FAQ Real Estate Law and Conveyancing

FAQ Real Estate Law and Conveyancing

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Glossary of Key Terms

Accretion: The process by which natural forces, like water, gradually deposit soil on a land boundary, which then becomes part of the property.

Adverse Possession: A method of acquiring title to real property by occupying it openly and continuously, hostile to the interests of the legal owner, for a statutory period of time.

Appurtenant Rights: Rights that are attached to the land and pass with the title of the property, such as easements or riparian rights.

Chattel: An item of personal property that is movable and not attached to real property.

Community Property: A form of joint ownership between husband and wife where property acquired during the marriage is jointly owned.

Constructive Notice: The legal principle that a person is presumed to know certain facts due to their public record status, whether they actually have knowledge or not.

Contract of Sale: An agreement between a buyer and a seller that specifies the terms of transfer for real property.

Conveyance: A written instrument, such as a deed, by which title to real property is transferred from one party to another.

Covenant: An agreement or promise, especially in a deed or other real property contract, to perform or refrain from doing certain things.

Curtesy: The right of a husband to a life estate in his deceased wife’s real property.

Deed: A legal document that transfers ownership of real property.

Deed of Bargain and Sale: A deed that implies the grantor has some interest in the property and transfers this interest to the grantee.

Deed of Trust: A document in which title to property is conveyed to a trustee, who holds it as security for a debt to the beneficiary.

Dominant Tenement: The parcel of land that benefits from an easement.

Dower: The right of a widow to a life estate in a certain portion of her deceased husband’s real property.

Easement: A legal right granted to one party to use another party’s land for a specific purpose.

Encumbrance: A claim, lien, charge, or liability attached to real property that may affect its value or use.

Escrow: An arrangement using a third party to hold money and documents involved in a transaction until certain conditions have been met.

Estate: The degree, nature, quality, or extent of a person’s interest in real property.

Fee Simple Absolute: The highest and most complete form of ownership of real property, granting the owner full rights without time limitation.

Fixture: An item of personal property that has become attached to real property in a more or less permanent manner.

Grant Deed: A deed that warrants that the grantor has not previously conveyed the property to another, and that the property is free from encumbrances.

Joint Tenancy: A form of co-ownership in which the owners have equal interests and the right of survivorship.

Leasehold Estate: An interest in real property for a specific period of time under a lease agreement.

License: A permit to use or enter a parcel of property for a limited time and purpose.

Lien: A claim against real property as security for a debt or obligation.

Life Estate: An interest in real property that is limited to the life of the person holding the estate.

Mortgage: A contract by which a borrower gives certain rights in a parcel of real property to a lender as security for a loan.

Patent: In real property law, a document by which a government grants public land to an individual.

Personal Property: Movable items of property that are not considered real estate.

Quitclaim Deed: A deed that conveys whatever title the grantor has, without any warranty of title.

Real Property: Land and anything permanently attached to it, including buildings and fixtures.

Recording Statutes: State laws that provide for the recording of deeds and other documents relating to real property in the public records.

Right of Way: A type of easement granting the right to pass over the land of another.

Riparian Rights: The rights of an owner of property bordering a river or other body of water, including the right to use the water.

Servient Tenement: The parcel of land that is subject to an easement.

Tenancy by Entirety: A form of joint tenancy between husband and wife, where the married couple is treated as one person.

Tenancy in Common: A form of co-ownership in which each owner has an undivided interest in the property, without the right of survivorship.

Torrens System: A land registry system for registering title to land that maintains an official registry of land ownership.

Legal Aspects of Real Estate

Introduction

This document provides a summary of fundamental legal concepts related to real property, as outlined in the provided text. It covers definitions, ownership types, title transfer, encumbrances, and other essential concepts. Understanding these concepts is crucial for anyone involved in real estate, particularly right-of-way agents.

1. Defining Real Property

  • Distinction from Personal Property: The text establishes a primary distinction between real property (land and things permanently attached) and personal property (moveable items). Real property is transferred via deed; personal property (chattel) by bill of sale or delivery.
  • “In general and perhaps oversimplified terms, the difference between the two is that real property has to do with an interest in the land itself or something firmly affixed thereto, whereas personal property is readily movable from one place to another.”
  • Traditional View vs. Modern Practice: The text notes that the traditional view of land ownership was all-encompassing, extending from “the center of the earth and its base extending upward to infinity.” However, modern practice emphasizes the element of control.
  • “Under the old common law doctrine … a land owner not only owns the surface of his land, but also owns all that lies beneath the surface even to the bowels of the earth and all the air space above it even unto the periphery of the sky”
  • Control and Trespass: Trespass is defined by actions that interfere with an owner’s control, such as an overhanging roof or drilling under neighboring land, but not the overflight of airplanes due to lack of control.
  • Fixtures: A critical aspect of real property is the definition of fixtures – personal property items that become part of the real estate through annexation.
  • “Fixtures have been variously defined as a species of property lying along the dividing line between real and personal property but which, by reason of their annexation to or use in association with real property, have become a part of the realty”
  • Criteria for determining a fixture include the permanence of affixation and the use or character of the item relative to the property.

2. Estates in Land

  • Fee Simple: This is the highest form of ownership, providing complete control and unlimited duration.
  • “The highest type of ownership is complete ownership. The terms given to this complete ownership of property are ownership in fee,” “in fee simple,” or “in fee simple absolute.”
  • Leasehold: A lease grants the tenant (lessee) the right to occupy a property for a specific time. The right is created by contract and establishes an estate for years.
  • “A lease is a contract that provides for the lessee, or tenant, to occupy the land or property of the lessor, or landlord, for a specific period of time…known as a ‘leasehold estate,’ or an ‘estate for years’.”
  • Easements: An easement is the right to use another’s land for a specific purpose (e.g., access, utilities). Easements are usually permanent and remain even when the property is sold.
  • “An easement is defined as a right acquired by an individual to use the land or property of another individual for a special or particular purpose.”
  • License: A license is a temporary permit to use or enter property, often confused with easements. It does not create a property right and can be revoked.
  • Life Estate: A life estate grants a person the use of property for their lifetime, after which the rights pass to a remainder man. The life tenant cannot will the property.

3. Types of Ownership

  • Single Ownership: Also known as “ownership in severalty,” this is where one person owns all rights.
  • Joint Ownership: This encompasses joint tenancy and tenancy in common.
  • Joint Tenancy: Ownership by two or more people, with the right of survivorship, meaning upon death the title passes to the remaining joint tenants.
  • “A joint tenancy is defined as an estate held by two or more persons jointly which, on the death of one, vests title in the survivor or survivors.”
  • Tenancy in Common: Ownership where each party owns a share, and upon death the share is passed through will or inheritance. There is no right of survivorship.
  • Tenancy by the Entirety: A special type of joint tenancy for married couples in some states, treating them as one entity. Neither spouse can convey the property without the other’s consent.
  • Community Property: A system in some states where property acquired during marriage is co-owned. Separate property includes assets acquired before marriage or received as gifts/inheritance.
  • Dower: A widow’s life interest in her deceased husband’s property, which can vary by jurisdiction.
  • Curtesy: A surviving husband’s life interest in his deceased wife’s land, which is similar but slightly different from dower.

4. Transfer of Title

  • Escrow: A process using a neutral third party (escrow holder) to manage funds and documents until all conditions of a real estate sale are met.
  • Conveyances (Deeds):Grant/Warranty Deed: Provides a guarantee of title from the grantor. May be general or special depending on the jurisdiction.
  • “The words ‘Grant’ or ‘warranty,’ when used in such a conveyance or deed, imply that the person signing the document as grantor has not previously conveyed this property to another person, and that the property conveyed is free from encumbrances or other defects in title that would in some way impair the validity of the transfer.”
  • Quitclaim Deed: Transfers only whatever title the grantor may possess, without warranties of good title. Often used to clear up potential title issues.
  • “A quitclaim deed conveys only that title which the grantor has in the property at that time. It does not in any way warrant or guarantee that the grantor has title.”
  • Bargain and Sale Deed: A hybrid of grant and quitclaim deeds; can transfer ownership with or without warranties.
  • Patent: In real estate, a grant of public lands from the state or federal government to a private individual.
  • Mortgages and Deeds of Trust: Used to create a security interest for lenders.
  • Mortgage: Creates a lien or conveyance of title to the lender as security for a loan, depending on the jurisdiction.
  • “The mortgage, in all instances, creates a security interest in the real property, but the effect of the document itself varies from jurisdiction to jurisdiction.”
  • Deed of Trust: Transfers title to a trustee, who can sell the property to satisfy a debt if the borrower defaults.
  • Contracts of Sale: Can provide for immediate transfer of ownership or for a land installment process in which the buyer pays over time, not gaining title until all payments are complete.

5. Liens and Encumbrances

  • Encumbrance: Any claim or liability attached to a property that reduces the value of the fee simple interest.
  • “…any claim, lien, or liability attached to real property. It may take many forms, including a mortgage, unpaid taxes, a mechanic’s lien, a deed restriction, a judgment lien, an easement, or right of way.”
  • Lien: A claim against property as security for a debt; enforced via foreclosure. Can include tax liens, mechanic’s liens, and judgment liens.

6. Appurtenant Rights

  • Rights Running with the Land: Rights that transfer with the ownership of the property.
  • Easements Appurtenant: Easements that benefit an adjacent property (dominant tenement) and burden another (servient tenement).
  • Riparian Rights: Rights of landowners to use and receive water from adjacent streams or rivers.
  • Accretion: The process where natural water action deposits soil on adjacent land, which then becomes part of that property.

7. Covenants, Conditions, and Restrictions

  • Covenant: An agreement or promise to do or not do something.
  • “…can be said to be an agreement or promise to do or not to do certain things, and it can be in favor of anyone to whom it was designed to benefit.”
  • Condition: A restriction on the use or conveyance of property that can lead to property reversion if violated.
  • Restrictions: Limits on property use often placed when subdividing land.
  • Enforcement: Owners are generally bound by covenants, conditions, and restrictions unless all owners agree to change them.
  • Unenforceable Restrictions: The document notes that restrictions that violate constitutional guarantees like equal protection under the law are not valid (e.g., racial restrictions).

8. Adverse Possession

  • Requirements: For someone to acquire title through adverse possession, possession must be “hostile, actual, notorious, exclusive, continuous, and under claim of title.” This means a person must occupy and use property as if they own it for a prescribed time.
  • “For a person to acquire title by adverse possession, the possession must be ‘hostile, actual, notorious, exclusive, continuous, and under claim of title’.”

9. Recording Statutes

  • Purpose: Every state provides for recording deeds and other property related documents to establish public record of title and protect purchasers from prior unrecorded claims.
  • “The policy behind this type of protection is the theory that title to real property should be disclosed by a reference to the public records, and purchases of property should be entitled to rely on the record of title that can be ascertained from the public records.”
  • “Constructive Notice”: Recording a document is considered to give everyone “constructive notice” of its existence.
  • Actual Knowledge: If a person has actual knowledge of an unrecorded interest, recording later won’t invalidate that unrecorded claim.
  • Possession as Notice: A buyer may be deemed to have “constructive notice” of someone’s claim if that person is in possession of the property, even if not recorded.
  • Recording Offices: Title registration offices and officials vary by state (e.g., county recorder, register of deeds).

10. Torrens System

  • Registry System: A system in some states that provides a certificate of ownership as definitive evidence of title, maintained in a public register.
  • “This system establishes a procedure for the registration of title to land whereby a certificate is always available to show the state of the title and the person in whom it was vested.”

11. Chain of Title

  • Abstracts of Title: Summaries of historical records establishing a property’s chain of ownership.
  • Title Insurance: Provides protection against defective title.
  • Modern Shift: The use of abstracts is increasingly replaced by title insurance.

Conclusion

This document has summarized the crucial legal aspects of real property as presented in the provided text. Understanding these definitions, principles, and procedures is essential for anyone working in the real estate field. This knowledge helps navigate legal issues, ensuring smooth transactions and avoiding potential conflicts. The document also emphasizes the importance of consulting specific state laws for further details. The text concludes by stressing that the right-of-way negotiator needs to understand the terms outlined in this document to be effective in negotiations.

This briefing document should serve as a comprehensive overview of the provided source material. Please let me know if you require any further clarification or expansion on specific areas.

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