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Real Estate Notes (raw)

Real property (realty) is land, anything attached or affixed to the land, and anything incidental or appurtenant to the land.
incidental: accompanying but not a major part of something.
appurtenant: belonging to.
personal property (chattels or personalty)is defined as anything that isn't real property—anything that is not land, attached to the land, or appurtenant to the land. Something is movable, it's usually personal property.
The owner's bundle of rights includes the right to possess, use, enjoy, encumber, will, sell, or do nothing at all with their property. A property owner is free to sell any of these ownership rights, and they can be sold separately from the land itself.
Selling the right to possess and use property for a period of time is called leasing the property. Rights are ordinarily transferred along with the land, but the landowner can sell certain appurtenant rights (for instance, the mineral rights) separately from the land.
In theory, the landowner owns not only the surface of the land within the boundaries of the parcel, but also everything below or above the surface within the imaginary inverted pyramid.
An appurtenance is something that goes with or pertains to ownership of a piece of real property but isn't necessarily a physical part of the property. such as minerals in the ground, such as the right to sunlight or an unobstructed view. Some appurtenances can be sold separately from the rest of the real property, while others can't be.  
basic appurtenances: Air rights, Water rights, Mineral rights, Support rights  
If you can show in court that the value of your property has been substantially diminished, a judge might order the responsible parties to compensate you for that financial loss.    Air rights can be affected by federal aviation laws, various local laws and private restrictions.  
City zoning law that applies to your neighborhood might impose height restrictions on buildings and other structures, such as radio transmission towers. Or protect the neighbors' scenic views and access to solar energy (sun rights).  
Air rights can be sold separately. condominium developments.  
Water rights can apply both to surface water (channeled and unchanneled) and to subsurface water (groundwater).    Riparian rights are tied to landownership, a landowner has the right to use the water that touches their property for domestic purposes (bathing, washing clothes, or watering your vegetable garden.)   
Riparian water is flowing water, such as the water in a river, stream, or creek.  
Littoral water, on the other hand, is standing water, such as a pond or a lake. This term also applies to tidal waters, such as Puget Sound or the ocean.  
The water may be used only on the riparian or littoral property itself. It can't be transported for use elsewhere, on property that doesn't adjoin the river, lake, or other water source.  
If the property is on a non-navigable lake, the littoral owner owns the portion of the lake bed adjacent to the property. If the lake is navigable, the owner owns the land only to the mean highwater mark. The same rule also applies to oceanfront or other tidal property. As a general rule, the land below the highwater mark (or high tide mark) is public.  
The riparian rights system is inadequate for allocating water in places where it is scarce and in high demand, such as the dry agricultural areas in eastern Washington. The prior appropriation system was developed to address needs.  Someone who wants to use water from a river, lake, or other source must apply to the state for an appropriation permit. The prior appropriation system may also be applied to groundwater beneath a property.   
Mineral rights: the right to extract any solid minerals located within the property's inverted pyramid, can be sold separately from the rest of the property. Once brought to the surface, solid minerals become personal property.  
Under the law, oil and gas are governed by the Rule of Capture. Any oil or gas produced from wells located on a landowner's property becomes the personal property of that landowner. This is true even if the wells caused the oil or gas to migrate from underneath neighboring property. 
Support rights refer to the natural support provided to a piece of land by the surrounding land.  
Subjacent support is provided by the underlying earth.   
Lateral support is provided by neighboring land.  
Attachments are things that are permanently attached to the land, natural or human-made.   
Crops to be harvested are treated as personal property. An orchard of cultivated apple trees would be realty, but the apples growing on the trees could be considered personal property under certain circumstances.   
You could sell your standing timber to a logging company, in much the same way that the US Forest Service sells the timber rights in national forests.  
The doctrine of emblements is a special legal rule pertaining to crops. The doctrine applies when agricultural land has been leased to a tenant farmer. Emblements are crops (corn and wheat) planted annually by a tenant. Under the doctrine of emblements, if the lease terminates (through no fault of the tenant) before a crop is mature, the tenant has the right to re-enter the land later to harvest the first crop that matures after the tenancy terminates.  
Natural attachments can be sold separately from the land. This is sometimes referred to as severance from the real property.  
Human-made attachments (houses, fences, etc) are called fixtures.  
If the seller wants to transfer personal property to the buyer, that should be in the purchase and sale agreement as well. A separate document, called a bill of sale would be needed to transfer title to the personal property.  
Fixture Tests, a court will typically apply the four legal tests listed here: Method of attachment test, Adaptation test, Intention test, Relationship test.  
Method of attachment test: bolts, plaster, cement, roots, sewer pipe, resting on the land on a foundation, gazebo  
Constructively annexed (Specialized tools, keys to a house, statue) is moveable but not attached.   
Adaptation test, specially designed for it (pews in a church).   
Intention Test, the original intention of the person who installed the item that's now in dispute. The intention of the party who attached the item is the most important fixture test.  
Relationship test, did they own the property, or were they just a tenant? At the end of the tenancy, the tenant can remove it and take it with them.  
Trade Fixtures (Manufacturing equipment, Agricultural equipment, hen house, barber chairs) are equipment and other items that a commercial tenant installs to carry on a business, trade fixtures aren't considered part of the real property, no matter how they're attached. After removing a trade fixture, the tenant may be required to either restore the property to its original condition or to compensate the property owner for any damage.   
A manufactured home is assembled at a factory and transported to the dwelling site, is initially personal property and subject to registration similar to motor vehicles, unless you make it a fixture. Title elimination eliminates the vehicle title, making the home a fixture and part of the real property where it is located. The mobile home's new owner may restore the vehicle title; it may also remain as real property if it is installed immediately on another parcel.  
An agent involved in a mobile home sale is not required to have a real estate license, but will need a mobile home dealer's license.
Once a mobile home becomes real property, the owner must pay annual property taxes (general real estate taxes) on the home as well as the site.
A description that enables a piece of land to be precisely identified is commonly referred to as the property's legal description.
Methods of legal description: Metes and bounds, Government survey, Lot and block.
Metes are measurements and bounds are boundaries. The elements used to define the location of each boundary are monuments (a fixed point, survey marker, centerline of a road), courses (compass direction, in terms of the degree of deviation from either north or south, northwest, etc), and distances.
South 45 degrees East is 45 degrees east of south. South 60 degrees West is 60 degrees west of south. North 30 degrees West is 30 degrees west of north.
The government survey system (the rectangular survey system) is made up of a series of very large survey grids covering much of the United States, including Washington state. The principal meridian is the main north-south line in the grid. Each grid also has its own base line, its main east-west line. Washington and Oregon refer to the grid defined by the Willamette Meridian. Idaho has the Boise Meridian.
Range lines are also north-south lines, six miles wide, columns called ranges.
Township lines are also east-west lines, rows called township tiers.
Each individual square is called a township (six miles by six miles, which is 36 square miles in area). Example is Township 8 North, Range 6 East.
Each township is divided into 36 sections. Each section is one mile on each side (5,280 feet), or one square mile = 640 acres.
An acre is 43,560 square feet; a square acre measures 208.7 feet by 208.7 feet.
In most cases, a particular owner's property is only a part of a section, so it's described in terms of fractions, such as quarter sections or quarter-quarter sections, or even smaller fractions of a section. The best way to read a government survey description is to start at the end with the section number, and move backwards to the quarter section. Then move to each progressively smaller piece of land.
Government lots are irregular shapes because of water.
When developers subdivide land for housing, they divide it into lots, with a single house built on each lot.
A Plat (plat map) shows the lots and blocks in the subdivision. A lot within the subdivision can be described by its lot number and block number, along with the name of the subdivision and the county or city in which it is located.
Each condominium unit's description must include the unit's elevation. An established plane of elevation called a datum. The airspace occupied by a unit is sometimes referred to as an air lot.
An interest in real property is a right concerning the property or a claim against it.
Certain interests are called possessory interests (estates) because they include the right to exclusive use and possession of the property. An estate (a possessory interest) is the right to possess and have exclusive use of real property, either now or in the future.
If someone's interest in a piece of real property doesn't allow exclusive use and possession of the property (a nonpossessory interest like a lien), it's not an estate.
There are two basic categories of estates: freehold estates (includes title) and leasehold estates.
Two main kinds of freehold estates: fee simple estates and life estates.
Fee simple estate (aka fee estate or an estate in fee, absolute or defeasible) is by far the most common type of estate. It is the highest and most complete form of land ownership. A fee simple is perpetual, transferable, and inheritable. They are usually conveyed without qualifications or conditions (fee simple absolute).
Defeasible fee estate (aka qualified fee estate or a conditional fee estate) has a condition or qualification attached to the title.
The deed states that the new owner will own the property until or unless a specified act or event takes place.
A defeasible fee estate can be classified either as a fee simple Determinable (Automatic forfeiture of title) or as a fee simple subject to Condition Subsequent (Grantor must take action regain title).
Possibility of Reverter: title automatically reverts to the person who imposed the limitation if the act or event prohibited in the deed occurs.
Condition Subsequent is if the prohibited act or event occurs, the person who imposed the limitation (or their heirs) will regain title only if they take legal action to do so.
Life Estates are limited in time and lasts only as long as a particular person is alive. The holder of a life estate is called the life tenant.
The life upon which a life estate depends is called the Measuring Life. Someone other than the life tenant is Pur Autre Vie. (French for "for another life.")
The Future Interest (either an estate in reversion or an estate in remainder) is the ownership interest that will begin when the life estate ends.
The life tenant has certain duties during the life estate: A life tenant must pay any taxes, assessments, and other liens on the property. A life tenant must allow those with future interests in the property to inspect it from time to time. A life tenant must not commit waste.
If you have a leasehold estate, you don't own or have title to the property. The property owner does. The two parties to a lease contract are the property owner, called the lessor, and the tenant (lessee). Most leasehold estates can be inherited by the tenant's heirs.
A chattel real is personal property that is closely tied to real estate.
There are four kinds of leasehold estates: Estate for years/term tenancy (any fixed term, created by express agreement only), Periodic estate/periodic tenancy (month-to-month or week-to-week etc), Estate at will/tenancy at will (no specified lease term and can be terminated at any time, Rent may or may not be paid), Estate at sufferance/tenancy at sufferance/holdover tenant (staying on against the property owner's wishes).
Termination of a lease by mutual consent is called a surrender. A lease can be assigned to another person unless prohibited.
For Periodic estates, since there is no fixed termination date, if either party to the lease wants to terminate it, the other party must be given notice of termination.
However, a new Washington law eliminates the ability of residential property owners to end a periodic tenancy simply by giving notice. Now residential tenants under a month-to-month lease can stay on indefinitely unless the property owner has "just cause" for eviction. ust cause for eviction exists if the tenant significantly breaches the lease agreement, or if the owner takes the unit off the market (to occupy it themselves or to substantially remodel or demolish it).
Unlike an estate for years or a periodic estate, an estate at will cannot be assigned to someone else. Also, an estate at will automatically ends upon the death of either party (which isn't true of the other two leasehold estates).
All property may be owned by an individual, an organization, or a group of individuals (co-owners or concurrent owners).
Ownership by one individual is called ownership in severalty, or separate ownership or sole ownership. Property can be owned in severalty either by a natural person (a human being) or by an artificial person—a legal entity, such as a business, a city, or a state government.
There are three basic forms of concurrent ownership: tenancy in common, joint tenancy, and community property.
The ownership interests of tenants in common can be apportioned in any way, as long as they add up to 100%. It's referred to as unity of possession.
The interests held by tenants in common (and by other types of co-owners) are called undivided interests.
Concurrent means existing, happening, or done at the same time.
Apportion means divide and allocate.
Undivided means not divided, separated, or broken into parts.
A tenant in common is free to sell, will, or mortgage their interest without the consent of the other tenants.
A tenancy in common will terminate if all of the co-tenants sell their interests to a single owner. Or the co-tenants may agree to a voluntary partition. To partition property is to divide it into separate properties that are each owned by a co-tenant in severalty.
A legal action called a Suit for Partition is by a judge to divide the property up among them.
In a joint tenancy, two or more persons are joint and equal owners of a property.
Right of Survivorship: when a joint tenant dies, their interest in the property automatically passes to the surviving joint tenant(s).
For a Joint Tenancy to be created, the law requires fulfillment of four conditions known as the four unities: Interest, Title, Time, Possession
Unity of Interest: equal interest in the property, like 50%/50%.
Unity of Title: the joint tenants must receive their interests in the property through the same deed or will.
Unity of Time: The joint tenants must all receive their interests in the property at the same time.
Unity of Possession: they have the right to possess and use the entire property, not just a particular portion of it.
Testate: having made a valid will before one dies.
When a joint tenant dies, their interest in the property doesn't go to their heirs. Instead, it automatically passes to the surviving joint tenants. A will does not change this. Any liens or creditors' claims against the deceased joint tenant's interest are extinguished at death. The surviving joint tenants receive that interest free and clear.
Community Property is property owned concurrently and equally by two spouses. Each spouse has an undivided 50% interest in all of the couple's community property.
All property owned by one spouse before the marriage is considered their separate property. Also, anything purchased with separate funds is their separate property. Additionally, any gift or inheritance a spouse acquires during the marriage is their separate property. Profits or proceeds from separate property, such as appreciation, rents, or interest from separate property, are also classified as a spouse's separate property.
Joinder Requirement: both spouses must join in the transaction.
The transfer of community personal property does not require the other spouse's consent, except for certain items, such as household furnishings.
A tenancy by the entirety is similar to a joint tenancy (there is a right of survivorship), but can be created only by a married couple.