Real Estate Law

The law recognizes three types of property. Personal property consists of moveable items, such as furniture. Intangible property refers to ownership that does not have a physical existence but that may be represented by a physical item, such as a stock certificate. Real estate refers to land, as well as anything permanently attached to the land, such as buildings and other structures. Some people use the term “real property” to refer to land without structures.

Limits on Ownership

Lawyers often refer to real estate as a “bundle of rights” extending to the center of the earth and up to the heavens. Certain “sticks” may be separated from the bundle by the owner’s intentional actions. For example, an owner might grant an easement or acquire property that is subject to an easement, and thereby give up the right to exclude people from that part of the property. Similarly, an owner might buy property in a subdivision that is subject to covenants that restrict how the owner can use the property. In some states, owners can sell the subsurface rights to their land, so that one owner might own and live on the surface, while another has the right to mine minerals below the surface.

Other rights are limited by law. Much regulation of real estate is statutory, enacted by a legislative body, or regulatory, enacted by a governmental administrative agency. Environmental laws , for example, are primarily statutory and regulatory. Other real estate law is common law, meaning that it evolved from judicial decisions. For example, the U.S. Supreme Court has issued several opinions defining the circumstances under which regulation of the use of real estate goes “too far” and constitutionally requires compensation.

Since real estate necessarily stays in one location, most real estate law is state law. Federal law does have a role. For example, the Federal Aviation Administration establishes the altitudes at which planes may fly over private property, and property owners may not prevent those flights. Similarly, the federal Fair Housing Act, 42 U.S.C. § 3601-3631, protects people involved in real estate transactions from discrimination based on race, color, religion, sex, or national origin. Local zoning laws also restrict how owners can use their land.

Ownership of real estate also can be limited by time, as with a life estate that ends upon the death of a specific person. Ownership can be shared in a variety of ways among individuals or be held by condominium associations, corporations, or other entities, as described in the deed by which the owners acquire the property.

Real estate law is closely tied to other areas of law. For example, contract law governs the sale of real estate and requires that such contracts be in writing. States dictate special inheritance laws for real estate. There are even specific types of crimes and torts that apply to real estate. For example, trespass refers to entering the land of another without authority to do so, and it can be a crime or the subject of a civil lawsuit. Real estate is also subject to special provisions in family law, such as the rights of a spouse in the marital home.

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