Under real estate and property laws, the legal definition of real property is land and anything that is affixed to, growing on, or built upon the land. This can include crops and man-made buildings.
Real property is property that is not movable or that is attached to land—the terms real property and real estate may be used interchangeably.
In addition, real property may include land and anything permanently located underneath the land, such as the following:
- Oil;
- Gasses; and
- Minerals.
Another term that may be used for real property is the term premises.
What Is the Difference between Real and Personal Property?
As noted above, real property includes immovable and tangible objects, including land plots, homes, and buildings. Other examples of real property include:
- Fences;
- Crops; and
- Machinery.
Essentially, real property is an interest in any object permanently affixed to the land, including the land itself. Property may be further divided into residential and commercial real estate categories.
Personal property refers to moveable objects. It includes the majority of belongings an individual can possess, except land and buildings.
In other words, if an object can be moved from one location to another, it will likely be classified as personal property. Another difference between real and personal property is that personal property can include tangible and intangible objects.
Examples of tangible personal property include the following:
- Clothing;
- Money;
- Furniture; and
- Books.
Examples of intangible property include things that cannot be physically handled, such as stocks and bonds.
How Is Real Property Transferred?
Both real property and personal property can be transferred. Most states have a statute of fraud laws that require every sale involving real property to be recorded in writing.
Having the transfer in writing helps to create a record of the transfer. Because the real property cannot be physically moved from one owner to the next, the transfer must be done symbolically for it to be legally recognized.
The exchange of a deed of title to the property typically does this. The transfer of the written deed should be recorded with the county recorder’s office where the property is located so there is a record of the change of ownership.
Real property may be transferred in several different ways, including the following:
- By sale and purchase;
- As a gift from one individual to another; and
- Through a devise or being transferred through a will document.
What Is Private vs. Public Property?
Private property typically refers to real property that an individual or a group owns. Public property, on the other hand, typically refers to real property that is owned by the state.
Different laws govern the rights associated with private property and public property. For example, if the state needed to convert private property into public property, they would have to provide notice to the private property owner and compensation.
What Are Some Legal Issues Associated with Property?
Common real property issues associated with property and real estate include, but are not limited to:
- Establishing title to property: It may not always be clear who holds title to a property. This can occur when an individual:
- does not follow the proper requirements of the recording statute in their state;
- inherits property through an invalid will;
- loses title due to adverse possession;
- owns property through a wild deed; or
- purchases property that has a hidden lien attached;
- Landlord and tenant disputes: Both landlords and tenants have certain rights under the landlord-tenant and property laws;
- For example, tenants have a right to quiet enjoyment of their property and landlords have a right to receive rent payments. Because of these rights, numerous legal issues may arise in a landlord and tenant dispute, such as:
- a breach of the lease agreement;
- eviction;
- withholding of a security deposit;
- hold over tenants;
- failure to pay rent; and
- damage to the property;
- Zoning and land use issues: Zoning and land use regulations provide rules for how certain types of property or land can or cannot be used;
- For example, a local government may designate a specific part of a city as a residential zone;
- This means that there can be no construction of commercial buildings or business operations unless the area is part of a mixed zone or an entity holds a special permit;
- Examples of issues that may arise when dealing with zoning and land use regulations may include:
- set back issues;
- pollution or waste;
- nonconformity with a zoning plan;
- property boundaries; and
- permit violations;
- Foreclosures: Foreclosure usually involve causes of action for wrongful foreclosures, breach of contract, and failure to serve proper notice on the mortgagor;
- Foreclosure actions are heavily dependent on state laws. Because of this, there may be other causes of actions an individual can bring under the laws enacted in their specific jurisdiction; and
- Wills, trusts, and estate matters: There are many different issues that may arise in connection with wills, trusts, and estate matters;
- One of the most common issues is whether a trust or will was formed per the requirements of the jurisdiction;
- Wills or trusts that are formed improperly will be considered invalid, which will cause the beneficiaries to lose the right to inherit or receive the property;
- Other legal disputes that may arise in connection with estate planning include:
- probate matters, such as disputes over estate values, challenges against who is named as executor, newer versions of a will, etc.;
- when the trustee breaches fiduciary duties to the trust, and
- not removing an ex-spouse’s name from a will, joint account, or insurance policy.
The process an individual will follow for filing a lawsuit related to their property dispute will depend on several factors, including the following:
- The issue in the case;
- The category of property law that the dispute involves;
- The circumstances surrounding the dispute; and
- The laws of the jurisdiction where the piece of property is located.
Because of the large amount of information that must be gathered before filing a lawsuit, it may be very helpful for an individual to consult with a local real estate lawyer. This will allow them to discuss their options for legal recourse related to their unique dispute and gather information about the laws and procedures they will have to follow to settle their property dispute.
In addition, an individual can find out information regarding the types of remedies they may recover in the property dispute, as these may vary based on the following:
- Jurisdiction;
- Facts of the case; and
- Claim that is asserted.
Generally, the remedies that an individual who prevails in a property dispute may be able to claim include, but may not be limited to:
- Monetary damages;
- An injunction;
- A license or permit;
- Punitive damages;
- Restitution; and
- Various other forms of relief that relate to the specific case.
Do I Need a Lawyer for Help with Real Property Issues?
If you have any issues, questions, or concerns related to real property issues, it is important to consult with a property lawyer. Your lawyer can provide you with advice regarding the property laws in your state and what issues you may be facing.
If you do have a dispute or issue, your attorney can help you file a claim and represent you during any court appearances. Real property is often a significant investment, so it is important to have an attorney protecting your rights.
