Property Ownership & Land Use

Fee simple absolute is absolute ownership with no limitations on duration or transferability; the owner can hold it forever and leave it to heirs. A life estate terminates when a named person (the life tenant) dies; ownership then passes to a remainder person or reverts to the grantor.

Joint tenancy includes the right of survivorship; when one joint tenant dies, their share passes automatically to the surviving joint tenant(s). Tenancy in common has no survivorship; when one tenant dies, their share passes through their estate according to their will or the state's intestacy laws. Joint tenants must have equal shares and equal rights; tenants in common can have unequal shares.

In community property states (California and Texas), property acquired during marriage by either spouse is owned equally and jointly by both spouses, regardless of whose name is on the title. Separate property (owned before marriage, inherited, or received as a gift) belongs to the spouse who acquired it. In divorce, community property is divided equally between spouses; separate property generally goes to the spouse who owns it.

In a condominium, each owner holds fee simple title to their individual unit plus an undivided interest in the common areas. In a cooperative (co-op), a corporation owns the entire building and each resident owns shares in the corporation plus a proprietary lease granting the right to occupy a specific unit. This distinction affects financing, taxes, transfer rights, and liability.

Homestead exemptions protect a primary residence from forced sale by most creditors and reduce property tax assessments. The level of protection varies dramatically by state: Texas and Florida offer unlimited homestead protection from creditors (with acreage limits), while most other states cap the exempt equity amount.

Eminent domain is the government's power to take private property for public use, such as for highways, schools, or utilities. The Fifth Amendment requires that the property owner receive just compensation, defined as fair market value at the time of the taking. The owner cannot refuse the taking, but can challenge whether fair market value was paid.

Zoning divides land into districts (residential, commercial, industrial) with different permitted uses. A zoning variance is a waiver allowing a property owner to use their property contrary to the zoning code when strict application of the code creates a hardship. A nonconforming use is a use that existed before the zoning ordinance was enacted and is allowed to continue even though it no longer complies with current zoning; however, if the use is discontinued, it typically cannot resume.

An encumbrance is any right or interest in property that diminishes its value or restricts its use, including mortgages, liens, and easements. An easement is the most common type; it grants someone the right to use another's land for a specific purpose (such as a utility easement or right of way) without owning the land. Easements can be created by express grant, necessity, implication, or adverse possession and typically continue even after property is sold.

Deed restrictions (also called restrictive covenants or CC&Rs) are private agreements recorded in property deeds that limit how land can be used. Unlike zoning, which is a government regulation, deed restrictions are created by developers or property owners and enforced by homeowners' associations or neighboring property owners through civil lawsuits.

Adverse possession allows someone to gain legal ownership of another person's land by occupying it openly and continuously for a statutory period. The possession must be actual, open and notorious, exclusive, hostile (without permission), and continuous for the required number of years. The statutory period varies by state, ranging from 5 to 20 years.