Taste cannot be controlled by law.
Nature of Real Property (part A)
by
Charles Lamson
Real property consists of land, including the actual soil, and all permanent attachments to the land, such as fences, walls, other additions and improvements, timber, and other growing things. It also includes minerals under the soil and the waters upon it.
Distinguishing Real Property
Through court interpretations we have accumulated a definite set of rules to guide us in identifying real property and distinguishing it from personal property. The most important of these rules pertains to the following specific items of property:
Trees and Perennial Crops
Vegetation may be real or personal property. Trees growing on the land, orchards, vineyards, and perennial crops, such as clovers, grasses, and others not planted annually and cultivated, are classified as real property until severed from the land. Annual crops and severed vegetation are personal property. When a person sells land, questions sometimes arise as to whether or not a particular item belongs to the land or constitutes personal property. The parties should agree before completing the sale just how to classify the item.
Rivers and Streams
If a nonnavigable river flows through property, the person who owns the property owns the river bed but not the water that flows over the bed. The water cannot be impounded or diverted to the property owner's own use in such a way as to deprive any neighbors of its use. If the river or the stream forms the boundary line, then the owner on each side of the river owns the land to the middle of the river bed.
In most states where navigable rivers form the boundary, the owner of the adjoining land owns the land only to the low water mark.
Fixtures
Personal property attached to land or a building that becomes a part of it is known as a fixture. To determine whether or not personal property has become real estate, one or more of the following questions may be asked by a court:
Multiple Ownership
One person can own property, or more than one person can own property. When more than one person owns land, each person has the right to use and possess it. The most common ways real property can be owned by more than one person include:
Tenancy in Common
A tenancy in common occurs when two or more persons own property and when one dies that owner's interest in the property passes to a person named in the deceased's will or, if no will exists, to the deceased's heirs. In this type of ownership, the other owner or owners have no automatic right to the deceased's share of the property. Each owner determines who gets the share of the property at his or her death. A tenant in common has the right not only to determine who becomes the owner of the fractional share upon death but also to convey the property while alive. The property may be given away or sold. The new owner then becomes a tenant in common with the remaining owner or owners.
The owners of property held as a tenancy in common each own an undivided fractional share of the property. For example, if two people equally own a piece of land, each tenant owns an undivided one-half interest in the land. Three people who own land equally each own an undivided one-third interest in the land. This means they do not own a specific portion of the land, but own a one-third interest in the entire piece of land. They thus have an interest in the entire property, but only to the extent of their percentage interest.
The property does not have to be owned equally. Two people could own a piece of property as tenants in common, and one could own a one-third interest and the other could own a two-thirds interest.
When more than one person takes title to property, the law presumes they hold the property as tenants in common. Thus when the type of ownership is not clearly spelled out, it will be held a tenancy in common.
Joint Tenancy
A joint tenancy exists when two or more persons own property and upon the death of one, the remaining owners own the entire property free of any interest of the deceased. This means that a joint owner does not have the power to determine who owns the property at death. The remaining joint owner or owners automatically own the entire property. This automatic ownership of the entire property by the surviving owners is called the right of survivorship.
As in the case of a tenancy in common, each joint owner owns an undivided interest in the property. No joint owner owns a specific portion of the property.
The law does not favor the creation of a joint tenancy so there must be a clear intention to create one. The language normally used conveys the property "to X and Y as joint tenants with right of survivorship."
A joint tenancy can be destroyed by one joint tenant selling or giving that tenant's interest to another person. The new owner becomes a tenant in common of the interest conveyed. If there are three or more joint tenants and one sells his or her interest, the new owner is a tenant in common and the remaining, original joint tenants remain joint tenants as between themselves.
A joint tenancy can also be destroyed by one joint tenant suing for a division of the property, called a suit for partition. Any joint tenant may sue for partition.
Because a joint tenant's interest in the property disappears at the joint tenant's death, a joint tenant cannot dispose of such an interest by will. If a joint tenant purports to dispose of an interest and jointly held property by will, the wheel has no effect with regard to such property.
Tenancy by the Entirety
Similar to a joint tenancy, a tenancy by the entirety can exist only between a husband and wife. At the death of one, the other becomes the sole owner of the property. Almost half the states recognize this form of ownership. This type of tenancy is popular with married couples because most want the survivor to have title to the property and to get it without any court proceedings. Many couples also like this type of ownership because the creditors of just the husband or just the wife cannot claim the property. To you have a claim against the property, a creditor must be a creditor of both spouses.
A joint tenancy differs in other ways from a tenancy by the entirety. In the case of property held as a tenancy by the entirety, neither the husband nor the wife alone may sell or otherwise dispose of it. Both parties must join in any conveyance of the property. A divorce changes the husband and wife from tenants by the entirety to tenants in common with respect to the property. 
Community Property
Nine states, mostly in the west, recognize a form of ownership called community property. Community property is a type of ownership reserved for married couples, such that both spouses own a separate and equal share of the property no matter how titled. In these states, unless the parties agree it shall be separate property, property acquired by a husband and wife during their marriage constitutes community property. This is normally important if a couple divorces. In that case, each owns one half of the property acquired during the marriage. Property owned by one spouse prior to the marriage normally is that spouses separate property and not community property.
*SOURCE: LAW FOR BUSINESS, 15TH ED., 2005, JANET E. ASHCROFT, J.D., PGS.496-501*
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