Real Property

The term "real property" normally applies to the legal concept of property ownership. In our system of property law, there are different elements to ownership, especially with ownership of real estate.

When using the term real property, you should try to avoid thinking of the tangible, physical elements of real estate. Instead, you should view the term "real property" as a concept or idea. The key issue here is ownership, and the rights involved with ownership.

In this sense, what you own is not as important as how you own it. These elements or facets of property ownership are often grouped into a "bundle of rights" that include the following five:

  • Possession. This facet of ownership pertains to the right to occupy the property. For example, a landlord gives the renter the right to temporarily possess, enjoy and exclude the property, but the landlord keeps the right to control its usage and the right to dispose the property to another person.
  • Enjoyment. This facet pertains to the right to possess the property without interference.
  • Control. This facet pertains to the owner's right to determine how the property may be used.
  • Disposition. This facet pertains to the owner's right to give, sell or transfer the property (either in whole or in separate "rights") to another individual. This right to dispose is one of the cornerstone of the real estate market.
  • Exclusion. This facet pertains to the owner's right to restrict other individuals from accessing or using the owner's property. Trespassing laws arise from this right.

When many people talk about property rights, it takes on an almost majestic set of rights. This goes hand in hand with American principles (or myths) about self-reliance, privacy rights and individualism. We may find an historical basis for this view of property rights in monarchial Europe, where landowners were essentially royalty and had near-absolute power over their dominions, no matter how small.

Even in America's allodial system, however, ownership is never infinite or unlimited. The government reserves the right to "take" any or all of the ownership elements from any private individual. However, the government must justify any such "taking" as being for the public good and the owner must be compensated the fair market value of the property taken. As long as the government meets these two conditions and follows due process, the property owner cannot prevent such a taking.

For example, when the state, county or city must build a new highway or street, they will need to buy the homes and properties in the path of the proposed road through a taking.

Another, more limited example, would be if the local county wanted to build a river-walk and took an easement through the property of the riverfront owners. The property technically still belongs to the property owner, but the easement gives the government full usage and control of the river's shore.

For more information about the government's ability to limit or take real property from their private owners, see the "Eminent Domain" article.

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