Property Rights, Estates, and Ways to Own

Classifying property: real, personal, and fixtures

Most questions in this area ask you to classify an interest. First decide whether the item is real or personal property, then whether the interest is ownership or possession, and finally, if several people own together, whether survivorship exists.

Real property includes land, permanently attached improvements, and the legal rights that accompany ownership. The traditional bundle of rights is remembered as DEEP-C: disposition, enjoyment, exclusion, possession, and control. Personal property, also called personalty or chattel, is movable and is not permanently attached to the land. A fixture begins as personal property but becomes real property when it is attached with the intent that it remain.

To analyze a possible fixture, use the MARIA test: method of attachment, adaptation to the property, relationship of the parties, intention of the person attaching it, and agreement between the parties. The written agreement is usually the safest guide. Trade fixtures installed by a commercial tenant for business use are generally treated as the tenant's personal property if removed on time without substantial damage.

• DEEP-C: disposition, enjoyment, exclusion, possession, control
• Fixture: personal property converted to real property by attachment and intent
• MARIA: method, adaptation, relationship, intention, agreement
• Trade fixture: business item that normally remains the tenant's personal property

Freehold estates: ownership interests

A freehold estate is an ownership interest of uncertain duration. Fee simple absolute is the broadest private ownership interest and can continue indefinitely. It is inheritable, transferable, and subject to governmental powers and private restrictions.

A life estate lasts for the life of a named person. The life tenant has possession and use but must avoid waste. When the measuring life ends, the property passes either to a remainderman named when the life estate was created or back to the grantor through a reversion.

A conventional life estate is created by deed, will, or agreement, while a legal life estate arises by law.

• Fee simple: potentially unlimited duration and widest private ownership
• Life estate: ownership measured by a life
• Remainder: future interest in a third party
• Reversion: future interest returns to the grantor

Leasehold estates: possession without title

A leasehold estate gives a tenant possession rather than title. An estate for years has a definite beginning and ending date; despite its name, it may last less than one year. It ends automatically on the stated date without notice.

A periodic tenancy renews for successive periods until proper notice terminates it. An estate at will has no fixed duration and continues with the consent of both landlord and tenant. An estate at sufferance arises when a tenant who originally possessed lawfully remains after the right to possess has ended, without the landlord's consent.

• Estate for years: definite start and end
• Periodic tenancy: automatically renews by period
• Tenancy at will: possession with consent, no fixed end
• Tenancy at sufferance: wrongful holdover after lawful possession

Concurrent ownership: TIC, joint tenancy, and entirety

Tenancy in common is the usual form of co-ownership when no valid survivorship form is created. Each co-owner holds an undivided interest, the shares may be unequal, and each owner may transfer that owner's share. When an owner dies, that share passes through the deceased owner's estate rather than automatically to the other owners.

Joint tenancy can include a right of survivorship. Florida law requires the survivorship intention to be expressly stated; otherwise, the interest generally functions as a tenancy in common. The traditional unities are possession, interest, title, and time. A conveyance by one joint tenant can sever that tenant's joint interest.

Tenancy by the entireties is a special form available to married spouses. The spouses are treated as one ownership unit, and the estate includes survivorship. One spouse acting alone generally cannot convey the entire property. Divorce normally ends the entirety form and leaves the former spouses as tenants in common unless another arrangement applies.

• Tenancy in common: undivided interests, no automatic survivorship
• Joint tenancy: express survivorship language and the required unities
• Tenancy by the entireties: married spouses, survivorship, unity of marriage
• Severalty: ownership by one person or one legal entity

Homestead, condominiums, cooperatives, and timeshares

Florida homestead questions can involve three different concepts: creditor protection, restrictions on devise or transfer involving a spouse or minor child, and property-tax benefits for a permanent residence. Creditor protection is broad but not absolute; exceptions include taxes and assessments, purchase or improvement obligations, and labor performed on the property.

Tax exemptions and assessment limits are administered through the county property appraiser, and amounts can change, so verify current figures for a live transaction. A condominium purchaser receives title to an individual unit plus an undivided share of the common elements, administered under Chapter 718, Florida Statutes.

In a cooperative, the entity owns the real property, and the purchaser normally holds shares or membership plus a proprietary lease. An HOA governs through recorded covenants and is not the same as condominium ownership. A timeshare gives recurring use or ownership during specified periods under Chapter 721.

• Homestead: creditor protection, family transfer restriction, or property tax
• Homestead is not automatically free from every lien or forced sale
• Condominium: deed to unit plus share of common elements
• Cooperative: shares or membership plus occupancy right
• HOA: covenant-governed community ownership
• Timeshare: recurring interest or use during specified periods

Worked co-ownership math and exam traps

Three tenants in common sell property. After paying the mortgage and closing costs, net proceeds are $420,000. Their deeded ownership shares are 50%, 30%, and 20%. How much does each owner receive?

Owner A: $420,000 × 0.50 = $210,000. Owner B: $420,000 × 0.30 = $126,000. Owner C: $420,000 × 0.20 = $84,000. The total is $420,000. Tenants in common may own unequal shares, so never divide equally when the problem supplies percentages.

An estate for years is defined by fixed dates, not a one-year minimum. A tenant at sufferance began possession lawfully but holds over without consent. Tenancy in common has no automatic survivorship, and a condominium unit is deeded while a cooperative resident usually owns shares and an occupancy right.

• 50% owner: $210,000
• 30% owner: $126,000
• 20% owner: $84,000
• Total distributed: $420,000
• Holdover without consent = tenancy at sufferance
• No express survivorship = usually tenancy in common