RE Fundamentals 2

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Feudal System - Real Estate Ownership: The government or king holds title to all land. The individual was merely a tenant whose rights to use and occupy real property were held by an overlord.
Allodial System - Real Estate Ownership: The individual was entitled to property rights without being subject to control.
Land in the U.S. is held under the allodial system.
Government Powers over Real Estate Ownership: The rights of real estate ownership are subject to certain powers, or rights, held by federal, state, and local governments.
Government Powers include:
-Taxation > A charge on real property to raise funds to meet the operating costs of the government.
-Police Power > Legislation to preserve order, protect public health and safety, and promote general welfare. Includes zoning & building ordinances.
-Eminent Domain > Through a condemnation suit, a govt. may exercise this right to acquire privately owned realestate for the use and benefit of the general public.
-Escheat > State laws provide for ownership of realestate to revert to either the state or the county when an owner dies and leaves neither heirs nor a clear will.
Estates in Land: Ownership interest that a person has in real property.
Estates in land are divided into two major classifications:
-Freehold Estates
-Leasehold Estates or Nonfreehold Estates
Freehold Estates: Estates held for an indefinite time, existing for a lifetime or longer.
There are three types of Freehold Estates:
-Fee Simple > Indefinite period of time and can be inherited.
-Defeasible Fee > Indefinite period of time and can be inherited.
-Life Estates > Terminates upon the death of the person on whose life the estate is based.
Fee Simple Absolute: Estate in which the holder is entitled to all rights of property ownership. There is no time limit on its existence but the holder is subject to goverm=nmental powers.
The terms fee, fee simple, and fee simple absolute are basically the same.
Fee Simple Defeasible: Fee estate that can be inherited, however this estate is subject to the occurrence or nonoccurrence of a certain event.
There are two types of Fee Simple Defeasible estates:
-an estate subject to a condition sebsequent; and
-an estate qualified by a special limitation.
Fee Simple Defeasible Subject to a Condition Subsequent (with Right to Reentry): The estate can be inherited if the new owner does not perform some action or activity. The former owner retains a right to reentry so that if the condition is broken, the former owner can retake possession of the property through legal action.
Example: The deed of conveyance specifically states that the transfer is make on the condition that there be no consumption of alcohol on the premises.
Fee Simple Determinable/ Fee Simple Defeasible Subject to a Special Limitation (with Possible Reverter): The estate ends automatically on the current owner's failure to comply with the limitation. The former owner retains a possibility of reverter. If the limitation is violated, the former owner (or heirs or successors) reacquires full ownership, with no need to reenter the land or go to court.
Conventional Life Estates (with remainder or reversion): An estate that is limited to the life of the owner or to the life of some other designated person or persons. Not an estate of inheritance.
Two types:
-Ordinary
-Pur Autre Vie
Ordinary Life Estates: Limited to the lifetime of the owner of the life estate, the life tenant, however a it can be created based on the life of a third party.
The future interest of the estate may take one of two forms:
-Remainder Interest
-Reversionary Interest
Ordinary Life Estate with Remainder Interest: When the deed or will creating the life estate names a third party or parties to whom title will pass upon the death of the life estate owner, then this third party is said to own the remainder interest, or estate.
Ordinary Life Estate with Reversionary Interest: When the creator of the life estate (the orginal fee simple owner) does not convey the remainder interest to a third party or parties, then upon the death of the life estate owner, full ownership reverts to the original fee simple owner or (heirs or devisees set forth in will).
Pur Autre Vie: Conventional life estate created based on the life of a third party.
Legal Life Estates/ Statutory Estates: State law states that upon the death of the owning spouse, the surviving spouse has a right to either a one-half or a one-third interest in the real property for the rest of his or her life.
Two types:
-Curtesy > A husband's life estate in the real estate of his deceased wife.
-Dower > A wife's life estate in the real estate of his deceased husband.
Curtesy: A life estate, usually a fractional interest, given by some states to the surviving husband in real estate owned by his deceased wife.
Dower: A legal right or interest, recognized in some states, that a wife acquires in the property her husband held or acquired during their marriage. A life estate, usually a fractional interest, given by some states to the surviving wife in real estate owned by his deceased husband.
Homestead: A tract of land that is owned and occupied as the family home. If homestead exemption laws are in place, a portion of the value is protected from judgment debts.
Community Property: Consists of all property, real and personal, acguired by either spouse during the marriage.
Upon death of one spouse, the survivor automatically ownes one-half of the community property.
Separate Property: Property which is acquired and owned by either spouse prior to marriage or acquired by either spouse during marriage through gift, devise, or descent.
Leasehold Estates: A tenant's right to occupy real estate during the term of a lease, generally considered to be a personal property interest.
Known as an estate in reversion meaning that the landlord has the right to retake posssession of the property after the lease term has expired.
Classified as being either:
-Definite, or
-Indefinite
Encumbrances: Anything that may diminish the value of a property or obstruct the use of the property. Examples include things such as a mortgage, taxes, or judgment lien; an easement; a restriction on the use of the land, or and outstanding dower right.
This does not necessarily prevent a transfer of title.
Lien: A right given by law to certain creditors to have their debts paid out of the property of a defaulting debtor, usually by means of a court sale.
Liens may be voluntary or involuntary.
They are also classified as specific and general.
Voluntary Liens: The owner of the property agrees to use the title to real estate as security for a debt.
Example: Mortgage
Involuntary Liens: A lien placed on the title to real estate by statute or by court order, against the express will of the property owner.
Examples: Real Estate Tax Liens and Court-ordered Judgement Liens.
Specific Liens: A lien affecting or attaching only to a certain, specific parcel of land or piece of property.
Examples: Mortgages, taxes, special assessments, liens for public utilities, mechanics' liens, vendee's & vendors' liens, surety bail bond liens, attachment liens, and execution liens.
General Liens: The right of a creditor to have all of a debtor's property--both real and personal--sold to satisfy a debt.
Real Estate Tax Liens: A charge against property, crated by operation of law.
Tax liens and assessments take priority over all other liens.
Ad Valorem Tax (General Real Estate Taxes): Taxes levied for the general support or operation of the governmental agency authorized to impose the levy, such as state, county, municipality, and/or local school district. The amount of the tax varies in accordance with the value of the property being taxed.
Special Assessments or Improvements Tax: Special taxes levied on real estate that require property owners to pay for municipal improvements that benefit the real estate they own.
Examples: Monies collected are used to pay for streets, street lighting, curbs, public sewers, etc.
Mechanics' Liens: A statutory lien created in favor of contractors, laborers, and material suppliers who have performed work or furnished materials in the erection or repair of a building.
A mechanics' lien is a specific, involuntary lien.
Judgment/ Judgment Lien: Judgement - The formal decision of a court upon the respective rights and claims of the parties to an action or suit. After a judgment has been entered and recorded with the county recorder it becomes an Judgment Lien. It usually becomes an involuntary, general lien on the property of the defendant.
Execution/ Execution Lien: The signing and delivery of an instrument. A legal order directing an official to enforce a judgment against the property of a debtor.
An execution lien is an involuntary lien.
Lis Pendens: A recorded legal document giving constructive notice to all interested parties that an action affecting a particular property has been filed in either a state or a federal court. This constitutes a cloud on the title.
Attachments/ Writ of Attachment or Attachment Lien: The act of taking a person's property into legal custody by writ or other judicial order to hold it available for application to that person's debt or creditor.
Nonmoney Encumbrances: Liens that affect the physical condition or limit the use of real estate.
Usually classified as:
-Easements
-Deed Restrictions
-Licenses
-Encroachments
Easements: The right acquired by one party to use the land of another party for a special purpose, such as for a right-of-way or utilities; an incorporeal interest in land.
Easement Appurtenant: An easement that is annexed to the ownership and used for the benefit of another's land.
Servient Estate/ Servient Tenement: Land on which an easement exists in favor of an adjacent property (called a dominant estate). The tract over which the easement runs.
Dominant Estate/ Dominant Tenement: A property that includes in its ownership the appurtenant right to use an easement over another person's property for a specific purpose. The tract that is to benefit from the easement. The easement will pass with the title.
Easement in Gross: An easement that is not created for the benefit of any land owned by the owner of the easement but that attaches personally to the easement owner. Easements in Gross can be personal or commercial.
Personal Easement in Gross: A personal easement in gross is granted to an individual for his or her lifetime(terminates upon the death of the easement holder).
Commercial Easement in Gross: Examples: The easement right a railroad or utility company has for its tracks, pipeline, or high tension power oines.
Commercial easements in gross may be assigned, conveyed, or inherited.
Creating Easements: To create an easement there must be two separate parties, one of whom owns the land over which the easement runs.
Easements may be created by:
-Mutual agreement expressed by the parties.
-Necessity.
-Prescription.
-Condemnation.
-Implication.
Easement By Necessity: An easement allowed by law as necessary for the full enjoyment of a parcel of real estate.
Example: A right of ingress and egress over a grantor's land.
Easement By Prescription: An easement acquired by continuous, open, and hostile use of the property for the period of time prescribed by state law.
Terminating Easements: Easements may be terminated when:
-The purpose for which the easement was created no longer exists;
-The owner of either the dominant or servient tenement becomes the owner of both in a process called merger;
-The owner of the dominant tenement releases the right of easement.
-The easement is abandoned;
-The easement is taken by eminent domain or is lost through adverse possession;
- The person acquiring the easement uses it for an improper or illegal purpose.
Deed Restrictions: Clause in a deed limiting the future uses of the property. Deed restrictions may impose a vast variety of limitations and conditions.
Examples: Dictation of types of structures that can be erected or preventing building from being used for specific purposes or even from being used at all.
Covenants, Conditions & Restrictions (CC&Rs): Private restrictions on use of real property found in a subdivision or condominium project.
License: A privilege to enter the land of another party for a specific purpose. It is a personal right of the person to whom it is given and it can be terminated or canceled by the licensor.
Example: Permission to park in a neighbor's driveway.
Encroachments: A building or some portion of it--a wall or fence for instance--that extends beyond the land of the owner and illegally intrudes on some land of an adjoining owner or a street or alley.
Spot Survey: Survey conducted to pinpoint or show the location of all impovements located on a property and reveals whether any improvements extend over the lot lines. (Encroachments)

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