CHAPTER 2CHAPTER 2Property Rights and Legal DescriptionsProperty Rights and Legal Descriptions

This chapter introduces the basic legalThis chapter introduces the basic legal

distinctions between real and personaldistinctions between real and personal

property, as well as the many different legalproperty, as well as the many different legal

interests an owner may have in real interests an owner may have in real property.property.

What is Real Property?What is Real Property?

Real propertyReal property Personal propertyPersonal property Methods of transferMethods of transfer

Fixtures: Fixtures: An item that was once personal An item that was once personal property but that has become attached to property but that has become attached to the real estate so that it is now considered the real estate so that it is now considered real propertyreal property..

Tests for fixtures:Tests for fixtures: Intent of the partiesIntent of the parties Attachment Attachment AdaptabilityAdaptability

Mineral and Air Rights:Mineral and Air Rights:

Separate ownershipSeparate ownership Limitation of air space to a reasonable Limitation of air space to a reasonable

distancedistance Right to sunlightRight to sunlight

Water Rights:Water Rights:

Littoral RightsLittoral Rights Riparian Rights TheoryRiparian Rights Theory Reasonable UseReasonable Use Prior Application TheoryPrior Application Theory Underground WaterUnderground Water

Water RightsWater Rights

Water is valuable, particularly in areas where it Water is valuable, particularly in areas where it is scarce!is scarce!

Navigable bodies of water:Navigable bodies of water: Land that joins have littoral right: Where land borders Land that joins have littoral right: Where land borders

on lake or sea, it is said to carry littoral rights. That is on lake or sea, it is said to carry littoral rights. That is the right of land owner to use and enjoy the water the right of land owner to use and enjoy the water touching his/her land provided he/she does not alter touching his/her land provided he/she does not alter the water’s position by artificial means.the water’s position by artificial means.

Own to high-water markOwn to high-water mark

Navigable bodies of water (cont’d):Navigable bodies of water (cont’d):

Government (Corps of Engineers) owns Government (Corps of Engineers) owns water/land underneath water.water/land underneath water.

Generally plenty of water for allGenerally plenty of water for all Non-navigable water:Non-navigable water:

Land owner owns land underwater, but Land owner owns land underwater, but state owns water.state owns water.

How should water be allocated?How should water be allocated?

Non-navigable bodies of water Non-navigable bodies of water (cont’d):(cont’d):

Riparian Rights Theory- Ownership of land Riparian Rights Theory- Ownership of land that borders on a river or stream carries the that borders on a river or stream carries the right to use the water in common with the right to use the water in common with the other land owners whose land boarder the other land owners whose land boarder the same water course.same water course. Eastern U.S.- Use all water needed, but not an Eastern U.S.- Use all water needed, but not an

unreasonable amount, don’t deprive other unreasonable amount, don’t deprive other landowners who are also entitled to some of the landowners who are also entitled to some of the water.water.

Eastern U.S. (continued)Eastern U.S. (continued)

Prior Application TheoryPrior Application Theory Western U.S.- Area is generally, more arid.Western U.S.- Area is generally, more arid. ““First-come, First served”First-come, First served” Not enough water for everyone, so first landowner Not enough water for everyone, so first landowner

might as well use all they need.might as well use all they need. A system of water law used in most of the western states based A system of water law used in most of the western states based

on water scarcity. Under this system a water right is a separate on water scarcity. Under this system a water right is a separate legal right apart from the ownership of land. It is determined on legal right apart from the ownership of land. It is determined on a hierarchy which is based on the priority of the time a claim a hierarchy which is based on the priority of the time a claim was established. The first claim has priority over all other was established. The first claim has priority over all other subsequent claims. If any water remains after the first claimant subsequent claims. If any water remains after the first claimant or appropriator has received his or her share, the second or appropriator has received his or her share, the second appropriator receives his or her share and so on until the water appropriator receives his or her share and so on until the water supply is exhausted. This system is subject to administrative supply is exhausted. This system is subject to administrative control by state agencies, and by the federal government where control by state agencies, and by the federal government where federal water is involved.federal water is involved.

Underground Water:Underground Water:

Subterranean Streams- Clearly defined Subterranean Streams- Clearly defined channels- use is generally not limited. channels- use is generally not limited.

Percolating Waters- “Pockets” of water- Percolating Waters- “Pockets” of water- states generally apply reasonable -use states generally apply reasonable -use test; shouldn’t deplete water supply of test; shouldn’t deplete water supply of adjoining landowners.adjoining landowners.

ESTATES IN LAND: ESTATES IN LAND: Severalty (Fig. Severalty (Fig. 4.1)4.1)

A FREEHOLD ESTATES: InheritableFREEHOLD ESTATES: Inheritable· FEE SIMPLE ABSOLUTE ESTATESFEE SIMPLE ABSOLUTE ESTATES

- ALIENABLEALIENABLE

- DEVISABLEDEVISABLE

- DESCENDIBLEDESCENDIBLE

B Qualified Estate: Defeassible estateQualified Estate: Defeassible estate· Qualified fee determinableQualified fee determinable

- ReversionReversion· Qualified fee conditionalQualified fee conditional

- Power of terminationPower of termination

C LIFE ESTATES: NONINHERITABLE LIFE ESTATES: NONINHERITABLE FREEHOLD ESTATESFREEHOLD ESTATES• PUR AUTRE VIEPUR AUTRE VIE FUTURE INTERESTSFUTURE INTERESTS

• REMAINDERREMAINDER VESTEDVESTED CONTINGENTCONTINGENT

• REVERSIONREVERSION• ESTATE PLANNINGESTATE PLANNING

D LEASEHOLD LEASEHOLD ESTATES:NONFREEHOLD ESTATESESTATES:NONFREEHOLD ESTATES• TENANCY FOR A STATED PERIODTENANCY FOR A STATED PERIOD• TENANCY FROM PERIOD TO PERIODTENANCY FROM PERIOD TO PERIOD• TENANCY AT WILLTENANCY AT WILL• TENANCY AT SUFFERANCETENANCY AT SUFFERANCE

CONCURRENT ESTATE:CONCURRENT ESTATE:

TENANCY IN COMMONTENANCY IN COMMON JOINT TENANCYJOINT TENANCY

RIGHT OF SURVIVORSHIPRIGHT OF SURVIVORSHIP TENANCY BY THE ENTIRETYTENANCY BY THE ENTIRETY COMMUNITY PROPERTYCOMMUNITY PROPERTY

Condominium Ownership:Condominium Ownership:

DeclarationDeclaration BylawsBylaws Individual unit deedIndividual unit deed

Cooperative Ownership:Cooperative Ownership:

Time-sharing:Time-sharing: Fee interest time-shareFee interest time-share Right-to-use time-shareRight-to-use time-share

Legal Descriptions:Legal Descriptions:

Need for accuracyNeed for accuracy Metes and boundsMetes and bounds Rectangular survey systemRectangular survey system Combined use of metes and bounds and Combined use of metes and bounds and

rectangular surveyrectangular survey References to platsReferences to plats

Metes and BoundsMetes and Bounds DistancesDistances Direction or coursesDirection or courses

Rectangular survey systemRectangular survey system OriginOrigin Principal meridians and base linesPrincipal meridians and base lines TownshipsTownships RangesRanges SectionsSections Subdivision of a sectionSubdivision of a section Aerial PhotographsAerial Photographs

Combined use of metes and bounds Combined use of metes and bounds and rectangular survey systemsand rectangular survey systems Example of combined survey systemExample of combined survey system Aerial PhotographAerial Photograph

Reference to platsReference to plats