REO - Legal Aspects of Real Estate

How to sever a joint tenancy?

1) Coveyance (buyer become tenant in common) 2) Court Order 3) Foreclosure

Tradional Leasehold Estates:

1) Estate for years 2) periodic tenancy 3) Tenancy at will 4) tenancy at sufferance

How are easements created?

1) Express Grant 2) Express Reservation or Exception 3) Implication 4) Prescription 5) Statute

3 Traditional Freehold Estates

1) Fee Simple, 2) Fee Tail 3) Life Estate

Three Types of Recording Statutes

1) Notice Statute 2) Race-Statute 3) Race-Notice Statute

Two water rights doctrine

1) Riparian Rights and 2) Appropriation Doctrine

License characteristics

1) not a property interest 2) only a limited right to use the real estate 3) can be created by oral permission from the property owner 4) are usually revocable at the discretion of the licensor and ar e personal to the licensee.

Requirements for Covenants to attach...

1)Must touch and concern the real estate to be benefited or burdened and the parties must e intended that this instrumentappend to the property. 2) parties bound by this must enjoy either privity of estate or 3) have notice of the covenant.

Covenants

1Assurances set fort in a deed, ocnveyance, lease , etc. by either the grantor or implied by law. This may provide that certain actions be peformed on the real estate affected by this instrument. Unless enforced by the parties benefiting from this, can be waived and terminated.

Mortgage

A contract and conveyance by which the mortgagor (borrower) gives certain rights in the real estate to the mortgagee (lender).

Lease

A contract whereby the owner transers the right of possession and use of the real estate to another for a specified time perod and on the payment of a consideration (rent).

Bargain and Sale Deed

A conveyance the terms of which fall somewhere between a quitclaim deed and a warranty deed. Conveys the properyt without any guarantee or title warranty, but may contain guarantees and title warranties stating that nothing to harm the tithe has occurred during the grantor's ownership. Used by guardians, trustees and estate reps.

Quitclaim Deed

A deed in which the grantor transfers title without conveying any warranty of a valid interest. This conveys only that title, if any, which the grantor has in the property at the time of conveyance. Used to clear title when there is a questionable interest in or claim to property.

Tenancy by the Entirety

A form of joing tenancy that exists betweeen a husband and wife. On the death of one spouse, the other spouse is entitled to the entire property. (Joint tenancy is more common now)

Estate for Years (Term tenancy)

A leashold estate for a specified term or duration . In common law, expires without notice and at termination.

Easement

A non-possessory interest one has in the property of another for a specific purpose. May involve use of subsurface or airspace above or surface are combination of the three.

Abstract of Title

A summary of the conveyances, liens and encumbrances, and other documents relating to the title of a real estate parcel - can be researched in the public record.

Why is it important to record title?

A transfer should be disclosed to all by a reference to and reliance on the public record. Recordation gives the public constructive notice of the title transfer or of other interest held in the property.

What is a Deed?

A written instrument that conveys real estate or interest in real property.

What is the third Fixture criterion?

Adaption: Has the item or real estate been changed or adapted to acept the item? Item may still retain its separate physical identity, but it has become connect with the property.

A person asserting rights to an easement by prescription must meet the tests required for...?

Adverse Possession and Color of Title

Real Property

All the rights, title and interest associated with real estate ownership

Personal Property

All the tangible property that is movable without damage to itself or the real estate

Escrow

An agreement between a buyer and seller to complete the real estate transaction through a third person, escrow agent.

Easement Appurtenant

An easement for the benefit of another benefit parcel. i.e. easement right to cross A's parcel to get to B's property. B is Dominant Estate/Tenement. Parcel burdened by the easement (A) is the Servient Estate/Tenement. Cannot be seperated from the dominant tenement.

Easement in Gross

An easement that benefits a person or company, rather than benefiting another real estate parcel and only the peson or company to whom the easement in gross is granted may use the easement. Neither transferable nor inheritable.

Patent

An instrument or conveyance by which a government grants public lands to another party. Often the patent will reserve water and mineral rights.

Chattel

An item of personal property

Fixture

An item that was originally a personal property but which, by reason of its attachment, intention and adaption to the real estate, has become part of the realty.

Type of ownership - Joint Tenancy

An undivided interest in real property held by two or more people. On the death of a joint tenant, the interest passes equally to the surviivng joing tenants automatically without regard ot the decedent's will, if any, or the intestacy laws.

Tenancy in Common

An undivided interst in real property held by two or more people. Interest need not be equal nor obtained by the same deed/conveyance. On a death, the surviving tenants in common have no rights of survivorship.

Encumbrance

Any claim, lien, or liability attached to real estate held by someone other thatn the property owner. (I.e. mortgage, upaid tax lie, mechanic's lien, deed, judgment lien, easement, etc.)

Easemet by Implication

Arises where a person, who conveys a portion of a real estate parcel, had used the retained real estate for the benefit of the conveyed property, prior to the conveyance.

What is the first Fixture criterion?

Attachment: The manner by which the item is affixed to the real estate. Permanantly affixed?

Community Property

Common ownership of property acquired during marriage. Cannot be conveyed in its entirety with the signature of just one spouse.

Notice of the Covenant

Constructive , through the recording of the covenant, or actual.

Warranty Deed or Grant Deed

Contains certain covenants or title guarantees. Warranty/Grant implies that the person signing has not previously conveyed the real estate and the property is free from encumbrances.

General Warranty

Contains title covenants against all defects, regardless of when the ycame into existance; before or after the grantor acquired the property.

Deed of Trust

Conveys the trustor's (borrower's) title to a trusttee (a publice or private entity who holds legal title) in favor of the beneficiary (lender).

Easement Termination - Abandonment

Courts require intent to abandon and some physical act demonstrating the intention. Non use of easement does not constitute abandonment.

Requirement for Easement by Implication

Courts require it's use prior to the conveyance and to have bee open, continuous, and necesssary to the use and enjoymnet of the dominant tenement.

Easement by Prescription

Created by occupancy of another's property.

Easement by Statue

Created through the exercise of the power of eminent domain. Require publice use, necessity, the payment of just compensation and due process of law.

Express Reservation/Exception

Created with language specfically reserving or excepting a specific easement in a conveyance.

Easement Termination - Release

Deed, Conveyance, or other written evidence - In conformance wit hthe Statue of Frauds.

Torrens System

Establishes a real estae title registration procedure where the governmental authority issues title certificates showing the title status and whom it is vested. RE is transferred under a registry system, the registrar of titles issues a certificate of ownership, which usually constitues evidence of title.

Tenancy at Sufference

Exists when a tenant remains in possession of the rea estate after the expiration of a term tenancy lease or after owner has terminated. The owner can evict without notice. If owner accepts subsequent rent payment then will transform to periodic tenancy.

Defeasible Fees / Determiniable Fees

Fee Simple Estates which are subject to conditions or encumbrances. i.e. conveyance of fee simple interest so long as real estate is used for park purposes only.

Tenancy at Will

Has no fixed term and can be ended at will be either party. A tenancy at will remains in force only as long as the owner and tenant wish for it to continue. Can in by written notice.

Actual Notice

If a person has this, notice express or implied, and tries to record a subsequent deed - the previous buyer may win in court.

Freehold Estates

In English feudal system, the major estates in land.

What is the second Fixture criterion?

Intention: Did the person who made the attachment intend the item to become permanently part of the real estate?

How is property transferred?

Interest in transferred by conveyance. Most commonly a DEED.

Easement by Estoppel (License coupled with an interest)

Licensee has relied on the permission of the property owner to make improvements to the licensed property. Once the improvements have been made courts will estop, prohibit, owner from revoking the license.

Three means by which easements are terminated.

Merger, release, abandonment

Lien

More restrictive than an encumbrance. A right coferred to or held by certain creditors permitting them to be paid from the proceeds of the property sale. The property serves as security for the debt payment.

Privity of Estate

Mutual or successive property rights affected; such as landlord-tenant, grantor-grantee, fee holder-easement holder, etc.

What is Adverse Possession?

Open, notorious, continuous, and hostile for a statutory time period.

Leased Fee Interest (Estate)

Owner or Lessor -right to receive consideration and to recapture property at the end of the lease term.

License

Permission, either expressed or implied, given by a property owner to another to allow the performance of some activity on the owner's property.

Fee Owner

Person claiming Fee Simple ownership of real estate.

Remainder Interest or Reversionary Interest

Person who is entitles to the estate after the life estate has ended.

Trade Fixture

Personal property - an item of personal property that has been attached t othe real estae and may even be adapted to the real estate by a tenant but without the intention that the item will remain permanently.

Appropriation Doctrine

Premise - water belongs to the reidents of the state, but a preferred right to use the water by be acquired by the entity that first appropriates the water and applies it to a beneficial use.

Separate Property

Property acquired before the marriage, aquired during the marriage through gift or inheritance to one souse, or property conveyed from one spouse to the other spouse with the intent of making the property separate.

Riparian Rights Doctrine

Recognizes that property owners adjacent to a stream or lake may have certain rights for the reasonable use of the water that flows across or in contiguous ot their property. Does not have the right to materially diminsh either the quantity or the quality of the water for other riparian owners.

Register of Title

Recording Doc/System where each page contains a certificate of title to a specifically described proprety parcel, with each certificate containg the facts relative to the parcel's title. Guards against adverse possession and prescriptive rights.

Unity of Title

Requires that each joint tenant derive the interest through the same conveyance.

Unity of Possession

Requires that each joint tenant have the right to enjoy the premises in its entirety.

Unity of Time

Requires that each joint tenant's interest begins at the same time as the other joint tenants.

Unity of Interest

Requires that each joint tenantpossess the same fractional interest and the same duration of estate as the other tenants.

Negative Easement

Restricts the real estate owner whose property is burdened by the easemant (i.e. An easement that prohibits the grantor from blocking the grantee's view.)

Express Grant (Easement)

Set forth in a written document containing all the elements of a deed and conforming to the Statute of Frauds.

Race-Notice Statute

Statute - holds that an unrecorded instrument is invalid against subsequent bona fide purchaser of the same property who pays value and takes without notice if the subsequent puchaser is the first to record the instument.

Race-Statute

Statute in which the first grantee to record has priority, regardless of any notice of the prior instrument.

Notice Statute

Statute which hold that an unrecorded instrument affecting title is invalid against a subsequent bona fide purchaser who pays alue and takes without notice, either constructive or actual, of he prior conveyance.

Leashold Interest (Estate)

Tenant or Lessee - - Right to possess, use, and quietly enjoy the real estate for the lease term.

Easement Termination - Merger

Terminates easements appurtenant when the easement owner acquires title to the servient estate.

What is Color of Title?

The appearance of good title but with some actual defect.

Chain of Title

The conveyances from the original patent to the present owner, or may reearch a shorter time period. Title insurances research this and provide insurance if it is clean.

Estate

The degree, nature , quality or extent of a person's interest in property.

Periodic Tenancy ( Tenancy from term to term)

The real estate term is automatically renewed for an indefinate number of successive terms. May be created by express agreement or implication. At the end , either party can terminate by giving notice to the other.

Profit a Prendre

The right to take, for example, minerals, timber, or oil from the soil. In most jurisdictions, a this is considered a property interest and must be in writing. Similar to an easement appurtenat or easement in gross.

Constructive Notice

This assumes that once an instrument becomes part of the public record and is accessible to the public, all peole have notice of the instrument's existence and should act accordingly.

Special Warranty Deed

This deed warrants title only against defects arising after the grantor acquired title to the property.

Fee Simple

This real estate ownership is the highest and most ocmplete ownershiop in law.

Adverse Possession

To acquire title this way, the possession must be actual, continuous (for a time period established by statue), exclusive, hostile, notorious 9the other ownership claimant has notice of the possession and its extent, open, and under claim of title. (may require to hold color of title or pay real estate taxes.) Action to quiet title must be initiated and title awarded by court order before adverse possessor will acuire title of record.

Requirement of Joint Tenancy

Unitites of Time, Title, Interests and possession

Type of ownership - Owner in Severalty

When there is only ONE owner of a property.

Accession

an equitable or fairness doctrine which may result in a property owner gaining title to additions or improvements that are attaced to the owner's property; either by nature or by construction. i.e. neighbor puts fence on the property of another -can't be removed. Permanant. Courts may award title to the improvement to the innocent property owner.

Affirmative Easement

conveys right to grantee to enter on the real estate of another for a specfic purpose (i.e. construction of a transmission line)

Fee Tail Estate

in common law, was created by a grant to the grantee "and to the heirs of his or her body". Now mostly converted to Fee Simple.

Reliction

occurs if the water body recedes, resulting in increased land area.

Accretion

occurs when the land area is slowly and almost imperceptibly added to by the deposit of silt, sand, gravelk, or other materials.

Fee Simple Absolute

refers to no conditions, limmitations or encumbrances.

Life Estate

tenant is entitled to certain real estate uses and enjoyments for life. At death, all right, title, and interest in the property pass to the Remainder Interest