MISC WORDS Flashcards
APPURTENANCE (PAGE 6)
Real property is often coupled with the term appurtenance.
Appurtenance run / go with the land.
The right or privilege that is associated with it, a parking space/ easements/ water rights
Usually transferable to new owner.
CERCLA
SARA
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, & LIABILITY ACT
SUPERFUND AMENDMENTS & REAUTHORIZATION ACT
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, & LIABILITY ACT
(Think brownfields)
- Is administered & enforced by the EPA
-CERCLA established a “superfund” (9 Billion
dollars) to clean up uncontrolled hazardous waste
sites
SARA
SUPERFUND AMENDMENTS &
REAUTHORIZATION ACT
1986 SARA reauthorized CERCLA
SARA CREATED THE INNOCENT LANDOWNER IMMUNITY STATUS
recognizing that a landowner in the chain of ownership was completely innocent of all wrongdoing & therefore should not be held liable
-This clause established a criteria to determine if a
person or business could be exempt from liability.
SARA:
SUPERFUND AMENDENTS REAUTHORIZATION ACT
WHAT CRITERIA NEEDS TO BE MET FOR A PURCHASER OF LAND NOT TO BE HELD RESPONSIBLE?
The criteria included:
-Pollution was caused by a 3rd party
-Property was acquired after the fact
-Landowner had no constructive knowledge of the
damage
-When purchasing the property, care was taken by
the buyer to determine that there was no damage
to the property by a phase 1 assessment
-Reasonable cautions were taken in the exercise of
ownership tights
- BROWNFIELDS (Pg 48 UNIT 3)
- SMALL BUSINESS LIABILITY & RELIEF FOR BROWNFIELDS
BROWNFIELDS
- contaminated properties
- abandoned commercial or industrial
- suspected to contain toxic waste.
SMALL BUSINESS LIABILITY & RELIEF FOR BROWNFIELDS
-provides funds for cleanup brownfields
-clarifies liability
-provides tax incentive‘s towards enhancing state
and tribal response programs
-shields innocent developers from liability for toxic
waste that existed at the site prior to the purchase
of the property
- a property owner who neither caused nor
contributed to the contamination is not liable for the
cleanup
Significantly, the law encourages the development of of abandoned properties, some of which are located in prime urban real estate areas.
(KNOW) DIFFERENT TYPES OF ESTATES (UNIT 5/6)
-CHARACTERISTICS OF A FREEHOLD ESTATE? (unit 5)
DIFFERENT TYPES OF A FREEHOLD ESTATE
FEE SIMPLE ESTATE: (AKA FEE SIMPLE ABSOLUTE)
CHARACTERISTICS OF A FREEHOLD ESTATE:
Indeterminable length of time/ a lifetime or forever
- Highest interest in R.E.recognized by law
- Is ownership, the owner is entitled to all
rights to the property by law
- Is intended to run forever, upon the death of
its owner, it passes to the owners heirs.
- Only limited by private and public restrictions, such
as zoning laws and restrictive covenant’s
DEFEASIBLE FEE ESTATE (2 TYPES)
(Think: something needs to happen, or not
happen)
-AKA fee simple defeasible estate.
- qualified estate that is subject to the occurrence OR non-occurrence of a specified event.
(Think of the class example where the Boy Scouts needed to use a certain piece of land every four years, or it went back to the heirs/ family OR
something like no alcohol use upon this land)
- TWO CATEGORIES OF A DEFEASIBLE ESTATE
EXIST
1) FEE SIMPLE DETERMINABLE (think: It was
DETERMINED IN ADVANCE that something
should or should not happen where it
AUTOMATICALLY GOES BACK TO THE
OWNER).
- no need to go to court if violated
- reverts back to the owner & the former owner
reacquires full ownership & the deed is
returned)
2) FEE SIMPLE SUBJECT TO A CONDITION
- DOES NOT automatically terminate upon the
violation of the condition of ownership. The
owner has the right to re-entry
- Owner must go through THE COURT to assert
this right)
#1FEE SIMPLE DETERMINABLE (KNOW THIS)
- A fee simple defeasible a estate (see above) that
may be INHERITED.
- Is qualified by a special limitation such as an
occurrence or event.
- Language use to distinguish a special limitation
IS KEY To creating this special limitation.
“so long as “, “while”, “during”
-former owner retains a possibility of reverter.
Meaning if the limitation is violated the former
owner or heirs or successors can require full
ownership was NO NEED TO GO TO COURT. The
deed is automatically returned to the former
owner.
-NO NEED TO GO TO COURT IF VIOLATION OF
CONDITION
-a (#2) FEE SIMPLE ESTATE SUBJECT TO A CONDITION SUBSEQUENT:
-similar to a fee simple determinable
“on the condition that”
-IF CONDITIONS ARE VIOLATED OWNER MUST
GO TO COURT TO RE-ENTRY
ALLUVION: (unit 5) RELICTION: EROSION: AVULSION: ACRETION:
ALLUVION: Newly created deposits of soil, gravel, or sand UPON the bank of a STREAM OR RIVER
RELICTION: (think RECESS CREATING NEW LAND)
The NEWLY CREATED AMOUNT of land due to the PERMANENT WITHDRAWAL of a RIVER OR SEA.
EROSION: (SLOW over a period of time) gradual wearing away of land by natural forces….. wind, rain, flowing water
-usually takes hundreds / thousands of years
AVULSION: (QUICKLY think earthquakes, mudslide, massive flood opposite of erosion)
-sudden removal of SOIL by an act of nature
- an event that causes theOOSS OF LAND much
LESS subtly than erosion.
-earthquake or mudslide can cause a QUICK LOSS of land
ACRETION: (Think washed up upon)
-an increase or addition of land by the deposit of sand or soil washed up naturally from a river, lake, or sea
CONVEY
CONVEYANCE
CONVEY
v. to TRANSFER TITLE (official ownership) to REAL PROPERTY (OR AN INTEREST in real property) from one (grantor) to another (grantee)
- This is done by a GOOD WRITTEN DEED (or an EQUIVALENT DOCUMENT such as a judgment of distribution which conveys real property from an estate).
- This is COMPLETED BY recording the document
with the County Recorder or Recorder of Deeds.
- ONLY APPLIES TO REAL PROPERTY.
(See: alienation, deed, grantor, grantee, conveyance)
Conveyance
The transfer of ownership or interest in real property from one person to another by a document, such as a deed, lease, or mortgage.
EQUITY
The difference between the value of a property and the mortgage debt on it is said to be the equity.
EXECUTED CONTRACT (PG 188)
EXECUTORY CONTRACT
EXECUTED CONTRACT: EVERYTHING WAS DONE
Oh parties have completely fulfilled their obligations.
An EXECUTED CONTRACT is one in which all parties have fulfilled their promises and the contract has been performed so the contract has been done.
This usage is NOT to be confused with the VERB EXECUTE (HAS BEEN SIGNED). which means the CONTRACT HAS BEEN SIGNED
And EXECUTORY CONTRACT (THINGS STILL NEED TO BE DONE BY EITHER PARTY) one or both parties still have an act to perform
An agreement of sale is an executory contract from the time it is signed until closing: ownership has not yet changed hands and the seller has not received the full sales price. At closing, these obligations are satisfied and the contract is fully EXECUTED
EXPRESS CONTRACT (PG 187)
IMPLIED CONTRACT
EXPRESS CONTRACTS / EITHER WRITTEN OR ORAL are created by words.
An an express contract the parties state the terms
and SHOW their intentions in words EITHER
WRITTEN OR ORAL.
- Most real estate contracts are EXPRESS contracts
they have been committed in writing.
- Under the STATUE OF FRAUDS certain types of
contracts must be in writing to be enforceable in a
court of law
An IMPLIED CONTRACT the agreement of the parties is demonstrated by their acts and conduct.
VARIOUS PARTS OF A CONTRACT…..
(PG 187) ALSO SEE CARD # 14
(5 PARTS)
-VOLUNTARY
- AN AGREEMENT / PROMISE
-MADE BY LEGALLY COMPETENT PARTIES / no
one insane
-SUPPORTED BY LEGAL CONSIDERATION
(LEGALLY VALUABLE “THING” & LEGALLY
SUFFICIENT)
- supported by some LEGAL VALUABLE THING
that includes a party to enter into a contract &
must be LEGALLY SUFFICIENT to support a
contract
-FOR A LEGAL ACT (not illegal)
BILATERAL CONTRACT (PG 187)
UNILATERAL CONTRACT
BILATERAL CONTRACT:
Both parties promise to do something; one promise is given for another.
2 contracts, an exchange.
- Can be MULTIPLE PEOPLE on both sides.
- A bilateral contract has TWO PROMISES being exchanged
UNILATERAL CONTRACT:
based on only one party promising to perform
An idea, “if you do this, I will pay”
TYPES OF CONTRACTS (PG 187)
3 TYPES
- EXPRESS & IMPLIED
- BILATERAL & UNILATERAL CONTRACTS
- EXECUTED & EXECUTORY
ESSENTIALS OF A VALID CONTRACT
(PG 189)
ALSO SEE CARD # 11
- OFFER & ACCEPTANCE (AKA MUTUAL
AGREEMENT) - CONSIDERATION Consideration is something of
legal value offered by one party and excepted by
another as an inducement to act or to refrain from
some act. A definite statement of consideration
must be included in the contract as evidence that SOMETHING OF VALUE was given in exchange for
the promise made. Consideration is some interest
or benefit accruing to one party or some loss or
responsibility by the other party, or some loss or
responsibility by the other party
-LEGALLY COMPETENT PARTIES
-LEGAL PURPOSE (not illegal) - CONSENT free voluntary act of each party
CONTRACTS: STATUE OF FRAUDS requires…..( PG 190)
STATUE OF FRAUDS requires that contracts
for the sale of real estate be in writing and
SIGNED BY THE SELLER to be enforceable in a
court of law.
- Also applies to certain lease agreements.
- Under the PAROLE EVIDENCE RULE, a written
contract takes precedence over oral agreements
or promises.
IN PENNSYLVANIA CONTRACTS (PG 190)
PENNSYLVANIA State Real Estate Commissions rules and regulations REQUIRE that a real estate broker representing a party to a transaction ensure that ALL CONTRACTS BE IN WRITING.
As a practical matter the printed word as long as it is sufficiently complete and specific provides written evidence of each parties rights and responsibilities and minimizes the likelihood of controversies
THE USE OF PRIVATELY OWNED R.E. IS REGULATED THROUGH: (PG 20)
(5 REGULATOR divisions or ordnance’s, etc.)
- Land use planning
- zoning ordinances
- subdivision regulations
- building codes
- and environmental protection legislation
EXPLAIN POLICE POWER & ENABLING ACTS (PG 20)
HINT: they go hand & hand
-The STATES POLICE POWER is the authority to create regulations necessary to protect public health safety and welfare. (UNIT 5)
-ENABLING ACTS states delegate to counties and
local municipalities the authority to enact
ordinances in keeping with general laws.
-Police power and enabling acts go hand-in-hand.
-Police power deals at a state level.
-Enabling ask deals with counties municipalities.
NONCONFORMING USE (PG 24) TEST
Class notes: something that was not zoned and becomes zoned the pre-existing people or business can stay……
BOOK: NONCONFORMING USE may be allowed to continue legally as it complies with the regulations governing nonconformities in the local ordinance, until the improvements are destroyed or torn down, or abandoned.
If the nonconforming use is allowed to continue, it is considered to be grandfathered into the new zoning.
EXPLAIN ZONING HEARING BOARDS (PG 24). Test
Established hearing boards (or zoning boards of appeal) to hear testimony about the effects of zoning ordinances on specific parcels of property. Petitions for VARIANCES or exceptions to the zoning law may be presented to this appeal board.
EXPLAIN VARIANCES & CONDITIONAL USE PERMITS (PG 24). TEST
-BOTH ISSUED BY ZONING BOARDS AFTER PUBLIC HEARING
VARIANCES permit prohibited land uses to
avoid undue hardship
A variance provides relief if zoning ordinances
deprive an owner reasonable use of the property.
To qualify for a variance the owner must
- demonstrate the unique circumstances that make a
variance necessary
- & also must prove that the regulations have
caused harm or created a burden.
- a variance cannot alter the essential character of
the locality or be contrary to the intent and
purpose of the zoning.
- a variance may provide relief if existing zoning
regulations create a physical hardship for the
development of a specific property.
For example if an owner’s lot is level next to a road but slopes steeply 30 feet away from the road the zoning board may allow a variance so the owner can build closer to the road then the setback allows
CONDITIONAL USE PERMIT (AKA special use permit)
Usually granted to a property owner to allow for special use of property that is defined as an allowable conditional use with in that zone, such as a church or daycare center in residential district.
For conditional use permit to be appropriate, must meet certain standards set by the municipality
DEED RESTRICTION (PG 25)
If the construction of a building or an alteration violates a deed restriction the issuance of the building permit will not cure this violation a building permit is merely evidence of the applicants compliance with municipal regulations
DEED RESTRICTION / GLOSSARY
A clause in a deed limiting the future use of the property.
-may impose a vast variety of limitations and
conditions for example,
- limit the density of buildings,
-dictate the types of structures that can be
erected
-or prevent buildings from being used for specific
purposes or even from being used at all
DEDICATION (PG 26)
VOLUNTARY X-FER OF PRIVATE PROPERTY TO BE USED FOR PUBLIC USE
“John dedicated his property to be used as a park”
A voluntary transfer of private property by its owner to the public for some public use, such as streets, schools, or parks.
PLATS (PG 27)
deals with land development and subdivision plans
A detailed map that illustrates the geographic boundaries of individual lots.
SHOWS: blocks, sections, streets, public easement,
and monuments in the perspective subdivision.
-May also include engineering data and restrictive covenant‘s
RESTRICTIVE COVENANTS (PG 27)
Glossary
A clause in a deed that limits the way the real estate ownership may be used.
DENSITY ZONING (PG 27)
GROSS DENSITY
DENSITY ZONING ordinances RESTRICT THE AVERAGE MAXIMUM NUMBER of HOUSES PER ACRE that maybe build with any particular subdivision.
GROSS DENSITY refers to the AVERAGE NUMBER OF UNITS in the development remains AT R BELOW the maximum density the average is called the gross density
INTERSTATE LAND SALES FULL DISCLOSURE ACT (PG 28)
Created by?
Regulated by?
The US CONGRESS created the Interstate Land Sales Full Disclosure Act to prevent fraudulent marketing schemes that may arise when land is sold without being seen by the purchaser.
The act is regulated by THE SECRETARY OF HUD through the office of interstate land sales regulations.
-Sellers are required to file statements of record with HUD before they can offer unimproved lots in interstate commerce by telephone or through the mail.
-The states of record must contain numerous disclosures about the property.
(PG 28) 7 DISCLOSURES
In reference to the INTERSTATE LAND FULL DISCLOSURE ACT developers are supposed to provide each purchaser or lessee with a printed report.
What specific information must the report disclose about the land?
(7 disclosures)
- TYPE OF TITLE being transferred to the
buyer
- number of homes currently occupied on the
site
- availability of RECREATION FACILITIES
- distance to NEARBY COMMUNITIES
- UTILITY SERVICES and charges
- soil conditions (swamp land)
- foundation or construction problems
If the purchaser or leesee does not receive a copy of the report BEFORE signing the purchase contract or lease the consumer may have grounds to void the contract
Exemptions from the Interstate Land Sales for Disclosure Act: (PG 28-29)
EXEMPTIONS INCLUDE
-subdivisions consisting of fewer than 25
LOTS or in lots of 20 ACRES or more.
- lots offer for sale solely to developers are also
exempt
- lots on which buildings exist
- where the seller is obligated to construct a building
within two years.
Any contract to purchase a lot covered by this act may be revoked at the purchasers option until MIDNIGHT of the 7 DAY following the signing of the contract
If a contract is signed for the purchase of a lot covered by the act and a property report IS NOT given to the purchaser, the purchaser may bring an action to revoke the contract within 2 YEARS.
If the seller misrepresents the property and any sales promotion, a buyer is entitled to sue the seller for CIVIL DAMAGES.
Failure to comply with the law may also subject a seller to CRIMINAL PENALTIES and or FINES and IMPRISONMENT
PRIVATE CONTROLS (PG 29) (UNDER PRIVATE LAND USE CONTROLS)
PUBLIC CONTROLS
PRIVATE CONTROLS are created by an owner or a private entity, such as in subdivisions
- Cannot violate local, state or federal law.
- General rule is that more restrictive of the two takes precedence
- Restrictions that control and maintain the desirable quality and character of a property or subdivision may be created by PRIVATE ENTITIES, including OWNERS THEMSELVES
PUBLIY CONTROLS are exercised by the government
What two general categories does PRIVATE LAND USE CONTROLS fall into? (PG 29)
DEED RESTRICTIONS & RESTRICTIVE COVENANTS
DEED RESTRICTIONS:
-LIMITATIONS to the use of the property by a PAST OR CURRENT OWNER
- binding on future grantees.
Examples:
- a restriction specifying the kind of structure that
may be erected on the land
- requirement that a property be used for a specific
purpose
- a prohibition of specific use
- Often NO time limitations
RESTRICTIVE COVENANTS commonly known as covenants conditions and restrictions CC&R’S are
- They are a DECLARATION OF CONDITIONS &
RESTRICTIONS that affect the use of all
parcels of land within a SPECIFIE
DEVELOPMENT OR SUBDIVISION PLAT.
-CC& R’S are typically found in a separate
recorded instrument.
- The deed to EACH AFFECTED PROPERTY
references the plat or declaration of restrictions.
-CC& R’S typically governed the type, height, and
size of buildings that individual owners can erect,
as well as land, architectural style, construction
methods, setbacks, and square footage.
- CC& R’S are enforced by homeowners associations
- CC& R’S OFTEN HAVE time limitations
For example they may be effective for 25 years.
(PG 169 UNIT 9)
BRIEF DESCRIPTION OF EACH DEED…..
GENERAL WARRANTY DEED
SPECIAL WARRANTY DEED
BARGAN & SALE DEED
QUITCLAIM DEED
GENERAL WARRANTY DEED provides the greatest protection of any kind of deed by binding the grantor to certain covenants and warrantees
SPECIAL WARRANTY DEED contains two basic warranties,
- that the grantor received title and
- that the grantor did not encumber the estate except
as stated in the deed
BARGAIN & SALE DEED Carries with it no warranties but implies that the grantor holds title to the property
QUITCLAIM DEED Carries with it no warranties whatsoever and conveys only the interest, if any, that the grantor possesses in the property
