National Ownership Flashcards
Livery of Seisin
When you sell the entire bundle of rights to real estate
The five ECONOMIC characteristics of land (DUSTS)
D.U.S.T.S.
- Demand
- Utility or Usefulness
- Scarcity
- Transferability
- Situs (location)
The three PHYSICAL characteristics of land
- Immobility
- Indestructible
- Nonhomogeneous (uniqueness)
Chattels
What personal property is sometimes referred to as
Fixture
Something which once was personal, but has been installed and becomes real property.
Appurtenance
A right, privilege, or improvement that belongs to and passes with the transfer of property, but are not necessarily a part of the actual property (a fixture).
Emblements or fructus industriales
Annual crops such as wheat, corn, and vegetables and are considered personal property.
Fructus naturales
Perennial trees, grasses, etc that do not require cultivation and are considered real property.
Annexation
Changes personal property to real property
Severance
Changes real property to personal property.
Trade Fixture
Property of a tenant that is installed, and is necessary for their trade or business. Usually an agreement concerning it’s removal. Damage caused by removal falls on the tenant. If not removed, it becomes the property of the landlord.
The four categories of government interference in private ownership (P.E.T.E.)
P.E.T.E.
- Police power
- Eminent domain
- Taxation
- Escheat
Police power
The right of the government to enact laws and enforce them.
Requirements for eminent domain….(3 things)
- Property owner must be paid compensation
- Property must be for the public good or use
- Owner must have due process
Condemnation
The process by which a property is acquired through eminent domain (also called a taking)
Escheat
Common law doctrine which transfers the property of a person who dies without heirs, back to the state. It serves to ensure that property is not left in “limbo” without recognized ownership.
Freehold Estate
Means “I own the property”..what we think of as ownership. No definite ending date. Lasts at least a lifetime because the property can be willed.
Freehold vs Leasehold
Freehold owns - Leasehold rents
Fee Simple
Highest degree of ownership, has unlimited duration, is inheritable, subject only to the powers of PETE. Owns the bundle of rights.
Fee simple defeasible
An estate based on an occurence or a non occurence of a specified event. (Fee simple conditional is very similar and dictates estate “on the condition that…”).
Life estate
An interest which only lasts for the term of a life, or lives, of one or more persons. Death terminates.
Estate in reversion
A life estate deeded to a life tenant which reverts back to grantor upon death of tenant. Life tenant possesses an incomplete bundle of rights in his/her lifetime.
Grantor > life tenant > death of life tenant > Grantor
Estate in remainder
Grantor separates his bundle of rights into two parts. Life estate is deeded to life tenant. Remainder estate is given to a remainderman third party.
grantor > life tenant > death of life tenant > remainderman
Life tenants cannot…(2 things)
- will the property to anyone else
- wate or destroy the property
….because they only have an incomplete bundle of rights.
Life estate based on the life of another, not the tenant. The life tenant can have the incomplete bundle of rights until that third party dies.
Pur Autre Vie
Dower
a wife’s interest in the husband’s property
Curtesy
a husband’s interest in the wife’s property
Four main types of leasehold estates
- Estate for years
- Estate from period to period
- Estate at will
- Estate at sufferance
Four main types of freehold estates
- Fee simple
- Fee defeasible
- Life estate
- Fee tail (always wrong answer)
Estate for years
Has a definite beginning and ending date. Not necessary to give notice to landlord to terminate. Renewal is not automatic. Can be for any amount of time. Many commercial leases and some apartment leases are estate for years.
Estate from period to period
Also known as period tenancy or a month to month lease. Proper notice is required to terminate. No definite ending date. Most apartment leases are this.
Estate at will
Landlord lets you stay without a lease. Notice from either party can be given without warning. Death of either party immediately terminates estate at will.
Estate at sufferance
Tenant has stayed past the term of his lease. Known as a holdover tenant because he is in unlawful possession of the property. Landlord must evict through the courts, can’t just lock the tenant out and turn off utilities.
Constructive eviction
Occurs when the tenant’s use of the premises is substantially disturbed or interfered with by the landlord’s actions or failure to act where there is a duty to act. The tenant is effectively forced to move out and terminate the lease without further liability for further rent.
Ground lease
Long term lease, tenant may build on a property but the property is still the landlords.
Index lease
The rental is tied to some commonly agreed to price index such as the Consumer Price Index or the Wholesale Price Index.
Appraisal lease
Lease which states a date in the future for a new appraisal. If the appraisal is higher than the last, the rent goes up accordingly.
Graduated lease
Cost goes up at regular intervals
Net lease
Tenant has agreed to pay ownership expenses, usually utilities, property taxes and special assessments.
Net net lease
Tenant pays utilities, property taxes, special assessments and insurance.
Net net net lease
Tenant pays utilities, property taxes, special assessments, insurance, and some agreed upon items of repair and maintenance.
Gross lease
Lessee pays a flat fee and landlord pays all expenses.
Escalator clause
Parties agree to an adjustment in rent based on increases in taxes, insurance, operating costs, etc.
Non disturbance clause
Mortgage clause which requires that tenants cannot be disturbed if the property is foreclosed upon.
Economic rent
Rental income that real estate can command in an open competitive market (market rent)
Severalty
If one person takes title to real estate (corporations always take title in this manner).
Tenancy in common
A form of concurrent ownership where two or more persons hold separate titles in the same estate. May have equal or unequal shares. Undivided interest in the property as a whole (can’t divide up the house) based on percentage of ownership. CAN sell interest WITHOUT getting approval of other owners. It’s also inheritable.
Partition suit
The dividing of real estate held by two or more people which results in each of the parties holding individual or severalty ownership
Joint tenancy
In a joint tenancy, two or more persons collectively own a property as if they were a single person. Rights and interests are indivisible and equal: each has a shared
interest in the whole property which cannot be divided up. Joint tenants may only convey their interests to outside parties as tenant-in-common interests. One can
not convey a joint tenant interest (see digital textbook pg 86). Only created by grant or purchase.
Creation of joint tenancy (T.T.I.P.)
T.T.I.P.
TIME-all owners must take title at same time
TITLE-all parties must acquire property in the same deed
INTEREST-each must have equal interest
POSSESSION-undivided interest in whole property as in tenants in common.
Joint tenancy is terminated when…(4 things)
- One sells his interest in the property; buyer of this interest becomes a tenant in common not a joint
- Partition law suit
- Bankruptcy
- Foreclosure
Tenancy by the entireties
A special joint tenancy between a lawfully married husband and wife, which places all title to property (real or personal) into the marital unit, with both spouses having an equal undivided interest in the whole property. In essence, each spouse owns the ENTIRE estate. Right of survivorship. No right of partition (cannot sell the property without your spouse).
One who purchases property for another so as to conceal the identity of the real purchaser.
Straw man
Encumberance
Anything that burdens or limits title to a property.
Specific liens
Liens applied to a specific piece of property and affect only that piece or property.
General liens
Liens against the person and all assets (real and personal property).
Mechanic’s lien
Filed when a workman does repair or construction work on your home. They are specific, invlountary and statutory.
Voluntary lien
Only refers to a mortgage lien. All others are involuntary.
To enforce a mechanic’s lien…(3 things)
The lien:
- must be recorded only for the amount charged for the work completed
- must be filed within a specific time period
- must be on improved property only (land can be improved)
Writ of Attachment/Writ of Execution
Attachment: court retains custody of the property until suit is decided; prohibits the property from being sold.
Execution: court order authorizing a sheriff or other officer of the court to sell the property to satisfy a judgment.
Priority of Liens in Foreclosure (4 things)
- Cost of the sale
- Property taxes, general (ad valorem taxes), special assessments
- First mortgage or deed of trust
- All other mortgages and other types of liens in ORDER OF PRIORITY
Easements
Give someone else rights of entry and exit to a property while you still retain ownership rights.
Appurtenant Easements
Rights that attach to the title of property and not the particular owner. Thus they ‘go with’ on any particular conveyance.
Dominant tenement/servient tenement
Dominant: the property using the easement
Servient: the property being used
Easement in gross
Benefits an individual. Not tied to the land. It is a personal right to use someones land. Does not transfer when property transfer and cannot transfer to another party.
Easement by impliation
An easement arising by implication from the acts of parties. Ex: person acquiring mineral rights also acquires rights of access (also called easement by necessity).
Easement by reservation
Creation of a new right, something that did not exist as an independent right before the conveyance.
Easement by necessity
Easement created by a court of law in cases of justice and if necessity dictates it; classic landlocked case. (also called easement by implication).
Easement by condemnation
Judicial proceeding to exercise power of eminent domain for easement.
Easement expressed
Exists when the parties state the terms orally or written for the easement
Easement by perscription
Created when someone uses the property of another repeatedly without interruption. Similar to adverse possession except easement is created rather than ownership.
Easement by dedication
A developer dedicates an easement for use by all area homeowners.
Requirements to create prescriptive easement (P.O.A.C.H.)
P.O.A.C.H. Possession Open Actual Continuous Hostile - without permission
How can an easement be terminated (6 ways)
- Purpose no longer exists
- Abandonment
- Merger of parties
- Destruction
- Quit claim deed
- Excessive use
Encroachment
unauthorized intrusion of a building or other improvement onto another person’s land…discovered by a spot survey or physical inspection
Licenses
Permission to use property for a specific purpose. Not assignable. Grantor has right to revoke at any time. Death terminates it.
Lis Pendens
means pending litigation; renders a property unmarketable
Riparian Rights
Along a NAVIGABLE river, (commercial traffic) one owns to the waters edge.
Along a NON-NAVIGABLE stream, one owns the land to the center of the stream (gov’t owns the water).
Littoral Rights
Along large NAVIGABLE lakes and oceans one owns to the average high water mark.
Doctrine of Prior Appropriation
A state’s gov’t can give permission to a non-adjacent land owner for crop irrigation. Rights are generally along the Colorado and Rio Grande rivers.
Accretion
increase of land created by deposits of soil by the natural action of the water
Erosion
decrease of land by the gradual wearing away that is caused by flowing water
Avulsion
sudden loss of land by an act of nature (ocean washes away water front in a typhoon)
Reliction
increase in land due to the receding of water from the shore
Alluvial plain or alluvion
a delta area where soil deposits from a river
Cooperative
A form of property ownership in which a corporation is established to hold title in property and to lease the property to shareholders in the corporation. Own stock.
Cooperative characteristics
Individuals have long term lease not fee simple ownership. Co-op receives all money from “tenants” and then pays the mortgage, taxes, insurance, etc. If too many stockholders don’t pay, entire property could be lost through foreclosure.
Condominium characteristics
Each owner owns fee simple title and pays their own taxes, etc. Common elements owned as tenants in common. Homeowner association dues paid as outlined in the condo bylaws. Association can levy special assessments.
Time Sharing
Buyer purchases ownership of a property for a specific period of time each year. Time share “ownership” is fee simple but time share usage is not.
Syndicate
An arrangement to raise equity capital for real estate purchases or for other types of investments.
General partnership
Business organization where two or more persons carry on a business as co-owners and share in the profits and losses
Limited partnership
Contains at least one general partner and remaining ‘silent’ partners. Silent partners have no say in the organization and share in the profits and compensate general partner for their efforts in those profits. Only liable up to their investment.
Habendum Clause
(Defines ownership taken by the grantee) In a deed, the words that clarify the purpose of the deed, with the phrase: TO HAVE AND TO HOLD
Five covenants of a general warranty deed
- Covenant of Seisin - guarantee I own it
- Covenant of Quiet Enjoyment - no one will interfere
- Covenant Against Encumbrances - promise there are no hidden liens
- Covenant of Further Assurance - if there is a defect, i promise to cure it
- Covenant of a Warranty Forever - these promises go back as far as there are public records
Special warranty deed
The grantor warrants against defects that have occurred after the grantor acquired title. (No warrantee forever-only for the time the grantor owns the property). Only first four covenants of general warranty deed covered.
Bargain and sale deed
“I own it…but that about it! I’m not going to make any promises”
Quitclaim deed
Only conveys what present interest a person may have in a particular property but makes no representations or warranties of title. Least amount of protection for the buyer.
Quiet the title lawsuit
A court action to remove a cloud on the title.
Parol evidence rule
States that oral agreements, promises and inducements made by the parties prior into entering into a written contract may not be used in court to dispute or contradict some written provision expressed in the contract.
Statute of frauds
Every state has some form of laws which require that certain contracts must be in writing in order to be enforceable in a court.
Principal of Laches
Legal doctrine used to bar a claim asserted after the passing of a statutory period of time.
Do deeds and easements have to be recorded to be valid?
No, but it is best practice to do so and clears up later confusion down the road.
Constructive notice (recording)
Is information that can be obtained from the public records at the courthouse.
Actual notice
Is that which is legally known, but not recorded. Ex: observing an unrecorded easement.
Notarized deeds
Doesn’t have to be recorded to be valid but if you want to record it, it must be notarized. Must go before a notary public and acknowledge that the signing of the deed was a voluntary act. Signature of the notary is called the ATTESTATION.
Alienation
Another word for transfer or convey
Intestate
dying without a will
Tacking on
two or more owners working together to claim adverse possession
Color of title
means that a title appears to be clear but it is not; always used with adverse possession
Testate
dying with a will
Requirements for a valid will…(6 things)
- legal age
- sound mind
- proper wording
- no undue influence
- witnesses
- signed by testator (maker of a will)
Devise
to give real estate through a will
Bequest
the transfer of personal property through a will
Codicil
amendment to a will
Holographic
a will in the testator’s own handwriting; not legal in some states
Nuncupative
a deathbed will, given orally by testator, written down by nurse, and witnessed by doctor
Abstract
brief history of all recorded instruments affecting title to a parcel of land
Chain of Title
the record of property ownership connecting the present owner to the original source of the title
Certificate of Title
A document given by the title examiner stating the quality of title the seller possesses.
Marketable Title
property is free and clear of problems and can be easily sold, thus giving market value to it.
Title insurance (standard policy)
protects your title from defect; only covers things that appear on public record
Title insurance (extended policy)
protects your title from defect; covers things that do not appear on public record such as encroachments
Mortgagors policy (title insurance)
belongs to owner of property, does not decline in value from original value
Mortgagee’s policy (title insurance)
belongs to lender of the property; declines in value as the loan decreases
Subrogation
The substitution of a third person in place of a creditor to whose rights the third person succeeds in relation to the debt. (Title company)
Torrens System
A legal system of land registration used to verify ownership and encumbrances without the necessity of an additional search of the public records
