Real property law

• Legal English
• Tertiary Education

Estates in Real Property

Freehold estates involve ownership. They have an indefinite duration and can last for a lifetime or forever. 

Examples of freehold estates include:

• Fee simple. A holder of an estate in fee simple is entitled to all rights in the property. It is the highest type of interest in real estate recognized by law. The estate is of unlimited duration, and when the owner dies, the estate passes to the owner's heirs.

• Life estate. A life estate is limited in duration to the life of the owner, or to the life or lives of some other designated person(s). Unlike a fee simple estate, a life estate is not considered an estate of inheritance.

Real property law

Real property is a parcel of land and everything that is permanently attached to the land. 

The owner of real property has all of the rights of ownership, including the right to possess, sell, lease, and enjoy the land. 

Real property may be classified according to its general use as residential, commercial, agricultural, industrial, or special purpose. 

In order to understand if you have the right to sell your home, you need to know which rights you possess—or don't possess—in the property.

Land is the earth's surface extending downward to the center of the earth and upward to infinity, including everything that is permanently attached by nature (or at least attached for the foreseeable future), such as boulders, trees, and water. Land also includes the minerals below the earth's surface and the airspace above the land.

Freehold estates

• Real property – immovable property: land, tenements, and hereditaments;

o Freehold estates – their duration is not determined

▪ The fee simple – a whole interest in a piece of real property; may pass through sale, inheritance or reversion to the State (escheat)

▪ The fee tail – an inheritable estate which lasts as long as the original grantee or any of his descendants live

▪ The life estate – an estate granted only for the life of the grantee

▪ The estate pur autre vie – similar to a life estate, except that the estate is granted for the life of someone other than the grantee

Leaseholds

o Leaseholds – their duration is fixed or capable of being fixed; created through a lease;

▪ A lease – a contract for exclusive possession, generally for a term of years, usually for a specified rent or compensation;

▪ A licence – does not confer exclusive possession;

1. What Is “Property”?

In common-law jurisdictions, property refers to the legal rights and interests that a person may hold in a tangible or intangible resource. Property is traditionally divided into:

Real property – land, together with any permanent structures or fixtures attached to it.

Personal property (chattels) – movable items and intangible rights that do not form part of land

Vocabulary

Decedent – a person who has died;

Heir – a person who is entitled to inherit property;

Grantor/assignor – a person who transfers property;

Grantee/assignee – a person to whom property is transferred;

Landlord/lessor – a person (usually the owner) who gives another person a lease in return

for rent;

Tenant/lessee – a person to whom a lease is given in return for rent ;

Key Terms

Estate – a legal interest in land determining its duration and the holder’s rights.

Interest – a more general right concerning land, including non-possessory rights.

Title – legal ownership of property.

Possession – physical control of land coupled with an intention to possess.

Fee simple – the most extensive form of ownership in common law.

e.g. Right to encumber

"Notwithstanding anything to the contrary in the Master Lease, Sublessor shall not have the right to encumber its leasehold estate during the Sublease Term."  (Document Eargo, Inc.)

"No Independent Trustee, his or her designated beneficiary or estate or any other person shall have the right to encumber, pledge, sell, assign or transfer the right to receive payments under this Plan, except by will or by the laws of descent and distribution. All such payments and the right thereto are expressly declared to be non-assignable." (Document Fidelity Rutland Square Trust II)

2. Bundle of Rights

Ownership is conceptualized as a bundle of sticks:

Key Terms (ILE-conform)

• Right of possession
• Right of use and enjoyment
• Right to exclude third parties
• Right to lease, transfer or encumber the property
• Right of disposition (including sale or testamentary transfer)

Case Example: Jacque v. Steenberg Homes (Wisconsin 1997) – Court recognized the robustness of the right to exclude, awarding punitive damages even without physical damage to land.

1. Fee Simple Absolute

A fee simple absolute is the most complete estate recognised in the common law. It is:

• Potentially unlimited in duration
• Freely alienable /ˈeɪ.li.ən.ə.bəl/  (transferable inter vivos)
• Devisable (transferable by will)
• Descendible (passing to heirs upon intestacy- ro. succesiune ab intestat )

Traditional Granting Formula

“To A and his heirs” – although modern statutes often provide that “To A” is sufficient to create a fee simple.

Case reference:

White v Brown – ambiguous grants are construed in favour of a fee simple unless explicit limiting language is used.

Life Estate

A life estate is an estate limited to the life of the tenant or another designated person.

Grant Example: “To A for life.”

Duties of a Life Tenant

The life tenant must not commit waste, defined as conduct that substantially decreases the property’s value or prejudices future interest holders. Waste may be:

• Voluntary (affirmative) waste – intentional acts diminishing value.
• Permissive waste – failure to maintain or repair.
• Ameliorative waste – substantial alterations, even if increasing value, when inconsistent with the grantor’s intent.

Case reference: Baker v Weedon – court may authorise sale to prevent waste where necessary to protect all interests.

Estate Pur Autre Vie

An estate pur autre vie (“for the life of another”) is a life estate measured by the life of a person other than the life tenant.

Key Characteristics

The measuring life is a third party, not the holder of the estate.

The state terminates upon the death of the measuring life, regardless of whether the life tenant is still alive.

The life tenant may transfer the estate to another party, but it always expires upon the death of the measuring life.

Rights and Duties of the Holder

Holder has exclusive possession and use during the measuring life.

Must avoid waste (voluntary, permissive, and ameliorative).

Upon termination:

Property returns to the grantor (reversion), or Passes to a designated remainderman (ro. beneficiar final)

Real Estate Transactions

A covenant is a legally binding promise written into a deed or contract. It restricts or obligates certain actions by a property owner.

Types:

• Restrictive covenant: Prevents the owner from doing something (e.g., “No commercial activity on the property”).
  
• Affirmative covenant: Requires the owner to do something (e.g., maintain a shared road).
  

Covenants “run with the land,” meaning they apply not only to the current owner but to all future owners unless legally removed.

Example in practice: A homeowner buys a house in a subdivision with a covenant requiring them to maintain the lawn to community standards.

Gazumping occurs when a seller accepts a higher offer from a new buyer after already agreeing (informally or non-bindingly) to sell the property to someone else.

Where it occurs: Common in some markets (e.g., the UK) where offers are not legally binding until exchange of contracts.

Impact: The original buyer loses the property/ They may also lose money spent on inspections or legal checks.

Example in practice: You agree on a price to buy a house, but before contracts are signed, the seller finds another buyer who offers more and sells to them instead.

Escrow is a neutral arrangement where a third party holds money or documents until certain conditions of the transaction are fulfilled.

Purpose: Provides security for both buyer and seller.

In real estate: The buyer deposits the purchase funds into an escrow account. The money is released to the seller only when all conditions—such as inspections, title checks, and loan approvals—are satisfied.

Example in practice: You deposit your down payment into escrow; it is only released when the seller delivers clear title.

A lien is a legal claim against a property as security for a debt.

Types:

• Mortgage lien: Created when you borrow money to buy the property.
  
• Tax lien: Imposed for unpaid taxes.
  
• Mechanic’s lien: Filed by contractors who haven’t been paid.

Effect on the owner: A lien must be paid off before the property can be sold with clear title.

Example in practice: A contractor adds a lien to your home because you haven’t paid for the renovation work.

Foreclosure is the legal process by which a lender takes possession of a property when the borrower fails to make mortgage payments.

Process overview: 

• Borrower defaults on payments.
  
• Lender issues warning/notice.
  
• Lender begins foreclosure proceedings.
  
• Property is sold (usually via auction).
  
• Proceeds go toward repaying the outstanding mortgage.
  

Impact: The borrower loses the home and their credit score is severely affected.

Example in practice:A homeowner loses their house because they missed too many mortgage payments and the bank repossessed it.

An easement gives someone the legal right to use part of another person’s property for a specific purpose.

Common examples:

• Right-of-way: Letting neighbours pass through your land to reach a road.
  
• Utility easement: Allowing utility companies access for power lines, pipes, etc.
  
• Drainage easement: Allowing water flow infrastructure across your property.
  

Key point: Easements usually remain attached to the property even when ownership changes.

Example in practice: Your driveway crosses a corner of your neighbour’s land due to a recorded easement.

In real-estate transactions, covenants, easements, and encumbrances define how a property can be used. 

Liens represent financial claims, while foreclosure is the forced sale of a property if debts aren’t paid. Escrow ensures secure and neutral handling of money and documents, whereas gazumping highlights the risks when offers aren’t yet legally binding. 

Understanding these concepts helps buyers, sellers, and investors navigate transactions with clarity and legal protection.

An encumbrance is any claim, right, or legal liability on a property that can affect its value or restrict its use.

Types of encumbrances include:

• Liens
  
• Easements
  
• Restrictive covenants
  
• Encroachments
  
• Leases
  

Why it matters: Encumbrances must be checked during a title search to ensure the buyer knows about all restrictions or claims.

Example in practice: A property you want to buy has an encumbrance: a neighbour’s fence encroaches onto the land.

Text:

“Sarah bought a piece of land from her neighbor last year. After paying the full price, she moved a fence so it matched what she believed were the correct boundaries. Later, another neighbor claimed that part of the land Sarah thought she owned actually belonged to him. Now Sarah wants to know who legally owns that disputed strip of land and what steps she should take to protect her rights.”

A. Structure & Focus

Identify the legal issue(s)

– e.g., ownership, boundary disputes, title validity.

State the material facts only

– Remove emotional or unnecessary narrative details.

Use formal, objective language

– Avoid personal pronouns where possible.

Organize information logically

– Background → Issue → Applicable principles (if relevant) → Conclusion.

Use legal terminology

– “purchased” → “acquired title to the property”

– “piece of land” → “parcel of real property”

– “belongs to him” → “he asserts legal ownership”

– “disputed strip of land” → “contested portion of the parcel”

Use precise verbs

– “claims” → “alleges” or “asserts”

– “wants to know” → “seeks clarification regarding”

Prefer passive or neutral constructions

– “It is alleged that…”

– “The boundary was altered…”

Avoid colloquial expressions

– Replace casual words (“moved a fence”) with formal alternatives (“altered the boundary structure”).

Integrate

Reference relevant property law concepts, such as:

– boundary demarcation

– title ownership

– encroachment

– adverse possession (if appropriate)

– registration of property rights

Indicate potential legal steps

– title search

– land survey

– dispute resolution or court action

– registration of corrected boundaries

Use concise sentences — no storytelling.

Remove assumptions and subjective language.

Ensure that every sentence states a fact or a legal conclusion.

Avoid rhetorical questions; provide legal framing instead.