Basic Property Rights
BASIC PROPERTY RIGHTS
Bundle of rights
Separable rights
Water rights
Bundle of rights
Real property rights consist of the bundle of rights associated with owning a parcel of real estate. Foremost of these rights is the right of possession.
The right to use a property refers to the right to use it in certain ways, such as mining, cultivating, landscaping, razing, and building on the property. The right is subject to the limitations of local zoning and the legality of the use. One’s right to use may not infringe on the rights of others to use and enjoy their property. For example, an owner may be restricted from constructing a large pond on her property if in fact the pond would pose flooding and drainage hazards to the next door neighbor.
The right to transfer interests in the property includes the right to sell, bequeath, lease, donate, or assign ownershiownership interests. An owner may transfer certain individual rights to the property without transferring total ownership. Also, one
may transfer ownership while retaining individual interests. For example, a person may sell mineral rights without selling the right of possession. On the other hand, the owner may convey all rights to the property except the mineral rights.
While all rights are transferrable, the owner can only transfer what the owner in fact possesses. A property seller, for example, cannot sell water rights if there are no water rights attached to the property.
The right to encumber the property essentially means the right to mortgage the property as collateral for debt. There may be restrictions to this right, such as a spouse’s right to limit the degree to which a homestead may be mortgaged.
The right to exclude gives the property owner the legal right to keep others off the property and to prosecute trespassers.
Separable rights The bundle of real property rights also applies separately to the individual components of real estate: the air, the surface, and the subsurface. An owner can, for example, transfer subsurface rights without transferring air rights. Similarly, an owner can rent air space without encumbering surface or subsurface rights. This might occur in a city where adjoining building owners want to construct a walkway over a third owner’s lot. Such owners would have to acquire the air rights for the walkway. If the city wants to construct a subway through the owner’s subsurface, the city has to obtain the subsurface rights to do so.
An ordinary lease is a common example of the transfer of a portion of one’s bundle of rights. The owner relinquishes the right to possess portions of the surface, perhaps a building, in return for rent. The tenant enjoys the rights to possess and use the building over the term of the lease, after which these rights revert to the landlord. During the lease term, the tenant has no rights to the property’s subsurface or airspace other than what the building occupies. Further, the tenant does not enjoy any of the other rights in the bundle of rights: he 158 Principles of Real Estate Practice in Florida
cannot encumber the property or transfer it. To a limited degree, the tenant may exclude persons from the property, but he may not exclude the legal owner.
Surface rights. Surface rights apply to the real estate contained within the surface boundaries of the parcel. This includes the ground, all natural things affixed to the ground, and all improvements. Surface rights also include water rights.
Air rights. Air rights apply to the space above the surface boundaries of the parcel, as delineated by imaginary vertical lines extended to infinity. Since the advent of aviation, air rights have been curtailed to allow aircraft to fly over one’s property, provided the overflights do not interfere with the owner’s use and enjoyment of the property. The issue of violation of air rights for the benefit of air transportation is an ongoing battle between airlines, airports, and nearby property owners.
Subsurface rights. Subsurface rights apply to land beneath the surface of the real estate parcel extending from its surface boundaries downward to the center of the earth. Notable subsurface rights are the rights to extract mineral and gas deposits and subsurface water from the water table.
Water rights Water rights basically concern the rights to own and use water found in lakes, streams, rivers, and the ocean. In addition, they determine where parcel boundaries can be fixed with respect to adjoining bodies of water. What water rights does an owner of a property that contains or adjoins a body of water enjoy? The answer depends on three variables:
whether the state controls the water
whether the water is moving
whether the water is navigable
Doctrine of Prior Appropriation. Since water is a resource necessary for survival, some states — particularly those where water is scarce — have taken the legal position that the state owns and controls all bodies of water. Called the Doctrine of Prior Appropriation, this position requires that property owners obtain permits for use of water. Florida does not operate under this doctrine per se, but under the common law doctrines of littoral rights and riparian rights, as modified by the Prior Appropriation concept of “first in time, first in right” and codified in the Florida Water Resource Act.
Littoral rights. Littoral rights concern properties abutting bodies of water that are not moving, such as lakes and seas. Owners of properties abutting a navigable, non-moving body of water enjoy the littoral right of use, but do not own the water nor the land beneath the water. Ownership extends to the high-water mark of the body of water.
The legal premise underlying the definition of littoral rights is that a lake or sea is a navigable body of water, therefore, public property owned by the state. By contrast, a body of water entirely contained within the boundaries of an owner’s property is not navigable. In such a case, the owner would own the water as well as unrestricted rights of usage.
Littoral rights attach to the property. When the property is sold, the littoral rights transfer with the property to the new owner.
Riparian rights. Riparian rights concern properties abutting moving water such as streams and rivers. If a property abuts a stream or river, the owner’s riparian rights are determined by whether the water is navigable or not navigable. If the property abuts a non-navigable stream, the owner enjoys unrestricted use of the water and owns the land beneath the stream to the stream’s midpoint. If the waterway in question is navigable, the waterway is considered to be a public easement. In such a case, the owner’s property extends to the water’s edge as opposed to the midpoint of the waterway. The state owns the land beneath the water.
One’s riparian rights to use flowing water are subject to the conditions that:
the usage is reasonable and does not infringe on the riparian rights of other owners downstream
the usage does not pollute the water
the usage does not impede or alter the course of the water flow.
Like littoral rights, riparian rights attach to the property.
Processes that affect water rights and ownership. Through natural processes, water moves and land grows and shrinks, possibly changing ownership rights. Noteworthy among these processes are
accretion – the process whereby land increases due to the accumulation of rock, soil, and sand carried by water
alluvion – land that results from accretion, such as at the mouth of a river; the landowner owns the deposited material
erosion – loss of land through the action of wind and water; the landowner may lose land
reliction – the uncovering of underwater land by the receding of water; new land usually belongs to the owner of the previously covered area
Section 8: Property Rights, Estates & Tenancies 161
