Real Estate Chapter 3

Encumbrance

a claim, limitation, liability or charge attached to real estate

can affect the bundles of rights of a property owner because they create an interest in the property for the holder

Easement

a non-possessory right to use land owned by another

the use can be in the air space, surface or subsurface of a property

Easement Appurtenant 

an easement that runs with the land and involves two separately deeded lots which are next to each other (driveways, fences, right of way) 

Servient Tenement (servient estate)

the lot burdened by the easement 

Dominant tenement (dominant estate) 

the lot benefited by the easement 

Easement in gross

an easement involving only one lot (servient tenement)

there is no dominant tenement because there is only one lot and person that benefits

Affirmative Easement 

gives the holder of the easement the right to do something (a landowner who has the right to cross over another’s land)

Negative Easement 

prevents the holder of the easement from doing certain actions (a property owner who cannot re-contour land or build in a way that would alter the normal flow of surface water in a drainage easement) 

Express Agreement 

within a deed or contractual agreement 

Reservation in deed 

a seller conveys the property, but reserves an easement in the deed or conveyance

Necessity

granted by law because it is necessary for the full enjoyment of a property

Prescription

using anothers land for a statutory time period can lead to the courts awarding an “easement by prescription” (21 years)

Continuous

Hostile

Open

Notorious

Condemnation

an exercise of the government’s right of eminent domain

Implication

the party’s actions or the specific situation implies that the parties intend to create an easement

Termination of Easements

Release by the owner of the easement

Merger of dominant and servient estates

Expiration of purpose

Abandonment of the easement by the easement owner

Expiration of the time period for which the easement was created

Non-use of a prescriptive easement

A quiet title lawsuit

Lien

a change or claim on the property of another to secure payment of a debt or obligation

General Lien

against the individual, attaches to all of the assets (real and personal property) of the debtor in the county where the lien is recorded

Specific lien

attaches to a single property (real or personal)

Lien Priority

proceeds of the forced sale are distributed based on the lien holder’s position in the priority

Voluntary Liens

placed against property with the knowledge and consent of the owner (a mortgage lien)

Involuntary Lien

placed against property without the consent of the owner (lien from a contractor who remodeled a kitchen and was not paid by the owner as agreed)

Ad valorem taxes

real estate taxes levied against a property based on an assessed value or sale value

Special assessments

a tax levied to pay for improvements tat benefit a specific property (installing street lights, building curbs)

Judgment Liens

liens created through an action of law 

IRS (Income Tax) Liens

involuntary, general liens resulting from unpaid federal tax obligations

Estate or inheritance tax liens

general, involuntary liens against a deceased person’s property; generally disposed of in probate court

Corporation Franchise Tax liens

general, involuntary liens because a corporation has not paid the state tax that enables the corporation to do business in the state

Mechanics Liens

specific, involuntary liens that are in favor of a person who supplied labor or material in the improvement of real estate

Deed restrictions

limitations, placed in a deed by a grantor, that restrict the way land is used, improved, or maintained

purpose is to maintain the character or desirability of a property or development

When a development, subdivision, or condominium is created…what is filed

Covenants, Conditions, and Restrictions (CC&Rs) is filed with the public records to detail restrictions

Why must deed restrictions be enforced in a timely manner

the right to enforce can be lost through laches

An encroachment may ripen into adverse possession (title by prescription)…what does this mean?

a way of acquiring ownership of anothers land by using and possessing anothers land for a statutory time period (21 years)