Loans-Help | Air Rights, Water Rights, Etc.

When you buy a house you get more than just the bricks and mortar. You are also usually entitled to other things like the air above your home and the dirt below it. Usually, but not always. Make sure you know exactly what rights and restrictions "convey" with ownership. As you look at houses be aware of what exactly you're paying for. Let's take a look at some of the more common rights to look for.

Air rights -- Air rights are important if you own a condominium or co-op. You don't own what's above you or below you. Make sure that the deed is clear about what exactly will be yours.

Subsurface rights -- Subsurface rights are especially important if you live in an area where mining has occurred. Sometimes previous owners will try to hold on to rights to any valuable minerals that might be discovered on your land. Make sure that if you strike gold or oil it's really going to be yours.

Riparian rights -- If you have to worry about riparian rights, you're a lucky dog. It means that you're going to buy a house overlooking a river. If it is a non-navigable river you will probably own the land under the water to the exact middle of the water. If it is a navigable river you will probably own the land to the water's edge. Make sure you know exactly which is the case, because it could affect your use of the water and restrict the building of things like docks or gazebos. Riparian rights are usually determined at the local level.

Littoral rights -- If you're looking at a house that borders a lake or sea, chances are that you will own the land up to the high-water mark. The government will own the rest.

Riparian and littoral rights are attached to the land and cannot be retained if the house is sold. Also, another thing to consider is the effect that the water will have on your land. You might luck out -- if the water recedes or new sediment is deposited at the water's edge, this new land is going to be yours!

There are also things that restrict the use of your home or land, called "encumbrances." Make sure you know exactly what you will and won't be able to do in your new home. An encumbrance can affect the value of your home and your ability to enjoy it, and sometimes may affect the transfer of a clear title.

Deed restrictions -- You might see this listed as "covenants, conditions and restrictions" or "CC&Rs." These are basically agreements between people that affect the use of the land. These are often seen in planned communities where the developer has made it a condition of owning the home that certain specific standards be maintained, like limiting the colors you can paint your house.

Easements -- An easement is the right of another to use your land for a particular use. An example of this would be if your neighbor's lot was locked in and he was unable to reach the public road that ran in front of your house. He might have the right to use a private road that was built for the purpose of allowing him to leave every once in a while. This private road would have to go over your land. If the house is sold, the neighbor still gets to use that road, no matter who owns the land.

Licenses -- A license is a personal privilege of an individual to use the land of another for a specific purpose. An example would be if you owned a house downtown near a commercial district. You might want to rent out your parking space to a commuter. If you sell the house, the new owner has the right to decide that he doesn't want to rent out that parking space anymore. A license differs from an easement in that it can be canceled at anytime by the licensor.

Encroachment -- An encroachment happens when a building or a fence or driveway is accidentally built on the land belonging to a neighbor. Normally (since this is an accident) an encroachment isn't discovered until a survey is done of the land. Usually the owner of the property has the right to tell the builder to take down the structure. But not always. If it's been up a long time or provides a necessary service, a judge can declare that it has become an "easement by prescription." Either way, this could cloud the title and could make buying the home more difficult.