Robbins: Interests in real property

There are many ways to own, occupy, possess, and make use of real property, each of which is referred to as an “interest” in real property. But before we get there, let’s define some terms.

“Real” property refers to land, including the land itself and any structures, fixtures, and rights associated with it. A structure is self-explanatory while a “fixture” is something affixed to the land or structure which, at least in theory, could be removed. A bathroom sink is a fixture.

All property that is not “real” is “personal,” often referred to as chattels (derived from the word “cattle” which, although mooingly real, are not “real” property).

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How, then, may one have an interest in real property?

Let me count the ways.

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First, and what seems the simplest, is to own the property which is known as a “freehold estate,” “estate” just being a fancy word for the property itself, that which is owned or otherwise possessed. Although beyond the narrow scope of this column — although I will venture there another day — even what seems to be the simple and intuitive concept of “ownership” can be a little slippery: how does one own the property, how did one acquire it (for example, by purchase, inheritance, condemnation, foreclosure, or adverse possession)? How is the title held? Is the chain of title clear? Are there “encumbrances” burdening the property? Still, we all can likely grasp the concept of “it’s mine all mine!”

Freehold estates are those in which an individual has ownership for an indefinite period. An example of a freehold estate is one that is owned in “fee simple absolute” (often referred to as a “fee simple” interest) which is inheritable and lasts as long as the individual and their heirs wish to keep it. Another example is a “life estate” in which an individual retains possession of the land for the duration of their lifetime. The latter of these two estates is one often created by a trust or by testamentary/estate planning instruments.

Nonetheless, a fee estate is a fee estate and the “freeholder” may possess the property in what is sometimes referred to “as against the whole world.”

So, what about nonfreehold estates?

Nonfreehold estates are property interests — most of which you will likely be familiar — that are of limited duration, including tenancies for years, tenancies at will, and tenancies at sufferance. Your lease, if you have one, is likely a tenancy for years. Upon the payment of rent and the other conditions of the lease, you may possess the property for the term recited therein.  

Tenancies at will and at sufferance are more indefinite. Instead of for a specific duration, a tenancy as will is one without a predetermined duration for the tenancy. As such either party can terminate this tenancy at any time. And a tenancy at sufferance is sorta what it sounds like — it is created when a tenant wrongfully holds over beyond the end of the duration period of the tenancy (for example, a tenant who stays past the expiration of their lease). In this case, the landlord can “suffer” the tenant and hold him or her over to a new tenancy, and collect rent for the period the tenant has held over.

But wait, there’s more.

Other “interests” may include that as the holder of an easement and/or a licensee.

So let’s explain.

An easement is the grant of a nonpossessory property interest in real property that provides the easement holder permission to use another person’s land. There are, as might be expected, different kinds of easements. If an “easement appurtenant” is granted, it involves two pieces of land, where one serves as the “servient tenement” that bears the burden of the easement, and the other the “dominant tenement,” which benefits from the grant of the easement and has permission to use the servient land in some manner.

Like fee or freehold interests, easements can be created in a variety of ways. They can be created by an express grant, by implication, by necessity, and by adverse possession. Easements are generally transferrable and transfer along with the dominant tenement. They can also, under some conditions, be terminated, for example, where it was created by necessity and the necessity ceases to exist.

Lastly, there are licenses. While perhaps not technically an interest in real property itself, a license grants the license holder certain rights, often to make a specific use of real property: to extract gravel, to harvest crops or timber, to graze livestock, and to exploit defined mineral rights are all examples.

Over interests in real property, their protection, and their preservation is what modern Anglo-American law itself originally arose. As such, rights therein are as close to sacrosanct as one may encounter in the form and substance of the law.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” “Why I Walk so Slow” and “He Said They Came From Mars (stories from the edge of the legal universe)” and “The Theory of Dancing Mice” are currently available at fine booksellers.