tkwr.com TK Writer
TKW Realty
Real property is a legal term encompassing real estate and ownership
interests in real estate (immovable property). It is a type of property
differentiated from personal property.
This article discusses the ownership of land using the interpretation of real
property as a legal term used in Anglo-American 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.
Historical background
History of the word
In law, the word real means relating to a thing (from Latin res, matter or
thing), as distinguished from a person. Thus the law 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. 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 interpretation
The following sections present an overview of real property interests as
historically interpreted under English law.[1]
Land relationship to owner
Real property is not just the ownership of property and buildings — it includes
many legal relationships between owners of immovable property (real estate) that
are purely conceptual such as the easement, where the owner of one property may
have some right on a neighbouring property, right-of-way, or the right to pass
over a property, and incorporeal heridiments such as profit a prendre. Real
property can also be held in various ways. 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 or when property reverts to the state because it
lacks an owner or has been abandoned.
Definitions
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.
Estate law
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.
Economic aspects of real property
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.
U.S. interpretation
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
but have adopted some of the common law terms over the years.
Types of ownership interests
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
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