CHAPTER 2 Property Rights and Legal Descriptions This chapter introduces the basic legal distinctions between real and personal property, as well as the many different legal interests an owner may have in real property.

What is Real Property?  Real property  Personal property  Methods of transfer

Fixtures: An item that was once personal property but that has become attached to the real estate so that it is now considered real property.  Tests for fixtures: Intent of the parties Intent of the parties Attachment Attachment Adaptability Adaptability

Mineral and Air Rights:  Separate ownership  Limitation of air space to a reasonable distance  Right to sunlight

Water Rights:  Littoral Rights  Riparian Rights Theory  Reasonable Use  Prior Application Theory  Underground Water

Water Rights  Water is valuable, particularly in areas where it is scarce!  Navigable bodies of water: Land that joins have littoral right: Where land borders on lake or sea, it is said to carry littoral rights. That is the right of land owner to use and enjoy the water touching his/her land provided he/she does not alter the water’s position by artificial means. Land that joins have littoral right: Where land borders on lake or sea, it is said to carry littoral rights. That is the right of land owner to use and enjoy the water touching his/her land provided he/she does not alter the water’s position by artificial means. Own to high-water mark Own to high-water mark

Navigable bodies of water (cont’d): Government (Corps of Engineers) owns water/land underneath water. Government (Corps of Engineers) owns water/land underneath water. Generally plenty of water for all Generally plenty of water for all  Non-navigable water: Land owner owns land underwater, but state owns water. Land owner owns land underwater, but state owns water. How should water be allocated? How should water be allocated?

Non-navigable bodies of water (cont’d):  Riparian Rights Theory- Ownership of land that borders on a river or stream carries the right to use the water in common with the other land owners whose land boarder the same water course. Eastern U.S.- Use all water needed, but not an unreasonable amount, don’t deprive other landowners who are also entitled to some of the water. Eastern U.S.- Use all water needed, but not an unreasonable amount, don’t deprive other landowners who are also entitled to some of the water.

Eastern U.S. (continued)  Prior 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 might as well use all they need. Not enough water for everyone, so first landowner might as well use all they need.  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 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 was established. The first claim has priority over all other subsequent claims. If any water remains after the first claimant or appropriator has received his or her share, the second appropriator receives his or her share and so on until the water supply is exhausted. This system is subject to administrative control by state agencies, and by the federal government where federal water is involved.

Underground Water:  Subterranean Streams- Clearly defined channels- use is generally not limited.  Percolating Waters- “Pockets” of water- states generally apply reasonable -use test; shouldn’t deplete water supply of adjoining landowners.

ESTATES IN LAND: Severalty (Fig. 4.1) A FREEHOLD ESTATES: Inheritable · FEE SIMPLE ABSOLUTE ESTATES -ALIENABLE -DEVISABLE -DESCENDIBLE B Qualified Estate: Defeassible estate · Qualified fee determinable -Reversion · Qualified fee conditional -Power of termination

C LIFE ESTATES: NONINHERITABLE FREEHOLD ESTATES PUR AUTRE VIE PUR AUTRE VIE FUTURE INTERESTS FUTURE INTERESTS REMAINDERREMAINDER VESTED VESTED CONTINGENT CONTINGENT REVERSIONREVERSION ESTATE PLANNINGESTATE PLANNING

D LEASEHOLD ESTATES:NONFREEHOLD ESTATES TENANCY FOR A STATED PERIOD TENANCY FOR A STATED PERIOD TENANCY FROM PERIOD TO PERIOD TENANCY FROM PERIOD TO PERIOD TENANCY AT WILL TENANCY AT WILL TENANCY AT SUFFERANCE TENANCY AT SUFFERANCE

CONCURRENT ESTATE:  TENANCY IN COMMON  JOINT TENANCY RIGHT OF SURVIVORSHIP RIGHT OF SURVIVORSHIP  TENANCY BY THE ENTIRETY  COMMUNITY PROPERTY

Condominium Ownership:  Declaration  Bylaws  Individual unit deed Cooperative Ownership: Time-sharing:  Fee interest time-share  Right-to-use time-share

Legal Descriptions:  Need for accuracy Metes and bounds Metes and bounds Rectangular survey system Rectangular survey system Combined use of metes and bounds and rectangular survey Combined use of metes and bounds and rectangular survey References to plats References to plats

 Metes and Bounds Distances Distances Direction or courses Direction or courses

 Rectangular survey system Origin Origin Principal meridians and base lines Principal meridians and base lines Townships Townships Ranges Ranges Sections Sections Subdivision of a section Subdivision of a section Aerial Photographs Aerial Photographs

 Combined use of metes and bounds and rectangular survey systems Example of combined survey system Example of combined survey system Aerial Photograph Aerial Photograph

 Reference to plats