Real Estate Law Chapter 2 Study Guide

Any written agreement of fixtures

- if there is a written agreement between the parties stipulating how a particular item is to be treated, a court will enforce the agreement and it is binding on third parties with notice of it; When a seller wants to remove things that might be considered fixtures they should inform the buyer and include a statement in the purchase agreement specifying which items are excluded from the sale

Non Navigable Waters

-A non navigable lake is private property; if several different people own land around a nonnavigable lake or stream, ownership of the lake bed or stream bed is generally divided by tracing lines from each property boundary to the center of the lake or the center of the stream (thread of stream) measured at its lowest point

Support Rights

-A piece of land is supported by the other land that surrounds it. A landowner has the right to natural support provided by the land beside and beneath his or her property -A neighbor's excavations might make your land shift and settle; unless the excavations are unusually deep, the neighbor will only be held liable for damages if they fail to follow procedures prescribed -Among other provisions, the statute requires a landowner planning excavations to notify neighboring landowners; gives them the opportunity to protect their property

Air Rights

-A property owner's rights extend to the upper limits of the sky; Air Commerce Act of 1962 and Civil Aeronautics Act of 1938, Congress declared that the US gov has almost complete control over air space; the right to use the lower reaches of air space over their property as long as they do nothing to interfere with air traffic; Property owners also have the right not to be harmed by use of the air space above their property; A property owner may sell rights to the air space over the property separately from land

Riparian Land

-Any land that is adjacent to or crossed by water or contains a body of water within its boundaries

Erroneous Descriptions

-Errors in government survey due to harsh conditions when some were mapped out back in the day; result in mistakes in transcription

Statutory Rules of Land Description

-If a road or highway is the boundary for a property, presumed the boundary goes to the center of the road shown to the contrary in the deed -If the grant describes the boundary as running a specified distance from the road, the boundary runs from the edge of the road and not from the center -Boundaries or monuments are inconsistent with measurement of either lines, angles, or surfaces, the boundaries or monuments are paramount -If there is a lawsuit disputing the boundary in a patent or grant dated before 1950, all parties must disclose each other all relevant written evidence known and available about the property and the boundaries - When the boundaries have been disrupted by the Earth's movements-Culled Earthquake Act- procedure to reestablish boundaries and quiet title to the land with those boundaries

Point of Beginning (POB)

-Metes and bounds must start at a well defined point that can be easily identified- POB; always described by reference to a monument; doesn't have to be a monument itself

Mineral Rights

-Minerals are considered real property until they are extracted, when they become personal property

Agreed Boundary

-Often a boundary described in a deed doesn't match up with line treated as property boundary

Oil and Gas Rights; Rule of Capture

-Once and oil or gas reservoir has been tapped, the oil and gas begin to flow toward the point where the reservoir was pierced by the well as this is the area of lowest pressure -By drilling a well a property owner can drain an oil or gas reservoir that lies beneath his or her own property and beneath several neighbor's properties as well; oil and gas are covered by- Rule of Capture-oil and gas are not owned until they are captured; valuable right which a surface owner may capture by deed or lease under Unruh Act and FEHA

Air Space (Lots)

-Some types of property (such as second- story unit in a condo) also need to be described in terms of elevation above the ground

Land Description

-The legal description of a piece of real property determines its boundaries

Appropriative Rights

-There are vast tracts of arid land in Ca where water must be transported from other areas -The State Water Resources Control Board can give an appropriation permit; the permit holder is granted the right to take water from a particular lake, river, stream or aquifer for a specified reasonable and beneficial use

Water Rights

-Under the Water Code, all water within the state is the property of "the people of the state"

Ambiguous Description

-When a deed's descriptions is ambiguous, the deed is technically invalid; cured by possession

Many subdivision maps include: (7)

1. Measurements of the area 2. Easement locations and dimensions 3. Location of survey markers 4. Location of sewer lines and underground wiring 5. Subdivision restrictions 6. Topographical details such as elevation 7. School sites and recreational areas

Order of priority-(6)

1. Natural monuments 2. Man-made monuments 3. Courses 4. Distances 5. Names 6. Area or amount of acreage

The method of attachment- When an item is permanently attached to the land, it becomes part of the real estate; an attachment is considered permanent when the item is: (4)

1. Permanently resting on the land (such as large buildings like houses and barns) 2. Affixed to the land by roots (trees and shrubs) 3. Embedded in the earth (sewer lines or septic tanks) 4. attached by any enduring method (cement, plaster, nails, bolts and screw) - Note that an item can be considered a fixture even when it isn't actually physically attached to the land

Boundaries reference 3 things:

1.Monuments 2. Courses 3. Distances

Section is

1x1 mi= 640 acres

Tract is

24x24 mi= 16 townships

If the excavation is deeper than foundations of the adjoining building and will endanger it, the owner must be given a ____-day notice to protect the property and is allowed access to the excavated property to do so; if the excavation is deeper than ___ ft below curb level and so is the adjoining building, then the excavator must support the land and building without cost to the owner and is liable for any damage except minor settlement cracks

30; 9

Township is

6x6 mi= 36 sections

Perfecting the Security Interest

A creditor with a security interest in a fixture should record a financing statement in the county where the real property is located- "Perfecting" the security interest; the recorded financing statement gives constructive notice of the creditor's interest to prospective lienholders or purchasers of the real property; if the debtor defaults, the secured creditor will be able to repossess the fixture; recorded financing statements are indexed according to the last name of the debtor

Horizontal Division

A landowner may sell mineral rights separately from the land; The owner of mineral rights must give a written notice to the owner of the property of intention to explore or mine before the first entry upon the property; A written notice must state that the extent and location of prospecting, mining, or extraction and the approximate times of entry and exit

Appurtenances

A right that goes along with real property upon sale or other transfer-Appurtenance; When real property is transferred, appurtenant rights are ordinarily considered part of the real property and transferred along with it

Benchmarks-

At certain locations, subsidiary reference points-Bench Marks- are established; point who's position relative to a datum has been accurately measured; may be metal or concrete

Actual Annexation

Attachment by force of gravity may be sufficient, as in the case of a building without a foundation; an item may also be considered a fixture when it's enclosed within a room or building in such a way that it cannot be removed without dismantling it or tearing down part of the building- Actual Annexation

Between the seller and buyer of real property, the rules for determining what is a fixture favor ___

Buyer

Abandonment of Mineral Deed

Ca statutes now allow the lessor of an abandoned or expired mineral lease to demand a quitclaim deed or other document from the lessee showing abandonment

Township Tiers

Divide land into rows

Base Line- How many in Ca?

East and West line (32)

T/F: an owner may divert water for use on non riparian land

False; the water must be used on the riparian land; a riparian landowner is not allowed to divert water for use on nonriparian land; A riparian owner is also not allowed to use the water in a way that impairs other riparian owner's rights; in a water shortage, all riparian owners reduce their use

Land is described by reference to-

Final Subdivision Map

Government Lots

Impossible to keep all sections exactly one mile square; any deficiency or surplus placed in N and W sections of township- Government Lots- referred to by lot number; also results when a body of water or some obstacle make it impossible to survey an accurate square-mile section

Overlying Rights

Landowners above an underground aquifer-overlying rights - very similar to riparian rights

Fixtures

Man-made attachments

Metes and Bounds-

Metes- measurements; Bounds- boundaries; identifies a parcel of land by describing its outline or boundaries

Fixture Tests: which one is the key test

Method of attachment Actual annexation Constructive Annexation Adaption to realty Intention of the annexor -key

Metes and bounds direction is described by deviation from

N or S

Are naturally occurring plants real or personal property

Part of the realty until picked or sold separate

Young plants for a nursery that are meant to be temporary are _____ property

Personal

Unless otherwise agreed, all the real property is included in the transfer, but the ____ is not

Personal property

When natural attachments are severed, mortgaged, or sold they become ______ or before if they are sold separate from the land

Personal property

Are plants planted by people personal or real property

Personal property before harvested; Between a buyer and seller they are real property and included in sale unless excluded from sale agreement

Lot and Block aka _______ is the most important

Recorded Map System

Government Survey- aka _______

Rectangular Survey Method- divides land into series of rectangular grids; each grid is composed of two sets of lines, one N/S and other E/W

Which are paramount appropriative rights or riparian rights

Riparian Rights are paramount and appropriative rights must not interfere with them

The two main types of water rights are:

Riparian; littoral

When personal property is purchased on credit or used as collateral, a creditor often takes a _____ in the property

Security interest

Constructive Annexation

Some completely moveable items are regarded as so strongly connected with the property that they are considered fixtures even though they are in no way actually attached to the realty- Constructive Annexation- also applies to fixtures that have been temporarily removed from the real property for servicing or repair

Lateral Support

Support of land by adjacent lands

Township

The square of land located at the intersection of a range or township tier- Township- identified by its position relative to the principal meridian and base lines

Oil and Gas Leases; how long do they last?

There us no standard lease form but oil and gas leases generally involve an initial cash amount and royalties based on amount extracted; no lease can last more than 99 years after it starts

T/F: An owner of property subject to dormant mineral right can sue to terminate the right

True

T/F: The public has the right to use the waterways for transportation and recreation

True

Reformation of Document

When erroneous descriptions are discovered it may be possible to ask the person who transferred the property to execute a new deed with a corrected description; the new owner can ask a court to issue an order correcting the description

Mineral Deed-

a mineral deed transfers all rights to the minerals and grants the rights necessary to conduct mining operations to obtain the minerals

Mineral Rights Option-

a mineral rights option grants the right to explore for the presence of minerals; mining company decides whether or not to exercise its option to lease or purchase the mineral rights

An accurate legal description of property can usually be found in (3)

a recorded deed, trust deed, or lease

When property borders on the ocean(or on a bay connected to it) the property owner only owns the land

above the mean high water mark

Township Lines-

additional E/W lines that run at 6 mi intervals from the correction lines

Correction Lines-

additional E/W lines; run parallel to base lines at intervals of 24 miles

Guide Meridians-

additional N/S lines; 24 mile intervals

Datum-

an artificial horizontal plane of elevation, established in reference to sea level

Doctrine of Emblements

applies to crops planted by tenant farmers

Riparian Rights-

attach to a natural water course not concrete aqueducts or canals used to move water from one location to another; every riparian landowner has an equal right to use the water that touches his or her property; All riparian owners may use the water for swimming, boating, or other recreational purposes; they all have the right to take water for domestic uses; they may use the water in any other way that is "reasonable and beneficial" and not wasteful; this right is not lost by nonuse

Between trustor(trust deed borrower) and beneficiary (trust deed lender) favor _____

beneficiary

Agricultural fixtures-

cannot necessarily be removed by tenant farmers when the leave the property

Personal Property

defined as every kind of property that is not real property and generally moveable

Courses

directions; compass readings

Trade Fixtures-

equipment installed for use in the tenant's business; the tenant is responsible for repairing any damage to the premises caused by removal; if they have become an integral part if the building they cannot be removed; trade fixtures that aren't removed when the tenant leaves automatically become property of the landlord

Dormant Mineral Right-

goes back 20 years from filing of lawsuit; no mining or exploration activities on the property; no separate tax assessment on the right or no taxes paid if assessed, and no recorded document showing the mineral right

Block-

group of lots surrounded by streets is numbered

Adaptation to the Realty

if an item was specially designed or adapted for use in a particular building or is essential to the use of the building then it is a fixture

An appropriative right is lost if

it isn't used for 5 years or it is abandoned

Real Property-

land; that which is affixed to the land; that which is incidental or appurtenant to land; that which is immovable by law; includes mineral rights and air space above the land

Range Lines-

large square created by intersection of guide meridians and correction lines are divided into further tracts of land by additional N/S lines running at 6 mi intervals

When property borders on a navigable stream or lake the property owner owns the land to the

low water mark

Principal Meridian- Ca has how many?

main N/S land (35); Ca has 3: Humboldt, Mt Diablo, San Bernardino

Fixtures-

man-made attachments; items that were once personal property but are now connected to the land in such a way that they are considered part of the real property

Distances

measured in any convenient unit of length

Monuments-

natural objects or man-made

Fructus Naturales-

naturally occurring trees and plants

Doctrine of Agreed Boundary-

necessary to show that there was an uncertainty as to the true boundary line; an agreement, expressed or implied, between conterminous (adjacent) owners fixing the line; either acceptance and acquiescence of the line for a period of time determined the by the statute of limits or that changing of its position would cause substantial loss; An agreed upon boundary must be marked or be otherwise discernable on the property to give new owners notice of its location; usually the agreed upon boundary must be accepted or acquiesced to for at least five years before it becomes a true boundary; if one of the parties would suffer a substantial loss if the boundary were enforced, the five year requirement does not apply

All navigable waterways in Ca are

owned and controlled by the state government

Manufactured housing is classified as

personal property until it is permanently attached to the real property by removing the wheels and mounting the unit on a foundation. As personal property, manufactured housing may be sold without a real estate license and the sales are subject to sales tax laws

Fructus Industriales

planted and cultivated by people

Natural Attachments-

plants growing on the land

"Landmark" Booska case

property owners are required to "act reasonably" when damage to a neighbor's land is "foreseeable"

Final Subdivision Map-

recorded in county where the land is located; shows dimensions and boundaries of each lot

The owner of a mineral right may preserve the right by

recording a notice of intent to preserve the mineral right

Landlord/tenant- favor ______

tenant

Ranges-

the columns made by range lines

Mineral Lease-

the lessee is given the right to mine and has title to the mineral obtained, but lessor (property owner) will regain the mineral rights when the lease expires; the lessor is usually compensated by royalty payments

Mineral Reservations-

the owner sells or transfers the surface property and retains the mineral rights for himself or herself

Annexor-

the person who owned the item as personal property and brought it onto the real property; the method of attachment and the adaptation of the item to the realty are viewed as objective evidence of intent

When tenancy is for an indefinite period of time and the tenancy is terminated before the annual crop is ready for harvest

the tenant has the right to reenter the land and harvest the crop; To fall within the rule, the crop must be produced by the labor and industry of the farmer; Applies only to crop that matures after the tenancy is ended

Attachments

things built on the land and things growing on the land