Property Rights and Legal Descriptions

  • Real versus Personal Property
    • Property
    • Personal Property (also called “chattel”)
    • Real estate – land and things attached to it
    • Real property – legal interests in real estate
  • Transferring Real Property
    • Title – ownership of real estate
    • Deed – document used to transfer title to real property from grantor to grantee
    • Lease – agreement (usually a document) that transfers use and possession (but not title) from lessor to lessee
  • Fixture
    • A personal property item that has become a part of the real property is called a fixture.
    • Tests for fixture status include:
      • Intent of parties
      • Test of attachment
      • Test of adaptability
    • “Trade Fixtures” are personal property, not real property!
  • Dividing Real Property
    • Physically
      • Mineral rights
      • Air rights
      • Water rights
    • Legally/conceptually
      • Estates in land
  • Mineral and Air Rights
    • Mineral rights
      • The legal interests associated with oil, gas, coal, or other minerals located beneath the surface
    • Air rights
      • The legal interests associated with the space above the surface
  • Water Rights
    • Water rights: the legal interests associated with water that flows across, touches, or is located in or under a parcel of land.
      • Littoral proprietors
      • Non-navigable bodies of water
        • Riparian rights doctrine
        • Prior appropriation doctrine
  • Underground Water
    • Underground or subterranean stream
      • Water that flows in a defined channel
    • Percolating water
      • Water in pockets not clearly located
    • See Legal Highlight “Who Can Use the Shore?”
  • Estates in Land: Freehold Estates
    • See Figure 2.1 Types of Estates in Land
  • Freehold estates
    • Present interests
      • Fee simple absolute estate
      • Qualified fee estate
      • Life estate
    • Future interests include:
      • Reversion interest
      • Remainder interest
  • Estates in Land: Leasehold Estates
  • Leasehold estates
    • Tenancy for a stated period
    • Tenancy from period to period
    • Tenancy at will
    • Tenancy at sufferance
  • Owner holds leased fee with a right of reentry
  • Concurrent Estates (real property jointly owned by more than one owner)
  • Tenancy in common – two or more owners hold undivided interests in the whole property
  • Joint tenancy – Two or more owners hold equal undivided interests in the whole with right of survivorship
  • Concurrent Estates: Marital Property
  • Tenancy by the entirety – joint tenancy with right of survivorship between married persons
  • Community property
    • Property brought to the marriage is separate property
    • Property acquired during marriage is community property belonging equally to both parties
  • Other Forms of Joint Ownership
  • Condominium
    • Condo owner holds title to unit, usually as fee simple absolute estate
    • All owners own common areas as tenants in common
  • Cooperative
    • Co-op owner owns share of stock in a corporation that owns the real property
    • Share of stock gives co-op owner the right to a proprietary lease entitling owner to use and possession of a co-op unit
  • Timeshares
    • Fee interests – Owner has fee simple absolute estate for the property for specified time during each year
    • Right to use – Program participant has a leasehold estate for the property for a specified number of years during each year
  • Legal Descriptions
    • Every parcel of real estate is unique so we need to be able to uniquely identify each parcel.
  • Three methods of legal descriptions
    • Metes and Bounds
    • Rectangular Survey
    • Recorded Plats
  • Metes and Bounds
    • Start at a designated point of beginning and, through specific distances (metes) and directions (bounds), locate the boundary lines of the parcel.
    • Distances are measured in feet (to the nearest tenth or hundredth).
    • Directions are measured in degrees, minutes, and seconds. (Note that no angle is greater than 90 degrees.)
    • Property corners are marked by reference points.
  • Rectangular Survey
    • Principal meridians are north-south lines
    • Base lines are east-west lines
    • Range lines are parallel to meridians and six miles apart
    • Township lines are parallel to base lines and six miles apart
    • Townships are formed by range and township lines
    • Townships are identified in a specific way
    • Townships are six miles square with 36 one-square-mile sections
    • Sections within townships are numbered in a specific way
    • Sections are divided in a specific way
  • Combined Use of Metes and Bounds and Rectangular Survey Systems
    • For a given parcel of land, the point of beginning might be described using the rectangular survey system, and then a metes and bounds description might follow.
  • Reference to Recorded Plats
    • Many jurisdictions require developers to prepare accurate engineering drawings of their subdivision projects called plats.
    • These plats are then recorded as legal documents that can be referred to as needed to identify individual parcels of land that are included in the plat.
    • With a properly prepared and recorded plat, a legal description for a property can be as simple as “Lot 4 of Block G of Grassy River Estates.”