| Property law |
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| Part of thecommon law series |
| Types |
| Acquisition |
| Estates in land |
| Conveyancing |
| Future use control |
| Nonpossessory interest |
| Related topics |
| Othercommon law areas |
Higher category:Law andCommon law |
InEnglish common law,real property,real estate,immovable property orrealty, refers to parcels of land and any associated structures which are theproperty of a person. For a structure (also called animprovement orfixture) to be considered part of the real property, it must be integrated with or affixed to the land. This includes crops, buildings, machinery, wells, dams, ponds, mines, canals, and roads. The term is historic, arising from the now-discontinuedform of action, which distinguished between real property disputes andpersonal property disputes. Personal property, or personalty, was, and continues to be, all property that is not real property.
In countries with personal ownership of real property,civil law protects the status of real property in real-estate markets, whereestate agents work in the market of buying and selling real estate. Scottish civil law calls real propertyheritable property, and in French-based law, it is calledimmobilier ("immovable property").
The word "real" derives from Latinres ("thing"). Under European civil law, a lawsuit that seeks official recognition of a property right is known as anactioin rem (action in relation to a thing). This contrasts with anactioin personam in which the plaintiff seeks relief for the actions of a particular person. The distinction can be subtle; the medieval action ofnovel disseisin, although aimed at repossessing land, was not anactio in rem because it claimed dispossession without leave rather than rightful possession.[1]
Henry de Bracton'sTreatise on the Laws and Customs of England is credited with giving "real property" its particular meaning in English law. After discussing the distinction in civil law, Bracton proposed that actions for movable property were inherently actions for relief, and that therefore anactio in rem could be brought only upon immovable property.[2][3] This view is not accepted in continental civil law, but can be understood in the context of legal developments during Bracton's lifetime. In thirteenth-century England the courts ofcanon law claimed broad authority to interpretwills, but inheritance of land remained a matter for the royal courts. Laws governing theconveyance of land and that of movablepersonal property then developed along different paths.[4]
In modern legal systems derived from English common law, the 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.Houseboats, for example, occupy a grey area between personal and real property, and may be treated as either according to jurisdiction or circumstance. Bethell (1998) contains much information on the historical evolution of real property and property rights.
Real property is immobile. Owners cannot move their land to a better location, such as another city, for sale. Thus the fixed location of a parcel of land directly affects, and is a major determinant of, its value.[5][6]
However, products of the land, such as minerals and crops, can be transported.
Changes that take place nearby will directly affect the real property's value. Real property is vulnerable toexternalities due to its immobile nature. External factors outside of the real property will affect the value of the real property, for example, the noises that neighbouring people and construction sites produce.
A location of desired resources will draw attention to the location. Natural locational attractions include water supply, climate, soil fertility, water frontage, and mineral deposits. As the area develops revolving around such natural resources, these developments become components to look for when determining land use and real property values. The surrounding development and proximity, such as markets and transportation routes, will also determine the value of the real property.
Although the overall amount of land (in terms of its surface area) is fixed, the supply of specifically urban land may vary. Sometimes urban land is created from previously agricultural land. Usually urban land is more valuable than agricultural land; this creates the incentive to convert non-urban land to urban land. The value of the land is directly associated with its use. Zoning regulations regarding multi-story development are modified to intensify the use of cities, instead of occupying more physical space.
To be of any value, a claim to any property must be accompanied by a verifiable and legalproperty description. Such a description usually makes use of natural or man-made boundaries such as seacoasts, rivers, streams, the crests of ridges,lakeshores, highways, roads, andrailroad tracks or purpose-built markers such ascairns,surveyor's posts, iron pins or pipes, concrete monuments,fences, official government surveying marks (such as ones affixed by theNational Geodetic Survey), and so forth. In many cases, a description refers to one or more lots on aplat, a map of property boundaries kept in public records.
These legal descriptions are usually described in two different ways –metes and bounds, andlot and block. A third way is thePublic Land Survey System,[7] as used in the United States.
The law recognizes different sorts of interests calledestates, in real property. The type of estate is usually determined by the language of thedeed,lease,bill of sale,will,land grant, etc., through which the estate was acquired. Estates are distinguished by the varyingproperty rights that vest in each and determine the duration and transferability of the various estates. A party enjoying an estate is called a "tenant".
Some important types ofestates in the land include:
A tenant enjoying an undivided estate in some property after the termination of some estate of limited term is said to have a "future interest". Two important types of future interests are:
Estates may be held jointly asjoint tenants with rights of survivorship or astenants in common. The difference between these two types of joint ownership 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 tenants become the sole owners 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 assume 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 any contribution to the purchase price. If the property is someday sold or subdivided, the proceeds must be distributed equally with no credits given for any excess that any one co-owner may have contributed to purchase the property.
The death of a co-owner of 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 thetransfer 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).
Real property may be owned jointly with several tenants, through devices such as thecondominium,housing cooperative, andbuilding cooperative.
Property consists of what has been referred to as a "bundle of rights" or a "bundle of sticks." The most important "sticks" in the bundle are: the right to transfer, the right to exclude, the right to use, and the right to destroy.
Also calledalienability, the right to transfer means that the owner may freely transfer oralienate his property to anyone. The scope of this right may be limited for public policy reasons; who can transfer, what can be transferred, and how property may be transferred may be regulated. For example, an insane person may neither transfer nor obtain real property; certain types of property may not be transferred at all, while some can be given away but not sold; how property is transferred can be regulated to avoid fraud, uncertainty, or other legal problems.[8]
An owner has a right to exclude any other person from his property. This has been described by the U.S. Supreme Court "as one of the most essential sticks" in the bundle.[9] In general, the owner of a tract of land may prevent anyone else from entering upon it. This right is enforced by the tort oftrespass. Some exceptions apply: for example, a farm owner in New Jersey employed several migrant workers who lived on the property during the harvest season. The Supreme Court of New Jersey held that the owner was not entitled to exclude social services and legal counsel from entering the property to provide service to the migrant workers residing on the property.[10]
Historically, a landowner had the absolute right to use his property in any way he wished, as long as he did not harm the rights of others. This concept is embodied in the Latin maximsic utere tuo ut alienum non-laedas, which broadly translates to: use your own property in a manner that does not injure another person's property. As a general rule, a landowner is entitled to use their land as they see fit. The scope of this right is limited in some aspects. For example, an owner may not build a "spite fence" that substantially affects the use of the neighbor's land (e.g. a hotel owner built a wall 85 ft (26 metres) long and 18 ft (5.5 metres) high that blocked the windows of a neighboring hotel owner).[11]
It is inevitable that most property will eventually be destroyed. A termite-infested house that has outlived its useful life may be demolished to build a new one. However, the scope of this right can be limited. For example, most jurisdictions may not allow an owner to destroy something of substantial value, like a new mansion. In one case, a homeowner directed the executor of her estate to destroy her historic home after her death. The Missouri court held that it would violate public policy to allow the destruction of the home.[12]
In the law of almost every country, thestate is the ultimate owner of all land under its jurisdiction, because it is thesovereign, or supreme lawmaking authority. Physical and corporate persons do not haveallodial title; they do not own land but only enjoy estates in the land.
In many countries, theTorrens title system of real estate ownership is managed and guaranteed by the government and replaces cumbersome tracing of ownership.[14] 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 allAustralian states andNew Zealand since between 1858 and 1875, has more recently been extended tostrata title, and has been adopted by many states, provinces and countries, and in modified form in 9 states of the US.[15]
In the United Kingdom,the Crown is held to be the ultimate owner of all real property in the realm. This fact is material when, for example, the property has been disclaimed by its erstwhile owner, in which case the law ofescheat applies. In some other jurisdictions (not including the United States), real property is heldabsolutely.
English law has retained the common law distinction between real property and personal property, whereas thecivil 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 the land that are purely conceptual. One such relationship is theeasement, where the owner of one property has the right to pass over a neighboring property. Another is the various "incorporeal hereditaments", such asprofits-à-Prendre, where an individual may have the right to take crops from land that is part of another's estate.
English law retains several forms of property that are largely unknown in other common law jurisdictions such as theadvowson,chancel repair liability and lordships of themanor. In the early common law, these are all classified as real property, as they would have been protected byreal actions.
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Each U.S. State exceptLouisiana has its own laws governing real property and the estates therein, grounded in thecommon law. InArizona,[citation needed] 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 asimprovements, include homes, garages, and buildings. Manufactured homes can obtain anaffidavit of affixture.
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 (a factor of production) for agriculture, and agriculture is by far the most important economic activity in pre-industrial societies. With the advent of industrialization, important new uses for land emerged as sites for factories, warehouses, offices, and urban agglomerations. The value of the real property, taking the form of man-made structures and machinery, generally decreases relative to the value of the land alone. Where industrial, agricultural, and commercial property values depreciate as a result of contamination, extraction, and expected wear and tear, respectively, residential property value depreciation is mitigated by more frequent and affordable maintenance and improvements.
Starting in the 1960s, as part of the emerging field oflaw and economics, economists and legal scholars began to study theproperty 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:
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 andethnography.
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