Chapter 6 Summary Ownership of Real Property
California Real Estate Principles
Estate in land - degree of ownership one holds in the land.
Feudal system - all land was once owned by the king/government; Allodial System (USA) - although the government detains some rights, individuals own property without proprietary control of government.
Freehold estate - the estate lasts at least a lifetime; leasehold estate - renting or leasing. Types of freehold: • Fee Simple (Fee Simple Absolute) - Owns the bundle of rights – unlimited duration; inheritable.
• Fee Simple Defeasible is based on an occurrence of a specified event – conditions.
• Fee Tail - Property inherited by a monarch is illegal in the United States. • Life Estate: Voluntary Life Estates or "Conventional Life Estates."
o Estate in Reversion
• A life estate that is deeded to a life tenant - incomplete bundle of rights during lifetime. • A reversion estate that is retained by the grantor. After death of life tenant, grantor has complete bundle of rights. o Estate in remainder: differs from the above because the remainder estate is given to a third party who is known as the remainderman. After death of life tenant, the remainderman has complete bundle of rights.
o Pur Autre Vie (estate in reversion/estate in remainder) - life tenant has the incomplete bundle of rights until a third party dies. o Involuntary Life Estates are legal life estates or marital right. It is not possible to sell the property without the consent of the partner, or to own property in one name only.
o Dower - a wife's interest in the husband's property; Curtesy - a husband's interest in a wife's property; Homestead - protection against unsecured debts for the party who did not sign for the loan.
Title is the right to ownership of the land, with proper evidence. Vesting is the method in which one holds title to property.
In California, property is owned by: Severalty (sole ownership); Tenancy in Common; Joint Tenancy; Tenancy in Partnership; Community Property; and Community Property with the Right of Survivorship.
Separate ownership is ownership by one individual or by a corporation ("single legal person")
Tenants in Common: Two or more people holding ownership concurrently, with the right to individually possess, will, or sell. This is undivided, but not necessarily equal interest.
Partition Law Suit: one can request the courts to sell his shares.
Joint Tenancy: Ends upon death of one tenant; Corporations excluded.
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Chapter 6 Summary Ownership of Real Property
California Real Estate Principles
Community Property refers to ALL property acquired by a husband and wife DURING their marriage. Separate property - any property owned prior to the marriage may remain a separate property. Community property with right of survivorship transfers ownership to the spouse upon the death of the other spouse, with income tax benefits.
• Tenancy in Partnership - two or more persons, as PARTNERS, combine their interests, assets, and efforts into a business venture.
• General Partnership - each partner shares profits, losses and management responsibilities.
• Limited Partnership - one or more general and limited partners, but the limited partners do not share management duties and his losses are limited to the amount of his investment. Recording is the legal process of making an instrument, or legal document, an official party of the records of a county, after it has been acknowledged. It’s NOT a legal requirement.
Actual notice consists of express information of a fact; constructive notice means notice given by the public records.
GENERALLY, the individual who recorded first is rightful owner of that property.
Encumbrance - burdens or limits your title to a property. Lien - document that uses a property to secure payment for a debt, or the discharge of an obligation owed. • Voluntary Lien - money debt that the owner agrees to pay, and it is created by the buyer taking out a loan to finance the purchase of real estate. Involuntary Lien - money obligation that creates a burden (debt) on a property by government taxes, or legal action due to unpaid bills.
• Specific liens - applied to a specific piece of property and affect only that piece of property. General liens - against the person and all assets, as a result of a lawsuit.
• A tax lien may occur, either through law or a court action, if a government tax is not paid.
Trust Deed is a written instrument that makes real property collateral for a loan. A Mortgage is a lien that is used to secure real property for the payment of a promissory note, or debt.
A Preliminary 20-Day Notice must be served within 20 days of the first furnishing of materials, labor, equipment, or services to the job site.
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Chapter 6 Summary Ownership of Real Property
California Real Estate Principles
Notices: • Notice of Cessation should be filed when work on the project ceases for a period of 30 days or more. • If the Notice of Completion is not recorded within 10 days, then it is NOT VALID. • Notice of Non-responsibility should be filed by an owner within 10 days of discovering that an unauthorized person is performing construction on his property.
Legal aspects: • A special assessment is a legal charge against real estate by a public authority to defray the cost of specific local improvements. • An attachment is a legal process by which property is seized and held, SYMBOLICALLY, until a pending judgment suit has been decided. • A judgment is a court decision as a result of a lawsuit, and gives the FINAL determination of the rights of the parties in the proceeding. • For the formal declared homestead, the owner must complete and file a "homestead document" at the county courthouse. A dwelling house exemption, is available to ALL valid homeowners that haven't previously filed the "homestead document" at a courthouse.
• Deficiency judgment - the total assets of the borrower are available for collection by the debt holder.
Easement: interest in another’s land. It is not a lien, but rather, it is a RIGHT
• Can be created by Implication; Reservation; Necessity Condemnation; Expressed.
• In California, easements arise by Express Grant; Implication of Law or By Necessity; Long Use or Prescription.
• Appurtenant Easements: Easements for adjacent properties or neighbors. Dominant party is a person who is benefited; Servient party is a person who is burdened by the easement.
• Easements in Gross: owned by a person or company.
• Easements by Necessity: created by a court of law. An easement by necessity would be granted to a landlocked property. An easement by implication would be when someone sells land, but retains the mineral rights.
• Easement by Prescription: the claimant has used the land for the time period set by law. Under California law, this time period is 5 years of continuous use. • Requirements to Create Prescriptive Easements are Possession; Open; Actual; Continuous and Hostile.
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Chapter 6 Summary Ownership of Real Property
California Real Estate Principles
Encroachments - unauthorized intrusion of a building or other improvement onto another person's land. Restrictions: • Deed Restrictions/Restrictive Covenants: A restriction is a use encumbrance. • Limiting restrictions: State things you can never do. Affirmative restrictions: State things you must abide by. • Unenforceable Restrictions: Any restriction that violates public policy or is discriminatory is not enforceable.
• A Private Deed Restriction is a written agreement to establish controls for private land, which limit the use or occupancy of the land, and are part of a developer's plan. • A covenant is a promise by the person who accepts an agreement to do or not to do certain things. • A condition is a restriction that places a limitation on the buyer's ownership. • Public restrictions are government-imposed restrictions on a property (zoning laws, building and health codes).
Evidence of title is needed by owner and lender to provide "marketable title."
A Standard Policy covers only those things that appear on the public record.
• The Standard Owner's Policy, Lender's Policy, Joint Protection Policy
An Extended Policy also covers things that do not appear on the public record, such as encroachments.
• Mortgagor's and Mortgagee's Policy
Title Insurance Premiums are paid at closing.
Subrogation: The substitution of a third person in place of a creditor to whose rights the third person succeeds in relation to the debt.
Torrens system: A legal system of land registration used to verify ownership and encumbrances without the necessity of an additional search of the public records.
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