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Learning Objectives

Upon completion of this section, you should be able to:

• Define and describe land, real estate, real property, personal property, surface rights, subsurface rights, air rights, and water rights.
• List and give examples of the uses of real property.
• Define the concept of real property as a "bundle of rights."
• Define fixtures, including trade fixtures, and apply the legal tests of a fixture.

Real Property

The term real estate evokes different images for different people. Some think of land; others think of homes or even condominiums. These interpretations are correct in the sense that real estate is the land and anything physically attached to it (e.g. buildings, trees, etc.). However, there is a second more inclusive legal term that is actually what you purchase when you buy a home or condo, and that’s known as real property. Real property includes real estate as well as rights to the property (e.g. right to occupy, sell, lease, etc.). Let’s look at some key terms as we dive more deeply into real property.

• Real property includes land, any fixtures or improvements attached to the land, as well as rights and privileges associated with the land. The interests and rights associated with the ownership of land can be defined as a bundle of rights.

• The bundle of rights includes the ability to mortgage, lease, will, subdivide, and sell. The bundle of rights is complex, particularly because rights can be broken up into parts, which means a person may not get all of the rights of ownership during a transfer. An example is a person who bought the real property but does not have subsurface rights (i.e., rights to minerals, oil, and gas below the land’s surface).

• Land is one of the basic components of real property. It is not just the surface of the land and the boundaries within a parcel, but it also encompasses everything below and above the surface of the earth.

• Real estate encompasses the land along with any fixtures. A fixture is anything permanently affixed to the land. Fixtures are man-made, permanent attachments to the land (e.g. buildings) or improvements that usually cannot be removed without an agreement (e.g. plumbing fixtures or fixtures that are permanently built into the property).

When a property is sold, anything affixed to the land (e.g. buildings or fences) or rights to be used with the land are known as appurtenances. Appurtenances include the following rights, each of which we will summarize.

• Air rights
• Water rights
• Mineral, oil, and gas rights
• Surface and support rights

Air Rights

In theory, a landowner owns the airspace above the surface of the land, known as air rights. If that were literally true, air traffic couldn't fly over private property. When Congress gave the federal government complete control over the national airspace, it left landowners with the right to use airspace at lower levels as long as they don't interfere with air traffic.

Water Rights

When a property sits next to or surrounds water, you'll need to consider both who owns the water and who can use it. Start with the ownership types.

Ownership of Water

The two types of ownership are riparian and littoral.

• Riparian ownership covers water rights for properties next to or surrounding a river or stream.

• Littoral ownership covers water rights for properties next to or surrounding non-moving water sources, such as a pond, lake, or ocean.

In both cases, the table below summarizes whether the owner of the surrounding land can also control the water:

If a property is next to or surrounds a river or stream, the owner is a riparian landowner. A riparian owner can own either the land under the stream or river, or the land up to the water's edge. What decides which one applies is the waterway's capacity to be used for transportation. The technical term for water that can carry transport is navigable. If a river is navigable, the owner only owns the land up to the water's edge.

Limiting ownership to the water's edge on navigable rivers lets the state regulate transport and lets other parties use the waterway for commerce and recreation. If owners controlled the riverbed and the water itself, they could charge for use or block the waterway entirely. When the waterway isn't navigable and the owner has property on both sides, ownership can extend under the full stream or river. If another property sits across the river or stream, each owner owns to the midpoint.

The second type is littoral ownership, which applies when property is next to or surrounds a non-moving water source like a pond, lake, or ocean. Littoral owners follow the same pattern as riparian owners. If the property borders a non-navigable pond or lake, ownership may extend into the water. If the water is navigable, ownership stops at the water's edge. The reasoning is the same: keeping navigable water public protects fair use of waterways for everyone.

Water Rights

With an understanding of riparian and littoral ownership, we can turn to water rights. Water rights govern how the use of water is allocated. Each state runs its own system, with little direction from the federal government. Two main approaches dominate, and some states use a hybrid. The two are riparian theory and the doctrine of prior appropriation. Riparian theory is most common in the eastern U.S. because water is abundant there. The more arid western states developed the doctrine of prior appropriation.

Washington follows the doctrine of prior appropriation, but you need to understand the basics of both systems.

• Riparian theory allocates water to properties that lie along the path of a waterway. Every owner along the waterway gets "reasonable use," and no one's use can unreasonably affect another riparian owner's use.

• The doctrine of prior appropriation works the way kids claim things: first to arrive gets first rights. It evolved from situations like the California gold rush, where water use was basically "I called it, so I get it." Those who used the water first can continue using it, and newer claims are junior to existing ones. If water flows drop, junior rights holders are curtailed first.

Washington's Department of Ecology describes the system this way:

"Washington State follows the doctrine of prior appropriation, which means that the first users have rights senior to those issued later. We call this "first in time, first in right." If a water shortage occurs, senior rights are satisfied first, and the junior rights holders can be curtailed. When we issue a water right permit, it is a permit to develop a water right. It is not a water right until the water has been put to full use, and we issue a certificate of water right. A water right will remain in good standing as long as you continue to exercise the right."

In practical terms, if you stop using a water right, you lose your place in line. Washington has ongoing disputes among the courts, the Department of Ecology, and the legislature over water rights, so check with the local jurisdiction to find out whether water is available and how to apply for a water right.

The next section covers scenarios where water moves to land, but there's one more term you should know: correlative rights. Correlative rights apply to groundwater, the underground aquifers beneath a property. Under correlative rights, each landowner is entitled to reasonable use. You can think of correlative rights and riparian theory as parallel concepts for how use is shared among landowners.

When Water Moves Land: Accretion, Erosion, and Property Changes

Water can change the size and shape of land through slow processes like erosion or sudden ones like flooding. The speed of the change determines how ownership shifts and whether property lines get redrawn.

Natural borders often define property lines. The Columbia River, for instance, forms the boundary between Washington and Oregon. If the river shifts inland, ownership disputes can follow. Here are the key legal terms that describe what happens when water reshapes land.

• Accretion. Land added gradually by water, such as a river, sea, or lake. If soil slowly builds up along a riverfront property, that's accretion. The legal rule: the new land belongs to the property where it settles.

• Avulsion. Land rapidly added or removed, typically when a flood carries soil downstream. The legal result is the opposite of accretion. The land still belongs to the original owner who lost it. In practice, recovery costs usually outweigh the value, so the land stays put.

Most legal disputes in this area come down to one question: was the change accretion or avulsion? If the shift was slow and imperceptible, courts call it accretion and ownership transfers. If it happened fast enough to observe, courts call it avulsion and the original owner keeps title.

• Reliction. A gradual increase in dry land as a body of water recedes. The newly exposed land becomes part of the adjacent property.