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Unformatted text preview: Kulper - Econ 189 Kulper 1 Nature of Real Property
• The grantor is the conveyor of property; the grantee is the one receiving it. • Real property includes: – – – – – – Land Buildings Subsurface Rights Air Rights Plant Life Fixtures – an object considered to be a permanent part of the property. (Freeman v. Barrs – Sale of ranch, issue of whether cattle scale on specially sized concrete pad surrounded by metal pole fencing was a fixture)
Kulper - Econ 189 Kulper 2 Estates in Real Property
• Rights in real estate usage and ownership vary from unrestricted use and right to sell, to a lesser right of usage, but not the right to transfer it. • The rights that someone can hold are called estates, or interests. Kulper - Econ 189 Kulper 3 • The owner of a freehold estate has the Freehold Estates present right to possess the property and to use it in any lawful way. • A fee simple absolute provides the owner with the greatest control. • A fee simple defeasible may terminate upon the occurrence of some event (i.e., • A life estate is an estate for the life of some named person.
Kulper - Econ 189 Kulper use of property for a purpose other than designated). 4 • A concurrent estate is when two or more own property at the same time.
– Tenancy in Common – two or more people own the property, each with the right to convey her interests or to pass it down to her heirs. – A joint tenancy includes the right of survivorship (one dies, the other gets share) Concurrent Estates • All cotenants have an absolute right to partition (division of property).
Kulper - Econ 189 Kulper 5 • Tenancy by the Entirety Types of Estates in Marriage • Community Property – The husband and wife each own the entire property, and they both have a right of survivorship. Creditor of one spouse cannot attach and sell property held by both spouses. – Property brought to the marriage or given to one spouse may remain individually owned, called separate property. – Income or assets earned during the marriage is community property, which must be equally shared.
Kulper - Econ 189 Kulper 6 Condominiums and Cooperatives
• In a condominium, the owner of the apartment typically has a fee simple absolute in his particular unit. • In a cooperative, the residents generally do not own their particular unit. Instead, they are shareholders in a corporation that owns the building. Kulper - Econ 189 Kulper 7 Nonpossessory Interests
• An easement gives one person the right to enter land belonging to another and make a limited use of it, without taking anything away.
– An easement can be created when the landowner expressly grants it, when he implies it (such as in granting permission to access an area accessible only by crossing your land), or by reservation (when an owner sells land but keeps some right to enter it.) YOU BE THE JUDGE! Carvin v. Arkansas Power & Light – AP&L had flood easements; used them during record rainfall, flooded houses, issue of whether easements relieved AP&L of liability for flooding
Kulper - Econ 189 Kulper 8 Nonpossessory Interests (cont'd)
• A profit gives one person the right to enter land belonging to another and take something away. • A license given the holder temporary permission to enter upon another’s property. • A mortgage is a security interest in real property, given to the institution loaning a buyer the money to buy real estate.
Kulper - Econ 189 Kulper 9 Sale of Real Property
• Seller’s Obligation Concerning Property
– Most states now impose an implied warranty of habitability on a builder who sells a new home. – The seller of a home must disclose facts that a buyer does not know and cannot readily observe, if they materially affect the property’s value. Kulper - Econ 189 Kulper 10 Sales Contracts and Title Examination
• The Statute of Frauds requires that the agreement to sell real property must be in writing.
– Must contain names of all parties, precise description of property, price and signatures. • Once an agreement is made, the buyer’s lawyer makes a title examination, to ensure that the seller has valid title to the property.
Kulper - Econ 189 Kulper 11 Closing and Deeds
• After the title examination is complete and financing is arranged, the parties arrange a closing. At this meeting, the seller hands over the deed (the document proving ownership of the property) in exchange for payment, either by the buyer or by a lender. • If a lender pays all or part of the price, the buyer executes a mortgage as part of the closing.
Kulper - Econ 189 Kulper 12 Recording
• Recording a deed means to file it with – Filing a deed protects the buyer and gives notice to the public of the official owner of the land. This keeps someone from trying to sell land that he does not own.
Kulper - Econ 189 Kulper 13 the official state registry (CA – Record with the County Recorder’s Office). Adverse Possession
• To gain ownership of land by adverse possession, the user must prove:
– – – – Entry and exclusive possession Open and notorious possession A claim adverse to the owner; and Continuous possession for a statutory period. Ray v. Beacon Hudson Mountain Corp. – Descendants moved into old cottage owned by mother under a land lease; lived in house over 25 years for one month a summer, paid taxes, installed utilities, posted “no trespassing signs” . . . adverse possession?
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- Spring '08