Legal Aspects of Real Estate

Common Law

basis of law in the United States

Case Law

the overall accumulation of judicial decisions

Substantive Law

A law that establishes and controls the rights and duties of parties. Laws regarding contracts and real property fall into the category of substantive law.

Procedural Law

a law that sets out the methods for enforcing the rights and duties under substantive law. A specific example of a procedural law is a statute of limitations.

Civil Law

The law of private rights and duties. An example of a civil law is a law providing that all property sale contracts must be in writing.

Criminal Law

the law of public rights and duties.

Articles 1-3

Divide the powers among three major branches of government: legislative, executive, and judicial.

Due Process

Amendments 5 and 14 guarantee due process, which requires a fair hearing by an impartial judge. This would be important for an agent accused of misrepresentation or other misconduct.

Equal protection

Amendment 14 prohibits governments from adopting laws that discriminate between and among certain groups of people.

Just compensation

Amendment 5 prohibits the government from taking private property for public use “without just compensation.”

No unreasonable searches or seizures

Amendment 4 requires that a judge issue a warrant for a search.

Land

The legal concept of land encompasses: the surface area of the earth, everything beneath the surface of the earth extending downward to its center, all natural things permanently attached to the earth, the air above the surface of the earth extending outward to infinity.

Parcel or tract

A portion of land delineated by boundaries is considered a parcel or tract. 

Physical characteristics

Land has three unique physical characteristics: immobility, indestructibility, and heterogeneity. 

Real estate

The legal concept of real estate encompasses:

• land

• all man-made structures that are "permanently" attached to the land

Improvements

Such man-made structures attached to the land are called improvements. 

Property

In common understanding, property is something that is owned by someone. From a more technical standpoint, property is not only the item that is owned but also a set of rights to the item enjoyed by the owner. 

Real property

Real property is real estate and the bundle of rights associated with owning the real estate. 

Personal property

Personal property is anything which is not real estate, and the rights associated with owning the personal property item. Items of personal property are also called chattels or personalty.

Real property rights

These consist of the bundle of rights associated with owning a parcel of real estate. Foremost of these rights is the right of possession.

Littoral rights

These rights concern properties abutting bodies of water that are not moving, such as lakes and seas. 

Riparian rights

These rights concern properties abutting moving water such as streams and rivers. If a property abuts a stream or river, the owner's riparian rights are determined by whether the water is navigable or not navigable. 

Fixtures

Fixtures are real property converted from personal property by attachment to real estate. 

Trade Fixtures

Trade fixtures are personal property items temporarily attached to real estate in order to conduct business. These items are designed to be removed at some point.

Emblements

Emblements are plants or crops considered personal property since human intervention is necessary for planting and harvesting. 

Conversion

Conversion is the act of transforming real to personal property through severance, or personal to real property through affixing

Public Land Survey System

The method traditionally used over the largest part of the United States to survey and classify land parcels before naming an owner, particularly in rural or undeveloped land.

Metes and bounds

a system which uses physical features of the local geography (monuments), along with directions and distances, to define and describe the boundaries of a parcel of land. Uses POB

Rectangular survey system, or government survey method

a system of describing land by referring to meridians and baselines

Lot and block method, or recorded plat method

a system used to locate and identify land, particularly for lots in densely populated metropolitan areas, suburban areas, and areas beyond the suburbs

Location Survey

A location survey is boundary survey with the additional location of all the interior improvements. Missing corner markers are replaced. The surveyor will prepare a map showing the boundaries and improvements. This type of survey may be required for obtaining a loan. 

Topographic Survey

This survey locates improvements and topographic features such as elevations of the land, embankments, contours, water courses, roads, ditches, utilities, etc. This survey is often used in conjunction with a Location Survey in order to prepare a Site Design Map, a Subdivision Map, or an Erosion Control Plan.

Site Planning Survey

This survey uses a boundary and topographic survey as a base to design future improvements. It can be a design for a house, a residential subdivision, a store, a shopping center, a new street or highway, a playground, or anything else.

Subdivision Survey

This often includes a topographic survey of a parcel of land which will be divided into two or more smaller tracts, lots or estate division. This can also be used for site design of lots, streets and drainage. It is for construction and recording.

Construction Survey

This survey uses surveying techniques to stake out buildings, roads, walls, utilities, etc. This includes horizontal and vertical grading, slope staking, and final as-built surveys.

Geographic Positioning System

GPS surveys use portable receiving antennas to gather data transmitted from satellites which are used to calculate the position of the object being located on the surface of the earth.

ALTA/ACSM Survey

This is a very detailed survey often required by lending institutions and is strictly geared towards companies purchasing commercial property. Standards created by the American Land Title Association (ALTA) and the American Congress of Surveying and Mapping (ACSM) are used to create this type of survey.

Rod

16.5 feet; 5.5 yards

Chain

66 feet; 4 rods; 100 links

Mile

5,280 feet; 1760 yards; 320 rods

Sq. Mile

640 acres

Acre

43,560 sq. feet; 160 sq. rods

Section

640 acres

Sq. Foot

144 sq. inches

Sq. Yard

9 sq. feet

Cu. Yard

27 cu. feet

Datums

Standard elevation reference points