Legal Aspects of Real Estate

Methods of Describing Real Estate

(1) Metes and bounds: uses physical features of the local geography, along with directions and distances, to define and describe the boundaries of a parcel of land (2) Rectangular (or government) survey: a system of describing land by referring to meridians and baselines (3) Lot and block (recorded plat): used to locate and identify land, particularly for lots in densely populated metropolitan areas, suburban areas, and areas beyond the suburbs (4) References to records of survey or tax assessor's maps could be used provided those records or maps have been recorded in the county where the property is located. (5) Some kinds of generalized descriptions, such as "all my lands," or popular names, such as "Sunset Horse Farm," may be acceptable as long as the use of those names or descriptions make it possible to establish exactly what property is being described. (6) Another way of legally describing property would be simply to refer to the description of that property in an earlier recorded document. For example: "I hereby grant all the property described in the deed of trust recorded in Orange County on July 27, 1999; under recording number 7202150001..."

Judicial Remedies - Monetary

- Compensatory Damages - These damages are intended to pay the person who was injured. The court could also choose to assess a party with court costs and attorney fees. - Exemplary Damages - These damages are often called punitive damages and are awarded when the defendant's deliberate acts were malicious, violent, oppressive, fraudulent, cruel, or grossly reckless. - Liquidated Damages - This compensation is awarded by a court judgment or by a contract stipulation regarding breach of contract for a loss or injury to a person or a person's rights or Generally, contracts that involve the exchange of money or the promise of performance have a liquidated damages stipulation, which establishes a predetermined sum that must be paid if a party fails to perform as promised. - Nominal Damages - These damages are issued by a court when a legal wrong has occurred, but where there was no actual financial loss as a result of that legal wrong. Typically, when a nominal damage award is used, the plaintiff will be awarded $1 or $2.

California Appellate Courts

- Courts of Appeal, (6 Districts made up of counties) • 3 justices • determine if a superior court made an error and, if so, to correct it. • does not give new trials • If the court of appeals determines there was an error, the case will be sent back to the trial court for resolution. The courts of appeal can agree with the decision of the trial court, agree in part and disagree in part, or disagree and reverse the trial judge's decision. - State Supreme Court • Made of 7 justices • death penalty appeals and disciplinary cases involving lawyers and judges are not heard in the court of appeal. They go directly to the Supreme Court.

Survey - Elevation (Datum and Benchmark)

- Datums = reference points like height above sea level - Benchmarks = local elevation markers for nearby properties.

Regulation of Real Property Interests

- Federal regulation- grants overall rights of ownership; controls broad usage standards, discrimination. - State regulation- primary regulatory entities of the real estate business; establish real estate license laws and qualifications and sets regional usage standards. - Local regulation- levies real estate taxes; controls specific usage. - Judicial regulation- applies case law and common law to disputes.

Survey - Residential Survey

- House location survey - which is also sometimes called a drive-by survey, is designed to show the location of the house and other large structures on the property, as well as the orientation of those structures in relation to each other. - Cadastral land surveys - typically contain much more information. A cadastral document shows exactly where boundaries, easements, and property lines are located. Surveyors typically go to the property and make real-time measurements, which are compared with archived land records to create a more complete picture of what is located where.

U.S. Constitution article 1-3

- LEGISLATIVE- Congress has the power to make the laws. Bills are introduced into either the Senate or the House of Representatives, where they are considered, debated, sometimes amended, and voted upon. Any bill passed by both houses is sent to the President. If the President signs it, the bill becomes law. If the President vetoes it, it may still become law if re-passed by a two-thirds vote of both houses. - EXECUTIVE- The President has the power to enforce the laws. He or she may sign or veto bills, issue pardons for federal crimes, and remove executive officials without approval from the legislative or judicial branches. With Senate approval, the President may appoint members to the executive branch and federal regulatory commissions and he or she may appoint ambassadors and federal judges. - JUDICIAL- The courts have the power to enforce, interpret, and determine the validity of the law. The courts also make law in the sense that in cases where there is no legal precedent, the decision of the court becomes binding, or at least serves as precedent, when similar cases arise.

Non-Judicial Remedies

- Out-Of Court Settlement Procedures - The vast majority of disputes are settled out of court. Most don't even reach the point of a suit being filed. And in the case where a complaint is filed, it is often settled before trial. - Alternative Dispute Resolution (ADR) - which features private approaches to resolving the disputes. The Judicial Improvements Act of 1990 and the Alternative Dispute Resolution Act of 1998 encourage, and in some cases require, the use of ADR by federal district courts. Many states have comparable laws for their courts as well. ADR is also often sought after to resolve administrative disputes.

Steps to filling a lawsuit

- Pleadings - Statements by the plaintiff and the defendant that detail the facts, charges, and defenses of a case. - Discovery - A phase in the litigation process during which the opposing parties may obtain information from each other and from third parties prior to trial. - Pretrial - pretrial conference to prepare a trial plan, which includes a strategy regarding the entry of evidence such as testimony and exhibits. After the conference, the court will enter a pretrial order that recounts the action taken at the conference and controls the course of the trial. The parties will re-examine those costs against what they may gain and how likely they are to win at trial. At this point, the parties may consider a settlement of some sort. Over 95% of civil cases settle before a judgment, and most of those settle before a trial begins. - Trial - the parties present evidence in support of their claims or defenses to a jury and/or judge. Jury selection Opening statement Plaintiff's case presentation Defendant's case presentation Plaintiff's rebuttal case Closing argument Jury instructions Jury deliberations Verdict/Judgment - Post trial - 1/ appeal: The appellate court usually reviews a case for legal error only. Except under rare circumstances, the appellate court will not review factual evidence or override a jury's findings of fact. 2/ collecting a judgement: In most cases, a lawyer will not agree to take on a case if the defendant does not have insurance or if the defendant's financial condition would make collection unlikely. If no insurance: • judgement lien on the defendant's real property • garnishment: The defendant's employer is served with an earnings withholding order. usually 75% of an employee's earnings are exempt from garnishment.

Judicial Remedies - Equitable

- Specific Performance - This remedy forces a party to execute a contract according to the precise agreed-upon terms or to execute it extensively so that justice is achieved between the Specific performance grants the plaintiff what he or she actually bargained for in the contract rather than damages for not receiving it. - Rescission - This remedy relates to the mutual release of both parties from the contract. When this happens, any money given is returned. This results when a contract becomes impossible to perform for some reason. - Reformation - This refers to the judicial correction or change of an existing document by court order when one of the parties enters a petition for a change. Reformation will be ordered if the parties have entered into a binding agreement and some related writing does not conform to their agreement, either due to mistake or fraud. - Injunction - This remedy comes in the form of a court order that requires a party to do or refrain from doing specific acts. Any party that fails to comply with an injunction faces criminal or civil penalties, including possible monetary sanctions and even imprisonment. - Foreclosure - This action seeks to terminate a person's interest in a property. It is brought by a lienholder, such as a lender or someone who holds a mechanic's lien on a property. - Quiet Title - This is a legal action to determine who holds ownership in a parcel of real property. It is used to provide an owner with clear title to a property or to remove a cloud on a title. - Declaratory Relief Action - This remedy refers to a judgment of a court which determines the rights of parties without ordering anything be done or awarding damages. The party requesting the declaratory judgment is looking for an official declaration of the status of a matter in controversy. For example, a party to a contract may seek the legal interpretation of a contract to determine the parties' rights.

Survey- Land Survey Application

-Boundaries for properties -Topography for engineering designs -Outline elevations for flood insurance for home sites -Title for real estate transactions, subdivisions and other construction projects

Federal Laws for Real Estate

-Civil Rights Act of 1866 -Civil Rights Act of 1968 -Section 504 of the Rehabilitation Act of 1973 -Housing and Community Development Act of 1974 -Equal Credit Opportunity Act of 1974 -Fair Housing Amendment of 1988 -Title II of the Americans with Disabilities Act of 1990 (ADA) -The Housing for Older Persons Act of 1995 (HOPA) -Real Estate Settlement Procedures Act (RESPA) -Fair Credit Reporting Act -Equal Credit Opportunity Act -Truth in Lending Act -Interstate Land Sales Full Disclosure Act -Foreign Investment in Real Property Tax Act -Internal Revenue Code -Federal Bankruptcy Act

Corporeal and incorporeal property

-Corporeal personal property including such items as animals, merchandise and jewelry. -Incorporeal personal property comprised of such rights as stocks, bonds, patents and copyrights.

Laws purpose

-Set standards -Preserve order -Settle disputes -Safeguard liberties and rights -enforcing promises through the use of contracts

Federal Agency for Real Estate

-The Federal Trade Commission (FTC) -The Department of Housing and Urban Development (HUD) -The Federal Housing Administration (FHA) -The Internal Revenue Service (IRS) -The Environmental Protection Agency (EPA)

Tenancy in Common (TIC)

1) Two or more owners 2) Identical rights: equal right to possess 3) Interests individually owned: distinct and separable ownership of their respective interests. 4) Electable ownership shares: Each party own a percentage of share (ex: 20% of the tenancy) 5) No survivorship: can be inherited by heirs 6) No unity of time

Joint Tenancy (same rights)

1) Unity of ownership: all hold one title to the property 2) Equal ownership = equal shares of the property 3) Transfer of interest: may transfer his or her interest in the property to an outside party, but only as a tenancy in common interest. The remaining joint tenants continue to own an undivided interest in the property, less the new cotenant's share. 4) Survivorship: all interests and rights pass to the surviving joint tenants free from any claims of creditors or heirs. ** Creation** PITT (unity of Possession, Interest, Title and Time) Must legally name the parties as Joint tenants with right of survivorship and by agreement between parties not by law. In some states, a severalty owner may create a joint tenancy with other parties without the presence of the four unities by deeding the property to himself or herself and other parties as joint tenants. **Termination** Partition suit: physically divide the property by the court or order to sell and divide the proceeds Foreclosure and Bankruptcy

Liens (Types)

1) Voluntary (ex: mortgage) 2) Involuntary: Legal process placed against a property. -If statutory law = statutory lien (ex: real estate tax) -If court action = equitable lien (ex: judgement lien as security for money judgement) 3) General: Placed against any and all real and personal property (ex: inheritance tax lien) 4) Specific: Attached to a single item of real or personal property (ex: mortgage for one property) 5) Superior or senior: receive first payment from the proceeds of a foreclosure (ex: real estate tax, special easement, inheritance tax) 6) inferior or junior (ex: income tax liens, state intangible tax, state corporation franchise tax)

Trial Steps

A trial is made up of: • Jury selection (6 to 12 is common) Challenges for cause: dismiss potential jurors for reasons such as bias; Preemptory challenges: dismiss potential jurors for any reason or no reason at all except for race or sex. • Opening statement: preview "what the evidence will show" • Plaintiff's case presentation: testimony and exhibits • Defendant's case presentation: direct examination and cross-examination • Plaintiff's rebuttal case: "same" • Closing argument: time when each party summarizes and gets inferences from the facts, links the facts to the law, and argues to the jury why it should grant a verdict in such party's favor. • Jury instructions: summaries of the law that a judge reads and then gives to the jury to aid in deliberations. • Jury deliberations • Verdict/Judgment: unanimous verdict or majority verdict. If the jury is unable to reach a verdict after a period of time, the judge may reluctantly declare a hung jury. If this happens, the parties will need to retry the case at a later date. Following a verdict, the judge will hear any motions challenging the verdict—such as a motion for a new trial or a motion for judgment notwithstanding the verdict. Judges seldom grant these motions because doing so results in the overturn of jury verdicts. Following the denial of any post-trial motions, the judge will enter the court's judgment on the verdict and the trial is over.

Easements

Affirmative: allowing use Negative: prohibiting use - Easement Appurtenance - gives a property owner a right of usage to portions of an adjoining property owned by another party. The property enjoying the usage right is called the dominant tenement, or dominant estate. The property containing the physical easement itself is the servient tenement, since it must serve the easement use. An easement appurtenant attaches to the estate and transfers with it unless specifically stated otherwise in the transaction documents ( part of the dominant estate's bundle of rights and the servient estate's obligation, or encumbrance. ) - Easement by Necessity - granted by a court law. Necessity and not just convenience must be shown when granting an easement by necessity. A property cannot be legally landlocked, or without legal access to a public thoroughfare. - Party Walls - Walls, fences, driveways, and walkways. - Easement in Gross - a personal right that one party grants to another to use the grantor's real property. The right does not attach to the grantor's estate. It involves only one property, and, consequently, does not benefit any property owned by the easement owner. There are no dominant or servient estates in an easement in gross. •Personal: granted for the grantee's lifetime. The right is irrevocable during this period, but terminates on the grantee's death. It may not be sold, assigned, transferred, or willed. A personal gross easement differs from a license in that the grantor of a license may revoke the usage right. •Commercial: granted to a business entity, rather than a private party. The right may by assigned, transferred, or willed.

Survey - Boundary Survey

Also referred to as a Land Survey Plat, a boundary survey locates and verifies all property corners and boundaries, shows the location of all improvements in relation to the property lines, includes an area of the overall property and shows any existing encroachments. The survey will also note any error between the found monumentation and the platted location of monuments. All easements as platted or of record are shown in detail as well.

Bill of Rights - Amendments 1-15

Amendment 1 - Freedom of speech, press, religion, peaceable assembly, and to petition the government Amendment 2 - Right for the people to keep and bear arms, as well as to maintain a militia Amendment 3 - Protection from housing of troops without the owner's permission Amendment 4 - Protection from unreasonable search and seizure Amendment 5 - Right to due process, prohibition of double jeopardy and self-incrimination, just compensation for the taking of private property Amendment 6 - Trial by jury and other rights of the accused Amendment 7 - Right to civil trial by jury Amendment 8 - Prohibition of excessive bail, as well as cruel and unusual punishment Amendment 9 - Protection of rights not specifically enumerated in the Bill of Rights Amendment 10 - Powers of states and people Amendment 13 - Abolition of slavery Amendment 14 - Civil rights Amendment 15 - Right to vote for blacks and former slaves

Personal Property definition

Any property not attached to land and the right associated with owning it. Items of personal property are also called chattels or personalty.

negotiable instrument

Article 3 and Article 4 of the Uniform Commercial Code govern the issuance and negotiation of negotiable instruments. It is an unconditional order or promise to pay an amount of money, with or without interest. Negotiable instruments are an alternate form of cash: -Drafts -Checks -Promissory Notes -Certificates of Deposit

Independent Federal Agencies

Before delegating authority to an agency, Congress must determine the basic legislative policy and outline standards for the agency to follow. Some agencies are under the direct supervision of one of the three branches of government. Others are independent, with their hearings and rules generally free from outside control. Some examples of independent federal agencies include the Federal Communications Commission, Federal Reserve Board, Federal Trade Commission, National Labor Relations Board, and the Securities and Exchange Commission.

Public Land Survey System (PLSS)

Began shortly after the American Revolution The Land Ordinance of 1785 and Northwest Ordinance of 1787

Uniform Commercial Code (UCC)

Body of laws governing commercial transactions in the United States. Created to: -Simplify, clarify and modernize the law governing commercial transactions. -Permit the continued expansion of commercial practices through custom, usage, and agreement of the parties. -Make uniform the law among the various jurisdictions. Several areas of the UCC are of particular interest to licensees: -Definition of personal property -Security interests in personal property -Bulk Sales Act -Statute of Frauds for personal property -What constitutes a fixture -Laws governing commercial property -Definition of negotiable instruments

State Law for Real Estate

Business and Professions Code Rumford Act Holden Act Uniform Commercial Code The Bulk Sales Law Statute of Frauds Revenue Acts The Landlord and Tenant Act

California Trial Courts

Called Superior Courts. At least one court in each. 58 counties. Each Superior Court has two jurisdictional divisions: -The Limited Jurisdiction Superior Courts handle civil cases under $25,000 and misdemeanor criminal cases. -The General Jurisdiction Superior Courts handle civil cases of more than $25,000, probate, divorces, and felony criminal cases. Real estate-related cases include mortgage foreclosures, quiet title actions, and most real estate disputes.

California state constitution

Considered the supreme law of the state but not above the U.S. constitution

Supreme Court

Consists of nine justices, each appointed by the President and confirmed by Congress. Appointment is for life. The President appoints one of the justices to be the Chief Justice. The Supreme Court does not hear evidence or testimony. It reviews and decides cases that come from the lower courts on appeal - from federal circuit courts, federal district courts, special federal courts, and the highest state courts (which in California is the state Supreme Court). Supreme Court exercises the power to determine constitutionality of statutes

Interest - freehold Estate

Fee Simple Estate - also called the "fee interest," or simply, the "fee." The owner of the fee simple interest is called the fee tenant. • Fee simple absolute • Fee simple defeasible : - Determinable. - The deed to the determinable estate states usage limitations. If the restrictions are violated, the estate automatically reverts to the grantor or heirs. - Condition subsequent - If any condition is breached, the previous owner may repossess the property. However, reversion of the estate is not automatic; the grantor must re-take physical possession within a certain time frame. - Executory interest - If a specific condition is violated, the property goes to a third party, not the grantor or heirs.

Real Property vs. Personal Property - Differentiation criteria

Fixtures - A personal property item that has been converted to real property by attachment to real estate. Typical examples are: chandeliers, toilets, water pumps, septic tanks, and window shutters. One's Original Intention - If someone attached an item to real property, yet intended to remove it after a period of time, the article may be deemed personal property. If a person intended an article to be a fixture, even though the item is easily removable, the article may be deemed a fixture. Adaptation - If an item is uniquely adapted to the property, or the property is custom-designed to accommodate the item, it may be deemed real property whether the item is easily removable or not. House keys, a garbage compactor, and a removable door screen are examples. Functionality - If an item is vital to the operation of the building, it may be deemed a fixture, even though perhaps easily removable. Window-unit air conditioners and detachable solar panels are possible examples. Relationship of Parties - If a tenant installs a fixture in order to conduct business, the fixture may be considered a trade fixture, which is the tenant's personal property. Sale or Lease Contract Provision - the listing of an item in the contract as a personal property item, or a fixture, overrides all other considerations.

Importance of laws for real estate

H ski for real estate professionals to learn about a number of laws. Agents must understand where the rules have come from and what supports those rules

Courts of Equity

Historically, courts whose decisions were more discretionary and based on moral principles, and which served as an antidote to the inflexibility of the common law

Riparian Rights definition

If a property is net to a stream or river, the owner's riparian rights are determined by whether the water is navigable or not navigable. If the property abuts a non-navigable stream, the owner enjoys unrestricted use of the water and owns the land beneath the stream to the stream's midpoint. If the waterway in question is navigable, the waterway is considered to be a public easement. In such a case, the owner's property extends to the water's edge, as opposed to the midpoint of the waterway. The state owns the land beneath the water. However, the landowner has right to all accretions, which is the land resulting from the soil build-up caused by the natural action of the river or stream.

Mechanic's lien for Homestead

If the work to be performed on a property is a homestead, both spouses must sign a contract before work is begun on the property. The contract requires the following: -The contract for work and materials must not be signed until five days after the loan application. -The owner has the right to back out of the contract for three days after signing. -The contract must be signed at the office of a title company, an attorney, or a third party lender. A mechanic's lien judgement can be attached to homestead property. If not exemptions apply, the owner may file an affidavit, along with notices with the county clerk of the county where the homestead is located. This affidavit serves as a release of a judgment lien against the owner's property. Certain notice requirements must be met in order to file an affidavit.

Physical Characteristics of Land

Immobility, Indestructibility, Uniqueness, Heterogeneity

Legal Remedy

In common law, a legal remedy consisted of money damages only. Compensatory damages.

Substantive Law

Law that defines, describes, regulates, and creates legal rights and obligations. Laws regarding contracts and real property fall into the category of substantive law. A law that prohibits trespassing on someone else's property is an example of a substantive law because it creates and explains trespassing and gives potential trespassers warning about their possible liability or punishment for disobeying the law.

Procedural law

Law that establishes the methods of enforcing the rights established by substantive law. A specific example of a procedural law is a statute of limitations. A statute of limitations creates a time limit for filing a civil lawsuit or initiating a criminal prosecution.

stare decisis

Let the decision stand; decisions are based on precedents from previous cases

Partnership - Limited Partnership

Limited partners are liable only to the extent of their investment. However, a limited partnership must have at least one general partner who has unlimited liability. Here are some important points about limited partnerships. - The partnership agreement must be in writing, and the partnership must file a formal certificate of limited partnership. - A limited partner cannot permit his or her name to be used in a way that would signify that he or she is a general partner. - According to the 1983 Revised Limited Partnership Act, partners may contribute services to the partnership. In the past, a limited partner could contribute only money to the partnership. - Any limited partner may ask for an accounting from a general partner. - Limited partners have the authority to get rid of the general partner for cause.

Dispute Resolution

Methods involving a neutral third party who is very familiar with the subject of the dispute. - Mediation - involves the use of a third party to listen, discuss, and attempt to help the disputing parties resolve their issue. Often used in settling labor disputes and in resolving consumer complaints. Some laws mandate that the disputing parties attempt mediation before they would be allowed to file a lawsuit. - Arbitration - Unlike a mediator, an arbitrator does have the power to make a final, binding decision. Arbitration is generally a shorter, less expensive version of litigation. Both sides are allowed to present evidence and arguments, but it is usually done more informally than in a court trial. Used when a contract requires it or permits a party to request it. Some state laws may mandate arbitration as in the case of medical malpractice. Courts have been known to reverse an arbitration award only if: -It went beyond the matters submitted to the arbitrator. -The arbitrator failed to follow statutory requirements. -The award arose out of fraud, partiality, or corruption. Arbitration awards are less likely to be reversed than court judgments. Arbitration clauses are routinely placed in many business contracts because arbitration: -Saves time and money -Promotes less hostile relations than litigation -Allows submission of complex issues to experts

Moral

Person's standards of behavior or beliefs regarding what is right or wrong

implied powers

Powers not specifically mentioned in the constitution

Real Property definition

Real estate (land + permanent structure) and the bundle of rights associated with owning the it

Real Property Rights

Right to use - use it in certain ways, such as mining, cultivating, landscaping, razing, and building on the property. The right is subject to the limitations of local zoning and the legality of the use. One's right to use may not infringe on the rights of others to use and enjoy their property Right to transfer - right to sell, bequeath, lease, donate, or assign ownership interests. An owner may transfer certain individual rights to the property without transferring total ownership. Also, one may transfer ownership while retaining individual interests. Right to encumber - the right to mortgage the property as collateral for debt. There may be restrictions to this right, such as a spouse's right to limit the degree to which a homestead may be mortgaged. Right to exclude - legal right to keep others off the property and to prosecute trespassers. Right that " run with the land" - called appurtenances and apply to those things that can be transferred along with the land upon its sale, such as air rights, surface rights, and subsurface rights. These appurtenant rights can be sold separately. An owner can, for example, transfer subsurface rights without transferring air rights. Similarly, an owner can rent air space without encumbering surface or subsurface rights.

Units of Measurements

Rod. 16.5 feet; 5.5 yards Chain. 66 feet; 4 rods; 100 links Mile. 5,280 feet; 1760 yards; 320 rods Sq. Mile. 640 acres Acre. 43,560 sq. feet; 160 sq. rods Section. 640 acres Sq. Foot. 144 sq. inches Sq. Yard. 9 sq. feet Cu. Yard. 27 cu. feet

Ethics

Rules of conduct or accepted behavior based on moral principles

Community Property Rights

Separate property consists of: - Property owned by either spouse at the time of the marriage - Property acquired by either spouse through inheritance or gift during the marriage - Property acquired with separate-property funds - Income from separate property A spouse may gain an equitable interest in separate property if: - the value of the separate property increases during the marriage - community property funds were used to discharge any debt on the separate property In California, if a husband and wife wish to create a right of survivorship, they must hold title as community property with right of survivorship. This form of ownership must be clearly expressed in the deed in order to be considered valid ( it's automatic and avoids probate court and its associated costs. )

Conversion - Severance and Affixing

Severance is the conversion of real property to personal property by detaching it from the real estate, such as by cutting down a tree, detaching a door from a shed, or removing an antenna from a roof. Affixing, or attachment, is the act of converting personal property to real property by attaching it to the real estate, such as by assembling a pile of bricks into a barbecue pit, or constructing a boat dock from wood planks.

Doctrine of Prior Appropriation

Since water is a resource necessary for survival, some states -- particularly those where water is scarce -- have taken the legal position that the state owns and controls all bodies of water. This position requires that property owners obtain permits for use of water. If a proposed usage is reasonable and beneficial, the state will grant a permit, which over time, can attach to the property of the permit holder.

Land Subjacent Support

Subjacent support refers to the right to have one's property supported from beneath the surface. Subjacent support issues can arise when a landowner has transferred rights to remove minerals to someone else. The owner of the mineral rights could be held liable for damage to the property due to underground excavation, even if such excavation was performed with care.

Tangible or Intangible Property definition

Tangible property is physical, visible, and material. Intangible property is abstract, having no physical existence in itself, other than as evidence of one's ownership interest.

California Homestead Law

The exemption for all homeowners will be a minimum of $300,000 and a maximum equal to the median home price in the homeowner's county with a cap of $600,000. The maximum homestead exemption will fluctuate with the median price of homes. Additionally, proceeds from a judgment lien foreclosure are distributed in the following way: 1) Payment of all liens and encumbrances not subject to the homestead exemption, such as mortgages, child support, taxes on the homestead, etc. 2) Payment to the homeowner according to the exemption amount 3) Payments related to the costs of selling the property 4) Payment to the judgment creditor who initiated the foreclosure 5) Any additional balance to the homeowner two types of exemptions in California: - Automatic homestead exemption - to protect equity when a court forces the sale of a house to pay for a judgment. Can be used to prevent the sale of a home if the sale proceeds are not sufficient to repay the outstanding liens and the homeowner's exemption amount. - Declared homestead exemption - protects a homeowner who voluntarily sells his or her home from judgment liens for six months. A declaration of homestead must be filed at the county recorder's office. Recording a homestead declaration provides the homeowner benefits in addition to those provided by the automatic exemption. They include: - Protection to voluntary sales: many judgment creditors may not try to force a sale. Instead, the creditor puts a lien on the surplus equity in a home. the homeowner's equity is off-limits for six months following the sale. - Rebuttable presumption that the homestead is valid: The creditor has the burden of proof in a declared homestead that the judgment debtor's homestead is valid. On the other hand, the homeowner with only automatic homestead has the burden of proof that the home is legally a homestead. - Judgment creditor's lien attaches only to surplus equity: a judgment creditor's lien only has value if there is surplus equity remaining after the exemption amount and all prior liens are accounted for.

Legal description of property

The general criterion for a legal description is that it alone provides sufficient data for a surveyor to locate the parcel. A legal description identifies the property as unique and distinct from all other properties. Provides accuracy and consistency over time. It facilitate transfers of ownership and prevent boundary disputes and problems with chain of title. Provides a basis for court rulings on encroachments and easements. A legal description is required for: -Public recording -Creating a valid deed of conveyance or lease -Completing mortgage documents -Executing and recording other legal documents

Torts and contracts

The individual states common laws of thoughts and contracts are unique because the powers of these belong exclusively to the state

Land

The legal concept of land encompasses: the surface area of the earth, everything beneath the surface of the earth extending downward to its center, all natural things permanently attached to the earth, the air above the surface of the earth extending outward to infinity.

Interest - Tenancies

The owner of the freehold estate is the freehold tenant, and the renter, or lessee, is the leasehold tenant.

Interest in Land - Eminent Domain

The power of the government, or a public utility such as the power company, takes private property for public use. The landowner is compensated at market value for the property. If the landowner does not agree on the compensation, condemnor can then bring a condemnation suit to have a court determine the amount of compensation to be given. However, there are limits to which a government can condemn a property. A landowner, through inverse condemnation, can be entitled to compensation from the state when the value of the land is reduced by 25% or more.

Interest in Land - Escheat

The state takes property upon an owners death if there is no will & no heirs exist. The Attorney General for the State of California would file paperwork to obtain title to the property. If no heir comes forward within five years, the title goes to the state of California.

U.S. Court of Appeals for the 12 Circuit Courts

These courts are located in Boston, New York City, Philadelphia, Washington, D.C., Richmond, Atlanta, New Orleans, Cincinnati, Chicago, St. Louis, Denver, and San Francisco. Three-judge panels hear cases from lower district courts, special courts and federal agencies. Under the U.S. Court of Appeals for the 12 Circuit Courts, we have three lower courts: —U.S. Administrative Agencies - These agencies are not technically part of the federal system. However, the appeals from the decisions they make go on to be heard by federal courts. —U.S. District Courts - These courts are trial courts. Every state has at least one district court. District courts are also located in Puerto Rico, the Virgin Islands, Northern Mariana Islands and Guam. Most federal cases have their origins in district courts. Under the U.S. District Courts are the bankruptcy courts and the magistrates. —U.S. Tax Court - These courts are located throughout the U. S. to hear cases regarding tax issues. These courts review IRS decisions.

U.S. Court of Appeals for the Federal Circuit - 13th

This court is located in Washington, D.C. The judges sit in panels of three and hear cases on customs, patents and other types of claims. Under the U.S. Court of Appeals for the Federal Circuit, we have two lower courts: —U.S. Court of International Trade - This court hears cases from the International Trade commission dealing with tariffs and international trade. —U.S. Claims Court - This court hears cases brought against the United States.

Metes and Bounds

Used in the original 13 states. It identifies the boundaries of a parcel of real estate using: -Monuments -Directions or courses in the form of compass readings -Distances measured in any convenient unit of length Always start at a Point of beginning (POB) Natural landmarks include trees, rocks, rivers, and lakes. Artificial landmarks are typically surveyor stakes. A metes and bounds description begins with an identification of the city, county, and state where the property is located. Next, it identifies the POB and describes the distance and direction from the POB to the first monument, and then to subsequent monuments that define the property's enclosed perimeter.

Equitable Remedy

When a case involves unique or rare personal property or if it involves real property. Granted when money damages alone or not adequate to fully compensate for a party's injuries, can be granted alone or in combination with a legal remedy, primary equitable remedies for breach of contract are specific performance and injunction

Patnership

a business owned by two or more persons who shares this risk and rewards. Same as Tenancy in Common: different degrees of interest and interest can be bought and sold A general partner is an active partner in the partnership who has unlimited personal liability for the debts of the partnership. Others are limited to the extent of his or her investment of capital. Under the Uniform Partnership Act of 1994, general partners: - Have equal rights to use partnership property for partnership purposes. - Cannot transfer their interests to another without the consent of the other partners. Creditors of the partnership have first claim on the assets of the partnership. Partnership assets cannot be attached or executed to satisfy the private debts of the partners. However, bankruptcy of a partner would dissolve the partnership as it applies to the bankrupt partner and the creditors would be able to get to the bankrupt partner's share of the partnership assets.

Common Law (Case Law)

a system of law based on precedent and customs. Created common law courts

Survey - ALTA/ACSM Survey

a very detailed survey often required by lending institutions and is strictly geared towards companies purchasingcommercial property. Standards created by the American Land Title Association (ALTA) and the American Congress of Surveying and Mapping (ACSM) are used to create this type of survey. The location of all improvements in relation to property lines as well as any easements and setback requirements are shown on this survey as well as any encroachments that exist.

Specialized Courts

also called problem-solving courts, they work with particular types of offenses and offenders -U.S. Tax Court -U.S. Claims Court -U.S. Court of International Trade -U.S. Bankruptcy Court

Lot and Block System

also called the recorded plat method, is used to describe properties in residential, commercial, and industrial subdivisions. This is the method most frequently used in metropolitan areas. The description of a recorded plat property first presents the property's lot number or letter, then the block identifier and the subdivision name. After the map is recorded, making reference to the lot and block number on the particular map is an acceptable legal description for the lot.

Estate in Land

an interest that includes the right of possession.

Water rights in California

based upon the right to use water and not upon ownership of water. The State Water Resources Control Board administers permits and licenses for California's surface water. The majority of water rights in California are based on the Doctrine of Prior Appropriation discussed earlier. Under this system, water rights are granted according to the date of first use. The type of water source is determined by date of first use and not the physical location or type of water source. Ground Water Rights Water beneath the surface that runs in recognizable underground streams or collects in porous ground layers called aquifers is known as ground water. Landowners have overlying rights to the ground water in aquifers below their property. In most areas of California, overlying land owners may remove percolating ground water and put it to beneficial, reasonable use without approval from the State Board or a court. However, the landowner may not transport that water for use on land outside the ground water basin from which it is taken.

Survey - Location Survey

boundary survey with the additional location of all the interior improvements. Missing corner markers are replaced. The surveyor will prepare a map showing the boundaries and improvements. This type of survey may be required for obtaining a loan.

injunction

court order requiring a party to do, or not to do, an act.

Specific performance

court order requiring a party to perform a contractual duty.

local ordinances

enactments by local legislative bodies such as the city council or the town board. States allow local governments to enact these ordinances since they are the ones most familiar with the local needs. Ordinances deal with such issues as zoning, on-street parking, traffic laws, and building codes. They are designed to promote the general welfare of the community to which they apply.

Interest - Life Estate

freehold estate that is limited in duration to the life of the owner or other named person. Life tenant. The estate may be created by agreement between private parties, or it may be created by law under prescribed circumstances Holders of the future interest own either: • a remainder interest: The holder of a remainder interest is called a remainderman. A third party to receive title to the property upon termination of the life estate • a reversionary interest: the estate reverts to the original owner, or the owner's heirs. The two types of life estates are: —- conventional life estate ( grant ) •ordinary life estate : ends with the death of the life estate owner •pur autre vie Life estate : endures over the lifetime of a third person, after which the property passes from the tenant holder to the original grantor or a third party (remainderman) —- legal life estates (state law) defining and protecting the property rights of surviving family members upon the death of the husband or wife. •Dower ( wife's life estate interest in the husband's property ) •Curtesy ( husband's on wife's property ) Property acquired under dower laws is owned by the surviving spouse for the duration of his or her lifetime. •Elective Share ( state-level statute enabling a surviving spouse to make a minimum claim to the deceased spouse's real and personal property in place of the provisions for such property in the decedent's will. ) -the surviving spouse is entitled to a percent of the deceased spouse's property, excepting homestead property and property the decedent owned exclusively -the surviving spouse must file for the elective share within a limited time period -if the spouse fails to file, the estate passes on according to the will, or the state's laws of descent the elective share right pertains only to the surviving spouse and is not transferable. •Homestead ( protect family members against losing their homes to general creditors attempting to collect on debts. Homestead laws usually exempt all or a portion of one's homestead from a forced sale in an attempt to collect general debts. )

State Law

have the power to enact laws or statutes. Some of these powers belong exclusively to the states and not to the federal government. For example, divorce law and the common law of torts and contracts remain under the domain of the individual states. State laws include worker's compensation, real property, marital relations, insurance, professional licensing, and agency laws.

Mobile home law

in California, a manufactured home may be considered real estate by removing the wheels and attaching it to a permanent foundation. In addition, a manufactured home will be considered real property only if the owner does all of the following: Obtains a building permit Acquires a certificate of occupancy Records a document specifying that the home has been attached to a permanent foundation After a manufactured or mobile home has been fastened to a permanent foundation, no one may remove it from the foundation unless: Everyone with an interest in the property gives consent to removing it. The California Department of Housing and Community Development receives notice of the intent to remove it at least 30 days before it is removed. Permanently-affixed manufactured and mobile homes are taxed as real property. New manufactured and mobile homes sold after July 1, 1980 that are not affixed to a permanent foundation are taxed as personal property. Permanently-affixed manufactured and mobile homes require a licensed real estate person to list and sell, unless the owner plans to sell on his or her own. If a licensee wants to list and sell a manufactured or mobile home that is considered personal property, that licensee may do so only if the home has been registered with the Department of Housing and Community Development. A California licensee may not list and sell a new unregistered manufactured or mobile home.

Common Interest Development Laws ( Condo, Planned Unit Development, Cooperatives, Timeshare)

individual ownership of either a housing unit or parcel coupled with the right to use shared common areas and facilities. Common areas can include roads, parks, open spaces, lakes, clubhouses, gyms, pools, basketball courts, or tennis courts. Common interest developments in California include: 1) Condominiums 2) Planned unit developments (PUDs): single-family detached or attached units, townhouses, or a mixture of these housings. Different from condo is planned unit development owners own the land where their unit is located, not just the air space around the unit. 3) Cooperatives: the person owns shares in a non-profit corporation or cooperative association, which in turn acquires and owns an apartment building as its principal asset. Along with this stock, the shareholder acquires a proprietary lease to occupy one of the apartment units. Thus, in owning stock and a lease, a co-op unit owner's interest is personal property that is subject to control by the corporation. The ratio of the unit's value to total value also establishes what portions of the property's expenses the owner must pay. There are a variety of potential problems associated with cooperatives. For starters, since the mortgage, taxes, and insurance on the whole co-op is in the name of the corporation, if shareholders don't make timely payments this affects each shareholder. Additionally, shareholders can typically not transfer their shares or assign a lease without approval from a majority of the cooperative members. Not common in California 4) Timeshares ( Interval Ownership Estate) : provide for equal sharing of the property's expenses among the owners. Can be lease or Fee (= tenancy in common). Must usually waive the right of partition Uniform Common Interest Ownership Act (UCIOA) in 1982 Davis-Stirling Act in 1985 (California)

U.S. Constitution

is the supreme law of this country. It lays out the organization, powers, responsibilities and limits of the federal government. Both federal and state judges are bound by the U.S. Constitution. Any law that violates it is unenforceable. The Constitution is made up of seven articles followed by 27 amendments. •Articles 1 through 3 establish the legislative, executive, and judicial branches of the federal government. •Article 4 discusses the relationship between the states and the federal government. It says that states have the power to make and carry out their own laws. •Article 5 outlines the process for amending the Constitution. New amendments can be added to the US Constitution with the approval by a two-thirds vote in each house of Congress and three-fourth vote by the states. •Article 6 says that the Constitution and federal laws are higher than state and local laws. All laws must agree with the US Constitution. •Article 7 discusses the procedures used in ratifying the Constitution.

rectangular survey system (government survey system)

land was surveyed using latitudinal (east-west) and longitudinal (north-south) lines. The objective was to create uniform grids of squares, called townships, which would have equal size and be given a numerical reference for identification. The rectangular survey system works well for describing large properties that are square or rectangular in shape, since these can be described as fractional sections. it is also referred to as the Township and Range System. -Meridians - run north and south. The principal meridian is the single designated meridian for identifying townships in the principal meridian's geographical "jurisdiction." There are 36 principal meridians in the national survey. -Parallels - run east and west. The base parallel or base line is the designated line for identifying townships. There is a base parallel for each principal meridian. -Range - The north-south area between consecutive meridians is called a range. A range is identified by its relationship to the principal meridian. All ranges are six miles wide. -Tier - The east-west area between two parallels is called a tier, or a township strip. A tier is identified by its relationship to the base parallel. All tiers are six miles wide. -Township - A township is the area enclosed by the intersection of two consecutive meridians and two consecutive parallels. Since the parallels and meridians are six miles apart, a township is a square with six miles on each side. Its area is therefore 36 square miles. The township is named in reference to a Principal Meridian and a Baseline parallel. Therefore in the illustration above T2N, R1E refers to Township 2 North (of the Baseline), Range 1 East (of the Principal Meridian). California has three principal meridians and baselines; -the Humboldt Meridian and Baseline, -Mt. Diablo Meridian and Baseline, -the San Bernardino Meridian and Baseline. The rectangular survey system divides a township into thirty-six squares called sections. Each side of a section is one mile in length. Thus the area of a section is one square mile, or 640 acres. As the diagram below illustrates, the sections in a township are numbered sequentially starting with Section 1 in the northeast corner, proceeding east to west across the top row, continuing from west to east across the next lower row, and so on, alternately, ending with Section 36 in the southeast corner. A section of a township can be divided into fractions of sections. Converting Section Fractions to Acres The size in acres of a subsection of a township is a fraction of 640 acres, since there are 640 acres in a section. For example, the NE 1/4 of Section 8 is one quarter section. Thus, its acreage is one quarter of 640, or 160 acres. Going further, the S 1/2 of the NE 1/4 is one half of that one quarter, or 80 acres. SE 1/4 of section 8 640/4 = 160 acres W 1/2 of the Nw 1/4 of section 8 640/(2 x 4) = 80 acres

Civil Law

law of private rights and duties (non-criminal issues between or among individuals, organizations, or governments). An example of a civil law is a law providing that all property sale contracts must be in writing. This is a civil law because it addresses the duties between private parties. Any violation of a civil law is an offense between the parties, not an offense against the whole community. A person who suffers injury due to the act of another person typically has the right to sue that person for compensation. When a person brings such a suit, it is called a civil suit, a civil action, or civil litigation. -Party filing the case: The plaintiff - can be a person, a business, or a government entity or agency. -Burdens of proof: If the plaintiff does not satisfy its burden during trial, the judge or jury will decide the case in favor of the defendant. -Goals: the primary goal is to compensate the injured party for the damage done to him or her. This is done by awarding either a legal remedy or equitable remedy

Criminal Law

law of public rights and duties. Criminal law creates and controls offenses committed against the whole community. We call criminal law violations crimes. Some examples include assault, burglary, and robbery. The government takes more interest in criminal acts than it does other types of injury. The government will often take action to prosecute an individual accused of a crime, even without cooperation from the victim. -Party filing the case: the government (local, state, or federal) is prosecuting. -Burdens of proof: the prosecution must prove wrongdoing "beyond a reasonable doubt." The defendant is "innocent until proven guilty". The judge or jury should find the defendant guilty only after fair and full consideration of all the evidence presented. -Goals: punish the wrongdoer who is the defendant in the case. Depending on the crime, punishment may be the death penalty, prison time, probation, or fines. Other goals of criminal law include retribution, deterrence, and rehabilitation, which may also be achieved by the same punishments. A court could also order a convicted defendant to pay restitution or put the defendant under a restraining order.

Survey - Topographic Survey

locates improvements and topographic features such as elevations of the land, embankments, contours, water courses, roads, ditches, utilities, etc. This survey is often used in conjunction with a Location Survey in order to prepare a Site Design Map, a Subdivision Map, or an Erosion Control Plan.

Survey - Subdivision Survey

often includes a topographic survey of a parcel of land which will be divided into two or more smaller tracts, lots or estate division. This can also be used for site design of lots, streets and drainage. It is for construction and recording.

Undivided Interest ( indivisible)

ownership by two or more persons that gives each the right to use the entire property. The owner's interest is in a fractional part of the entire estate, not in a physical portion of the real property itself.

Interest in Land

ownership of any combination of the bundle of rights to real property -If the interest-holder enjoys the right of possession, the party is considered to have an estate in land, or familiarly, an estate. -If a private interest-holder does not have the right to possess, the interest is an encumbrance. -If the interest-holder is not private, such as a government entity, and does not have the right to possess, the interest is some form of public interest. Public entities may own or lease real estate, in which case they enjoy an estate in land. However, government entities also have non-possessory interests in real estate, which act to control land use for the public good within the entity's jurisdiction. Government rights to property, since they are in the public interest, supersede the rights of the individual. Aka POLICE POWER, ZONING, EMINENT DOMAIN

Emblements definition

plants or crops considered personal property since human intervention is necessary for planting and harvesting.

Parcel or Tract

portion of land delineated by boundaries

expressed powers

powers directly stated in the constitution

Littoral Rights definition

properties next to bodies of water that are not moving, such as lakes and seas. Owners of properties abutting a navigable, non-moving body of water enjoy the littoral right of use, but do not own the water or the land beneath the water. Ownership extends to the high-water mark of the body of water.

Property definition

property is not only the item that is owned by someone but also a set of rights to the item enjoyed by the owner.

Land lateral support

refers to support provided by the adjacent property. A landowner has the right to demand that a neighboring property owner does nothing to cause the land to collapse, which could result from some types of excavations. Any landowner planning excavations must notify all neighboring property owners. Such notification allows the neighbors to take steps to protect their property. Unless the excavations are extraordinarily deep, an excavating property owner can be held liable to damage to neighboring properties only if he or she did not follow the procedures outlined in the statute.

State Administrative Agencies

similar to federal administrative agencies in that they are have the power to make rules and regulations that carry out the statutes passed by state legislature. State agencies involved in real estate-related issues include: California Department of Real Estate California Bureau of Real Estate Appraisers California Department of Business Oversight California Department of Insurance California Department of Public Health California Environmental Protection Agency

Real estate definition

the land and its permanent improvements ( man-made structures)

Survey - Geographic Positioning System (GPS)

use portable receiving antennas to gather data transmitted from satellites which are used to calculate the position of the object being located on the surface of the earth. GPS surveys are used to establish coordinate control points for the State Plane Coordinate Systems, large boundary surveys, and subdivision surveys. It can also be used to collect data for Geographic Information Systems / Land Information Systems (GIS/LIS), such as the location of streets, homes, businesses, electric, phone & gas utilities, water & sewer systems, property lines' soil & vegetation types, water; courses, etc. This data can be used in future planning, preservation and development.

Survey - Site Planning Survey

uses a boundary and topographic survey as a base to design future improvements. It can be a design for a house, a residential subdivision, a store, a shopping center, a new street or highway, a playground, or anything else.

Survey - Construction Survey

uses surveying techniques to stake out buildings, roads, walls, utilities, etc. This includes horizontal and vertical grading, slope staking, and final as-built surveys.