Q. It appears to me that real estate can be owned in different ways and sold or given to someone else in different ways. Can you simplify some of these terms and conditions?
Real estate practice among lawyers can be difficult when determining who has rightful ownership of real property. It’s just about as difficult to begin a generic discussion.
The best form of ownership is, fee simple absolute. It is absolute in ownership and allows the owner to sell to whomever and to bequeath to whomever. An earlier form called fee tail, was many years ago abolished in Alabama and called for land inheritance of certain heirs. If those heirs ran out, then the land went back to the heirs of the original land grantor.
Confused? We’re just getting started.
Another form of ownership seen too often in the rural South sometimes among African- Americans is “heir property.” Heir property is not really a qualified ownership interest. It occurs when a decedent dies without a Last Will and Testament and the estate is not disposed of through the probate process. The heirs continue to pay property taxes on behalf of the decedent, but as generations go on there is less and less a clear view of who the rightful owner(s) should be. The biggest problem comes when there is a desire to sell the property and the rightful owners have to be adjudicated in order to correctly transfer the title of the real property.
Among married spouses, the home or other real property is held as, tenancy in the entirety and with right of survivorship. This simply means, that upon the death of the first spouse, the real property transfers to the surviving spouse under operation of law. That makes things pretty easy. Any other group of individuals can hold real property as joint tenants. This means that when one of the joint tenants dies, that persons interest goes to his heir(s) or whomever so noted in his Last Will and Testament. So friends, Barney and Fred can have hunting land together (in fee simple) and when Fred dies, Barney would then own the hunting land with Fred’s wife, Wilma to possibly include Bam Bam. But if Barney and Fred buy the land and include a provision in their joint tenancy having right of survivorship, then Barney can own the land solely and in fee simple.
A form of ownership is one thing, but the type deed is another. The best deed is a Warranty Deed. If you look at the Deed to your home that is probably what you will see. If you are divorced and receive the marital home in the divorce settlement, then the vacating spouse would execute a Quit Claim Deed wherein they transfer all interest in the home that they have (whatever that interest might be) to the spouse that receives the real property in the decree.
Another type Deed might be claimed in Quiet Title. This typically stems from the adverse possession of another’s land. The rules in Alabama require, actual possession of it that is open, notorious, exclusive and adverse to the claims of other persons to the title. If there is a title or color of title meeting the requirements above and paying taxes, then only ten years are required to claim Quiet Title, but if no color of title is available, meeting all of the possession and tax requirements above require twenty years before one can seek Quiet Title. This is where neighbors get a bit concerned when fence lines change and tend to start including a bit of the property of the neighbor. Certainly if you own some property that you rarely visit you will want to do so every few years and make sure that no one is “occupying” it without your permission.
Parents that want to gift real property to their children by operation of law rather that through their Last Will and Testament might do so by executing a Life Estate Deed With Remainder Interest. Upon the death of that person having a Life Estate, then the remainder interest goes to the person or persons listed with remainder interests. The real property cannot be sold unless both the person with the life estate and the remaindermen all agree to sell the property. Other items needing greater space for this column include property tax responsibilities and the created basis of the property should the remaindermen decide to sell the property at a time after the death of the life tenant. If someone gifts real property to an heir under a Last Will and Testament, it vests immediately in the person(s) named in the Will, but the actual transfer by Deed may not be done for several months while the Probate process is completed.
These are some of the basics of real property law and confusing for the average lawyer. Hopefully, I have not made this too difficult to understand. If you have a real property issue, see a real estate lawyer to get it resolved as they can be very messy. Many real estate problems arise between neighbors and such adverse situations can make it difficult to live next to one another. If you are unfamiliar with a real estate lawyer to use, call the Alabama State Bar and ask for a referral through the Alabama Lawyer Referral system.
I hope that each of you have a blessed Easter and have an opportunity to reflect on the risen Lord, His love for us and your own eternal destination.
This article is informative only and not meant to be all inclusive. Additionally this article does not serve as legal advice to the reader and does not constitute an attorney- client relationship. The reader should seek counsel from their attorney should any questions exist. "No representation is made that the quality of legal services performed is greater than the quality of legal services performed by other lawyers."
Ronald A. Holtsford, Esq.
Ronald A. Holtsford, LLC
7956 Vaughn Road, Box #124
Montgomery, AL 36116
(334) 220-3700 firstname.lastname@example.org