Chapter 3 Interests In Real Estate Flashcards
Dower and Curtesy
The purpose underlying dower and curtesy is the protection of one spouse against disinheritance by the other.
At common law, dower was the right of a widow to an interest for life in one-third of all real estate owned by her husband during their marriage. Curtesy was the right of a widower to an interest for life in all (i.e., not one-third) of the real estate owned by his wife during their marriage.
The Massachusetts legislature has abolished the distinction between dower and curtesy (i.e., now all rights are called dower) and has abolished the rights of dower except as to those lands owned at the time of death. Therefore, it is no longer necessary to obtain a release of dower or curtesy rights in a deed.
What is a Homestead
A Homestead is a life estate
Easement by Deed
An easement can be created by deed when a grantor (1) conveys a limited easement right to her property or (2) conveys all her rights in a specific property but retains or reserves an easement.
Easement by Prescription
An easement by prescription is the equivalent of adverse possession. In Massachusetts, the following five factors must be established in order to establish the right to file for an easement by prescription with the court:
The use or possession must endure for 20 years.
The use must be continuous and uninterrupted.
The use occurred without the owner’s permission.
The owner knew (or should have known) of the use and took no action to prevent it.
A benefited parcel of land, usually abutting or adjacent, must exist.
Easement by Necessity
An easement by necessity is created when a seller conveys a parcel of land and the buyer has no way to reach the property except by crossing the seller’s land or that of a neighboring owner. In determining whether or not an easement by necessity exists, courts will consider the intent of the parties at the time of the conveyance.
In particular, courts will consider the
specific geographic condition of the property (i.e., the “lay of the land”),
buyer’s and the seller’s actual knowledge of the limited access, and
references (or the absence of references) to an easement or right of access made in the conveyance document (deed).
The easement by necessity is not automatic as is the 20-year prescriptive easement. (Hill 75)
License (Hill 75)
A license is the smallest right a person can have in real estate. It arises out of a contract, not from a grant of ownership. A parking place, a hotel room, and a movie seat are examples of licenses.
If a person rents a parking space for a few hours, she has contracted for certain rights in the land: she has the right to park her car there, for example, and the right to enter the property to recover the car. However, where the license is gratuitous—without payment or the underlying contractual elements—the license may be canceled without notice and with no legal recourse for the licensee (i.e., the person who used the license).
RIPARIAN RIGHTS (Hill 76)
In Massachusetts, there are three types of common riparian rights situations: streams, surface waters, and tidal waters. (Hill 76)
The word riparian refers to the rights of an owner along a river or watercourse, but when the rights are adjacent to a lake or the ocean, they may be called littoral rights. The terms riparian rights and riparian owner are often used in conjunction with all water-related issues. For study purposes, just remember that Riparian refers to Rivers (and other flowing bodies of water), and Littoral refers to Lakes (and other standing waters). (Hill 76)
Streams (Hill 76)
If the stream is navigable, that is, if a boat can float down it, then the public owns both the water and the land under the water. The Commonwealth is responsible for the care and supervision of the stream. The owner of the land next to the stream, or through which the stream runs, owns the land up to the bank of the stream.
An owner of land abutting a navigable waterway owns the right to use the water as it passes, but he cannot obstruct it or prevent it from flowing in its natural course or from being used for navigation.
If the stream is not navigable, ownership may be held in one of two ways. First, if the stream separates two properties, the adjacent landowners own the water and the land under the water to the center of the stream. Second, if the stream runs through a single property, then the riparian owner owns the water all the way across and all the land on both sides and underneath. (Hill 76)
Ponds and Lakes (Hill 76)
Surface waters—such as ponds, swamps, and lakes—are controlled by the state and are regulated according to antipollution statutes. Adjacent property owners own the land up to the shore and do not have an unlimited right to fill in a wetland or lakeshore. Use of the water must be approved under the state environmental laws. (Hill 76)
Tidal Water (Hill 76)
An owner whose property abuts tidal waters (i.e., oceanfront property) owns the land to the mean low water line or 100 rods below mean high water, whichever is less. The land between low water and high water is reserved for the use of the public by state law and is regulated by the state. (Hill 76)
