Real property in English common law systems refer to land that is owned by a person along with any structures, referred to as fixtures or improvements, are affixed or integrated to the land, such as buildings, crops, dams, wells, machinery, canals mines, ponds, roads, etc. Additionally, real property may be referred by other terms, including immovable property, realty, or real estate.
The term ‘real property’ is historical, driving from form of action now discontinued, distinguishing disputes between personal property and real property. Whereas, personal property was, and remains moveable property which cannot be classified as real property.
Within countries such as the United States where real property can be possessed by personal ownership, the real property status within real estate markets are protected by civil law, where real estate agents work within the markets of purchasing and selling real estate property. Within French law, it’s referred to as immobilier or ‘immovable property’, and in Scottish civil law it’s referred to as ‘heritable property’.
Originating from Latin, ‘real’ (res) translating into ‘thing’ was utilized with Middle English for ‘’relating to things, particularly real property”.
Real property in common law had been possession of property which could be protected by a real action of some type. Unlike with personal property, which plaintiffs would need to seek a different type of action. Therefore, the formalist approach results in certain things deemed to be land by common law, is not classified the same by the modern legal system. For instance, in history the right of nominating a priest (advowson) was considered real property. Whereas, leaseholder rights originated within personal action, thus common law had treated leaseholders as personal property.
Today, the common law system distinguishes personal property and real property with a broad spectrum. Whereas, land and any immovable objects affixed to the land are ‘real property’, and anything else such as money, clothing, or furniture are ‘personal property’. Conceptually, the key difference between moveable property that people would retain titles to, and immovable property which transfers the title with the land.
Furthermore, originating from English common law, the modern legal system classifies property s personal or real depending on the jurisdiction. Some jurisdictions will classify property based on it’s intended purpose to determine the method property will be taxed.
There is a bunch of historical information contained within Bethell (1998), along with information about the historical evolution of property rights and real property.
Real Property Identification
For property to have value, property claims have to be accompanied with a legal and verifiable property description. If the land does not have a legal description, it will need a survey to be conducted to legally record a verifiable property description.
Generally, land descriptions will use natural landmarks when possible to record the property boundaries. These types of landmarks include streams, rivers, seacoasts, and lakeshores. Additionally, if the land does not have any natural landmarks that distinguish the property form a boarding property, man-made landmarks are used as a secondary approach. These man-made landmarks may include railroad tracks, roads, or highways. However, if no natural or man-made landmarks are available, markers will be built or placed for the purpose of marking the land boundaries. Markers may include fences, cairns, official government survey markers, surveyor posts, etc.
It is common for land descriptions to refer to a single or multiple lot on the plat, which is a map for property boundaries held in public records.
Ownership and Estate Interests
There are various ty0pes of interests recognized by law, referred to as estates within real property. The language of the lease, deed. Will, bill of sale or land grant will generally determine the type of estate. A varied range of property rights are used for distinguishing estates, therefore, determining the transferability and duration of different estates. When an estate is enjoyed by a party, the occupant is known as the ‘tenant’.
Below are some significant forms of estates in association with land, including:
These are estates with an indefinite duration which can be transferred freely between owners. Among the different types of estates, this may be the most common and possibly the most absolute form of estate, whereas the tenant is able to enjoy the estate with discretion over disposal of property.
Conditional Fee Simple
This covers estates which last indefinitely long as the stipulated conditions don’t occur, which can include a single or multiple condition by the grantor. In the event any of the conditions are broke, the property will be reverted back to the grantor, otherwise a third party will receive the remainder of interest.
This includes estates that are transferred to the tenant’s heirs upon death.
This form of estate will last the grantee’s entire natural life. This term is also referred to as ‘life tenant’. In the event a life estate is sold, the duration is not changed by the sale, because the duration is limited only to the original grantee’s natural life.
Life estates are held by a single individual for the entire natural life of another individual. This type of estate could occur in the event the original life tenant was to sell their life estate to another person, or in the event the life estate was originally granted.
For example, Hugh Hefner sold his home (Playboy Mansion) in 2016 for $100 million. However, the contract stipulated he was able to live at the property until his death.
This form of estate is a limited term which is determined within the contract, known as a lease.
Ultimately, in nearly all countries the state is the base owner of any land within its jurisdiction due to being the sovereign or supreme law making authority. Because corporate and physical persons cannot have allodial titles, they are unable to own the actual land, only enjoy estates among the land, also referred to as ‘equitable interests’.
- Stoebuck, W. B., and Dale A. Whitman, 2000. The Law of Property, 3rd. ed. St. Paul MN: West Group Publishing.