Real Property Laws

Real Property Ownership and Transfer

Real property consists of land, buildings, plant life on the land, and fixtures on the property.

Real property means more than just land; it includes everything attached to it that cannot be easily moved, such as buildings, crops, and mineral rights and is not the same as personal property. It also includes riparian rights to divide surface water among those who have land along the path of the water, as well as airspace rights to the area above the property. It even includes subterranean rights, which is control over things of value beneath the surface, such as oil, gas, or minerals, unless there is a separate agreement on this issue.

There are three main categories of real property ownership: fee simple absolute, fee simple defeasible, and life estate. Fee simple is the right to change, sell, occupy, lease, or give away the property at any time. Fee simple absolute grants the owner the highest degree of ownership rights and power, with the authority to use the land as well as pass it to heirs. Fee simple defeasible is ownership of the property that may revert to the original owner or grantor under certain conditions. For example, property is passed to an owner as long as they use the property as a church, but if they cease to use it for a church, then the property will go back to the original owner. A life estate gives the life tenant all the rights of possession and use of a property but only during the life of the holder. A life tenant is not allowed to change the property in any way, even if the change would increase the property's value—any change to the property is called waste. For example, if a daughter took care of her elderly parents until they passed away, the will can state that the daughter can get a life estate in their home, after which it would be sold and proceeds donated to their favorite charity. This means she can live in the home until she dies, but when she passes away, the home will be sold, with proceeds donated to the favorite charity as specified in the parents' will.

Ownership in real property can be joint tenancy, meaning if one owner dies, their interest passes to the surviving owner. The tenancy by the entirety is a concurrent estate that is held by husband and wife, and each owns the undivided whole of the property with a right of survivorship. Additionally, tenants in common means that two or more parties each hold an individual and undivided ownership interest in the property and each party's ownership interest can be transferred, divided, or passed to heirs.

The document most often used to convey legal title and ownership in real property is known as a deed. A grantor is the owner who conveys or transfers ownership of the property, while a grantee is the buyer who pays for the real property or transferee who receives the real property as a gift.

A lease is a contract between the owner of the real property and a tenant, which conveys interest in land or property services to another for a certain time period in return for periodic payments and is subject to renewal by one or both parties. The property owner may also be the landlord, one who rents out a building, an apartment, or land to another and is responsible for certain legal duties. The tenant agrees to pay rent or some form of consideration. Unlawful detainer is the legal process of expelling someone from the property. A successful unlawful detainer lawsuit results in eviction, which is the act of permanently expelling someone, especially a tenant, from a property.

Constructive eviction is a result of the property becoming uninhabitable because of actions or nonactions by the landlord. Laws govern a lease contract, such as the Fair Housing Act and the Civil Rights Act, which prohibit discriminatory decisions made by the landlord that are based upon race, color, national origin, religion, gender, marital status, disability, or pregnancy. It should be noted that landlords can discriminate on the basis of tenant age if the landlord requires a tenant to be 55 years old or older in order to live in a senior retirement community or assisted living facility.

Another important matter in property law is an easement, which is the right to cross or use another's land for a specified purpose. An example of an easement is a road to access a home that is located at the back of a property without access to the main road. If someone can show necessity to access their property only by crossing the other's property, then they can get the courts to grant them the easement by necessity. Easements are typically part of the deed or covenant when someone buys property.

Another way of gaining an easement or changing a property’s boundaries is through adverse possession. Adverse possession is an issue in property law that concerns the occupation of land to which another person has title. This can happen a number of ways, including faulty property lines, which allows a person to use someone else’s property as their own.

Finally, eminent domain is when the government or state has the right to take private real property for public use as long as it pays just compensation. One of the first U.S. Supreme Court cases on eminent domain was Kohl v. United States (1875), wherein the court ruled the government could seize private property to build a post office as long as they provided just compensation. In Penn Central Transportation Co. v. New York City (1978), Penn Central sought to build an office tower above the Grand Central Terminal, with the purpose of generating more income. The Landmarks Preservation Commission thwarted the plan because it would alter Grand Central too much. Penn Central failed in its arguments to prove that this constituted a taking that should result in compensation. The court ruled that a taking only occurs in the event that the current use of the property is damaged.

Components of Real Property

Real property includes land, buildings, vegetation, water rights, oil or mineral rights, and air rights.