Flashcards in Unit 8 Deck (85):
any interest or estate in land and any interest in the enterprises or business opportunities, including any assignment, leasehold, sub-leasehold or mineral right; however, the term does not include any cemetery lot or right of burial in any cemetery; renting of a mobile home lot or recreational vehicle in a mobile home park or travel park.
real property or real estate
Real Estate includes:
Land plus appurtenances (rights, privileges, and improvements that belong to and pass with the transfer of the property).
What are the two types of appurtenances?
Man-made appurtenances; and Natural appurtenances
Give examples of man-made appurtenances.
houses, fences, barns, swimming pools (in other words, items that are added to the property).
Give examples of natural appurtenances.
Air rights, gas rights, solar rights, light and sound rights, mineral rights, and surface rights. Each of these can be sold separately. Water rights (littoral, riparian and prior appropriation).
rights, privileges and improvements that belong to and pass with the transfer of real property.
Subsurface rights of real property include:
The right of the owner to mine, dig or profit from any type of subsoil product such as minerals, oil, gas, gold etc.
The owner has the right to keep these products or to sell those rights to someone else- such as selling the oil rights to a petroleum company without selling them the actual land.
Surface rights include:
the rights to anything on the land or water.
Water rights include:
Riparian, Littoral, and Littoral Rights
Along a Navigable river, an owner owns to the water's edge. Along a Non-Navigable steam, the owners own the land to the center of the stream and the government owns the water.
Along large navigable lakes or oceans, the owner owns to the average high water mark.
Describe Littoral Rights
The body of real property law that defines an owner’s interest when the property abuts a navigable large body of water like an ocean, sea, or lake. Both riparian and littoral rights are tied to land that is adjacent to water. Generally, the property line ends at the mean high water mark.
The increase of land created by deposits of soil by the natural action of water.
Define Natural Rights of land and name them.
Land gain or loss due to water. Accretion, Erosion,Avulsion, Reliction, and Alluvial plain
The decrease of land by the gradual wearing away that is caused by flowing water.
The "sudden" loss of land by an act of nature such a hurricane or typhoon (like the loss of beach).
An increase in land due to the receding of water (such as the increase of land at the Great Salt Lake).
The delta area where the soil deposits from the river.
The soil deposited from the river in the delta area is called
Can be sold separately from the land. Many times a property owner will sell the air above his land for condo rights or rights for signs, etc. Restricted to the air that owners can reasonably use.
How are air rights sold?
Name some types of easements.
Scenic easements, light and air easements
Why would there be a need for a scenic easement?
So nothing can be builtin the view of others
Why would there be a need for a light and air easement?
To stop a building from blocking the light of another
The ___________ maintains certain rights and restrictions for air travel and defense.
Annual crops such as wheat, corn and vegetables. These are considered personal property, as long as the annual crop is growing. Such crops will be transferred as part of the real estate, unless a special provision is included in the sale contract.
emblements or fructus industriales
Annual crops such as wheat, corn and vegetables are known as emblements or fructus industriales. As long as the annual crop is growing, these are considered ________ property.
Trees, perennial bushes and grasses that do not require annual cultivation are known as:
Trees, perennial bushes and grasses that do not require annual cultivation are known as fructus naturales and are considered ______ property.
If a tree is cut down and sold as firewood, the firewood becomes ________ property.
Changes personal property to real property. An example of this is when a tree is planted; the tree is annexed to the property so it becomes part of the real property.
Changes the real property to personal property. An example of this is when the tree is cut down and cut into firewood. The logs from the tree are considered personal property.
What are some difference between real propertyand personal property?
Real property is all the land, appurtenances, rights and privileges connected together.
Personal property is anything that is not real property; the opposite of real property; is readily movable from one location to another.
a right, privilege, or improvement that belongs to and passes with the transfer of property.
Defined as something that once was personal property but has been affixed or installed to real property; it becomes real property. Since a it is considered real estate, it would remain with the property when it sold. Can also be called an "Appurtenance".
When an item (personal property) becomes "affixed" or attached to real property, the personal property become ______ ________ and would remain with the property when its sold.
Personal property is sometimes referred to as chattels (also called personalty). This word evolved from the word "cattle", one of man's earliest important possessions. Chattels real are annexed to real estate, whereas chattels personal are movable. Chattels are transferred by a:
bill of sale
A fixture was once personal property and is now real property. What is the legal test to see if an item has become a fixture?
Method or Degree of Attachment: How is the item attached? Is it permanently attached or temporarily? Adaptability: How does the item fit in its environment? Intent or Agreement of the Parties: What do the buyer and seller agree upon? Damage: How much damage will the removal of this item cause? If the parties agree that it is personal and there is damage, the owner must repair the damage.
Personal Property should always be transferred by a
Bill of Sale
____________ should clearly define what is real and personal in the agreements. Any personal property should be carefully spelled out on the contract and all parties must be well aware of the situation.
Listing and Sale contracts
In general, why is it better not to include personal property in the sale contract between the buyer and seller?
Each personal item will need a value for lending purposes separate from the property. Also, personal property may be subject to state sales tax from the buyer.
Defined as the property of a commercial tenant that is installed but is necessary for business. Usually a landlord will give a commercial tenant permission to install major fixtures such as freezers, large signs, overhead lifts etc. There is also usually an agreement concerning removal of the item at the end of the lease term. This is personal property and can be removed by the tenant at any time before the end of the lease. Damage caused by removal of the must be repaired by the tenant. If it is not removed by the expiration of the lease, it becomes the property of the landlord at the end of the lease term. Only Commercial Tenants have these.
In the United States, a set of legal rights accompanies the purchasing of real property. The definition for these rights is beneficial interests associated with real property.
These rights in the property include the right to:
All of these go with the property when it changes ownership.
Possession, Enjoyment, Disposition, Control, Exclusion. These rights could be broken down further into the following actions: sell, use, lease, encumber (borrow upon), exclude (No trespassing!), will, occupy, cultivate, exchange, explore, share, mortgage, trade, license (means to give permission to others to use the property), dedicate (means to give private property for public use, such as streets or parks).
Two types of ownership of land existed in history. Name these two types.
Feudal system and allodial system
The first type of land ownership. The king owned all the land and the individuals who lived and worked the land were merely tenants who had the right to occupy and use the land. This system does not exist in the United States.
individuals were entitled to own property without the proprietary control of the king/government. This right for individuals to own property is one of the foundations upon which the United States was built. All property in the United States is under this system.
There are two types of estates:
Freehold and Leasehold
This term indicates ownership, and an indefinite period of time
This term indicates renting or leasing for a fixed term.
This form of ownership is always clearly stated on the transfer papers (the deed) to the property. It can be called any or all of the three words, but it means the highest and best form of ownership. It means that it has the largest bundle of rights possible. It has unlimited duration and it is inheritable. It is subject only to government powers. (P.E.T.E.)
Fee Simple Absolute
This is sometimes called a "conditional fee" because it is based on an occurrence or a non-occurrence of a specified event. It states that it is an estate "on the condition that..." and an estate that provides the "right to re-enter..."
Ex: I will sell my property to you with the condition that alcohol is never served on the premises. If you have a wine and cheese party, then I will have the right to take back the property.
Fee Simple Defeasible
stands for the government limitations on private ownership. It stands for police power, eminent domain, taxation and escheat.
Although classified as a Freehold Estate, this type is not an inheritable type of Freehold as are the other types. This type of Freehold has all the other rights under the bundle of rights except the right to inherit. In either reversion or remainder, a life tenant owns an incomplete bundle of rights. The property cannot be inherited by the life tenant's heirs. As a life tenant, the life tenant cannot:
will or waste. All persons on the deed, life tenant and remainderman must sign to sell the property. This is called:
This type of Freehold Life Estate is based on a person's life but upon death of that person, the estate will go to one of two types of situations:
An Estate in Reversion or An Estate in Remainder
The grantor (owner of the estate) gives his interest to another party called a life tenant. The life tenant is the person, upon whose life the property relies. At the death of the life tenant, the property goes back to the grantor or his heirs. The life tenant cannot will the property nor can the life tenant's heirs inherit the property. When the property returns to the grantor, it returns to Fee Simple Absolute without conditions and is inheritable.
An Estate in Reversion
The grantor (original owner) gives a life tenant possession of the property during the lifetime of the life tenant. The grantor names a third party (called the Remainderman) at the time the property possession is given. At the death of the life tenant, the property is given to the remainderman, rather than the original owner. When it returns to the remainderman, it returns to Fee Simple Absolute without conditions.
An Estate in Remainder
A legal life estate created under Florida law. The homeowner's principal residence is protected from certain creditors but is not protected from property taxes or from a mortgage for purchase or cost of improvements.
Homestead life estate
The signatures of both spouses (even if one is not on the deed) are needed on contracts and mortgages to release ___________ rights.
What is the purpose of homestead?
The homeowner’s principal residence is protected from certain creditors foreclosing. The home is not protected from foreclosure due to real estate property taxes or from loans taken to purchase the home or home improvement.
A minimum share of a deceased spouse's estate, which a surviving spouse may claim in lieu of any amount specified in the deceased spouse's will. For example, a wife omitted from her husband's will may still claim a share of his estate.
How can ownership be held?
Severalty, Tenancy in common, Joint tenancy with the right of survivorship, and Tenancy by the entireties
To take title to real estate alone, as one person. The root the word is SEVER which means to cut off everyone else's interests. This is sometimes referred to as a "sole ownership" or an "estate in severalty." Corporations always take title to real estate in this manner.
More than one person can take title to the property at one time.
concurrent ownership or co-ownership
Name the three types of co-ownership.
Tenancy in common; joint tenancy; and tenancy by the entireties.
An individual interest in group ownership. It is presumed by law unless otherwise stated. Interests may be unequal or equal. One person can own a larger share of the property than another. There is an undivided interest in the property. All the owners have an interest in the whole property. (Can't divide up the house!) One owner can sell one's interest without getting the approval of other owners. Do not need the permission of other owners to sell an individual interest in the property. The interest of each owner is inheritable. It passes to heirs, not other partners. One owner can force the others to either buy him out or file a Partition Law Suit in which the courts sell either the person's shares or the whole property.
Tenants in Common
Called a Unity of Ownership, several things must happen before this can take place. The acronym used to help remember this is TTIP.
Time: all owners must take title at the same time
Title: one deed transferred property from the grantor (seller) to the grantees (buyers).
Interest: each person must have equal interest. There cannot be unequal interest in a joint tenancy.
Possession: undivided interest in the whole property.
Cannot be created by operation of law, nor can it be created after the fact. Joint tenancy creates the right of survivorship which means when one partner dies, the other co-owners will inherit rather than the heirs. This is to avoid probate.
Means when one partner dies, the other co-owners will inherit rather than the heirs.
the right of survivorship
How can joint tenancy be terminated?
One partner sells his/her interest in the property. If there are three joint tenants and one sells his interest to a fourth party, the fourth party becomes a tenant in common with the remaining two joint tenants.
Partition Law suit: the court can dissolve the ownership.
Bankruptcy of any of the joint tenants
Foreclosure of the property.
An ownership by marriage only.
Owners must be husband and wife.
There is a right of survivorship.
Each has an equal and undivided interest.
The property is inheritable by the other partner upon death.
Tenancy by the entireties
How can Tenancy by the Entireties be terminated?
Death of either spouse-survivor becomes owner in severalty
Divorce (parties then become tenants in common)
Mutual agreement, to sell the property
Can a married couple take title any other way than tenancy by the Entireties?
Yes, many times couples for personal reasons will take title as tenants in common or as joint tenants.
Estates less than Freehold. These are all types of leases and should not be confused with Concurrent ownership Freehold Estates.
This type of lease conveys (transfers) property for a definite period of time. It has a definite beginning and a definite ending date, for example June 1, 2014 to May 31, 2015. Both tenant and landlord know in advance when payment is due and when the lease terminates..
Estate for Years
This is a lease which is considered as "a month to month" or periodic tenancy. It is a lease which began with a definite beginning but did not end so it is automatically renewed for the same period as the original lease. Notice is needed to terminate, the same notice as the time period of payment. This lease has a definite beginning, an indefinite end and needs notice to cancel.
Estate from Period to Period
This is a type of lease which is very vague. It has a definite beginning, an indefinite end and can be terminated by either party at any time.
Estate or Tenancy at Will
This is not a lease at all, but it is tenant occupancy of the property without the consent of the landlord. This is usually part of an eviction process. The landlord "suffers" in this relationship
Estate or Tenancy at Sufferance
A form of ownership that differs from that of a contemporary estate in that the entire property is owned by a corporation. To obtain a unit within the building or community, the buyer purchases stock in the corporation. The stock ownership carries with it the right of occupancy (called a proprietary lease). The owner of the share in the Coop is also considered a unit owner for that portion of ownership. Property taxes are paid by the corporation. The taxes are then prorated based upon the shares of stock that accompany unit ownership. This pro-rated amount is tax deductible, as is mortgage interest. In addition to unit expense, a shareholder also pays a monthly fee for maintenance of the buildings, lands, or amenities. Failure to pay the monthly fee can cause the corporation to issue a lien that may result in foreclosure.
The transfer of property is accomplished by the sale of stock.
Form of ownership of real property comprised entirely of units that may be owned by one or more persons, and in which there is, appurtenant to each unit, an undivided share in common elements. Common elements may include walls, courtyards, patios, walkways, doors, windows, and any other elements. Each homeowner owns their unit in fee simple. Each is given a deed which contains a legal description of the space occupied. The owner is given an undivided interest in common areas which may include a percentage based upon individual unit ownership, square footage, or an amount based upon maintenance requirements anticipated for the unit. Property tax is levied separately on each unit. Transfer of the unit to another is by deed. Each owner is required by Florida law to be given a copy of the FAQ’s, Declaration, financials, Rules and Regulations, and By Laws so that the owner is aware of his rights and responsibilities.
Upon determining a want to declare a condominium, a developer must record a:
Prospectus, Declaration, Bylaws, and Rules and Regulations with the local Clerk of Court for the county in which the Condo is being built. In addition to the prospectus or offering circular, each buyer shall be furnished a separate page entitled "Frequently Asked Questions and Answers".
Buy the right to occupy the premises for a short time period, rather than a long lease. A specific time period is purchased, such as the third week in August, and the purchaser receives an undivided interest in the property for 1/52 of a year.
Consists of fee simple ownership and is recorded and conveyed by deed for a specific time period. The owner may sell, lease or rent the property for the time period he owns it just as he could any other property, subject to the Time Share Act of Florida Law.
a temporary rental use with a lease of 20-40 years in duration. This is a leasehold interest rather than the freehold interest of interval ownership. After the lease expires, the interest goes back to the original owner.
Right to Use Ownership
Time- Share ownership falls under the Condominium Act as well as the:
Time Share Act of 721