Do you really own property(land)?

Great Debates
1

It’s a dream of mine to own my own house some time in the next 10 years. While looking at some of the basic things I would have to know when buying property I came across two items that make it seem as if you were merely paying rent for property.

  1. Property Tax-You pay for a piece of land. Then you keep paying for it. Is that pretty much what property tax is? If you stop paying it (as an ex-landlord did) the bank can come take it away. To me it sounds as if the payment you made to buy the land is just a giant non-refundable security deposit.

2.I forget the actual term, what is it called when the city is allowed to come onto your property for a certain amount of feet? A friend of mine is going to be losing about half his backyard this spring because of a new drainage project the city is starting.
I am going to put this under the city thing, If they want to build a new highway through your property how do they go about this? Is whoever(city,state) required to buy your property and if so can you refuse to sell? Or can they just kick you off?

Just from these few things it sounds like even though your name is on the deed, you can have your land taken away almost on a whim.

2

If you don’t pay your taxes, the state, not a bank, can put a lien on your property. It depends on the state and it’s homestead rules whether they can evict you. At the least, the lien has to be paid before you can sell the property.

The rule of eminent domain, recognized in both federal and state constitutions, gives the government power of government to condemn private property and take title for public use, provided owners receive just compensation. It’s a power that in many people’s opinion is abused far too often.

3

Land title is a remnant of feudalism. Subject to mortgages, easements, and other paraphenalia (which can be discussed separately if desired), you hold the land you “own” in what is called “fee simple.”

That term is freighted with a lot of historical baggage. In England, everyone held their land “of” someone else, ultimately holding land “of” the king, who had the final and ultimate say over all land in the kingdom. He was the suzerain of whom the major nobles were vassals, and so on – and in exchange for certain services, he granted them perpetual rights to land, which they then held as fiefs from him.

As time evolved, ordinary people ended up owning land in that way, owing taxes to the Crown and otherwise having complete rights to their land. But the term “fee simple” – a fief held on the simplest of terms: pay taxes and be a law-abiding citizen – remained.

American land title preserves this concept: ultimately all land derives from some sort of royal grant, from which title can be traced down through land grants and sales to the present.

And what you have is the right to hold and use your land:
[ul][li]on condition that you pay real property taxes on it, as assessed by the local governments having the right to do so;[/li][li]to be used in conformity with any local zoning, where the community determines what uses can best be made of your land that will not harm your neighbors;[/li][li]subject to eminent domain, where the government determines that your land or part of it is needed for a public purpose, such as road widening, or creating or expanding a public service.[/ul][/li]
So practically you do not own your land in an absolute sense – you as an individual are part of a sovereign community which together holds absolute title to all land, and which permits individuals to hold land “of” it under fee simple terms.

For all practical purposes, you have control of your land – subject to the laws. But the government does have certain rights that supersede yours, by virtue of being the government, which are exercised sparingly and in conformance with established law, but which are there nonetheless. So your title is not absolute.

4

You’re barking up the wrong tree in terms of not feeling like you own the land, apart form Polycarp’s informed response.

Most land (especially “improved” land, i.e., land with buildings on it) is quite expensive. You must usually obtain help from a financial institution. Then, in terms of sheer market value, you own (out of the price the land could sell at today) only what remains (the equity) after you subtract what you still owe the bank.

For instance, my wife and I “bought” our house three and a half years ago (for what we thought of at the time as a rather princely sum for a rather modest property), using money she had saved and a bank loan. At the time of purchase, we only had actually purchased about 5% of the value of the property. the bank really bought the rest, with the understanding that we would pay them back with interest over 30 years, owning more and more of the value of the property as we did so. Because we had bought such a small portion of the property ourselves, the bank even made us take out and pay extra for “private mortgage insurance”, the theory being that since they had such a large stake in the property, and we such a small one, they had more to lose if we defaulted on the loan.

The housing market being what it has been in the last few years, we have been able to refinance the mortgage (pay the old one off with a new one, at a lower rate even!) without the extra insurance, because, even though we’ve barely paid off any of the principal amount of the loan we took out, the house is now worth so much on the open market (according to us AND the bank’s appraiser) that we now own over 50% of it. That is, if the land were to sell for what it currently seems to be worth, we would have to use slightly less than half of the money to buy out the bank’s remaining share completely, and pocket the rest. Heh heh.

5

My easement is an astounding 25 feet from the road! I decided NOT to put a fence up because I would “lose” so much land.

6

Technically the town comes to take it away. The bank only takes it away if you don’t pay the mortgage.

Technically you own the property. Since most people don’t have the cash to buy it outright, they obtain a mortgage from the bank (same thing as a loan). Generally the property is used as collateral for the loan since it is the only thing you have that is as valuable as the loan.
The difference bwtween renting and buying is that the property is yours. You are building equity (basically money you will receive after you sell it). Rent is basically money you are shitting away.

7

I never looked at property taxes as paying for my property. I more saw them as a yearly “payment for services” fee.
Services like police, firemen, road maintenance, schools, parks.
If they did away with my property taxes and took away all of those services my neighborhood would go to crap pretty quickly.

8

Polycarp conveyed in a few words what my octagenarian Property professor beat around for fourteen weeks.

There are some important variables here of which you must be aware. The first and most important is that your owenrship rights will almost entirely be determined by the law of your local juridiction (state, county and municipal). You do have some federal consitutional rights with respect to your ownership of property (e.g. “due process,” which gives rise to the aforementioned requirement of just compensation in the instance of a government taking by eminent domain).

As for who owns the property though, make no mistake, you do (or will) in most states (maybe all, but I’m not certain enough to be absolute, I think there was some sort of distinction as to who actually held title in mortgaged property some time ago but I think it has been abdandoned almost everywhere); however, you might, and most likely will, own it subject to some encumberances (like a mortgage).

An easement, which is much different that eminent domain, is a contractual provision, or a covenant, that may run with the land (i.e. you take the property subject to the easement, since you can’t acquire greater rights in the proprety than the grantor had). Sometimes easements expire. Sometimes they can be bought back. Sometimes they continue in perpetuity. Easements allow the contracting party access to your land for any number of reasons (like running powerlines, accessing other property, or maintaining and servicing a water meter).

The benefits of property ownership cannot be overstated: tax deductions on interest payments on mortgages, accumulating equity, not wiping your ass with $x00 a month.

And if you live in Florida or Texas, even if you don’t pay your taxes, you keep your house (you’ll probably never be able to sell it if you don’t, but that’s for someone else to worry about).

9

More about easements.

Take my property, for instance. If you look on the actual property map, I have a 110’ x 55’ lot. I also notice that the street I live on is marked as 50’ wide, and my paperwork tells me there is a 10’ easement by the city.

Well, if you actually measure the width of my street, the pavement is only 30’ wide. The other 20’ is on the front lawns of the houses on either side. There’s nothing separating what is technically the city’s property and what is technically mine. The same lawn runs right from my house to the curb. But my 110’ front to back doesn’t actually start until 10’ away from the curb. So while I might perceive the extra 10’ as part of my yard, technically it is not, just in case the city decides to put in a more or less useless sidewalk on my cul-de-sac. Right now they just have a jacaranda tree there. Technically, the city has granted me the right to have my driveway extend through their property to make it connect to the street, greatly increasing its usefulness. Thanks, guys!

There are other easements, such as the fact that I have a utility pole in the corner of my backyard, which means the power company has an easement to waltz in whenever they please to do maintenance on it (they’ve only shown up once in three years to check for termites). Other easements similarly cover phone and sewer service.

I have paperwork that just barely mentions the nature of all the easements on my property. Most of them make reference to various documents stored at the LA County Registrar’s Office for the details, so one day during a rather long vacation from work a couple of years ago I went down there to get copies for my own records.

While the building looks to be about 60’s or 70’s vintage, from the look of the records department in the basement, I’d say that level had been there since about 1880 or so. The people working there were straight out of Central Casting, and their demeanor suggested that after work they were going to go knock back a few with the Albino from “The Princess Bride”. There were only a couple there when I arrived, but as I got to work, they multiplied, until six or seven people were standing around gawking at the sheer novelty of a property owner who wanted to know who had a right to do what to his property.

Getting the detailed neighborhood map, the one that specifies, my property boundaries in terms of specific distances and angles relative to established surveyors’ monuments, was relatively simple. As for the easements, however, the references to specific document numbers in specific volume numbers was useless (even thought the realtors had taken pains to write it that way, hmmm…), because the information apparently was no longer stored that way. I had to go to a microfiche that had the easements referenced in alphabetical order according to the entity that currently held the easement. So, given that I had a declaration of the original founding of the neighborhood listing the easement holders as of 1953, I had to do the detective work of figuring out who had sold and resold what assets over a half century to find out just who was now allowed to barge in through my gate.

I gave up after about two hours before I was half way through. No wonder lawyers charge so much to research this crap.

10

An easement is not, strictly speaking, title to anything, but rather the right to maintain something on the property of someone else. It usually takes the form of a written document attached to the property description and deed, giving X the use of a strip of land on Y’s property for use Z. I.e., the Avaricious Edison Power Co. holds a ten-foot-wide strip of land running across Smith’s five-acre lot, along which they may string (and have strung) power lines. Smith agrees that they may come onto his property to work on their lines, replace poles, etc., since (1) they paid him for it, and (2) it’s how he gets his electricity. He agrees not to construct things that will interfere with the power lines. But he is entitled to plant a garden, landscape, and otherwise make use of the easement for his own purposes, so long as they don’t interfere with the right of access guaranteed in Avaricious Edison’s easement. The local D.P.W. has a ten-foot-wide strip running along the property line down which they have run water lines to service the properties in back of his, this being a more direct route than following the streets, which don’t link directly. Again he may do what he lists with his property, so long as he doesn’t build a permanent structure where they may need to dig up the water line, and so long as he agrees that they have access whenever they find it necessary to enter in there.

Private individuals may be the holders of easements, too. If Brown has a “landlocked” parcel of land, he may have an easement for a driveway running across Green’s property to access his land, by agreement with Green. (Visualize this by imagining a perfectly square city block divided tic-tac-toe style into nine lots – and a driveway running in to the center lot along the edge of one of the four non-corner lots with street frontage.

When my ex-boss was selling off a house he had bought and remodeled, he found that what he owned was two parcels of land which together were twice the minimum lot size, but only had the minimum 100’ of street frontage, the combined lot being quite deep. So he had a surveyor rewrite the deed descriptions, transferred part of the front lot to the back lot to make it the full legal minimum for a buildable lot, and sold off the front lot. We toyed with the idea of selling it subject to an easement for a driveway to provide access to the back lot, but found that the ZBA was amenable to granting a variance to allow a 12’ strip along the front lot to remain with the back lot, reducing the front lot to about 97% of legal minimum and only an 88’ street frontage, in order that the back lot would not be landlocked, so we went that way instead. While this produced a “flag lot” which is usually frowned on by zoning officials, it was the only reasonable way to provide access to the back lot, which was nearly a half mile from the nearest road other than the one which the front lot separated it from, so it fit the legal requirements for warranting a variance.

11

The problem with eminent domain is that it’s being abused. A case was decided several years ago where it was decided “public use” could mean “increase in revenue” to the city/county/state, etc. Aha! The greedy politicians said, rubbing their hands in glee. This means if Old Mrs. Jones down the street won’t sell her house to Wal-Mart so they can put in a parking lot (as is happening in Alabaster, Alabama) we can take her property using eminent domain and turn it over to Wal-Mart!

Fortunately, there is a CT case being heard before SCOTUS, where hopefully this whole business of eminent domain being used not for public use, such as a school or a road, but to get in a bigger business, will be stopped.

Once a society loses its right to own private property, it is doomed.

12

Welcome, wiggumpuppy, to the boards. I see on your brief tour so far you have discovered our amazing Polycarp. Let me fill you in on the details:

You think the above is amazing, he can describe the entire history of the world in 10 paragraphs or less (although he has been known to leave out the Magna Carta and the self-rotating spaghetti fork on occasion.) He defends Christianity with a passion that I can only relate to by conveying my love for becoming intoxicated in public, and he does so with a knowledge that his God should have bestowed upon all Christians. He makes toast in the shape of the Virgin Mary. Although I have little faith, I have some in the fact that he could probably start a faith faithfulizing the faithfulness of this paragraph, and have followers believing that I wasn’t pulling this entire post from my derriere. He can have a name which translates in Englsih to “multiple muck-munching osteichthyes” and still have the respect of an entire board of intellectuals.

Did I mention that he can’t be burnt at the stake, and has a mighty fine teak dining room reporoir?

He can be rented to all, but never owned.

-Resident MeatBeast

13

Look further into this.

25’ from the road?

Sounds more like a building set-back. Fences may not be effected by this.

Or if it’s an easement, depending on the easement type, non permanent structures (fences, storage sheds) can be built on/in them. No problem, it’s done all the time.

Some subdivisions have covenants that prevent certain activities, fences being one of them. For instance in my ‘Subdivision’ I’m only allowed to keep one cow on my property.

14

And to address the OP (should have done that in my last post), I do feel that I own my land. My taxes are to keep kids educated (other peoples kids in this case) and my road maintained.

I could bitch about paying for other kids education, but I understand that it is for the greater good.

I can tell anyone to leave my property, I can invite anyone in. If something goes wrong, I fix it. If something goes right, It was because of me. Sure there may be zoning or covenents, but it is YOURS. I very much feel that I own my land. So much so that I own a 40ac parcel 40 minutes south of us and the 1 acre parcel adjacent to us. We bought it to PREVENT someone from building there. It’s useless land, does not mean a thing to me, but, the only place to put a building on it would have been only 100 feet from our deck, our bedroom and our new addition.

So yes, you do own land. If you can do what you wish with a piece of property, you own it. For some of us, it feels real good.

My Wife, our dog and a friend is going out to our 40 acres today to go for a walk. Yep, it’s ours. It’s beautiful.

15

Enipla has this right. There’s a distinction between easements, covenants, and zoning that is not always easy to make out.

For example, the public right-of-way may extend several feet past the edge of the pavement, allowing room for widening the road. That’s an easement. (Most highways are built on easements rather than property held in fee simple by the state or municipality.) You cannot build on the public easement, but you do own the land – put in a border of marigolds along the roadside, and nobody will complain; it’s your property. But you cannot build a garage within that easement – it’s a permanent improvement that blocks the public right to widen the road.

Or it may be that the municipal water and sewage authority or the utilities company holds an easement, because their water/sewer/gas line or power lines run down the side of the road and they may need to excavate or bring in bucket trucks to access their lines. In any case, while you own the land, including the easement area, you can’t build on the easement.

On the other hand, the municipality may have nothing to do with it; you bought your land subject to restrictive covenants put in place by the original developer of the subdivision that nobody will be allowed to build permanent structures within 25 feet of the road. That’s a private contract, not a public law, that runs with the land. You agreed to it when you bought your house, as part of the terms under which you agreed to buy the property. And covenants “run with the land” – if you sell the house, you are obliged to require of the buyer that he abide by the covenants.

Third possibility – the local zoning requires that “principal uses” – residences, stores, etc., be set back 25 feet from the roadway, leaving a 25-foot-wide front yard setback. This is a municipal requirement, set in local law (usually but not always an ordinance). It’s changeable in a number of ways – your local Town Council or whatever it’s called can amend the zoning if petitioned by the public to do so. If you own land with swamp, rock outcrop, steep slope, or something else particular to your property that doesn’t affect all the other parcels of land in the area, you can request a variance from your local Zoning Appeals Board, on the basis that you have practical difficulty in complying with the law. Say there’s a 30 foot front setback, and that means you need to excavate into bedrock for the back third of your house. But if you could move the footprint of your proposed house ten feet forward, you wouldn’t need to. The ZBA reviews your problem, whether it affects other properties in the same way, the purposes of the setback, what your neighbors have done and how they feel, and grants you a ten-foot variance, requiring you to set your house back 20 feet, rather than 30, from the road, so that you don’t have to blast bedrock to build it.

16

And Polycarp nailed it. If you can make a case that regulations create unusual hardship, you may get a variance.

I work for a small county GIS department. Geographic Information Systems.

Among our many duties, we approve or deny new subdivision/building/project names. We have strict guidelines. We CAN NOT allow duplicate road or subdivision names. Emergency services needs unique information so that they know where to go. We are a resort community, our visitors don’t know how to give directions to where they need help.

Examples -

Barking Dog Rd. - Approved.
LakeView (anything) No way no how. We already have 3 of them.
God Damn Rd. - Approved.

17

Just to round out the details in this thread, under the common law when land is subdivided, title to the streets remain in the developer and his subsequent grantees, assigns, heirs, etc. The municipality gets merely an easement to use the land for the public purposes of a road. However, most states have enacted Plat Acts, which state that if the land follows the Act, the municipality obtains title to the dedicated roads. Illinois, for example, enacted the Plat Act around 1900 (I don’t remember the exact date). The importance of this is that title to all the streets in the Original Town of Chicago (i.e., the downtown streets) remain in the adjoining lot owners. If you were to go underneath these streets, you will find all sorts of storage stuff that the owners keep there. The adjoining owners can do anything they want to the property so long as it doesn’t interfere with the purposes of the easement.

18

…and the difference between the two situations can cause all kinds of fun on those rare occasions when the government decides it no longer needs the road and surrenders (vacates) its rights in it.

Let’s say Farmer Jones and Farmer Brown decide in 1890 that it’d be a good idea to build a road running betwen their two farms. They sign a document that so states. By chance, 60% comes from JonesAcre and 40% from BrownAcre. They call it Hassel Road. In 1910, Brown sells his farm. The legal descripton in the deed describes the farm border as “Hassell Road” 10 years later, Jones does something similar. The local municipality maintains the road all this time.

75 years pass. Jones, Brown, and there granchildren are all dead. Maybe there are great grandkids scattered in California, Texas, and Perth, Australia. The farms have been subdivided and resubdivided. There are hundreds of lot owners along Hassell Road. Now the state of Illinois decides to build an improved road (“New Highway”) parallel to Hassell, but a few hundred feet east. No need for Hassell any more. The municipality stops maintaining it and puts up barricades preventing its use. Everyone starts using New Highway instead.

Who owns the land that once made up Hassell? The 238 adjoining land owners? The 73 heirs of Brown and Jones? Is it a 50-50 split, or 60-40? The answer is very different depending on whether the original dedication strictly complied with the Plat Act or not.

19

(Yup, I am aware of an an Illinois road vacation statute, a 1920’s era Illinois Supreme Court case, and a very well done Chicago Title and Trust article from about 1980, all of which try to address this issue. None completely resolve it, except perhaps in those situations where the old road dedication strictly complies with the Plat Act and the municipality vacates the road in an ordinace which clearly specifies who gets it.)

20

their grandchildren. WTF did that come from?