Real Estate Interests - Part 3 - Chapters 7-9 Flashcards
Identify the limited rights to use another person’s real estate that comprise a license to use the land
Unlike an easement or a lease, a license is a personal privilege held by an individual, not an appurtenant right belonging to another party for its future owners to receive and use. Since a license is a personal right and does not benefit another property, the right given by the license cannot be conveyed to another individual as there can be no successors or assigns to the interest.
A holder of a license does not usually pay rent for the right to use the burden property. If consideration for the license exist, it is typically in the form of an expenditure of time and money by the licensee to improve or maintain the use authorized on the burden property.
On some occasions, a license and a lease may sometimes coexist and be held by the same person. For example, a person who is a tenant with exclusive occupancy to part of the space on the premise of a shopping center also hold a license to use and adjacent portion of the premises as well, like the sidewalks around their premise.
However, with every additional condition agreed to between an owner and a user, a license begins to re-characterize itself more and more into a lease. Words or phrases like lease, rental, demise or good tenantable condition are characteristic of a lease rather than a license.
Distinguish a license to use land from the use of property under a leasehold or due to an easement
A license is often confused with a lease. A lease conveys a possessory interest in real estate which allows the tenant to exclude others from occupying the leased premises. A license to use another person’s real estate is a personal privilege held by an individual.
However, a license is neither personal property nor real property. Also, a license is neither owned by a person nor is it an appurtenance to adjoining real estate. Thus a license, not being property or capable of ownership, cannot be transferred to the licensees successors or assigns.
Characteristics which distinguish a license from a lease include:
- no writing to formalize the agreement
- no rental payments
- no specific location on or within the property where the use will occur
- no intend to convey a leasehold estate
- no right to exclude others
- no termination date
- termination at the owners will, unless the license is irrevocable.
When an agreement with a property owner gives another person an exclusive right to possess the property against all others, including the owner, it is a leasehold estate. Conversely when the agreement confers only the privilege to use property which remains under the owners day to day control, it is a license.
servient tenement
A SERVIENT TENEMENT is a property burdened by a license or easement.
dominant tenement
DOMINANT TENEMENT is the property benefiting from an easement on a servient tenement.
license
A LICENSE is the personal, unassignable right held by an individual to the non-exclusive use of property owned by another. A license is subject to termination at will by the owner of the burdened property, unless it has become irrevocable.
irrevocable license
An IRREVOCABLE LICENSE is the right to enter and use the property when the specific activity granted by the license is maintained by the licensee’s ongoing expenditure of money or equivalent labor, and remains feasible. For example in the case with the construction of a privacy wall between adjacent Lots, the license became irrevocable due to the neighbors substantial effort or expenditures made in reliance on the oral agreement with the property owner allowing the use.
Identify the appurtenant water rights attached to riparian land
Holders of Rights to withdraw surface waters have riparian rights. Holders of right to pump groundwater have overlying rights.
The legal rights to extract and use water are based on priorities and are classified as:
- landowners rights consisting of both riparian an overlying rights
- appropriation rights to withdraw water under license from the state
- prescriptive right to withdraw water legally entitled to be used by others.
Riparian land is a parcel of real estate located both adjacent to a water source with surface water and within the watershed (Basin) of the surface water.
Understand the extent and terms of riparian rights
The right to use riparian water is an appurtenant (incidental) right attached and transferred with the ownership of real estate. As appurtenant rights, riparian water rights cannot be lost by disuse.
Riparian rights are limited by the requirement that water taken from a stream needs to be put to a reasonable and beneficial use.
The sharing of water between riparian land owners, with priority to Upstream owners, is based on a tiered variety of priority and subordinate uses across the entire group of riparian owners, called correlative rights.
The conduct of an adversely affected landowner may cause their riparian rights to be dedicated to the public use. Once dedicated, the land owner may only seek compensation for the loss of their riparian rights and may not get their rights back.
The conveyance of a parcel, severed from a larger parcel which has riparian rights, terminates the conveyed parcel’s riparian rights unless their rights are transferred by the deed which severed the parcel.
Prescriptive rights to the use of water may be established when a person appropriates non Surplus water openly and adversely for an uninterrupted period of 5 years and does so without documentation or evidence of a legal right.
Riparian, overlying and appropriation rights are subject to the state’s interest in conserving and regulating water use. The state Water Resources control board controls unclaimed water rights and partitions water for the highest and most beneficial use.
riparian right
A RIPARIAN RIGHT is the right of a real estate owner to take surface water from a running water source continuous to their lands. Holders of rights to withdraw surface waters have riparian rights. Surface water, is consisted of water courses, Lakes, Springs, marshes, ponds, sloths and any other water flowing over over the surface of the Earth caused by rain, snow, Springs or seepage.
overlying right
An OVERLYING RIGHT is the right of a real estate owner to take the ground water below of their land. Holders of rights to pump groundwater have overlying rights. Groundwater consists of percolating, Subterranean bodies of water located in underground basins.
riparian land
RIPARIAN LAND is a parcel of real estate located next to a water source with surface water and within the Watershed of the surface water. A parcel is considered riparian land when it:
- touches the surface water
- was part of a larger riparian parcel and retained its riparian rights by reassignment when parceled.
To constitute riparian land, a property also needs to be located within the Watershed surrounding the water course. Surface water use on land located within its Watershed will eventually returned to the Watercourse, minus the water consumed, in a natural process called percolation. Thus, a riparian land owner may only divert water to the portion of their land which allows the water returned to the Watercourse.
correlative right
A CORRELATIVE RIGHT is the sharing of water between riparian landowners based on a tiered variety of priority and subordinate uses across the entire group of riparian owners. While riparian landowners hold the same classification of legal rights to water, they need to share the water, giving priority to domestic uses over other uses, including agricultural irrigation. Each landowner holds correlative rights within the riparian class of water rights.
usufructuary right
A USUFRUCTUARY RIGHT is the right to a reasonable use of water subject to changing circumstances controlling the use of water. It is sort of a “here today, gone tomorrow” approach to access and possession. Owners of land and water providers (appropriators) who hold water rights do not legally own the water. They own the rights to the reasonable use of the water. Their right to use is subject to change when circumstances controlling the use of water change, called usufructuary rights.
State Water Resources Control Board
THE WATER STATE RESOURCES CONTROL BOARD is the government entity established in 1943 to ensure the proper allocation and efficient use of State Water Resources in California. The board acts as a referee for all disputes over water rights.
appropriation right
APPROPRIATION RIGHT is the right to divert water from a river or Watercourse to real estate for reasonable use. The right to use of water located within the state of California may be acquired by appropriation by applying for a permit from the board. On the approval of an application for an appropriation permit by the board, the permit is issued granting the appropriator the right to use water only to the extent and for the purpose described in the permit, called appropriation rights. It is only excess waters that are subject 2 appropriation by anyone. Note landowners possessing riparian and overlying rights have water rights which are superior to the rights of appropriators, called priority rights. Appropriators may only appropriate water which is not presently being used by a riparian or overlying land owner and has not already been appropriated by anyone else, called Surplus water. In the event of a water shortage, appropriators have to yield to riparian and overlying landowners since landowners have priority rights to divert or pump water. These rights are appurtenant to their property.
