Limitations on Property Rights

Encroachments

-intrusion of an improvement on someone else's land -ONCHA more than 20 years applies (say you have a misaligned fence there for over 20 years an a surveyor comes and says this is not your land.. you can go to court and if proven you can acquire the encroached upon land) -Discovered by surveyor

Condemnation

-the legal process for taking the land by eminent domain -the taking of private property by law of eminent domain

3 basic ways to get around zoning:

1. Nonconforming Use: -a legal use that existed prior to the enactment of current zoning ordinances -properties are grandfathered in under zoning if a structure was legal when it was built, even if zoning has since then changed 2. Variance: -special permission to do something otherwise forbidden by the zoning rules 3. Conditional Use Permits (special use permits): -think of this as limited variance... conditional use permits allow a use (ex: commercial or residential) that would not otherwise be permitted in an area, with the warning that you are restricted to a specific use case that is deemed in the public interest (ex: only for a supermarket) -these are usually used by towns instead of a use variance, and lead to converted use properties

Attachments

A court order seizing property to satisfy a possible future judgement -the defendant still owns their property but it's attached to the lawsuit; if the property later changes ownership, its still covered by the lawsuit and may be sold to satisfy a judgment -Lis Pendens is recorded to inform the public that the property is subject to litigation (recorded notice of the attachment)

CERCLA + SARA

Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) -commonly referred to as the "Superfund Act" --> designed to clean up sites contaminated with hazardous substances, and to create liability for those that contaminate properties -big law federally and allows the Environmental Protection Agency (EPA) to go after the people who contaminate property and force them to clean up --> if they can't find who is responsible, the EPA can clean up the site using a special trust fund Liability under CERCLA runs with the ownership or possession of land, so if the property owner is NOT responsible for the contamination on their land, they are still liable under CERCLA ... the Superfund Amendments and Reauthorization Act (SARA) provides for "innocent landowner" status for owners who didn't contaminate the land to avoid liability

How can you remove an easement appurtenant once put in place?

Difficult to do. only two ways to remove them: 1. by combining the two lots into one large lot (since by definition it requires two lots) 2. if the purpose for which the easement was granted becomes impossible (easement was given for road access, and there is no longer a road to access)

What is the annual property tax on a $100,00 home that is assessed at 40% of its value in a town with a millage rate of $20 per $1000?

Equation: Annual tax/ ((Assessed value/1000) x Millage rate) = 1 100,000 x .4 = 40,000 40,000/1000 = 40 40 x 20 = 800 in taxes

Accretion

Increase of property by gradual natural additions (wind or water)

Alluvion

Increasing of land area along a shore by deposited alluvium or by the recession of water

LEED Certification

Leadership in Energy and Environmental Design - a suite of rating systems for the design, construction, operation, and maintenance of green buildings, homes, and neighborhoods established in 1998 -developed by the US Green Building Council (USGBC) -intended to help building owners find and implement ways to be environmentally responsible -LEED Certification provides financial incentives for environmentally friendly construction... buildings are rated on 100 possible base points distributed across 5 major categories: sustainable sites, water efficiency, energy and atmosphere, materials and resources, indoor environmental quality, plus and additional 6 points for innovation and design and 4 points for regional priority Buildings can qualify for 4 levels of certification: certified: 40-49 points silver: 50-59 points gold: 60-79 points platinum: 80 points and above

MA Oil and Hazardous Material Release Prevention and Response Act (Chapter 21E)

MA superfund law --> regulates transportation, storage, and disposal of oil and other hazardous waste in accordance with the federal CERCLA, Oil Pollution Act, and Clean Water Act -establishes strict liability with limited exceptions for release or threats of release -the act creates an Office of Brownfield Revitalization within the Governor's office -Requires 21E certification of oil tanks -Certificate tells that properties are not contaminated

Wetlands Protection Act

Mass state law enforced by the Department of Environmental Protection (DEP) -requires a buffer zone of 100 feet from wetlands, with minor changes permitted after 50 feet (subject to DEP approval) -no changes may be made to the wetland itself wetlands = areas that are permanently or seasonally wet and the soil and the plant community has adapted to that water (riverbanks, marshes, etc)

Easement in Gross

Personal easements granted in writing to someone who does not own an adjoining lot (ex; the seller of a piece of property writes into the deed that they have dock rights on the property) -Easements in gross automatically extinguish when the person holding the right passes away

How are property taxes paid?

Property taxes are paid in mills (dollars per $1,000 of value), expressed as a millage rate -taxes are paid on a fiscal year running July 1 to June 30, and are due 11/1 and 5/1 (or 8/1. 11/1. 2/1 and 5/1 if collected quarterly)

Property Taxes

RE property taxes are taxes paid to the town or city (the municipality) where a property is located - Property taxes are calculated against the assessed value, or tax value, of property ... this is known as an 'ad valorem tax' (think of it as "at value") -every property subject to tax is listed on a municipal tax roll, and the total taxes collectable by the municipality will sometimes be referred to as the tax base of the municipality -property taxes pay for local services like schools and trash pickup -taxes run with the land: if you buy a property and there are back taxes --> you pay back taxes -towns can foreclose for unpaid taxes -super priority lien -equitable right of redemption = 1 year from the date of sale

Installment sales Contract (conditional sales contract, contract for deed, land contract)

Similar to rent to own -The seller (vendor) enters into a contract with the buyer (vendee) which states that the buyer will make payments until the seller has been paid in full for the property -when the contract is fully paid, the buyer receives a deed transferring ownership of the property -under the contract the buyer holds "equitable title" or a future right to acquire legal title (ownership) to the property -if the buyer defaults on the contract (doesn't pay) the seller keeps any money the buyer has paid and the buyer does not receive title to the property

Zoning might include rules about:

Use: the purposes that property may be used for (ex: residential property may be lived in, while commercial property may be used for business) Heights: building heights Setbacks: the distance from lot lines before building is permitted Lot size: the minimum permissible lot size Buffer Zones: used to ease transitions between zoning areas (ex: industrial to residential zoning)

Zoning

a means of regulating and controlling land use - In MASS, the zoning laws are found in Chapter 40A (the Zoning Enabling Act) -Comprehensive or master plans, drafted by a planning commission, are often used by towns to plan their future develpoment

Mechanic's liens

a protection for contractors -they are allowed to place a lien against a property for work they did and weren't paid for -ONLY applies for work done on Real Estate; personal property is not eligible -A mechanic's lien is an example of a cloud on title, or an issue with ownership that might create problems during a real estate sale

Reliction

an increase of the land by the sudden retreat of the sea or a river

Involuntary Liens

claims against the property that are imposed by some third party (usually the government, or a court) property tax liens federal tax liens mechanic's liens judgments attachments

Alluvium

clay, silt, sand, gravel, or similar detrital material deposited by running water

Deed Restrictions

contractual limitations written into the deed (receipt) -they create a fee simple defeasible estate -violation of a restriction can result in a loss of title (if violated, the grantor who wrote the restriction (or their heirs) has the right to demand forfeiture of title.. meaning ownership would revert back to the grantor that wrote the restriction) -conditions run with the land, and are binding on all subsequent owners of the property

general lien

covers all property of the debtor (both real and personal)

Building Codes

define basic requirements for construction without necessarily proscribing implementation (ex: you must have smoke detectors that meet MA standards, but don't need to have a specific brand) -regulations established by gov. setting forth minimum structural requirement; a police power Certificate of Occupancy** : shows that a building has been inspected and satisfies the building codes .. is safe Both stick built homes (homes built on a property using traditional construction methods) and modular homes or factory built homes (homes manufactured in pieces in a factory then later assembled on a property) are required to meet the local building codes -Manufactured or mobile homes are sometimes held to different building code standards, though they must also satisfy the regulations

Easements appurtenant

easements of property.. easements that involve two adjoining lots of land --> one owner has a right of way across the other's property for some limited purpose easements appurtenant can be created in 4 ways: 1. by deed: easement is created in the deed when the property is sold.... can either come as: -easement grant: the owner of the servient tenement grants the easement - express reservation: owner of the servient tenement reserves the right to use a portion of the property 2.by implication: the seller implies an easement by the sale of the property.. occurs when the seller intended to create an easement but failed to (ex: if a property is sold with no legal access road, but can be accessed by crossing the lands of the seller, it might create an implied easement) 3. By necessity: if a property owner cannot legally access their property ("landlocked land") a court might grant an easement so that the owner can access their property 4. By Prescription: an easement acquired by the Open, Notorious, Continuous, Hostile, and Adverse (ONCHA) use of the right of way for more than 20 years

Environmental Limitations

environmental laws and restrictions are of concern to property owners, especially real estate developers (since they often limit what the developer may do with the property) -An Environmental Impact Statement is required to determine what, if any, environmental impacts a development might have on an area under NEPA (the National Environmental Policy Act) and how a developer might handle those issues there are several pieces of environmental legislation that impact RE to be familiar with

National Flood Insurance Program (NFIP)

established in 1968 -requires property owners in "high risk flood zones" (waterfront property) to purchase flood insurance if their community participates in the NFIP and if they have a federally backed mortgage -it's administered by the Federal Emergency Management Agency (FEMA)

Coastal Zone Management Act (CZMA)

federal law designed to protect coastal zones (like gulf of mexico or long island sound) from harmful effects of real estate development -it limits, or completely eliminates, development in those zones

Conflicts b/w Public and Private Limitations

if there's a conflict b/w public zoning and private restrictions, THE MORE RESTRICTIVE PREVAILS -whatever says you can do less wins ex: if a private restriction limits homeowners to 2.5 story buildings, but public zoning allows up to 3 stories... the homeowner would be limited to 2.5 stories

Property tax liens

lien for unpaid property taxes -In Mass: property owners have a statutory right of redemption (also called an equity or equitable right of redemption) .. the right to pay their debt and regain ownership of their home that extends one year from the date of sale at foreclosure

federal tax liens

liens placed against a person for unpaid income taxes -general liens and are used by the Internal Revenue Service (IRS) to recoup tax revenue - Estate tax liens = a type of federal tax lien used by the IRS to secure an estate's tax payments

Financial Limitations/ Liens

limitations on your ownership associated with debts or payment obligations -can be either voluntary (taken on willingly) or involuntary (imposed by a third party) -liens are usually paid according to, "first in time, first in right" --> meaning the first lien put in place is paid first

Voluntary liens

make a piece of property collateral for some debt usually take 2 forms: mortgage installment sales contract

Endangered Species Act of 1971

may limit property use and development if the presence of an endangered species is discovered on a piece of property

Taxes

municipal property taxes -they are the primary source of revenue for municipal governments (the local town or city)

specific lien

only covers one piece of property, usually RE (ex: a home)

Licenses

personal, revocable, and non-assignable permission to enter or use someone else's property for a particular purpose (ex: sporting events, fishing license )

Private Limitations

private limitations or restrictions (also known as CC&Rs) are contractual limitations on ownership created by deed or separate agreement there are 2 basic kinds: covenants deed restrictions

Erosion

process by which the surface of the earth is worn away by natural action (water, wind, etc)

Government limitations

property owners are not permitted to do whatever they want to their property... local, state, and federal governments strictly regulate what property owners can do with their property -there are 4 basic government limitations (or public limitations) on what property owners can do with their real estate (P.E.T.E) -police power -eminent domain -taxes -escheat

Clean Water Act of 1972 (CWA)

regulates pollution of navigable (and connected) waters -limits the filling of wetlands and other property development near navigable waters

Covenants

restrictions created by the developer of a subdivision (a property development) or planned unit development (a mixed use property development) and recorded in the county registry of deeds -covenants are binding on any property owners in the subdivision -must be uniformly applied to all the owners to remain legal and enforceable --> must also be deemed reasonable & in the public interest to be binding (ex: lawn must be longer than 3 inches, bball hoop can't face the road, house painted a certain color, etc.)

rights of ingress

rights of entrance

rights of egress

rights of exit

Easements

rights of way across a neighboring property -easements are usually the right of the property, not the property owner --> therefore they run with the land (transfer when ownership of the land transfers)

Properties can also take many forms under zoning:

single family homes (detached homes): a property containing one unit only multifamily homes (apartment buildings): a property containing several different units; but that is not subdivided Condominiums: subdivided units contained within shared common areas Cooperatives: shared property owned by a company or corporation Mixed use developments: properties containing multiple uses (ex: both retail and residential condos) Planned unit developments: mixed use land developments that are often exempted from certain zoning regulations

Aeolian Soil

soil deposited by wind, such as sand dunes or silt

Judgements

the final ruling by a court of law about who wins and who loses a court case -often comes with an award of damages, or monetary compensation for the harm suffered by the plaintiff (person bringing the suit) -if the defendant (person being sued) can't pay the judgement, the court will often take their property, sell it in a sheriff's sale, and give the plaintiff the proceeds from the sale

servient tenement

the one encumbered by the right the one that grants the benefit or suffers the burden of the right

dominant tenement

the property with the right the one that benefits from the right

Escheat

the reversionary interest the state maintains in all privately-owned property -if a property owner dies without a will or heirs, their property transfers to the government -power of state to take property if no will and no heirs

Eminent Domain

the right of the Gov. to force the sale of privately owned property if it's in the public interest -the right of gov. to take private property against owner's wishes for public use with fair compensation -The Gov must pay the property owner fair market value for the property under the 5th amendment -the legal process for taking the land by eminent domain is condemnation -if the gov takes only a portion of the land by eminent domain, but not the whole parcel, the owner may receive severance damage -if gov. action in an adjacent lot of land causes a diminishment of property value, a property owner can claim compensation under inverse condemnation

Police Power

the right of the Gov. to regulate private activity if it's in the public interest to do so -in real estate, police power usually refers to the local zoning ordinances and building codes

Avulsion

the sudden separation of land from one property and its attachment to another, especially by flooding or a change in the course of a river

Watch out for Special Assessments

these are a special tax for any betterments to your property (improvements paid for by public funds, such as town sewer hookups, or sidewalks) -property owners are charged for an assessment in accordance to their frontage to the betterment, over a period of years, with interest -Special Districts might also be used to levy special property taxes to specific land owners for additional services (ex: school or park) ... tax districts that charge adjacent Qhomeowners for services they receive (being adjacent to a park)

Encumbrance

used to refer to restrictions that limit real property rights -anything that burdens (limits) the fee title to property, such as a lien, easement, or restriction of any kind

mortgage

used when borrowing money from a bank, usually for the purchase of RE -the borrower (mortgagor) gives the bank (mortgagee) the right to sell their home if they do not pay the loan (evidenced in a note, or IOU) -the mortgage is a lien against the property in most states