Incidental property rights are those rights that are said to be “attached” to the land. As such, they will pass from to the recipient when the land is conveyed, unless the grantor indicates otherwise. A common example of an incidental property right is the right to irrigate water from a natural source for use on the property in question.
Incidental property rights are closely connected with “appurtenances”, which also pass along with the land from owner to owner. An example of an appurtenance is an easement (the right of non-owners to walk or pass through the land).
However, appurtenances can sometimes be considered as “burdening” the land, meaning that they can cause additional responsibility or even detriment to the owner. On the other hand, incidental property rights usually speak of the benefits connected with land ownership.
Incidental property rights are generally guaranteed through state and local statutes. These statutes usually guarantee those rights that are associated with the health and sanitation conditions of the dwelling place. These rights may include:
- Rights to access light, air, and airspace above the land
- Rights to free, unobstructed access to doors and windows
- Rights to water, including the right to divert water from a natural source for irrigation uses
- Rights to basic utilities such as electricity, gas, sewage, drainage, and garbage services
- Other rights that are seen as “necessary” for the reasonable enjoyment and use of the land
In addition to those rights secured through state statutes, property rights may become incidental through negotiations between seller and owner. These types of contractual rights may be more specifically tailored to the land and the needs of the various parties involved. They can become “attached” the land by formally referencing them in a deed. This is especially common in agreements involving a homeowner’s association, where the properties are more uniform in a given neighborhood.
Some examples of incidental property rights arising from negotiations may include:
- The rights to build additions or extra structures on or attached to the property, such as over-hanging eaves
- Rights to more specific utility services, such as television, radio, or cable services
- Rights to natural resources found in the land, such as minerals or oil
Finally, incidental rights do have some limitations to them. For example, incidental rights typically do not include the right to collect rent from a tenant on the land. Rights that are not considered incidental do not pass with the land and must be negotiated during the transfer of property. Also, a property contract between two individual parties cannot violate state or local laws.
Sometimes, a new property owner may not even be aware of what incidental property rights they are entitled to. Thus, they may also not be aware of when their rights have been violated.
In order to avoid or remedy a violation of incidental property rights, it may be useful to review two sources of the rights:
- State and local laws covering property rights in your area; and
- Any rights that were the results of negotiations between parties
If incidental property rights have been violated, the injured party can usually recover damages for their losses. This can usually be done by filing a private complaint in a civil court. In particular, those violations that result in physical harm to a plaintiff, or that pose a serious health risk are actionable in a court of law.
Incidental property rights are important for the health, safety, and well-being of any property owner. If you have any questions, concerns, or disputes regarding incidental property rights, you may wish to seek the advice of a real estate lawyer. A qualified attorney in your area can help you understand your rights, and can help you file a lawsuit in the event of a dispute or violation.