Monday, November 23, 2009

Real Property Law

What is real property? Property is classified into two classifications; real and personal. Real property relates to land and those things attached including homes, office buildings or trees. Personal property (chattels) may include living objects like animals or inanimate objects such as a stereo. Property is either tangible or intangible. Tangible property is property that has a physical substance like a car. Intangible property is property that represents a set of rights or control or ownership of something of value.
Real property is more than just earth and the things that are attached to it. Real property includes everything beneath the surface of the earth and in the air space above. So an owner of real property usually owns all the minerals beneath the surface of the land provided any previous owner has no claim in those rights.
Trees, plants, and other things that grow may be considered real property. Annual crops produced by labor are considered personal property. An owner of real property has certain ownership rights to use water that is located on the surface or beneath the surface of the land. The right to the beneficial use of the water is governed by one of two areas of water law known as riparian rights and appropriation. Riparian rights are rights of the owners of lands adjoining streams, rivers, and lakes relating to the water and its use. An owner of riparian land has the right to use the water equally with other owners of riparian lands. Because of this a riparian owner has no right to interfere with the natural flow of water in the river, stream or lake. Appropriation on the other hand is a doctrine stating that water belongs to the person who first makes beneficial use of it. In this theory of water rights, it is required that a landowner show valid appropriation. The elements of valid appropriation are intent to apply water to a beneficial use, an actual diversion of water from a natural source, and application of the water to a beneficial use within a reasonable time.
What are the methods of acquiring ownership to real property? The main methods of acquiring ownership include inheritance, devise, sale, adverse possession or gift. Inheritance and devise are two ownership transfers that occur when the previous owner dies. Inheritance is the passage of title and ownership of real property from one who dies intestate (without a will) to people whom the law designates. To obtain ownership of real property through devise means that ownership transfers through a last will and testament. A will is a legal document prepared during the property owner’s lifetime that indicates where and how the owner’s property is to be dispersed at the owner’s death. The conveyance of real property in a will is referred to as a devise.
Ownership to real property can also be obtained by gift. A gift upon execution is irrevocable. The promise to make a gift is revocable. Real property can be obtained by buying the property. This is the transaction that involves most real estate paralegals and attorneys. Adverse possession is another method of obtaining ownership to real property. Adverse possession is a method of acquiring ownership to real property by possession for a statutory time period. The possessor must possess the property for a period of time ranging from seven to twenty years. The possession must be adverse, which means without the consent of the true owner. In addition to the possession being adverse, it must be public, continuous, peaceful, exclusive, and uninterrupted.

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