EAGLESTAR.NET LAND AND PROPERTY REVIEW
http://www.eaglestar.net
Issue #35
September 22, 2008

IN THIS ISSUE:
Properties of the Week: Virginia
- 93 Acres Secluded Land with Home and Cottage
- 3 Lots Commercial Raw Land and Pads
- 4,000 Acres Coal Reserve Land
Real Estate Roundup: Ownership of Real Estate by Married Couples
LandTerms.com Terms of the Week:
- Decedent, Dower and Curtesy, Intestate
Sponsor's Corner: Land's End on Lake Anna, VA
Auction News: AL, CA, FL, GA, IL, IN, KY, and OK


"Marriage is nothing but a civil contract." - from Table Talk (1689)
- John Selden (English scholar of law, b. 1584 - d. 1654)


PROPERTIES OF THE WEEK: VIRGINIA AND WEST VIRGINIA
93 Acres Secluded Land with Home and Cottage
Amherst, Amherst County, Virginia
93+/- secluded acres of prime hunting land just 26 miles from the Blue Ridge
Pkwy in central VA. 15-20 acres cleared with balance in mature hardwood trees.
3 streams, hiking trails, 5 tree stands, and an excellent deep well. Property
includes 3 bedroom, 2.5 bath main home with numerous interior features and a 1
bedroom, 1 bath cottage. 2 barns also included. Location just minutes from
major shopping centers, 11 universities/colleges, and 3 golf courses.
Approximately 110 miles from Washington, D.C. Listing ID: 20959. See photos
and more information at http://www.eaglestar.net/pbt.html.

3 Lots Commercial Raw Land and Pads
Dublin, Pulaski County, Virginia
Pad-ready lots. Lot #1: 3.2+/- acres, lot #2: 2.7+/- acres, lot #3: 1+/- acre.
Raw commercial land, 5.5+/- acres. All utilities available. Interstate 81
property, approximately 40,000 cars per day. Route 100 (Cleburne Blvd.) road
frontage, approximately 20,000 cars per day. Fast growing area in southwest
Virginia. Listing ID: 20482. Contact and other information available at
http://www.eaglestar.net/tgrn.html.

4,000 Acres Coal Reserve Land
West Virginia
Selling over 22 million tons coal reserves on over 4,000 acre property in West
Virginia. Appraisal updated in 2007 and confirmed by third party geologist.
Taxes are current. Other reserves with permits available. Listing ID: 20453.
Contact and other information available at http://www.eaglestar.net/hkl.html.


REAL ESTATE ROUNDUP:
OWNERSHIP OF REAL ESTATE BY MARRIED COUPLES
Depending on the state in which one lives, real property owned by married
couples may constitute a tenancy by the entirety, or it may be considered
community property. These are the two primary tenancies, or forms of real
estate ownership, reserved exclusively for married persons. Tenancy by the
entirety is derived from English common law, while the origins of community
property systems have much more in common with civil law jurisdictions.
Conceptually, they are quite different from one another. The major variances
include the way the marriage is legally viewed with respect to property rights,
the manner in which property can be conveyed, and the passage of interest
following the death of either spouse. These are crucial issues for anyone
dealing with marital property as a real estate professional as well as for
those who own marital property or may do so in the future.

Community Property vs. Common Law
With respect to the division of marital property, states in the U.S. may be
classified as either common law or community property states. In many common
law states, a married couple is considered to be one person or entity, legally
indivisible in terms of property ownership. Under a common law system, each
spouse owns only what he or she earns and is not entitled to income earned by
the other spouse. On the other hand, states that practice community property
view a marriage as a partnership of equals, with any property acquired during
the marriage owned equally by both spouses, although certain limitations apply.
Each spouse in a community property state owns exactly one-half of the
earnings of the other spouse. It should be emphasized that extreme caution and
due diligence should be exercised in any situation involving marital property.
States that share the same type of marital property system often have laws and
judicial decisions about those laws that are wildly divergent, if not
completely opposite.

States where the community property theory is practiced are Arizona,
California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and
Wisconsin. Eight of these states have a long history of using this system. In
the western states, community property systems evolved as a result of the
influence of the Mexican legal code, which has its roots in the civil law of
Spain. Louisiana's interpretation of community property is likewise rooted in
civil law, namely that of France. Wisconsin became a community property state
in 1986 following the passage of its Marital Property Act. The self-governing
U.S. territory of Puerto Rico also operates under the community property
system. The remaining states in the U.S. are classified as having common law
systems. Although essentially a common law state, Alaska allows married
couples to declare separate property to be community property; Alaska is thus
known as an "opt-in" community property state.

Community Property: Separate Property
Most property acquired during a marriage in community property states is
considered community property. Some property however, is considered separate
property and is owned in severalty (sole and separate ownership) by just one
spouse. Laws governing community property can differ greatly from state to
state, but certain general criteria can be used to distinguish separate
property from marital property. Property or funds owned solely by either
spouse prior to the marriage or property received as a gift or inheritance are
usually considered separate property. Property that has been purchased with
separate funds is also generally considered sole and separate property.
However, the community property states disagree on ownership of income
generated by separate property. According to the Internal Revenue Service,
income from most separate property is considered community property in Idaho,
Louisiana, Texas, and Wisconsin. Such income is regarded as separate property
in the remaining community property states. Since separate property is owned
in severalty and not part of the marital tenancy, it may be freely transferred
or encumbered without the consent of the other spouse.

Characteristics and Transfer of Community Property
All other property owned by a married couple that is not legally considered
sole and separate property is community property. Both spouses must agree to
any mortgage, lien, or transfer of community property, and both must sign the
documents necessary to do so. Like property owned under a joint tenancy, the
interest held by the owners of community property is equal and undivided.
Community property also shares with joint tenancy the "four unities" of time,
title, interest, and possession (see Issue #34 for a discussion of these
terms). Community property, however, does not automatically include a right of
survivorship, a distinguishing feature of a joint tenancy. This right allows
owners of joint property to automatically acquire the interest formerly held in
the property by a deceased co-owner following his or her death.

If spouses wish to include the right of survivorship as part of their
co-ownership of real estate, they merely have to state this intent on the
documents used to acquire title to the property. Only some states allow this
updated version of community property ownership, however. In any case, if the
right of survivorship is not explicitly stated on the title documents, then the
surviving spouse is entitled only to one-half of all community property. The
other half is transferred according to the will of the deceased spouse. If a
spouse dies intestate, then his or her interest in community property passes to
the surviving spouse or it may pass to other heirs. Laws governing the
question of who inherits the community property of an intestate decedent differ
by state.

Termination of Community Property
Ownership of community property may be terminated by any operation of law which
dissolves the marriage, as an annulment or divorce. If the parties do not
agree about the distribution of community property following such dissolution,
then a court must decide on an equitable split. Many states allow exactly that
- an "equitable distribution" of community property, which may not necessarily
mean equal portions, otherwise known as "unequal division". In other states,
such as California, the property must be split up according to the doctrine of
"equal distribution". In these states, the property must be divided equally
among both spouses. In the event this is not possible, the property is sold
and the proceeds are split equally between the two former spouses. Another way
to terminate interest in community property, at least in some states, is by any
action of or agreement between the spouses that demonstrates the intent to
disavow ownership of community property, such as a disclaimer deed.

Ownership of Marital Property in Common Law States
In common law states without tenancy by the entirety, spouses usually own
marital property as joint tenants, relatively similar to community property
ownership, except that a joint tenancy is not exclusive to married people.
Tenancy by the entirety is an alternate form of ownership reserved for married
couples that is available in many common law states.
Tenancies by the entirety are a special form of property ownership that can
protect against creditors if one spouse incurs debts or declares bankruptcy.
Under a community property or joint tenancy arrangement, liens can be placed
and judgments sought against co-owned property to satisfy debts incurred by any
spouse or co-owner.

In contrast, property owned under a tenancy by the entirety cannot be seized or
encumbered due to the indebtedness of just one spouse. However, if both
spouses are responsible for the debt, this protection does not apply. Some
states allow tenancy by the entirety for all property, while a handful offer
this form of ownership for real estate only. A complete list of states that
allow tenancies by the entirety is included below.

Characteristics of Tenancies by the Entirety
Like joint tenancy or community property, spouses owning real property in a
tenancy by the entirety hold an equal, undivided share of the interest in the
property (known as dower and curtesy - see the LandTerms.com Terms of the Week
in this issue for explanations of these concepts). The two spouses who are
parties to a tenancy by the entirety are called tenants by the entirety. The
very name of this type of ownership indicates its basis in common law -
"entirety" refers to the fact that a married couple is legally considered to be
one entire, indivisible person, and to the fact that together, the husband and
wife own title to the whole property (its "entirety"). A tenancy by the
entirety always includes as a characteristic feature an automatic right of
survivorship.

Transfer and Termination of Property Owned as Tenants by the Entirety
The only way that tenants by the entirety can convey real property is if both
sign the deed. The entire property must be conveyed at once; spouses who own
property this way generally do not have the right to partition or divide the
property, nor may they convey any fractional portion of interest, even to each
other. In order to end or terminate the tenancy, both tenants by the entirety
must together convey the whole property at once. They may choose to transfer
the property to another, or both spouses together may convey the whole property
to one spouse, or to a third or "straw" party who then deeds it back to one of
the spouses.

Married couples often use tenancies by the entirety not only to protect their
property from creditors, but to avoid lengthy and unnecessary probate
proceedings as well. When either tenant by the entirety dies, the other takes
title to and possession of the property automatically and without court action,
to the exclusion of any other heirs of the deceased spouse, no matter what was
decreed in his or her will. A divorce will also terminate a tenancy by the
entirety, changing the property ownership to a tenancy in common (see Issue #34
for an explanation of this type of property ownership), as will a judgment
issued jointly against a husband and wife.

The statutes of each individual state in the U.S., along with local and state
court interpretation of those statutes, ultimately regulate the manner in which
title to and interest in marital property may be held. Most of these state
statutes are readily available online. The community property system,
automatic in 9 states, views property acquired during the marriage as the joint
and common property of both spouses. In common law states, income and property
belong to the spouse that earned them. However, many common law states allow
tenancies by the entirety, which ensures that a surviving spouse gains
ownership of marital property following the death of the other spouse. Each
type of ownership is unique, as are the sets of state laws that regulate each.
Being familiar with the general rules of each type of marital property
ownership as well as the laws and interpretations specific to one's own state
can help to avoid future problems. As always, consultation with an attorney,
financial planner, or other real estate professional is advised before entering
into any sort of joint ownership arrangement.

List of Common Law States with Tenancy by the Entirety for All Property:
Alaska, Arkansas, Delaware, District of Columbia, Florida, Hawaii, Maryland,
Massachusetts, Mississippi, Missouri, New Jersey, Oklahoma, Pennsylvania, Rhode
Island, Tennessee, Vermont, Virginia, Tennessee, Wyoming

List of Common Law States with Tenancy by the Entirety for Real Estate Only:
Illinois, Indiana, Kentucky, Michigan, New York, North Carolina, Oregon

List of Community Property States and Territories:
Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington,
Wisconsin, Puerto Rico

List of Common Law States:
All states not included as community property states above

Issue #34 of the Land and Property Review (Concurrent Tenancies: Joint Tenancy
and Tenancy in Common) - http://www.eaglestar.net/newsletter/index.cgi?ID=34

IRS Publication 555 - Community Property is a great resource for figuring out
issues and answering questions such as:
- What is community property and/or income and what is separate property in
each state?
- What states have alternate definitions or are exceptions to the general
rules?
- Tax reporting for separate and community property and income
- Situations where community property laws may be disregarded
This publication is available online as a .pdf file at
http://www.irs.gov/pub/irs-pdf/p555.pdf.


LANDTERMS.COM TERM OF THE WEEK
http://landterms.com
Each issue we feature a real estate, forestry, natural sciences or other
land-related term from our partner site, LandTerms.com. Feature here are terms
from this issue's article.

Decedent - A deceased person.

Dower and Curtesy - Legal life estates that are created upon the death of a
spouse who owned real estate as a tenant by the entirety. Dower is the life
estate that a wife acquires in the real property of her deceased husband, while
curtesy is the estate a husband holds in real property owned by his wife
following her death. Dower and curtesy entitle the surviving spouse in a
tenancy by the entirety to a portion (usually one-third to one-half) of the
interest in the real property owned by the deceased spouse, even if that
property was willed to someone else. Dower and curtesy are forms of tenancy by
the entirety, and are only used in states that practice that system of common
law. Tenancy by the entirety is contrasted with another common law system used
by other states, known as community property. Note that in some states, dower
refers to either a husband's or wife's interest in the property of the other.

Intestate - 1. State or condition created when a decedent does not leave a
will, or leaves a will that is invalid. 2. Real or personal property that has
not been disposed of by devise or decree of the decedent (usually a will).

Find thousands of legal, real estate, forestry, title, appraisal, and auction
terms at http://landterms.com/categories.html. At least 100 new or updated
terms, definitions, concepts, articles, FAQ's, abbreviations and more weekly.


SPONSOR'S CORNER
The Land and Property Review would like to thank this week's sponsor, Land's
End on Lake Anna, Orange County, Virginia:
Land's End on Lake Anna is perfect for those who appreciate pristine landscapes
and historical tradition. This close-knit community features more than one
mile of dockable shoreline right on Lake Anna. This is a rare opportunity for
a lot of land in a very special lakefront, private community. Lake Anna is the
second largest freshwater lake in the state of Virginia, only 90 minutes from
Washington, D.C. Listing ID: 20999. Photos and additional information can be
found at http://www.eaglestar.net/edn5-.html.


AUCTION NEWS - http://www.eaglestar.net/Land_Auction_Calendar/index.html
The following auctions are scheduled during the remainder of September and the
first part of October:

THURSDAY, SEPTEMBER 25, 2008
ALABAMA: Talladega County
13 Waterfront and Water View Lots in Lincoln, Alabama
Absolute auction, 13 Lake Logan Martin lots within the established Indian
Springs subdivision, plus 25+/- acre commercial/mixed use tract in Talladega,
AL. Listing ID: 21107. More information at
http://www.eaglestar.net/Detailed/21107.html.

OKLAHOMA: Delaware County
2 Grand Lake Area Homes, Grove, Oklahoma
Cozy 2 bedroom, 1 bath home on 0.5+/- acres and charming 4+ bedroom 3 bath,
country cottage on 4.5+/- acres with 200+/- feet of waterfront, both just off
Grand Lake’s Honey Creek. Listing ID: 21108. Photos and details at
http://www.eaglestar.net/Detailed/21108.html.

OKLAHOMA: Osage County
2 Lake View Lots, Skiatook Lake, Oklahoma
Two 1+/- acre lake view lots overlooking Tall Chief Cove. Panoramic views of
Skiatook Lake and hills of Osage County. Wooded lots, gentle rolling terrain
and road frontage. Listing ID: 21112. Photo and contact information at
http://www.eaglestar.net/Detailed/21112.html.

OKLAHOMA: Ottawa County
Former General Store Converted to 3 Bedroom Home, Wyandotte, OK
Historic property on Main Street, built in early 1900's sits on 5 lots. Home
currently has 3 bedrooms and 1 1/2 baths. Renovations highlight the many
original features. Listing ID: 21119. More information at
http://www.eaglestar.net/Detailed/21119.html.

OKLAHOMA: Tulsa County
2 Commercial Lots, Sand Springs, Oklahoma
Commercial investment opportunity, 2 lots on heavily traveled Hwy 97 and Shell
Creek Road north of Sand Springs, OK. Access to utilities and road frontage.
Listing ID: 21109. Photos and additional information at
http://www.eaglestar.net/Detailed/21109.html.

Residential Raw Land, Sand Springs, Oklahoma
17 residential lots in Pond Creek I and II subdivision, located off Shell Creek
Road, plus three parcels in the rolling hills of Osage County. Lots with
woods, vistas and rolling terrain. Listing ID: 21111. Details at
http://www.eaglestar.net/Detailed/21111.html.

Absolute Auction, 3 Parcels and 2 Homes, Bixby, Oklahoma
3 bedroom, 3.5 bath home on 3.2+/- acres; 1+ bedroom, 1 1/4 bath home on 2.2+/-
acres; and four-bay commercial-size garage on 2.2+/- acres. Two Toyota
vehicles for sale. Listing ID: 21113. Photos and more information at
http://www.eaglestar.net/Detailed/21113.html.

SATURDAY, SEPTEMBER 27, 2008
KENTUCKY: Russell County
Absolute Auction, 8 Tracts Farm Land, Russell Springs, Kentucky
8 parcels, 111+/- total acres. Close to town, mostly flat and gently rolling
fertile farm land. Some parcels overlook Caney Creek Gorge. Listing ID:
21081. Photos and contact information are available at
http://www.eaglestar.net/Detailed/21081.html.

WEDNESDAY, OCTOBER 1, 2008
ILLINOIS: McLean County
Main Home and Rental Home, 13 Acres, Heyworth, Illinois
3 bedroom, 1 bath, ranch-style home with recent upgrades including new central
air-conditioning, natural gas furnace, newer siding and Anderson windows. Two
wells on the property, and a 1+/- acre stocked pond. Listing ID: 19758. Photos
and contact information at http://www.eaglestar.net/fri.html.

SATURDAY, OCTOBER 4, 2008
CALIFORNIA: St. Helena - Calistoga Valley
Absolute Auction, 3 Home Sites Overlooking Napa Vineyards
Three spectacular home sites with views of the Napa Valley vineyards and Mount
St. Helena, located in the coveted and prestigious Saint Helena - Calistoga
Valley. Listing ID: 21052. Visit the listing web page for photos and
additional information. http://www.eaglestar.net/Detailed/21052.html

GEORGIA: Glascock County
3 Parcels, 346 Total Acres Hunting, Timber, and Farmland, Gibson, Georgia
Three parcels of Georgia timber, hunting, and farm land with excellent
development potential. Parcel 1 is 5.7+/- acres. Parcel 2 is 55.4+/- acres.
Parcel three is 285.4+/- acres. Excellent for recreation land, farmland, or
investment opportunity. Listing ID: 21086. Find photos, directions, and
contact information at http://www.eaglestar.net/Detailed/21086.html.

MONDAY, OCTOBER 6, 2008
INDIANA: Warrick County
215 Acres Hunting and Fishing Land in 2 Parcels, Chandler, Indiana
215+/- acres hunting and fishing property for recreational use. The site is
ideally situated with water and agricultural crops for wildlife food and there
are opportunities for specific food plots as well. Listing ID: 21115. See
photos, map, and other information at
http://www.eaglestar.net/Detailed/21115.html.

SATURDAY, OCTOBER 11, 2008
FLORIDA: Levy County
Six 10-Acre Home Sites in Equestrian Subdivision, Williston, Florida
Six 10+/- acre home sites in Cottonwood Farm, an equestrian subdivision in
Williston, FL. Get the home site of your dreams in a development specifically
created to cater to families that raise and ride fine horses. Located 30
minutes from Ocala, FL. Listing ID: 21105. Photos and additional information
are available at http://www.eaglestar.net/Detailed/21105.html.


SUGGESTIONS
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Email: newsletter@eaglestar.net

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