Lesson 2: Limitations on Ownership Flashcards
Condemnation
Exercising the power of the government to take private property for public use.
Eminent domain
The right of government, both state and federal, to take private property for a necessary public use.
Nonconforming use
A permitted use that was lawfully established and maintained but that no longer conforms to the current use regulations because of a change in the zoning.
Police power
The constitutional authority and inherent power of a state to adopt and enforce laws and regulations to promote and support the public health, safety, morals and general welfare.
Zoning
The regulations of structures and uses of property within designated districts or zones.
What kind of limitations on ownership are there?
Limitations, then, can be both private and governmental.
There are two types of encumbrances:
1) those that affect title and entail some amount of money, such as liens, attachments, and judgments, and (2) those that affect use and entail no money, such as encroachments and easements.
Lien
A lien is a claim that a person or entity (lienor) has against the property of another (lienee) to secure payment of a debt.
Types of liens:
Voluntary or involuntary
Specific or general
Equitable or statutory
Voluntary and involuntary lien
A voluntary lien is created by the owner when he offers the property as security for repayment of money borrowed. An involuntary lien is created by operation of the law, such as tax or mechanic’s liens.
Specific and general lien
A lien may be specific, applying only to a particular property, such as a mortgaged house, or general, applying to all the lienee’s property, personal and real.
Equitable and statutory lien
A lien may be equitable, based on fairness, or statutory , based law(statute).
The priority of a lien is determined…
… by the time and date of recording, except for mechanic’s and tax liens.
Vendee’s Lien
When a seller (vendor) refuses to sell, as required by the sales contract, the purchaser (vendee) has an equitable lien against the property for the return of all money paid under the terms of the contract (earnest money).
Vendor’s Lien
When a seller (vendor) does not receive all the money due from a purchaser (vendee), the seller has an equitable, specific lien against the property for the unpaid balance.
Mortgages and trust deeds
Mortgages and trust deeds, are created when a property owner borrows money and executes a mortgage or trust deed on the property as security for repayment of the loan.
There are three kinds of tax liens:
There are three kinds of tax liens–real property tax liens, state tax liens, and federal tax liens.
Real Property Tax Liens
Property taxes, special assessments, and water and sewer charges can be levied against real property, usually by cities or counties.
The priority of real property tax liens themselves is:
(1) Ad Valorem or general property taxes, (2) special assessments, and (3) water and sewer costs.
Federal Tax Liens
Federal tax liens are general liens which result from non- payment of income taxes, gift taxes, and inheritance, or estate taxes.
Gift tax liens:
Those on property received as a gift, are subordinate to prior liens on the property and remain in place for ten years.
For how long do the federal inheritance or estate tax liens last?
ten years
For how long do income tax liens last?
six years
For how long do inheritance tax liens last?
fifteen years
Mechanic’s Liens
Mechanics, material suppliers, contractors, sub- contractors, builders, and anyone else who has furnished labor or materials for the construction, alteration, or repair of any improvement upon the land are given a lien on the property to insure payment.
What are suppliers and laborers called in relation to the mechanic’s liens?
In general, suppliers are called materialmen and laborers are called mechanics.
When do Mechanic’s liens take effect?
Mechanic’s liens take effect when materials are first delivered for materialmen and when work first begins for mechanics.
Mechanic’s liens are inchoate, or…
incomplete until the work is done.
What does a lien statement do?
To preserve the lien a lien statement must be
filed in the county. This is called perfecting the lien.
What is a notice of intent in relation to Mechanic’s liens?
In Colorado a notice of intent to file a lien statement must be served (personally or by certified mail) upon the owner of the property and the principal contractor or their agents at least ten days before recording the lien statement.
What is the order of priority with Mechanic’s liens?
The order of priority is as follows:
(1) the lien(s) of mechanics (labors) working by the day or piece, (2) the lien(s) of all other sub-contractors and of all materialmen whose claims are either entirely or principally for materials, (3) the lien(s) of all other principal contractors.
Time to file a mechanic’s lien for class one lienors?
Lienors in class one above must file within two months after completion of the work.
Time to file a mechanic’s lien for class two or three lienors?
Lienors in classes two and three above must file within four months after completion of the work.
The expiration of mechanic’s lien?
No mechanic’s lien shall last longer than six months after materials are furnished or work is completed.
A lien waiver
Homeowners may file a lien waiver signed by the general contractor upon payment to the general contractor to prevent a subcontractor not paid by the general contractor from filing a mechanic’s lien on the property.
Judgement liens
Judgments are court actions.
They may impose a general lien against the defendant’s property.
They stem from lawsuits that award money damages.
How long do judgement liens last?
six years
Writ of Execution
Judgement liens may be enforced with a court issued Writ of Execution, which directs the county’s sheriff to seize and sell a sufficient amount of the debtor’s property to pay the debt and sale expenses.
Attachments
With an attachment, the property of a defendant in a lawsuit for money damages is seized and held for satisfaction of a judgment which the plaintiff hopes to obtain.
Writ of Attachment
The court orders a Writ of Attachment, which is recorded by the county sheriff. With an attachment the court freezes the assets of the defendant, preventing them from being sold until the litigation is resolved.
Lis Pendens
A notice of lis pendens informs the public that legal action is pending against a property.
Fraudulent Liens
Liens filed for false or groundless claims can tie up a property being sold and result in legal expenses before being found invalid.
Easements
An easement is the right to enter and use the land of another for a specific purpose. The use must be consistent with the general use.
An easement by reservation
A second way to create an easement is for an owner to withhold land in the deed when selling the property.
An easement by condemnation.
A utility company, for example, might obtain the right to purchase someone’s land to run gas pipes across.
An easement by necessity
Also called by implication of law.
For example, a parcel of land without access to a road might be sold to someone. To provide access to the landlocked parcel, the courts will establish an easement over someone else’s land, probably the seller’s, because the buyer cannot be landlocked by the seller.
An easement by prescription
Yet another way of creating an easement even without a written document is by continual, adverse, open use for a legally prescribed period of time. This is called an easement by prescription. That is, if someone continually, adversely and openly acts as if he has an easement long enough he legally will.
An easement by a plat map
Easements can be created by reference to a plat map. When a developer subdivides, he usually plans easements for utilities and roads.
An easement by estoppel
An easement by estoppel occurs when someone grants an easement to someone else, and that someone else acts in good faith and perhaps spends money that would be lost if the easement were revoked.
If the promissor attempts to revoke the easement, he would be stopped because of the bad faith shown by attempting to take back the easement after his promise had been relied on.
An easement appurtenant
An easement appurtenant is a right in one piece of land created to benefit another piece of land.
Dominant vs. servient estate in relation to easements
The land benefited by the easement is called the dominant estate; the land burdened by the easement is called the servient estate.
Appurtenant
belonging
A right-of-way
The right to travel over a portion of another’s land is called a right-of-way.
An easement in gross
An easement in gross differs from an easement appurtenant in that there is only a servient estate-there is no dominant estate. Electric, telephone, and gas line easements are easements in gross
A solar easement
A solar easement is the right to get sunlight across the land of another for a solar energy system.
Termination of an easement by release:
By a quit claim deed or some kind of written release given by the easement owner to the owner of the servant estate.
Termination of an easement by merger:
by destruction of the servient estate or by merger of the dominant and servient estates.
Termination of an easement by failure of purpose:
When the reason for the easement no longer exists–that is, it is terminated for failure of purpose.
Termination of an easement by abandonment:
Proof must be provided that abandonment was intentional before the easement can be terminated, and simple nonuse is not proof enough.
Termination of an easement by eminent domain or adverse possession:
self-explanatory, isn’t it? (:
Termination of an easement by prescription:
When the servient tenant openly and continuously prevents the use of the easement.
An encroachment
An encroachment is the unauthorized intrusion of a building or other kind of real property on to the property of another.
Ejectment
A legal action to oust an encroacher or trespasser is an ejectment.
Deed restrictions or deed covenants
Deed restrictions or deed covenants are agreements limiting the use of land. A covenant is a promise not to do something that is restricted.
injunction
a civil court action (court injunction)
Conditions
Conditions, on the other hand, are stronger than covenants or restrictions. They are occurrences upon which a property might be obtained or lost.
A lease
A lease gives the tenant (lessee) the right to possess and use someone else’s property for a period of time.
A reversion
A lease gives the tenant (lessee) the right to possess and use someone else’s property for a period of time. During that time the lessor (owner or landlord) has a reversion enabling him to retake possession when the lease expires.
Consideration in a lease
the lessee’s payment or promise to pay rent and the lessor’s delivery or promise to deliver possession of the property.
Ground lease
A ground lease is a tenancy for years for land alone. Such a lease is usually for a long period of time, possibly for as long as 99 years, and usually calls for the construction of a building on the land and states the disposition of the building when the lease ends.
A ground lease, then, separates the ownership of the land from the ownership of the building.
Gross lease
A gross lease calls for a fixed lease payment in which the lessee (renter) pays a rent, and the lessor (landlord) pays taxes, insurance, and the other costs of ownership. A gross lease is also called a fixed or flat lease. Most home and apartment leases are gross leases.
Net lease
With a true net lease, the tenant pays thenexpenses, just as if he were the owner. Sometimes we hear of a net lease; or a net, net lease; or a net, net, net lease. The more nets the more the tenant pays for.
Step-Up Lease
This type of lease provides for predetermined rent increases at fixed intervals.
Graduated lease
A lease in which the payments increase at set intervals based on an appraisal or the activity of some reasonably comparable indicator, such as inflation or increases in the value of land.
Percentage Lease
Such a lease, usually associated with commercial establishments (retail stores, most specifically), is one in which rent is based on a percentage of the tenant’s gross sales.
Tenant at will vs tenant at sufferance
When a tenant holds over with the consent of thelandlord,thattenantisatenantatwill. Ifthe landlord gives no such indication, the tenant is a tenant at sufferance and no notice to quit is required.
Actual vs constructive eviction
Eviction may be actual or constructive. Actual eviction is when the tenant is removed. Constructive eviction is when the premises have been allowed to deteriorate to the point that the tenant cannot use the premises for the purpose intended.
Assignment vs a sublease
When a tenant gives his entire right in the lease to another it is an assignment; when a tenant retains some right(s) in the lease it is a sublease.
Sandwich lease
When the original lessee assigns or subleases, he has a sandwich lease–he is a middle person; he is the lessee to one person (the landlord) and the lessor to another (the sublessee).
Demise
To convey an estate or interest in real property, as in a lease, is to demise the property.
A license
A license is a non assignable personal privilege to use land. It is neither an estate in land nor an encumbrance against land.
We think of hunting and fishing licenses.
The right to tax…
… allows the government to take real property on which taxes are owed and to sell that property to collect overdue taxes.
There are two categories of real property taxes :
general taxes (also called ad valorem taxes) and special assessments .
ad valorem taxes
General property taxes are called ad valorem taxes because they are levied according to the value of the property.
