Chapter 3 - Real Property

Wind rights

A deed could treat wind rights like oil and gas conveying or reserving rights in wind apart from other elements of land ownership.

reasonable use rule

According to the reasonable use rule, floodwater may be diverted if the diversion is reasonable.

Personal Property

Can be tangible or intangible. movable and is transferred or sold using a bill of sale. Personal property may be pledged as security for a loan. Personal property includes money, movable goods, such as trade fixtures, evidences of debt, such as a promissory note, and some growing things, such as crops.

Components of Real Estate

Land Anything permanently attached to the land Anything appurtenant to the land Anything immovable by law

What are the three separate and distinct physical elements of land?

Land includes the surface, the subsurface (within reach of technology), and the airspace above the surface of the land (subject to limits).

How is personal property and transferred or sold?

Personal property is any property that is not real property. Personal property is transferred or sold using a bill of sale.

Define property.

Property is anything that may be owned and gained lawfully. Property can be real or personal.

List the components of real estate.

Real estate is a piece of land plus any natural attachments or manmade improvements.

What are the components of real property?

Real property includes the physical real estate (land, attachments, and improvements) and adds the bundle of rights of property ownership.

prior appropriation doctrine (western states with water issues)

The appropriator must intend to apply water to a beneficial use. The water must be diverted from a natural course. The water must be applied to a beneficial use.

Lateral support

a landowner's legally enforceable right to have his or her land in its natural condition held in place from the sides (laterally) by adjoining land so that it will not fall away

right of way

a legal right to pass over another person's land

easement

a right, privilege, or interest limited to a specific purpose which one party has in the land of another

riparian doctrine

all properties on the banks of a water source have equal rights to use and enjoyment of that water. Property that is next to a watercourse is riparian property.

Appurtenances

all those rights, privileges, and improvements that belong to and pass with the transfer of the property but are not necessarily a part of the actual property.

reasonable use rule

allows each property owner "reasonable use" of the groundwater beneath his or her property. Essentially, this means that the owner can use the water to whatever extent is reasonably necessary for the use and enjoyment of that property

watercourse

an external source of water, such as a river, stream, or lake.

3 Part Common Law Tests to determine fixture

annexation, adaptation, and intention.

Emblements - type of industriales

annual crops cultivated by tenant farmers and sharecroppers

Fructus industriales

annual crops produced by human labor, such as fruits, nuts, vegetables, and grains. The main difference between cultivated plants and wild plants is that cultivated plants are personal property even before they are harvested.

Property

anything that may be owned and gained lawfully, real or personal

common enemy rule

based on the theory that the harmful water is the "common enemy" of everyone. Therefore, anyone may take any steps necessary to keep the floodwaters off his or her property, even if that means diverting the water onto someone else' s property.

Intangible personal property

claim, interest, right, or other things that have value but cannot be seen, felt, weighed, measured, or perceived by the senses.

correlative rights doctrine

determines rights in groundwater based on ownership of land and distributes water on an equitable basis among the landowners. The difference is that landowners overlying the same water source are limited to a reasonable share of the water source's total supply, and there is not an unlimited right of capture.

Uniform Commercial Code (UCC)

established to regulate sales of personal property and other business transactions. Each state has adopted its own slightly different version of the Uniform Commercial Code.

Trade fixtures

fixtures attached to real estate by a commercial tenant for business purposes. Trade fixtures are tangible personal property of a tenant, not the real property of the landlord.

Right of Possession

gives the property owner the ability to live on the property and to exclude others from access.

right to encumber

gives the property owner the right to borrow money in order to purchase or refinance a property and allows the lender to use the property as security for the loan.

right of transfer

gives the property owner the right to dispose of the property in any way permitted by law, including transferring ownership of the property by gift, sale, or trade.

right of enjoyment

gives the property owner the right to quiet and peaceful enjoyment of the property that he or she owns or occupies. With any right, there is responsibility. The right of enjoyment for property does not allow a person occupying the property to become a nuisance to surrounding neighbors or to use the property for illegal purposes.

right of use

gives the property owner the right to use the property in any way that is not illegal

Natural attachments

growing plants attached by their roots, such as trees, shrubs, and flowers. The two types of natural attachments are fructus naturales and fructus industriales.

Improvements

houses, garages, fences, swimming pools, or anything resting on or integrated into the land in such a way to become permanent are owned as a part of the property.

Immovable property

includes not only the house itself but also the land surrounding the house. Similarly, any items or additions to a home or property that are vital to its operation, such as an air conditioning unit or drainage system, are immovable property.

Real property

includes the physical real estate (land, attachments, and improvements) and adds the bundle of rights of property ownership.

Sharecroppers

individuals who agree with a landowner to grow crops on the land and at harvest time to share with the owner a portion of the harvested crop as payment of rent for the use of the land

Attachments

items permanently attached to the land, are real property, and belong to the owner. These items include natural attachments, improvements, and fixtures.

Real estate

land and anything fixed, immovable, or permanently attached to it such as buildings, walls, fixtures, improvements, roads, trees, shrubs, fences, roads, sewers, structures, and utility systems."

rule of capture (absolute ownership rule)

landowners have the right to "capture" all the water from under their property and could monopolize the entire aquifer without incurring liability.

natural flow rule

landowners may not divert floodwaters onto other lands at all. Instead, each landowner must deal with the water that naturally enters his or her land to the best of his or her ability.

appurtenant

meaning they run with the land and do not belong to the owner. In other words, if a riverfront or oceanfront property is sold, the new owner gets the water rights as part of the transaction.

Fructus naturales

naturally occurring plants, such as grasses, trees, and shrubs and are part of the real property. Therefore, when a home is sold, the planted trees and landscaping are real property and are included in the sale.

Land

not only the soil, but everything attached to it by the course of nature, such as trees, herbage, and water

How is an item considered a fixutre?

personal property items are bolted, nailed, cemented, plastered, or built into the structure or attached to the land,

fixtures

personal property that is attached to land or a building and that is regarded as an irremovable part of the real property, such as a fireplace built into a home."

Tangible personal property

property that can be seen, weighed, measured, felt, or perceived by the senses

water rights

refers to the right of property owners to use water from a water source, such as a watercourse, groundwater, or surface water

Surface rights

right to build on the land, grow crops, hunt, fish, and the basic enjoyment of the land. Surface rights also include the right to drill or mine through the surface when subsurface rights are involved. The subsurface includes the natural resources below the surface. The air space includes the area above the land up to a reasonable height.

Air rights

rights an owner of real property has to the air space above the property to a reasonable height. As real property, air rights can be sold, leased, or encumbered separately from the land

Subjacent support

the absolute right of the property owner to have his or her land supported from beneath its surface.

Annexation

the item of personal property must actually be annexed to the real estate or something appurtenant to the real estate. The next criterion to consider is whether a piece of property is attached.

Adaptation

the item of personal property must be appropriated to the use or purpose of the real estate to which it is connected. Has the item been made especially for the property? In other words, does a particular item substantially adapt to a property for its intended use? Stove built into counter?

bundle of rights

the legal privileges that are included with the ownership of the physical real estate. Basically, the difference between real estate and real property is the addition of the bundle of rights.

Intention

the person making the annexation intended to make the item of personal property a permanent part of the real estate. When the two parties to a contract agree, it overrules all other criteria for determining if property is real or personal property.

Subsurface rights

the rights to the natural resources, such as minerals, oil, and gas, below the surface. The rights to the minerals, oil, and gas can be sold or leased separately. Oil and gas are migratory minerals and may not be owned until taken from the ground, at which time they become the personal property of whoever removed them.

3 Parts of land

the surface, the subsurface (within reach of technology), and the air space above the surface of the land (subject to limits)

bundle of rights 5 rights

use, possess, transfer, encumber, and enjoy property.

Surface water

water that collects on the surface of the ground, such as collected rainwater or melting snow.

Groundwater

water that is present within or underneath the ground

Rent

when you give someone the right of possession and in return they repay you to live on that possesion

Tenant farmers

who lease land for agricultural use