Property Ownership 1 Flashcards
Definition: Property
Refers to the “rights of ownership” or “bundle of rights”:
- use
- possession
- enjoyment
- disposal
- exclusion
Real Property
Land at, above, and below the earth’s surace, and all things permanently attached to it, both natural and artificial, AND the “legal rights” associated with it.
Includes the rights to:
- the surface of the earth
- things permanently attached to the surface
- things beneath the surface
- the air above the surface
Definition: LAND
Land is defined as the surface of the earth, extending downward to the center of the earth and upward into space.
Land also includes permanent natural objects, such as water and trees.
Definition: REAL ESTATE
Land at, above, and below the earth’s surface, and all things permanently attached to it, both natural and artificial. Artificial attachments to land are referred to as improvements.
Definition: REAL PROPERTY
Land at, above, and below the earth’s surface, and all things permanently attached to it, both natural and artificial, AND the legal rights associated with it. Includes the rights to:
•The surface of the earth
• Things permanently attached to the surface
• Things beneath the surface
• The air above the surface
Personal Property refers to:
- Any property that can be moved, and
- Rights in real property that are held for less than a lifetime, (such as a lease).
Freehold Estate
- An “ownership” interest in land which is held for a lifetime or longer.
- It entitles the holder to both OWNERSHIP and POSSESSION.
Estate less than freehold
- A “rental” interest in land
- Held for less than a lifetime
- Entitles the holder to POSSESSION but not ownership
Private ownership is subject to what four rights of government?
- Eminent domain
- Taxation
- Police power
- Escheat
Eminent Domain
The right of the GOVERNMENT to take private property for public use.
Four main features:
- Land which is taken must be for public use only or for a use that is in the best interest of the public
- Government must first attempt to purchase the property from the owner
- If property cannot be purchased, it is then taken through a process called CONDEMNATION.
- The government must provide compensation to the owner for the property taken
Police Power
The right of the government to make reasonable rules for the use of land.
- provides the authority for such things as zoning restrictions, building codes, and safety and health codes
- NOTE: “police power” does not refer to the authority of the Police Department to enforce laws
Fixture
A special category of REAL PROPERTY that:
- initially was personal property, but has become REAL PROPERTY
e. g. a television antenna is personal property when it is bought in a store. After it is attached to a house however, it is a fixture and becomes real property
What are the three factors that determine whether an item is PERSONAL PROPERTY or REAL PROPERTY?
- Attachment
- Adaptation
- Agreement
Characteristics of a fixture: ATTACHMENT
If an item is permanently attached so that it becomes part of the REAL PROPERTY, it is considered a FIXTURE.
- e.g. extra kitchen cabinets installed in a kitchen (with nails or screws) would be considered a fixture
- A picture hanging on a nail in a wall would NOT be considered a fixture (it would be personal property)
Characteristics of a fixture: ADAPTATION
If an item is adapted to the real property (building), it is considered a fixture.
- e.g. if storm windows are a standard size that could be used on other standard sized windows, the probably would NOT be considered a fixture.
- Storm windows that are custom fit to the windows are considered a fixture since they are custom adapted to the house
Characteristics of a fixture: AGREEMENT
Whether or not an item is a fixture or personal property may also be settled by an agreement of both parties involved.
- e.g. a contract of sale of a home could include a clause that states whether the draperies would remain with the house as fixtures or be removed by the seller as personal property.
- In such cases as this where there is an agreement between the parties, this agreement take precedenc over either of the other two methods for distinguishing between fixture and personal property.
Trade Fixtures
Are fixtures that are used for trade or business purposes. Differ from regular fixtures in that:
Items attached or installed in REAL PROPERTY (that is leased by a business tenant) for BUSINESS PURPOSES, are considered PERSONAL PROPERTY as long as:
- The items are removed prior to the end of the lease, and
- the property is returned to its original condition when the items are removed
In what situations is important to distinguish whether an item is a REAL PROPERTY (a fixture) or PERSONAL PROPERTY and why?
- When a property is SOLD
- A fixture, (b/c it is REAL PROPERTY, is included as part of the property being sold
- Personal property is not sold as part of the property being sold and remains the property of the seller
- When TAXES are assessed on real property
- A fixture contributes to the values on which the tax is assessed, and can cause the tax to be higher
- Personal property is NOT taxed
- When property is APPRAISED:
- A fixure addes value to the property
- Personal property does NOT add value
- When ISURANCE is issued on real property:
- A fixture is usually covered
- Personal property may not be covered
How is ownership transferred when REAL PROPERTY is sold or otherwise conveyed?
Ownership of real property is transferred through the use of a document called a DEED.
How is ownership of personal property transferred when it is sold or otherwise conveyed?
Ownership of personal property that is sold or otherwise conveyed through the use of a document called a BILL OF SALE.
- NOTE: If a personal buys a house and personal property is being sold at the same time (e.g. furniture, tools) it must be transferred in a separate BILL OF SALE
Fructus Naturales
In general, they are growing plants that are considered to be part of the land.
- Plants that grow naturally without help from humans. For example:
- Trees
- Cultivated perennial plants
- Uncultivated vegetation of any kind
- Landscaping
- Considered to be REAL PROPERTY
- NOTE: if a tenant is leasing a hosue and plants a tree in the yeard, the tree becomes part of the land as REAL PROPERTY and remains with the house (unless tenant and landlord agree otherwise)
Fructus Industriales
- Growing plants that are cultivated annually by humans and depend on humans for their existend and growth. (e.g. corn, wheat, vegetables)
- Considered PERSONAL PROPERTY
- Also known as EMBLEMENTS
APPURTENANCE
A right, privilege, or improvement associated with land.
- “runs with the land” (i.e. permanently associated with the land and exists as long as the land exists)
Examples:
- Assigned parking space that oges with an individual unit in a condominium development
- Stock in a mutual water company, owned by landowners, that serves the land of those owners.
EASEMENT
A legal right to use or occupy the property of another in a limited way.
- Holder of an easement does not have any “ownership” in the property, or even “possession” of the property, only the “use” of the property for a specific purpose.
EASEMENT APPURTENANCE
An EASEMENT that burdens one parcel of land (servient estate) for the benefit of another parcel (dominant estate):
- the easment is the legal right of the owner of the dominant estate to use the property of the servient estate
- Typically granted by owner of the servient estate
- Remains PERMANENTLY ATTACHED to the dominant estate for use by whoever owns the dominant estate.
RIPARIAN RIGHTS
Category of water rights that occur when land adjoins a flowing body of water, such as a river or stream:
- Land owner has right to limited, non-exclusive use of the water out of the watercourse
- Does not “own” water, but may use it for “reasonable purposes”
Boundary of property carrying RIPARIAN RIGHTS depends on whether or not the watercourse is NAVIGABLE or not:
- If NAVIGABLE, landowner’s property ends at the LOW WATER MARK
- If UN-NAVIGABLE, property extends to the MIDDLE OF THE WATERCOURSE
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LITTORAL RIGHTS
Category of water rights that occur when land adjoins a STATIONARY BODY OF WATER, such as a lake or a sea:
- Landowner may use or enjoy the water touching his land provided he does NOT “alter the water’s position by artificial means”
CHATTEL
Another name for PERSONAL PROPERTY:
Two types of CHATTEL:
- CHATTEL PERSONAL
- CHATTEL REAL
CHATTEL PERSONAL
An item of PERSONAL property that is MOVEABLE and is not attached or associated with real property, e.g.:
- Cars
- Tools
- Furniture
- Boats
- Clothes
- Money
CHATTEL REAL
An item of PERSONAL property which is_**_NOT MOVEBALE or is “attached or associated with real property:
- May consist of TANGIBLE property, or:
- trade fixtures
- Emblements
- INTANGIBLE property, e.g.:
- Mortgages
- Leases
- Options
- Easements
FEE ESTATE
A type of FREEHOLD ESTATE that is:
- held for a lifetime or longer, and
- Is INHERITABLE (can be willed to heirs)
Two main types of FEE ESTATES:
- FEE SIMPLE ESTATE
-
QUALIFIED FEE ESTATE
- FEE SIMPLE DETERMINABLE
LIFE ESTATE
A type of FREEHOLD ESTATE that:
- is held for a LIFETIME (but not longer)
- Is NOT inheritable (cannot be will to heirs)
A LIFE ESTATE originates from a FEE ESTATE and returns to “fee status” upon termination.
FEE SIMPLE ESTATE
- FREEHOLD ESTATE
- FEE ESTATE
- FEE SIMPLE ESTATE
- FEE ESTATE
The highest interest in real estate recognized by law with the largest, most complete bundle of rights one can hold in property.
- (Most common typ of estate in real property)
Three primary characteristics of FEE SIMPLE ESTATES:
- least restricted form of ownership
- limited on by the government’s rights of (eminent domain, taxation, police power, and escheat)
- It is an INDEFEASIBLE ESTATE–cannot be defeated (overcome) by another individual against the owner’s will under any circumstances
QUALIFIED FEE ESTATE
- FREEHOLD ESTATE
- FEE ESTATE
- QUALIFIED FEE ESTATE
- FEE ESTATE
Three primary characteristics of a QUALIFIED FEE ESTATE:
- More restricted form of ownership than fee simple
- Restricted by limitations imposed by created of QFE, in addition to the governments rights
- It is DEFEASIBLE, can be defeated (overcome) if some condition is not met or maintained
Sometimes referred to as DEFEASIBLE FEE ESTATES.
FEE SIMPLE DETERMINABLE ESTATE
A type of FEE ESTATE in land that will terminate if a condition stated in the deed comes into being or is terminated:
- It is essentialy a FEE SIMPLE ESTATE qualified by a special limitation or the happening of a certain event
- Language used to describe lmitation includes the words “so long as” or “while” or “during”
Ex: Mrs. Smith donates a parcel of land to the city for “so long as” it is used as a public park.
- If the city uses the land as a park, it retains all the rights of ownership, subject to the four rights of government
- If the city uses it for something other than a park, ownership reverts back to Mrs. Smith
LIFE ESTATE PUR AUTRE VIE
A special type of LIFE ESTATE that is based on the lifetime of a third party.
- “pur autre vie” means “for another’s life”
It is the only type of LIFE ESTATE that is INHERITABLE
- It is INHERITABLE only if the the “life tenant” dies before the third party on whose life the estate is based.
LIFE ESTATE IN REVERSION
A VOLUNTARY LIFE ESTATE in which ownership of the FEE ESTATE reverts to the GRANTOR or his/her heirs upon the death of the “life tenant”.
LIFE ESTATE IN REMAINDER
A VOLUNTARY LIFE ESTATE in whic ownership of the FEE ESTATE reverts to a third party upon the death of the “life tenant”
- The “third party” named to receive the FEE ESTATE is called the REMAINDERMAN
STATUTORY LIFE ESTATES
LIFE ESTATES created not by voluntary action, but by law. Three types of STATUTORY LIFE ESTATES:
- DOWER- the wife’s right to receive, upon the death of her husband, a share of all property held or owned by the husband during the marriage
- CURTESY- the husband’s interest in property owned by his wife at the time of her death
- HOMESTEAD PROTECTION- provides a life estate to a widow or widower
LEASEHOLD ESTATE
Another name for an “estate less than freehold”:
- A “rental” interest in land
- Entitles holder to POSSESSION ONLY
- Held for less than a lifetime
Four categories of LEASEHOLD ESTATES:
- ESTATE FOR YEARS
- PERIODIC ESTATE
- ESTATE AT WILL
- TENANCY AT SUFFERANCE
ESTATE LESS THAN FREEHOLD:
Rights of the parties
- Tenant—LESSEE
- Owner—-LESSOR (or landlord)
Rights of the parties to a LEASHOLD ESTATE include:
- The LESSEE can occupy and use the property exclusively as long as he/she has a valid lease, abides by it, and pays the rent on time
- The LESSOR (or landlord), cannot occupy or use the property until the lease has expired
- During the “lease period”, the LESSOR is said to have a REVERSION INTEREST in the property.
- This is the right to regain possession of the property at the end of the lease period
ESTATE FOR YEARS
The first type of leasehold estate is called an ESTATE FOR YEARS:
- An estate for years is a lease which has a specific starting date and a specific ending date.
- In spite of its name, it does not necessarily have to be for more than one year. It can be of any duration, from less than one day to many years, as long as the duration is specified in the lease.
PERIODIC ESTATE
The second type of leasehold estate is called a PERIODIC ESTATE:
- It is also called an estate from year-to-year.
- It begins with an original lease period with a fixed duration.
- When the original lease period expires, it is automatically renewed for another period of the same duration, unless the lessor or lessee acts to terminate it.
- EXAMPLE: a month-to-month apartment lease.
ESTATE AT WILL
The third type of leasehold estate is called an ESTATE AT WILL.
- It is also called a tenancy at will.
- It may be terminated by either party at any time (“at will”).
- Otherwise, it is a normal landlord-tenant relationship.
NOTE: Some states place limitations on estates at will. Generally, these limitations tend to deal with notice to terminate, requiring minimum notice periods from both landlord and tenant.
TENANCY AT SUFFERANCE
The fourth, and last, type of leasehold estate is called a TENANCY AT SUFFERANCE.
- A tenancy at sufferance occurs when a tenant remains in possession beyond his/her legal tenancy without the consent of the landlord.
- The tenant in this situation is known as a holdover tenant or a tenant at sufferance.
- A tenant at sufferance may be evicted by the landlord if this is done in a timely manner.
NOTE: If a tenant has the landlord’s permission to remain in possession of leased property after the lease has terminated, this is a tenancy at will rather than a tenancy at sufferance.
EASEMENT IN GROSS
A type of EASEMENT that involves only 1 property, the SERVIENT ESTATE, there is no dominant estate.
- The holder of the EIG has the right to use part of the SERVIENT ESTATE for a specific purpose
For example:
- telephone lines, sewer lines, gas lines, power lines, and ditch easements for storm runoff
- These are all examples of COMMERCIAL EASEMENT
COMMERCIAL EASEMENTS
A type of EASEMENT IN GROSS that belong to the government or a business, and are NOT “attached” to a parcel of land (unlike an easement appurtenance), so there is NO DOMINANT ESTATE
- SERVIENT ESTATE is the land on which the business or government has a “right of use”
- All future owners of the servient estate are bound by the easement
- COMMERCIAL EASEMENTS are assignable (transferable)
- e.g. a telephone company may sell or transfer its easement for phonelines to another telephone company
PERSONAL EASEMENT IN GROSS
A type of EASEMENT IN GROSS similar to a COMMERCIAL EASEMENT except that:
- The holder is a person NOT a business or government
- It terminates with the death of the holder
- The holder CANNOT transfer the easement
e.g. John grants Bill an PEIG to cross his property to get to his favorite fishing spot on a lake
PARTY WALL EASEMENT
A PARTY WALL EASEMENT exists when a single wallwhich forms part of two building is located on a lot line.
- In this case, each owner owns the half of the wall on his/her property plus an easement in the other half of the wall on the adjacent property.
An example would be a wall between two adjacent units in a “fee simple townhouse” development.
LICENSE
A personal privilege to use another’s land in a limited manner.
- Can be revoked at any time
- Cannot be assigned or transferred
- Terminates upon the death of either party or the sale of the property by the person granting the license
e.g. A license to hunt on another’s property
Methods for creating EASEMENTS
POPCORN
-
Private Grant
- Written agreement between the landowner and the easement holder
- Most common method of creation
-
PRESCRIPTION
- the acquisition of an easement by continuous, hostile, uninterrupted posession for a period set by law (21 years)
-
CONDEMNATION
- the aquistion of an easement by the government under its power of eminent domain
-
RESERVATION
- occurs when a landowner reserves or retains for himself, the “the easement in a deed” which conveys title to another party
-
NECESSITY
- Prevents landowner from becoming “landlocked”
- Arises when an owner sells a parcel of land that has no access to a road, but owns adjacent property that does have road frontage
- NECESSITY requires the creation of an easement on that property to reach the property without frontage
- The seller CANNOT sell the property without granting the easement
METHODS FOR TERMINATING AN EASEMENT:
- RELEASE–The party holding the easement gives a written release to the owner of the servient estate, usually in the form of a “quitclaim deed”
- ABANDONMENT–Party holding the easement fails to use it for a sufficient period to raise the presumption of release
- VACATION–This is termination by court order when the need for the easement no longer exists
- EXPIRATION–Occurs if easement was created for a specified period of time
ENCROACHMENT
An unauthorized intrusion of a building, fixture, or other improvement on the land of another
.
An ENCROACHMENT can constitute either a:
- TRESSPASS- if it encroaches on the land
- NUISANCE- if it violates the neighbor’s airspace
