. . . Real Estate Law Lecture Notes: Introduction . . . . ..
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Lecture
Notes: Introduction
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The value
of land:
They
aren't making it any more. Land is unique. Other property may be fungible,
that it, one item may be exchanged for another. But land is special and no
parcel of land is quite like any other parcel.
Source of law:
Generally,
land law is state law. The state in which the land is located is the source
of law covering that land. But nowadays, the increasing growth of federal
statutes is increasingly affecting the outcome of real estate transactions,
especially in the area of taxation and environmental matters
Definitions:
Land
includes the surface of the land, and those things permanently attached, like
buildings, fences, and the like. In addition, land includes those things,
like minerals or water, under the surface of the land, and it also includes
air rights above the surface of the land. Growing stuff that is perennial,
that is, the plants "come back" every year, is land. But growing
stuff that is annual, that is, it only lives one season, is personal property
even as it grows on the land. Crops to be harvested (emblements) are personal
property. But fruit trees are treated differently. The trees are part of the
land, and the fruit only becomes personal property when it is picked.
Land
includes water rights to groundwater under the surface, and surface water.
Groundwater can be from an underground stream or can be draining down through
the ground from the surface. an owner of the land can use this water anyway
he likes, as long as the use of the water or diversion does not intentionally
harm an adjoining person.
Surface water in rivers, streams or natural lakes does not actually belong
to anybody. These waters are there for the common good under state and federal
government control. Owners of adjoining land have the beneficial use the adjoining
surface water according to either of two schemes:
-
riparian rights:
-
Landowners
on the banks of the water can use the water but they can't use it
all up. All owners must share equally with other owners, so one cannot
interfere with the natural flow.
-
appropriation
rights:
-
Landowners
on the banks of the water have priority right to use the water, based
on who put the water to beneficial use, first. (First in time equals
first in right.) This doctrine is based on scarcity. The appropriator
will need to show a date of a valid appropriation, intent, diversion,
and application to use. The first valid appropriator can consume the
entire water supply. If there is any water left, the next appropriator
in time can use what is left.
Land
can also includes fixtures, which are items of personal property attached
to the land. Fixtures, like birdbaths for example, are "stuck" to
the land so that the law regards them as part of the land.
Words
and Phrases to Know: fungible, fixtures, riparian rights, appropriation
rights.
