Aceable Agent Level 2 - Chapter 3

What is a constructive notice?

- A constructive notice is the legal presumption that individuals will obtain information through due diligence. - If a party places their claim to a property in a public record (such as a deed), it is considered that other properties have been served constructive notice; This is a legal claim regardless of whether the notice is communicated by any other means.

Why/how are leases a form of encumbrance?

- A lease is an encumbrance because the party residing in the property does not own the title to the property. - The lessor's use of the property is significantly limited. - If a home is being leased, then the owner can't just go hang out in the home even though they own it.

What is a license?

- A license is the revocable and temporary permission to use someone else's property for a specific purpose. - A license does NOT run with the land or transfer with the transfer of deed or title, which is what makes a license different from an encumbrance. *Example: A landowner permits an outside party to hunt on their property.

Key Terms to Know: What is a party wall?

- A party wall is a wall shared by two separate properties. - The owners on each side share the right of use, often by means of an easement.

Key Terms to Know: What is a quiet title suit?

- A quiet title suit is a lawsuit brought with the purpose of removing any outstanding ownership claim, title defect, or encumbrance on a property. - The process of terminating an easement.

Type of Encumbrance: What is a deed restriction?

- Also known as a restrictive covenant, a deed restriction is a type of non-governmental private land use control. - Deed restrictions are put into place by the land developer in order to fulfill aspects of the master plan.

Terminating an easement: How can an easement be terminated through expiration of purpose?

- An easement can also be terminated when there is an expiration of purpose that makes the easement pointless. - Example: If a a property is destroyed by a natural disaster, the easement is terminated automatically. If the property is rebuilt, a new easement is needed.

Terminating an easement: How can an easement be terminated through abandonment?

- An easement can be abandoned due to non-usage. - This failure to use and occupy the property has to be combined with a statement or act that makes it clear that the parties are abandoning the easement.

Terminating an easement: How can an easement be terminated through court action?

- An easement can be canceled by court action if one of the parties wants it to be terminated. - There is no guarantee that the court will allow termination, and going to court is only an option if the easement is NOT a necessity for the parties.

Terminating an easement: How can an easement be terminated through prescription?

- An easement can be lost by prescription if the easement owner fails to use the property for 10 years. -

Terminating an easement: How can an easement be terminated through release?

- An easement can be release by the person who has the right house the easement (the dominant tenant). - This is achieved by all parties signing a document that says the easement-holder releases their interest in the property.

What is an easement in gross?

- An easement in gross applies to a person or entity, not the specific land. - The beneficiary is called the dominant tenant. - Expires on the death of the person, or when the property changes hands (unless renewed).

Type of Encumbrance: What is an easement?

- An easement is an interest in, or a right to use, another individual's land or property, generally for a specific, limited purpose. *Example: Use of a shared driveway to access an otherwise landlocked parcel of land.

What is an encroachment?

- An encroachment is a physical property that crosses the boundary into a neighboring landowner's property. - An encroachment is created when one person's property - such a fence, tree, or driveway - crosses the property boundary into an adjacent property without direct permission. *Good way to remember: Cockroaches are known offenders of interfering with people's property.

What is an encumbrance?

- An encumbrance is a non-possessory interest in a property that burdens the title. - Encumbrances affect the property's clear title and may limit the use of the property by the fee title owner.

What does it mean if someone has an interest in a piece of real estate that is possessory.

- An interest in property is possessory if it includes the right to possess and occupy the property, now of in the future. - This is the kind of interest you would have in your own home.

Key Terms to Know: What are appurtenances?

- Appurtenances are rights that run with real property ownership. - They are most often transferred with the property, but possible to sell separately.

If a buyer looks at a site and notices that there are two utility poles on the property, (which the buyer should be able to infer that the utility company has a easement right to install and service the utility poles) is constructive notice in the public record of the easement by the utility company required for its legal interest to be valid?

- Constructive notice in the public record of the easement is not required. - The presence of the utility company's poles on the property constitute constructive notice of their easement right.

Key Terms to Know: What is a lien?

- Creditors place liens on (real or personal) property to secure the debt you owe them. - Liens can give the creditors the legal right to seize your property in order to obtain the money.

How can you identify an encroachment, and prevent it from becoming a problem in a sale?

- Encroachments can be identified on a survey, which is typically required in the conveyance of real estate. - A survey identifies what is properly built on the land.

What is a negative easement?

- If the easement does not allow a property owner to perform an otherwise legal activity, then it is negative. *Example: If a property owner is prohibited from building a structure or planting a tree on their property because it would block a neighboring property's view.

What is an affirmative easement?

- If the easement gives the right for people to use personal property for a specific purpose, then it is affirmative. - Most easements fall under this category. *Example: A right to access a public bench through a gate on private property.

Key Terms to Know: What is a servient tenement?

- Servant tenement describes the parcel of land that must allow an adjacent owner to cross. - An easement appurtenant exists at the expense of this party.

Type of Encumbrance: What is a lien?

- The most common financial encumbrance that affects title. - A lien is the claim made by a creditor against real or personal property pledge by a debtor as collateral.

What is one of the major concerns with a property that has encumbrances?

- The property's perceived limited appeal to buyers. - Some encumbrances, like easements and liens, can render a property virtually unmarketable. - Buyers don't favor properties with encumbrances, because they may inherit that encumbrance if they purchase the property.

What is the difference between a license and an easement?

- With a license, the one whose land is being used by a non-owner can withdraw the license at any time. While an easement runs with the land / transfers with the deed or title. - Licenses can be established by oral agreement. While easements generally require legal action or a written agreement.

What are the ways to terminate an easement?

1. Abandonment 2. Release 3. Prescription 4. Merger 5. Expiration of purpose 6. Court action

What are the two general categories of easements?

1. Affirmative 2. Negative

An easement can either be one of two things:

1. Affirmative (allows someone to do something) 2. Negative (restricts someone from doing something)

What is the difference between adverse possession and easement by prescription?

1. An easement by prescription grants use of the property. 2. Adverse possession grants ownership of the property.

How are easements usually created?

1. Easement by grant 2. By mutual agreement 3. Easement by implication (by the operation of law) or implied easement.

What are the four types of encumbrances that can effect the use of real property?

1. Easements 2. Liens 3. Deed restrictions 4. Clouds on titles

What is the difference between and easement appurtenant and an easement in gross?

1. Easements in gross are granted to a person. 2. Easement appurtenants are granted to a property.

How can people try and solve an encroachment?

1. The property owner could simply talk to the encroaching party and ask them to move whatever is encroaching on the property. 2. The encroacher can always purchase the part of the land from the property owner that contains the encroachment. If a sale is to occur, the mortgage lender would need to be contacted. 3. If neither solution works, the issue might need to go to court

Key Terms to Know: What is a cloud?

A cloud is any claim to, or encumbrance on, the title to a property which affects transferability.

Type of Encumbrance: What is a cloud on the title?

A cloud on the title is a dispute on an otherwise clear title. *Example: If a homeowner dies, and the home is inherited by a relative who wants to sell it but the estate was not probated (the validity of the will was not established), then the agent may have to assist in locating others who may have a claim in the inheritance.

Key Terms to Know: What is a dominant tenement?

A dominant tenement is the parcel of land that benefits from an easement appurtenant by having the right to cross another owner's adjacent land.

What is a floating easement?

A floating easement just means that there is no exact, fixed location that the easement grants access to. The dominant estate has access to cross the land wherever they need.

What does it mean if a piece of land is landlocked?

A landlocked piece of land is a piece of land which is not accessible by any public means.

What is a party wall (even a wall can be considered an easement)?

A party wall is a wall shared by two separate properties, The owners on each side share the right of use, often as an easement - both property owners have an appurtenant easement in the other side of the wall.

When an easement is terminated by court action, what is the process called?

A quiet title suit

What is an easement by necessity?

A type of easement by implication that occurs when the dominant tenement could not be used without an easement, even without a longstanding, apparent use.

What does actual notice mean?

Actual notice is that next level of notice; it means the buyer is actually aware of it.

Key Terms to Know: What is an adverse possession?

An adverse possession is an involuntary transfer of title - from an owner who does not use or inspect their land for a number of years - to another person who has some claim to the land and takes possession.

What is adverse possession?

An adverse possession is granted when a land owner does not use their land or inspect it for many years. The owner may lose the title to another person who has some claim to the land, takes possession, and uses the land. Must be a possession for 10 years to be granted.

Easement Appurtenant

An easement appurtenant is an easement that exists when two different parties own adjacent parcels of land and one owner has the ability to cross the other's land. - This type of easement transfers with the land and cannot be discontinued by a new property owner.

Key Terms to Know: What is an easement by condemnation?

An easement by condemnation is an easement in which private property is taken for public use via eminent domain (declaration that a structure must be closed or demolished because it is unfit for occupants or the property is needed for the public).

What is an easement by condemnation?

An easement by condemnation is an easement in which private property is taken for public use.

What is an easement by prescription?

An easement by prescription is granted after the dominant estate has used the property in a continuous and open manner for a prescribed period of time without the owners permission.

What is an easement for light and air?

An easement for light and air is a negative appurtenant easement that prevents the owner of adjoining from doing anything that could block light and air from the dominant tenement. - Sometimes called a view easement.

Key Terms to Know: What is an easement in gross?

An easement in gross is an easement that applies to the person or entity, not the specific land.

Key Terms to Know: What is an easement?

An easement is an interest in, or right to use, another individual's land or property, generally for a specific, limited purpose.

Jim's family decided to sell one of their next-door brownstones, but still wanted to be able to use the next door driveway to access their parking spot. In the deed of the house they sold, they created an easement across the driveway. What kind of easement is it?

An easement placed in a deed is an easement by grant, in this case, an easement by express grant.

Example of an Easement in gross:

An electric company would have the right to be on someone's land to clear limbs from power lines thanks to an easement in gross.

Key Terms to Know: What is an encroachment?

An encroachment is physical property that crosses the boundary into a neighboring landowner's property.

Key Terms to Know: What is an encumbrance?

An encumbrance is a non-possessory interest in a property that burdens the title.

What does it mean if someone has an interest in a piece of real estate that is non-possessory.

An interest in property is described as non-possessory if it does NOT include the right to possess or occupy the property.

What is non-possessory interest in a property?

Any of a category of rights held by one person to use the land that is in the possession of another.

What are appurtenances?

Appurtenances are rights that run with real property ownership. They are most often transferred with the property, but it is possible in some cases to sell appurtenances separately.

To establish an easement by prescription, how long does the area in question have to have been used continuously for, by the non-owner of the property?

At least 10 years.

The use of the easement by prescription would also have to be open, notorious, adverse, and hostile. What does adverse and hostile mean?

Hostile and adverse means that the person or people using the property do NOT have permission from the landowner. If there is permission, there is no easement by prescription. The easement could cause the owner serious harm or just slight inconvenience, but in general it will be against their best interests.

What is the importance of knowing your clients plans pertaining to a potential home or property, and knowing about any easements and deed restrictions?

If you sell a home to your client, without informing them of deed restrictions and easements attached to the title, they may not be able to make the renovations or improvements that they planned to.

When going through the closing process, where can the agent find any easements?

In the county records.

Key Terms to Know: What does landlocked mean?

Landlocked is used to describe a piece of land which is not accessible by any public means.

Licenses and encroachments have an effect on the ownership rights of a property owner; but are they considered encumbrances?

No

Are easements in gross transferable?

No, if a home owner sells their house, the easement does not transfer to the new owner. If the new owner still wants the rights, they would have to negotiate a new easement.

The use of the easement by prescription would also have to be open, notorious, adverse, and hostile. What does open and notorious mean?

Open and notorious is a way of saying that the use of the property can't be a secret. It should be obvious to anyone who observes the property. If the owner keeps and eye on the property, they would definitely know about it.

Terminating an easement: How can an easement be terminated through merger?

Termination of an easement can result from a merger in which multiple separate properties are merged together and owed by one person.

What is a quitclaim deed?

The document an ex would have to sign to clear up the title in order to "quit" or terminate their rights or claim to the property before the property can be sold.

There are certain documents involving encumbrances that need to be recorded in the public record; What should the history of a title reveal?

The history of a title should reveal all information that a prospective buyer or property owner needs to know in order to successfully transfer the title of a property free from encumbrances.

Servient Tenement

The other parcel that must allow such crossing is called the servant tenement.

Dominant Tenement

The parcel of land that benefits from an easement appurtenant by having the right to cross another owner's adjacent land is called the dominant tenement.

How is an easement by condemnation made possible?

This is made possible by eminent domain, which is the government's power to seize private property for public use. - The government must pay the property owner just compensation for the property.

Example of an easement by necessity:

When an owner cuts up a larger piece of property into two or more pieces to sell them off, it's possible that the owner of the properties in the back will be landlocked - they won't have a road to get in or out of the property unless they drive across someone else's land. There is no other choice but to use someone else's land.

Are easements attached to title?

Yes, but they don't have to be forever.

Do easements run with the land?

Yes, easements run with the land, meaning these rights of use by another will convey in the transfer of that deed or title.

Can encumbrances transfer with the transfer of the deed or ownership?

Yes, encumbrances are attached to the title, not the owner of the property.

Could a cloud on the title be created by some type of fraud?

Yes, fraud is an example of how a cloud on the title could be created.

Are easement appurtenants transferable?

Yes, if a home owner sells their house, the easement stills exists for the new owner. The easement belongs to the land, it doesn't matter who owns it.

Are local zoning laws and environmental regulations considered encumbrances?

Yes, while they don't look quite so drastic to buyer, they are considered encumbrances.