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Intro to Real Estate & Land Controls

Terms in this set (248)

Surface of the earth extending downward to the center and upward to infinity, including things put there by nature

3 real Property rights

Air rights
Mineral rights
Water rights

Land plus improvements...not moveable

Any interest in land whether it is freehold, non-freehold, leasehold, corporeal or incorporated

Something added to the property that would increase its value, such as a fence or a driveway.

Are all improvements to a property also improvements to surrounding properties?

No- pig farm example

Tangible and intangible items that add to the value of a property.
Example - pool or good view.
Things you can enjoy about the property such as a good view & the location and or the use of items.

Personal Property

All property that does not fit the definition of real property. Also called personalty and chattel.
It's normally not easily moveable and ownership is shown with a bill of sale.

Items used by a tenat in a commercial lease.
Fixtures used in a trade or business by a tenat "chattel fixtures".
Typically are personal property that are removed before the lease expires.

Examples of Trade Fixtures

Store shelving, gas pumps, restaurant equipment and bowling alleys

Fixtures that are not removed by the tenant before the lease expires.
These normally become the property of the landlord in this act.

Personal Property interest in real property.
This would include documents such as leases, mortgages, and land contracts.
The holder of the document has no actual ownership of the real property but only an interest in something that attaches to the real property.

Annual growing crops- must be replanted each year.
These are Personal property.

Fractus Industriales

Fruits of industry

Bundle of Legal Rights

Includes control,
possession,
use,
quiet enjoyment,
the right to sell,
rights to lease,
mortgage,
give away and etc.
Mineral rights, air rights, water rights, leasing, disposition

Air space over a city airport.
A building attached to the land.
A decorative bush planted in the front yard.

Not real property

Gas pumps used by tenant in a business.

Adam grants a life estate to his mother. This life estate is based in the life of Adam's father. When Adam's father dies, the estate goes back to Adam. While Adam's father is alive, Adam's interest in the property would be a...

The 4 criteria for determining if an item is a fixture

Intent,
method of attachment,
adaptation,
agreement of the parties

Which items are chattel real

Leases,
mortgages
land contracts

Seller removed commodes from the bathrooms prior to offering the property for sale. Was he within his legal rights to do this?

Yes, because he did it before he offered the property for sale

Example of an Amenity

Improvements may cost money

An improvement would ordinarily increase a property's value

An improvement to one property may not improve an adjoining property

The improvement of one property would almost always increase the value of adjoining properties

Can a government agency supersede our Rights?

Yes.
Example air rights given by government.

Personal property that has been so affixed to the real estate that it now becomes part of the real estate.

4 test if it's a fixture

Intent or agreement of the parties.
Method of attachment.
Adaptation or use it provides to the property.
Agreement of the parties.

Examples of fixtures

Light fixtures, plumbing fixtures, AC systems

Any thing that belongs to the real property.
This could be a building, easement, or water rights that run with the land, belongs to the land or becomes part of the land.
Includes Rights, benefits, and improvements that go with the land such as easements.

An article that was once personal property that has been so affixed to the real estate that it now becomes part of the real estate.

Bundle of legal rights includes

Air rights
Mineral rights
Lease rights
Possession rights
Enjoyment rights
Disposal rights
Use rights

4 way test to determine if something is a fixture

Intent of the parties.
Method of Attachment.
Adaptation or use it provides to the property.
Agreement of the parties.

Refers to any interest in land whether it is freehold, non-freehold, leasehold, corporeal or incorporeal.

The Rights which extend downward towards the center of the earth which allow us to own and mine the minerals below the surface

Ownership of land extends upward to infinity and the air space above our land

Property owners also have certain rights to the waters on their properties. They either have littoral or riparian rights.

Land rights along Flowing waters.

Riparian Rights

Are associated with the ownership of property along bodies of water that flow such as a river or creek.

A canoe will go down the stream.
These owners own to the edge of the water.

A canoe will not go down the stream.
These owners own to the center of the stream.

Littoral Rights

Controlled by the tide.
Ownership of property along large lakes, seas, or oceans that are affected by tidal currents.
Ownership is to the mean (average) high water mark.

Water rights along flowing waters- ex river bank

Doctrine of prior appropriation

Right to use water with the exception of limited domestic use is controlled by the state rather than the adjacent landowners.

Gaining title to land by the receding of water.

Is the gradual wearing away of land such as by moving water.

The process where by land which erodes away builds up somewhere else.

Alluvion/Alluvium

The actual material involved in the erosion and accretion process such as mud and sand.

Name two ways to lose title to land by nature

Erosion and avulsion

Next to.
If two parties own property along a stream and the stream is the dividing line btwn the two properties they are ___ to the stream.

Two ways to gain title to land by nature

Accretion and reliction

The sudden tearing away of land such as by an earthquake or a mudslide.

When alluvion builds up it is called

Legal Description

Exact way of describing real estate in a contract, deed, mortgage, or other document in a way it would be accepted by a court of law. lots, blocks and parcels, plats, govt survey systems, rectangular survey system, bench marks, sections, townships, topographical lines are terms used in this.

Mets and Bounds

Survey system used in SC that refers to degrees, measurements and directions / courses and distances measurements are often based on monuments. The point of beginning but also be the point of ending.

Fixed objects used to establish real estate boundaries ex- lg rocks, roads, rivers, trees and etc

Lot and Block System

Used in the South to describe real estate legally.

Plat of the Subdivision

Map of all lots of land in a specific subdivision.
Mets and bounds system is used to achieve this and a great weight is given to monuments.

Bench Marks and Topographical Lines

Benchmarks are made on fixed objects to indicate the elevation above sea level.

Governmental Survey System

This system is also called the Rectangular Survey system used in the mid west.

The degree, quantity, nature and extent of ownership one has in real property.
To have an estate, one must in some way possess the real property.

LeaseHold estate

Possession is by a lease for a determined amount of time.

Freehold estate

Possession is by ownership for an unpredictable period of time.

Is created by ownership and holding title to the property, or it may be created by a lease that would give you possession of the property but not ownership.

Means it can be inherited.
Indicates the degree of ownership one has in real property.

Can only be vested with the state obtained by discovery or conquest

Derivative title

These are titles conveyed when property is bought and sold.

The right to or ownership of land also called a deed.

A person's rights, powers, privileges and/or immunities.

Freehold Estates

This is actual ownership of real property for an unpredictable duration.

Inheritable Fee Estates

Inheritable by lineal heirs and collateral such as fee simple absolute and fee simple defeasible.

Fee Simple Estate

Also called ------ ------- absolute.
Highest degree of interest in real property recognized by law.
Most common free hold Estate.
True ownership.
Length of ownership is unpredictable.
Highest degree.

Fee Simple Defeasiable

Inheritable but it can be defeated upon the happening of a specific event.
There are 3 types.

3 types of fee simple defeasible estates

1- fee simple determinable
2- fee simple subject to a condition subsequent
3- fee simple subject to an executory interest

Fee Simple Determinable

It is pre-determined how you must use the property.
Pre determined use.
There is Automatic reversion to heirs if property is used for other purposes .
Can be passed by Will.

Fee Simple Subject to a Condition Subsequent

Has certain restrictions that prohibit future actions from happening on the property.
Heirs must go to court to get property back if conditions are not being followed.
The court decides if grantors can have the right of re-entry.
Involves property being used in a prohibited manner.
Involves going to court.

Executory interest

A third party who obtains ownership in real property because the property was no longer being used as it was originally intended.

Fee Simple subject to an Executory Interest

Is an estate where upon the happening of a designated event, the title is transferred to a third party. Typically involves institutions.

Non-Inheritable Freehold Estate

Is an estate where upon the happening of the designated event, the title is automatically transferred to a third party automatically and third party are key words.

Ownership for the extent of your life.
Estate in land that is limited in duration to the life of the owner or the life of some other designated individual.

Ordinary Life Estate

Terminates on the life estate owner's death.

Life Estate Pur Autre Vie

Life estate based on the life of another person.

One person's present right to a future interest in real property. This may include reversions, reminders, executory interest,right of reentry and possibly reversions and remainders.

Can you sell a life Estate?

If you sell your life estate, when does it come to an end?

When a life estate goes back to the grantor or their heirs it is called a

Reversionary interest

Reversionary Interest

Future interest in Real Estate created at the same time and with the same instrument as another estate.

Remainder Interest

A future interest in Real Estate created at the same time and with the same instrument as another estate.

When a life estate goes to a third party that person is called a

If property goes back to a third party it is called

Remainder interest.

A person that gets what's left over.

Refers to whether or not something happens.

Fee Simple Subject to a Condition subsequent

It is not predetermined how you must use the property.
It has certain restrictions that prohibit certain future actions.
To regain right of entry, grantors must go to court to obtain that right.

The highest degree of interest in real estate at may be deeded to you your heirs and assigns is called

Fee simple Estate

Fee Simple Subject to an executory Interest

An estate where, upon the happening of the designated event, the title is automatically transferred to a 3rd party.
Key words - Automatically, Third party & Institutions.

Leasehold Estates

Do not have ownership in real property. You only have possession of the property. Ownership remains with the landlord. Leases are for a predictable period of time.

Tenancy for years (term)

Any lease for a definite period of time. Time period is exact.

Landlord who holds title.

Tenant who holds possession of the property.

Periodic Tenancy

month to month or week to week tenant arrangement. 30 days written notice to terminate for month to month. 7 days written notice for week to week tenancy.

Tenancy (Estate) at Will

Gives tenant the right to possess the property with the consent of the landlord for an unspecified or uncertain duration.
Tenant ask landlord to stay on property until it is sold. Automatically ends at death of landlord or tenant.
Tenancy is with consent but no time period.

Tenancy(Estate) at Sufferance

Tenant is holding possession of the property without the consent of the land owner. In SC it is called a Holdover Tenant and is the weakest lease interest. Also known as asquatter.

Forms of ownership

Tenancy in severalty
Joint Tenancy
Tenancy in common
Tenancy by the entirety
Statutory ownership

Tenancy in Severalty

Own it by yourself -owned by one corporation or individual

Concurrent Co-Ownership (2 types)

Joint Tenancy
Tenants in Common

Ownership of property by two or more people with right of survivorship built in.
Last one standing gets the joint.

Four unities required to create a joint Tenancy(Pitt)

Unity of possession
Unity of interest
Unity of time
Unity of title

In joint tenancy, each party has the right to sell their share but after the sale they can

No longer be joint tenants.

Unity of possession

Unity of interest

Tenants all own equal parts.

All owners acquired interest at the exact same time.

All joint tenants must be named in the same deed.

Is a legal way to dissolve co ownership when the parties do not agree to its termination

Tenancy in Common

Most common in SC.
This is the right of inheritance.
If one partner dies their interest passes to their heirs.
They don't have to own equal parts,
they do not have to be on the same deed
nor do they have to obtain ownership at huge same time.
The only thing required is unity of possession.

Tenancy by the entirety

Not recognized in SC law.
Example of this is Husband /wife one person with survivorship.

Statutory ownership

Is the SC Real Estate Property Act

SC Horizontal Property Act

Condos - property rights, master deeds, owners associations,and alienation

Condo Property Rights-

Prop divided into units. Owner gets deed to particular unit. If owner =1 person they get deed in severalty. If owner => 2 it's is held as joint tenants, or tenants in common. Owners also own share of common elements.

Common Elements

Parking lots, pools, lawns. All condo owners own these as tenants in common. Owners share of common elements is equal to percentage represented by the owners unit in relation to the entire property and is determined and expressed when property regime is established. This can not be altered.

Refers to converting a cooperative rental building into a condominium where tenants must either purchase or vacate the apartment when the lease expires.

Establishes the horizontal property regime. This must be recorded.

Each owner has the right to sell his or her unit.

Owners Association

Provide for the operation of the association by the owners. 51% of the members are required to adopt decisions. They are responsible for care, upkeep, services, security, fee collection, etc. 2/3rds of members must agree to change bylaws.

Is owned by a corporation in severalty. Each owner owns stock in the cooperation. Owners have the right to occupy a unit under proprietary lease. Corp is responsible for taxes, mortgages, and common areas. Owners get stock (personal Property) rather than real estate. Share holders are responsible for the entire project.

Converting a cooperative rental building into a condominium where tenants must either purchase or vacate the apt when the lease expires

Business Entities

Partnerships
Corporations
REIT
Syndicate

Is an agreement of two or more co owners to conduct business for a profit. Partners are only taxed once. There are two types- general and limited

General Partner

Active partner who would have unlimited personal liability for the debts of the partnership. One partner can personally obligate the other partner.

Limited Partner

Inactive partner who contributes only money to the partnership. Has limited liabilities only to the extent of their investment.

Legal entity created by state law consisting of individuals but regarded by law to be an artificial person. Owners liability is limited to the amount of his investment. The corporation is the liable person and owns property in severalty. Disadvantage is that profits are taxable at both corporate and personal income levels.

Real Estate Investment Trust is held in trust form for the beneficiaries by a trustee. Federal law requires it have 100 or more investors. Are exempt from corporate income tax B&C it's a trust not corporation.

Passive investor

An investor with no management control who invest Capitol only

Two or more people involved in an investment regardless of their legal association, for structuring or operating a particular business venture. Profits come from buying and selling real estate.

Public
government
Private

Public/ Governmental Control

Police power
eminent Domain
escheat

The right of the state to adopt and enforce laws

Examples of police power

Real estate laws
Zoning ordinances
Building codes
Subdivision regulations
Environmental Protection Agency
Health and Sanitation Laws
Buffer Zone
Master plan

Real Estate Laws

Laws made by the SC Real estate commission that can be enforced by the commission based on police power.

Zoning Ordinances

Laws of local governments, cities or counties, to regulate and control the use of land and structures with in designated areas.

Public or government control of property

4 Zoning Classifications

Residential
Commercial
Industrial
Agricultural

If one owner or person needs an exception to zoning so they can do something in the area that is not allowed by current zoning. Individualized request... Not guaranteed.

An exception that allows a property owner to do something in the area that is not allowed by the current zoning

Zoning of one spot for a use that is not consistent with the surrounding area. This is re zoning and changes the law.

Non Conforming Use

Permitted use of real property, which was lawful at the time of construction but it no longer conforms to current zoning.

Grandfathered In

The property zoning and use does not match but use came before zoning. Use must remain consistent but the can continue to operate but could not expand the scope or change the use.

Commonly used in PUDS

Planned Unit Development

Regulates building and construction standards

Subdivision Regulations

Requires those developing subdivisions go by certain laws

Environmental Protection Agency EPA

Federal agency established to protect the environment

Health and Sanitation Laws

Ensures the safety and security of buildings and businesses after construction.

Strip of land( typically a park) separating land dedicated to one use from land dedicated to another use.

Long term usage strategies and growth policies included in this land use plan who's primary objective is to control and accommodate social and economic growth.

Power or Right of the govt to take private property after paying a fair value for the property

The process the government uses to take eminent domain of your property

A person dies without a will or heirs... The govt gets your property. The govt "cheats" you.

Land Controls- Private

Deed Restrictions

Deed Restrictions

Individuals ability to privately control the use of the land by deed restrictions or restrictive covenants. These are an encumbrance on the title. Restrictions can be anything that does not go against the current law.

Restrictive Covenants

Deed Restrictions

covenants (promises), conditions (contingencies) and restrictions. The most restrictive restricts.

A claim, charge, or liability which attaches to and is binding on the real estate. Anything that affects the title to real estate.

Affects one particular piece of property
Types-
Mortgage
Tax Lien
mechanics Lien
Special Assessment

Lien on the property it is also an encumbrance

Real Estate Tax Lein

Jumps above all other liens and is an encumbrance

Anyone who supplies labor or materials on a project can get a mechanics lien. If they are not paid, by swearing to the truthfulness of this claim they may obtain a mechanics lien on the property. Must be recorded within 90 days and action taken with in 6 months. It only impacts the property where the work was done.

Special Assessment

Is a specific real estate tax lien for special improvements that affect specific properties.

Priority of Liens

Based on time or date of recorded (race theory) except Real Estate Tax Liens jump above all other liens.

Encumbrance that affects all property both real and personal.

Types of General Liens

Judgement
Federal Tax Lien
State Tax lien
De events Debt Lien

Decree issued by the court that becomes a general involuntary lien on all property both real and personal. Judgement must be recorded in the county where the debtor's property is located.

Federal Tax Lein

Is a general lien that affects both real and personal property.

A general lien that affects both real and personal property

Decedent's Debt Lien

The debts of the deceased become general involuntary liens against any real or personal property they owned.

Litigation Pending- notice of a possible future lien

Types of Non-possessory Interest

License
Profit
Easement
Easement in gross
Easement appurtenances
Easement by necessity
Easement by implication
Easement by prescription
Easement by condemnation
Easement by dedication

A personal revocable privilege to enter the land of another for a specific purpose. Non-possessory interest or permissive use that gives no rights to the user

Profit a Prendre- right to enter the property of another by prior agreement to make a profit.

A right to use the land of another for a particular purpose is an easement and is classified as an interest in real estate, but not an estate in land. This runs with the land. There are 7 types of easements.

7 types of easements

Easement in Gross
Easement appurtenances
Easement by necessity
Easement by implication
Easement by prescription
Easement by condemnation
Easement by dedication

Easement in Gross

Easement given with no dominant tenement, but someone gets a personal right to use your land. Not used to get to any other parcel of land. Attaches to a person not the property. Ex- utilities

Easement appurtenance( affirmative easement)

Anything that becomes part of the land. Two adjacent parcels of land are owned by two different parties and one benefits from the easement across the other. Easement runs with the land once established.b

Dominant tenement

The tract of land that benefits from the easement

Service to tenement

The tract of land over which the easement runs

Easement by necessity

Person can not be land locked. Thus if you are you can take it to court and they will give you access over the other property. The court will determine where it goes and will make the person seeking easement pay for it.

Easement by implication

Exist when a seller sells a parcel of land to someone else and does not express an easement with the only access being across the retained parcel. The parties must agree to terms and easement is established by actions of the parties.

Easement by prescription

Actual use of real property by an adverse user which continues uninterrupted for a period of 10 years in an open, adverse, notorious and continuous as specified by SC statute which results in this legal right to use the easement.

Easement by condemnation

If the government needed to create an easement for the benefit of the public, they could do it through condemnation proceedings. Taken by Government.

Easement by Dedication

Individual so desired they could dedicate(give), an easement to the gov for public use.

Easements can be terminated by

Mutual agent of parties involved
Merger of the two properties involved
Expiration of the time period if one were given
Abandonment: by nonuse for the prescriptive period

Illegally building over the property line

Legal process to remove an encroachment

Title by Estoppel

Failing to stop an encroachment that you know about can result in the other party gaining title to part of your property by Estoppel.

# sq feet in an acre

# days in a year

# feet in a mile

1sq yard=___ sq feet

1 cubic yard = _____ cubic feet

Interest Rates are given

Water rights controlled by the tide are

Water rights along flowing waters would be

Air rights and mineral rights are included in this when you own property?

Bundle of Legal Rights

Intent,method, adaptation, and agreement determine if an item is a

Something done that adds value to your property

Real property is

The land plus things permanently attached to it either by nature or by man

Refers to any interest in land whether it is freehold, no freehold, leasehold, corporeal or incorporeal.

The surface of the earth extending downward to the center of the earth and upward to infinity. It includes things put there by nature such as trees and water.

Personal Property

All property that does not fit the definition of Real Property

Personality or personal property

Fixtures used in a trade or business by a tenant "chattel
Fixtures" - personal property

Leases, mortgages and land contracts

Documents that give you a personal property interest in real property

Personal property interest in real property.

Annual growing crops

Erosion and Avulsion

Two ways to lose title to land by nature.

Reliction and Accretion

Two ways to gain title to land by nature

Alluvion (Alluvium)

Material such as mud and sand

When mud and sand erodes away and builds up somewhere else

Actual use of real property which continues uninterrupted for a period of years specified by statue may result in a legal right known as easement by...

Easement by appurtenance

Bo Diddle owns a large tract of land and his home is next to the road. Bo sells the back part of his lot to big daddy. At the time of the sale Bo gave Big the right to use a 20 foot strip of land across his property for a driveway. This is a...

A claim, charge, or liability which attaches to and is binding on the real estate is best described as...

Through a condemnation suit, the government may acquire private property and convert it to public use under the power of...

Easement in Gross

When an easement is given with no dominant tenement, but someone gets a personal right to use your land, it is best described as an....

A permissive use that gives no rights to the user would be a...

Zoning ordinances

Public control of property

Private Control of property

CC&R's, Conditions, Deed Restrictions

Non-conforming Use

A property that was legal in the beginning but is now in violation of the current zoning regulations

Rights, benefits and improvements that go with the land

Intent of parties

Most significant test of whether an item is a fixture

Commercial tenant installs a large sign which was anchored. This is called a...

Above Ground Swimming Pool

Personal property

A Contingent Remainder Estate

Property is given to Stephanie as long as she lives, then to her heirs. If Stephanie has no heirs then Celia will get the property. Celia has....

Fee Simple Defeasible estate

The property is deeded to Sam as long as Sam does not get married. This is best described as...

Freehold estates

Life estate, fee simple, life estate per autre vie

A lease for 50 years on a hunting lodge is not a

Freehold estate

Characteristics of tenancy in common include

Heirs retain a right of survivorship interest

Characteristics of joint tenancy include

Interest, time, title possession, equal rights of possession, receive their interest by the same document

Real estate Investment Trust (REIT)

Requires the involvement of at least 100 investors

Tenants in common

Granny and pawpaw plan to buy a house together, but want to will their property to their own children from previous marriages. They should hold title as...

Sam and Celia own property as joint tenants. Celia conveys 1/2 of her interest to her husband ,Brian. Ownership would now be held by

Sam, Celia and Brian as tenants in common

Steph, Celia and Sam are joint tenants. Steph sells her interest to Josh, and then Celia dies. What kind of ownership are Sam and josh left with?

Josh and Sam are Tenants in common

Partition Action

A court proceeding to break up a co-ownership

Tenancy at Sufferance

Weakest interest with a lease

Tenancy for years

A lease for a definite 30 day time

During the term of a lease a lessor holds what interest

When lessee dies, which leasehold estates comes to an end

Tenancy at Will

Survey system that references degrees is known as...

Metes and bounds

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