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Real property vs. personal property

November 13, 2010

Q: My husband and I are going to buy our first home in Florida next month. The last time we bought a home was more than 50 years ago in New Jersey. I don't recall using a lawyer then and my husband says he knows enough about doing this that we don't need one now. He has seen lots of television shows about attorneys. Isn't this simple enough that we won't need a lawyer? What is real property anyway? Isn't everything we own really our property?

A: Property indicates right of use, control and disposition which one may lawfully exercise over things, objects, or land. There is a big difference between personal property and real property. Personal property is moveable. Your jewelry is, for example, really your property, but it is personal property because it can be moved.

The term real property usually refers to land. Land included not only the face of the earth but everything of a permanent nature over or under it. This includes structures and minerals. It does not include air.

Real property has many classifications. Freehold estates, for example, are those in which an individual has ownership for an indefinite period of time. An example of a freehold estate is the "fee simple absolute,." which is inheritable and lasts as long as the individual and his heirs want to keep it. Another example is the "life estate,"in which the individual retains possession of the land for the duration of his or her life.

Property interests of limited duration are called nonfreehold estates including tenancy for years., tenancy at will, and tenancy at sufferance. Concurrent estates exist when property is owned or possessed by two or more individuals simultaneously. It is doubtful that it is necessary for you or your husband to understand these classifications because of the purchase of our new home.

On the other hand, a common challenge for many consumers entering the real estate market in Florida is the number of unfamiliar terms, customs and pitfalls in purchasing Florida real property. Is the land deed restricted? Is there a homeowners association? Who will pay for the title insurance? What happens if the seller backs out? Dies? Should you have a mortgage? How can you be sure the deal is good?

Purchasing a new home is one of the most important decisions you and your husband will make. In your case, you have made this decision only once in 50 years and the other time was not in the state of Florida. It might be to your benefit to seek the advice of a mortgage law or real estate attorney.

Attorney Sylvia Heldreth is a Certified Specialist in Real Estate Law. Her office is located at 1215 Miramar Street in Cape Coral.

This article is not intended as specific legal advice to anyone and is based upon facts that change from time to time. Individuals should seek legal counsel before acting upon any matter involving the law.



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