Real property

Real property

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In English Common Law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

, real property, real estate
Real estate
In general use, esp. North American, 'real estate' is taken to mean "Property consisting of land and the buildings on it, along with its natural resources such as crops, minerals, or water; immovable property of this nature; an interest vested in this; an item of real property; buildings or...

, realty, or immovable property
Immovable property
Immovable property is an immovable object, an item of property that cannot be moved without destroying or altering it - property that is fixed to the Earth, such as land or a house. In the United States it is also commercially and legally known as real estate and in Britain as property...

 is any subset of land
Estate in land
An estate in land is an interest in real property that is or may become possessory.This should be distinguished from an "estate" as used in reference to an area of land, and "estate" as used to refer to property in general....

 that has been legally defined and the improvements to it made by human efforts: any building
Building
In architecture, construction, engineering, real estate development and technology the word building may refer to one of the following:...

s, machinery, well
Water well
A water well is an excavation or structure created in the ground by digging, driving, boring or drilling to access groundwater in underground aquifers. The well water is drawn by an electric submersible pump, a trash pump, a vertical turbine pump, a handpump or a mechanical pump...

s, dam
Dam
A dam is a barrier that impounds water or underground streams. Dams generally serve the primary purpose of retaining water, while other structures such as floodgates or levees are used to manage or prevent water flow into specific land regions. Hydropower and pumped-storage hydroelectricity are...

s, pond
Pond
A pond is a body of standing water, either natural or man-made, that is usually smaller than a lake. A wide variety of man-made bodies of water are classified as ponds, including water gardens, water features and koi ponds; all designed for aesthetic ornamentation as landscape or architectural...

s, mine
Mining
Mining is the extraction of valuable minerals or other geological materials from the earth, from an ore body, vein or seam. The term also includes the removal of soil. Materials recovered by mining include base metals, precious metals, iron, uranium, coal, diamonds, limestone, oil shale, rock...

s, canal
Canal
Canals are man-made channels for water. There are two types of canal:#Waterways: navigable transportation canals used for carrying ships and boats shipping goods and conveying people, further subdivided into two kinds:...

s, road
Road
A road is a thoroughfare, route, or way on land between two places, which typically has been paved or otherwise improved to allow travel by some conveyance, including a horse, cart, or motor vehicle. Roads consist of one, or sometimes two, roadways each with one or more lanes and also any...

s, various property rights, and so forth. Real property and personal property
Personal property
Personal property, roughly speaking, is private property that is moveable, as opposed to real property or real estate. In the common law systems personal property may also be called chattels or personalty. In the civil law systems personal property is often called movable property or movables - any...

are the two main subunits of property
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...

 in English Common Law.

In countries with personal ownership of real property, civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...

 protects the status of real property in real-estate markets, where licensed agents, realtors, work in the market of buying and selling real estate. Scottish
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...

 civil law calls real property "heritable property", and in French-based law, it is called immobilier.

Identification of real property


To be of any value a claim to any property must be accompanied by a verifiable and legal property description
Land description
A Land description consists of the written words which delineate a specific piece of real property. Also known as a "Legal Description". In the written transfer of real property, it is universally required that the instrument of conveyance include a written description of the property.- Canada...

. Such a description usually makes use of natural or manmade boundaries such as seacoasts, river
River
A river is a natural watercourse, usually freshwater, flowing towards an ocean, a lake, a sea, or another river. In a few cases, a river simply flows into the ground or dries up completely before reaching another body of water. Small rivers may also be called by several other names, including...

s, stream
Stream
A stream is a body of water with a current, confined within a bed and stream banks. Depending on its locale or certain characteristics, a stream may be referred to as a branch, brook, beck, burn, creek, "crick", gill , kill, lick, rill, river, syke, bayou, rivulet, streamage, wash, run or...

s, the crests of ridge
Ridge
A ridge is a geological feature consisting of a chain of mountains or hills that form a continuous elevated crest for some distance. Ridges are usually termed hills or mountains as well, depending on size. There are several main types of ridges:...

s, lakeshore
Lakeshore
-Settlements:* Lakeshore, Ontario, Canada* Lakeshore, Quebec, Canada* Lakeshore, California **Lakeshore, Fresno County, California**Lakeshore, Placer County, California**Lakeshore, Shasta County, California* Lakeshore, New Orleans, Louisiana...

s, highway
Highway
A highway is any public road. In American English, the term is common and almost always designates major roads. In British English, the term designates any road open to the public. Any interconnected set of highways can be variously referred to as a "highway system", a "highway network", or a...

s, road
Road
A road is a thoroughfare, route, or way on land between two places, which typically has been paved or otherwise improved to allow travel by some conveyance, including a horse, cart, or motor vehicle. Roads consist of one, or sometimes two, roadways each with one or more lanes and also any...

s, and railroad tracks, and/or purpose-built artificial
Artificial
See also: Synthetic ' or ' may refer to:* Artificial beaches* Artificial chemistry* Artificial consciousness* Artificial creation* Artificial elements* Artificial flower* Artificial food* Artificial fuel* Artificial harmonic...

 markers such as cairn
Cairn
Cairn is a term used mainly in the English-speaking world for a man-made pile of stones. It comes from the or . Cairns are found all over the world in uplands, on moorland, on mountaintops, near waterways and on sea cliffs, and also in barren desert and tundra areas...

s, surveyor
Surveying
See Also: Public Land Survey SystemSurveying or land surveying is the technique, profession, and science of accurately determining the terrestrial or three-dimensional position of points and the distances and angles between them...

's posts, fence
Fence
A fence is a freestanding structure designed to restrict or prevent movement across a boundary. It is generally distinguished from a wall by the lightness of its construction: a wall is usually restricted to such barriers made from solid brick or concrete, blocking vision as well as passage .Fences...

s, official government surveying marks (such as ones affixed by the U.S. Geodetic Survey
U.S. National Geodetic Survey
National Geodetic Survey, formerly called the U.S. Coast and Geodetic Survey , is a United States federal agency that defines and manages a national coordinate system, providing the foundation for transportation and communication; mapping and charting; and a large number of applications of science...

 (USGS)), and so forth.

Estates and ownership interests defined


The law recognizes different sorts of interests, called estates, in real property. The type of estate is generally determined by the language of the deed
Deed
A deed is any legal instrument in writing which passes, or affirms or confirms something which passes, an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions sealed...

, lease
Lease
A lease is a contractual arrangement calling for the lessee to pay the lessor for use of an asset. A rental agreement is a lease in which the asset is tangible property...

, bill of sale
Bill of sale
A bill of sale is a legal document made by a 'seller' to a purchaser, reporting that on a specific date, at a specific locality, and for a particular sum of money or other "value received", the seller sold to the purchaser a specific item of personal, or parcel of real, property of which he had...

, will
Will (law)
A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...

, land grant
Land grant
A land grant is a gift of real estate – land or its privileges – made by a government or other authority as a reward for services to an individual, especially in return for military service...

, etc., through which the estate was acquired. Estates are distinguished by the varying property rights that vest in each, and that determine the duration and transferability of the various estates. A party enjoying an estate is called a "tenant."

Some important types of estates in land include:
  • Fee simple
    Fee simple
    In English law, a fee simple is an estate in land, a form of freehold ownership. It is the most common way that real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved...

    : An estate of indefinite duration, that can be freely transferred. The most common and perhaps most absolute type of estate, under which the tenant enjoys the greatest discretion over the disposition of the property.
  • Conditional Fee simple: An estate lasting forever as long as one or more conditions stipulated by the deed's grantor does not occur. If such a condition does occur, the property reverts to the grantor, or a remainder interest is passed on to a third party.
  • Fee tail
    Fee tail
    At common law, fee tail or entail is an estate of inheritance in real property which cannot be sold, devised by will, or otherwise alienated by the owner, but which passes by operation of law to the owner's heirs upon his death...

    : An estate which, upon the death of the tenant, is transferred to his or her heirs.
  • Life estate
    Life estate
    A life estate is a concept used in common law and statutory law to designate the ownership of land for the duration of a person's life. In legal terms it is an estate in real property that ends at death when there is a "reversion" to the original owner...

    : An estate lasting for the natural life of the grantee, called a "life tenant." If a life estate can be sold, a sale does not change its duration, which is limited by the natural life of the original grantee.
    • A life estate pur autre vie is held by one person for the natural life of another person. Such an estate may arise if the original life tenant sells her life estate to another, or if the life estate is originally granted pur autre vie.
  • Leasehold: An estate of limited duration, as set out in a contract, called a lease, between the party granted the leasehold, called the lessee, and another party, called the lessor, having a longer lived estate in the property. For example, an apartment-dweller with a one year lease has a leasehold estate in her apartment. Lessees typically agree to pay a stated rent to the lessor.


A tenant enjoying an undivided estate in some property after the termination of some estate of limited duration, is said to have a "future interest." Two important types of future interests are:
  • Reversion
    Reversion (law)
    A reversion is a type of "remainder" interest created when incomplete ownership in property is alienated subject to a condition subsequent. Upon the fulfillment of the condition subsequent, the incomplete possessory rights cease to exist and exclusive ownership returns to the holder of the...

    : A reversion arises when a tenant grants an estate of lesser maximum duration than his own. Ownership of the land returns to the original tenant when the grantee's estate expires. The original tenant's future interest is a reversion.
  • Remainder
    Remainder (law)
    A remainder in property law is a future interest given to a person that is capable of becoming possessory upon the natural end of a prior estate created by the same instrument...

    : A remainder arises when a tenant with a fee simple grants someone a life estate or conditional fee simple, and specifies a third party to whom the land goes when the life estate ends or the condition occurs. The third party is said to have a remainder. The third party may have a legal right to limit the life tenant's use of the land.


Estate
Estate (law)
An estate is the net worth of a person at any point in time. It is the sum of a person's assets - legal rights, interests and entitlements to property of any kind - less all liabilities at that time. The issue is of special legal significance on a question of bankruptcy and death of the person...

s may be held jointly as joint tenants with rights of survivorship or as tenants in common. The difference in these two types of joint ownership
Joint ownership
Joint ownership refers to:* Housing equity partnership.* Jointly-owned photovoltaic plant....

 of an estate in land is basically the inheritability of the estate and the shares of interest that each tenant owns.

In a joint tenancy with rights of survivorship deed, or JTWROS, the death of one tenant means that the surviving tenant(s) become the sole owner(s) of the estate. Nothing passes to the heirs of the deceased tenant. In some jurisdictions, the specific words "with right of survivorship" must be used, or the tenancy will assumed to be tenants in common without rights of survivorship. The co-owners always take a JTWROS deed in equal shares, so each tenant must own an equal share of the property regardless of his/her contribution to purchase price. If the property is someday sold or subdivided, the proceeds must be distributed equally with no credits given for any excess than any one co-owner may have contributed to purchase the property.

The death of a co-owner of a tenants in common (TIC) deed will have a heritable portion of the estate in proportion to his ownership interest which is presumed to be equal among all tenants unless otherwise stated in the transfer deed. However, if TIC property is sold or subdivided, in some States, Provinces, etc., a credit can be automatically made for unequal contributions to the purchase price (unlike a partition of a JTWROS deed). However, do not forget that these considerations

Real property may be owned jointly with several tenants, through devices such as the condominium
Condominium
A condominium, or condo, is the form of housing tenure and other real property where a specified part of a piece of real estate is individually owned while use of and access to common facilities in the piece such as hallways, heating system, elevators, exterior areas is executed under legal rights...

, housing cooperative
Housing cooperative
A housing cooperative is a legal entity—usually a corporation—that owns real estate, consisting of one or more residential buildings. Each shareholder in the legal entity is granted the right to occupy one housing unit, sometimes subject to an occupancy agreement, which is similar to a lease. ...

, and building cooperative.

Jurisdictional peculiarities


In the law of almost every country, the state
State (polity)
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...

 is the ultimate owner of all land under its jurisdiction, because it is the sovereign
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...

, or supreme lawmaking authority. Physical and corporate persons do not have allodial title
Allodial title
Allodial title constitutes ownership of real property that is independent of any superior landlord, but it should not be confused with anarchy as the owner of allodial land is not independent of his sovereign...

; they do not "own" land but only enjoy estates in the land, also known as "equitable interests."

Australia and New Zealand


In many countries the Torrens title
Torrens title
Torrens title is a system of land title where a register of land holdings maintained by the state guarantees an indefeasible title to those included in the register...

 system of real estate ownership is managed and guaranteed by the government and replaces cumbersome tracing of ownership. The Torrens title system operates on the principle of "title by registration" (i.e. the indefeasibility of a registered interest) rather than "registration of title." The system does away with the need for a chain of title (i.e. tracing title through a series of documents) and does away with the conveyancing costs of such searches. The State guarantees title and is usually supported by a compensation scheme for those who lose their title due to the State's operation. It has been in practice in all Australian states and in New Zealand since between 1858 and 1875, has more recently been extended to strata title
Strata title
Strata title is a form of ownership devised for multi-level apartment blocks and horizontal subdivisions with shared areas. The 'strata' part of the term refers to apartments being on different levels, or "strata"....

, and has been adopted by many states, provinces and countries, and in modified form in 9 states of the USA.

England and Wales


In the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...

, The Crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...

 is held to be the ultimate owner of all real property in the realm. This fact is material when, for example, property has been disclaimed by its erstwhile owner, in which case the law of escheat
Escheat
Escheat is a common law doctrine which transfers the property of a person who dies without heirs to the crown or state. It serves to ensure that property is not left in limbo without recognised ownership...

 applies. In some other jurisdictions (not including the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

), real property is held absolutely
Allodial title
Allodial title constitutes ownership of real property that is independent of any superior landlord, but it should not be confused with anarchy as the owner of allodial land is not independent of his sovereign...

.

English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...

 has retained the common law distinction between real property and personal property, whereas the civil law distinguishes between "movable" and "immovable" property. In English law, real property is not confined to the ownership of property and the buildings sited thereon often referred to as "land." Real property also includes many legal relationships between individuals or owners of land that are purely conceptual. One such relationship is the easement
Easement
An easement is a certain right to use the real property of another without possessing it.Easements are helpful for providing pathways across two or more pieces of property or allowing an individual to fish in a privately owned pond...

, where the owner of one property may enjoy the right to pass over a neighboring property. Another is the various "incorporeal hereditaments," such as profits a prendre, where an individual may have the right to take crops from land that is part of another's estate.

English law retains a number of forms of property which are largely unknown in other common law jurisdictions such as the advowson
Advowson
Advowson is the right in English law of a patron to present or appoint a nominee to a vacant ecclesiastical benefice or church living, a process known as presentation. In effect this means the right to nominate a person to hold a church office in a parish...

, chancel repair liability
Chancel repair liability
Chancel repair liability is a liability on some property owners in England and Wales to fund repairs to the chancel of their local church. This responsibility of owners of once rectorial land exists in perpetuity....

 and lordships of the manor
Manorialism
Manorialism, an essential element of feudal society, was the organizing principle of rural economy that originated in the villa system of the Late Roman Empire, was widely practiced in medieval western and parts of central Europe, and was slowly replaced by the advent of a money-based market...

. These are all classified as real property, as they would have been protected by real actions in the early common law.

USA



Each U.S. State
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...

 except Louisiana
Louisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...

 has its own laws governing real property and the estates therein, grounded in the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

. In Arizona, real property is generally defined as land and the things permanently attached to the land. Things that are permanently attached to the land, which also can be referred to as improvements, include homes, garages, and buildings. Manufactured homes can obtain an affidavit of affixture.

Economic aspects of real property


Land use, land valuation, and the determination of the incomes of landowners, are among the oldest questions in economic theory. Land is an essential input (factor of production) for agriculture, and agriculture is by far the most important economic activity in preindustrial societies. With the advent of industrialization, important new uses for land emerge, as sites for factories, warehouses, offices, and urban agglomerations. Also, the value of real property taking the form of man-made structures and machinery increases relative to the value of land alone. The concept of real property eventually comes to encompass effectively all forms of tangible fixed capital
Capital (economics)
In economics, capital, capital goods, or real capital refers to already-produced durable goods used in production of goods or services. The capital goods are not significantly consumed, though they may depreciate in the production process...

. with the rise of extractive industries, real property comes to encompass natural capital
Natural capital
Natural capital is the extension of the economic notion of capital to goods and services relating to the natural environment. Natural capital is thus the stock of natural ecosystems that yields a flow of valuable ecosystem goods or services into the future...

. With the rise of tourism and leisure, real property comes to include scenic and other amenity values.

Starting in the 1960s, as part of the emerging field of law and economics
Law and economics
The economic analysis of law is an analysis of law applying methods of economics. Economic concepts are used to explain the effects of laws, to assess which legal rules are economically efficient, and to predict which legal rules will be promulgated.-Relationship to other disciplines and...

, economists and legal scholars began to study the property rights enjoyed by tenants under the various estates, and the economic benefits and costs of the various estates. This resulted in a much improved understanding of the:
  • Property rights enjoyed by tenants under the various estates. These include the right to:
    • Decide how a piece of real property is used;
    • Exclude others from enjoying the property;
    • Transfer (alienate) some or all of these rights to others on mutually agreeable terms;
  • Nature and consequences of transaction cost
    Transaction cost
    In economics and related disciplines, a transaction cost is a cost incurred in making an economic exchange . For example, most people, when buying or selling a stock, must pay a commission to their broker; that commission is a transaction cost of doing the stock deal...

    s when changing and transferring estates.

For an introduction to the economic analysis of property law, see Shavell (2004), and Cooter and Ulen (2003). For a collection of related scholarly articles, see Epstein (2007). Ellickson (1993) broadens the economic analysis of real property with a variety of facts drawn from history and ethnography
Ethnography
Ethnography is a qualitative method aimed to learn and understand cultural phenomena which reflect the knowledge and system of meanings guiding the life of a cultural group...

.

Historical background


The word "real" ultimately derives from Latin res "thing" and was used in Middle English to mean "relating to things, especially real property".

In common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

, real property was property that could be protected by some form of real action, in contrast to personal property, where a plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...

 would have to resort to another form of action. As a result of this formalist approach, some things the common law deems to be land would not be classified as such by most modern legal systems, for example an advowson
Advowson
Advowson is the right in English law of a patron to present or appoint a nominee to a vacant ecclesiastical benefice or church living, a process known as presentation. In effect this means the right to nominate a person to hold a church office in a parish...

 (the right to present to the living of a church) was real property. By contrast the rights of a leaseholder originate in personal actions and so the common law originally treated a leasehold as part of personal property.

The law now broadly distinguishes between real property (land and anything affixed to it) and personal property
Personal property
Personal property, roughly speaking, is private property that is moveable, as opposed to real property or real estate. In the common law systems personal property may also be called chattels or personalty. In the civil law systems personal property is often called movable property or movables - any...

 (everything else, e.g., clothing, furniture, money). The conceptual difference was between immovable property, which would transfer title along with the land, and movable property, which a person would retain title to.

In modern legal systems derived from English common law, classification of property as real or personal may vary somewhat according to jurisdiction or, even within jurisdictions, according to purpose, as in defining whether and how the property may be taxed.

Bethell (1998) contains much historical information on the historical evolution of real property and property rights.

See also

  • Real estate
    Real estate
    In general use, esp. North American, 'real estate' is taken to mean "Property consisting of land and the buildings on it, along with its natural resources such as crops, minerals, or water; immovable property of this nature; an interest vested in this; an item of real property; buildings or...

  • Land tenure
    Land tenure
    Land tenure is the name given, particularly in common law systems, to the legal regime in which land is owned by an individual, who is said to "hold" the land . The sovereign monarch, known as The Crown, held land in its own right. All private owners are either its tenants or sub-tenants...

  • Mineral rights
    Mineral rights
    - Mineral estate :Ownership of mineral rights is an estate in real property. Technically it is known as a mineral estate and often referred to as mineral rights...

  • Landlord
    Landlord
    A landlord is the owner of a house, apartment, condominium, or real estate which is rented or leased to an individual or business, who is called a tenant . When a juristic person is in this position, the term landlord is used. Other terms include lessor and owner...

  • Fiefdom
    Fiefdom
    A fee was the central element of feudalism and consisted of heritable lands granted under one of several varieties of feudal tenure by an overlord to a vassal who held it in fealty in return for a form of feudal allegiance and service, usually given by the...

  • Benefice
    Benefice
    A benefice is a reward received in exchange for services rendered and as a retainer for future services. The term is now almost obsolete.-Church of England:...

  • The Land Report
    The land report
    The Land Report is a quarterly American magazine that focuses on topics of interest to those who own or seek to own or invest in land.In addition to its subscriber base, The Land Report is mailed to The Land Report 100, Forbes' list of the World's 400 Billionaires, the 100 Top CEOs Under 40,...

  • Land ownership in Canada
    Land ownership in Canada
    Land ownership in Canada is held by governments, Native groups, corporations, and individuals. Canada is the second largest country in the world; at 9,093,507 km² or 3,511,085 mi² of land it occupies more than 6% of the Earth's surface...


External links