Real Estate Law

Real Property

Land and anything permanently attached or connected to the land.

Personal Property

Property that is movable and not permanently attached to land.

Tangible Property

Property that exists in physical form.

Intangible Property

Property that lacks physical form.

Natural Rights Doctrine

Certain individual property rights are inalienable.

Creation of Law Doctrine

Property rights are created through government action.

Bundle of Rights

Rights to own; possess; use; enjoy; encumber; dispose of; and exclude others from property.

Legal Right

An interest respected by others and enforceable through legal processes.

Legal Duty

An obligation imposed by law or contract.

Sources of Real Estate Law

Constitutions; treaties; executive orders; statutes; regulations; judicial decisions; and contracts.

Fifth Amendment

Protects against government deprivation of property without due process.

Fourteenth Amendment

Includes due process and equal protection provisions applying to states.

Statutory Law

Laws enacted by legislative bodies.

Common Law

Legal principles developed through court decisions.

Stare Decisis

Requirement for courts to follow applicable binding precedent.

Adjudication

Legal process of resolving a dispute.

Jurisdiction

Legal authority of a court to hear and decide a case.

Personal Jurisdiction

Court authority over a person.

In Rem Jurisdiction

Court authority over property.

Venue

The proper geographic location where a lawsuit is heard.

Statute of Limitations

Maximum legal period for initiating a lawsuit.

Mediation

Neutral third party helps parties voluntarily negotiate an agreement.

Arbitration

Neutral third party resolves a dispute through a determination that may be binding or nonbinding.

Writ of Certiorari

Order allowing the Supreme Court to review a lower court decision.

Federal Question Jurisdiction

Federal court jurisdiction involving federal law or the Constitution or treaties.

Diversity Jurisdiction

Federal jurisdiction generally requiring complete diversity of citizenship and an amount in controversy exceeding $75000.

Air Rights

Rights to develop or use airspace above land.

Rights to Sunlight and Views

Generally no automatic right without an easement or other applicable law.

Mineral Rights

Rights to minerals and oil and gas beneath property.

Minerals Before Extraction

Considered real property while below the surface.

Minerals After Extraction

Become personal property after being removed.

Rule of Capture

Owner may acquire oil or gas lawfully captured on their land even if it migrated from beneath neighboring land.

Correlative Rights

Each owner has a reasonable opportunity to extract a fair share of underground resources.

Unitization or Pooling

Combining resource interests to prevent disproportionate extraction.

Lateral Support

Right to support for land in its natural state from adjacent property.

Subjacent Support

Support of land from beneath the surface.

Riparian Rights

Water rights associated with owning land bordering a watercourse.

Prior Appropriation

First in time means first in right to use water.

Navigable Water

Under the slides the state owns navigable waters and associated riverbeds.

Non-Navigable Water

Adjacent landowners generally own to the center of the river or streambed.

Reasonable Conduct Rule

Surface water diversion is permitted when reasonable under the circumstances.

Nuisance

Substantial and unreasonable interference with another person's use and enjoyment of land.

Private Nuisance

Interference with an individual's use and enjoyment of property.

Public Nuisance

Interference affecting the rights of the public.

Nuisance Per Se

An activity or condition considered a nuisance by its very nature.

Trespass

Intentional unauthorized invasion of another person's land.

Trespass Defenses

Consent; necessity; and recapture of personal property.

Categories of Visitors

Trespassers; child trespassers; licensees; and invitees.

Easement

Right to use another person's land for a particular purpose without possession or ownership.

Nonpossessory Interest

Interest in land involving less than full possession or ownership.

Five Methods of Creating Easements

Grant; estoppel; necessity; implication; and prescription.

Easement by Grant

Easement created by express agreement usually through a deed or legal document.

Easement by Estoppel

Created when an owner's conduct leads another to believe they have an easement.

Easement by Necessity

Easement arising when previously unified land is divided and a parcel has no access.

Easement by Implication

Easement based on a preexisting use when previously unified property is divided.

Easement by Prescription

Use right acquired without landowner permission through qualifying adverse and open and continuous use.

Prescriptive Easement Requirements

Adverse use; open and notorious use; continuous use for the legally required period.

Adverse Use

Use without the landowner's permission.

Open and Notorious

Use that is visible or discoverable.

Continuous Use

Use continuing for the required legal period.

Elements of Easement by Necessity

Prior unity of ownership; division; strict necessity; and continuing necessity.

Elements of Easement by Implication

Prior unity; division; preexisting use; and reasonable necessity at division.

Easement Appurtenant

Easement benefiting a specific parcel of land.

Easement in Gross

Easement benefiting a person or organization rather than a particular parcel.

Affirmative Easement

Allows a person to perform an activity on another person's land.

Negative Easement

Restricts a landowner from performing certain activities.

Dominant Estate

Property that receives the benefit of an easement.

Servient Estate

Property burdened by an easement.

Easement Maintenance

Dominant estate owner generally maintains the easement unless an agreement provides otherwise.

Easement Termination

Purpose achieved; merger; abandonment; incompatible acts; written release; or foreclosure of servient estate.

Merger

Easement may terminate when dominant and servient estates become owned by the same person.

Written Release

Written relinquishment of an easement right.

License

Temporary and generally revocable permission to enter another person's property.

Profit

Right to enter another person's land and remove something from it.

Covenant

Promise concerning property that may bind present and subsequent owners.

Conservation Easement

Easement intended to preserve land.

Fixture

Personal property attached so permanently that it becomes part of real property.

Fixture Tests

Intention; adaptation; annexation; and damage caused by removal.

Trade Fixture

Property installed by a commercial tenant for business use that generally remains the tenant's personal property.

Fructus Naturales

Naturally growing plants or vegetation.

Fructus Industriales

Crops produced through human cultivation.

Emblement

Right to cultivate and harvest annual crops.

Secured Transaction

Transaction creating a security interest in personal property or fixtures.

Security Interest

Creditor's interest allowing recovery against collateral if the debtor defaults.

Secured Creditor

Creditor with a security interest in specific collateral.

Unsecured Creditor

Creditor without a security interest in specific collateral.

Attachment of Security Interest

Requires an agreement or possession plus value given and debtor rights in collateral.

Perfection

Protecting a secured creditor's interests against competing creditor claims.

Financing Statement

Public filing providing notice of a security interest.

Financing Statement Duration

Generally effective for five years unless continued.

PMSI

Purchase Money Security Interest connected to financing the purchase of collateral.

PMSI Filing Time in Lecture

Slides emphasize timely filing within 20 days of debtor possession for the stated priority rule.

Priority Order in Lecture

Perfected PMSI first; other perfected secured creditors second; unperfected secured creditors third; unsecured creditors last.

Default Remedies

Debt judgment; repossession or sale of collateral; and possible deficiency judgment.

Estate

An interest in land defined by possession rights and duration.

Present Interest

Current right to possess property.

Future Interest

Legal interest providing a potential future right to property.

Freehold Estate

Ownership interest in land.

Non-Freehold Estate

Interest less than ownership and commonly a leasehold.

Fee Simple Absolute

Complete permanent ownership that can be sold or gifted or transferred or inherited.