840.01.Definition of interest in real property.

Section 840.01 supplies the definition that runs through chapters 840 to 846. Interest in real property covers estates in land, powers of appointment under chapter 702 over land, present and future rights to land, title to land, and interests in land generally, and it lists examples without limiting the definition to them: security interests and liens on land, easements, profits, rights of appointees under powers of appointment, rights under covenants running with the land, powers of termination, and homestead rights. The interest can be one formerly labeled legal or equitable, and it can be surface, subsurface, suprasurface, riparian, or littoral.

The definition has one carve-out. It does not include interests held only as a member of the public, and it does not include licenses. Those are excluded even though they touch land in some sense, because they do not give the holder the kind of individual, enforceable stake the rest of the definition is built around.

Courts applying this definition have read it generously on the interference side and narrowly on the regulatory side. Ordering a fence post kept a couple of feet from a right-of-way has been treated as a reasonable response to interference with an easement, since interference with an easement does not require physical contact with it. On the other hand, a municipality’s regulatory power to condemn, assess, tax, and zone property within its boundaries has been held not to be an interest in real property under this section, because that power is regulatory rather than a property stake of the kind the definition describes.