Level 1 Chapter 5: Land Rights Flashcards
Surface Rights
Rights to access the surface area of a parcel of real property. They govern both natural elements and structures (called improvements) built on or attached to the uppermost layer of the land. Example: A homeowner who elects to build a barn in his backyard to house his amiable herd of sheep is exercising his surface rights. Subsurface rights may be sold separately from surface rights.
Subsurface Rights
Ownership rights to all that is found beneath the surface of the tract of land owned, extending downward to the center of the earth. Example: Let’s say William sells his property to Laura. Laura moves in and discovers buried treasure in her backyard. Laura has the rights to that buried treasure because of her subsurface rights. Subsurface rights may be sold separately from surface rights.
Priority
Subsurface rights may be sold separately from surface rights. In the event that two parties each hold an interest in a property — one holding the subsurface rights and the other holding the surface rights — the holder of subsurface rights has priority and may legally enter the property to extract the minerals they have rights to, but they must take care to not materially disturb the surface. Example: Let’s say William owns the surface rights to a property and Laura owns the subsurface rights. Laura has the right to enter William’s property and extract some of that delicious black oil she has the right to, but she can’t excavate William’s whole backyard to get to it. That would be a material disturbance.
Rule of Capture (Law of Capture)
States that a landowner who drills a well for gas or oil on their land is entitled to all that well produces, even if the gas or oil migrates from beneath a neighbor’s property. This principle acknowledges that gas and oil flow towards the lowest point of pressure, which is the well’s entry point.
Supporting Rights
Property owner’s right to have their land remain stable and not be disturbed by neighboring activities. Lateral support comes from adjacent properties, while subjacent support is from the underlying earth. If a neighbor’s actions, like excavation, cause land to shift or damage, they could be held liable.
Lateral Support
Provided by adjacent properties.
Subjacent Support
Comes from the underlying earth.
Air Rights
The right to use the air space above the surface of land, it is the area above ground that is owned along with a property. It could include space above a piece of land, or the space owned inside a condominium unit. Example: Planes, skyscrapers. What reasonable really means is that the specific limitations of air rights in Pennsylvania have been determined by common law, or the collective decisions of many, many court cases.The law in Pennsylvania does allow local governments to create easements over land surrounding airports. This ensures all air traffic can proceed, uninhibited.
Water Rights
The right of a property owner on a waterfront to access and use that water. 1. Who controls the water in question? The state or the property owner?
2. Is the water moving? 3. Is the water navigable?
The Doctrine of Prior Appropriation
Grants water rights based on a first-come, first-served basis. It allows a party to take water from a body of water for a specified and approved use, often in states where water is scarce. The state controls and regulates these water resources, and property owners must apply for a permit to use the water. In Pennsylvania, the doctrine of prior appropriation does not apply. This means that common law does apply. This is likely because there is a lot of water in Pennsylvania: it’s teeming with lakes, rivers, and streams. But it’s still important to know, and it may even come up on your exam.
Appropriative Rights
Granted by the government, allowing a party to take water from a body of water for a specified use, often in states where water is scarce.
Correlative Rights
Apply during droughts or when water is limited, giving owners a portion of the available water based on the amount available.
Riparian Rights
Govern the use of flowing water, such as rivers and streams, that pass through or border a property. A property owner does not own the water but may use it and share those rights with other property owners whose land also interacts with the water. For example, a homeowner can kayak or swim in the river adjacent to their property.
Navigability
Refers to whether a body of water can be used for transportation or travel. In the context of water rights, if a river or stream is navigable, land ownership extends only to the water’s edge. For non-navigable waters, ownership can extend to the midpoint beneath the water.
Littoral Rights
Govern the use of lakefront or oceanfront property. These rights usually allow the property owner to use the water bordering their property but prohibit artificially changing the water’s location.When evaluating littoral water rights, the water is always considered navigable, so ownership is always only to the water’s edge. Example, building a dock on a lakefront property is an exercise of littoral rights.
