Unit 2: Real Property and the Law

Land

includes the earth’s surface, its subsurface extending downward to the center of the earth, and the air space above the surface.

Physical characteristics of land

immobility, indestructibility, and non-homogeneity (uniqueness)

Immobility

geographic location of any parcel of land can never be changed

Indestructibility

geographic location will still remain no matter the condition

uniqueness

refers to the fact that no two parcels of land are exactly alike, or in the same location

subsurface rights

include mineral rights and other natural resources that can be leased or sold separately from surface rights

Air rights

can be sold separately from surface rights and have limitations to enable air travel.

Water rights

can be held by owners of land adjacent to rivers, lakes, or oceans.

fructus naturales

things naturally attached to land, such as trees and crops that do not need cultivation (considered real estate)

fructus industriales

annual cultivate crops such as perennial crops, orchards and vineyards (fruits vegetables, gain) (considered real property)

Real estate

includes the land as well as all things permanently attached or annexed to the land, both by nature and by humans.

Real property

includes the interests, benefits, and rights that are automatically included in the ownership of unimproved land and real estate.

Bundle of Rights

includes the rights of possession, control, enjoyment, exclusion, and disposition.

Title

the right to ownership of real property and the evidence of ownership provided by a written document, called a deed, by which it is transferred.

Appurtenance

a right or privilege associated with real property in some way, such as a parking space in a multiunit building, an easement, or water rights, and is normally conveyed to the new owner when the property is sold.

Water rights are determined by

common law of stature

Riparian rights

which belong to owners of land along a flowing body of water

littoral rights

belong to owners of land that borders a commercially navigable lake, sea, or ocean

Doctrine of prior appropriation

followed in some states and provides that water use, aside from limited domestic use, is controlled by the state rather than the landowner adjacent to the water; to use water, the landowner must demonstrate a beneficial use of the water, such as for irrigation of crops.

Economic characteristics of land (real property)

scarcity, improvements, permanence of the investment, and area preference (situs).

scarcity

the supply in a location that is suitable for use is finite

Improvements

building this can affect the lands value and use, also the neighboring tracts and communities

Permanence and investment

capital and labor used to build an improvement represent a large fixed investment

area preference

aka “situs” ; location, refers to geography and preference of a specific area

personal property (chattel)

• movable items, such as a chair or a sofa; „

• emblements (fructus industriales), annual plantings or crops of grains, vegetables, and fruit;

• items of real property that can become personal property by severance;

• items of personal property that can become real property by annexation (such as construction materials)

• factory-built homes, including manufactured homes, that can be personal property unless permanently affixed to land.

severance

item of real property can become personal property by separating it from the land

emblements

fructus industriales; annual plantings or crops of grains, vegetables, and fruit

annexation

change personal property into real property (mixing bought stones into cement)

fixture

personal property that has been affixed to the land or to a building so that by law it becomes part of the real property.

The legal tests for a fixture

MARIA: the method of attachment, adaptability of the thing for the land’s ordinary use, relationship of the parties, intent in placing the item on the land, and agreement of the parties.

Trade fixtures

include property attached to a structure but used in the course of business.

Trade fixtures can be personal property, if

removed by the tenant with the premises returned to their original condition before the lease expires

accession

landlord acquires trade fixtures that become part of the real property, if left behind by the tenant.