REAL ESTATE PRINCIPLES: CHAPTER 3: ENCUMBRANCES. TERMS AND CHAPTER QUIZ.

Servient Tenement

A property that is burdened by an easement

Appurtenant Easement vs Easement in Gross

An "appurtenant easement" goes with the land, whereas an "easement in gross" goes to the person

Easement in Gross

An easement for the benefit of a person or utility company rather than for the benefit of adjacent landowners

Easement Appurtenant

An easement fro the benefit of the owner of an adjacent parcel of land

Encumbrance

Anything that affects or limits the fee simple title to, or value of, property, e.g., mortgages or easements

Satisfaction

Discharge of a mortgage or trust deed from the records upon payment of the debt. Make sure you receive a Deed of Reconveyance to prove that you paid off the deed of trust.

b. an encumbrance

Landowner Jacobs granted the telephone company the right to erect telephone poles on his land. Which of the following best describes this situation? a. an encroachment b. an encumbrance c. an appurtenance d. accession

Encroachment

The construction of improvements on the property of another

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

The difference between property taxes and special assessments is that : a. assessment liens are always subordinate to property tax liens. b. assessment liens can only be levied by local improvement districts. c. foreclosure of assessment liens can only be achieved by court foreclosure. d. special assessments are levied for the cost of specific local improvements, while property tax revenue goes into the general fund

Attachment

The process by which real or personal property is seized by the court for the purpose of assuring payment

Ingress

The right to enter

Egress

The right to exit

c. injunction

Which of the following is a court order restricting a party from doing an act such as violating private deed restrictions? a. writ of execution b. writ of possession c. injunction d. quiet title action

Easements by prescription

also called prescriptive easements, are implied easements granted after the dominant estate has used the property in a hostile, continuous and open manner for a statutorily prescribed number of years. Prescriptive easements differ from adverse possession by not requiring exclusivity.

Termination of Judgment (Satisfaction of Judgment)

by the payment of money or the return of property.

Non-Money Encumbrances

easements, building restrictions and zoning and encroachments and leases which are conditions that limit the physical use of the property

implication of law - Implied Easements

even when no document or agreement has created an express easement, an easement right may still be understood (or "implied") by a situation or circumstances. To create an easement by implication, three requirements must be met: 1. The easement must be at least reasonably necessary to the enjoyment of the original piece of property. 2. The land must be divided (or "severed"), so that the owner of a parcel is either selling part and retaining part, or subdividing the property and selling pieces to different new owners. 3. The use for which the implied easement is claimed must have existed prior to the severance or sale.

Small Claims Court (fees and judgement)

$6 Filing Fee No Legal Representation Judgment Maximum $10,000

Trust Deed

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

Mortgage

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

Declaration of Homestead protects up to:

- $75,000 individuals. - $100,000 couples. - $175,000 for persons 65 years or older. Does not protect against: 1. Foreclosure on a trust deed 2. Mechanic's liens 3. Liens filed prior to filing

Transfer of Easement

1. Appurtenant - automatically transferred. 2. In Gross - only by an express agreement, providing the easement is not made to a specific individual.

Creation of Easement

1. Express Grant (n writing) 2. Implication of Law (implied easement) 3. Long Use (Prescription) a. Open and notorious b. Uninterrupted for 5 years c. Under a claim of right or color of title, and d. Hostile

Termination of an Easement

1. Express Release - usually a quitclaim deed 2. Merger of Dominant & Servient Tenements 3. Excessive Use 4. Abandonment & Non-Use 5. Destruction of Servient Tenement (Eminent Domain)

Two types of homesteads:

1. Head of household 2. Federal Homestead Act of 1862

A valid Declaration of Homestead must:

1. Include a statement showing the claimant is the head of a family and state the name of the spouse. 2. Include a statement that the claimant is residing on the premises and claims it as his or her homestead. 3. Describe the premises and give an estimate of cash value. 4. Provide that the declaration of homestead may need to contain a statement as to the character of the property; that no former declaration has been made and that it is within the limits prescribed by law.

Termination of a Homestead

1. Sale of the property ends homestead. 2. Declaration of Abandonment terminates homestead. 3. Removal or Destruction of the dwelling does not end homestead.

Work Considered to be Complete (Mechanic's Lien)

1.Occupation or use by owner after cessation of labor. 2. Acceptance of work improvements by owner. 3. A cessation of labor for 60 continuous days. 4. A cessation of labor for 30 continuous days if the owner files a "Notice of Cessation" with the county recorder's office

b. place a reasonably sized "for sale" sign on the property.

A condominium's CC&Rs prohibit "for sale" signs. The owner may: a. sue the condo association b. place a reasonably sized "for sale" sign on the property c. not place a "for sale" sign on the property d. none of the above

Sheriff's Sale

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

Lien

A form of encumbrance that usually makes specific property security for the payment of a debt

Declaration of Homestead

A formal statement that protects the head of the household from losing the property to the claims of creditors, usually up to a set maximum amount

General Lien

A lien such as a tax lien or judgement lien that attaches to all property of the debtor rather than a specific property

Attachment

A lien that attaches to a specific property rather than all the property of the debtor

Mechanic's Lient

A lien, created by statute, which exists against real or personal property in favor of persons who have performed work or furnished materials for the improvement of real property

Blanket Encumbrance

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

Restrictions

A limitation on the use of real property. These limitations fall into two general classifications: public and private. Zoning ordinances are public, while a clause in the deed requiring the roof to be made of Spanish red title would be a private limitation.

Conditions

A limiting restriction stating that upon the happening or not happening of some stated event, the estate shall be changed in some manner

a. may affect title to the property, based upon the results of the lawsuit

A lis pendens: a. may affect title to the property, based upon the results of the lawsuit. b. allows real property to be reassessed when it is sold. c. means "and wife." d. none of the above

Scheme of Improvements

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

Lis Pendens

A notice filed or recorded for the purpose of warning all persons that the title to certain real property is in litigation

Preliminary Notice

A notice that informs or warns owners, lenders, and general contractors that subcontractors have been hired, or materials have been supplied to a particular job site. is a written notice that must be give before filing a mechanic's lien and within 20 days of supplying labor or services.

Notice of Non-Responsibility

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

Defendant

A person against whom a civil or criminal action is taken

Covenant

A promise to do or not to do a particular thing

Abstract of Judgment

A recorded document of the essential provisions of a court judgment

Easement

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

Declaration of Abandonment

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

Homestead

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

Writ of Execution

A writ to carry out a court order, usually arising from a judgment

b. the easement was still valid and enforceable

Daniel, who owned two pieces of adjacent land, sold one of them to Charles reserving an easement for himself at the time. Daniel soon left the state for 21 years during which time he did not use the easement. When Daniel finally returned to the state, he discovered that: a. the easement was terminated after 5 years of non-use b. the easement was still valid and enforceable c. the owner of the servient tenement had died leaving Daniel with no easement rights at all d. easements cannot be created by "reservation."

c. more stringent than breaching a covenant

If a condominium owner breaches a "condition" in the CC&Rs, this would be: a. enforced by the local building department b. the same as violating a health code regulation c. more stringent than breaching a covenant d. the same as breaching a public restriction

Plaintiff

In a court action, the one who sues; the complainant

Building Restrictions (Public and Private)

PRIVATE DEED RESTRICTIONS limit the use or occupancy of the land a. Covenant - promise to do or not to do certain thing. b. Condition - is a future and uncertain event which must happen to create an obligation to an existing obligation. c. Public/Governmental Restrictions - limits made by governmental agencies, usually by cities and counties, in the form of zoning. d. Race Restrictions - deemed illegal by the California State Legislature.

Dominant Tenement

Real property that benefits from an easement

Liens Are Either

Voluntary, Involuntary, Specific or General

c. 90 days

When a project of improvement on real property has been completed and the owner has not filed a "notice of completion," how many days do claimants have to file mechanic's liens? a. 30 days b. 60 days c. 90 days d. unlimited

d. the owner of the dominant tenement records a quitclaim deed

Which of the following will terminate an easement? a. dominant tenant records a quitclaim deed b. servient tenant records a grant deed c. the owner of the servient tenement records a grant deed d. the owner of the dominant tenement records a quitclaim deed

c. a recorded homestead.

Which of the following would have the least impact on property taxes? a. selling price b. market value c. a recorded homestead d. tax deferment.

Blanket Encumbrance

a lien placed on more than one parcel that has the same owner.

Notice of Completion and Notice of Cessation (Limits Time to File)

in order to be valid, should be recorded by the owner within 10 days of completion, thereby limiting the general contractor to 60 days to file a claim and subcontractors to 30 days. Guidelines have been set up by the state to allow suppliers of services and materials a filing period of up to 90 days if the owner doesn't file a valid notice of completion

easement in gross

is a legal right to use another person's land for as long as the owner owns that land or the holder of the easement dies.

appurtenant easement

is a right to use adjoining property that transfers with the land. The parcel of land that benefits from the easement is the dominant tenement. The servient tenement is the parcel of land that provides the easement.

Easement by Necessity (Landlocked)

is an easement granted by the court if it absolutely necessary for access

easement by necessity

is an easement that is created when the owner of a landlocked parcel has no access to a public right of way such as a street or highway.

express easement

is created by a deed or by a will. Thus, it must be in writing. An express easement can also be created when the owner of a certain piece of property conveys the land to another, but saves or reserves an easement in it. This arrangement is known as an "easement by reservation