Chapter 26 - Real Property

Fixtures:

A fixture is an item that is affixed, or attached, to the real property in a permanent way.

Joint Tenancy:

A form of concurrent ownership, which occurs when two or more persons own a single estate in land, with right of survivorship. Must have equal shares, right to partition.

Periodic Tenancy:

A lease interest in land for an indefinite period involving payment of rent at fixed intervals, such as week to week, month to month, or year to year.

Real Estate Sales Contracts:

A sale of real estate involves more formalities than a sale of goods. The parties usually enter into a detailed contract setting forth their agreement after substantial negotiation. A contract for a sale of land includes such terms as the purchase price, the type of deed the buyer will receive, the condition of the premises, and any items that will be included.

Restrictive Covenants:

A statement written into a property deed that restricts the use of the land in some way; often used to prohibit certain groups of people from buying property

Tenancy at Sufferance:

A tenancy which is created when one is in wrongful possession of realty, even though the original possession may have been legal.

Trade Fixtures Are Personal Property:

A trade fixture is personal property that is installed for a commercial purpose by a tenant. Trade fixtures remain the property of the tenant unless removal would irreparably damage the building or realty.

Termination of an Easement or Profit:

An easement or profit can be terminated or extinguished by deeding it back to the owner of the land that is burdened by it, acquiring the property burdened by it, or abandoning it and providing evidence of the intent to relinquish the right to use it.

Leasehold Estates:

An estate for a limited time (e.g., renting, leasing)

Fixed-Term Tenancy (or Tenancy for Years):

An express contract for specified period of time. The term does not need to be specified by date and can be conditioned on the occurrence of an event.

Airspace and Subsurface Rights:

Any limitations on either airspace rights or subsurface rights (encumbrances) normally must be indicated on the document that transfers title at the time of purchase.

Community Property:

Any property acquired in certain states by purchase, or as compensation by either spouse during the period of marriage, is considered to be owned in an undivided half interest by each.

Tenancy in Common:

Co-ownership of property in which each party owns an undivided interest that passes to his or her heirs at death.

Ownership in Fee Simple/fee simple absolute

In a fee simple absolute, the owner has the greatest aggregation of rights, privileges, and power possible. The owner has an indefinite right to exclusive possession and use of the land and can give the property away or dispose of the property by deed or by will.

Other Zoning Restrictions:

In residential districts, an ordinance may require a structure to be a specific distance from a neighbor's property line. In commercial districts, zoning rules may attempt to maintain a certain visual aesthetic

Nonpossessory Interests:

Interests in land that do not include any rights to possess the property.

Typical Fixtures:

Items such as tile floors can only be attached to property permanently. Because such items are attached permanently, it is assumed that the owner intended them to be fixtures.

Land and Structures:

Land includes the soil, all natural and artificial structures on it (unless agreed otherwise), all the waters contained on or under its surface, and much, but not necessarily all, of the airspace above it.

Termination of a Joint Tenancy:

May be terminated by mutual consent of the parties or by sale. Join Tenants cannot will their ownership but may sell their interests. When sold, the outside party does not take owners as a joint tenant because no unity in time or title. The outside party takes title as a tenant-in-common.

Creation of an Easement or Profit:

Must be in writing created by deed, contract, or will. Can be created by implication. Can be created by necessity. Can be created by prescription.

Inverse Condemnation:

Occurs when the government takes land without paying compensation at all. The taking can be physical or it may be constructive.

Quitclaim Deed:

Offers the least protection against defects in the title. This type of deed conveys to the grantee whatever interest the grantor had. If the grantor had no interest, then the grantee receives no interest.

Concurrent Ownership:

Ownership by two or more persons at the same time

Subsurface Rights:

Ownership rights in a parcel of real estate to the water, minerals, gas, oil, and so forth that lie beneath the surface of the property.

Life Estates:

Ownership, possession and control for someone's lifetime. Cannot have waste.

Plant Life and Vegetation:

Plant life, both natural and cultivated, is also considered to be real property. When a parcel of land is sold and the land has growing crops on it, the sale includes the crops, unless otherwise specified in the sales contract. When crops are sold by themselves, they are considered to be personal property, or goods. Because of this, the sale of crops is governed by the Uniform Commercial Code (UCC) rather than by real property law.

Requirements for Adverse Possession:

Possession must be actual and exclusive. Possession must be open, visible, and notorious. Possession must be continuous and peaceable for the required time period. Possession must be hostile and adverse.

Warranty Deeds:

Provides the greatest amount of protection for the grantee. Grantor promises that she or he has title to the property, that there are no undisclosed encumbrances, and that the grantee will enjoy quiet possession.

Easement:

Right of a person to make limited use of another person's real property without taking anything from the property.

Recording Statutes:

Statutes that allow deeds, mortgages, and other real property transactions to be recorded so as to provide notice to future purchasers or creditors of an existing claim on the property.

Tenancy by the Entirety:

The joint ownership, recognized in some states, of property acquired by husband and wife during marriage. Upon the death of one spouse, the survivor becomes the owner of the property.

Deeds:

The names of the grantor (the giver or seller) and the grantee (the donee or buyer). Words evidencing the intent to convey. No specific words are necessary. A legally sufficient description of the land (including metes and bounds). The grantor's (and usually his or her spouse's) signature. Delivery of the deed.

All deeds pertaining to real property are...

The register of deeds office

License:

The revocable right of a person to come onto another person's land that arises from the consent of the property owner.

Profit:

The right to go onto land owned by another and take away some part of the land itself or some product of the land.

Purpose and Scope of Zoning Laws:

To manage the land within a community in a way that encourages sustainable and organized development while controlling growth in a manner that serves the interests of the community.

Airspace Rights:

Unless they are low and/or frequent enough to interfere directly with the owner's enjoyment and use of the land, flights over private land normally do not violate property rights.

Right of Survivorship:

Upon the death of a joint tenant or tenant by the entirety the interest does not pass to the tenant's heirs but to the other join tenant(s).

The Role of Intent:

When the intent is in dispute, the courts will usually decide that the item is a fixture if either or both the following are true: The property attached cannot be removed without causing substantial damage to the remaining realty. The property attached is so adapted to the rest of the realty as to have become a part of it.