X. Real Estate, Personal Property & Intangibles

Real Estate – Land and everything more or less permanently attached to it. Real estate includes what is below the land, down to the center of the earth (which includes mineral rights) and everything above, up to the heavens (air rights). Real estate, also called real property or realty, is distinguished from personal property.

FROM WIKIPEDIA: This legal concept is encoded in the Latin phrase Cuius est solumeius est usque ad caelum et ad inferos (“For whoever owns the soil, it is theirs up to Heaven and down to Hell.”), which appears in medieval Roman law and is credited to 13th century glossator Accursius; it was notably popularized in common law in Commentaries on the Laws of England (1766) by William Blackstone; see origins of phrase for details. Unlimited air rights existed when people began owning real estate. It was not something that anyone really concerned themselves with before the 20th century. The first legal limits placed on air rights came about because of the airplane. Eventually, owners only had rights to airspace that they could reasonably use. It would be impractical for the development of air travel for individual landowners to own all the air above them, because airplanes would be constantly trespassing.

Bundle of Rights: Includes AMONG OTHER THINGS – Littoral (Oceans & Lakes), Riparian (Rivers & Streams, Subsurface (Minerals) & AIR RIGHTS – “Air rights are valuable for those who know its value. Donald Trump is perhaps the best-known person for being able to maneuver the “air rights” for the advantage of his projects. Mr. Trump is a polarizing figure but his knowledge of the air rights made him a legend and a billionaire in the process.” (More on airspace and air rights)

Access Right – The right of owners to get to and fro their property.

Accession – A way that additions are made to property as a results of annexing fixtures (i.e. bar stools fixed) or alluvial deposits (Alluvial), See Alluvium, in the case of Accretion. See accretion and the opposite, Avulsion.

Accretion – Addition to land through processes of nature, such as deposits of soil carried by streams

Alluvium – Soil deposits by accretion, alluvial deposits. Belong to owner.

Avulsion – SUDDEN REMOVAL of land from one parcel to another, when a body of water, such as a river abruptly changes its channel.

Air Rights – See above. Are rights are the rights to use, control or occupy the space above a designated property. Air rights can be leased, sold or donated to another property. Example Library Tower in L.A. The Met Life Building in New York City above Grand Central Station.

Adjacent – Means next to but not necessarily adjoining

Adjoining – Contiguous or attached, sharing a common border. The figure below shows a warehouse with adjoining office space.

Appurtenance – Something that is outside the property itself but considered part of the property and adds to its greater enjoyment, ,such as the right to cross another’s land (easement right-of-way).

Asset – Something of value that one owns. Assets can include land, houses, cars, furniture, cash, bank deposits, and securities. Assets are the opposite of liabilities. See Liabilities.

Corporeal Property – Visible or tangible real or personal property. Fences, Pavement. Incorporeal has no physical body. Examples: Easements and licenses / legal interests.

Easement – The right or interest that one party has in the land of another. A very common type of easement is a utility easement, which gives a public utility company the right to lay their lines across others’ property. An easement may also be vacant land reserved for a planned future street or other public construction.

Easement in Gross – Utility easements are rights to use someone else’s land and are called easements in gross

Easement by Necessity – The right of an owner to cross over another’s property for a special necessary purpose. Example: Easement allowing Abel to cross Baker’s property to reach the road.

Affirmative Easement – Right to use another’s property for some active purpose; Installation of utilities or storage.

Negative Easement – Right to prevent use of someone else’s land.

Encroachment – A building, a part of a building or an obstruction that physically intrudes upon, overlaps or trespasses upon another property.

Encumber – Means to burden a property, as with debt or obligation. An encumbrance is any right to or interest in real estate that affects its value. Encumbrance can include outstanding mortgage loans, leases, unpaid taxes, easements, and deed restrictions.

Erosion – The partial wearing away of land through processes of nature, and by streams and winds. Examples are:

  • Deep gullies cut into unvegetated earth, caused by rainwater erosion
  • The Grand Canyon, perhaps formed by erosion from the Colorado River
  • The Great Sphinx in Egypt, disfigured by wind erosiion

Fixtures – Improvements attached to the land so as to become part of the real estate. Fixtures become important in the context of leased property, where fixtures may be introduced by either landlord or tenant, and when real estate is sold. Tests to determine whether an item is a fixture include: MARIA

  • Intent of the parties (
  • Method of attachment
  • Relation of the parties
  • Adaptation
  • ?A

Hereditament – Any property, whether real or personal, tangible or intangible, that may be inherited. Buildings, lands and leaseholds are examples of hereditaments.

Ingress and Egress – Right to enter and exit

Land – The surface of the earth or any part of it. Some definitions distinguish land from water. Land is considered as real property. It includes the surface rights, the mineral rights below the surface, and the air rights above. The air rights may be limited to some defined altitude.

Lands, Tenements and Hereditaments – Phrase used in early English law to describe the bundle of rights in real estate. SEE ABOVE.

Liabilities – A debt or obligation that one owes. It is the opposite of an asset.

Littoral – Ocean or gulf? Large body of water; Shoreline…

Mineral Rights – Are the rights to extract valuable resources from beneath the surface of the land. One who leases mineral rights owns the right to drill for oil or gas, or mine for coal, gold, silver, etc., under the lease.

Personal Property – All property that is not realty. It is movable , not fixed to the land. Examples are:

  • Appliances not permanently attached to real property
  • Cash and securities
  • Furniture and household items
  • Mobile homes not permanently affixed to a site
  • Vehicles

Relection – The gradual subsidence of water, leaving dry land. BIG BEAR, GREAT SALT LAKE IN UTAH

Right of Way (ROW) – A type of easement providing the right to use a particular path for access or passage. In the figure at the right, Lot A has acquired a right-of-way across Lot B.

An area subdivision dedicated to the government for use for stress, roads and other public access to lots.

Riparian Owner – One who owns land bounding on a river, or other body RUNNING water (lake)

Riparian Rights – Pertain to the use of water o, under or adjacent to ones land; Rivers or streams.

Surface Rights – Are the rights to use or modify the surface of real property. (In Texas, these are subservient to mineral rights. In the absence of an agreement to the contrary, an oil driller who leases the mineral rights may operate anywhere on the surface of the leased property.)

Tangible Property – Real estate and personal property that can be seen and touched. Intangible Property – Cannot be seen and touched.

Tangible Personal Property – Can be seen touched and moved. EXCLUDES: real estate and intangibles. State law often governs this for ad valorem tax purposes. Includes:

  • Machinery
  • Equipment
  • Jewelry
  • Trucks

Intangible Personal Property –

  • Cash
  • Accounts receivables
  • Goodwill
  • Patents
  • Trademarks
  • Assembled workforce
  • Going concern value

Trade Fixtures – Are articles place in rented buildings by the tenant to help carry out a trade or business. The tenant can remove the fixtures before the expiration of the lease, but if the tenant has failed to do so shortly after the lease expires, the fixtures become the landlord’s property. Trade fixtures include:

  • Bar stools anchored to the floor
  • Neon signs
  • Decorative or functional light fixtures
  • Stoves and refridgerators

Usufructuary Rights – Are interests that provide for the use of property that belongs to another. For example, the owner of land that bounds or contains a natural water channel has usufructuary rights. The water itself is considered to be held by the public, with all adjacent property owners holding rights to its use. Restrictions on that use vary by state law.

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