Ownership Rights in Real Property

When you own real property, you have certain rights that go along with that ownership, including:

• Right to possession
• Right to control
• Right to use and quiet enjoyment
• Right to allow others a right to use (licenses and leases)
• Right to privacy and to exclude others
• Right to disposition or to transfer the property to someone else by selling, gifting or inheritance
• Right to use property as collateral through a mortgage

Your ownership rights to real property include the right to use the surface of the land, called “surface rights.” You also have a right to use what is under the surface, such as oil, gas, and minerals. These are called “subsurface rights.”  Your ownership rights include “water rights” or “riparian rights” which are the rights to any water on your property, and the right to make reasonable use of flowing water that passes through or by your property.

In addition, you have a right to use the space above the land, including the right not to have the air directly over your property blocked by buildings on adjacent properties. When you acquire property, you must be careful to determine if any of these rights, such as air rights, have been sold or pledged.

Your ownership rights to real property also include a right to make improvements to your property, such as erecting buildings. In most jurisdictions the right of a property owner to make improvements is subject to limitations under local restrictions regarding the size, configuration and use of real property (“zoning laws”), and ordinances which control both the way the construction is to performed and the minimum standards the buildings must comply with (“building codes”).

Zoning laws which are enacted in cities frequently create a system of tradeable limits on development known as “development rights.”  These rights permit the owner of a property which is not fully developed under the zoning law to sell the property’s unused development potential to the owners of neighboring properties who want to construct buildings that are larger than the zoning law would otherwise permit.

Legal Editors: William P. Walzer and Terrence M. Dunn, October 2017