Unit 3/Class 3 Flashcards
A freehold estate lasts for….
An indeterminable length of time
What is the highest estate recognized by law
Fee simple
Fee simple defeasible is an estate that is qualified because….
it is subject to the occurrence or non-occurrence of a specified event
A life estate is based on the lifetime of who?
The life tenant or someone else (pur autre vie)
What is a claim, charge or liability that attaches to real estate?
Encumbrance
What is a lien?
A charge against property that provides security for a debt of the property owner
What are covenants, conditions and restrictions (CC&R)?
private limitations ont he use of land
What is an easement?
A right to use the land of another
Is an easement always written?
No, but more often than not there is a written agreement between the parties
What is an easement appurtenant
an easement that “runs with the land” when title is transferred
Dominant tenement vs. servient tenement
Dominant tenement - benefits from the easement
Servient tenement - “serving” the dominant
Easement in gross
Easement by necessity
Easement by prescription
Easement in gross: an individual/company is interested in or right to use another’s land
Easement by necessity - arises when the land has no access to a street or public way
Easement by prescription - acquired when a claimant has used another land for a statutory period. The use must be continuous, non-exclusive, visible, open and notorious.
When is an easement terminated
- when the need for it no longer exists
- when the owner of either the dominant or servient tenement becomes the owner of both
- when the owner of a dominant tenement releases the right of easement to the owner of the servient tenement
- if the easement is abandoned
- nonuse of a prescriptive easement.
What is a license?
A personal privilege to enter the land of another for a specific purpose
Nontransferrable
When does an encroachment occur?
When all or part of a structure illegally intrudes on the land of another or beyond legal building lines
What does a lis pendens do?
gives notice of litigation in progress that may affect title to property
Government powers can be recalled using what acronym and what are the terms?
PETE
Police power
Eminent Domain
Taxation
Escheat
What is escheat
When the state takes control of property after the owner dies leaving no will or no lawful heirs
What is police power?
the state’s authority, passed down to counties and municipalities through enabling acts, to legislate to preserve order, protect the public health and safety, and promote the general welfare of citizens.
Eminent Domain is the government’s RIGHT to acquire privately owned real esate for a public or economically beneficial use through ________
Condemnation
When a taking of property occurs, the 5th Amendment requires that the owner be given what?
Just compensation
A property owner may claim compensation under ___________ if an adjacent public land use diminishes the value of the owner’s property but the property has not been condemned for public use.
Inverse condemnation
The right of a government body to take ownership of real estate for public use is called….
Eminent Domain
One who has ownership rights of real estate that could continue forever and which provide that no other person can claim to be the owner of or have any ownership control over the property has….
Fee Simple Absolute
The owner of fee simple title to a vacant lot adjacent to a hospital decided to make a gift of the lot to the hospital. The deed conveyed ownership of the lot to the hospital “so long as it is used for hospital purposes.” After completion of the gift, the hospital will own:
A fee simple determinable (because there are conditions attached)
Your neighbors use your driveway to reach the garage on their property. Your attorney explains that the neighbor’s real estate includes an easement appurtenant giving them the right to do this. Your property is…
The servient tenement
A license is an example of…
A personal privilege
An easement appurtenant…
runs with the land and transfers with the deed
A property owner who has the legal right to use a neighbor’s land holds an….
easement - a right of use and passage
An owner conveys ownership of a residence to a church but reserves a life estate in the residence. The future interest held by the church is…
a remainder
the new owner of a property installs a fence on the property. By mistake, the fence extends on foot over the lot line onto a neighbor’s property. The fence is an example of…
an encroachment
A homeowner may be allowed certain protection from judgments of creditors as a result of the state’s…
homestead rights
A person has permission from a property owner to hike on the owner’s proeprty during the autumn months. this hiker has….
a license
A homestead is a legal life estate in real estate that is….
occupied as the family home
Because a homeowner failed to pay the real estate taxes on time, the taxing authority imposed a claim against the homeowner’s property. This claim is known as…
a lien
(unpaid real estate taxes are a lien against a property because they are a charge against a property that provides security for a debt or an obligation of a property owner)
The type of easement that is a right-of-way for a utility company’s power lines is
An easement in gross
The process by which the government takes control of a property after the owner dies without a will or lawful heirs is…
escheat
A freehold estate can be best described as….
an estate that exists for an undeterminable length of time
Joe received a life estate upon the death of his aunt mary. Joe wants to sell the property. Can he do this?
yes, so long as the buyer knows that their interest will terminate upon the death of Joe
An individual who has received the RIGHT to use the property of aother but does not own the property has most likely received an…
easement
The process of taking property for public use is called…
Condemnation
A buyer received a deed that conveyed ownership to her on the condition that the land was used for residential purposes. The buyer has received:
A defeasible fee
Does removing minerals cause waste?
Yes, because it alters the value of the land
Bo has purchased a property that is landlocked. If Bo obtains an easement from Kristen it can be said that
kristen is the servient estate
Bo is the dominant estate
A husband who owned a property before his marriage has decided to sell that property. If the couple lives in a state that recognizes dower and curtsy rights, what needs to be done to sell the property?
The wife must sign the deed to release her marital rights
What are some facts about encumbrances?
May be charged against a property
may lessen the value of the property
may be an interest held by someone other than the owner
(NOTE: an encumbrance does NOT prevent conveyance of title)
What are examples of police power?
zoning, building code, health and environmental codes, the right to tax and control rent
What is escheat?
The right that government has to take abandoned property i.e. if owner dies with no will and no heirs.
Government, railroads, utility companies, school boards, and housing authorities all have the right to take land when it is needed for the good of the public. What is this called, and what type of compensation is required?
Eminent Domain
Just compensation must be paid to the owner
*The land may be taken as a fee estate, easement or leasehold. However, the law typically does not allow fee interests to be taken if an easement will do
There are three actions within eminent domain - condemnation, Severance damages, and inverse condemnation. Explain each
Condemnation if the land owner does not give up his land voluntarily, the legal process of condemnation will be used to take the land. Any liens, mortgages or encumbrances are extinguished when the land is taken. Condemnation is the PROCESS. Eminent domain is the RIGHT.
Severance Damages - if a partial taking of the land occurs and reduces the value or use of the remaining portion of the property, the owner may seek severance damages.
Inverse Condemnation - this is action taken by the property owner who was not paid for a taking of land or who lost value to his property because of a taking that occurred next to or near his property.
Sometimes referred to as an ad valorem tax which means taxation according to value, Taxation is….
a charge against property to raise funds to cover the cost of government services.
Failure to pay taxes can result in a sale of property for the non-payment of taxes.
Estate in the land means what?
refers to the legal rights and interest one has in the land
What are the three types of interest in land?
Estate
mortgage liens
easements
To be an estate, the interest must be one that gives the owner of the estate…
possession rights
Possession refers to an owner’s or tenant’s right to….
What types of interests in land do not give possession rights?
occupy property
therefore, ownership and leasing rights give possession rights to occupants. Both a landlord and a tenant would have an estate interest in the property, because the landlord OWNS the property but the tenant has POSSESSION of the property.
Easements or water rights do not give possession.
Examples of possessory vs. non-possessory interests
Possessory: ownership and or leasing
Non-possessory: water rights or easements
what is a freehold? what is an example?
A freehold is an estate for an uncertain duration
Example: fee and life estates
What is a non-freehold estate?
Examples?
A non-freehold estate is one that has a definite time period.
Example: lease
What are the four types of non-freehold/lease hold estates?
- Estate for years (most commonly used. Definite start and end date)
- Estate from year to year (month to month, or period to period)
- Estate at will (youre at the will of the landlord. if he says “go”, you have to leave)
- Estate at sufferance (this is where someone had legal possession at some point, but no longer does and is staying anyways. Think of people who have to be evicted. they no longer have possession and are staying anyways, so they get kicked out)
What is fee simple absolute ownership?
The most complete ownership in land
it is an indefeasible fee or an estate without conditions
“as good as it gets”
*All other estates can be created from a fee simple absolute estate
On the other side of fee simple estate, you have a defeasible fee estate. What is that
A defeasible fee is an estate with conditions.
The two types are fee simple determinable and fee simple subject to a condition.
There are two types of defeasible fee estates. Explain each:
- Fee Simple Determinable
- Fee Simple subject to a conditions.
Fee simple determinable - estate that contains a limitation that, if broken, allows the estate to automatically revert back to the grantor or his heirs if the owner does not comply with the limitation. The buyer is taking title to the property with a specific condition tied to it. if broken, title goes back to original owner automatically.
Fee Simple subject to a condition - it is also a condition state but differs from Fee simple determinable in the sense that that the grantor/heirs must take legal steps to regain the property. the grantor MAY take the title back.
The future interest of the grantor or his heirs is called right of re-entry or power of termination.
Conditions placed on property are similar to appurtenances in the sense that….
they “run with the land”. This means all future owners must comply with the condition
Who can terminate deed conditions?
The grantor, a legal procedure or abandonment
What is a fee tail estate?
An estate that could go on forever because it is created to keep the property in the family.
Conventional life estates are different from fee estates because conventional life estates are NOT inheritable. Why is this
Because the owner of the life estate, called the life tenant, owns the property for his or her life. The estate terminates when the owner dies.
This is a FREEHOLD estate because there is no specific/clear end time
What are the two kinds of freehold estates
Fee simple (within that is fee simple absolute and fee simple defeasible)
Life estate (within that i conventional life estate and legal life estate)
The holder of a life estate is called a ________. what are they entitled to?
The holder of a life estate is called a life tenant. A life tenant is entitled to the rights of ownership and can benefit from both possession and ordinary use.
The life tenant’s ownership may be sold, mortgaged or leased, but it is always subject to the finite limitation of the life estate.
What is life estate pur autre vie?
Based on the lifetime of a person other than the life tenant.
A life estate pur autre vie is often created for people who are physically or mentally incapacitated in the hope of providing incentive for someone to care for them.
When a life estate ends, it is replaced with a _________ which has two different avenues…
fee simple estate. The future owner of the fee simple estate may be designated in one of two ways:
- Remainder interest: the creator of the life estate may name a remainderman as the person whom the property will pass when the life estate ends
- Reversionary interest - ownership returns to the original owner up on the end of the life estate.
A tenant who leases a property is said to have what kind of interest?
Leasehold interest
A ________ is defined as any property that is owned and occupied as a family home. What kind of estate is it?
Homestead
Its a legal life estate in real estate occupied as the family home.
What is an encumbrance?
Any claim, lien or charge against a property
- anything that burdens title or diminishes land use
examples: liens, easements, encroachments, restriction
Lien
A charge against a property that provides security for a debt
If the obligation is not repaid, the lienholder is entitled to have the debt satisfied from the proceeds of a court-ordered or forced sale of the debtor’s property
Possible liens include: real estate taxes, mortgages, mechanics liens
Private restrictions that affect the use of real estate are often found where?
In the deed that conveys title to the property
What is an easement?
The right to use the land of another for a particular purpose
There are two types of easements : appurtenant easement and gross easement. what are the differences?
Appurtenant easement - attached to the land and requires two tracks of land. i.e a shared driveway
Gross easement - only requires on track of land and does not attach to the land. it is a personal right to use the land of another. i.e. utility lines burried and KU coming on the property, billboard, water tower…
How can easements be termianted?
merger abandonment release purpose ceases to exist eminent domain
Encroachment
An intrusion or invasion of an improvement or other real property upon the land of another
when a fence, building, driveway, etc. illegally extends beyond teh boundaries of the land of its owner or legal building lines, an encroachment occurs.
Encroachment fact - improvements that extend across a boundary are considered a ______ while trees are a _______.
trespass
nuisance
What is a profit a’ prendre
A profit is a right to take soil, timber, fruit or minerals from the land. A profit is a real property interest and must be in writing. the easements created when profits are granted for the removal of soil, timber, fruits or minerals are called ancillary easements.
A freehold estate can be best described as
an estate that exists for an undeterminable length of time
