Real Property Ownership, Interests, and Encumbrances
Estates and ownership forms
Fee simple absolute is the most complete ownership; lesser freeholds (life estate, fee simple determinable) limit use or duration. Co-ownership in Texas comes in three main flavors: tenancy in common (no survivorship, unequal shares allowed), joint tenancy with right of survivorship (must be created expressly in writing), and community property, because Texas is a community property state. Property acquired during marriage through labor or earnings is community; property owned before marriage or received by gift or inheritance is separate.
Interests and encumbrances
- An easement appurtenant benefits a neighboring parcel and transfers with it; an easement in gross benefits a person or entity, like a utility.
- A prescriptive easement requires open, notorious, adverse, continuous use, generally about ten years in Texas. Adverse possession statutes range from 3 to 25 years depending on the claim.
- Liens include the property tax lien, mechanic's lien, judgment lien, and deed of trust lien.
- Deed restrictions and CC&Rs run with the land; zoning is a police-power regulation, not an encumbrance.
Texas traits worth memorizing
Texas operates in practice as a lien-theory state: the borrower keeps title and the lender holds a deed of trust, foreclosed non-judicially by a trustee. Homestead protection is constitutional and strong. Mineral estates can be severed from the surface, and the mineral owner holds the dominant estate.
Traps
Questions love to mislabel an easement as a lien, or zoning as an encumbrance. A life tenant may not commit waste, and a remainder interest is a future interest, not a present right to possess.
Worked example
A recorded driveway easement benefiting Lot B across Lot A transfers automatically when Lot B is sold, even though the deed to Lot B never mentions it.