Unit 5: Interest in Real Estate Flashcards
Police Power
The government’s right to impose laws, statutes, and ordinances, including zoning ordinances and building codes, to protect the public health, safety and welfare.
How is the state’s authority passed on to municipalities and counties?
Through legislation called enabling acts
Eminent Domain
The right of a government or municipal quasi-public body to acquire property for public use through the legal process called condemnation.
Condemnation
A judicial or administrative proceeding to exercise the power of eminent domain, through which a government agency takes private property for public use and compensates the owner.
Escheat
The reversion of property to the state or county, as provided by state law, in cases where a dependent dies intestate without heirs capable of inheriting, or when the property is abandoned. In PA, both real and personal unclaimed property must be turned over to the state.
Estate in Land
The degree, quantity, nature and extent of interest that a person has in real property. To be an estate in land, an interest must allow possession, meaning the holding and enjoyment of the property either now or in the future and must be measured according to time. Historically, estates in land have been classified primarily by their length of time of possession.
Freehold Estates
An estate in land in which ownership is for an indeterminate length of time such as for a lifetime or forever, in contrast to a leasehold estate, and may be passed along to the owner’s heirs. A life estate is based on the lifetime of a person and terminates when that individual dies. Freehold estates may be created by deed, by will or by operation of law.
Leasehold Estates
Non freehold estate for which the length of time can be determined.
Fee Simple Estate (Fee Simple Absolute)
The maximum possible estate or right of ownership of real property, continuing forever. Upon the death of its owner, it passes to the owner’s heirs. It is limited only by public and private restrictions, such as zoning laws and restrictive covenants.
Defeasible Fee Estate (Fee Simple Defeasible Estate)
(Defeasible=open in principle to revision, valid objection, forfeiture, or annulment.) An estate in which the holder has a fee simple title that may be divested (to deprive someone of their rights) upon the occurrence or nonoccurence of a specified event. There are two categories of defeasible fee estates: fee simple on condition precedent (fee simple determinable) and fee simple on condition subsequent.
Fee Simple Determinable
A fee simple estate qualified by a special limitation; language used to describe limitation includes the words so long as, while or during. The former owner retains a possibility of reverter. If the limitation is violated, the former owner (or heirs or successors) can reacquire full ownership with no need to go to the court. The deed is automatically returned to the former owner.
Fee Simple Estate Subject to a Condition Subsequent
If an estate is no longer used for the purpose conveyed, it reverts to the original grantor by the right of reentry (but must go to court to assert this rights). The right of entry and possibility for reverter may never take effect. They do, it will only be at some time in the future. Therefore, each of these rights is considered a future interest.
Future Interest
A person’s present right to an interest in real property that will not result in possession or enjoyment until sometime in the future, such as a reversion or right of reentry.
Life Estate
An interest in real or personal property that is limited in duration to the lifetime of its owner or some other designated person or persons. Unlike other freehold estates, a life estate is not inheritable. It passes to future owners according to the provision of the life estate.
Conventional Life Estate
created by the intentional act of the owner. It may be established either by deed at the time the ownership is transferred during the owner’s life or by a provision of the owner’s will after death. The estate is conveyed to an individual known as a life tenant. When the life tenant’s rights cease, ownership passes as a fee simple estate to another designated individual or returns to the previous owner or heirs. The right to the fee simple estate is known as inchoate (just begun and so not fully formed or developed; rudimentary.), meaning that the right is incomplete or the right exists but is not fully exercised until sometime in the future.
Life Estate Pur Autre Vie
French for “for the life of another”. A life estate pur autre vie is a life estate that is measured by the life of a person other than the grantee. 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.
Reversionary Interest in a Life Estate
The remnant of an estate that the grantor holds after granting a life estate to another person.
Remainder Interest in a Life Estate
The remnant of an estate that is conveyed to take effect and be enjoyed after the termination of a prior estate, such as when an owner conveys a life estate to one party and the remainder to another.
Legal Life Estate (Statutory Life Estate)
is not created voluntarily by an owner. Rather, it is a form of life estate established by state law. It become effective automatically when certain events occur. Dower, curtesy and homestead are legal life estate currently used in some state.
Dower and Curtesy
provide the non owning spouse with a means of support after the death of the owning spouse. Dower is the life estate that a wife has in the real estate of her deceased husband. Curtesy is an identical interest that a husband has in the real estate of his deceased wife. In some states, dower and curtesy are used interchangeably.
Uniform Probate Code (UPC)
Most states have abolished the common-law concepts of dower and curtesy in favor of the UPC. The UPC gives the surviving spouse a right to an elective share on the death of the other spouse. Community property states do not sue dower and curtesy.
The Pennsylvania Probate, Estates, and Fiduciaries Code
has been adopted consistent with the UPC and creates a legal life estate for the surviving spouse of a deceased owner. The surviving spouse is permitted one-third of the value of the deceases spouse’s estate at the time of death. According to the law, the surviving spouse has the option of taking the specified percentage of the estate in lieu of the amount that is directed by the deceased’s will. If the spouse dies intestate (without a will), then the statue directs the percentage distribution of assets to the the surviving spouse and other specified heirs.
Encumbrance
Anything - such as a mortgage, a tax, a judgment lien, an easement, a restriction on the use of the land, or an outstanding dower right - that may diminish the value of a property. May be divided into two general classifications: liens and encumbrances.
Liens
A right given by law to certain creditors to have their debts paid out of the property of a defaulting debtor, usually by means of a court sale.
Encumbrances
restrictions, easement and encroachments that affect the physical condition of the property
Deed Restrictions
A clause in a deed limiting the future use of the property. Deed restrictions may impose a vast variety of limitations and condition - for example, they may 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.
Covenants, Conditions & Restrictions (CC&Rs)
Private agreements that affect land use. They may be enforced by an owner of real estate and included in the seller’s deed to the buyer. Typically, however, restrictive covenants are imposed by a developer or subdivider to maintain specific standards in subdivision. Such restrictive covenants are listed in the original development plans for the subdivision filed in the public record.
Easements
A right to use the land of another for a specific purpose, such as for a right-of-way or utilities; an incorporeal (having no physical existence) interest in land.
Appurtenant (belonging; pertinent) Easement
An easement that is annexed to the ownership of one parcel and allows the owner the use of the neighbor’s land. The parcel over which the easement runs is known as the serviant tenement; the neighboring parcel that benefits is known as the dominant tenement.
Party Wall
A wall that is located on or at a boundary line between two adjoining parcels of land and is used or is intended to be used by the owners of both properties.
Easement in Gross
An easement that is not created for the benefit of any land owned by the owner of the easement but that attaches personally to an easement owner. For example, a right granted by a woman to a man to use a portion of her property for the rest of his life would be an easement in gross.
An individual or company interest in right to use someone else’s land. This easement benefits a person or an entity rather than the land, as is the case with an appurtenant easement. A railroad’s right-of-way is an easement in gross, as are the rights-of-way of utility easements (such as a pipeline or high-tension power line). Commercial easements in gross may be assigned, conveyed and inherited. Personal easements in gross are usually not assignable and terminate on the death of the easement owner.
Easement by Necessity
An easement allowed by law as necessary for the full enjoyment of a parcel of real estate; for example, a right of ingress (enter) and egress (exit) over a grantor’s land.
Easement by Prescription (Prescriptive Easement)
An easement acquired by continuous, open and hostile use of the property for the period of time prescribed by state law. 21 years in TA (tacking included)
Tacking
A concept that provides that successive period of continuos occupation by different parties (easement of prescription/prescriptive easement) may be combined to reach the total required number of years to establish a claim for a prescriptive easement. 21 years in PA.
Easement by Condemnation
An easement created by the government or governmental agency that has exercised its right under eminent domain.
Termination by Merger
Termination of an easement when the owner of either the dominant or servient tenement becomes the owner of both and the properties are merged under one legal description.
License
A privilege or right granted to a person by a state to operate as a real estate broker or salesperson.
The revocable permission for a temporary use of land - a personal right that cannot be sold. A license is usually created orally, is of temporary nature and can be revoked.
Enchroachment
A building or some portion of it - a wall or a fence, for instance - that extends beyond the land of the owner and illegally intrudes on some land of an adjoining owner or a street or alley.
Which is more accurate and reliable to identify and encroachment: a physical inspection or a spot survey?
A spot survey is more accurate and reliable than a simple physical inspection. If a building encroaches on adjoining land, the neighbor may be able to either recover damages or secure removal of the portion of the building that encroaches. Encroachments that exceed a state’s prescriptive period, however, may give rise to easements by prescription.
Riparian (of, relating to, or situated on the banks of a river) Rights
An owner’s rights in land that borders on or includes a stream, river or lake. These rights include access to and use of the water. As a rule, the only limitation on the owner’s use is that such a use cannot interrupt of alter the flow of the water or contaminate it in any way. In addition, an owner of land that borders a non-navigable waterway (a body of water unsuitable for commercial boat traffic) owns th and under the water to the exact center of the waterway. Land adjoining commercially navigable rivers, on the other hand, is usually owned to the water’s edge, with the state holding title to the submerged land.
Littoral (a region lying along a shore) Rights
Landowners’ claim to use water in large navigable lakes and oceans adjacent to their property. The ownership rights to land bordering these bodies of water up to the high-water mark. In some states, riparian and littoral rights are appurtenant (attached) to the land and cannot be retained when the property is sold. The right to use the water belongs to whoever own the bordering land and the former owner cannot retain that right after the land is sold.
Accretion
The increase or addition of land by the deposit of sand or soil washed up naturally from a river, lake or sea.
Erosion
The gradual wearing away of land by water, wind and general weather conditions; the diminishing of property caused by the elements.
Avulsion
The sudden removal of soil by an act of natural. It is an event that causes the loss of land much less subtly than erosion. An earthquake or a mudslide, for instance, can cause an individual’s landholding to become much smaller or much larger very quickly. A riparian owner generally does not lose title to land lost by avulsion. Boundary lines stay the same, no matter how much soil is lost. In contrast, a riparian owner loses title to any land washed away by erosion.
Doctrine of Prior Appropriation
A governing principle of water rights law whereby the right to use water is controlled by the state rather than the landowner adjacent to the water (in states where water is scarce). To secure water rights in prior appropriation states, a landowner must demonstrate to a state agency that the owner’s plans are for beneficial use, such as crop irrigation. If the state’s requirements are met, the landowner receives a permit to use a specified amount of water for the limited purpose of the beneficial use. Although statutes governing prior appropriation vary from state to state, the priority of the water right is usually determined by the oldest recorded permit date. Under some state laws, once granted, water right attach to the land of the permit holder. The permit hold may sell such a water right to another party. Issuance of a water permit does not grant access to the water source. All access rights-of-way over the land of another (easements) must be obtained from the property owner.
List two Estates of Inheritance
- Fee Simple
2. Defeasible Fee Estates
List the two types of Life Estates
- Conventional Life Estates (created by acts of the parties)
- Legal Life Estates (created by law)
List 5 types of Encumbrances
- Liens
- Deed Restrictions
- Easements
- Licenses
- Encroachments
Are Easements interests in real estate or estates in land?
Easements are interests in real estate.
List 8 ways an Easement can be created
- Agreement
- Grant
- Reservation in a deed
- Longtime Usage (a prescriptive easement)
- Necessity
- Implication
- Condemnation
- Party-wall agreement
