Understanding Real Property Interests: Rights, Estates, Easements, and Liens, Lecture notes of Law

Download Understanding Real Property Interests: Rights, Estates, Easements, and Liens and more Lecture notes Law in PDF only on Docsity! REAL PROPERTY INTERESTS Real and Personal Property In most instances the surveyor's concern of differences between real and personal property is of minimal interest, but to his client these differences may be of extreme value. Real property is a fixed, immovable, and permanent thing, whereas personal property is consumable, can be destroyed, or moved at will. At times the distinction between the two may not be clear, yet it must be made. For example, standing timber is realty; cut logs may or may not be personality. A surveyor's failure to report observed cut logs in the course of a survey may result in liability if his client suffers damages by his failure to do so. Constituents of Real Property Land is the solid material of the earth (soil, rock, clay, sand, lava, minerals, etc.). Real property has become synonymous with land. Real property is four dimensional, length, width, depth (including height) and time. The courts to include subsurface rights in minerals, waters, and passage as well as aerial rights and the space above the land itself have interpreted the third element, depth, in addition to surface rights. English common law and the courts in the United States also recognize a fourth dimension, time. Time can describe or indicate the duration of the legal rights in real property that the vendor has to convey. From ancient times, land has been considered as immovable or fixed in position. Hence the courts and the resulting case law treated land as unique and considered the location of each parcel as definitive and distinguishable. History of American Law Basic American real property law has its foundation in English land law originating in feudalism. After 1066 A.D., all lands under English rule were considered owned by the King, William I. William made conditional land grants to his followers, to specific English barons, and to certain individuals who submitted to his control. The grantees became holders of the land or "tenants." Since the tenant made all grants in return for services, the terms of the holdings under which each tenant held were free or unfree tenure. Free tenure was divided into: 1. Military or knight service, wherein each knight was required to give a number of days each year in defense of the king. 2. Spiritual or Frankalmoigne tenure, which required prayers or spiritual duties for the king. 3. Socage tenure, which consisted of nonmilitary duties such as providing the king with crops or cattle. 4. Serjeantry, wherein personal services were provided to the king. Once each individual provided the identified and specific tenure, his remaining time was his own, and he could use the property freely in any manner desired. These four forms of tenure later became known as freeholds. Serfs held their land under unfree tenure, in that they were bound to the land and could not use any of it for their own purposes. The main point in the feudal system is that the individual who held tenure also was in possession or seisin of the property. Upon the collapse of the feudal system, only socage remained, from which we retain freehold estates. Rights and Interests in Land Rights and ownership are related but are not the same. When a person owns a parcel, that person has the right to timber, water, minerals, and possession. Each right may be described, identified, and conveyed. The owner may convey all of the rights; yet retain the right to pay taxes. The surveyor should understand the distinction between rights, interest, and title. Title is the vehicle by which one acquires an estate. Rights, such as the right to take minerals, are attributes that an individual may hold by being a landowner. A person holding a lien on land has an interest but not a title. Interest and title are not synonymous. The primary function of the surveyor has been in regard to the boundary but, he is also concerned with the to rights and interest in land. The title to property is the exclusive domain of the attorney. However, as the surveyor's responsibilities, identity, and capabilities have been changed and redefined by the courts, he is no longer prohibited in many jurisdictions from giving an opinion about who holds the title to a piece of real property. The rights and interest a person hold in land today are controlled and regulated by the laws of the state in which the lands is located. The federal government has control over the public domain, Indian lands, lands involved in bankruptcy, state boundaries, navigation, lands seaward of state boundaries, and air rights crossing state boundaries. Certain "common law" rights are recognized: 1. The right to dispose of property, not inconsistent with the law. 2. The right to have land free from interference. 3. The right to support of property, both subjacent and laterally. 4. The right to control waters that flow through or on property. 5. The right to any waters that flow through or touch property.