Glossary of Real Estate Law (1-3)
- is there any written proof of a prescriptive or implied easement
- real estate law (4-6)
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- The law of real property in general is governed by the state in which the real property is located.
- A fixture is classified as personal property.
- An estate for years is the highest and best kind of estate in real property an owner can own.
- A life estate may be for the life of a person other than the owner.
- A life estate is transferable during the lifetime of the owner.
- A promise to make a gift is not revocable.
- Inheritance is the transfer of ownership of real property when a person dies with a will.
- An owner of real property usually owns all the minerals beneath the surface of the land.
- An heir must always be a relative of the decedent.
- An owner cannot separate ownership of the minerals from ownership of the surface of the land.
- What are the two categories into which all property is classified?
- Real Property.
- What are the rights that go with ownership of real property?
- Possession of the property.
Use of the property.
Power of disposition.
- What are the physical components of real property?
- Name the various ways a person can become an owner of real property.
Contract and sale.
- What is the concept of waste and how is it applicable to a life estate?
- Waste is the failure to exercise ordinary care and prudence for the preservation or protection of property that results in a permanent injury to the value of the property. The importance of waste in a life estate is that if the life estate owner commits waste, the life estate will terminate, even though the measuring life is still alive.
- Aaron transfers to Bob a life estate in a house with remainder to Carol, and Carol dies before Bob. On Bob's death, will the property go to Aaron, or to Carol's heirs?
- The property on Bob's death would go to Carol's heirs.
- What is required to become an owner by adverse possession?
- Rules vary by state. Property must be possessed for 7 to 20 years without the consent or permission of the true owner. Possession must be continuous, public, peaceful, exclusive, and uninterrupted.
- What test does a court use to determine if an item is a fixture?
- Manner of attachment.
Character of the item and its adaption.
Intention of the parties.
- What is a "reversion" interest in real property?
- A "reversion" interest is the future property interest held by the fee simple grantor after a life estate has been granted.
- How is an estate for years different from a fee simple absolute estate?
- Fee simple absolute is ownership forever.
An estate for years is ownership for a definate period of time.
- Briefly list the categories of water sources.
Water that accumulates in a river stream, or natural lake.
- Briefly describe the riparian rights water doctrine.
- An owner of riparian land has the right to use the water equally with other owners of riparian lands.
- Briefly describe the appropriation water doctrine.
- The right to use the water goes to the landowner who uses the water first.
- The elements of a valid appropriation are:
- Intent to apply water to a beneficial use.
Actual diversion of water from a natural source.
Application of the water to a beneficial use within a reasonable time.
- What is the difference between inheritance and devise?
- Both are methods to transfer property. Inheritance - person dies without a will.
Devise - person dies with a will.
- A joint tenancy with the right of survivorship can be created by a deed or a will.
- A survivorship feature of a joint tenancy with right of survivorship can never be terminated by the parties.
- It is mandatory that tenants in common have equal shares.
- An owner of a tenancy in common can sell or mortgage his or her interest in the common property without the other common owner's consent.
- The debts of a single common owner will bind his or her interest in the property but will not affect the common property.
- Tenants by entirety must always be married to each other.
- The division of common property into separate ownerships is called contribution.
- A common owner cannot waive his or her right to partition.
- Property owned by a spouse before marriange in a community property state is separate property.
- Property acquired by a spouse by gift in a community property state is separate property.
- What are the four unities required for a joint tenacy with right of survivorship?
- How is a tenancy in common different from a joint tenancy with right of survivorship?
- No special language needed for creation of tenancy in common.
Ownership of a tenancy in common does not have to be equal shares.
No right of survivorship in the tenancy in common.
- What is the difference between a tenancy by the entirety and community property?
- A tenancy in entirety is created by grant or conveyance.
Community property is created by operation of law.
- What is dower?
- Interest in the real property of the husband that the law gives to the widow.
- What is the right of contribution, and why is it imprtant to a co-owner of real property?
- It is method for an owner to enforce that all common owners pay their fair share of obligations and expenses.
- What are the advantages of a prenuptial agreement and a community/separate property agreement?
- They determine the ownership of various properties and resolve disputes in the ownership of property in the event of divorce or sale.
- Aaron conveys by deed a parcel of real property to Juan, Jane, and Susan as joint tenants with right of survivorship. Juan during the lifetime of all the joint owners, transfers his interest in the property to Carol. After Juan's transfer to Carol, Jane
- The owners of the property are Carol, 1/3, and Stewart, 2/3, as tenants in common.
- You are reviewing a deed. The deed indicates that the ownership of property has been transferred from, Ajax Realty Company to David Farris, Mary Farris, and John Farris. What form of co-ownership do David, Mary, and John own in the real property?
- The ownership is a tenancy in common. Each owns 1/3 of the property.
- You are a legal assistant working with a law firm that is representing a purchaser of a parcel of real property. The purchaser desires to purchase 100% of the property and has entered into a contract with Samuel Seller. The title examinination of the pro
- A contract for purchase of 100% must be entered with all the co-owners. A deed of transfer will be required at closing.
- You are a legal assistant in a law firm that represents a creditor who has made a loan to Robert Black. You discover that Robert Black owns a parcel of real property together with his wife, Margo Black. Will the creditor be able to sell Robert Blacks's i
- The answer to this question depends on the form of ownership held by Robert and Margo Black. If the property is owned as tenants in common or joint tenants with right of survivorship or community property then the creditor will be able to enforce the debt against Robert Black. If they were tenants in entirety the creditor could not attach the property for satisfaction of the debt.
- Explain how the survivorship feature of a joint tenancy with the right of survivorship works.
- As each joint tenant dies the interest in the property will pass to the surviving joint tenants.
- A common owner in a tenancy in common is entitled to what share of rent or income produced from the real property?
- Entitled to the same percentage amount that the tenant owns in the property.
- How can common property be partitioned?
- Voluntary by common owners or by a court proceding.
- What is community property and how is it created?
- All property acquired during marriage is community property. Community property is created by operation of law, not by operation of grant.
- What property in a community property state is considered not to be community property?
- Property owned prior to marriage and property acquired by gift, devise or descent is not considered community property.
- Zoning is a judicial process and usually involves court procedings.
- State governments have the right to take private property for public use.
- Private restrictions on the use of real property are enforceable.
- Sub contractors are not entitled to a mechanics lien.
- Zoning is enforced through injunction.
- Property benefited by an easement is known as the servient tenement.
- Appurtenant easements are transferable.
- An easement can be terminated by abandonment of use.
- Land on which an easement is located is known as the dominant tenement.
- A license must always be written.
- List and briefly discuss various types of government regulation of private property.
- Zoning regulations.
Environmental protection laws.
Power of emminent domain.
- What is the general rule for the priority of a mechanics' or materialmen's lien claim, and why is this priority important?
- A lien claim dates from the time work is first performed and materials are delivered. The claimant has a right to be paid takes precedence over any party who acquires an interest in the property after the lien has been attached.
- What are the main legal issues involved in an eminent domain proceeding?
- Whether the owner has been provided with the necessary procedural sageguards; including a hearing and right to counsel, whether the use of the taken property is a proper public use, and whether the property ownern has been paid fair market value.
- How are private restriction covenants enforced?
- By injunction or by suit for money damages.
- What is a judgment lien, and why should a real property owner be concerned about it?
- It is a money debt attached to the real property. If it is not paid the property may be sold to satisfy the lien.
- Name four ways an easement can be created.
- Express grant.
- The owner of parcel A gives the owner of parcel B an easement to use a driveway located on parcel A. Which parcel is the dominant tenement and which parcel is the servient tenement?
- Parcel A - servient tenement.
Parcel B - dominant tenement.
- What is an easement by necessity, and does it differ from a prescriptive easement?
- An easement by necessity is an easement created by state law to prevent a property owner from being landlocked. Easement by necessity grants to an otherwise landlocked landowner the right to aquire an easement over a neighbor's property to gain access to a public road. The easement requires that fair compensation be paid to the landowner of the condemned easement. A prescriptive easement is an easement created when a person uses property without the permission of the owner for a period of time. Prescriptive easements are similar to adverse possession, and once obtained, they do not require compensation to be paid to the owner of the burdened property.
- Is there any proof of a prescriptive or implied easement?
- You are a legal assistant in a law firm that represents a real estate developer. The developer has obtained a necessary driveway easement to her property. After the easement was obtained, it was discovered that the property pledged as security for a debt
- A deed of trust on property to be encumbered by an easement has priority over the easement. Failure to pay the debt secured by the deed of trust and a foreclosure of the deed of trust could result in a termination of the easement. The real estate developer should be concerned about the First Bank and Trust deed of trust, since a foreclosure will terminate the necessay driveway easement. The developer can by protected by obtaining from the First Bank and Trust a consent and agreement that a foreclosure of the deed of trust will not terminate the easement.
- Is an encumbrance generally viewed as a positive or a negative thing for a property owner?
- Negative item.
- What is the main objective of zoning?
- Improve the living and working conditions in a congested area and to prevent the liberties of one property owner from interfering with the rights of another.
- What is the theory behind the creation of implied easements?
- When the property is conveyed, that conveyance contains whatever is necessary for the beneficial use and enjoyment of the property or retains whatever is necessary for the beneficial use and enjoyment of real property retained by the grantor.
- List the ways in which an easement can be terminated.
- Expiration of express term.
Foreclosure of prior liens.
Express release or termination.
- How is a license different from an easement?
- A license is not a property interest but permission to perform certain acts on another's land.
- How does a Phase I environmental examination differ from a Phase II environmental examination?
- Phase I is the examination of real property to determine if it contains environmental contamination. Phase II is a more intensive examination of property usually including the testing of soil and water for evidence of contamination.
- Briefly explain the "innocent purchaser defense," which is available uner CERCLA.
- Anyone who purchases or makes a loan on contaminated property who at the time of acquisition or making of the loan was not aware that the property was contaminated will not be liable for the cost of cleanup. A person must have no actual knowledge of the contamination and have undertaken at the time of aquisition or making of the loan an inquiry into the previous ownership and uses of the property with good or customary practice. A Phase I examination may satisfy this requirement.
- Fee simple
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