Chapter 3- Encumbrances : California Real Estate Principles 14 Edition

2 types that A homestead is terminated by

*1. Declaration of Abandonment* *2. the sale of the homesteaded property.*

3 Basic ways that Easements are created

*1. Express Grant* ( in writing) As in a Deed or Contract *2. Implication of Law* ( Implied easement) *3. Long Use* ( Prescription)

*Easements may be terminated* in several ways

*1. Express Release* : Dominant tenement can release ( terminate) an easement by recording a quitclaim deed. *2. Merger of Dominant and Servient tenements*: An easement is automatically terminate when the dominant and Servient tenements merge into a common, or single, ownership. *3. Excessive Use* - may be forfeited through a court injunction. *4. Abandonment and Non Use*: No use can only terminate an easement created by prescription *5. Destruction of Servient Tenement*.

There are 4 Certain requirements in order for a "declaration of Homestead" to *be Valid* . *Omission* of any one of these *Will make the homestead VOID*

*1.* A statement showing the claimant is the head of a family and stating the name of the spouse. "Head of family" may be anyone who lives in the home and provides for any relative living in the same house. *2.* A statement that the claimant is residing on the premises and claims it as his or her homestead. *3.* A description of the premises and an estimate of cash value. *4.* it further provides that the declaration of homestead may need to contain a statement as to the character of the property; that no former declaration has been made and that it is within the limits prescribed by law.

Mechanic's Liens is filed against a property must be

*1.* be recorded to be valid *2.* dates back to the time work began on the project. ( Scheme of Improvements)

All Liens are encumbrances

*NOT* All encumbrances are liens. ( why All encumbrances are *NOT* Liens : like *easement* it is Non Encumbrance and it is not a lien)

The difference between property taxes and special assessments is that

*Special assessments* are levied for the cost of specific local improvements, while *property tax* revenue goes into the general fund.

If a contractor files a mechanic's lien, it takes priority over all other liens *EXCEPT*

*Taxes, special assessments and trust deeds filed prior to the "Start of work"*

*A Judgment Lien be terminated* by

- *The Satisfaction of the judgment* - *A Bond is posted* - *The judge grants a new trial*

Abstract of Judgment

- A *recorded document* of the essential provisions of a court judgment - *A judgment lien is good for 10 years* Một tài liệu ghi lại các quy định cần thiết của một phán quyết của tòa án

Conditions

- A limiting restriction stating that upon the happening or not happening of some stated event, the estate shall be changed in some manner. - *Only Some covenants "run with the land," but ALL conditions "run with the Land"*

Covenant

- A promise to do or not to do a particular thing - *Only Some covenants "run with the land," but ALL conditions "run with the Land"*

Servient Tenement

- A property that is burdened by an easement đất / tài sản mà bị bất lợi hay gánh nặng từ Easement - The owner of the *Servient tenement CANNOT terminate the easement*; it must be *"Serve"* the *Dominant tenement*.

Easement in Gross

- An easement for the benefit of a person or utility company rather than for the benefit of adjacent landowners. ( example telephone company ) - An *"easement in gross* goes to a *person* whereas An *"Appurtenant easement"* goes with the *Land*

Easement Appurtenant

- An easement for the benefit of the owner of an adjacent parcel of land. - An *"Appurtenant easement"* goes with the *Land*, whereas an *"easement in gross* goes to a *person*

Satisfaction

- Discharge of a mortgage or trust deed from the records upon payment of the debt. Make sure you receive a Deed of Reconveyance to prove that you paid off the deed of trust. - *Most "Judgment Liens" are terminated by the "Satisfaction of the judgment" (Judgment is Satisfied) - * should be filed with the *the clerk of the court*

A "Homestead" *Does NOT* protect a homeowner against

- Foreclosure on a trust deed, - Mechanic's lien - Lien filed *Prior* to the filing of the homestead.

*Special Assessments*

- Local improvements are paid by the property owner in a given district - Like Developers finance roads, schools, and other off-site improvement with "Mello-Roos Bond," - *Sellers must disclose if their property is subject to a Mello-Roos lien

Dominant Tenement

- Real property that benefits from an easement. đất mà được chiêm ưu thế /được lợi ích từ Easement - The *Dominant tenement* and the *servient tenement* DO NOT need to physically abut (touch) each other.

*Encroachment*

- The construction of improvements on the property of another. - Must be removed by owner by *3 Years* or lose your right. Lấn chiếm - Việc xây dựng trên đất /tài sản của người khác. example: your neighbor builds a driveway over your property,you have *3 years* to sue your neighbor to have the encroachment removed.

Attachment

- The process by which real or personal property is seized by the court for the purpose of assuring payment. - An attachment is a prejudgment process that *creates a lien,* - *Good for 3 years which does NOT terminate on the death of the property owner.*

*Injunction* (Court Order to Stop)

- is a court order which can restrict a party from doing an act such as violating private deed restrictions. - Example: Mr. Tran has been burning rubbish on his own property. The neighbors have complained and have secured *a court order*, ordering Mr. Tran *to STOP* the offending practice. *The court order* is called an *Injunction*

A Promissory Note (which accompanies the trust deed)

- is evidence of the *Debt*. - *Trust deed and Mortgage* are *Personal property*.

Preliminary Notice must be given :

1. *Before filing a mechanic's liens* 2. *Within 20 days of supplying labor or services.*

Easement could created for:

1. *Perpetuity* 2. *The lifetime of a person* 3. *A term of years*

*LIMIT TIME TO FILES* of Notice of completion or file a claim by General contract and Subcontractor.

1. *The owner* should be recorded " Notice of Completion" *within 10 days of completion.* 2. *General Contractor* to file a claim *within 60 days when the owner accepts the finished work.* 3. *Subcontract* to file a claim *within 30 days of completion.* 4. *90 days* to file a claim if *the owner doesn't file a valid " Notice of completion"*

4 types of Encumbrances - *Liens ( Money Owed)*

1. *Trust Deeds and Mortgages*: Voluntary & Specific 2. *Mechanic's Liens* : Involuntary and Specific 3. *Judgments & Attachments*: Involuntary and General Liens 4. *Tax Liens & Special Assessments*: Government - Specific or General Liens

Liens are either

1. *Voluntary* - are money debts that an owner agrees to pay. 2. *Involuntary* -are money obligation that create a burden on a property by government taxes or legal action because of unpaid bill 3. *Specific* -are liens against just one property (such as Property taxes) 4. *General* - are liens on all the properties of the owner, not just one (such as Federal or state income taxes and judgment liens)

2 Types of Easements

1. Easement Appurtenant ( runs with the land) 2. Easement In Gross ( Does Not Benefit Adjoining Landowner)

*3 types of Encumbrances - Items that affect Physical Use ( Non money)*

1. Easements ( The Rights to Use Another's Land) 2. Building Restrictions and Zoning ( Public and Private) 3. Encroachments ( three Years to Act)

2 Types of Home HOMESTEADS

1. Head of the household 2. Federal Homestead Act of 1862, whereby the government encouraged settlements ( gave land free to those who made certain improvements)

2 Types of Encumbrances

1. Liens ( Money Owed) 2. Items that affect Physical Use ( Non-Money)

*4 alternatives occurs, the work is considered to be complete* 4 lựa chọn thay thế Xảy ra, mà công việc được xem xét là hoàn thành

1. Occupation or use by owner After cessation of labor ( sau khi chấm dứt công việc) 2. Acceptance of work improvements by owner. 3. A cessation labor for 60 continuous days 4. A cessation of labor for 30 continuous days if the owner files " Notice of Cessation" with the county recorder's office.

Possession for *5 continuous years* can create a *PRESCRIPTIVE EASEMENT*, as long as the use is :

1. Open and notorious 2. Uninterrupted for 5 years 3. Under a claim of right or color of title 4. Hostile (without permission of the owner)

2 Types of *Easement Appurtenant*

1. The Dominant Tenement 2. Servient Tenement

Sheriff's Sale

A court ordered sale of real or personal property by the sheriff pursuant to the execution of a judgment.

Lien

A form of encumbrance that usually makes specific property security for the payment of debt. ( Thế chấp tài sản )

Declaration of Homestead

A formal statement that *protects the head of the household from losing the property* to the claims of creditors, usually up to a set maximum amount. - *Individual/Single* = $75,000 - *Couples* = $100,000 - *Seniors (over 65), disabled or over 55 with limited income* =$175,000

Mechanic's Lien

A lien, created by statute, which exists against real or personal property in favor of persons who have performed work or furnished materials for the improvement of real property. *A mechanic's lien dates back to the time work began on the project* example : người sửa nhà , home repair

Blanket Encumbrance (*Blanket trust Deed*)

A lien, usually a trust deed in California, covering more than one property of the borrower.

Restrictions

A limitation on the use of real property. These limitations fall into 2 general classifications: *Public and private. Zoning* - *Public Restrictions* are limits made by governmental agencies, usually by cities and counties, in the form of zoning - *Private Restriction* are made by the present or previous landowners and are created only for their benefit. - *Zoning restriction* are created by and for the benefit of the general public to insure its health, safety, comfort. Is the restriction on the use of private property by the *local government agency* ( likes: the setbacks required, and the height limit on any structures)

*Scheme of Improvements*

A mechanic's lien (labor or materials dates back to the beginning (commencement) of work on the project

Lis Pendens

A notice filed or recorded for the purpose of warning all persons that the title to certain real property is in litigation. Một thông báo duoc nộp hay record with county với mục đích cảnh báo mọi người rằng các quyền sở hữu bất động sản đang trong sự tranh chấp.

Preliminary Notice

A notice that informs or warns owner, lenders, and general contractors that subcontractors have been hired, or materials have been supplied to a particular job site giấy cảnh báo đến chủ nhà trước khi subcontractors, or general contractor filing claim lien to the owner property.

Notice of Non-Responsiblility

A notice, recorded and posted by the property owner to relieve he or she of responsibility for the cost of unauthorized work done on his or her property or materials furnished.

Defendant

A person against whom a civil or criminal action is taken. người bị kiện

*Easement*

A right, limited to a specific use, that one party has in the land of another.

Declaration of Abandoment

A statement declaring the intent to give up a homestead, usually to declare a homestead on a new residence.

Homestead

A statutory protection of a home from the claims of certain creditors and judgments up to a specified amount.

Writ of Execution

A writ to carry out a court order, usually arising from a judgment. Lệnh thực hiện của tòa

The best describes the situation of Landowner Jacobs granted the telephone company the right to erect telephone poles on his land

An encumbrance ( this easement in gross is an Encumbrance)

Mortgage

An instrument, recognized by law, by which property is hypothecated to secure the payment of a debt. This instrument is not commonly used in California, but is popular on the east coast.

Encumbrace

Anything that affects or limits the fee simple title to, or value of, property, e.g., mortgages or easements. ( disadvantage; làm trở ngại/bất lợi )

*3 types* of *private building restrictions*:

CC&Rs: 1. *Covenants* 2. *Conditions* 3. *Restrictions*

An easement obtained by Prescription can *be terminated*

If *not used for 5 years.*

Plaintiff

In a court action, the one who sues; the complainant. người thưa kiện

If a condominium owner breaches a "condition" in the CC&Rs, this would be Nếu một chủ sở hữu chung cư vi phạm một "điều kiện" trong CC & Rs, đây sẽ là

More stringent than breaching a "covenant". Nghiêm ngặt hơn so vi phạm "giao ước".

A condominium's CC&Rs prohibit "for sale" signs. The owner may

Place a reasonably sized "for sale" sign on the property.

*Easement by prescription*

Prescription is an easement to continue susing land by virtue of haveing used it for a long period of time

Race Restriction - *In 1961*

The California State Legislature enacted a law that voided all *restrictions as to race*.

Daniel, who owned two pieces of adjacent land, sold one of them to Charles, reserving an easement for himself at the time. Daniel soon left the state for 21 years, during which time he did not use the easement. When Daniel finally returned to the state, he discovered that :

The easement was still valid and enforceable ( Written contract, for legal protection, this contract should be acknowledged and recorded)

Trust Deed

a legal document by which a borrower pledges certain real property as collateral for repayment of a loan. In addition to the buyer and seller, there is a third party to the transaction known as a trustee.

A voluntary Lien does *NOT*

have to be recorded

A recorded *Homestead*

is The least "impact" on property taxes. (ít "va chạm" nhất về thuế bất động sản)