Limitations on Property Rights Flashcards
What are the 4 government limitations?
Think P.E.T.E.
P-Police Power: Right of government to limit private use activities when it’s in the publics best interest to do so.
-Zoning: governs land use (residential, commercial, etc.). Dictates purpose, height, lot sizes, etc.
-Building codes: governs how you build
E-Eminent Domain: right of government to force the sale of privately owned property if it is in the public’s best interest to do so. Government will condemn property, pay the owner what it is worth, & take it.
T-Taxes: municipal property taxes.
E-Escheat: Reversionary interest in privately owned property held by the state.
-example: when someone owns property and that person dies without leaving a valid will & no heirs, the government ends up w/ the property.
What are the three ways to avoid zoning laws?
- Non-conforming use: Get grandfathered in.
- Variance: Special allowance - up to the town.
- Conditional use permit: A constrained variance (example: you can use the property commercially ONLY is you use it for what the town wants.
Certificate of Occupancy (C/O)
Part of building codes.
This proves the property was built up to code & is safe for occupancy.
How do un-pulled permits affect the future sale of a property?
Un-pulled permits for improvements can hinder the sale of a property.
Municipal Property Taxes
Taxes assessed against your property by the town of city.
Pays for most things the town or city does.
Taxes run w/ the land.
What happens when property taxes go unpaid.
Towns can foreclose on the property.
Super priority lien.
There is an “equitable right of redemption”.
Equitable Right of Redemption
Town forecloses on your property, but you’re given 1 year (from the date of sale) to pay back the taxes (plus the interest to whoever covered the payment).
-If not paid in 1 year, whoever covered the payment for the year will end up w/ the property.
How are tax values decided?
Taxes are charged on the assessed value of the property.
How are taxes charged?
Taxes are charged in mills.
$1 per $1,000
When are taxes paid?
They are either paid quarterly or semi-annually on a fiscal year from July 1st to June 30th.
(-8/1, 11/1, 2/1, 5/1 - in MA)
What are special assessments when it comes to taxes?
Charges for improvements made to your property by the town. (like sewer hookup, street lighting, etc.)
What are “special districts” when it comes to taxes?
Tax districts that charge adjacent homeowners for services they receive. (like homes around parks pay more because they benefit from the park)
What is the annual property tax on a $100,000 home assessed at 40% with a millage rate of $20 per $1,000?
$100,000 x .4 = $40,000 (assessed value)
$40,000 / $1,000 = 40 (payments)
40 x $20 = $800 tax bill
What are the 2 private limitations?
Covenants: contractual limitations in a subdivision.
-Must be uniformly applied to all homeowners (think HOA).
Deed Restrictions: contractual limitations written into your deed.
-Applies to all present and future owners.
-Violation of this could result in loss of property. Property would revert to whoever wrote in the restriction of their heirs.
Conflicts between public & private restrictions:
If there is a conflict between private & public restrictions, the more restrictive prevails.
CERCLA
Federal environmental law.
Empowers EPA to go after those who contaminate real estate.
Superfund Act is a trust that provides money to the EPA for clean up of contamination.
SARA
Federal environmental law.
Amendment of CERCLA-(Superfund Amendments & Reauthorization Act of 1986).
Provides for innocent land owner status; which allows the land owner to say they didn’t know about the contamination & that they will clean it up and not get in trouble for the contamination.
MA oil & hazardous release prevention & response Act (21E)
The MA superfund act.
Empowers the Dept. of Environmental Protection to have the same authority as the EPA does in CERCLA; they go after those who contaminate real estate. They also have a “superfund”.
It bands new underground oil tanks.
21E certificate proves that properties are not contaminated.
Clean Water Act (CWA)
Federal environmental law.
Law designed to clean up our navigable water ways.
National Flood Insurance Program (NFIP)
Federal environmental law.
Designed to provide insurance to properties in high risk flood zones.
Mandatory to have this if the property is in a high risk flood zone & you have a federally backed mortgage.
(Flood zones are covered by FEMA)
Wetlands Protection Act
MA law Protects wetlands (land that is annually or semi-annually wet). Cannot make any substantial alterations to the wetland & you need to maintain a buffer zone of 100 ft. around the wetland.
Endangered Species Act
Federal law
Impacts what you can build.
Protects endangered species.
Coastal Zone Management Act (CZMA)
Federal law.
Designates coastal zones that you can’t do much with.
LEED Certification
Suit of ratings established by the U.S. Green Builders Council designed to encourage environmentally friendly building.
-If you build a building in an environmentally friendly way, as described by the certification, you get a certain ranking from 1-100. The higher you rank, the more you get in permitting incentives, tax incentives, etc.
Accretion
The addition to land by wind or water,
Alluvion
Deposit of detrital material by action of water.
Alluvium
Detrital material deposited by alluvion (sand, silt).
Aeolian Soil
Loose soil deposited by action of wind (sand, gravel, etc.)
Avulsion
Sudden removal of land & deposit of it elsewhere by water.
Erosion
Gradual removal of land by wind or water.
Reliction
Sudden retreat of water, increasing land.
Easements
Right of way across another’s property.
Runs w/ the land.
The property w/ the right is the dominant tenement. The land encumbered is the servient tenement.
Easement Appurtenant
Concerning 2 adjacent lots of land (where one lot has the right over the other one).
What are the 4 ways to create an easement appurtenant?
- Deed: It is written in the deed.
- Implication: Where you did not put it in the deed, but you intended to or the situation makes it clear that you meant to.
- Necessity: Where it is not in the deed, but the easement is necessary for one of the lots of land to be accessible.
- Prescription: Where you “take” an easement created by ONCHA (Openly Notoriously Continuous Hostile Act) so long as you have been using the easement as such for more than 20 years.
Easements in Gross
Personally held easements.
-Example: you sell a property w/ a dock, but you want to continue to use the dock. This allows you to continue to use the dock for the span of your life. It is not inheritable.
Encroachment
Similar to easement by prescription for someone’s stuff (like a fence).
Intrusion of an improvement of someone else’s land.
ONCHA >20 years.
Discovered by survey.
The person with the encroachment can end up owning the land that it sits on.
What are the two types of liens?
General Liens: covers all property (personal & real).
Specific Liens: covers just one piece of property (usually real estate).
Mortgage
Voluntary lien.
Lien for the purpose of securing a real estate loan.
Mortgage is the lien, not the loan, thus:
Mortgagor=Borrower Mortgagee=Bank
Installment Sales Contracts
Voluntary lien.
Agree to make payments for property & don’t receive legal title until you make your final payment.
Equitable Title: A future right to acquire legal title.
Property Tax Liens
Involuntary lien.
Lien for unpaid property taxes.
Federal Tax Liens
Involuntary lien.
General lien for delinquent federal taxes.
Estate Tax Lien
Involuntary lien.
A lien against an estate for unpaid taxes.
Mechanic’s Lien
Involuntary lien.
A protection for contractors against non-payment.
-Needs to be satisfied before the sale of a property or else the buyer’s bank will not finance.
Judgments
Final decision by a court, can result in a sheriff’s sale (sale for a court’s judgement to be satisfied; like a lawsuit).
Attachments (in terms of liens)
Legal seizure of a property to satisfy a possible judgement. (Attaches real estate in lawsuit).
Lis Pendens
Records notice of attachments in lawsuit.
In what order are liens paid?
“first in time-first in right”
Tom wants to build a neighborhood pharmacy in an area zoned for residential use. What would most likely be used to obtain permission for this store?
A conditional use permit.
A deed restriction is applicable to…
All owners present & future.
Escheat occurs when…
A property owner dies without heirs or a valid will.
Millage rates are measured in…
$1 per $1,000
Emma wants to build a 3 story home on a vacant lot of land she recently purchased. Her town’s zoning bylaws allow for 2.5 story homes, & her housing development CC & R’s allow for up to 3.5 story homes. How tall can Emma build?
2.5 stories.
