Chapter 1- Real Property Characteristics, Legal Descriptions, and Property Use

Question 1

REAL PROPERTY

Answer 1

Consist of land, improvements attached to the land, benefits, rights and ownership interest that go with the land.

Question 2

Appurtenance

Answer 2

The term appurtenance is often used to describe rights, privileges or improvements that belong to and pass with the land.

Question 3

Improvements

Answer 3

Improvements are man’s additions to the land such as buildings and landscaping.

Question 4

Personal property
Aka
Chattel or personalty

Answer 4

Personal property is a right or interest in something of a temporary or movable nature and includes anything not classed as real property.

Question 5

Bill of Sale

Answer 5

Ownership is trans- ferred by a Bill of Sale

Question 6

fixture

Answer 6

A fixture is an item that was personal property; however, it has been attached in such a way that it has become real property. A fixture is never free standing.

Question 7

installed

Answer 7

The word “installed” often indicates a permanent attachment.

Question 8

annexation

Answer 8

The process of attaching may also be called annexation

Question 9

“severed”, or severance

Answer 9

The process of real property becoming personal will be described by the term “severed”, or sever- ance.

Question 10

Trade Fixtures

Answer 10

Trade Fixtures are fixtures installed by a tenant in order to carry out a business, and they may be removed from leased property prior to the termination of the lease. If trade fixtures are not removed prior to the termination of the lease, they become real property and pass to the landlord.

In the sale of commercial or investment property, ownership of fixtures and trade fixtures to be included in the sale should be verified to protect the interests of both buyers and sellers

Question 11

Emblements

Answer 11

Emblements are crops cultivated annually. Even though they are attached to the ground, they are considered the personal property of the farmer who cultivated them. They are not automatically part of the sale of a farm or ranch. Ownership can be transferred with a bill of sale, or the cultivating farmer may make arrangements to return to the property and harvest them one time after the sale closes and the crops are ready for harvest.

Question 12

Characteristics of real property

Answer 12

Land has 3 physical characteristics

Question 13

1. Nonhomogeneity

Answer 13

1. Nonhomogeneity - no two pieces are exactly alike. A more current term is uniqueness. Each piece of land is unique.

Question 14

2. Immobility

Answer 14

2. Immobility - land cannot be moved - a person must go to the land.

Question 15

3. Indestructibility

Answer 15

3. Indestructibility - durability - it will always be there.

Question 16

Land has four economic characteristics

Answer 16

1. scarcity
2. Modification
3. Fixity
4. Situs

Question 17

1. Scarcity

Answer 17

1. Scarcity - in short supply where demand is great – (a lot in Manhattan is more valuable than a lot in upstate New York.) Scarcity is usually based on geographic considerations.

Question 18

2. Modification

Answer 18

2. Modification - land use and value are greatly influenced by improvements made by man to land and to surrounding parcels of land.

Question 19

3. Fixity

Answer 19

3. Fixity - land and buildings and other improvements to land are considered fixed or perma- nent investments – they are not liquid assets.

Question 20

4. Situs

Answer 20

4. Situs - location preference, or location from an economic rather than a geographic stand- point. (This can change over time as people chan

Question 21

Legal descriptions

Answer 21

LEGAL DESCRIPTIONS
A legal description is created and determined by a surveyor. It is a necessary part of a contract or conveyance (deed, listing, sales contract, etc.) in order for that document to be enforceable. It is one of such certainty and accuracy that one can go to the ground and identify the land. The following methods of land description are legal:

Question 22

Metes and bounds

Answer 22

Metes and bounds descriptions use terminal points and angles and always have a p.o.b. (point of beginning). This method uses compass directions, degrees, and minutes. The point of beginning is also the end, (sometimes called the termination point), so that the land described is completely defined. In other words, there are no breaks or gaps in the outline of the property This description might include the use of street names. This is the oldest and most common method of land description. Monuments, permanent surveyor markers, are often the starting point for a metes and bounds description, and can be essential to the accuracy of that descrip- tion. Monuments can be man-made - an iron pipe, or natural - a stand of timber, an old oak tree, etc.

Question 23

Lot, block and subdivision descriptions

Answer 23

Lot, block, and subdivision descriptions are derived from a recorded map, called a plat. This is the most common description used in residential listing agreements.

Question 24

The rectangular survey System

Answer 24

The Rectangular Survey System, also known as the Government Survey System, takes into consideration base lines, and meridians, townships and sections. Townships and Sections are located in Ranges. One township contains 36 sections. Each section contains 640 acres, which is 1 square mile. Each acre contains 43,560 square feet

Question 25

PUBLIC AND PRIVATE LAND USE CONTROLS – ENCUMBRANCES

Answer 25

PUBLIC AND PRIVATE LAND USE CONTROLS – ENCUMBRANCES

Public Controls - GOVERNMENTAL RIGHTS IN LAND (PETE)

Question 26

1. Police power

Answer 26

1. Police Power is the power given to a municipality to regulate and control the character and use of property for the health, safety and general welfare of the public

Zoning is the most common example of police power. Zoning regulations are local laws to control land use. For example: R-1 zoning means residential, single family only.

Question 27

Non conforming zone

Answer 27

A change in zoning may result in a non-conforming use. This use was permissible under former rules, but new rules prohibit it. A non-conforming use is allowed to continue as it is considered grandfathered. The non-conforming use is automatic, no hearing or application process is required. A non-conforming use cannot be altered or expanded without permis- sion, but it can be sold to a party who wishes to continue the existing use. If the property is destroyed, the non-conforming use may not be rebuilt without permission. (Note – there is no violation of zoning here.)

Question 28

Variance

Answer 28

If your property violates zoning, you may request a variance. A variance may also be requested prior to construction. Adding on to the front of a building would usually require a variance. The process to obtain a variance is to apply to the zoning committee. A hearing will be scheduled and all neighborhood property owners will be invited to the hearing to voice any objections they might have to the variance. A variance goes with the property when the property is sold

A conditional use or special use can be granted by a zoning committee or deed restrictions (HOA). This use would benefit the neighborhood, like a school within a residential neigh- borhood. Another conditional use is a PUD – a planned unit development. A PUD zone allows for a higher population density with houses clustered together, leaving more green area open for parks and recreation. A non-profit community association is organized to provide maintenance of the common areas. An extra tax may apply to property owners in a PUD.

Question 29

Buffer zone

Answer 29

A buffer zone is an area of land separating one land use from another, such as residential from commercial. The buffer zone is located between incompatible uses. The buffer zone is a transitional use. Example: single family, apartments, retail. The apartments are the buffer zone

The government also has the right to regulate special land types for the public good includ- ing coastal properties and wetlands. Standards have been set to keep construction a set distance from protected wetlands. The space between the wetlands and construction is another example of a buffer zone.
Police power provides the government with the right to establish building codes. Specific construction requirements, designs, materials, safety guidelines, etc., can all be regulated. New construction frequently requires a Certificate of Occupancy to be issued.

Question 30

2. Eminent Domain

Answer 30

2. Eminent Domain is the right of the government to take private property for public use through the action of condemnation. This is the only time the government must compen- sate property owners.

Question 31

Inverse condemnation

Answer 31

When an individual forces the government to buy his or her property, this is called inverse condemnation.

Question 32

3.Taxation

Answer 32

3. Taxation – Property taxes are the highest priority lien on real property. Property taxes are ad valorem taxes, or according to value. Unpaid taxes create an automatic lien on property. At foreclosure, property taxes are always paid first.

Question 33

4.Escheat

Answer 33

4. Escheat - Property reverts to the state when someone dies leaving no will and no heirs or kindred. Escheat can also be used if property is abandoned. The purpose of escheat is to ensure that no land remains unowned.

Question 34

Private controls, restrictions and encroachments

Answer 34

PRIVATE CONTROLS, RESTRICTIONS AND ENCROACHMENTS
The most common private controls of land use are CC&Rs - deed covenants, conditions and restric- tions. CC&R’s are commonly referred to as Deed Restrictions, or Deed Covenants. HOA (Home Owner Association) or POA (Property Owner Association) regulations are like deed restrictions, but usually apply to condominium complexes and subdivisions. These private controls of land use are contractual obligations that a buyer agrees to when purchasing the property.

Question 35

Deed restrictions

Answer 35

Deed Restrictions are imposed to control land use, development and methods and materials for construction. Style and appearance requirements can also be enforced (garages facing the rear of the property etc.). They are found in a recorded document called a Declaration of Restrictions. They are
imposed by the grantor. Violation can result in civil court action brought by other property owners who are bound by the same deed restrictions

The court will issue an injunction to enforce the restrictions.
In some cases, deed restrictions and zoning can both exist. If this is true, whichever is most restric- tive or limiting must be obeyed. Deed restrictions are permanent in most cases, and do not expire. They control present and future owners and tenants.

Question 36

Encumberance

Answer 36

An encumberance is a limit on a property, or a limit on a property’s owner’s rights, that may or may not also be a cloud on the title. The following are all examples of encumberances.

Question 37

Reservation

Answer 37

A reservation, imposed by the grantor, withholds title to a part of the land described in the deed (Example: an easement or mineral rights).

Question 38

Encroachment

Answer 38

When a structure or improvement overlaps or trespasses onto another’s property it is an encroach- ment. Encroachments must be disclosed. The determination of an encroachment requires a survey.
Note: A listing agent discloses an encroachment, a buyer’s agent recommends a survey. In the case of an encroachment, the injured party has the right to demand the removal of the encroachment.

Question 39

Easement

Answer 39

An easement allows limited use or enjoyment of another’s land. It is a right in land and should be created in writing and recorded. It is use without possession.
Easements can be created by express (written or verbal) or implied (by actions or evidence) grant, agreement, reservation, limitation or prescription, necessity, or condemnation.

Question 40

Condemnation

Answer 40

The government will take an easement by condemnation for itself, the utilities or the railroads. Easements can be terminated by merger (acquiring the adjacent property), release, or abandonment.

Question 41

Dominant and servient estates

Answer 41

Dominant and Servient Estates - If you have two parcels of land with a road across one parcel, the owner who crosses over the other’s land is dominant. The dominant estate would be landlocked without the easement, in most cases. The property with the road is servient to the dominant estate. The dominant estate benefits from the easement, while the servient estate is encumbered. The most common reason for this type of easement is entry and exit from the property. This easement is called an Easement Appurtenant. It goes with the land, and the landowner owns the easeme

Question 42

Easement in gross

Answer 42

An Easement in Gross belongs to a person or corporation. An example is a utility easement. No matter who owns the land, the easement still belongs to the utility company.

Question 43

License

Answer 43

A license is permission to do a particular act upon the land or property of another. A theater ticket or sports event ticket is a license that grants use of one seat for one performance. A license is similar to an easement, but of much more limited duration. It is not a right in land. It is often given verbally and easily revoke

Question 44

Adverse possession

Answer 44

Adverse Possession (squatter’s rights) occurs when property is acquired from the rightful owner through the Statute Of Limitations. Occupancy must be hostile, visible or open, actual or notorious, continuous and distinct for the statutory period.

Question 45

Lis pendens

Answer 45

Lis pendens is a recorded notice filed against a specific property, meaning that some form of lawsuit has been filed, but not yet resolved in court. A lis pendens may become the responsibility of a new owner, if not settled prior to closing.