Chapter 3 Extent of Real Estate Interests The extent of the physical space Where do my real property rights begin and end What physical space do I own possess when I own a tangible parcel of real property Within what 3D space do my intangible rights operate Two dimensions is obvious the surface We define limit our horizontal rights using some form of boundary survey legal description see Ch 7 What about the vertical dimension Air rights above the surface Subsurface rights below the surface What defines limits our vertical rights Slide 2 Slide 2 The vertical dimension Slide 3 Slide 3 US v Causby U S Supreme Court Facts Noise vibrations from military flights wreak havoc for chicken farmers claim taking per 5th Amendment of US Constitution Issue Can a taking occur without physical occupation US Without physical occupancy below navigable air space no taking Holding rationale Loss as complete as if gov t took possession Disposition Pay up Rule of law 1 A landowner owns as much of the space above the ground as he can occupy and use in connection with the land but the airspace beyond the immediate reaches above the land is part of the public domain 2 Flights over private land are not a taking unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land Cf Goodman v US Consider 3 1 Slide 4 Slide 4 Air rights Air rights can be conveyed encumbered etc separately from the surface subsurface rights Condominiums are actually air rights Is the text correct saying Ground or surface ownership is not conveyed as part of the title recall appurtenance Urban high rises e g Trump Tower over Tiffany s and the Met Life building over Grand Central Station NY Air rights need the surface for support and access easements Air rights conveyed by deed like any real property rights What about subdivision laws transferable development rights TDRs Overhanging structures or other improvements trespass What about tree trunks branches roots etc Slide 5 Slide 5 Light air Fontainebleau Hotel Corp v Forty five Twenty five Inc Facts Hotel addition blocked sunlight claimed a malicious interference w right to sunlight Issues Was obstruction of light unlawful Holding No Rationale Useful beneficial business purpose not malicious Rule of law Absent a public law private easement or covenant no common law right to light exists unless obstruction done with malice useful beneficial purpose precludes malice Laws developing due to solar wind energy policies First to use given continuing right in some states not CO Voluntary private solar wind easements enforceable CO Local ordinances may establish protect solar access rights Boulder Covenants prohibiting solar panels unenforceable CO cf aesthetics Slide 6 Slide 6 View No common law right to view no different from light Again public laws current issue in Boulder and private easements covenants can protect views Borough of Harvey Cedars v Karan Facts Town condemns easement for dunes obstructs view but protects property fight over fair value of easement Issues Does benefit of dunes offset loss of value due to loss of view Wait I thought there was no right to view Critical difference b t this case and Fontainebleau Holding rule of law Fair value upon taking may include a loss of view across the property taken a general benefit will not offset the compensable loss of value cf special benefit Slide 7 Slide 7 Ethical moral duty Ethical Issue pg 48 Trump blocks view of river Do should neighboring property owners have an ethical moral duty not to impair light air or view Just because I can doesn t mean I should Don t neighboring uses always have some effect Rule Landowners assume the risk of changes to surrounding uses that impact their property i e no cause of action or claim against your neighbors unless a nuisance more later How can the risk of losing light air view be managed mitigated Preemptive private action easements and covenants Public regulation zoning etc Slide 8 Slide 8 Subsurface rights Surface and subsurface rights are often severed into separate estates both possessory Often valuable minerals oil gas coal geothermal Severance allows realizing the value Surface and subsurface have to share surface Common law Right to reasonable use of surface w out compensation type of easement Oil and gas leases and surface use agreements eliminate uncertainty by defining extent and including surface rents Historical bias in favor of mineral estate why but growing protection for surface estate why Slide 9 Slide 9 Movement of oil and gas Liquids and gases migrate underground as pressures change Boundaries of underground reserves do not correspond to surface or subsurface estate boundaries If owner A starts drawing out oil gas it will draw reserves from under owner B theft Slide 10 Slide 10 Rule of capture Whoever captures the oil gas owns it like wild animals Pre capture mineral ownership differ by state Ownership fee simple defeasible Non ownership no ownership until capture Again like wild animals Limitations Stored reserves Directional drilling Enhanced recovery operations sweeping Doctrine of Correlative Rights must be good faith Government regulation spacing rules unitization pooling production limitations Slide 11 Slide 11 Subsurface estate classification type Fee Subsurface un severed from surface estate Mineral estate interest rights Separate subsurface estate w easement for surface Profit a prendre Oil and gas lease Easement coupled with right to remove Right to use surface to access subsurface and remove O G Lessor fee or severed subsurface owner Lessee oil gas production company Goes for as long as O G produced Royalty interest retained by lessor O G lease version of rent Share of gross production e g 1 8 Slide 12 Slide 12 Water rights Use of navigable waters Fed govt retains control use Waters capable of use for commerce transportation Fed gives states control in trust for the public Great confusion debate regarding rights to float fish stand etc Water is real property in its natural state but becomes personal property once reduced to possession Two alternative rules of water law consumption Riparian East adjacency reasonable use natural vs artificial Prior appropriation CO West first in time first in right priority nothing to do with adjacency reasonable use or natural artificial similar to rule of capture divert to beneficial use Water rights at a crossroads The Great Divide Slide 13 Slide 13 Nuisance Unreasonable