Rights in Property
August 27, 2020
Rights and property can be classified as either government rights or private rights. Government rights would include, for example, the right of taxation, which is the right of the government to tax you on your real estate to fund the local government.
A second government right is police power. Whenever you see the term police power, think of keeping things in order, such as zoning and flood plains would fall under police power, which is being able to keep things in order in our local communities.
A third government right would be eminent domain. This the right of the government to take property for the public good or public use, such as when a local city wants to take some private property and use that property for a public school. That property would be acquired through eminent domain. When a local government exercises the right of eminent domain, they actually take the property through what is called condemnation. Condemnation is simply the process used with the right of eminent domain.
A fourth government right would be escheat. Escheat is when a person dies with no will and no heirs, and the state government receives a property. Think of it like this. If you die with no will and no heirs, the state government cheats you out of your property - they get it for free. Hence, the word escheat. Let's contrast government rights with private rights. Private rights fall under two classifications. One would be called a freehold estate. The word freehold simply means ownership, which is what many of us have, such as when we own a home. The other would be a leasehold estate, which is leasing, such as when a tenant is leasing a home for their use.
When it comes to water rights, riparian is the key word to remember. Riparian is when you own property next to a flowing waterway like a river or a stream. If you are a riparian owner, you would have reasonable rights to use that waterway. A riparian owner owns the land in which the water sits. Where a watercourse runs along the boundary of the property, you are assumed to own the land up to the center of the watercourse. Riparian rights have its origins in English common law. Riparian water rights exist in many jurisdictions with a common law heritage, such as Canada, Australia, and states in the eastern United States.
The term freehold estate means ownership. There are two classifications of freehold estates on how a person can own real estate. Those two are either through a fee estate or a life estate. In a fee estate, the word fee means inheritable. The most common type of fee estate is a fee simple title estate. When a person buys property in fee simple, the person owns the property. They can pass it onto their heirs because it is inheritable. A life estate is the second type of freehold estate, but a life estate is non- inheritable. Such as we might have something called a life estate in reversion. That's where a person owns a property for his or her lifetime, and when that person dies, the life tenant, the property reverts back to the original owner or grantor, hence the term life estate in reversion. A life estate in remainder is where a person owns a property for his or her lifetime. But when the life tenant dies, rather than the property reverting back to the grantor, the original owner, the grantor appoints a remainderman to receive their property. The remainderman is most likely a family member. So, when the life tenant dies, the property would then go to the remainderman. And finally, many states have what is called a homestead exemption, which means that even if you owe someone money and they have a judgment against you, for example, that person cannot force you out of your home. You're able to keep your home.
If a person leases a property, we refer to this as a leasehold estate. The landlord is called the lessor, whereas the tenant is called the lessee. There are four main ways we have of setting up leasehold estates. One is called an estate for years, which simply means it has a definite beginning and ending date. A second type would be called a periodic tenancy, which is like a period to period or what we commonly call a month to month lease. There is no definite ending date, as we simply go month to month. A third type would be called a tenancy at will. This is a situation where there is nothing in writing as far as the lease is concerned, but the landlord keeps accepting the rent money from the tenant. So, the actions create a leasehold estate. And the fourth one is called a tenancy at sufferance. This is where the tenant stays over without permission and is referred to as a hold-over tenant. Here is where a landlord would have to evict the tenant. Think about it like this. When the landlord has to evict a tenant, the landlord suffers because this takes time, energy, and money. Hence, we have the term tenancy at sufferance.
Principles of Value
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Approaches to Valuation
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