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Central Virginia Real Estate

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Section 2: Real Estate Title and Ownership

Summary

This section consisted of nine (9) chapters. In the first chapter “Title and Ownership”, we dealt with the complex subject of how different people and entities hold title to or own real estate. We learned about the various rights and interests that can be conveyed in land, how title may be held, title records, government and private limitations on title, the nature of freehold estates, and the various forms of ownership, such as sole and joint ownership, trusts and partnerships.

In Chapter 6, liens and easements, we discussed the nature of encumbrances affecting the title of property. Collectively known as liens. We identified many forms of liens, including property tax, federal tax, special assessments and mortgage liens, as well as mechanics liens, judgement liens, attachments and lis pendens. We also learned about physical encumbrances against property that arise as a result of various easements and licenses.

In the seventh chapter, land use regulation, we dealt with government and private regulation of land use. We examined how a governments police power allows it to enact zoning laws dealing with environmental hazards. We also learned how private individuals can regulate the use of land through covenants and restrictions.

In the eighth chapter Cooperatives, Condominiums, Time Shares and Planned Unit Developments, we looked at forms of multi-unit housing and mixed-use developments.

Finally, in the ninth chapter, we learned how ownership of real property is transferred through voluntary and involuntary conveyances, from deeds and wills to foreclosure and escheat. We also discussed the formalities of deeds and recording requirements.

Chapter 1: Title and Ownership

Right of possession, occupancy, use, enjoy and dispose

Title and Alienation: change of ownerships

Types of Title

  • Legal Title
  • Equitable Title
  • Bare Legal Title/ Naked Title

Notice

  • Actual Notice
  • Constructive Notice
  • Inquiry Notice

Title Records

  • Acknowledgement

Title Examination

  • Marketable title
  • Title Search
  • Chain of title
  • Cloud on title
  • Abstract of title
  • Certificate of title

Title Insurance

  • Survey
  • Owner’s policy
  • Lender’s Policy
  • Color of Title/ Tacking
  • The Torrens System

Key Terms and Definitions

Acknowledgement — Formal certification of a signature

Actual Notice — Knowledge that one has gained based on what one has seen, heard, or observed.

Adverse Possession — A means by which title may be acquired, through the actual, hostile, open & notorious. Exclusive and continuous occupancy by one who does not have title

Allodial System — System of possession of land based on individual ownership, as opposed to the feudal system

Attachment — Seizure of property by court order, to insure payment of a debt or to have it available to satisfy a possible judgement

Common Element — The parts of a condominium in which each unit owner holds an undivided interest.

Condemnation — The process of taking property by the state under the right of eminent domain

Condominium Ownership — A system of individual fee ownership of portions of a building that has other similar units

Consideration — Something of value given in return for the act or promise of another. An essential element of a contract

Constructive Notice — The recording of documents in public record

Cooperative Ownership — A system of ownership in which individuals have shares of stock in a corporation that has title to the property

Deed in Lieu Foreclosure — Voluntary act by a borrower and lender. Sometimes called a friendly foreclosure

Deed of Trust — Used instead of a mortgage in some states

Deed Restriction — Clause in a deed limiting or controlling the future use of the property

Descent and Distribution — Family receives property when owner dies intestate

Dominant Estate — The interest of the owner of land who has the right to use an appurtenant easement (see servient estate)

Dower & Curtesy — The legal right or interest that one spouse has in the property of the other spouse

Downzoning — A change in zoning from a higher, more active category to a lower , less active (and perhaps less profitable ) category

Easement — A specified and limited right or privilege to use another’s property

Eminent Domain — The right of the government to acquire private property for public use

Encroachment — An unauthorized invasion or intrusion upon another’s property

Equitable Lien — Arises out of an agreement that some particular property shall be used as a security for a debt or obligation. Example: vendee’s lien and vendor’s lien

Equitable Title — Interest held by vendee under sales contract when legal title is vested in another’s name

Escheat — Reversion of property to the state when a person dies intestate with no known heirs or when property is abandoned

Estoppel — Legal bar to a person alleging or denying a fact when his own previous actions have conclusively indicated the contrary

Fee Simple Estate — The complete ownership of property without condition, the largest and highest interest one can possess in real estate

Foreclosure — The legal procedure whereby mortgaged property is taken to satisfy a debt that is in default

Freehold — An interest in real property of a life estate or greater

Homestead Exemption — Statutory provision that protects a person’s homestead from claims of creditors

Joint Tenancy — Tenancy with right or survivorship and various other characteristics

Laches — Similar to statute of limitation; an equitable doctrine used by the courts to bar a plaintiff from asserting a claim or right because of undue delay on his part. For example: neigbor watches a 30 story building being built, after the 29th floor is is built he asserts it encroaches 5 feet on his property, demands it to be torn down … he’s guilty of laches

Land use Control — A broad term describing any legal description that regulates how a parcel of land may be used

Leasehold Estate — An interest less than a freehold, held by a lessee

Lien — A claim against the property of another as security for a debt or charge

Life Estate — An estate or interest in real estate held during the term of a specified person’s life

Lis Pendens — (Latin term) “Pending suit” … a notice of pending legal action that clouds title to real estate

Mechanics Lien — A lien levied against a specific property by those who furnish materials and or labor for its construction, improvement or repair

Non-Conforming Use — (Grandfathered) A land use that does not comply with current zoning, but it is allowed to remain as it was before the zoning ordinance was passed. Generally, such properties cannot be remodeled or enlarged.

Planned Unit Development — Individually owned houses coupled with membership in the owners association that holds title to the common areas

Police Power — The right of government to enact legislation to protect it’s citizens

Quitclaim Deed — A form of deed without covenants or warrants of any type

Remainder Estate — A present right to the future title; title is taken upon the termination of a life estate

Reversion (Reversionary) Estate — An estate in which title returns (reverts) to the original grantor or his heirs upon termination of a life estate

Servient Estate — The Estate of the owner whose land is burdened by an appurtenant easement (see dominant estate)

Special Warranty Deed — A special tax levied to pay for a specific improvement such as sidewalks, sewers etc.

Statutory — Created by law

Tacking — Adding successive periods of continuous occupation to qualify for title by adverse possession

Tenancy in Common — A form of joint ownership without right or survivorship

Tenants by the Entireties — A form of joint ownership between husband and wife

Title — The right to or ownership of land

Alienation of Title — Any change or ownership

Study Notes

Constructive Notice — Information has been made available to the public / record in public record

Actual Notice — An individual has been given actual information or documents (person has seen , heard, , presented)

Legal Title — The right of ownership, possession, use occupancy and enjoyment

Equitable Title — When the seller has legal title but the buyer has the right to obtain ownership upon performance

Naked Title — Lacking the usual rights and privileges of ownership

Recording — Logging and lodging copies of records in the city or country office where land records are kept

Acknowledgement — A formal declaration made before a notary public or other public officer / signature needed

Chain of Title — The recorded history of matters affecting title to specific property

A cloud on title includes:

  • A valid first mortgage
  • A recorded contract for deed under which the buyer has defaulted but the contract has not been removed
  • A recorded mortgage that has been paid in full but not released

*** Lack of recorded certificate of title insurance is not a cloud

The following are true statements about title insurance:

  • The policy will include a list of exclusions
  • It will insure owners against losses arising from title defects
  • It will generally include exclusions for unrecorded easements

** Title insurance is not homeowners insurance

The following are types of titles:

  • Bare Legal
  • Naked Title
  • Equitable Title

The following are true about a title search:

  • It’s an examination of public records
  • The purpose is to determine defects in the chain of title
  • It’s usually performed by a title company or title abstractor

** A title search does not go back 100 years

The state recording act is the system which provides notification of ownership rights and claims by certain creditors against real property

Inherent title rights consist of:

  • Possession
  • Occupancy
  • Use

Constructive Notice is the recording of documents in the public records

** that said… there is no telling something, giving receipts of building permits or any other suggestions … constructive notice is recording documents

Reasonably free from the risk of litigation over possible defects best describes Marketable Title

Ownership includes the right of possession, occupancy, Use, Enjoyments and Disposition of real property. Accronym: POCUED “Q” quite

Title denoting ownership may be held individually, jointly, in trust in a corporation or partnership form.

A bare legal title lacks the usual rights and privileges and ownership

Constructive Notice means made public on record.

Actual Notice is seeing, hearing, reading or observing information: using senses

An inquiry notice is legal notice presumed by law

Alienation refers to “any” change of ownership not just by deed.

An abstract title is a full summary of the title history, with a statement of all recorded liens and encumbrances.

An acknowledgement is. Means you have a formal declaration with signatures and witnesses

The most incorporated cities and counties in the united states have land records

Surveys measure boundaries of land, locate easements, locate encroachments and setback requirements

Chapter 2: Government Limitations on Title

Understand Allodial vs Feudal

  • Eminent Domain
  • Condemnation
  • Police Power of Government
  • The Power of Real Estate Tax
  • Escheat

Key Terms and Definitions

Eminent Domain — The right of government to take ownership of property… even more … to take ownership of private property for public use

Police Power — Right of government to adopt and enforce laws for the general welfare

Tax Liens — Arise automatically when tax is assessed on property

Escheat — The power of the state to claim title over abandoned property

Uncompensated regulation — The exercise of police power can result in this

Just Compensation — Payment for taking of property in a condemnation proceeding

Condemnation — The legal proceeding by which the government obtains ownership of private property

Study Notes

Each of the following entities has the power of eminent domain:

  • Railroads
  • Public Utilities
  • School districts

** Religious schools are not subject to eminent domain

Police Power includes:

  • Zoning and building codes
  • Government land use regulations
  • Real Estate licensing laws

When the last heir of a property owner dies, absent a provision in a will, devising the property, title will revert to the state

Condemnation is the exercise of eminent domain

The government right to make laws and regulations for the general welfare is known as police power

The powers of the federal government include:

  • The right to condemn property for public good
  • The right to take title to property that is unclaimed
  • The right to impose a tax lien for unpaid taxes

Conclusive Statement: The allodial system is a free and full ownership of rights in land by individuals. This is in contrast to the feudal system of ownership where land was owned by the king or sovereign. Government limitations on title include eminent domain, police power, taxation and escheat. No private property is exempt from the exercise of these government powers.

Police power is not the same as eminent domain. Police power is uncompensated… eminent domain is compensated

If the government takes possession of property the courts must agree on the price to be paid… the government doesn’t pay any price.

The federal government also has the power of eminent domain

Escheat keeps property from becoming ownerless

Taxes become liens when they are assessed

You cannot sue a municipal fire department for damaging your building in the process of putting out a fire … you can make a claim against your insurance company

Chapter 3: Private Limitations on Title

Encumbrances Affecting Title

Most Common: Liens

Encumbrances Affecting Property Physically

  • Deed Restrictions (CCR’s)
  • Encroachments
  • Easements

Key Terms and Definitions

Encumbrances — Limitations on the right of real property owners

Liens — An encumbrance that arises as a result of a debt

Deed Restrictions — Private agreements restricting the use of occupancy of real property

Encroachments — Unauthorized infringements on a property owner’s rights as a result of physical intrusion

Easement — A legal right to enter upon another’s land

Nuisance — Tree branches hanging over a neighbor’s property

Study Notes

Sarah builds an addition to her home… part of which turns out to be on land belonging to June. This is an example of encroachment,

All of the following are encumbrances:

  • Easements
  • Mortgages
  • Restrictions

Eminent Domain is not a private restriction on title

Mechanics’ Liens are not an encumbrance that affect the property physically

The following are true statements about encumbrances:

  • They are limitations on the rights of property owners
  • They are interests held by any person other than the property owner
  • Encumbrances restrict the use of the property
  • Encumbrances affect the title of the property

Encroachments are unauthorized infringements on a property owner’s rights as a result of physical intrusion. It is a trespass if it encroaches on the land, as with a fence or driveway. It is a nuisance if it violates a neighbor’s airspace as with a tree branch. Only an up to date survey will reveal encroachment.

An encroachment is an impediment on title

Most title companies will not issue policies that protect the title against encroachments

A survey performed after an encroachment should reveal the encroachment

An easement is the legal right to enter another’s land

Restrictive Covenants are private agreements that constitute encumbrances

Chapter 4: Estates in Property

Freehold Estates

  • Fee Simple
  • Qualified Fee
  • Defeasible (Defeatable)
  • Life Estate
  • Pur autre vie
  • Remainder Estate
  • Reversionary Estate
  • Statutory Estate

Leasehold Estates (Non-Freehold Estates)

  • Estate for Years
  • Estate from Year to Year
  • Estate at Will
  • Estate at Sufferance

Key Terms and Definitions

Life Estate — A fee simple estate conveyed to a person for the duration of their life

Freehold Estate — An estate that is of indefinite duration

Remainder Estate — A future interest in real estate that arises immediately upon the termination of a prior estate

Fee Simple Estate — The highest and most complete type of ownership that is possible

Reversion Estate — A leftover interest that reverts to the grantor after the grantor has conveyed a lessor estate to someone else

Leasehold Estate — An estate for a definite duration that does not invite ownership

Statutory Estate — Dower, Curtesy and Homestead Exemption are examples

Estate — The degree, quantity, nature and extent of ownership in real property

Study Notes

If a third party is not named, the grantor of a life estate retains a “Reversionary Interest”

A Life Estate is not a leasehold estate. Leasehold estates include:

  • Estate at will
  • Estate at sufferance
  • Estate for years

** Lease means just visiting for a while

A Freehold Estate is:

  • Life Estate
  • Fee Simple Estate
  • Fee Simple Determinable

Sam has a Life Estate in a 5 acre tract of land. When Sam dies, the property will pass to his nephew. Sam wishes to sell his interest in the property. Sam can do this, but in this situation, Sam’s buyer will acquire the same interest as Sam.

An estate that may be terminated by any party at anytime is an “Estate at Will”

True Statements

A Fee Estate would include the right of possession, but “Leasehold Estates” also include the right of possession but they are not Fee Estates

The wording in a deed “To B for the life of C” creates an estate known as Pur Autre Vie

Community property is a Statutory Estate

A Life Tenant may not commit waste, but maintain the premises in good repair and pay the mortgage, taxes and insurance.

If a property owner holds Fee Simple Defeasible title, his oe her title is subject to certain specified conditions

Chapter 5: Sole Ownership, Joint Ownership and Trust

  • Tenancy in Severalty

Joint Tenancy / Co-Ownership

  • Right of Survivorship
  • Unity of Title
  • Unity of time
  • Unity of Interest
  • Unity of Possession Joint
  • Tenancy by the Entireties

Tenancy in Common (Estate in Common)

  • Partition Suit
  • Tenancy in Partnership
  • Tenancy in Trust
  • Syndicate
  • Blue Sky

Key Terms and Definitions

Tenancy in Severalty — Individual ownership of real property

Joint Tenancy — An estate of two or more owners, each with right of survivorship

Tenancy by the Entireties — Tenancy between husband and wife

Tenancy in Common — Co-owners without survivorship rights

Limited Partnership — A partnership that has limited and general partners

General Partnership — All partners are individually and totally liable for obligations of the partnership

Trustee — Holds title from someone else

Land Trust — A method of holding title that maintains the confidentiality of the true ownership

Study Notes

The owner of an undivided interest in land with no right of survivorship owns it as Either Tenancy in Common (or)… Tenancy in Severalty

Property held in Joint Tenancy passes to the surviving owner(s) upon death of one of the owners

The one unity in a Tenancy in Common ownership is “possession”

A married woman may not own property with a man other than her husband is known as Tenants in the Entireties

Joint Tenancy cannot be created by operation of law; it must be created by the parties’ expressed intent

A Tenancy in Severalty exists when one person own real estate

Joint Tenancy means unity of ownership, and title is held as if all the owners constituted as one person(s). To create Joint Tenancy, the following four things must happen at the same time….

  • Title
  • Unity of Time
  • Unity of Interest
  • Unity of Possession

A Joint Tenancy may be terminated by consent of the parties or by the sale. When one joint tenancy sells his interest to an outside party, the outside party takes title as tenant in common. Joint tenancy is a form of ownership that escapes probate.

Fee Simple title can be held in trust

It is possible for the creator of the trust, the Trustor, and the beneficiary to be the same person

In a Tenancy by the Entireties each spouse own the entire estate (two people as one) at 100 percent ownership

If (1) owner in a joint tenancy sells his interest, the purchaser will be a Tenant in Common with the remaining joint owners.

Tenancy in Common is the most common form of co-ownership

A Tenancy by The Entireties is severed by divorce.

Chapter 6: Liens and Easements

Liens:

Easements:

Liens as Encumbrances Affecting Title

  • Priority of Liens
  • Satisfaction of Liens
  • Enforcement of Liens

Classification of Liens

  • General Specific
  • Voluntary
  • Involuntary
  • Statutory
  • Equitable

Common Types of Liens

  • Property Tax Liens
  • Special Assessment Liens
  • Federal Tax Liens
  • Mortgage Liens
  • Vendor’s Liens
  • Vendee’s Liens
  • Mechanic’s Liens
  • Judgement Liens
  • Attachment Liens
  • Lis Pendens

Easements as Physical Encumbrances

Classification of Easements

  • Easement Appurtenant
  • Dominant Estate
  • Servient Estate
  • Personal Easement in Gross
  • Commercial Easement in Gross

Creation of Easements

  • Express Grant
  • Express Reservation
  • Necessity
  • Implication
  • Prescriptive Easement
  • Agreement
  • Eminent domain in condemnation

Termination of Easements

  • Necessity no longer exists
  • Dominant and servient estates are merged
  • Dominant estate releases servient estate
  • Dominant Estate abandoned
  • Servient Estate Destroyed
  • Court terminates / Quiet title suit

Study Notes

SSI – Specific Statutory Involuntary

  • Property taxes
  • Special assessments
  • Mechanics liens
  • Lis pendens

GSI – General Statutory Involuntary

  • Federal taxes
  • Court judgements

SEI – Specific Equitable Involuntary

  • Vendors liens
  • Vendees liens

SEV – Specific Equitable Voluntary

  • Mortgages

Except for the tax liens, and in some states, a Mechanic’s Lien, priority of the liens is determined by “Date of Recording”

A judgement lien is not a special lien

The order of priority of liens would most likely be:

  • Tax – Government
  • Mortgage – Banks
  • Mechanic – Business

Liens are:

  • Encumbrances on the title
  • Arise from a debt
  • Create a cloud on the title when recorded

A lien attached to one parcel of real estate is a Specific Lien

Carol has a right to uses Fred’s driveway for her lifetime. Therefore Carol has a Easement in Gross.

The creation of an easement by prescription is most similar to adverse possession

A lien that is established by the state legislature is a statutory lien

Jim and Sally own adjoining properties. Sally’s deed gives her the right to cross Jim’s property. Sally’s right is known as an easement appurtenant.

A landscaper has not been paid for landscaping a homeowner’s yard. A friend tells him the house is for sale. The landscaper should file for a lien.

Jone’s buys a lot that has no access by way of a public road. He can gain access to his land by way of his neighbor’s land that has public road access if… the grantor of the property caused the property to be landlocked (or) … His neighbor agrees to give him an easement

Permission to hunt on another’s land is an example of a License.

An easement is the legal right to use another’s land for some specific purpose. Easements must be in writing, except those created by statute. Easements do not create an ownership[ interest in land. Easements attach to the land, not people. When a buyer buys a parcel of land, he buys it subject to any easements attached to it. A license is not an interest in land, but a personal, revocable right.

Judgement Liens are:

  • General
  • Statutory Involuntary
  • Attach to real personal property

A writ of attachment is created by a court action and is therefor not a statutory lien (as in a property tax lien for instance)

Suppliers can get a mechanic’s lien if they have an expressed or implied contract for the materials they supplied

An easement by necessity is one created by operation of law.

Easements by implication arise from the acts or conduct of the parties.

Easements are terminated when the need for the easement no longer exists

A party wall becomes an appurtenance that would stay with the property when either property is sold. It does not relate to a person, but to the properties.

An easement may be accomplished by operation of law through the government power of eminent domain in condemnation proceedings.

An IRS lien is a General Lien

You could have a lien on your property as a result of the county installing sidewalks in you neighborhood

Chapter 7: Land Use Regulation

  • Ordinances
  • Methods of Enforcement
  • Environmental Regulations
  • Private Restrictions

Government Planning & Zoning

  • Police Power
  • Building Codes
  • City / County Master Plans
  • Zoning Laws
  • Zoning Ordinances
  • Zoning Boards

Types of Zoning

  • Residential
  • Commercial
  • Industrial
  • Agricultural
  • Public

Zoning Actions

  • Granting variances
  • Issuing permits of non-conforming use
  • Spot zoning
  • Down zoning
  • Bulk Zoning
  • Buffer Zoning
  • Conditional use zoning

Environmental Concern

Private Regulation of Land Use

  • Restrictive Covenants and Deed Restrictions
  • Deed Restrictions
  • Laches

Illegal Regulation of Land Use

  • Zoning Estoppel

Key Terms and Definitions

Master Plan — Adopted by counties and towns to direct present and future growth

Zoning — Implementation of ordinances related to land and building use

Variance — Granted to allow a non-conforming use because of unique circumstances

Non-conforming use — A use that’s inconsistent with current zoning.

Spot Zoning — When the zoning for a relatively small area differs significantly from the zoning of an adjacent area

Down Zoning — Change of zoning from a higher, more active category to a lower, less active category

Bulk Zoning — Controlling density by restrictions on setback lines, building height and required open areas

Buffer Zone — A strip of land set aside to separate two types of incompatible land uses

Conditional Use Zoning — Allowing a uses not in compliance with zoning already in effect

Restrictive Covenants — Sometimes referred to as Private Zoning

Study Notes

Laws that set minimum construction standards are Building Codes

Zoning laws are created and enforced by city and county governments only

The distance required between a building and the street or property line is the Setback

The purpose of city planning is to guide the future development of a city.

A city would use it’s zoning power for:

  • Land use controls
  • Building permit requirements
  • Fire & safety regulations

** Zoning power does not have anything to restrictive occupancy and types

All of the following are enforceable deed restrictions:

  • Exterior design
  • Building site
  • Limitations on the height of trees

Private Restrictions cannot restrict the grantee’s conveyance of the property

A restrictive covenant would most likely be reinforced by an injunction : Example: Neighbor calls in a PUD / HOA violation

Bulk Zoning is used to control density and overcrowding by regulating setbacks, building height and percentage of open areas.

A country store located in a residential area burns down. The most likey scenario in this case is the owner may re-build a store only if he obtains a Zoning Variance or… Spot Zoning

Building Codes are enforced by the issuance of building permits in addition to the requirement for periodic inspection at certain phases of construction. A final inspection is required before a certificate of occupancy is issued.

The basic zoning categories are:

  • Residential
  • Commercial
  • Industrial
  • Agriculture
  • Public

The state and local government police power is derived from the US Constitution

Government Restrictions on land use must be non-discriminatory and promote general welfare.

Zoning decisions are not final, they may be appealed to a zoning appeals board and the courts

A residential area can be rezoned so that further homes can be built

Bulk Zoning controls density

A Zoning Board could issue a permit for a hospital to be built in an area zoned residential

Restrictive Covenants are a type of private zoning

Building Codes are sometimes based on national standard

Chapter 8: Cooperatives, Condominiums, Time Shares, PUD’s

Cooperative Ownership

  • Proprietary Lease

Condominium Ownership

  • Air Lots
  • Common Areas
  • Common Wall
  • Horizontal Property Act / Condominium Acts
  • Condominium Instruments
  • Public Offering Statement

Time Share Ownership

  • Interval Ownership

Planned Unit Development

  • Density Zoning
  • Land Use Intensity

Key Terms and Definitions

Condominium — Individually owned units within a multi-unit building or development

Cooperative — A type of corporate / shareholder ownership interest in a dwelling

Time Share — Used mostly in vacation and second home properties

Planned Unit Developments (PUD) — A type of high density dwelling on small lots, used to maximize open space

Land Use Intensity (LUI) — A system of analyzing land use

Density Zoning — Requires an average maximum number of houses per acre in a subdivision

Cluster Zoning — A builder is allowed to cluster homes in order to maximize density but retain open space

Statute of Limitations — The time within which lawsuits must be brought or complaints filed with administrative agencies

Condominium Instruments — Declarations, plats, plans and bylaws of the home owners association for a condominium development

Public Offering Statement — Makes known to prospective purchasers the circumstances and features of a condominium

Study Notes

The land on which a high-rise condominium stands is owned by the individual unit owners as Tenants in Common

A cooperative owner has exclusive use of her unit by reason of a Proprietary Lease (shareholder’s lease)

Condominium ownership is regulated by state laws that in some states are called Condominium Acts and in other states called Horizontal Property Act

The time share form of ownership or use can be acquired by a:

  • Lease
  • License
  • Deed

In terms of ownership, OUD’s most clearly resemble Condominium ownership

An Air Lot best describes a condominium unit

Condominium Ownership is described as:

  • A corporation owns land and improvements
  • Taxes are general liens against a corporation
  • Unit owners are stock holders

*** No individual bundle of rights with a condo … The Corporation is the person

A condominium is advertising a pool … it has not been built yet / completed … the condominium can only advertise this if they state the pool is not complete but opening on a specific date.

Multi-unit developments where occupants have some sort of ownership interests are:

  • Cooperatives
  • Condominiums
  • Times Shares
  • PUD’s

In a condominium, title to individual units is held in Fee Simple by an individual or other entity. Each unit has a separate legal description and each owner can mortgage or sell his individual unit.

Cooperative Unit owners have a proprietary Lease; ownership is held by a corporation, partnership or land trust.

Time Shares are somewhat like leases

Density Zoning restricts the number of houses per acre

A condominium developer is required to file a Master Deed with the state

Common Areas are owned as Tenants in Common with other condominium owners

Unit owners and builders both must comply with condominium instruments

Chapter 9: Alienation, Wills and Deeds

Voluntary Alienation

  • Deed of Conveyance
  • Will
  • Dedication
  • Public Grant

Involuntary Alienation

  • Descent and Distribution
  • Intestate Succession
  • Adverse Possession
  • Unintentional Dedication of land for public use
  • Title by Accession
  • Erosion / Accretion
  • Title by Estoppel
  • Foreclosure
  • Power of Eminent Domain
  • Condemnation Suit
  • Escheats

Intestate and Testate Succession

  • Testate Succession
  • Intestate Succession
  • Probate
  • Executor
  • Administrator
  • Testator
  • Devise
  • Codicil

Deeds

  • Grantor
  • Grantee
  • Consideration
  • Words of Conveyance
  • Legal Description
  • Reservations/ exceptions/ restrictions
  • Acknowledgement
  • Delivered
  • Accepted
  • Registered

Covenants and Deeds

  • Covenants of seisin
  • Covenant of Quiet Enjoyment
  • Covenant Against Encumbrances
  • Covenant of Warranty
  • Covenant of Further Assurance
  • Covenant Against Grantor’s Acts

Clauses in Deeds

  • Premises Clause
  • Granting Clause
  • Habendum Clause
  • Testimonium Clause

Types of Deeds

  • General Warranty Deed
  • Special Warranty Deed
  • Bargain and Sale Deed
  • Quitclaim Deed
  • Correction Deed

Other Deeds

  • Deed of Trust (Trust Deed)
  • Guardian’s Deed
  • Deed in Foreclosure
  • Deed in Partition
  • Patent Deed

Key Terms and Definitions

Deed of Conveyance — The most common method of transferring title

Will — Provides for transfer of property upon death

Dedication — Transferring private property /land for public use at no cost

Public Grant — Transfer of title from the government to an individual such as a patent deed

Descent and Distribution — Property passes to heirs by statute because there is no will or an invalid will

Intestate Succession — The laws that determine which heirs get the property of someone who died without a will

Adverse Possession — Title gained by open, notorious & hostile continuous possession for a certain period of time

Title by Accession — How title is gained through alluvion that increase land mass

Accretion — A stream erodes one person’s property and builds up another’s property

Alluvion — Soil deposits that are moved from one property to another

Study Notes

Mr. Jones died and left a will in which Mr. Titus was named to settle Mr. Jones’ affairs. Mr. Titus would be called the estates Executor.

Mr. Davis died. His son Doug inherited his land despite his dad not having a will. Doug inheriting the land is the principle of Descent and Distribution.

A title is transferred by the laws of Intestate Succession pursuant to Descent and Distribution

The donation of land for public uses is called Dedication

Alienation means transfer of property

Involuntary Methods of conveying property are:

  • Escheat
  • Condemnation
  • Adverse Possession

*** A quitclaim deed is not an involuntary method of transfer

A quitclaim deed (which is voluntary) deed conveys only the interest of the grantor

A deed is acknowledged by the grantor. Acknowledging means creating a formal declaration that is signed and witnessed.

There are eight (8) requirements for valid deeds:

  • Grantor
  • Grantee
  • Consideration
  • Words of conveyance
  • Legal description
  • Signature
  • Delivery
  • Acceptance

A codicil is a modification or adoption to an existing will

A holographic will is one in the testator’s own handwriting

A nuncupative will is a handwritten will

Some states do not recognize holographic or nuncupative wills

If a person has a will but no executor has been named , the court will appoint an administrator. Remember, a court appoints an administrator

The person who makes a will is the Testator

A deed must be delivered in order to pass a title

A deed restriction limits some use of property

A notary public witnesses an acknowledgement

Descent and Distribution is by the operation of law and is involuntary

Title by Accession is involuntary alienation

Section 2 Quiz

The most complete type of estate in real property is a Fee Simple estate

Encumbrances on Real Property:

  • Easements
  • Liens
  • Deed Restrictions

A married woman and an unmarried man may not own real estate as Tenants by the Entireties

Bob owns a property where the house is on the back of the lot. He sells the front half of the lot to Carol, reserving an access easement across the front lot. That said, Bob owns the dominant estate and Carol owns the Servient Estate. Remember the Dominant Estate has rights to the Easement

The unities of:

  • Time
  • Title
  • Interest
  • Possession

Are all required in order to create The Right of Survivorship

A workman who is not paid for work that improved real estate may file a Mechanic’s Lien

Harry sold his riverfront property to Sally, but reserved for himself an easement for the rest of his life. Harry has the right to cross the property to fish from the river. Therefore, Sally owns the Servient Estate and Harry has the Dominant Estate.

LUI (Land Use Intensity) scales that relate land, building coverage, and open spaces and have become increasingly important in the development of PUD’s (Planned Unit Development)

The owner of a cooperative apartment unit owns stock in a non-profit corporation Cooperative == > non profit

Condominiums fall under the horizontal property act == > Cond act

A clause in a deed stating that title would revert to the grantor, if the grantee operated a dance hall on the property would be a condition (CCR)

  • Can’t do = Restriction
  • Keep promise = Covenant
  • If = Condition

Jerry Jones buys a piece of land that has no access to a public record. He can access his land because the law guarantees all landowners Egress and Ingress.

If a person dies intestate leaving real estate as part of her estate, her heirs will acquire title according to the law of Descent and Distribution

Title and real property is conveyed by deed when delivered and accepted

The type of deed in which the grantee is given the most protection and in which the grantor (giver) retains the most liability is a General Warranty Deed

The covenant whereby one warrants that he is the possessor and owner of property being conveyed is the Covenant of Seisin (ownership)

If a deed restriction prohibits a use permitted by zoning, then the deed restriction controls = > Deed Restrictions over rule zoning

A variance could be reasonably requested in each instance:

  • Minor exception to a setback
  • Rebuilding or Improvements that were legally non-conforming but were destroyed by fire

** A request by a developer to build a major shopping center on land does not apply

Private restrictions cannot restrict the grantees conveyance of the property

Regulations that control density an overcrowding are an example of Bulk Zoning.

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