scott phinney real property

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Scott PhinneyReal Property

Scott PhinneyReal Property

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§ 1: The Nature of Real Property§ 1: The Nature of Real Property

Real property is immovable and includes: Land. Buildings. Trees and vegetation. Airspace. Subsurface (mineral) rights. Fixtures.

Real property is immovable and includes: Land. Buildings. Trees and vegetation. Airspace. Subsurface (mineral) rights. Fixtures.

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§ 2: Ownership Interests in Real Property

§ 2: Ownership Interests in Real Property

Ownership interests are classified as either Possessory or Non-Possessory:

•A Possessory interest such as a fee simple, life or leasehold estate, gives the owner a right to possess the land. •A Nonpossessory interest such as an easement, profit or license, does not give the owner a right to possess the land.

Ownership interests are classified as either Possessory or Non-Possessory:

•A Possessory interest such as a fee simple, life or leasehold estate, gives the owner a right to possess the land. •A Nonpossessory interest such as an easement, profit or license, does not give the owner a right to possess the land.

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Fee Simple (Absolute)Fee Simple (Absolute)Although not absolute, the fee simple

(sometimes called fee simple absolute) gives the owner the greatest aggregation of rights, powers and privileges possible under American law and can assigned to heirs.

A “conveyance” (transfer of real estate) “from A to B” creates a fee simple. A is the Grantor and B is the Grantee.

Although not absolute, the fee simple (sometimes called fee simple absolute) gives the owner the greatest aggregation of rights, powers and privileges possible under American law and can assigned to heirs.

A “conveyance” (transfer of real estate) “from A to B” creates a fee simple. A is the Grantor and B is the Grantee.

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Life EstatesLife EstatesEstate that lasts for the life of some specified

individual. “A grants Blackacre to B for B’s life” grants B a life estate in Blackacre.

When B dies, Blackacre returns to A or his heirs or assigns, or a third party in the same condition, normal wear and tear excepted.

Grantor A retains a “future interest” in the property. During B’s life, she can possess, use, and take the

fruits of the estate, but not take from the property itself.

Estate that lasts for the life of some specified individual. “A grants Blackacre to B for B’s life” grants B a life estate in Blackacre.

When B dies, Blackacre returns to A or his heirs or assigns, or a third party in the same condition, normal wear and tear excepted.

Grantor A retains a “future interest” in the property. During B’s life, she can possess, use, and take the

fruits of the estate, but not take from the property itself.

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Leasehold EstatesLeasehold Estates

A real property owner or lessor agrees to convey the right to possess and use the property to a lessee for a certain period of time.

Tenancy for Years: Periodic Tenancy. Tenancy at Will. Tenancy at Sufferance.

A real property owner or lessor agrees to convey the right to possess and use the property to a lessee for a certain period of time.

Tenancy for Years: Periodic Tenancy. Tenancy at Will. Tenancy at Sufferance.

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Non-Possessory InterestsNon-Possessory Interests

An easement is a right of a person to make limited use of another person's real property without taking anything from the property.

A profit is the right to go onto land in possession of another and take away some part of the land itself or some product of the land.

Property that is benefited by easement/profit carries the interest with the sale of land.

An easement is a right of a person to make limited use of another person's real property without taking anything from the property.

A profit is the right to go onto land in possession of another and take away some part of the land itself or some product of the land.

Property that is benefited by easement/profit carries the interest with the sale of land.

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Non-Possessory Interests [2]Non-Possessory Interests [2]

If the owner of the easement or profit is contiguous to the owner of the land, it is said to be appurtenant (‘easement appurtenant”). If the owner’s property is separated, it is said to be gross.

If the owner of the easement or profit is contiguous to the owner of the land, it is said to be appurtenant (‘easement appurtenant”). If the owner’s property is separated, it is said to be gross.

AA BB

AppurtenanAppurtenantt

AA BB

In GrossIn Gross

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Non-Possessory Interests [3]Non-Possessory Interests [3]

Easements or profits can be created by: Deed (physical delivery is sufficient). Will (at Grantor’s death). Contract between Grantor and Grantee. Implication: circumstances surrounding creation of

easement imply its creation. Necessity. Prescription: easement by adverse possession.

Easements or profits can be created by: Deed (physical delivery is sufficient). Will (at Grantor’s death). Contract between Grantor and Grantee. Implication: circumstances surrounding creation of

easement imply its creation. Necessity. Prescription: easement by adverse possession.

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Termination of an Easement or ProfitTermination of an Easement or Profit

By deed back to owner of the land burdened by it.

Owner of easement or profit becomes owner of the land burdened with it.

Abandonment by the owner of the right.

By deed back to owner of the land burdened by it.

Owner of easement or profit becomes owner of the land burdened with it.

Abandonment by the owner of the right.

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LicensesLicenses

Revocable right of a person to come unto another’s land without removing anything from the land.

Personal privilege that arises from the consent of the owner of the land that can be revoked.

Revocable right of a person to come unto another’s land without removing anything from the land.

Personal privilege that arises from the consent of the owner of the land that can be revoked.

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§ 3: Transfer of Ownership§ 3: Transfer of Ownership

Ownership in real property can be transferred by: A written Deed. A Gift. A Sale. An Inheritance. Adverse Possession. Eminent Domain.

Ownership in real property can be transferred by: A written Deed. A Gift. A Sale. An Inheritance. Adverse Possession. Eminent Domain.

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DeedsDeeds

A Deed is the instrument setting forth the interests in real property being transferred.

Necessary components of a Deed: Names of Grantor and Grantee. Words evidencing intent to convey. Legally sufficient description of the land. Grantor’s signature. Delivery of the Deed.

A Deed is the instrument setting forth the interests in real property being transferred.

Necessary components of a Deed: Names of Grantor and Grantee. Words evidencing intent to convey. Legally sufficient description of the land. Grantor’s signature. Delivery of the Deed.

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Types of DeedsTypes of Deeds

Warranty Deed. Special Warranty Deed.

Quitclaim Deed.Grant Deed.Sheriff’s Deed.

Period of redemption.

Warranty Deed. Special Warranty Deed.

Quitclaim Deed.Grant Deed.Sheriff’s Deed.

Period of redemption.

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Recording StatutesRecording Statutes

Recording a deed (or any interest in real property) puts the public on notice of the new owner’s interest in the land and prevents the previous owner from fraudulently conveying the same interest to another buyer.

Race statute. Pure notice statute. Notice-race statute.

Recording a deed (or any interest in real property) puts the public on notice of the new owner’s interest in the land and prevents the previous owner from fraudulently conveying the same interest to another buyer.

Race statute. Pure notice statute. Notice-race statute.

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Contracts for the Sale of Real Estate Contracts for the Sale of Real Estate

Contracts must be in writing and signed to be enforceable under the Statute of Frauds. Brokers and Agents. Formation of the Sales Contract. Warranty of Habitability. Seller’s Duty to Disclose Defects. Seller must deliver marketable title. Case 48.1: Smith v. Levine (1995).

Contracts must be in writing and signed to be enforceable under the Statute of Frauds. Brokers and Agents. Formation of the Sales Contract. Warranty of Habitability. Seller’s Duty to Disclose Defects. Seller must deliver marketable title. Case 48.1: Smith v. Levine (1995).

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Sale ProcessSale Process

Seller’s Response

Purchase & Sale Agreement

Financing

Title Exam & Insurance

Escrow

Closing

Buyer’s Purchase Offer Home Inspection

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Transfer By InheritanceTransfer By Inheritance

When the owner of real property dies, her property is transferred by either: Will (testate). Without Will (intestate).

Title can be transferred at the time of death, as provided in state testate and intestate laws.

When the owner of real property dies, her property is transferred by either: Will (testate). Without Will (intestate).

Title can be transferred at the time of death, as provided in state testate and intestate laws.

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Transfer By Adverse PossessionTransfer By Adverse Possession

One person possesses the property of another for a certain statutory period of time, that person automatically acquires title to the land, just as if there had been a conveyance by deed. Must be:

• Actual and exclusive.• Open, visible and notorious.• Continuous and peaceable.• Hostile and adverse.

Case 48.2: Klos v. Molenda (1986).

One person possesses the property of another for a certain statutory period of time, that person automatically acquires title to the land, just as if there had been a conveyance by deed. Must be:

• Actual and exclusive.• Open, visible and notorious.• Continuous and peaceable.• Hostile and adverse.

Case 48.2: Klos v. Molenda (1986).

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§ 4: Limits: Eminent Domain§ 4: Limits: Eminent Domain

Rights in property are not absolute. They are constrained by federal and state laws, e.g., nuisance, tax and environmental.

Transfer By Eminent Domain: The Fifth Amendment gives the government the right to “take” private land for public use with just compensation.

Rights in property are not absolute. They are constrained by federal and state laws, e.g., nuisance, tax and environmental.

Transfer By Eminent Domain: The Fifth Amendment gives the government the right to “take” private land for public use with just compensation.

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Limits: Zoning Limits: Zoning

Zoning is the State’s power to control the use of land through legislation without having to compensate the owner (unless so severe that it is a “taking”). Must be rational in advancing state interest and must

be non-discriminatory.• Variances. • Building Permits.

Case 48.3: Richard Roeser Professional Builder Inc. v. Ann Arundel County (2002).

Zoning is the State’s power to control the use of land through legislation without having to compensate the owner (unless so severe that it is a “taking”). Must be rational in advancing state interest and must

be non-discriminatory.• Variances. • Building Permits.

Case 48.3: Richard Roeser Professional Builder Inc. v. Ann Arundel County (2002).

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Limits: Restrictive CovenantsLimits: Restrictive CovenantsPrivate restriction on use of land. Restrictions of

the use of the land which is binding on the party who purchases originally and on subsequent purchasers –if it “runs with the land”.

Running with the land requires: Written agreement. Must bind all subsequent owners. Must touch and concern the land. Successor to the original parties must have notice of the

covenant. Actual or constructive.

Private restriction on use of land. Restrictions of the use of the land which is binding on the party who purchases originally and on subsequent purchasers –if it “runs with the land”.

Running with the land requires: Written agreement. Must bind all subsequent owners. Must touch and concern the land. Successor to the original parties must have notice of the

covenant. Actual or constructive.

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Law on the WebLaw on the Web

Housing and Urban Development.Information on Condemnation Procedures.Information on Veterans Administration Home L

oans.

Legal Research Exercises on the Web.

Housing and Urban Development.Information on Condemnation Procedures.Information on Veterans Administration Home L

oans.

Legal Research Exercises on the Web.