Chapter 8 - § 8.9 • MERGER OF ESTATES

• Jurisdiction: Colorado

§ 8.9 • MERGER OF ESTATES

A merger takes place when a greater estate and a lesser estate coincide in the same person, in the same right, without any intermediate estate, unless a contrary intent appears.⁴²¹ It is the intention, actual or presumed, of the person in whom the estates are united, which is the controlling consideration.⁴²² However, mergers are presumed only when equity demands.⁴²³ Generally, the intention is a question of fact,⁴²⁴ but if the evidence consists of documents, determination of their effect is a question of law.⁴²⁵ In the absence of an expression of intention, the intention will be presumed from what appears to the best interests of the party, as shown by the circumstances.⁴²⁶ Thus, where the owner of land acquires encumbrances upon the land for the purpose of protecting himself or herself in the event his or her title to the land fails, the encumbrances do not merge into the title to the land.⁴²⁷ Similarly, where a mortgagee, by levying an execution acquires the mortgagor's interest in the property, his or her right to enforce the mortgage lien is not lost.⁴²⁸

Under the Colorado Common Interest Ownership Act, the acquisition of the leasehold interest of any unit in a leasehold common interest community by the owner of the reversion or remainder does not merge the leasehold and fee simple interests unless the leasehold interests of all unit owners subject to the reversion or remainder are acquired.⁴²⁹

Upon merger, a lien upon one of the estates becomes a lien upon the merged es-tates.⁴³⁰ Conveyance of the merged estate transfers the merged title.⁴³¹

After the devise of a fee, which is subject to an existing lease, an attempt to devise to the same devisee a life estate in the income from the lease must fail because, even if such a life estate could be created, it would immediately merge into the fee.⁴³²

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Notes:

^[421] Evans v. Young, 15 P. 424 (Colo. 1887) (merger of leasehold into reversion); Goldblatt v. Cannon, 37 P.2d 524 (Colo. 1934); Jacquez v. Jacquez, 694 P.2d 1292 (Colo. App. 1984); Colo. Nat'l Bank-Exchange v. Hammar, 764 P.2d 359 (Colo. App. 1988) (deed of trust merges into fee when acquired from debtor); Fed. Land Bank of Wichita v. Colo. Nat'l Bank of Denver, 786 P.2d 515 (Colo. App. 1989). See Walton v. Wormington, 2 P.2d 1088 (Colo. 1931) (devise of fee in real property followed by devise of life estate in income from same property); Lamberson v. Thomas, 362 P.2d 180 (Colo. 1961) (condemnation by United States...