Property Rights and Legal Descriptions
Real Property – Land and things attached to it (buildings, fences)
Personal Property – everything else
Title (ownership) to real property is transferred through a deed
Fixtures – personal property that has become a part of real property (air conditioning,
Aunt Matilda’s chandelier unless you specifically exclude it)
Tests for Fixture Status (think Fixtures and Leasehold Improvement):
 Part of value for real estate tax purposes
 Whether real estate sale includes the item
 Whether item is part of mortgage collateral
 Whether item can be removed by tenant when lease expires
Intent of Parties – written agreement is best, but personal property of lessee (even
attached) that can be removed (such as counters, shelves)
Test of Attachment – Whether or not damage (significant) is incurred in the removal.
Window air conditioner versus in wall air conditioner (as opposed to small holes in wall
from shelves).
Test of Adaptability – If specifically adapted to the real estate, it is a fixture (built-in
cabinets/shelves vs. free-standing)
Air Rights – Own space over property (within reason – low-flying vs. high-flying
aircraft)
Mineral Rights – Rights to minerals (oil, gas, coal, etc). The ownership of the rights can
be transferred to others (think West Texas oil and specialized career as a land man)
Water Rights – Vary from state to state and refers to water that flows across, touches,
under or within a parcel of land
 Navigable bodies of water – own water up to the high mark (controversy
over this at Medina Lake). Referred to as littoral proprietors. Major
issue has generally been pollution related (and flooding with development
in Texas due to run-off)
 Non-navigable bodies of water
 Riparian rights (Texas) – All owners have equal rights to water as
long as it does not deprive other landowners entitled to some of the
water (Right of capture in Texas historically was overriding – why
catfish farm had to be closed using “pollution” argument)
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Prior appropriation doctrine – “First-come first-served” Based on
idea that water is insufficient to serve everyone’s needs. First to
use it for a worthwhile purposes gets rights to it. Water is
apportioned via permits which are transferred with ownership (but
can be sold)
Underground water
 Underground or subterranean stream – flows through a defined
channel. Same principles as above-ground streams apply
 Percolating water – Reasonable use test. If beneficial to the
land owner it is okay to the extent that it does not deplete the
supply of adjoining landowners
Estates in Land – Bundles of ownership interests
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Freehold Estates – separated into present interests and future interests
o Fee simple estate – most complete ownership with unlimited rights
to use (limited by liens, restrictions) and transfer of property
similar to residential properties
 Alienable – can transfer at anytime while living
 Devisable – interests can be transferred at death
 Descendible – interests passes to legal heirs if no will
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Qualified (or defeasible) Estates – rights can be lost in the future. Must be
accompanied by a future interest in the property known as a reversion
interest
Qualified Fee Conditional Estate – Ownership is conditional upon some
action or event
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Life Estate – of indeterminable length ending upon the death of a named
person (land at Lockhill-Selma and Wurzbach). Future ownership
interests are called reversion or remainder interests. Remainder interest
often called vested remainder or contingent remainder. Typically used in
estate planning
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Leasehold Estates – possessory interest of landlord-tenant relationship
o Tenancy for a stated period – one-year lease
o Tenancy from period to period – month-to-month lease
o Tenancy at will – same as tenancy from period to period since either
party can terminate at will
o Tenancy at sufferance – renewal of lease at termination is refused but
tenant continues to reside at property (either evict or negotiate a new
lease)
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Concurrent Estates (more than one interest) vs. Estates in Severalty (only
one owner)
o Tenancy in common – each owner holds an undivided proportional
interest in the property (Mexican food restaurant which was to be
divided down the middle)
o Joint tenancy – same as tenancy in common but with right of
survivorship upon death. Ends with sale of property to a third party.
Must be established at the same time (unity of time) and with same
estate interest (unity of title).
o Tenancy by the entirety – usually related to spousal ownership where
ownership transfers at death and cannot be sold without other spouse’s
consent (only in certain states)
o Community property – Nine state (including Texas). If acquired
during marriage with joint funds, it is owned equally by both husband
and wife.
Condominiums – All owners have fee simple titles to their personal units, while common
areas are owned jointly by a tenancy in common. Condo association maintains common
areas with individual owners paying mandatory association fees. Condominiums require
that there be
o Condominium declaration – describes individual units and all common
areas, creates an association and sets forth restrictions. May include right
of first refusal (declaration is similar to the Charter of a corporation)
o Bylaws – provide for operation of the condominium, selection of
association members, powers and duties, meetings, etc.
o Deeds conveying individual units
Cooperatives – Land and building are owned by a nonprofit corporation. Individual
residents own stock in the corporation and have a right to live in their particular
unit through a leasehold interest. Assessed a periodic fee in proportion to their
interest in the corporation for mortgage, taxes, maintenance, etc. Mostly in New
York City and Florida. Need approval from board of directors to sell to a new
tenant.
Time-shares (or interval ownership)
Concurrent estate that splits ownership further by time. Usually related to
vacation real estate and split into 52 weekly intervals.
Legal Descriptions – Each property must have a unique legal description
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Metes and Bounds – the original method. Metes are the distances and Bounds
are the directions of the boundaries that enclose the piece of property. Begins
at a designated point and ends at that same point. Metes are measure in feet
and bounds are measured in degrees, minutes and seconds as well as north,
south, east and west. Curved boundaries are described by the length of the
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curve and its radius (distance from center of a circle). Iron pins are used
today. In the “old days”, natural monuments (rocks, trees) were used.
Rectangular Survey System – used in most states (not Texas). Based upon
principal meridians (north-south lines. Think Greenwich mean time) and base
lines (east-west lines. Think the equator).
Townships – Land on each side of a meridian is divided into six-mile wide
strips of ranges numbered consecutively east or west of the principal
meridian. East-west running lines are called township lines six miles from the
principal parallel. The ranges and township lines thus represent a 36 square
mile area which is divided into one square mile units (one mile on each side)
called sections which equals 640 acres. (An acre is 43,560 square feet. See
page 28 for its history.)
Metes and bounds has generally resulted in random shapes of properties,
whereas the rectangular system has resulted in rectangular shapes.
Plats – A supplement to the legal description. Plats show streets, blocks and
lots as they actually exist. Plats are numbered and also used as identifiers.
For property not actually touching the ground, vertical height must also be
used in the description which is referred to as datum most often using mean
sea level as the bench mark although other official benchmarks exist.