Transcript Real Property Rights

Real Property Types
Real Property – A physical component – real property with
ecological and spatial characteristics and a unique location
The characteristics give the “land” its utility and make it important for particular
purposes
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Land surface – agriculture, forestry, urban, wetlands, parks, scientific and natural
areas, highway rights-of-way
Subsurface – minerals, iron ore, copper-nickel
Supersurface (air) – building space, airspace, sunshine, wind, scenery, odor
Wildlife – exotic, game, non-game, pests, endangered
Surface water – navigable, non-navigable
Real Property – A behavioral component – legal entity and legal
rights
Entity
Legal Rights
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to acquire and convey any or all rights
to use and “quiet enjoyment"
to exclude
Real Property Rights
A legally defined entity possessing rights
Tenants in common
Legally defined rights - interests
Fee simple absolute
Legally defined real property
Legal description
Evidenced by legally defined documents
Warranty deed
Property and Property Rights
Real Property and Real Property Rights
Defined by law, both federal and state, all developed out of necessity
In general states have exclusive jurisdiction over the land within their borders
State law concerning the kind of real interests that can be held and how they are
created is not subject to federal law
Local government law is delegated from the state
Federal law concerns legal characteristic of individual citizens and the production of
particular goods and services that move from one state to another or that has
significant consequences for the nation as a whole
A vast body of law has been developed to resolve and prevent conflicts between
landowners exercising their real property rights
Federal and State land use statutes that define, promote, enforce, and protect the
production of certain goods and the provision of certain services
• Building codes
• Zoning and other regulations on use
• Subdivision controls
Common (judicial) law doctrines affecting land use
• Easements - including easements by necessity
• Servitudes and restrictive covenants
• Nuisance
Personal Situation
Federal and State Law regarding finances, corporations and real property
Minnesota Law – definition of real property, joint tenancy, ownership in water surface
Dakota County Law - zoning ordinances
Sunfish Lake Law - ordinances regarding buildings
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What our abstract describes
What our deed describes
What our mortgage describes
Dakota County Real Estate Inquiry
Dakota County Standard Property Map Locator
Real Property Rights
Have a temporal and spatial dimension
Have a multilayered jurisdictional context that describe
• What rights in what real property can be possessed
• Who can possess them
• How they can be possessed
• How they may be acquired
• How they may be conveyed
• How they may be exercised
• How they may not be exercised
• How they may be taken by the jurisdiction
Basic Structure of Real Property Ownership
Fee Title Owners – legal entity with legal rights to use property
Encumbrances – legal entity with legal rights that affect the ownership rights
• Legal rights to the land – mortgage or another type of lien, a lease, an easement, or
a restriction created by a covenant, or zoning ordinances
• Legal claims against the owner – mortgages, claims by other parties, court
judgments, pending legal action, unpaid property and income taxes
“Rights to" or "Interests in" land held by owner comprises an
estate
These rights may be
(a) Possessory
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Present – the holder has immediate possession
Future – the holder may become possessory in the future, typically based upon
the occurrence of a contingency, e.g. a death, rights pass according to a will or
trust
• holder possess reversionary rights
(b) Non-possessory – easements, liens, restrictive covenants, licenses, profits
Forms of Title – Present Rights
Present rights
(a) Freehold which continue indefinitely or until the occurrence of some event
• Fee simple absolute – holder owns possessory rights now and in the future for an
infinite duration – no limitations on its inheritability, does not end if the holder
conveys it or part of it during his/her/their lifetime or when the holder dies
• Fee simple determinable, a fee simple estate with a limitation, often on how the
land can be used
• Defeasible Fee – estates are lost if a specified condition occurs or fails to occur in
the future
(b) Leasehold - Non-freehold which ends on a particular date
Leasehold
A non-freehold estate that exists for a definite period of time – if longer than a year spelled out in
a lease and signed by the parties - tenant has a present possessory interest in the property
and the landlord has a future possessory interest
• Periodic Tenancy – continues for successive periods from year to year or fractions, no
definite termination date continuing until terminated by either the landlord or tenant. by
proper notice, which is usually statutorily prescribed, created by express agreement or by
operation of law
• Tenancy at Will – landlord and tenant both have the right to terminate the lease, parties must
have an agreement or understanding that either party can terminate at any time, tenancy
has no stated duration and lasts as long as the landlord and tenant desire, in most states,
the acceptance by the landlord of regular rent will cause the courts to consider the tenancy
to be a periodic tenancy, commonly, no notice was required to terminate a tenancy at will but
most states have enacted legislation requiring notice of termination to be given at least one
month in advance
• Tenancy for Years – continues for a fixed period of time with certain beginning and
termination dates, the term expires at the end of the period without notice required by either
party
• Tenancy at Sufferance – a tenant who was rightfully in possession and remains at the end of
the tenancy, lasts until the tenant is evicted by the landlord or until the landlord elects to hold
the tenant to an additional term
Forms of Title – Future Rights
Life Estate
• rights whose duration is measured by the life or lives of someone else, ending at
the death of that person;
Fee Tail, rights that can endure forever but can only be passed to lineal descendants ends if and when the first fee tail tenant has no lineal descendants to succeed him
or her in possession
Primogeniture, rights that pass to the oldest son
Acquiring Rights (Title)
Voluntary conveyance by a method – purchase, exchange, donation
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through a written instrument – deed, will, easement
Involuntary conveyance by a method – divorce, escheat, adverse possession,
condemnation, dedication, forfeiture
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through judgment of a court or the operation of a statute
Holding Title
By one legal entity – called "severalty"
By several entities
Tenancy in Common
There is a presumption that a conveyance to two or more persons is a tenancy in
common – where doubt court infer tenancy in common
Each owner possesses an undivided right to the whole property
Each owner has an equal right to possess and use the property
Each owner can transfer all or any part of their rights
Each tenant has a distinct proportionate interest in the property
No survivorship rights
Joint Tenancy
Each owner has an equal percentage of ownership
Each joint tenant has an undivided right to the whole property
Each owner has an equal right to use
No owner can transfer a joint tenancy to another entity
( If A, B, & C, are joint tenants and C sells her interest to D, then A & B are joint tenants
of a 2/3 interest and D is a tenant in common with a 1/3 interest)
Joint tenancies carry full rights of survivorship
If a joint tenant dies, the interest automatically is transferred to the surviving joint tenant
Not all the states allow this form of property ownership
Community Property
Special form of joint tenancy between husband and wife, each owning one-half
Upon death, the decedent's interest passes in a manner similar to tenants in common
Trust
A right in property (real or personal) which is held in a fiduciary relationship by one
party (the trustee) for the benefit of another (the beneficiary)
Many trusts are created as an alternative to or in conjunction with a will and other
elements of estate planning
State law establishes the framework for determining the validity and limits for both
• Inter vivo – established during the lifetime of the individual creating the trust
• Testamentary – established, at the death of the individual creating the trust, under
the terms of a will
Easement
• right to use land held by some other legal entity than the fee owner, allowing the
holder to do something (affirmative easement) or preventing the fee owner from
doing something (negative easement)
• "runs with the land," meaning that it is enforceable against all succeeding owners of
the property
• typically acquired and recorded in a formal document signed by the property owner
and the easement holder - purchase, donation, condemned, dedicated
• can be obtained "by prescription," a form of adverse possession – e.g. when a
neighbor openly and continuously drives his vehicle across your land without
permission and you make no effort to stop the trespass - after a period of time fixed
by state law, the neighbor could claim a legally enforceable right to drive across
your land
Easements
Can be held public or private entities
(a) Private easement is limited to specific individuals or entities such as the owner of
an adjoining land
(b) Public easement is one that grants the right to a large group of individuals or to
the public in general, such as the easement on public streets and highways or of
the right to navigate a river
(c) Hybrid – easement that can be held by specific public agencies or specific nonprofit agencies – conservation easements
Easements
Right to light
Solar
Wind
Avigation easement
Railroad
Utility easements; storm drains, sanitary sewers, electrical power lines, telephone line,
gas pipeline, oil pipelines, drainage, fiber optic cables
Rights-of –way; driveway, side-walk, beach access,
Views
Historic preservation
Conservation easements
Statutory Easements
"Wind easement" means a right, whether or not stated in the form of a restriction,
easement, covenant, or condition, in any deed, will, or other instrument executed by
or on behalf of any owner of land or air space for the purpose of ensuring adequate
exposure of a wind power system to the winds
another lease and wind easement
"Solar easement" means a right, whether or not stated in the form of a restriction,
easement, covenant, or condition, in any deed, will, or other instrument executed by
or on behalf of any owner of land or solar skyspace for the purpose of ensuring
adequate exposure of a solar energy system as defined in section 216C.06,
subdivision 17, to solar energy
Common Interest Communities in Minnesota
Minnesota Statutes, Chapter 515B
Multi-family residences - separate housing units for residential inhabitants are contained
within one building or several buildings within one complex
• Apartment – parcels leased to tenants
Condominium – parcels owned by individuals
• a parcel of real property individually owned
• use of common facilities in the piece such as hallways, heating system, elevators,
exterior areas is executed under legal rights associated with the individual ownership
and controlled by the association of owners that jointly represent ownership of the whole
piece
• Legal descriptions of who owns what complex
• Owners of units do not own land
• Each unit not an independent unit
Minneapolis Lofts and Condos
Common Interest Communities in Minnesota
Minnesota Statutes, Chapter 515B
Townhouse – often refers to a construction style, similar looking houses sharing
common walls
• Owner owns the portion of the structure defined by the walls
• Owns also land
• Units are legally independent of each other except for shared walls (perhaps roofs
and foundations)
• Structure and exteriors maintained by a Home Owners Association
Arbor Lakes
West Bank Townhouses
Common Interest Communities in Minnesota
Minnesota Statutes, Chapter 308A
Housing Cooperative – structures owned by a corporation usually non-profit
• Each shareholder in the corporation possesses the right to occupy a specific
portion of the structure (similar to a lease)
• Owners do not own the real property
• Frequently the cooperatives are aimed at specific population segments, such as
persons age 55 or older, students, or are designed to provide affordable housing
• Formed under Minnesota Statutes, Chapter 308A.
• Such housing cooperatives are also common interest communities under the
Minnesota Common Interest Ownership Act, Minnesota Statutes, Chapter 515B
Records
Records
Public Land in Minnesota
United States – Forest Service
Minnesota - DNR State-owned land
Metropolitan Council - Parks
Dakota County - Leisure & Recreation,
Foreclosure sales, Farmland and
Natural Areas Program
Minneapolis – Park and Recreation Board
White Bear Township
When acquired?
How acquired?
• Who was involved in the acquisition?
• How financed?
Why acquired?
How used?
• Any restrictions on use?
• Any restrictions on sale?
Land Trust
Land Conservancies
A nonprofit organization that, as all or part of its mission, actively works to protect the
ecological characteristics of land by
• acquiring or assisting in acquiring rights to land – fee title, conservation easement
• managing such land or easements
Land Trust Alliance
Trust for Public Land
American Farmland Trust
Minnesota Land Trust
Land Trust
Community Land Trust (CLT)
Residential land trusts emerged in the United States after calls among civil rights
leaders in the 1950s and 1960s in the American South for economic reforms to
reverse rampant poverty
The goal of residential trusts is often to protect housing prices from speculation and
gentrification while allowing residents to accrue equity.
Community Land Trusts: An Introduction
National Community Land Trust Network
City of Lakes Community Land Trust
Rondo Community Land Trust
Northern Communities Land Trust