Key Takeaways
- Montana recognizes various forms of property ownership including fee simple, joint tenancy, tenancy in common, and community property (with right of survivorship)
- Montana is NOT a community property state but allows community property with right of survivorship by agreement
- Homestead exemption in Montana protects up to \$350,000 of equity from certain creditors
- Water rights in Montana are separate from land ownership and follow prior appropriation doctrine
- Mineral rights may be severed from surface rights in Montana
Montana Property Ownership
Montana recognizes various forms of property ownership. Understanding these forms is essential for the state exam.
Forms of Ownership
Fee Simple Absolute
The most complete form of ownership:
- Complete ownership rights
- Can sell, lease, or devise
- Indefinite duration
- Most common form of ownership
Joint Tenancy
Two or more owners with right of survivorship:
| Feature | Description |
|---|---|
| Right of survivorship | Deceased owner's share passes to survivors |
| Equal shares | All owners have equal interests |
| Four unities | Time, title, interest, possession |
| Can be severed | Sale by one owner breaks joint tenancy |
Tenancy in Common
Two or more owners without right of survivorship:
| Feature | Description |
|---|---|
| No survivorship | Share passes to heirs, not co-owners |
| Unequal shares allowed | Owners may have different percentages |
| Default ownership | Assumed if joint tenancy not specified |
Community Property with Right of Survivorship
Montana is NOT a community property state, but allows married couples to hold property as community property with right of survivorship by written agreement:
| Feature | Description |
|---|---|
| Must be married | Only available to married couples |
| Written agreement | Must expressly create this ownership |
| Survivorship | Deceased spouse's share passes to survivor |
| Tax benefits | May provide tax advantages |
Key Point: Montana does NOT have automatic community property. It must be created by agreement.
Montana Homestead Exemption
Montana provides a homestead exemption that protects a portion of home equity from certain creditors.
Homestead Details
| Feature | Amount/Requirement |
|---|---|
| Maximum exemption | $350,000 |
| Who qualifies | Owner-occupants |
| Protected from | Judgment creditors (with exceptions) |
| Not protected from | Mortgages, property taxes, mechanics' liens |
How to Claim
- Homestead protection is automatic for occupied homes
- No filing required for basic protection
- Some additional protections may require declaration
Water Rights in Montana
Water rights are separate from land ownership in Montana.
Key Concepts
| Concept | Description |
|---|---|
| Prior appropriation | "First in time, first in right" |
| Beneficial use | Water must be used beneficially |
| May be severed | Water rights can be sold separately |
| Must be disclosed | Required disclosure in property sales |
| DNRC oversight | Department of Natural Resources and Conservation |
Types of Water Rights
| Type | Use |
|---|---|
| Irrigation | Agricultural water use |
| Domestic | Household use |
| Stock water | Livestock watering |
| Mining | Mineral processing |
| Municipal | City water systems |
Mineral Rights in Montana
Mineral rights can be severed from surface rights:
Surface vs. Mineral Rights
| Right | Description |
|---|---|
| Surface rights | Right to use the land surface |
| Mineral rights | Right to extract minerals below surface |
| Severed estates | When mineral rights sold separately |
| Reservation | Seller keeps mineral rights when selling land |
Exam Tip: Always check for severed mineral and water rights when dealing with Montana property.
What is Montana's homestead exemption amount?
Which statement is TRUE about community property in Montana?
Can water rights be sold separately from land in Montana?