Chapter 3: Rights & Interests in Real Estate Flashcards
Name 4 Government rights/restraints on real estate.
- Police Power
- Eminent Domain
- Taxation
- Escheat
Police Power
the right of the government to enact laws and enforce them for the order, health, safety, and general welfare of the public
Examples of Police Power
- Zoning
- Building, fire, and health codes
- Rent controls
- Environmental protection
- Fair housing
- Real estate licensing
Eminent Domain
The right of the government to take privately owned property for the public good
Condemnation
The process used to carry out eminent domain
Enabling Acts
The process states use to pass to local governments the right to levy property taxes
Which lien is first in priority over all liens?
Property taxes
Escheat
When a person dies intestate and leaves no heirs or when property is abandoned, it reverts back to the state
Administrator
The person the court appoints to settle and manage the estate of someone who dies escheat
Estate
Synonymous with “bundle of rights”
Freehold Estate
Estate with actual ownership for an unpredictable duration
Fee Simple (Fee Simple Absolute)
- The largest/greatest estate one can hold
- Has the largest bundle of rights
- Least limited of all estates
- Has most complete/absolute ownership
- Can be inherited
What are the Fee Simple Bundle of Rights
- Occupy and Use 8. Exclude Others
- Build 9. Sell
- Grant Easements 10. Refuse to Sell
- Mortgage 11. Give away/abandon
- Mine, Drill, Farm 12. Rent or Lease
- Restrict Use 13. License
- Covenant 14. Devise by Will
Qualified Fee Estate (Limited Fee or Defeasible Fee)
An estate in land subject to certain limitations/conditions imposed by an owner
Owner must comply with conditions or have ownership reverted back to previous owner
When terms are breached, ownership automatically reverts back to previous owner
Also called (Fee determinable or Base Fee)
Possibility of Reverter
The owner conveying a qualified fee retains “interest” in the property. If conditions are breached, ownership automatically reverts back to previous owner.
- It can be sold or willed
- Uses terms “for so long as”
Fee Simple subject to a condition subsequent
A qualified fee that does not automatically revert back to the previous owner.
Previous owner must utilize courts to retain interest
Right of Reentry
The previous owner in a fee simple subject to a condition subsequent has the right to regain ownership if conditions are breached
Life Estate
Conveys an estate for the duration of someone’s life
- Cannot be inherited
- Cannot create any interest in the property that extends beyond the measuring life
The person holding a life estate is called?
Life Tenant
If upon death of a life tenant, ownership reverts back to the previous owner, he/she has what type of interest?
Reversionary Interest
If upon death of a life tenant, ownership reverts to another person, he/she has what type of interest?
- Remainder Interest
2. Person is referred to as a “Remainderman”
What is Life Estate Pur Autre Vie
When the duration of a life estate is based on the life of person other than the life tenant.
What is waste when referred to a life tenant
Any act that substantially impairs the value of the real estate
What is estover
The right of a life tenant to use timber on the land for necessities such as fuel or repairs
Non-freehold/Less-than-freehold (Leasehold estate)
- User of the property is not the owner
2. User has a definite period of time to use the property
What are the 4 Leasehold Estates
- Estate for years
- Estate from period-to-period (Periodic estate)
- Estate at will
- Estate at sufferance
Estate for years
- Can use property for a specific length of time
- Has a definite beginning and end date
- Does not automatically renew
- Does not terminate by death of either party
Periodic Estate (Estate from Period-to-Period)
- Can use month to month, year to year, week to week
- Requires notice to terminate
- Will renew automatically if no notice is received
- Requires notice to quit
- Does not terminate by death of either party
Estate at will
Owner gives permission for someone to use real estate for an unspecified term
- Either party can terminate at any time with “reasonable notice”
- Terminates by death of either party
Estate at Sufferance
When a tenant stays beyond their legal tenancy without the consent of the owner.
Terminates by death of either party
The tenant who stays beyond their legal term is called?
Holdover Tenant
How does an owner secure possession of his property from a holdover tenant?
Seek an Ejectment
What are the 4 statutory estates
- Dower Right
- Curtesy Right
- Community Property
- Homestead Protection
Dower Right
The interest a wife acquires in all the property her husband had or acquired during their marriage
It is an inchoate interest that doesn’t become legal until husband’s death
Curtesy Right
A husband’s interest in real estate owned by his wife.
He has no interest in her property during her lifetime. He gains interest upon her death.
Community Property
Each spouse has equal interest in property obtained from each other during marriage.
There are 2 classifications:
- Separate property: Gained by gift/will during marriage
- Community property All other property
Homestead Act
Laws passed to provide legal protection for homestead claimants who may be forced to sell their home to pay certain debts. Sometimes provides a home for a widow/widower for life.
helps shield a home from some creditors following the death of a homeowner’s spouse or the declaration of bankruptcy. The homestead tax exemption can also provide surviving spouses with ongoing property tax relief, which is done on a graduated scale so that homes with lower assessed values benefit the most.12
The homestead exemption is helpful since it is designed to provide both physical shelter and financial protection, which can block the forced sale of a primary residence. However, the homestead exemption does not prevent or stop a bank foreclosure if the homeowner defaults on their mortgage.
Encumbrances
- Anything that limits a fee simple
2. Any claim, right ,estate, liability, or restriction that limits a fee simple
Easement
A right one party has to use another party’s land for a special purpose.
- These are non-possessory interests
- Can’t be revoked
- Terminate on death of recipient
- Recipients can’t will them
What are the 7 ways easements can be created?
- Grant: Someone grants permission
- Reservation: Seller sells but reserves portion of rights
- Agreement: A written contract between parties
- Necessity: Someone’s deprived of reasonable access
- Prescription: Violator openly, notoriously, w/o permission use land for statutory period of time
- Implication: Implied use by operation of law. (Ex. mineral rights are sold w/o giving them right of entry
- Condemnation: Eminent Domain
What are the 2 types of easements
- Easement Appurtenant
2. Easement in Gross
Easement Appurtenant
2 separate parcels of land with 2 different owners where one parcel is burdened for the benefit of the other.
- Has a Dominant and Servient Estate
- Is said to “run with the land”
Easement in Gross
No parcel is burdened for the benefit of the other. There is no dominant or servient estate.
- Commercial EiG: given to utility companies & railroads
- Personal EiG: a right given to an individual to use another person’s land.
- Personal EiG’s are not transferrable
- Personal EiG’s are specific for one person
- Personal EiG’s last for the duration of that person’s life
What are the 6 ways an Easement may be terminated
- Release: Written release from owner
- Merger: Dom. & Serv. estates combine under new ownership
- Expiration of Purpose: Purpose no longer exists
- Abandonment: Abandonment alone doesn’t result in release. The holder must take positive action to show that the property is being abandoned.
- Prescription: When servient estate openly and continuously prevents the easement owner from exercising his right to use the property within the statutory period of time.
- End of Necessity: Once need has been resolved
License
It is not a right but instead a personal, revocable, and nonassignable privilege.
It is permission given by the owner to an individual for a specific purpose.
Encroachment
Unauthorized intrusion of an improvement or other form of real property onto another person’s land.
Person encroached, has right to force removal but loses that right if too much time goes by
Latches
Prevents assertion of a right due to undue delay or failure to assert right.
Deed restrictions (Deed Covenants)
- Private controls that govern land use
- Restrictions to control fencing, heights of buildings, and other such things to protect the aesthetic value
- Are normally stricter than zoning regulations
Which do I follow: deed restriction or zoning regulation.
Whichever one is stricter
Someone violates their deed restriction, what can I do?
File an injunction (A court order to cease and desist).
Name the 7 types of encumbrances
- Easements 5. Deed Restrictions
- Encroachments 6. Air Rights
- Liens 7. Subsurface Rights
- Leases
What is a lien?
- A claim of hold on land to secure payment for a debt
2. There are 2 categories: Specific and General
Specific Liens
- A lien that targets a specific parcel of the land.
- Does not affect personal property
- Ex: Property taxes, mechanics liens, mortgages
General Liens
- A lien that targets all of a person’s property
2. A judgement is an example of general lien
Which liens are first in priority?
Tax liens
Lis Pendens
A public notice of a pending lawsuit and that the plaintiff may in the future be allowed to encumber the property.
Judgement
A decision by the court to establish “indebtedness” on the behalf of the plaintiff
Writ of Execution
A court order that authorizes a sheriff to seize and sell enough of the debtor’s property to satisfy the judgement and pay expenses of the sale
A creditor may see a Writ of Execution to prevent the conveyance of title of unsecured real estate owned by the debtor pending the outcome of the lawsuit
Notice of lien
Property owned by the indebted that is located in other jurisdictions can be requested to be attached
What is a voluntary lien?
- A lien created by the property owner
2. Ex: Mortgage lien
What is an involuntary lien?
- A lien created by operation of law
2. Ex: Property Taxes, Judgment liens, mechanics liens
