Chapter 3- part 2

Easement for Light and Air

A type of negative easement. This easement prevents an adjoining land owner from building any structure that would obstruct the passage of light or air from reaching the dominant land.

Easement for Light and Air

A type of negative easement. This easement prevents an adjoining land owner from building any structure that would obstruct the passage of light or air from reaching the dominant land. -Prevents the restriction on light and air in apartments. -Municipalities have requirements to insure buildings are built with proper light and air.

Why is a lien used?

As a means to recover a debt, or money owed by another individual.

The lien takes affect...

At the time a judgement is entered into court record.

ACRIS

Automated city registered information system. -Sees what has been recorded against a property in regards to easements. -If an easement is in one deed, it is in all deeds when transferred. -Also is in city register.

A judgement must...

Be recorded in the county clerks records in order to be effective.

How can one make an easement?

By getting it in writing or by use over time.

Easements by necessity

Created when a property has no access to a public road. -Property must have access to a road, so if no neighbors will consent, the owner must go to court and get a legal easement. -Must be willing to compensate neighbors for use of land to get to road.

A party wall is an example of what...?

Easement

This type of easement generally transfers automatically when the dominant estate is transferred...?

Easement Appurtenant

Lis Pendens

Latin for notice of pendency: -Filed when one person has a claim against a property. A legal document, filed in the office of the county clerk giving notice that an auction or proceeding is pending in the courts affecting the title to the property. (Not applicable in commission disputes.) -For example, during a mortgage foreclosure, a bank isn't getting paid and will file a Lis Pendens. The filing will let everyone know there is a pending claim against the property. -If there is a contract to sell but the seller refuse to close, a buyer can file a Lis Pendens to let other buyers know its been claimed. (Happens when property value go up but an old contract stays the same)

Negative Easements are about...

Restriction.

Once a lien gets paid...

The lien holder must provide a "satisfaction of judgment", which is recorded in the public record. -Makes it known a lien doesn't exist anymore.

Judgement Creditor

The person who is owed the judgment.

Liens on a title create...

an encumbrance on the title. AKA a burden.

Usually a mortgage is closed as point of sale..

and the new buyer gets a new mortgage, their own mortgage.

Ways to terminate an easement

-A Release -Same property owner (One buys the others property) - Property/Easement abandonment -Easement no longer relevant: For example if the property owners is getting onto the property another way -Time limit

Easements can be...

-In gross -Appurtenant -Negative: Preventing something from happening -Affermative: Allowing something from happening

Easement examples

-Light and air: Restricts the right of neighbors to obstruct air flow or light onto another property. -Common Wall: Multifamily house -Riparian (Flowing water right): To take water from the land of another, can restrict the right of another to take or obstruct the flow of water. -Right of way (The right to pass over a pice of property to get to another destination)

Profits

-The right to take profits from the soil, land, mineral timber. -Created in the same manor as easement as by a grant or deed. -Is sellable, can be sold to another. -Can often be more valuable than the house itself.

How long can a lien last?

20 years as long as it is renewed in the 9th year.

Encroachment

A building, part of a building, or obstruction which intrudes upon or invades a highway or sidewalk or trespasses upon the property of another.

Encroachment

A building, part of a building, or some kind of obstruction which intrudes upon or invades a highway or sidewalk, or trespasses upon the property of another. -This could be a tree, a stoop, decorative architecture. -Often happens when one owner builds an addition not knowing it invaded onto another property. -Roof lines -Driveways -Antennas -Fences -Tree and bushes (landscaping)

Voluntary Lien

A contractual or consensual lien that is created by an action taken by the debtor, such as a mortgage loan to buy real estate. -When a potential owner signs a document such as a mortgage. Understands the legal ramifications of not paying.

How can an easement be canceled?

A court process or if just settled between two owners, they must get it in writing.

Judgement

A judgement is usually made against the person who owns the property, while the lien is made against the property.

Subordination Agreement

A legal document used to make the claim of one party junior to (or inferior to) a claim in favor of another. -Often done to appease a lender. -Comes into play when there is more than one mortgage. If one should need to take priority for the sale of a property, the one taking a second place must sign saying its okay.

Involuntary Lien

A lien imposed against property without consent of the owner, e.g., taxes, special assessments

Tax Lien

A lien imposed by law upon a property to secure the payment of taxes.

General Lien

A lien that attaches specifically to the person, but also to real property of a person or firm -An example would be a judgement from a court for the debt owned. That person is liable. -Court judgement -Income tax line -Writ of attachment -Estate and inheritance tax

Specific Lien

A lien that only binds to a specific asset or identifiable property. -An example would be a mortgage, it attaches to a house. -Mortgages -Real property tax -Mechanics Lien -Lis Pendens (Notice of Pendency)

Specific Lien

A lien that only binds to a specific asset or property.

Property Survey

A map of the property that will disclose your boundary lines, easements, encroachments and improvements on the property. -Made by property surveyors -Drawn from a birds eye view from the air down at it. -linear drawings NOT photographs.

Dominant Tenement

A parcel of real property that has an easement over another piece of property (the servient estate). -Receives the benefit from easement Ex. drives over another property to get to his driveway.

Servient Tenement

A parcel of real property that is encumbered by an easement of a dominant estate. -Receives the burden from easement. Ex. Allows neighbor to drive over property to get to his driveway.

Easement

A right to cross or otherwise use someone else's property for a specified purpose. -Some are on record/written down in case of deeds or easement agreements, some are created over time.

Lein

A right to keep procession of property belonging to another person until a debt owed bu that person is discharged.

In a mortgage, the property is...

A security in a mortgage.

Mechanic's Lien

A security interest in the title to property for the benefit of those who have supplied labor or materials that improve the property. -Gives comfort to craftsmen to insure they are getting paid. -If their charges are not paid, they can do a mechanics lien and can force the sale of a property to make up for the debt they are owed. -Limitations of time between work completion and when they can file. -Property can not be sold without the lien being settled.

Non-Possessory

A term of the law of property to describe any of a category of rights held by one person to use land that is in the possession of another.

Party Wall

A wall built along the line separating two properties, partly on each, which wall either owner, the owner's heirs and assigns has the right to use; such right constituting an easement over so much of the adjoining owner's land as is covered by the wall. -If a wall is the only thing separating two properties, it honest make sense to build two walls when one does fine. This wall is call the "party wall"

How does a judgement cross counties?

An attorney obtains a transcript of the court's judgement and that transcript can be recorded in the county it is believed the property in question is located.

Easement by Condemnation

An easement created by the government or government agency that has exercised its right under eminent domain. -If the government thinks they need a property for public use such as a park or stadium, they have great power to get it. -Current owner must be compensated. -The government has eminent domain.

Easement Owner

An easement owner does not own the land, but has various rights to use the land. -Has a use for the land or prevent the right to use it.

Easement in Gross

An easement that benefits an individual or a legal entity, rather than a dominant estate. -Gross means large, easement usually covers a large area. -Utility easements, government easements used for purposes of entire development, creating drainage systems, running electric lines.

Easement Appurtenant

An easement that benefits the dominant estate and "runs with the land". In other words, An appurtenant easement is an easement that is intended to benefit a particular piece of land (dominant estate/tenement) rather than a particular individual. In this case, there is also a servient estate/tenement—the land over which the dominant estate has its easement rights. a. Example: An easement is granted to a shopping mall parcel for access across the neighboring property owner's private road in order to allow shopping mall customers to get from the shopping mall parking lot to the street. This is an easement appurtenant to the shopping mall parcel, which is the dominant estate. The neighbor who has granted the easement owns the servient estate. -An easement appurtenant generally transfers automatically when the dominant estate is transferred

Easement by Implication

An easement that is not created by express statements between the parties; but as a result of surrounding circumstances that dictate that an easement must have been intended by the parties. -A mining company for example, has to dig up the ground to get goods. Even if not written in a contract, the easement is implied by the type of work done.

Design easements

An example of easement in gross -A fence designer has the right to enter land to maintain fences created.

Mortgage

An instrument in writing, duly executed and delivered, that creates a lien upon real estate as security for the payment of a specified debt, which is usually in the form of a bond.

Mortgage

An instrument in writing, duly executed and delivered, that creates a lien upon real estate as security for the payment of a specified debt, which is usually in the form of a bond. (NYS RE Property Law)

Encumbrance

Any right to ir interest in the land interfering with its use or trader, or subjecting it to an obligation. -Means a cloud on a title that must be resolved before the sale of a property can go through.

Encumbrance

Any right to or interest in the land interfering with its use or transfer, or subjecting it to an obligation.

A commercial easement is also known as what type of easement...

Easement in Gross

Easement by Prescription

Implied easements granted after the dominant estate has used the property in a hostile, continuous, and open manner for a statutorily prescribed number of years.

REM proceedings

In rem jurisdiction, a type of proceeding against a pretor where someone tries to take ownership of a property in question. if a property owner has not paid taxes the municipality will bring an 'in rem proceeding', which means they will create a lien against a property, and they will attempt to become the owner of the property.

How can judgement be informed?

NOT SELF HELP! One much inform judgement though the courts. Meaning the city marshals or sheriffs enforce the execution of a judgement.

Easement by Necessity

Parcels without access to a public way may have an easement of access over adjacent land if crossing that land is absolutely necessary to reach the landlocked parcel and there has been some original intent to provide the lot with access. -Also known as adverse possession: -Made by 10 years or more. -If a neighbor has used another land to access their property for 30 years, they don't need documentation to consent to use the land. -Most commonly for driveways and walkways.

License

Permission granted by a party to another party as an element of an agreement between both parties. -Can be revoked with 10 days of written notice. -Examples are: Licenses to hunt or fish, to boat or diving. -NOT a permeant right, a temporary privilege by a licensor.

Judgement debtor

Person who owes the judgement -Can be upheld against cash, personal or property debts.

Priority of lien positioning

Priority position (first first): Taxes/Government liens 1st position- Banks (mortgage) 2nd position- Judgements and other liens (such as mechanics liens)- organized by recording date.

Liens are recorded to the...

Public record and are available for everyone to see. -Makes it impossible to sell a property without the bank knowing.

Appurtenances

Something which is outside property itself but belongs to the land and adds to its greater enjoyment such as a right-of-way or a barn or a dwelling. Examples: -Profit rights -Licenses rights: Hunting, coal mining, gas mining, planting, leasing -Air-rights -Subsurface rights: Dig the property, bury item in property, dig for geo-thermal power, dig for minerals. -Water rights: use water and do what is wanted.

A Notice of Pendency is an example of what type of lien?

Specific Lien

What kind of liens take priority?

State and federal liens always take priority over other liens. For example tax liens.

Easement by Grant

The creation of an easement by one party expressly transferring the easement to another party. -A logging company, for example, must enter the land to cut down the trees. Have to move trucks and machines on and off the property and they have been granted permission to do so.

Affermative Easement

The dominant property is allowed to cross the servant property. -In a negative easement, the servant doesn't have anyone cross it, but the dominant has the right to restrict the use of the servant estate. -For example, views. An easement can be made restricting houses on lakes from building too high, restricting the views of other properties.

Possessory

The intent and right of a person to occupy and/or exercise control over a particular plot of land.

Right-of-Way

The right to pass over another's land pursuant to an easement or license. -Considered an appurtenance

If a corporation doesn't may taxes...

The state will strip it of its power and take back its corporate title.

Why municipality wants land to be active...

Then they can get tax money on it.

Surplus Money

When a lien is on a property and it gets sold. If there is more money there than is owed to a bank, it is called surplus money. -Partys can lay claim to the extra money, it doesn't necessarily get kept by the seller.

How to know a lien exists...

When someone is going to buy a property, the purchasers attorney obtains a title report and this document will have listings of liens that are found of about through title searched.

Corporation Franchise Tax Liens

When the purchaser gets the title report, he will find out who is the owner of the property. In order to get a clear title, they must produce tax returns to prove their taxes are up to date.

All taxes must be paid up before....

the sale of a property can go through.

All liens must be resolved before...

the transfer of a title.