Unit #5 - Encumbrances Vocab Flashcards
Abstract of Judgment
Document stipulating the outcome of a legal action, which can be filed in any country where the judgment debtor has property.
Attachment
At the plaintiff’s request, even before the outcome of the case is decided, the court may order that title to real or personal property of the defendant be “seized” and held by the court as security for satisfaction of the potential award to the plaintiff. Restricted to cases primarily involving business, trade or profession.
Bankruptcy
Bankruptcy is a legal process through which people or other entities who cannot repay debts to creditors may seek relief from some or all of their debts. In most jurisdictions, bankruptcy is imposed by a court order, often initiated by the debtor.
CC&R’s
Also referred to as “restrictions”. All serve to control land use. Commonly found in the declaration of Restrictions filed by a developer when a subdivision plan is recorded. The deed to each buyer of a subdivision lot will included CC&R’s
Cloud on the title
This means that there is some reason why the owner’s interest is less than perfect. This means the property may not be marketable or it may be marketable only at a reduced price because of questionable title.
Condition
Generally is enforceable by the person imposing the condition. In a sale transaction, that would be the seller.
Covenant
An agreement/promise.
Deed Restriction
A prohibition against a property use that is imposed in the grantee’s deed. HOA frequently make use of deed restrictions to ensure that the uniform appearance of the homes in a subdivision is maintained.
Defendant
an individual, company, or institution sued or accused in a court of law.
Dominant Tenement
An easement allows the owner of one parcel to travel over an adjoining parcel. The land benefited by the easment is the dominant tenement. EX: a driveway that drives over another persons property to get to yours.
Easement
An easement allows the owner of one parcel to travel over an adjoining parcel.
Easement by appurtenant
Sometimes called an “easement appurtenant.” An appurtenant easement benefits the holder in using a specified parcel of land, the benefited property.
Easement by condemnation
Private property for public use through the
government’s power of an eminent domain.
A declaration that a structure is unfit for occupancy
and must be closed or demolished.
Easement by implication of law
In some cases the law will imply an easement to travel over someone else’s land. If a subdivision plat map shows streets and easement to use those streets is an Easement by implication of law.
Easement by necessity
If someone sells a parcel of land that is surrounded by land owned by someone else there will be an easement that allows driveway access to their home across someone’s property.
Easement by prescription
Acquired in much the same way that ownership of land is acquired by adverse possession. The major difference is that to acquire an easement property taxes need not be paid.
Easement in gross
gives a person the right to use the land of another person. He or she can use the land for as long as the other party owns the property or the holder of the easement is alive.
Encroachment
Occurs when part of an improvement extends over the boundary line between properties without permission. Fences and buildings ae typical forms of encroachment.
Encumbrance
Anything that has an effect on an owner’s
- fee simple title to real estate or
- use of the property
Equity
the market value of the home less any liens and encumbrances. If the homeowner’s euity is greater than the amount of the exemption, the home could be sold at the court’s direction to satisfy any unpaid creditors.
Express Grant
The granting of permission, by the owner of the land where the easement would lie. This grantor must be the sole and actual owner of that real property in order to grant the easement with rightful use of it.
A typical example an easement granted by express grant, would be an individual who requests access to build a walkway on his neighbor’s property. Perhaps the property of a neighbor A is situated somewhat in back of, and to the side of neighbor B.
Express Reservation
An express easement created by express reservation is an easement that is created when the owner of one large piece of land splits the land into two or more pieces and places an easement on one or more of those pieces at the time that the land is split apart.
General Lien
Applies to all property of the debtor. a right of a creditor to retain property, not merely for charges relating to it specifically, but for debts due on a general account.
Homestead
State homestead laws allow homeowners to register part of their property as a homestead, which can offer property owners certain legal protections. Some state homestead laws can also mandate a maximum amount of property that can be claimed as well as the type of property.
Homestead Exemption
Protects from 75,000 to 175,000 of the homeowner’s equity in the dwelling from unsecured creditors. Filing a declaration of Homestead offers the homeowner the greatest from the exemption.
Injunction
An injunction is a writ or order requiring a person to refrain from a particular act. It may be granted by the court in which the action is brought, or by a judge thereof; and when granted by a judge, it may be enforced as an order of the court.
Involuntary Lien
A lien that is imposed without the agreement of the property owner. Made possible my laws that prescribe ways in which unpaid debts can be used by creditors or gov agencies.
Judgment
The party who wins a legal action may receive a judgment from the court that includes the award of money damages against the losing party.
License
A permit from an authority to own or use something, do a particular thing, or carry on a trade
Lien
An encumbrance (a mortgage or other charge on property or assets) that makes property security for the payment of a debt or discharge of an obligation.
Lien Release
Should be filed with the county recorder to prevent a cloud on the owner’s title.
Lien Release Bond
An “alternate security” for the lien liability. The Code allows the property owner, the contractor or design professional holding the lien or any party with an interest in the property, such as a mortgage bank or creditor that relies on the property as collateral to secure its extension of credit.
Marketable Title
A property owner has a marketable title if the property is readily salable to a prudent purchaser.
Mechanic’s Lien
Used to help secure payment for any labor, service, equipment, or materials used in the construction of improvements to real estate. An important protection rooted in the California Constitution.
This is how a mechanic ensures they are paid. The lien will go against the amount owed on the home creating a cloud on the title.
Notice of Cessation
or “NOC” means a form used to notify the director, within a specified time, that a discharge or activity, or phase of discharge or activity has ceased.
Notice of Completion
May be filed by the owner with the county recorder within 10 days after work is completed.
Notice of Nonresponsibility
This is how the owner of real estate can create a paper trail of unauthorized work that has begun on their property. Owners can post a notice of non-responsibility in a conspicuous place on the land and record a copy of the notice with the county recorder. Must be posted within 10 days of learning of the construction, repair or other work.
Payment Bond
How to guard against possible claims is to require that the contractor obtain a payment bond. The bonding company compensates the owner if the contractor defaults in the performance of contract obligations, such as the payments of workers and suppliers.
Plaintiff
The person who files the lawsuit against a defendant.
Power of Eminent Domain
Eminent domain refers to the power of the government to take private property and convert it into public use.
Preliminary Notice
For a mechanic’s lien is to be filed, preliminary notice may be required to be given to the owner, the construction manager and the construction lender. Establish the starting and completion time of the work or materials supple.
Priority of Claims
is the order in which creditors are paid. The priority of claims against a declared homestead has been established by law. Proceeds of a forced sale go to:
- Holders of liens and encumbrances on the homestead.
- Homeowner in the amount of the homestead exemption only
- The levying officer for reimbursement of costs for which an advance has not been made.
- Judgment creditors
- The homeowner.
Restraint on Alienation
Any condition that prohibits a property owner from transferring title to the property. EX: Oliver Oldtimer sells his ranch to his son with the condition that title may never be transferred to anyone outside of the family.
Restriction
A limitation on the use of land, The most common private restrictions are the covenants, conditions and restrictions found in the deed.
Satisfaction
(payoff) A satisfaction of mortgage is a legal document indicating that a mortgage loan has been paid in full and all the adjacent obligations have been fulfilled. As a result, the lien attached to the property was removed.
Servient Tenement
Property burdened by an easement. In other words, the owner of the servient tenement must allow someone who has an easement (the dominant tenement) to use the property.
Six-month Rule
You must wait six months after your most recent closing (usually 180 days) to refinance if you’re taking cash-out to pay off creditors.
Specific Lien
Applies only to identified property, such as a parcel of real estate.
Starting Time
The date a construction project begins, this determines when or if a preliminary notice is given.
Tax Lien
An involuntary lien that arises from a taxpayers obligation to pay
- real property taxes
- state income and estate taxes
- federal income, gift and estate taxes
Trustee in Bankruptcy
Holds title to the debtors assets. The trustee is responsible for the sale of the assets as necessary and issues a trustee’s deed to the buyer of the real property.
Trustee’s Deed
At the foreclosure sale, the trustee auctions the real estate and awards it to the highest qualified bidder. When the trustee receives the funds from the bidder, the trustee transfers title to the bidder by using a deed commonly referred to as a trustee’s deed upon sale.
Voluntary Lien
One agreed to by the property owner. A mortgage or deed of trust that an owner of real estate gives to obtain financing.
Writ of Execution
Any nonexempt property may be sold to pay a judgment debt. Directs the sheriff or other officer to sell the property.
Zoning
Act of city or county government. Zoning laws or ordinances specify the possible uses of property in a defined area. Subject of many legal battles involving the extent to which public interests can take priority over private ones.
