Property Rights Flashcards
Real Property
- the land, anything attached to the land, and all of the various rights associated with ownership of the land.
- real estate, realty, or immovable property are also terms used for this but they don’t include the bundle of rights like “real property” does
Deed
Ownership of real property is transferred (or conveyed) using a deed. Think of them as the receipt for real estate.
Bundle of Rights
- Ownership of RE is not a single right but a grouping of property rights that can be separately transferred.
1. Possession: own RE
2. Control: control use of RE
3. Enjoyment: use RE in any legal way
4. Exclusion: limit access
5. Disposition: give it to someone else by sale, rental, or own will
Real Property: Land & Surface Rights
Rights to the land’s surface are known as surface rights, and often extend to approximately 30 feet below the land’s surface.
Real Property: Improvements on Land
Improvements are anything that is permanently attached (either directly or indirectly) to the land. For example, a house is an improvement. Individual improvements attached to the property (e.g. window blinds) are sometimes referred to as fixtures.
Real Property: Air Rights & Mineral Rights
- the rights to the space above and below the land, along with any natural resources such as oil, precious metals, etc.
- They are vertical interests, and may be sold or leased separately from the surface rights.
- air rights changed with advent of planes and the court case United States v. Causby. Space starting somewhere between 80-500 feet above the land is called “navigable” air space and is under the jurisdiction of the Federal Aviation Authority.
- Mineral rights extend to the earth’s core. If mineral rights are purchased separately from the surface of the land, the owner of the mineral rights automatically gains the right to harvest the minerals as an implied easement known as a profit a´ prendre.
Real Property: Liquid Mineral Rights (doctrine of capture vs. utilization pooling)
In many states, the landowner does not own the liquid mineral rights; instead, the landowner has the right to capture them under the doctrine of capture. Other states use utilization pooling where the landowner does own a fraction of whatever liquid mineral rights exist under their property.
Real Property: Riparian Rights
- ownership rights for landowners whose property borders a river or other waterway.
- Properties bordering a navigable river have rights up to the accretion line (edge) of the water, and properties bordering non-navigable rivers have rights to the midpoint of the water.
- Water rights in Western states are usually determined by the doctrine of prior appropriation, which bases ownership on whoever used the water first; Eastern states (all of the 13 colonies, including Massachusetts) usually use riparianism (riparian rights).
Real Property: Littoral Rights
- ownership rights of property bordering lakes and oceans
- These properties own all of the land up to the accretion line (the edge of the water, most often the mean high tide line) in most states.
- MASS: extend from the mean high-water line to the mean low-water line, or 100 rods (1650 feet) from the mean high-water line, whichever is less. The public has an easement (a right of access) over the land between the high and low water lines (known as tidal flats) for the purposes of navigation, fishing, fowling, and passing freely over and through the water.
Real Property: Appurtenances
Any property right or item that is attached to the land which exists outside the boundaries of the property itself. An easement (right of way) across an adjoining property for beach access, in-ground pool, mailbox, or a deeded parking spot in a condominium building are appurtenant to the land.
Personal Property
any property that is not attached to a piece of land, and not attached to any improvement on that land (e.g. a car or a table). It is also called personalty, chattel, or moveable property, and is transferred via a bill of sale (the fancy term for a receipt).
Personal vs. Real Property Test
- Attachment: Whether or not the property is permanently attached (e.g. by nails or roots) to the land.
- Adaptability: Whether the property is custom built to fit, or generically fits anywhere.
- Agreement: buyer and seller of a piece of property can agree to treat a piece of property as either personal or real. This overrides the other tests. Watch out for the Statute of Frauds (the law requiring that real estate contracts to be in writing to be legally enforceable) – all items of real estate are included in a home sale unless specifically excluded in writing.
- Intention: intent of the person who installed the property, i.e. did they want to make the property permanent.
Intention makes 2 exceptions to these rules:
1. Trade Fixtures: Items of business property that are somehow permanently attached to the land, but are treated as personal property because they were only installed for the use of one particular business. This is a particular concern with commercial tenants, and is often outlined in their lease to avoid disputes.
- Emblements - Crops that are planted, and harvested, annually or biannually (like corn or wheat). Plants are usually real estate (since they’re literally growing in the land), but emblements are treated as personal property because they are not intended to be permanent, and are only planted to be harvested. Note that permanent plants like apple trees or vineyards do not qualify as emblements, and are treated as real estate.
Annexation
when property was personal and is now real, e.g. planting a sapling
Severance
when property was real and is now personal, e.g. digging up a tree
