Real Estate Law Review

Vocabulary flashcards covering key topics in real estate law including sources of law, easements, property restrictions, legal cases, liens, and lien exemptions.

Sources of Real Estate Law

1. Constitutional Law, 2. Statutory Law, 3. Administrative Regulations, 4. Ordinances, 5. Private Law, 6. Court Decisions.

Easement

Nonpossesory right to use another persons land.

Easement Appurtenant

Benefits a piece of land.

Dominant Estate (Tenement)

The tract that benefits from the easement.

Servient Estate (Tenement)

Property burdened by the easement.

Affirmative Easement

The right to do something on servient land.

Negative Easement

Prevent the owner from doing something (e.g., stop owner from planting a tall tree that blocks a view).

Conservation Easement

A negative easement made to protect property because of its historical significance, cultural significance, or architectural significance.

Express Easement

An easement created by a written agreement between two or more parties.

Expressed Grant

An easement created when the owner gives another person an easement.

Expressed Reservation

An easement created when the owner sells property but keeps an easement for themselves over the land being sold.

Easement by Implication

An easement that is not expressly written, but still treated as one. Requirements: 1. Unity of ownership, 2. Quasi-easement (before land division, one part benefited the other), 3. Prior use was apparent and continuous, 4. Reasonably necessary.

Easement by Necessity

An easement created when parcels were originally owned together (unity of ownership) and there is strict necessity (e.g., land locked property).

Prescriptive Easement

Easement created when a person uses real property for a period of time without the owner's permission. Requirements: 1. Open and Notorious, 2. Adverse (without permission), 3. Continuous and uninterrupted, 4. Statutory period.

Tacking

When one person's period of prescriptive use can be added to another person's period to satisfy the required statutory time period.

Termination of an Express Easement

Termination according to the terms of the contract.

Termination of Easement by Necessity

Termination occurs when the necessity ends.

Methods of Ending All Easements

1. Unity of ownership, 2. Estoppel (when servient owner reasonably relies on easement holder's conduct), 3. Abandonment (requires intent and conduct), 4. Prescription.

Legal Rights and Duties of Easement

Dominant property owner has a duty to maintain the easement and cannot interfere with servient owner's use of property.

Profits

Nonpossessory right to enter someone's land and remove something of value (e.g., timber, oil, minerals).

Licenses

Permission to enter another person's land for a specific purpose.

Covenant

Deed restriction to not use the property in a certain way (e.g., developers must use property for residential purpose).

Equitable Servitude

A restriction that runs with the land.

Dianne v. Wingate

Rule of Law: Servient owner can use their land however they want unless that use unreasonably interferes with the easement. Decision: Appellate court reversed and remanded for determination of whether speed bumps unreasonably interfered with the right of passage.

Lien

A legal claim against property that secures payment of a debt or obligation.

Encumbrance

Restriction on the rights of a property (e.g., a lien) that decreases property value and makes property uninsurable.

Statutory Lien

A lien created by statutory law (legislation).

Judicial Lien

Lien created by judicial action.

Tax Lien

Lien created by the government to secure payment of unpaid taxes.

Construction / Mechanics Lien

Protects people who improve real property but are not paid. Requirements: 1. Needs enrichment (improved property), 2. Needs to be unjust for lienee to not pay.

Construction Lien Procedural Requirements

1. Privity of contract (contract between lienee and lienor), 2. Notice Requirements (some states require notice before filing a lien), 3. Recording Requirement (lien must be recorded in public land record).

Waiver Agreement

A written agreement signed by the contractor waiving the right to file a lien. Conditional: work or materials up to that date cannot be liened. Unconditional: ALL lien interests are released.

Subordination Agreement

An agreement where lienors agree to change the priority of their lien.

Government Exemption (from Lien)

Public/government property is not subject to a lien interest.

Homestead Exemption

Your primary residential stay may not be subject to a lien.

Residential Exemption

Sets a maximum construction lien amount limited to (maximum contract price - payments already made).

Denco vs. Body Bar

Rule: If a tenant hires a contractor, the lien generally attaches to the tenant's leasehold interest, not the landlord's ownership interest, unless the contractor has the required contractual relationship with the landlord/authorized agent. Decision: Denco's liens were invalid and it could not foreclose; appellate court affirmed.