What is “Real Property”? (Civ. Code § 658)

underwood-what-is-real-property-300x300Under California’s Civil Code, real property refers to land, and things affixed to land such as houses. (Civ. Code § 658.) When people think of “property” they may envision a large lake house or a humble home. But this is only one type of property – real property. Personal property, on the other hand, is a broad term that encompasses property rights in basically everything else. A patent is property, and so are the apples that grow on trees in someone’s back yard, and so are the pipes and plumbing that run underneath someone’s house. 

But these property rights do not all fall into the same bucket. And when someone is selling a home, for instance, it’s important to know what property belongs to the seller (what are they allowed to take with them) and what belongs to the buyer (what must the sellers leave behind). 

In these situations, the right attorney can make all the difference. At Underwood Law Firm, our attorneys are well-versed in property law and partition actions, and are here to help you get the answers and assistance you need. 

What is Real Property?

The definition in California’s Civil Code for isn’t a unique creation of this state. Instead, the distinction between real and personal property can be properly traced all the way to Sir William Blackstone, the famous English jurist and legal scholar responsible for many of our present-day conceptions of property law. 

For example, Blackstone essentially derived the differences between joint tenancies and tenancies in common all the way back in 1765! And what makes this even more impressive is that his formulations of law are still the law the land in many states today, including California. 

Regardless, as to real property, Blackstone wrote surmised that it was anything “coextensive with lands, tenements, and hereditaments.” (Callahan v. Martin (1935) 3 Cal.2d 110, 118.) If property or rights associated with property did not fall into those categories, it could not be deemed “real” under the law. 

As to California’s statute, there is a question as to what it means for something to be “affixed” to land. But this, too, is answered by statute. Under Civil Code Section 660, “a thing is deemed to be affixed to land when it is attached to it by its roots, such as in the case of trees… or permanently resting upon it, as in the case of buildings…”

Thus, if someone owns a house, the house and the land on which the house sits are considered to be “real” property. 

What is Personal Property?

Under California’s Civil Code, personal property is “every kind of property that is not real property.” (Civ. Code § 663.) Thus, personal property derives its meaning from real property. For example, suppose someone purchases a classic 1965 Shelby Cobra. As stated above, real property is land and things affixed to land. The Cobra is certainly not land, and even when parked in a garage, is not “affixed” to the land. Thus, the car is personal property. 

But personal property is not restricted to things you can pick up and move. For instance, the Fourth District Court of Appeal held that “electricity” is tangible personal property for the purposes of sales tax laws in the state. (Searles Valley Minerals Operations, Inc. v. State Bd. Of Equalization (2008) 160 Cal.App.4th 514, 521.) 

While this may seem a tad ridiculous, again, anything that is not real property is personal property. And because electricity is neither land nor something affixed to land, it has to be classified as personal, rather than real. 

Can Personal Property Transform into Real Property?

Yes. Under certain circumstances, personal property becomes a part and parcel of real property and thereafter assumes the status of real property. (Escondido Union School Dist. v. Casa Suenos De Oro (205) 129 Cal.App.4th 944, 965.) And this is especially important for renters. 

Commonly, persons renting homes or businesses for long periods of times will want to spruce up the spaces with installations of new moldings, water heaters, toilets, sinks, etc. But what happens to those installations when the renter eventually leaves? Do they now belong to the landlord as fixtures of the space they were renting? 

In deciding on the answer, courts will always look at three factors: (1) the manner of annexation (e.g., how was it attached?); (2) the article’s adaptability to the use and purpose for which the realty is used; and (3) the intention behind the annexation. (Aljabban v. Fontana Indoor swap Meet, Inc. (2020) 54 Cal.App.5th 482, 500.) 

For example, sinks and cabinets will usually be deemed to become real property, regardless of whether they can be easily uninstalled. And that’s because they are functional only when “attached” or “affixed” to the property. If a toilet doesn’t connect to the plumbing, it won’t function. 

Are Crops Real Property?

Yes. Crops and the fruits they may bare come from the soil in land, are thus deemed to be affixed to the land. 

This is noteworthy because it is common for farmers or owners of large crop fields to give others the right to come onto their land and collect fruit. For instance, imagine the owner of vast vineyards in Napa who allows wineries to come onto his land to collect the grapes they need, in exchange for payment. 

This arrange is called a “profit a prendre,” which is an archaic legal term that means someone has a right to remove a part of the substance of the land. (Kennecott Corp. v. Union Oil Co. (1987) 196 Cal.App.3d 1179.) The reason the profit a prendre is unique, though, is because it is technically an interest in real property (it’s basically an easement). And because it’s a real property interest, it can be passed down or conveyed to a third party. 

How the Lawyers at the Underwood Law Firm Can Help

The differences between real and personal property can significantly affect the rights of people selling property, especially in a partition action. These situations can be stressful, and difficult, especially when the way out is not entirely clear. Fortunately, the lawyers at the Underwood Law Firm specialize in partition actions and solving difficult co-ownership problems, helping good people end bad real estate partnerships. If you have found yourself in one of these situations, then please do not hesitate to contact us today.

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