Property Rights in Real Estate
Real Estate Property Rights
When we own real estate or land we like to think we have all property rights to our land. That we can do anything we want. Build what we want, where we want, when we want. Keep everyone off. Unfortunately that is not the case.
Three Types Of Real Estate Ownership
Real Estate in the United States is divided into three separate property rights. Each can be owned together, or separately. Each can be owned by one or more people, companies or other legal entities.
- Air Rights
Air Rights include from the surface of the land into space. It is possible to buy land that has limited air rights. An example would be not owning the rights above 50 feet. This would stop you from building anything higher than 50 feet. A previous owner may have retained the air rights higher than 50 feet to keep the view from being blocked.
- Surface Rights
Surface rights are what we typically think of as land ownership. The surface rights owner has the right to use the surface, build on it, farm it, or use the land for any legal purpose.
- Mineral or Sub-Surface Rights
Mineral rights is the ownership of anything below the surface. Mineral rights includes gravel, oil, gas, gold, etc,. Mineral rights include the right to use the surface as necessary to get access to the minerals.
I have heard many complain about the oil company stealing their property rights to drill an oil well. The oil company is acting for the owner of the mineral rights who has a legal right to access his minerals. To avoid this situation the surface owner must own the mineral rights.
In addition to the three basic ownership rights there are other situations where others can use or control your real estate.
Unfortunately the government has rights to your land which could be considered ownership rights. They have the right to tax, and to seize and sell land for delinquent taxes.
The government also has the right to regulate land use. Regulation comes in many ways from building permits to zoning. Unfortunately government regulation of real estate becomes more intrusive every year.
Lenders and lien holders also have property rights. Lenders have the right to foreclose property if the loan is not paid. Other lien holders may not have that right, but can place a lien on your property.
Rights of Way and Easements
The owner of a Right of Way Easement has the right to cross your property as prescribed in the right of way documents themselves. The purpose of the easement and the width are usually described in the Right of Way document.
The most unpopular right is that of eminent domain. Originally this right was necessary so roads and public utilities could be built. The legal theory was, the needs of the many outweigh the needs of the few.
In recent years cities and counties have abused and expanded the right of eminent domain for questionable purposes.
When you buy land your property rights are limited. They are subject to all the above and to a continuous expansion of government regulation.
Understanding Mineral Rights. Mineral rights are a cause of controversy among property owners. This is especially true in areas with oil and gas exploration. Owners of these rights have certain rights which are difficult for land owner’s to accept. These rights are often called oil rights or sub-surface rights.
Lis Pendens. Lis Pendens is latin for “suit pending”. If a Notice Of Lis Pendens is recorded at the local county recorder on property it means there is a law suit pending on that property.