Real Property Types

Real Property – A physical component – real property with ecological and spatial characteristics and a unique location

The characteristics give the “land” its utility and make it important for particular purposes

• Land surface – agriculture, forestry, urban, wetlands, parks, scientific and natural areas, highway rights-of-way

• Subsurface – minerals, iron ore, copper-nickel • Supersurface (air) – building space, airspace, sunshine, wind, scenery, odor • Wildlife – exotic, game, non-game, pests, endangered • Surface water – navigable, non-navigable

Real Property – A behavioral component – legal entity and legal rights

Entity

Legal Rights

• to acquire and convey any or all rights • to use and “quiet enjoyment" • to exclude

Real Property Rights

A legally defined entity possessing rights

Legally defined rights - interests

Legally defined real property

Evidenced by legally defined documents

Tenants in common

Fee simple absolute

Legal description

Warranty deed

Property and Property Rights

Real Property and Real Property Rights

Defined by law, both federal and state, all developed out of necessity

In general states have exclusive jurisdiction over the land within their borders

State law concerning the kind of real interests that can be held and how they are created is not subject to federal law

Local government law is delegated from the state

Federal law concerns legal characteristic of individual citizens and the production of particular goods and services that move from one state to another or that has significant consequences for the nation as a whole

A vast body of law has been developed to resolve and prevent conflicts between landowners exercising their real property rights

Federal and State land use statutes that define, promote, enforce, and protect the production of certain goods and the provision of certain services

• Building codes • Zoning and other regulations on use• Subdivision controls

Common (judicial) law doctrines affecting land use • Easements - including easements by necessity• Servitudes and restrictive covenants • Nuisance

Personal Situation

Federal and State Law regarding finances, corporations and real propertyMinnesota Law – definition of real property, joint tenancy, ownership in water surfaceDakota County Law - zoning ordinancesSunfish Lake Law - ordinances regarding buildings

• What our abstract describes • What our deed describes • What our mortgage describes

Dakota County Real Estate InquiryDakota County Standard Property Map Locator

Real Property Rights

Have a temporal and spatial dimension

Have a multilayered jurisdictional context that describe• What rights in what real property can be possessed • Who can possess them• How they can be possessed • How they may be acquired • How they may be conveyed • How they may be exercised • How they may not be exercised• How they may be taken by the jurisdiction

Basic Structure of Real Property Ownership

Fee Title Owners – legal entity with legal rights to use property Encumbrances – legal entity with legal rights that affect the ownership rights

• Legal rights to the land – mortgage or another type of lien, a lease, an easement, or a restriction created by a covenant, or zoning ordinances

• Legal claims against the owner – mortgages, claims by other parties, court judgments, pending legal action, unpaid property and income taxes

“Rights to" or "Interests in" land held by owner comprises an estate

These rights may be

(a) Possessory

• Present – the holder has immediate possession • Future – the holder may become possessory in the future, typically based upon the

occurrence of a contingency, e.g. a death, rights pass according to a will or trust • holder possess reversionary rights

(b) Non-possessory – easements, liens, restrictive covenants, licenses, profits

Forms of Title – Present Rights

Present rights

(a) Freehold which continue indefinitely or until the occurrence of some event• Fee simple absolute – holder owns possessory rights now and in the future for an

infinite duration – no limitations on its inheritability, does not end if the holder conveys it or part of it during his/her/their lifetime or when the holder dies

• Fee simple determinable, a fee simple estate with a limitation, often on how the land can be used

• Defeasible Fee – estates are lost if a specified condition occurs or fails to occur in the future

(b) Leasehold - Non-freehold which ends on a particular date

Leasehold

A non-freehold estate that exists for a definite period of time – if longer than a year spelled out in a lease and signed by the parties - tenant has a present possessory interest in the property and the landlord has a future possessory interest

• Periodic Tenancy – continues for successive periods from year to year or fractions, no definite termination date continuing until terminated by either the landlord or tenant. by proper notice, which is usually statutorily prescribed, created by express agreement or by operation of law

• Tenancy at Will – landlord and tenant both have the right to terminate the lease, parties must have an agreement or understanding that either party can terminate at any time, tenancy has no stated duration and lasts as long as the landlord and tenant desire, in most states, the acceptance by the landlord of regular rent will cause the courts to consider the tenancy to be a periodic tenancy, commonly, no notice was required to terminate a tenancy at will but most states have enacted legislation requiring notice of termination to be given at least one month in advance

• Tenancy for Years – continues for a fixed period of time with certain beginning and termination dates, the term expires at the end of the period without notice required by either party

• Tenancy at Sufferance – a tenant who was rightfully in possession and remains at the end of the tenancy, lasts until the tenant is evicted by the landlord or until the landlord elects to hold the tenant to an additional term

Forms of Title – Future Rights

Life Estate

• rights whose duration is measured by the life or lives of someone else, ending at the death of that person;

Fee Tail, rights that can endure forever but can only be passed to lineal descendants - ends if and when the first fee tail tenant has no lineal descendants to succeed him or her in possession

Primogeniture, rights that pass to the oldest son

Acquiring Rights (Title)

Voluntary conveyance by a method – purchase, exchange, donation

• through a written instrument – deed, will, easement

Involuntary conveyance by a method – divorce, escheat, adverse possession, condemnation, dedication, forfeiture

• through judgment of a court or the operation of a statute

Holding Title

By one legal entity – called "severalty"

By several entities

Tenancy in Common

There is a presumption that a conveyance to two or more persons is a tenancy in common – where doubt court infer tenancy in common

Each owner possesses an undivided right to the whole propertyEach owner has an equal right to possess and use the propertyEach owner can transfer all or any part of their rightsEach tenant has a distinct proportionate interest in the propertyNo survivorship rights

Joint Tenancy

Each owner has an equal percentage of ownership Each joint tenant has an undivided right to the whole propertyEach owner has an equal right to use No owner can transfer a joint tenancy to another entity ( If A, B, & C, are joint tenants and C sells her interest to D, then A & B are joint tenants

of a 2/3 interest and D is a tenant in common with a 1/3 interest) Joint tenancies carry full rights of survivorship If a joint tenant dies, the interest automatically is transferred to the surviving joint tenant

Not all the states allow this form of property ownership

Community Property

Special form of joint tenancy between husband and wife, each owning one-halfUpon death, the decedent's interest passes in a manner similar to tenants in common

Trust

A right in property (real or personal) which is held in a fiduciary relationship by one party (the trustee) for the benefit of another (the beneficiary)

Many trusts are created as an alternative to or in conjunction with a will and other elements of estate planning

State law establishes the framework for determining the validity and limits for both

• Inter vivo – established during the lifetime of the individual creating the trust• Testamentary – established, at the death of the individual creating the trust, under

the terms of a will

Easement

• right to use land held by some other legal entity than the fee owner, allowing the holder to do something (affirmative easement) or preventing the fee owner from doing something (negative easement)

• "runs with the land," meaning that it is enforceable against all succeeding owners of the property

• typically acquired and recorded in a formal document signed by the property owner and the easement holder - purchase, donation, condemned, dedicated

• can be obtained "by prescription," a form of adverse possession – e.g. when a neighbor openly and continuously drives his vehicle across your land without permission and you make no effort to stop the trespass - after a period of time fixed by state law, the neighbor could claim a legally enforceable right to drive across your land

Easements

Can be held public or private entities

(a) Private easement is limited to specific individuals or entities such as the owner of an adjoining land

(b) Public easement is one that grants the right to a large group of individuals or to the public in general, such as the easement on public streets and highways or of the right to navigate a river

(c) Hybrid – easement that can be held by specific public agencies or specific non-profit agencies – conservation easements

Easements

Right to lightSolarWindAvigation easementRailroadUtility easements; storm drains, sanitary sewers, electrical power lines, telephone line,

gas pipeline, oil pipelines, drainage, fiber optic cablesRights-of –way; driveway, side-walk, beach access, Views Historic preservationConservation easements

Statutory Easements

"Wind easement" means a right, whether or not stated in the form of a restriction, easement, covenant, or condition, in any deed, will, or other instrument executed by or on behalf of any owner of land or air space for the purpose of ensuring adequate exposure of a wind power system to the windsanother lease and wind easement

"Solar easement" means a right, whether or not stated in the form of a restriction, easement, covenant, or condition, in any deed, will, or other instrument executed by or on behalf of any owner of land or solar skyspace for the purpose of ensuring adequate exposure of a solar energy system as defined in section 216C.06, subdivision 17, to solar energy

Common Interest Communities in MinnesotaMinnesota Statutes, Chapter 515B

Multi-family residences - separate housing units for residential inhabitants are contained within one building or several buildings within one complex

• Apartment – parcels leased to tenants

Condominium – parcels owned by individuals• a parcel of real property individually owned• use of common facilities in the piece such as hallways, heating system, elevators,

exterior areas is executed under legal rights associated with the individual ownership and controlled by the association of owners that jointly represent ownership of the whole piece

• Legal descriptions of who owns what complex• Owners of units do not own land• Each unit not an independent unit

Minneapolis Lofts and Condos

Common Interest Communities in MinnesotaMinnesota Statutes, Chapter 515B

Townhouse – often refers to a construction style, similar looking houses sharing common walls

• Owner owns the portion of the structure defined by the walls• Owns also land • Units are legally independent of each other except for shared walls (perhaps roofs

and foundations)• Structure and exteriors maintained by a Home Owners Association

Arbor LakesWest Bank Townhouses

Common Interest Communities in Minnesota Minnesota Statutes, Chapter 308A

Housing Cooperative – structures owned by a corporation usually non-profit• Each shareholder in the corporation possesses the right to occupy a specific

portion of the structure (similar to a lease)• Owners do not own the real property• Frequently the cooperatives are aimed at specific population segments, such as

persons age 55 or older, students, or are designed to provide affordable housing

• Formed under Minnesota Statutes, Chapter 308A. • Such housing cooperatives are also common interest communities under the

Minnesota Common Interest Ownership Act, Minnesota Statutes, Chapter 515B

Records

Records

Public Land in Minnesota

United States – Forest Service

Minnesota - DNR State-owned land

Metropolitan Council - Parks

Dakota County - Leisure & Recreation, Foreclosure sales, Farmland and Natural Areas Program

Minneapolis – Park and Recreation Board

White Bear Township

When acquired?How acquired?• Who was involved in the acquisition?• How financed?Why acquired?How used?• Any restrictions on use?• Any restrictions on sale?

Land Trust

Land Conservancies

A nonprofit organization that, as all or part of its mission, actively works to protect the ecological characteristics of land by

• acquiring or assisting in acquiring rights to land – fee title, conservation easement • managing such land or easements

Land Trust AllianceTrust for Public LandAmerican Farmland Trust Minnesota Land Trust

Land Trust

Community Land Trust (CLT)

Residential land trusts emerged in the United States after calls among civil rights leaders in the 1950s and 1960s in the American South for economic reforms to reverse rampant poverty

The goal of residential trusts is often to protect housing prices from speculation and gentrification while allowing residents to accrue equity.

Community Land Trusts: An IntroductionNational Community Land Trust NetworkCity of Lakes Community Land TrustRondo Community Land TrustNorthern Communities Land Trust