2 - Rights In Real Estate Flashcards
(19 cards)
Define land and real estate:
- constitution guarantees private ownership
* ownership rights not absolute; others may exert claims against one’s property
Land
- surface and natural things attached to it, subsurface, air above the surface
- immobile, indestructible, heterogeneous (non-homogeneity)
Real estate
•land plus permanently attached man-made structures (improvements)
Distinguish categories of property
- something owner by someone and the associated rights of ownership
- property is earl or personal, tangible or intangible
Identify the bundle of rights
Property: Possession, use, transfer, exclusion, encumbrance
Real Property: any of the bundle of rights applied to airspace(air rights), surface(surface rights), and subsurface (subsurface rights)
Water rights
- doctrine of prior appropriation: state controls water usage; grants usage permits
- littoral rights: abutting property owners own land to height water mark; state owns underlying land
- riparian rights: of navigable, abutting property owners own land to water’s edge; state owns underlying land; if not navigable, owner owns land to midpoint of waterway
Real vs. Personal Property
Item is real or personal property depending on “attachement” criterion and other circumstances
Fixtures
Real property converted from personal property by attachment
Differentiation criteria
Intention; adaptation; functionality; relationship of parties; contract provisions
Trade fixtures
Personal property temporarily attached to real estate to conduct business; to be removed at some point
Emblements
Plants or crops considered personal property since human intervention is necessary for planting, harvesting
Conversion
Transforming real to personal property through severance, or personal to real property through affixing
Federal regulation
Grants rights of ownership; controls broad usage standards, discrimination
State regulation
Governs real estate business; sets regional usage standards
Local regulation
Levies real estate taxes; controls specific usage
Judicial regulation
Applies case law and common law to disputes
What is the important distinction between real estate and real property?
Real property is more inclusive and more relevant to what real estate agents do; real estate is essentially a physical item, while real property includes both the physical item and all the rights that go with owning the item
Two properties are adjacent. The owner of one property discovers oil and sinks a vertical well to extract it. The owner of one property discovers oil and sinks a vertical well to extract it. The owner of the other property, hoping to share in the wealth, sinks a well at an angle to reach deposit under his neighbor’s lot. Who owns the oil, and is the second owner breaking the law with his diagonal well?
The ownership of the oil is unclear. A geological survey would have to determine whether all the oil is located under the one lot. The second owner does not have the right, however, to sink a well that crosses over the vertical plane that extends from the surface lot line to the center of the earth
Changes in land caused by the action of water may affect ownership. Land added by accretion, the natural deposit of soil by water, becomes the property of the riparian or littoral owner. Land added by reliction, the recession of water from the usual landmark, likewise becomes the property or the riparian or littoral owner. Land washed away by erosion is lost by the riparian or littoral owner. What happens if a non-navigable stream that divides two parcels suddenly changes its path and moves over onto one owner’s side of the property line?
The loss of land by an abrupt change in the course of a river or stream, called avulsion, generally does not change the property line, although one party gains the use of additional land that was formerly underwater, and the other loses he use of land that was not formerly under water.
