Real Estate - Interest In Land
( Originally Published 1911 )
Rights of ownership divided.—Land has existed from the beginning of property, and is indestructible in its nature. Each piece of land has a history, and many persons, having various and conflicting rights, may have been interested, either successively or concurrently, in its ownership. These various rights to ownership are divided into estates and chattel interests.
Estates are rights in real estate which amount to real property. They may be perpetual or be measured by a life or lives.
All interests in land which, in the eyes of the law, are of less importance or less duration than estates, all rights which are not measured by a life or lives or longer, are chattel interests.
Limitations upon ownership.—The highest form of ownership of anything, personal property or land, would be unlimited in duration and unfettered by any limitations upon use; but there is no such thing in any civilized community. All property is liable, in every civilized community, to those limitations upon its use or ownership which the necessities of civilized life, as ex-pressed in the law, impose; but our civilization is founded upon the very greatest respect for private rights and ownership, and any interference with these can be justified only upon the highest grounds of public policy.
The absolute dominion of the owner of real property over that which he owns is affected by four important limitations arising out of the necessities of civilized life: (1) The police power, (2) The ultimate and original ownership of the state, (3) The right of eminent do-main, (4) The right of taxation. The right to enforce these limitations lies with the state.
Police power.—Ownership of land is confined within the right of the community to keep property from being used in such manner that it will hurt the life, health or morals of others. The owner of land on which stands an unsanitary tenement house, which is a menace to health, may think his right to keep the building there cannot be questioned, but the police power of the state will either order that the building be taken down, or that such changes be made in it as the enlightened sense of the community finds necessary for the preservation of life and health. If the erection of a new tenement be begun, certain standards of light and ventilation must be observed, only a percentage of the land can be used, certain appurtenances for cleanliness and opportunities for escape in case of danger must be provided; and unless the requirements of the law are observed, the police power of the state will circumscribe the owner's dominion over his land and prevent the erection of a tenement house upon it.
The Tenement House Law of the State of New York is one of the most drastic, enlightened and necessary exercises of the police power of a civilized community, and it has had to fight its way just because it is an in-fraction of what persons have thought was their natural right to the absolute ownership of that for which they paid, or which they inherited from their ancestors.
11. Ultimate and original ownership of the state. Another limitation upon ownership of land is the principle that the state is assumed to be the original proprietor of all land and to have the ultimate title. Modern ownership is traceable to some form of grant from the sovereign, who may be the people or their sovereign predecessors, the colonies, or the king. In the western states title can frequently be traced to a grant from the United States in very recent times. Although land is assumed to belong to the person to whom the grant is made and to his heirs and assigns forever, yet, if he leave no heirs capable of inheriting, it escheats to the state. It cannot be permitted that land which no one is entitled to inherit become a subject for dispute or strife, so the principle that the state is the ultimate owner is necessary for the preservation of law and order.
The right of eminent domain.—If at any time the state finds a specific necessity for the use of land, it has a right to redeem it under the principle of eminent domain ; but the state's right of eminent domain is limited by express constitutional requirement that it shall be exercised only upon condition that fair compensation be made for the property taken.
The right of taxation.—The necessities of civilized government require that those enjoying its benefits, contribute to its support. This is done, frequently by laying a tax upon property, and as real property is permanent and cannot be moved from the domain of the tax gatherer, it is often the basis of state and local taxation.
Estate in fee simple.---The largest estate in land known to our law is a fee simple or a fee simple absolute, the terms being synonymous. A fee simple is the right to own land, to one, his heirs and assigns, without limit as to time, but subject to the limitations above mentioned, which are understood as affecting all land.
Commercially this is the estate which is usually dealt in, and a contract to sell a piece of property, unless other-wise limited, implies a contract to sell the property in fee simple.
All interests in land less than a fee simple imply that somewhere else in some other person or persons there is or will be the residue, which when added to the particular estate, will make up the fee simple absolute.
Estate in fee upon condition subsequent.—This is an estate which may last forever, unless an event occur upon the happening of which the creator of the estate or the heirs of such creator become entitled to reclaim the property. If A give a piece of land to B, his heirs and assigns forever, but upon the condition that if at any time liquor be sold upon the property, then B's right shall end, and A shall have the right to recover the property, the estate of the person in possession is an estate in fee upon condition; and left in A is the residue of the fee simple, the possibility that the land will come back to him, which is known technically as a possibility of reverter. The possibility of reverter can be released to the person who has the conditional estate, but in itself it is inalienable, and is not a present property right.
Estate in fee determinable.—If instead of making a condition which might or might not happen, A gave the land to B to have forever, but provided, if B should die leaving no children, that the property go to someone else, B's interest would be a fee determinable because it would terminate in case a contingency happened for which A provided, and it would be determined within a definite time measured by a life or lives, whether the contingency did or did not occur.
The difference between a fee determinable and a fee upon condition is that in the fee upon condition there may never come a time when it will be determined whether or not the condition has been broken ; whereas, in the fee determinable, it can be found out within a time which may be determined, whether or not the condition upon which the estate shall end has happened.
Life estates and remainders.—Estates may be so granted that the present interest is not a fee, but is measured absolutely by the duration of a life or lives, and there belongs to another person or persons the right to take the property after the present interest ends. A right to own land during a life or lives is denominated a life estate; the future interest which will vest in possession after the end of a life estate is known as a remainder. Life estates may be measured by the life of the possessor, or of another person or persons. Remainders may be contingent or vested. A vested remainder is the indefeasible right to take real property after the termination of a particular estate, or the right to take the property if the particular estate were to terminate immediately. A contingent remainder is one which may vest in possession if events happen which defeat the vested remainder.
Examples of these two interests are as follows :
If A grant a piece of land to B to have during his life, but provides that after his death it go to C, C's right to possess the property after the life estate is known as a vested remainder, there being nothing contingent about it. B has the land during his life, and he may sell this life interest, but when he dies, the right of C, the remainderman, accrues, and it is always definitely known who will take the remainder.
If A grant a piece of land to B, his heirs and assigns, forever, but provide that if B die without children, then it go to C, that which is given to C is known as a remainder; and as it cannot be known until the time comes whether C will ever get that remainder, it is called a contingent remainder.
Dower.—There are two other important interests in real property, which should be considered here. Upon the death of the husband, the wife becomes entitled to the use for her life of one-third of his real property or to one-third of the rents of his real property. In many states, including the State of New York, no act of the husband can defeat that right, and in those states in order that upon a sale or conveyance of property that interest be barred, it is necessary that the wife shall join her husband in conveying or that she release her interest to the owner. The act must be voluntary, and in some states it is necessary that the wife shall privately acknowledge that it is her free act, without compulsion on the part of her husband. In many other states the wife is endowed only of such property as the husband may own at the time of his death.
Estates by curtesy.—There is a similar right which husbands have in the real property owned by their wives, known as an estate by the curtesy. If there be real property owned by a wife at the time of her death not disposed of by will, or not having been alienated during her life, and there has been a child or children (whether the child survive or not) the husband is en-titled to the use for life of the real property thus left, or to take the rents of the property during his life. That interest of the husband can be defeated at any time by the wife.
Chattel interests.—The principal chattel interest relating to real property is a leasehold or lease. A lease-hold is a right to occupy the land of another in consideration of paying rent. A lease for 999 years is a chattel just as much as a letting from month to month. Each is a leasehold; in each there are the same incidents; the difference is only in the length of the term.
Another chattel interest in real property is a lien. A lien is a claim upon the property of another which if not satisfied, entitles the holder of the lien to sell or require the sale of the property. Liens may exist in favor of a money creditor or in favor of the holder of an obligation which cannot be easily expressed in money.
Method of proving ownership.—Historically the earliest method of transfer of ownership of land was by some open. act upon or connected with the land. It was customary for the buyer and seller to resort to the place and publicly acknowledge that the buyer had be-come the owner of the property. But transactions of that sort rested only in the memory of living persons, and might be forgotten; and there might be disputes of fact as to the persons between whom such transactions had taken place, so that in more modern times it became customary to evidence the transfer of land by a permanent written instrument, or by an open acknowledgment in court and a record of such acknowledgment upon the court records. For years the English method of conveyance by written instrument continued until it became necessary (by reason of the fact that written instruments may be lost and the evidence of them lost) that there be some place in which they could be recorded and their contents made matter of public notoriety. From this necessity was evolved the present method of public record, by which all instruments which bear testimony to claims for or against land are made matter of public record, and all who deal with land are presumed to have notice of the contents of the record.