce the title’s acceptance by a purchaser. Brokers or lenders use a title company to make sure that good title is transferred a closing. See Title Company.

Homestead or Homestead Estate –  Status is provided to a homeowner’s principal residence by some state statutes, protecting the home against judgements up to a specific amount, and sometimes resulting in a reduction in ad valorem property taxes. For example, in Texas, homestead laws prevent a lender, other than the mortgage lender, from forcing the sale of one’s principal residence to satisfy a debt.

Inchoate – Means unfinished begun but not completed. In real estate, this can apply to dower or curtesy rights prior to the death of a spouse.

Insurable Title – A title that can be insured by a title insurance company. In most contracts for the sale of real estate, the seller must provide marketable or insurable title or the buyer is not obliged to purchase the property.

Lien – A charge again a property, making it security for the payment of debt, judgment, mortgage, or taxes; it is a type of encumbrance. A specific lien is a lien against certain property only. A general lien is a lien against all the property owned by the debtor. For example, Abel failed to pay the contractor for work performed on his home. The contractor files a mechanic’s lien again the property for the amount due.

Note: A lien of a recorded deed of trust is removed from the records when a reconveyance deed is recorded.

Mechanic’s Lien – A claim given by law upon the land, a building, or other land improvement, as security for the payment of labor and materials furnished for improvement. Also called a materialman’s lien. For example, an unpaid plumber files a mechanic’s lien against the property while it is under construction. The builder must pay off the lien in order to give clear title to the buyer.

A mechanic’s lien is a SPECIFIC LIEN, similar to unrecorded tax liens or even a blanket mortgage. SEE BELOW

A judgement lien is a GENERAL Lien when the abstract of judgement is recorded. This is involuntary. SEE BELOW.

Specific Lien – For specific property

General Lien – a lien on all the property owned by a debtor and not just a specific property.

Muniments (Defenses) of Title – Muniments of title include documents such as deeds or contracts, that one uses to indicate ownership. You could think of muniments of title as the ammunition that you would use against anyone who claimed you didn’t have clear title to your property.

Perfecting Title – Removing a cloud or claim again a title to real estate. For example, an attorney pays a small amount to various relatives of a deceased property owner. Each signs a quitclaim deed in order to perfect title to the land.

Poacher – Someone who trespasses on another person’s land for the purpose of illegal hunting, trapping, or fishing. Unlike a squatter, a poacher does not build or occupy a structure on the land but removes property (wildlife) that belongs to the owner.

Prescription – A method of acquiring personal rights to use land, typically an easement, by continued use. For example, Abel, owner of a landlocked parcel, had for many years continually and openly crossed Baker’s property to reach the highway. Abel may eventually acquire an easement by prescription to the access route, thus preventing Baker from blocking his way. Note: Easement by prescription / Years?

Quiet Title Suit / Action to Quiet Title – A lawsuit to remove a title defect, cloud on the title, or suspicion regarding the legal rights of an owner to a certain parcel of real property. For example, a landowner of record could bring an action to quiet title against a squatter, which would require him or her to establish his or her claim to be forever barred from claiming the property. In addition to dealing with squatters, a quiet title suit can be used to extinguish easements.

Squatter – Someone who occupies property without permission of legal authority. For example, Stanley builds a shack on private property without the owner’s knowledge or consent. Stanley is a squatter who may eventually be able to claim ownership under adverse possession, provided certain requirements are met.

Title – Evidence that the owner of the land is in lawful possession and has legal ownership of it.

Title Attorney – Examines the title. Then, often assisted by an abstractor, he or she may prepare a chan of title, an abstract title, and/or a title report, and ultimately a title opinion, to serve as the basis of the title insurance policy.

Title Company – A title company is one that is in the business of examining the title to real estate and/or issuing title insurance. Title companies often hold earnest money deposits and assist in the closing process.

Title Defect – An unresolved claim against the ownership of property that prevents presentation of marketable title. Such  claims arise from failure of the owner’s spouse, or former part owner, to sign a deed, or from current liens against the property or an interruption in the title of records to a property.

Title Exception – In a title insurance policy is a statement of an item that will not be insured. Title exceptions should be studied to be certain that  the risk is negligible. If the risk is high, the potential buyer should be advised to avoid purchase.

Title Report – A document indicating the current state of the title, noting any easements, covenants, liens and/or defects.

Trespass – The unlawful entry or possession of property. For example, Terry rents an apartment from Levy. While Terry is away, Levy enters with a passkey and checks on the apartment’s condition. Even though Levy owns the property, he is guilty of trespass since the right to possession has been granted to Terry exclusively. It is possible for Levy, in the lease, to reserve the right to enter the property periodically.

In another example, Smith finds evidence of hunting on property he owns. To deter hunters, he puts of signs saying, “Posted/No Trespassing,” which makes it clear that this is private property. 

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