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Real property
From Wikipedia, the free encyclopedia
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| Property law |
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| Part of the common law series |
| Acquisition of property |
| Gift · Adverse possession · Deed |
| Lost, mislaid, and abandoned property |
| Alienation · Bailment · License |
| Estates in land |
| Allodial title · Fee simple · Fee tail |
| Life estate · Defeasible estate |
| Future interest · Concurrent estate |
| Leasehold estate · Condominiums |
| Conveyancing of interests in land |
| Bona fide purchaser · Torrens title · Strata title |
| Estoppel by deed · Quitclaim deed |
| Mortgage · Equitable conversion |
| Action to quiet title |
| Limiting control over future use |
| Restraint on alienation |
| Rule against perpetuities |
| Rule in Shelley's Case |
| Doctrine of worthier title |
| Nonpossessory interest in land |
| Easement · Profit |
| Covenant running with the land |
| Equitable servitude |
| Related topics |
| Fixtures · Waste · Partition |
| Riparian water rights |
| Lateral and subjacent support |
| Assignment · Nemo dat |
| Other areas of the common law |
| Contract law · Tort law |
| Wills and trusts |
| Criminal Law · Evidence |
Real property (or realty) is a legal term for one of the two main classes of property in the common law. The other class being personal property (or personalty). Although the precise definition of real property varies between jurisdictions, it almost always encompasses land, rights over land and building or fixtures on land. Real property roughly, but not precisely, corresponds to the concept of immovable property in Civil law systems.
This article discusses the ownership of land from the point of view of common law jurisdictions. Other legal geopolitical systems of government have different legal interpretations concerning the ownership of land. Terminology varies in these systems, as well: for instance, heritable property in Scotland; immovable property in Canada, United States, India, Malta, Cyprus, most of Europe including Russia, also South America, Malaysia, South Africa, Pakistan, Bangladesh, and many other countries and continents; and immobilier (real estate) in France.
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In common law, real property was property that could be protected by one of the real actions, as opposed to personal property, where a plaintiff would have to use another form of action. As a result of this formalist approach, some things that were treated as real property by the common law would not be classified as land by most modern legal systems, for example an advowson (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 (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. (The word is not derived from the notion of land having historically been "royal" property.[citation needed] The word royal — and its Spanish cognate real — come from the unrelated Latin word rex, meaning king.)
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..
English law has retained the conceptual distinction, found in the common law, between real property and personal property, rather than basing its distinction on the civil law inspired difference between immovable and immovable property.
In English law, real property is not confined to the ownership of property and buildings - often referred to as land; it includes many legal relationships between individuals or owners of land and land that are purely conceptual such as the easement, where the owner of one property may have some right on a neighbouring property such as the right to pass over a property, and other incorporeal hereditaments such as profits a prendre, where an individual may have the right to take crops from specific land.
English law also retains a number of forms of property which are largely unknown in other common law jurisdictions such as the advowson, chancel repair liability and lordships of the manor. These are all classified as real property as they would have been protected by real actions in the early common law.
In some jurisdictions real property is held absolutely, in England it may still be considered to be carved out of Crown's ownership of all property in the realm. Such distinctions are important in terms of the law of escheat which deals with certain circumstances when property reverts to the Crown when it has been disclaimed by its owner.
An important area of real immovable property are the definitions of estates in land. These are various interests that may limit the ownership rights one has over the land. The most common and perhaps most absolute type of estate is the fee simple which signifies that the owner has the right to dispose of the property as she/he sees fit. Other estates include the life estate where the owner's rights to the property cease at their death and fee tail estates where the property at the time of death passes to the heirs of the body (i.e. children, grandchildren, descendants) of the owner of the estate before he died.
In the law of almost every country, it is the state that is the true owner of all land within its territory, because it is the sovereign, or supreme lawmaking authority over it. Individuals don't "own" their land, but only "estates" in the land, also known as "equitable interests", such as the transferrable right to use and exclude others from use.
Estates 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 of an estate in land is basically the inheritability of the estate. In joint tenancy (sometimes called tenancy of the entirety when the tenants are married to each other) the surviving tenant (or tenants) become the sole owner (or owners) of the estate. Nothing passes to the heirs of the deceased tenant. In some jurisdictions the magic words "with right of survivorship" must be used or the tenancy will assumed to be tenants in common. Tenants in common will have a heritable portion of the estate in proportion to their ownership interest which is presumed to be equal amongst tenants unless otherwise stated in the transfer deed.
Real property may also be owned jointly through the device of the condominium or cooperative.
Because real immovable property is essential for industry or other activity requiring a lot of fixed physical capital, economics is very concerned with real immovable property and rules like the one regarding its valuation and disposition, and obligations accrueing to its owners. In economic terms, real property consists of some natural capital (or land, one of the factors of production especially in agriculture), and infrastructural capital (the buildings, water and power lines, and other improvements necessary to make immovable property useful for some human purpose). Other fixed physical assets, indistinguishable economically from infrastructure, such as machines, may be stored on immovable property and may require natural or infrastructural attributes (such as running water for a turbine or an isolated location to allow loud noise emissions) hard to duplicate even nearby.
In the United States, each state has its own real immovable property law. All states except Louisiana rely on variations of common law for the basis of their real immovable property laws. Louisiana's laws are derived from Napoleonic Code[citation needed] but have adopted some of the common law terms over the years.
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The law recognizes different types of ownership interests in real property. These different interests, called "estates," encompass different rights. The type of estate held by a landowner is generally determined by the language of the grant through which the landowner acquired the land.
Two differentiating characteristics of estates in land are their duration and transferability. Some important types of estates include:
- Fee simple: This most common estate lasts forever and can be freely transferred.
- Life estate: This estate lasts for the grantee's life. The grantee is called a "life tenant." Though it can generally be sold, sale does not change its duration, which must always be limited by the original grantee's life.
- Leasehold: Leasehold estates are estates of limited duration. For example, an apartment-dweller with a one year lease has a leasehold estate in her apartment. Often, leasehold tenants must pay rent.
If an estate is of limited duration, whoever will take ownership of the land upon its termination has a "future interest." Two important types of future interests are:
- Reversion: 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: A remainder arises when a tenant with a fee simple grants someone a life estate, and specifies a third party to whom the land goes when the life estate ends. The third party is said to have a remainder. The third party may have some legal rights to limit the life tenant's use of the land.