Real Estate Notes
Real property, or realty, includes land, anything permanently attached to the land, and anything incidental or appurtenant to it. Incidental means something that accompanies but isn’t a major part, while appurtenant means belonging to the land. Personal property, also called chattels or personalty, is everything that isn’t real property. It is usually movable, such as furniture, vehicles, or equipment.
A property owner holds a “bundle of rights,” which includes the right to possess, use, enjoy, encumber, will, sell, or even do nothing with the property. These rights can be sold or transferred individually. For example, leasing transfers the right to possess and use property for a certain period. Rights usually transfer with the land, but some, such as mineral rights, can be sold separately. Ownership extends not just to the surface but also to everything above and below, forming what is sometimes called an “inverted pyramid” of rights.
An appurtenance is something tied to the ownership of property, even if it is not a physical part of the land. Examples include minerals, air rights, water rights, or rights to sunlight and views. Some appurtenances can be sold separately, while others remain tied to the land. Air rights are often regulated by federal aviation laws, zoning rules, and private restrictions. For example, local zoning may impose height limits on buildings to preserve scenic views or solar access. Air rights may also be sold separately, such as in condominium developments.
Water rights apply to both surface and subsurface water. Riparian rights involve flowing waters like rivers, streams, or creeks, giving a landowner the right to use the water for domestic purposes. Littoral rights apply to standing waters such as lakes, ponds, or oceans. These rights generally limit use to the adjoining property; water cannot be transported elsewhere. If the body of water is navigable, ownership extends only to the mean high-water mark, with the land below that mark considered public. In non-navigable waters, the owner may hold title to the lakebed adjacent to their property. Because riparian rights do not work well in areas where water is scarce, states like Washington also use the prior appropriation system, which requires a permit to use surface or groundwater.
Mineral rights allow the extraction of solid minerals within the landowner’s inverted pyramid of ownership and may be sold separately. Once extracted, minerals become personal property. Oil and gas are governed by the Rule of Capture, meaning any oil or gas obtained from wells on a property belongs to that landowner, even if it migrated from neighboring land. Support rights ensure that land is physically supported by surrounding land; lateral support comes from neighboring land, while subjacent support comes from the ground beneath.
Attachments can be natural, like trees, or human-made, like houses and fences. Crops may be considered personal property, especially under the doctrine of emblements, which protects a tenant farmer’s right to harvest annual crops if a lease ends unexpectedly. Natural attachments can be severed and sold, while human-made attachments are called fixtures. Courts use several tests to determine whether something is a fixture: the method of attachment, its adaptation to the property, the original intention of the person who installed it, and the relationship of the parties. Items that are movable but treated as part of the property, like keys or specialized tools, are called constructively annexed.
Trade fixtures are different from regular fixtures. These are items installed by a commercial tenant to conduct business, such as manufacturing equipment, barber chairs, or farm equipment. They remain the tenant’s personal property, and the tenant must usually remove them at the end of the lease and repair any damage caused.
Manufactured homes are built in factories and transported to a site. They begin as personal property, requiring registration similar to vehicles, but they can become real property through a process called title elimination. Once converted, the home is subject to real estate taxes along with the land. If moved, it can be reclassified as personal property again. Mobile home sales typically require a dealer’s license rather than a real estate license.