Chapter 6 - Property Ownership and Title Transfer Flashcards
What is land?
The surface of the earth, extending upward to infinity and downward to the center of the earth
It includes the soil and minerals below the surface (subsurface) and the air above the earth’s surface (airspace)
What is RE?
The land plus all improvements, which are man-made artificial things attached to the land
What is real property
The physical land, natural features, man-made improvements to the land, and, the bundle or rights of ownership of real property
Includes both land and RE and is definted as all the rights, benefits, and interests that are associated with ownership of RE
What are the rights of real property ownership and what is title synonymous with?
- Possession - possess and occupy
- Control -use it for any legal way
- Enjoyment - use in any legal way
- Exclusion
- Disposition - right to sell, will, transfer, or dispose of property
The word title is synonymous with ownership of real property
What are subsurface rights?
Rights to natural resources that exist below the surface of the earth. Can be sold or conveyed separately from land and conveyance can split among several buyers
What are air rights?
Rights above land and other objects, significant part of land and may have great value
Who regulates water rights?
Usuallythe states do and the sale of rights is a complex legal process
What are riparian rights?
Common-law rights granted to owners along the course of a river or stream. Give unrestricted access to use of water as long as flow is not altered or water contaminated
On small streams (not navigable), owner owns land under water out to center of stream
On large (navigable) streams or rivers, owner owns only out to edge of water
What are littoral rights?
Owners whose land borders large (commerically navigable) lakes, seas, and ocean. Only have claim to high watermark
What is accretion?
Process whereby property size increases due to action where water has added to the land (Ex. - water level dropping)
What is erosion?
Process whereby wind, rain, or flowing water has removed land through process of erosion and replaced it with water. Missing land no longer belongs to the owner (Ex. - cliffside land falling into ocean)
What is avulsion?
Sudden removal of soil by act of nature that causes property to become much smaller very quickly
What is personal property?
All property that can be owned by an owner but does not fit into the definition of real property. Difference between personal property and real property is that personal can be moved
Are manufactured homes real or personal property?
In most states are considered personal property, since they can be moved. If they are permanently affixed to the land though, they can be considered real property
Are trees and crops real or personal property?
Trees, rocks, bushes, and other landscape that doesn’t require cultivation on an annual basis are considered real property. Fruit, vegetables, grains, and other cultivated crops are known as “emblements” or “fructur industriales” and are considered personal property
What are fixtures?
Items of personal property that have been permanently attached to land or a building, so that they become part of the real property
How does one determine if property is a fixture or not when property is transferred?
If a property is controversial as to it being real or personal, a test of intent can be used to determine type
1) Method of annexation - how permanent is the attachment? Can it be easily removed or will it cause damage to building?
2) Adaptation to RE - cabinetry, with panels matching other cabinets would be considered a fixture; whereas a fridge, would be personal property
3) Have parties agreed to the status in offer to purchase?
What is accession?
The process by which if personal property of seller becomes property of buyer if it is not removed from real property upon seller vacating
How are trade fixtures in commercial RE treated upon transfer?
Treated as property of tenant and should be removed by the final day of occupancy
What are the characteristics of land (3)?
- Immobility
- Indestructibility
- Uniqueness - no two parcels are the exact same (non-homogenous/non-homogeniety)
What are the economic characteristics of land (4)?
- Area preference - location is important
- Scarcity - finite source
- Improvements - construction can dramatically raise value of land
- Permanence of investment - buildings represent a large investment of capital and labor
What are vague references for legal descriptions?
Street addresses and assessor’s parcel numbers (APNs). They give general info about location of property
They are generally acceptable in documents which will not be recorded. Are “adequate descriptions” for listing agreements, leases, and purchase agreements
What are legal descriptions and the 3 types?
One that describes a parcel of property so well that it cannot be confused with another:
- Metes and bounds
- References to the US Gov Rectangular Survey
- Lot, block, and subdivision (according to approved plat map)
What are metes and bounds and how do they work?
Metes (distance and direction) and bounds (landmarks or boundary edges) are used to define borders of parcel of land
Descriptions uses a point of beginning (POB) and then directions and linear measurements to definte the boarders and finally return to the POB
When using bounds, they use monuments like fixed, permanent, natural objects, etc.
Descriptions reference latitude and longitute, and use degrees (360 in circle), minutes (60 in a degree), and seconds (60 in a minute)
What is the US Gov Rectangular Survey System?
References principal meridians (vertical lines) and base lines (horizontal lines) that create ranges (vertical 6 mile columns) and tiers (horizontal 6 mile rose)
The intersections of ranges and tiers create townships (6mi x 6mi blocks) that are broken into 36 (1mi x 1mi) sections
How many acres does a township have?
640 acres
How many square feet are in an acre?
43,560
How are sections labelled and parcel broken out?
Labeled 1-36 starting at NE corner, moving to the W, and snaking down to end at the SE corner. The 16th section is the school section (in middle) where a school can be built
What is lot, block, and subdivision?
Usually used in metropolitan areas where blocks and lots are assigned numbers and letters. Resultant drawing is a plat map or subdivision map. Once approved by local municipality, subdivision is duly recorded and becomes part of legal description of each property
What does the plat map do?
Show location, size and shape of building lots, roads, sidewalks, street lights, curbs and gutters, utility easements, drainage easements, etc.
What is an encumbrance and what are some types of monetary or non-monetary encumbrances?
A burden upon the title to the property, even though great benefits may be derived by the owner as a results of the encumbrance
A monetary encumbrance is referred to as a lien
Non-monetary encumbrances include restrictions, easements, licenses, and encroachments
What is a property tax lien?
State and local govenment property taxes owed for things like fire and police protection, schools, streets, sewers, etc.
What is a mechanic’s lien?
State law to protect persons who provide labor or materials to improve another property. Lien is effective the date of first work or delivery of materials, not when it’s filed with public records
What is a general lien?
Once a person sues another in court and obtains final judgement, in order to collect on the judgement, must file it in the public records. The lien is against all property the judgement debtor owns in jurisdiction
What is lis pendens?
If law suit is in process, owner is trying to sell home, and aggrieved party cannot file a lien, they may consider a lis pendens (lien pending). This gives notice that litigation is pending and tends to prevent the property from being sold before the dispute is resolved
What is a writ of attachment?
If the plantiff in a suit believes the defendent is disposing of assets to avoid judgement, plantiff may seek writ of attachment from court. This prevents the transfer of assets until the lawsuit is concluded
What is a writ of execution?
Assits in collection of judgment against defendant. The sheriff seizes the property of the defendent, sells it, and applies it against the judgement
What are deed restrictions?
Restrictions that an owner of property may put on future usage of property
If owner wants to ensure property is used in a certain way, then it would be an “affirmative deed restriction” and the opposite would be a “limiting deed restriction”
What are conditions, covenants, and restrictions (CC&Rs)?
When a developer of a restricted community, like a gated community, places restrictions on the property, including the creation of a Common Interest Community (CIC); the restrictions bind all future owners
Private Police Powers - the HOA is the “government” in enforcing community rules
What is an easement?
The right for someone other than the owner to use part of a property for a specific purpose. Usually recorded with legal description, noted on a plat map, or part of the property records
What is an easement by necessity?
Right to access property by use of “public way”. A dedicated public street or highway would be a public way
A person can create an easement by necessity if their purchased property does not have ingress (entrance) or egress (exit) to the public way
What is an easement appurtenant?
All owners of a neighboring property may decided to create an easement to allow one owner to cross over the land of another. Not out of necessity
Needs to be in writing and in a form that would be accepted in public records
What is a servient tenement and dominant tenement?
Servient is the land which is given up for an appurtenant and dominant is the land that enjoys the right to pass over the easement
What is easement in gross?
Does not have a dominant tenement, only a servient tenement. Most common example would be a utility easement
