Georgia real estate Rights in Interest in land chapter 3

Allodial System

The system of land ownership where anyone can own land.

Police Power

The right of the government to enact laws and enforce them for the order, safety, health, morales and general welfare of the public.

What are some examples of police power when applied to real estate?

Zoning laws, planning laws, building, health, fire codes, and rent control.

What is a key difference between Police Power and Eminent Domain?

Police power restricts how real estate may be used, there is no legally recognized "taking" of property. No payment to an owner with police power.

Eminent Domain

The right of government to take private property for public use. Provided fair compensation is paid.

What are the two legal requirements when property is taken from the public by the government?

1. The property taken must be for public purposes.

2. The property owner must be paid a fair and just compensation.

Condemnation

The legal proceeding involved in eminent domain.

Severance Damages (Eminent Domain)

When only a portion of a parcel of land is being taken, severance damages may be awarded in addition to payment for land actually being taken.

Inverse Condemnation

A proceeding brought about by property owners demanding that their land be purchased from them.

(Airport)

Consequential Damages (Special Damages)

Foreseeable damages that result from a party's breach of contract

Taxation

Money raised to provide services for the common good of the community/county. Land is impossible to hide making it easily identifiable for taxation.

Today what is still a major source of government revenue?

The real property tax, that has endured over the centuries.

Escheat

Solve the problem of property becoming ownerless. When ownership of abandon property reverts to the state or county.

Encumbrances

A burden or impediment. Any claim, right, lien, estate or liability that limits the fee simple title to the property.

Commonly found, encumbrances are what?

Easements, encroachments, deed restrictions, liens, leases, and air rights, and subsurface rights.

Fee simple

The most common and inclusive form of ownership; the holder is entitled to all rights to the property.

Estate

Synonyms with bundle of rights. One's legal interests or rights in land.

Title= Rights and Rights= Estate

The concept of real estate ownership can be more easily understood when viewed as a collection or a?

Bundle of Rights

What is the largest estate one can hold in land?

A fee simple

Title

The right to something, or ownership of something.

The evidence of ownership, such as a deed or bill of sale.

Easement

The right to use the land of another for a special purpose.

What are the different ways an easement can come into being?

1. For the land owner to use a written document to pacifically grant permission to another party.

2. Is for an owner to reserve/withhold permission in the deed when granting the property to another party.

Easement by Necessity

Created when no other access to land exists.

Easement by Prescription

A method of acquiring an easement without a written document.

What are the five ways in easement can be created?

1. Grant

2. Reservation

3. Condemnation

4. Necessity

5. Prescription

Easement Appurtenant

A right of use that continues from owner to owner that involves a relationship between two parcels of land: a dominant parcel that benefits from a servient parcel.

What is the key to an easement appurtenant?

It always requires at least two properties, servient and dominant. Because the front lot serves the back lot, the front lot is called servient estate, and the back is called the dominant estate.

Easement in Gross

A legal right to use the land of another. It involves only one parcel of land and does not benefit any particular property.

What are the two types of Easement in Gross?

commercial and personal

How is an easement in gross differ from an easement appurtenant?

There is a servient estate but no dominant estate. (Ease Gross).

What are most Easement in gross?

Commercial

Ex: Power line, drainage, utility

Personal Easement in Gross

A personal right granted to an individual to use the land of another. The right is neither transferable nor inheritable and may be terminated by the easement holder or, by death of the easement holder.

Difference between Commercial and Personal Easements Gross.

Personal Easement in gross terminate with the death of a party or with the transfer of the property, while commercial easement in gross may be assigned to another.

Party Wall Easement

A wall that is located on a boundary line between two adjoining parcels of land.

True or False:

A party wall is an easement appurtenant

True

Easement Termination

When the necessity for the easement no longer exists. When the dominant and servient estate combine/merge. Must be by release of easement holder.

What are the four ways an easement can be terminated?

1. End of necessity

2. Merger

3. Release

4. Abandonment

Encroachment

The unauthorized intrusion of a building or other improvement onto another persons land.

The owner of the property being encroached has the right to force the?

Removal of the encroachment.

Deed Restrictions

Provision placed in deed to control future use of the property.

The right to enforce deed restrictions is usually given by whom?

By the developer, to the subdivision homeowners association.

Liens

A charge or claim which one person has upon the property of another as security for a debt or obligation.

What happens when there is more than one Lien against a property?

The lien that was recorded first usually has the highest priority in the event of a foreclosure.

What liens is superior to others?

Property tax liens.

Voluntary Lien

A lien created by the property owner. The owner voluntarily created a lien against property to borrow money.

Involuntary Lien

A lien placed on property without the owner's choice, usually because money is owed.

Ex: property tax liens, judgment liens, and mechanic's liens.

General Lien

A lien that attaches to all property owned by an individual. Real and personal.

Lienor

The party holding the lien.

Examples: mortgage lenders, judgment holders, and tax authorities.

Lienee

The party whose property is subjected to the lien.

Special Lien

A lien on a specific property and no other.

Mortgages and Mechanic's liens

Special liens that apply to only the property receiving the materials or labor.

Federal and state tax liens are also?

General Liens.

Property Tax Lien

Automatic lien placed by local governments to assure payment of property taxes.

Mechanic's Liens

Liens that arise from construction and other improvements to real estate.

Perfecting the Lien

The filing of a lien statement within the required time limit. Within one year

To preserve the rights, a lien statement (affidavit) must be filled in the county where the property is located within?

90 days of the last date of labor

Judgement Lien

Arise from lawsuits for which money damages are awarded.

The law permits a hold to be placed against the real and personal property of the debtor until?

The judgment is paid.

Mortgage Lien (voluntary)

Created when property is offered by its owner as security for the repayment of a debt.

If the debt secured by the mortgage lien is not repaid, can the creditor foreclose and sell the property?

Yes

Qualified Fee Estate

Also known as defeasible fee estate.

A fee estate that is subject to certain limitations imposed by the person creating the estate.

Qualified fee estate are?

Encumbered estates: Life estates.

3 Categories of Qualified Fee Estate.

1. Determinable

2. Condition Subsequent

3. Condition Precedent

Fee Simple Determinable Estate

Indicates that the duration of the estate can be determined from the deed itself

A Fee Simple Subject to Condition Subsequent

If an estate is no longer used for the purpose conveyed, it reverts to the original grantor by the right of reentry.

Fee Simple Upon Condition Precedent

Title will not take effect until a condition is performed

Life Estate

A property interest that lasts for the lifetime of a person. When that person dies, the property passes to a named person.

Pur Autre Vie

Life estate can also be created for the life of another.

Ordinary Life Estate

An ownership interest that lasts for the lifetime of the person who owns it (the life tenant).

Example:
Sarah has a life estate for her lifetime. She can use the property while she is alive. When Sarah dies, her ownership ends.

Statutory Estate

Created by state law. Includes dower.

Dower

Gives a wife rights in her husband's real property.

Does the state of Georgia recognize the rights of dower?

No

Curtesy

Gives husband rights in his wife's real property.

Does the state of Georgia recognize the right of curtesy?

No

Community Property

Gives each spouse a one-half interest in marital property.

Does the state of Georgia recognize community property?

No

Homestead Protection Laws

Passed in nearly all states.

Laws that protect a person's primary home from being forced to be sold to pay certain debts.

Example: You may owe money, but the law may protect your home from being taken to pay certain debts.

Also: May protect a surviving spouse (usually a widow, sometimes a widower) by allowing them to remain in the home for life.

Homestead Protection law are usually?

Limited to protection

Homestead Exemption

A state law that gives homeowners a tax break for property that is their primary residence

Estate in land is classified as what?

Freehold or Leasehold estate.

What is the difference between freehold and leasehold estate?

Freehold cases are tied under real property laws.

Leasehold cases are tied under personal property laws.

The two distinguishing features of a freehold estate are?

1. Must be actual ownership of the land.

2. The estate must be of unpredictable duration.

Fee estate, life estate, and estates by statue are?

Freehold Estate

What are the two distinguishing features of a leasehold estate?

1. There is possession of land, but no ownership.

2. The estate is of definite or indefinite duration.

If Freehold means ownership, what does Leasehold mean?

Leasehold means non-ownership.

Reversion

The right to recover possession at the end of the lease period. The lease is an encumbrance against the property.

What are the four categories of leasehold estate?

1. Estate for year

2. Periodic estate

3. Estate at will

4. Tenancy at sufferance

Estate for years (tenancy for years)

A lease that must have a specific start and end time. No notice needed to terminate.

How long does an Estate for Years have to be?

Can be for any length of time, from less than a day to many years.

Periodic Estate ( periodic tenancy)

Also called estate from year to year. An estate that automatically renews. Must give advance notice to terminate.

Estate at Will (Tenancy at Will)

A lease that can be terminated by either party at will, without notice.

It the state of Georgia, how many notice days are required?

The tenant must provide 30 days notice of intent. Landlord must provide 60 day notice.

Tenancy at Sufferance

When a tenant stays beyond legal tenancy without the consent of the landlord.

In a Tenancy at Sufferance, the tenant is sometimes referred to as?

Holdover Tenant.

If during the hold over period of Tenancy at Sufferance the tenant pays, and the landlord accepts rent. The tenant is now?

Tenancy at Will

License

Is not a right or an estate in land, but a personal privilege given to someone to use the land.

Similar to personal easement in gross: it is non assignable.

Can a license be given orally?

Yes. Can be revoked by the person who issued it.

Who can revoke a license?

The person who issued it. unlike personal easement in gross.

A license is a personal privilege NOT:

An encumbrance against land.

Chattel (Chapter 3)

Personal property. More often herd in law office than in real estate.