Chapter 26: Land-Use Control and Real Property Introduction

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Chapter 26: Land-Use Control and Real Property


  • Property ownership confers certain rights that give the owner the right to possess, control or transfer the property.

  • Property is divided into real and personal property. Real property includes land and everything permanently attached to it. Personal property is both moveable and tangible or intangible (stocks, copyrights).

§ 1: Nature of Real Property

  • Real property is immovable and includes:

    • Land.
    • Buildings.
    • Trees and vegetation.
    • Airspace.
    • Subsurface (mineral) rights.
    • Fixtures.


  • Land includes:

    • Soil.
    • Natural or man-made products attached to the surface.
    • Water and minerals under the surface.
    • Airspace above the surface.

Air Space and Subsurface Rights

  • Owner of real property has relatively exclusive rights to:

    • Air Space above the land; and
    • Minerals and Soil beneath the land.
  • Ownership of sub-surface rights can be transferred or retained by the owner.

  • Ownership of airspace very limited due to federal preemption.


  • A fixture is personal property that becomes permanently affixed to real property:

    • Owner’s intent to become a fixture is necessary.
    • Intent is determined by:
      • The fact that the property cannot be removed without causing damage to the realty.
      • The fact that the property is so adapted to the realty that it has become part of the realty.
    • Case 26.1: New England Telephone & Telegraph v. City of Franklin (1996).

Fixtures [2]

  • Trade fixtures: installed for commercial purposes by a tenant.

  • They remain the property of the tenant and can be removed when tenant leaves, repairing any damage caused by removal.

§ 2: Ownership Interests in Real Property

  • Property ownership is viewed as a “bundle of rights” that may include the:

    • Right to possess;
    • Right to sell;
    • Right to give;
    • Right to lease; and
    • Right to destroy.

Fee Simple (Absolute)

  • The fee simple (sometimes called fee simple absolute) gives the owner the greatest aggregation of rights, powers and privileges possible under American law and can assigned to the owner’s heirs.

  • A “conveyance” (transfer of real estate) “from A to B” creates a fee simple. A is the Grantor and B is the Grantee.

Fee Simple Defeasible

  • Fee simple defeasible ownership contains a condition. Example: “To A and his heirs so long as the land is used for charitable purposes.” If the condition is violated, the land “reverts” or returns to the Grantor or her heirs.

Life Estates

  • Estate that lasts for the life of some specified individual. “A grants Blackacre to B for B’s life” grants B a life estate in Blackacre.

  • When B dies, Blackacre reverts to A or his heirs in the same condition, normal wear and tear excepted. During B’s life, she can possess, use, and take the fruits of the estate, but not take from the property itself.

  • Case 26.2: Meadows v. Belknap (1997).

Future Interests

  • Reversionary Interest: Grantor retains right to re-possess land when Grantee violates a condition of a fee simple defeasible or the Grantee’s life estate expires.

Future Interests [2]

  • Remainder Interest: Grantor assigns, transfers or sells her future interest to a 3rd Party who now has a remainder. When condition is violated or Grantee dies, interest passes to 3rd Party.

Leasehold Estates

  • A real property owner or lessor agrees to convey the right to possess and use the property to a lessee for a certain period of time:

    • Tenancy for Years.
    • Periodic Tenancy.
    • Tenancy at Will.
    • Tenancy at Sufferance.

Concurrent Ownership

  • Tenancy in common (Fig.1). A and B own an undivided interest in the property. Upon B’s death interest passes to B’s heir, “C”.

Concurrent Ownership [2]

  • Tenancy by the Entirety (not common today is usually between husband and wife.

  • Community Property (limited # of states).

    • Property acquired by couple during their marriage is owned as an undivided ½ interest in property (real and personal).

§3: Private Control of Land Use

  • An easement is a right of a person to make limited use of another person's real property without taking anything from the property.

  • A profit is the right of way to go onto another’s real property and take something away (timber, minerals).

Creation of an Easement or Profit

  • Easements or profits can be created by:

    • Deed or Will.
    • Implication: circumstances imply the creation of an easement.
    • Necessity.
    • Prescription: created when use occurs during a statutory period of time without landowner’s consent.

Termination of an Easement or Profit

  • By deed back to owner of the land burdened by it.

  • Owner of easement or profit becomes owner of the land burdened with it.

  • Abandonment by the owner of the right.

  • Case 26.3: Preseault v. United States (1996).


  • Revocable right of a person to come unto another’s land without removing anything from the land.

  • Personal privilege that arises from the consent of the owner of the land that can be revoked.

Restrictive Covenants

  • Private restriction on the use of land is called a restrictive covenant.

  • If the restriction is binding on future purchasers and their heirs, it is said to “run with the land.”

Covenants Running with The Land

  • A restrictive covenant running with the land (CRWTL) cannot be separated from the land.

  • Four requirements must be met:

    • CRWTL must be written.
    • Parties must intend covenant to run with the land.
    • Covenant must touch and concern the land’s use.
    • Successors must have notice.
  • Restrictive Covenants promoting segregation are illegal.

§ 4: Public Control of Land Use

  • Rights in property are not absolute. They are constrained by federal and state laws, e.g., nuisance, tax and environmental laws.

  • The federal government does not engage in direct control of land, unless it is “federally owned land.

  • States can regulate land use and development using their police and eminent domain powers.

Police Powers

  • A State can regulate the use of land within its borders using its police powers with enabling legislation which authorizes a city or county to regulate the use of land within its geographical borders.

  • Cities and counties regulate land-use in the land-permitting process, but they must have a “general plan” to implement zoning restrictions for the management of private and commercial development.


  • Zoning is the State’s power to control the use of land through legislation without having to compensate the owner, unless the restriction is so severe that it is a “taking” under the 5th amendment.

  • The zoning ordinance must be rational in advancing a state interest and must be non-discriminatory.

Use Restrictions

  • Land with “use restrictions” can be zoned for residential, commercial, industrial or agricultural use.

  • Commercial districts are further zoned for light or heavy use.

Structural Restrictions

  • Land zoned with “structural restrictions” controls details such as minimum floor space, lot-size, building height and parking.

  • In addition, “set back” restrictions dictate the distance between a building and a street or sidewalk.


  • A zoning variance allows property to be used in a way that varies from the zoning restriction. To secure a variance:

    • An owner must not be able to realize a reasonable return on the investment;
    • An owner must have been individually hurt by zoning ordinance;
    • The variance must not substantially alter the surrounding area.
  • Case 26.4: Allegheny West Civil Council v. Zoning Board of Adjustment of Pittsburgh (1997).

Limitations on Police Powers

  • The government’s police powers are limited by the 14th and 5th amendments to the United States Constitution.

  • The 14th amendment requires that any regulation of land must not violate either the due process of equal protection provisions.

    • Due Process requires any regulation to have a rational basis reasonably related to health or general welfare.

Limitations on Police Powers [2]

  • The 14th amendment’s equal protection clause prohibits discriminatory land use regulations.

    • A zoning ordinance cannot treat different land owners differently unless there is a rational basis for a legitimate health, safety or general welfare concerns.
    • Case 26.5: Shemo v. Mayfield Heights (2000).

Limitations on Police Powers [3]

  • Under the 5th amendment, private property may not be “taken” for “public use” without “just compensation.”

  • Government regulations of private property that deny an owner the ability to use or develop the land for any reasonable income-producing venture results in a “taking” of the land that requires payment.

  • Case 26.6: Purdie v. Attorney General (1999).

Eminent Domain

  • Government has an inherent power to take property for public use without the consent of the owner.

  • Every landowner owns her land subject to a superior right of the state to “condemn” the land and pay fair value, which is usually equally to fair market value.

  • Case 26.7: City of Branson v. Estate of LaFavre (2000).

Law on the Web

  • Housing and Urban Development.

  • Information on the Buying and Selling of Homes.

  • Legal Research Exercises on the Web

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