Buying a Home and Rights
Buying a home entails more than just the bricks, foundation and lawn. In most
cases, you are entitled to other rights attached to the property. These can
include the air above your home to the dirt below it. In special cases, it
also involves water rights and easements. It is your job to understand your
rights and to make sure they appear in the sales contract.
Here are some of the rights you should look into when buying your next home:
Typically, the air rights on a home are implied and don't really have an
impact on your home's value. However, if you own a condo or co-op, you need
to know what you will actually own above and below you. In a multifamily
dwelling, air rights have value and should be spelled out clearly in your
If you are buying a home in an area rich with mining or oil, make sure you
own the subsurface rights. In some cases, homeowners may try to retain their
mineral rights to your home's land. This means that if you strike gold or
oil, the previous owners may actually profit while you sit by and stew about
it. Make sure those mineral rights are yours and yours alone.
If you are worrying about riparian rights, it means you are thinking about
buying a home on a river. This is good news. If the river is nonnavigable,
you may actually be buying the land up to midway under the river. If it is
navigable, then you will be buying the land up to the water's edge. Make sure
you are clear on your rights, it may affect whether you can build a dock or
anchor a boat out in the water. These rights are governed at a local level,
so call your local building code office.
These are rights that affect a home bordering a lake or sea. Chances are, in
these cases, that you would own the land up to the high-water mark. The
government will own the rest. This right, as well as riparian rights, are
attached to the land itself and cannot be retained if the land is sold. Watch
out for restrictions on the land called "encumbrances." These can affect your
home's value and may affect a clear transfer of title.
These are rights held by other people to use your land for a particular use.
For example, if you live in a rural area, another family may have an easement
right to use your land for access to their property from a public road. This
right does not inherently transfer with a sale. Your neighbor could sell the
home and still use the access road at will.
These are also called "covenants, conditions and restrictions" in contracts
(or CC&Rs;). Simply explained, they are agreements among people that affect
the land in any way. They are often found in communities that are still being
developed or controlled by a developer. They may control, for example, what
color you can paint your home or whether you can have a fence or not.
An encroachment happens when a structure or entity was mistakenly placed on a
neighbor's property, for example a fence that straddles the property line.
These are not typically found until a survey is conducted. In some cases, the
owner may have the right to have the builder remove the structure. However, a
judge has the right to declare that an encroachment is now an easement by
prescription because of length of time in existence or usefulness. Either
way, an encroachment may cause a problem when you try to sell the property
because it clouds the title.
Note: These rights apply to many single family homes. Other rights may apply
to purchase of a condo, co-op or other family structure.