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394
“Without that sense of security which property gives, the land would still be
uncultivated.”
Francois Quesnay
I. Teacher to Teacher Dialogue
immediately see before them.
To introduce students to the law of air rights, it might be useful to describe some of the
changes going on in major metropolitan areas. For many years, much valuable land has been used
In the mid-1800s, the state of Illinois had granted to the Illinois Central Railroad a grant “in
fee simple” of land along the lakefront of Chicago to be used for railroad development. In the late
1960s, the railroad wanted to build a billion dollar development of hotels, office buildings, and
shopping malls by selling the air over its railroad tracks. The state of Illinois objected, and
restrictions).
By using such examples, students quickly come to appreciate the importance of real property
This chapter is designed to introduce students to the law of real property from two key
perspectives: first, ownership and the rights and duties that arise out of the ownership of real
that use vis-à-vis others.
Real property represents the largest single outlay most people make in the course of their
earning years. Even if they choose to rent, the price of keeping a roof over one’s head will still
probably be their biggest expense. Real estate is not only necessary as a matter of physical
survival, it is critically important to our economic system because of this large dollar outlay. One
REAL PROPERTY
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Real Property
The other interesting aspect of this chapter goes into more detail on forms of co-ownership of
property. Most of us, sooner or later, will get involved with co-ownership of property. Anyone
who is married is a likely co-owner. Anyone who shares property interests by gift, inheritance, or
earnings is likely to be a co-owner. Even if one’s property is entirely his own, he or she will need
II. Chapter Objectives
1. List and describe the different types of real property.
2. Describe the different types of freehold estates and future interests in real property.
III. Key Question Checklist
What are the basic physical classifications of real property?
What are the main classifications of legal estates in real property?
IV. Text Materials
Introduction to Real Property
The concept of real property is concerned with the legal rights to the property rather than the
Real Property
Real property is the land itself, as well as buildings, vegetation, minerals, and all things
permanently affixed to land.
Land and Buildings – Land is the most common form of real property. Landowners usually
purchase only the surface rights to land, and may develop and use it as they want, subject to
government regulations. Buildings are constructed on real property.
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Subsurface Rights – Subsurface rights are rights to the earth located below the surface.
Plant Life and Vegetation – Plant life and vegetation are also considered to be real property.
Fixtures – Fixtures are personal property that is so closely associated with real property that it is
Contemporary Environment: Air Rights
Estates in Land
An ownership right to possess, use, and enjoy real property is called an estate in land.
Fee Simple Absolute (or Fee Simple) – A fee simple absolute is a freehold estate that gives the
Fee Simple Defeasible (or Qualified Fee) – A fee simple defeasible (or qualified fee) grants the
Life Estate – A life estate is an interest in the land for the life of a person. A life estate may also
be measured by the life of a third party, which is called estate pour autre vie. A life estate may be
Concurrent Ownership
Two or more persons may own a piece of real property. This is called concurrent ownership, or
co-ownership.
Joint Tenancy – Two or more parties can own real estate as joint tenants. The most distinguished
Tenancy in Common – In this form of concurrent ownership, the interest of a deceased tenant
Case 48.1 Concurrent Ownership of Real Property: Reicherter v. McCauley
283 P.3d 219, 2012 Kan. App. Lexis 71 (2012), Court of Appeals of Kansas
Real Property
create a joint tenancy in common with the other party. Following his death, the co-owner of the
survivorship?
Decision: Yes, one owner can destroy the joint tenancy with rights of survivorship even without
disclosing what he is doing to the other joint owner.
Ethics Questions: Did he act ethically? We simply do not have any background as to why he
Tenancy by the Entirety – This form of tenancy can only be used by married couples, and
neither spouse may sell or transfer their interest without the other spouse’s consent.
half of the community property.
Condominium – Condominiums are a common form of ownership in multiple-dwelling
Cooperative – A cooperative is a form of co-ownership of a multiple-dwelling building in which
a corporation owns the building, and the residents own shares in the corporation. Each
shareowner then leases a unit from the corporation under a renewable long-term lease. Residents
Future Interests
Reversion – Right of possession that returns to grantor after the expiration of a limited or
contingent estate.
called a remainder beneficiary.
Transfer of Ownership of Real Property
Title to property may be transferred by sale, gift, will, inheritance, tax sale, and adverse
possession.
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contract, in accordance with the Statute of Frauds. At the closing, the seller delivers the deed to
Deeds – Deeds are used to convey real property by sale or gift. The seller or donor is called the
grantor. The buyer or recipient is called the grantee. State laws recognize following three types of
deeds:
General warranty deed: A general warranty deed (or grant deed) contains the greatest
that he owns the property.
Recording Statute – Every state has a recording statute which requires that all documents
concerning real property be filed in a government office and be available as part of the public
ownership and transfer of property.
Quiet Title Action – A party who is concerned about his or her ownership rights in a parcel of
real property can bring a quiet title action, which is a lawsuit to have a court determine the extent
of those rights.
insurance.
Tax Sale – When an owner of real property fails to pay property taxes, the government may
obtain a lien against the property for the amount of taxes owed. After a statutory period of time,
the government can sell the property at a tax sale to satisfy the lien. Any excess goes to the
after the redemption period expires.
Gift, or Inheritance – Ownership interests in real property can be transferred by gift, following
Adverse Possession
Real Property
continuous period time equal to the statutory time period without the express or implied
permission of the owner.
of the possessor of the property.
Case 48.2 Adverse Possession: Whelan v. Loun
2011 Wash. App. Lexis 2768 (2011), Court of Appeals of Washington
Facts: The Louns and Whalens purchased land adjacent to one another. A wood fence was taken
questions.
Easements and Nonpossessory Interests
Easement Appurtenant – An easement appurtenant is created when the owner of one piece of
land is given an easement over an adjacent piece of land. The land over which the easement is
Case 48.3 Easement: The Willows, LLC v. Bogy
2013 Ark. App. Lexis 66 (2013), Court of Appeals of Arkansas
Facts: The Bogys needed access to their land because a railroad ran through the middle of theirs.
The Bogys had been using the land of The Willows, LLC without permission for years as an
easement.
License – A license grants a person the right to enter upon another’s property for a specified and
usually short period of time. The person granting the license is called the licensor; the person
receiving the license is called the licensee.
property.
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Zoning
exterior of buildings.
V. Key Terms and Concepts
affecting the property.
Actual and exclusive—For establishing adverse possession, the adverse possessor must
physically occupy the premises.
Air rights—The owners of land may sell or lease air space parcels above their land.
Air space parcel—The air space above the surface of the earth of an owner’s real
property.
marketable title.
Building—A structure constructed on land.
Certificate of title—In a Torrens system, the court issues a certificate of title to the person
who is determined to be the rightful owner.
Closing—The finalization of a real estate sales transaction that passes title to the property
from the seller to the buyer.
common with the other condominium owners.
Constructive notice— Recording the deed gives constructive notice to the world of the
owner’s interest in the property.
Continuous and peaceful—For establishing adverse possession, the occupancy must be
continuous and uninterrupted for the required statutory period.
concurrent ownership.
County recorder’s office— Instruments are usually filed in the county recorder’s office of
the county in which the property is located.
Deed—A writing that describes a person’s ownership interest in a piece of real property.
Dominant estate—The land that benefits from an easement.
owning or leasing it.
Easement appurtenant—A situation created when the owner of one piece of land is given
an easement over an adjacent piece of land.
Real Property
fullest bundle of legal rights that a person can hold in real property.
Fee simple defeasible—A type of ownership of real property that grants the owner all the
incidents of a fee simple absolute except that it may be taken away if a specified
condition occurs or does not occur.
property.
Future interest—The interest that the grantor retains for him- or herself or a third party.
General warranty deed—A deed that protects a grantee of real property from defects in
title caused by the grantor and prior owners of the property.
Gift—A transfer of property from one person to another without exchange of money.
preserved.
Hostile and adverse—For establishing adverse possession, the possessor must occupy the
property without the express or implied permission of the owner.
Inheritance—Real property can be transferred by inheritance.
Implied easement—Easements implied from circumstances including easements by
implication and easements by necessity.
usually short period of time.
Licensee—The person receiving the license.
Licensor—The person granting the license.
Life estate—An interest in the land for a person’s lifetime; upon that person’s death, the
interest will be transferred to another party.
established for the area.
Nonpossessory interest—When a person holds an interest in another person’s property
without actually owning any part of the property.
Open, visible, and notorious—For establishing adverse possession, the adverse possessor
must occupy the property so as to put the owner on notice of the possession.
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the status of the title.
Period of redemption—Following a tax sale, this is the period of time where a taxpayer
can redeem the property by paying the unpaid taxes and penalties.
Plant life and vegetation—Real property that is growing in or on the surface of the land.
Present possessory interest—A freehold estate is an estate in which the owner has a
present possessory interest in the real property.
negotiated the terms of the sale, a real estate sales contract is executed by the parties.
Real property—The land itself as well as buildings, trees, soil, minerals, timber, plants,
and other things permanently affixed to the land.
Recording statute—A state statute that requires a mortgage or deed of trust to be recorded
limited or contingent estate.
Remainder beneficiary—The person who is entitled to the future interest is called a
remainder beneficiary.
Reversion—A right of possession that returns to the grantor after the expiration of a
limited or contingent estate.
tenant or joint tenants.
Sale—The passing of title from a seller to a buyer for a price. Also called a conveyance.
Separate property—With reference to community property, property that is acquired
through gift or inheritance either before or during marriage remains separate property.
Servient estate—The land over which an easement is granted.
title caused by the grantor.
Statutory prescribed period of time—To obtain title under adverse possession, most states
require that the wrongful possession must be for a statutorily prescribed period of time.
Subsurface rights—Rights to the earth located beneath the surface of the land.
Surface rights—A landowner usually purchases the surface rights to the land.
by married couples.
Tenancy in common—A form of co-ownership in which the interest of a surviving tenant
in common passes to the deceased tenant’s estate and not to the co-tenants.
Title insurance—A form of insurance obtained from a title insurer who agrees to
reimburse the insured for losses caused by undiscovered defects in title.
Real Property
Variance—An exception that permits a type of building or use in an area that would not
otherwise be allowed by a zoning ordinance.
Zoning commission—A zoning commission usually formulates zoning ordinances,
conducts public hearings, and makes recommendations to the city council, which must
vote to enact an ordinance.
Zoning ordinance—Local laws that are adopted by municipalities and local governments
to regulate land use within their boundaries.
