Real property is property which is fixed in nature. This may include buildings or land. Real property also includes anything which is affixed to, built upon, or growing on the land. This can include items such as crops or man-made buildings.
Real property is something that is attached to the land or does not move. This can be distinguished from personal property, which is something that can be transferred or moved physically.
Real property may also be called premises or real estate. In addition, it may include anything which is permanently located under or within the property. This may include things such as:
- Gasses;
- Minerals found beneath the land; and
- Oils.
According to the laws which govern real property, a landowner, or individual who owns the property, possesses what is often called a bundle of rights which are associated with owning that land. This bundle of rights, which is often referred to as incidents of ownership, permits and owner to do any of the following with their land:
- Sell;
- Lease;
- Exclusively possess;
- Encumber, or mortgage; or
- Dispose of the property through a will or another type of legal instrument.
What is the Intentional Interference with Property Rights?
The right to own property has been recognized as a basic human right. When an individual interferes with another individual’s property rights, they may face serious civil or criminal penalties.
According to civil laws, the intentional interference with property rights is covered under tort laws. The most common property torts include:
- Trespass to land;
- Trespass to chattel; and
- Conversion.
A trespass to land occurs when an individual intentionally causes the physical invasion of another individual’s land. The plaintiff, or individual whose land was trespassed upon, may sue for trespass to land even if the trespasser did not cause any harm. In addition, a trespasser has committed a trespass when they thought the land was theirs and that it was lawful to enter upon it.
A trespass to chattel occurs when an international interference with the right of an individual’s possession of their personal property is committed. In order to bring a trespass to chattel claim, the plaintiff must show that there was actual dispossession or damage caused to the property.
Conversion is defined as the serious intentional interference with an individual’s right of possession of personal property. The distinction between trespass to chattels and conversion is the degree of possession that is assumed by the trespasser.
If a trespasser merely challenged the individual’s right of possession, then a trespass to chattel occurred. If, however, a trespasser created a forced sale of the property to themselves, then a conversion occurred.
What are Incidental Property Rights?
There are also certain property rights, referred to as incidental property rights, which are said to be attached to the land. Because of this, those rights will pass to the recipient of the property when the land is conveyed, unless the grantor of the property indicates otherwise.
One common example of an incidental property right is the right to irrigate water from a natural source for use on the piece of property. Incidental property rights are also closely related to appurtenances.
Appurtenances also pass with the land from owner to owner. One example of an appurtenances includes an easement, which is the right of a non-owner to walk or pass through the property.
In some instances, however, an appurtenances may be considered to be burdening the land. This means that the appurtenances creates an additional responsibility or even causes detriment to the owner of the property.
In contrast, incidental property rights typically refer to a benefit that is connected with land ownership.
What Types of Rights are Usually Included in Incidental Property Rights?
In most cases, incidental property rights are guaranteed through local statutes and state statutes. These statutes typically guarantee those rights which are associated with the sanitation conditions and health conditions of a dwelling place.
These incidental property rights may include:
- The right to access light, air, and airspace above the land;
- The rights to free, unobstructed access to doors and windows;
- The right to water, which includes the right to divert water from a natural source for irrigation use;
- Rights to basic utilities such as:
- electricity;
- gas;
- sewage;
- drainage; and
- garbage services; and
- Other rights which are considered to be necessary for the reasonable enjoyment and use of the land.
In addition to those incidental property rights which are secured through state statutes, property rights can become incidental by negotiations between the seller and the owner. These types of contractual rights can be specifically tailored to the piece of property as well as the needs of the parties who are involved.
These rights may become attached to the land by formally referencing those rights in a deed. This is especially common in agreements which involve a homeowner’s association, where the properties are typically more uniform in a specific neighborhood.
There are several examples of incidental property rights which arise from negotiations. These rights may include:
- The right to build additions or extra structures on or attached to the property, such as overhanging eaves;
- Rights to more specific utility services, such as:
- television;
- radio; or
- cable services; and
- Rights to natural resources which are found in the land, which may include minerals or oil.
It is important to note that incidental rights do have certain limitations on them. For example, an incidental right typically does not include the right to collect rent from a tenant on the property.
Rights which are not considered to be incidental do not pass with the property. Those rights must be negotiated during the transfer of the property.
In addition, a property contract between two individual parties is not permitted to violate a local law or a state law.
What if My Rights have been Violated?
In some instances, a new property owner may not even be aware of the incidental property rights to which they are entitled. Therefore, they may also not be aware of occurrences when their rights have been violated.
In order to remedy or to avoid a violation of an individual’s incidental property rights, it may be helpful to review two sources of those types of rights, including:
- State and local laws covering property rights in the area; and
- Any rights that were the results of negotiations between the parties.
If an individual’s incidental property rights have been violated, the injured party will typically be able to recover damages for their losses. In most cases, this can be accomplished by filing a private complaint in civil court.
Violations which result in physical harm to the plaintiff or those which pose a serious health risk are, in most cases, actionable in a court of law.
Do I Need a Lawyer for Issues with Incidental Property Rights?
It is essential to have the assistance of a property lawyer for any issues you may have regarding incidental property rights. Incidental property rights are imperative for the well-being, safety, and health of any land owners.
If you have any issues, questions, or concerns regarding incidental property rights, a lawyer can assist you. Your lawyer will advise you of your rights regarding your property, assist you with filing a lawsuit, if needed, and represent you in court.
