Protecting Your Property

Legal Issues

Protecting Your Property

There has been a recent local news story about a developer retaining mineral rights when they sold lots in a new subdivision. The lot purchasers claim they did not realize that the developer had retained these rights. This has become a major issue because of the increase interest in fracking for natural gas North Carolina. The State Attorney General has required the developer to return these rights to the people he sold the lots to. This reminds me that anyone who owns property needs to have some basic knowledge of property law.

More liberal property rights is one of the major reasons that our country was founded. The right to sell and own property with few government restrictions was not a right of citizens in many old world countries.This country has some of the most liberal property ownership laws in the world. Most anyone can own property, enjoy the use of their property in many ways and can sell property to whomever they wish or leave it to their children or other relatives.Yes, there are zoning restrictions on many pieces of land, but these restrictions are minimal compared to many other countries.

In law school I was taught that property ownership is like a bunch of sticks. We can own many, almost all, or just a few of the sticks and still “own” property.The words on deeds mean things to judges and others who interpret them. If the words are not written correctly they may not provide the ownership intended by the giver or assumed by the receiver. This is one area of where a lawyer can ensure that the correct property rights are granted.

There are several ways people can own property. The most complete ownership is usually called “fee simple absolute.”This entitles the owner to use the property until they die, give it away, sell it to someone, use the land as collateral for loans and pass it on to others upon death. People with “fee simple absolute” often have limits on their use, such as zoning or home owner association restrictions.Jurisdictions often hold easements on property that allow utilities to pass wires or other conduits over or under the surface of the land.These deeds usually include ownership of all space above and below the surface.However, ownership does not include control of airspace for planes, and may exclude underground mineral rights or other facets of ownership.

People can have deeds that require the property to pass through probate for their heirs to receive the land or have deeds that automatically pass the property onto their heirs when they die without having the land go through probate. Some deeds pass on the property if some condition is met, e.g., the child goes into the family business. In some states if a married couple buys land the default deed for a married couple has the property passing to one spouse on the passing of the other spouse. These states often limit the ability of one spouse to mortgage the property without the other spouse’s permission.

While most deeds have no defined ending, some deeds are life estates, meaning the person named can live on and control the land until they die. This type of deed does not convey the right to sell the land or give it to anyone else, even after death. Other deeds terminate the ownership if the owner does something, e.g., sells the family business. The enforceability of any particular limit on ownership is highly state dependent.

Finally, a quit claim deed merely gives someone the property rights that another person had when they signed the deed. It does not define what types of ownership rights are being passed. If the person signing the deed had limited property rights then the recipient has the same limited rights.

In summary, the words on a deed are very important. Only someone who has learned property law can tell you what they mean in a legal context. It is very important that people understand what ownership rights they do and do not have.

Note: This is not legal advice. I am not your attorney. Some of this information will vary in your state. This provides general information and a start in deciding what to tell your lawyer.