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20 CAR § 502-427. Forms of ownership
20 CAR § 502-427. Forms of ownership.
(a) Fee simple ownership.
(1) When property is held in fee simple, the owner has sole ownership interests.
(2) He or she alone, or his or her legal guardian if mentally incompetent, may sell or transfer ownership interest without conditions imposed by others.
(b) Shared ownership.
(1)(A) Shared ownership means that ownership interest in property is vested with more than one (1) person.
(B) Shared ownership may be by:
(i) Joint tenancy;
(ii) Tenancy in common; or
(iii) For a married couple, tenancy by the entirety.
(2) Joint tenancy.
(A) In joint tenancy, each of two (2) or more joint tenants has an equal interest in the whole property for the duration of the tenancy.
(B) On the death of one (1) of two (2) joint tenants, the survivor becomes sole owner.
(3) Tenancy in common.
(A) In tenancy in common, two (2) or more persons have an undivided fractional interest in the whole property for the duration of the tenancy.
(B) There is no right to survivorship to a tenancy in common.
(4) Tenancy by the entirety.
(A) Tenancy by the entirety results when a conveyance is made to a husband and wife, whereupon each becomes possessed of the entire estate, and after death of one, the survivor takes the whole.
(B) Real estate owned by a married couple by the entirety is marketable only by consent of both parties.
(C) When a marriage has been legally dissolved, former spouses become tenants in common of the property, and either person can market his or her half share, unless conditions in the divorce decree specify otherwise.
(c) Life estates.
(1) Life estates.
(A) A life estate conveys upon an individual or individuals for his or her lifetime, certain rights in property.
(B) Its duration is measured by the lifetime of the tenant or of another person.
(C) The owner of a life estate has the right:
(i) Of possession;
(ii) To use the property;
(iii) To obtain profits from the property; and
(iv) To sell his or her life estate interest.
(D) However, the document establishing the life estate may restrain one (1) or more of the individual’s rights.
(E) He or she does not have title to the property or the right to sell the property.
(2) Remainder interest.
(A) When an individual conveys property to another for life (life estate) and to a second person or persons (remainderman) upon the death of the life estate holder, both a life estate interest and a remainder interest have been created in the property.
(B) Upon death of the life estate holder, the remainderman will own full title.
(C) Several individuals may be designated as remaindermen who would hold ownership jointly or in common, as specified by will or deed.
(d) Ownership interest in unprobated estate. An individual may have ownership interest in an unprobated estate if he or she is an heir or relative of the deceased, or has acquired rights on the property due to the death of the deceased, in accordance with a will or state intestacy laws.
(e) Dower/curtesy.
(1)(A) State law for dower and curtesy gives a spouse an interest in the other spouse’s property.
(B) When the deceased leaves no will, dower or curtesy may be claimed.
(C) When the deceased leaves a valid will, a widowed spouse can elect to take against the will when he or she would have a greater right to dower or curtesy than the will provides.
(2)(A) If there are questions regarding the dower or curtesy interest, the Office of Chief Counsel of the Department of Human Services will be contacted.
(B) A memorandum will be submitted to the Office of Program Planning and Development, Central Office, Slot S333.
(C) The memo should:
(i) Be from the Program Eligibility Coordinator; and
(ii) Contain a complete description of the circumstances and copies of all pertinent documents.
(D) When requesting an opinion, indicate whether or not there are direct descendants (children, grandchildren, etc.).
(f) Rights to use. An individual may have ownership of certain property rights such as:
(1)(A) Mineral rights.
(B) A mineral right is an ownership interest in certain natural resources that are usually obtained from the ground, such as coal, sulfur, petroleum, sand, natural gas, etc.;
(2)(A) Timber rights.
(B) Timber rights permit an individual to cut and remove freestanding trees from property owned by another.
(C) A life tenant also has certain timber rights in keeping with good husbandry;
(3)(A) Easement.
(B) An easement is a property right whereby one has the right to use of the land of another for a special purpose; and
(4)(A) Leasehold.
(B) A leasehold conveys to an individual, at the owner’s will and usually for an agreed rent, the control of property for a definite period of time.
(C) It does not designate rights of ownership.
(D) Leaseholds may be carved out of life estates.