Real Estate Practices

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abstract of judgment

Back 1

A full summary by the court of a judgment. It becomes a general lien on all of a debtor's property in the county where it is recorded. (See general lien, judgment)

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actual authority

Back 2

The authority an agent has because it is specified in the agency agreement, or that the agent believes he or she has because of an unintentional or a careless act on the part of the principal.

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alienation

Back 3

The act of transferring ownership, title, interest, or estate in real property from one person to another. Property is usually sold or conveyed by voluntary alienation, as with a deed or assignment of lease. Involuntary alienation takes place when property is sold against the owner's will, as in a foreclosure sale or a tax sale. (See alienation clause)

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appurtenant easement

Back 4

An easement that is annexed to the ownership of one parcel and allows the owner the use of the neighbor's land. (See easement)

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attachment

Back 5

The legal process of seizing the real or personal property of a defendant in a lawsuit by levy or judicial order, and holding it in court custody as security for satisfaction of a judgment. The lien is thus created by operation of law, not by private agreement. The plaintiff may recover such property in any action upon a contract, express or implied.

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bankruptcy

Back 6

A condition of financial insolvency in which a person's liabilities exceed assets and the person is unable to pay current debts.

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CC&Rs

Back 7

Covenants, conditions and restrictions are limitations on land use, which are imposed by deeds, usually when land is subdivided. CC&Rs are a means of regulating building construction, density and use. May be referred to simply as restrictions. (See covenant, condition, restriction, deed restrictions, restrictive covenants)

Front 8

cloud on title

Back 8

Any document, claim, unreleased lien or encumbrance that may impair the title to real property or make the title doubtful: usually revealed by a title search and removed by either a quitclaim deed or suit to quiet title.

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condition

Back 9

A qualification of an estate granted that can be imposed only in a conveyance; it can be a condition precedent or a condition subsequent. (See CC&R)

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covenant

Back 10

A written agreement between two or more parties in which a party or parties pledge to perform or not perform specified acts with regard to property; usually found in such real estate documents as deeds, mortgages, leases and contracts for deed. (See CC&R)

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deed restrictions

Back 11

Provisions placed in deeds to control future uses of the property. (See covenants, conditions & restrictions, restrictive covenants)

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defendant

Back 12

A defendant is the person to which a legal action or lawsuit is taken.

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dominant tenement

Back 13

The estate that is said to attach to and derive benefit from the servient estate in reference to an easement appurtenant. For example, an easement road crosses an owner's land (servient tenement) to give access to an adjacent parcel (dominant tenement). The dominant tenement usually adjoins the servient tenement. (See easement, servient tenement)

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easement

Back 14

The right to a specific use of or right to travel over land owned by another. The land being used or traveled over is the servient tenement; the land that is benefited by the use is the dominant tenement. An easement appurtenant is a property interest belonging to the owner of dominant tenement and is transferred with the land; an easement in gross is a personal right that usually is not transferable by its owner.

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easement appurtenant

Back 15

An easement that is annexed to the ownership of one parcel and allows the owner the use of the neighbor's land.

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easement by condemnation

Back 16

An easement created by the government or government agency that has exercised its right under eminent domain.

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easement by implication of law

Back 17

An easement that will be created by law to provide access to a parcel of land that is otherwise landlocked.

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easement by necessity

Back 18

An easement allowed by law as necessary for the full enjoyment of a parcel of real estate; for example, a right of ingress and egress over a grantor's land.

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easement by prescription

Back 19

An easement acquired by continuous, open and hostile use of property for the period of time prescribed by state law.

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easement in gross

Back 20

An easement that is not created for the benefit of any land owned by the owner of the easement but that attaches personally to the easement owner. For example, a right granted by Eleanor Franks to Joe Fish to use a portion of her property for the rest of his life would be an easement in gross.

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eminent domain

Back 21

The right of the government to acquire title to property for public use by condemnation; the property owner receives compensation which is generally fair market value.

Front 22

encroachment

Back 22

An unauthorized invasion or intrusion of an improvement or other real property onto another's property, thus reducing the size and value of the invaded property. Common examples of encroachments are the roof of a building that extends over the property line or the front of a building that extends over the building setback line or extends onto a neighbor's property.

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encumbrance

Back 23

Any claim, lien, charge or liability attached to and binding on real property that may lessen its value or burden, obstruct or impair the use of a property but not necessarily prevent transfer of title; a right or interest in a property held by one who is not the legal owner of the property.

There are two general classifications of encumbrances: those that affect the title, such as judgments, mortgages, mechanics' liens and other liens, which are charges on property used to secure a debt or obligation; and those that affect the physical condition of the property, such as restrictions, encroachments and easements.

Front 24

equity

Back 24

The interest or value that an owner has in property over and above any indebtedness.

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express reservation

Back 25

Property interest identified in a deed as retained by grantor.

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general lien

Back 26

The right of a creditor to have all of a debtor's property—both real and personal—sold to satisfy a debt.

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homestead

Back 27

A statutory exemption of real property used as a shield from the claims of certain creditors and judgments up to a specified amount; requires a declaration of homestead be completed and filed with the county recorder's office.

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homestead exemption

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The amount of homestead protection from unsecured creditors - $50,000 for single persons, $75,000 for families, $100,000 for persons 65 years of age, and $100,000 for disabled persons unable to work.

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injunction

Back 29

A legal action whereby a court issues a writ or order that forbids a party to a suit or defendant from doing some act. An injunction requires the person to whom it is directed to refrain from doing a particular thing, such as violating deed restrictions or house rules. (See restraining order)

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involuntary lien

Back 30

A lien placed on property without the consent of the property owner. (See lien)

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judgment

Back 31

1. An opinion or estimate formed after consideration or deliberation, especially a formal or authoritative decision. 2. A determination of a court of law; a judicial decision. 3. A court act creating or affirming an obligation, such as a debt. 4. A writ in witness of such an act.

Front 32

license

Back 32

1. A license provides permission to enter onto the land of another for a specific purpose and/or length of time. 2. The revocable permission for a temporary use of land — a personal right that cannot be sold.

Front 33

lien

Back 33

A charge or claim that one person (lienor) has on the property of another (lienee) as security for a debt or obligation. (See general lien, involuntary lien, mechanics' lien, statutory lien, tax lien, voluntary lien)

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lien release

Back 34

Filed by holder of mechanic's lien to voluntarily remove the encumbrance from the property owner's title. (See encumbrance, lien, mechanics' lien)

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lien release bond

Back 35

Filed with the county recorder by a property owner who disputes the correctness or validity of a mechanic's lien to stop foreclosure of the property; must be in an amount equal to 150 percent of either the entire claim against the property or the portion of the claim allocated to the parcel(s) sought to be released; can also be filed by anyone having an interest in the property or by any other lienholder affected by the claim. (See lien, lien release

Front 36

marketable title

Back 36

Good or clear title, reasonably free from the risk of litigation over possible defects.

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mechanic's lien

Back 37

A statutory lien in favor of a building contractor (architects and designers in some states) to secure payment for materials supplied and services rendered in the improvement, repair or maintenance of real property. (See lien)

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notice of cessation

Back 38

A notice that gives subcontractors 30 days and gives prime contractors 60 days to file liens from the date of cessation of work. (See cessation of work)

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notice of completion

Back 39

A document recorded to give constructive notice that a building job has been completed. (See constructive notice)

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notice of nonresponsibility

Back 40

A legal notice designed to relieve a property owner of responsibility for the cost of improvements ordered by another person (such as a tenant). The owner usually gives notice that he or she will not be responsible for the work done by posting notice in some conspicuous place on the property, and by recording a verified copy in the public records.

Front 41

payment bond

Back 41

Bond that may be required of a building contractor to compensate the property owner if the contractor defaults in performance of contract obligations, such as payment of subcontractors, workers, and suppliers.

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plaintiff

Back 42

A person who brings an action; the party who complains or sues in a personal action and is so named on the record. (See defendant)

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power of eminent domain

Back 43

The right of the government to acquire title to property for public use by condemnation; the property owner receives compensation which is generally fair market value. (See taking)

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preliminary notice

Back 44

Notifies a customer that work to be completed is subject to the lien rights of the contractor. Preliminary notice must be given prior to recording of a mechanic's lien, and should be filed by a contractor at least 20 days prior to the start of work. If notice is given later, liens will cover only the work starting 20 days prior to filing. (See mechanic's lien)

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priority

Back 45

The order of position, time or place. The priority of liens is generally determined by the chronological order in which the lien documents are recorded; tax liens, however, have priority even over previously recorded liens. Thus the old adage "prior in time is prior in right" is applicable.

Front 46

priority of claims

Back 46

Order in which creditors will be paid when there are claims against a homestead that result in a judgment against the homeowner.

Front 47

restraint on alienation

Back 47

An illegal condition that would prohibit a property owner from transferring title to real estate.

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restriction

Back 48

A limitation on the use of real property; public restrictions imposed by government include zoning ordinances; private restrictions imposed by deed may require the grantee to do or refrain from doing some action. (See CC&R)

Front 49

satisfaction

Back 49

When all mortgage loan payments or payments on a judgment have been made. When a note has been paid in full. Satisfaction of mortgage (also known as a release of mortgage or mortgage discharge) returns to the mortgagor all interest in the real estate, which was conveyed to the mortgagee by the original recorded mortgage document.

Front 50

servient tenement

Back 50

Land on which an easement exists in favor of an adjacent property (called a dominant tenement or estate); also called a servient estate. If property A has a right-of-way across property B, property B is the servient tenement. The servient owner may not use the property in such a way as to interfere with the reasonable use of the dominant owner. (See dominant tenement, easement)

Front 51

six-month rule

Back 51

Time period in which a homeowner can sell one home and move into another, less costly one, in order to pay debts that would otherwise threaten a sale of the homestead

Front 52

specific lien

Back 52

A lien affecting or attaching only to a certain, specific parcel of land or piece of property. (See lien)

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starting time

Back 53

Date on which a construction project begins (work starts or materials are provided).

Front 54

tax lien

Back 54

An involuntary lien that arises from a taxpayer's obligation to pay real property taxes, state income and estate taxes, or federal income, gift, and estate taxes. (See assessments, lien)

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trustee

Back 55

1) One who holds property in trust for another as a fiduciary and is charged with the duty to protect, preserve and enhance the value and the highest and best use of the trust property. 2) One who holds property in trust for another to secure the performance of an obligation. In those states using trust deeds as security devices, the trustee holds bare legal title to the property pending the borrower/trustor paying off the underlying debt or promissory note. The trustee is usually a lending institution, trust company or title insurance company. (See fiduciary)

Front 56

trustee's deed

Back 56

A deed executed by a trustee conveying land held in a trust.

Front 57

voluntary lien

Back 57

A lien placed on property with the knowledge and consent of the property owner. (See lien)

Front 58

writ of execution

Back 58

A court order authorizing and directing an officer of the court (sheriff, police officer) to levy and sell property of a defendant to satisfy a judgment.

Front 59

zoning

Back 59

The regulation of structures and uses of property within designated districts or zones. Zoning regulates and affects such things as use of the land, lot sizes, types of structure permitted, building heights, setbacks and density (the ratio of land area to improvement area). (See aesthetic zoning, bulk zoning, comprehensive zoning, cumulative zoning, downzoning, exclusionary zoning, incentive zoning, noncumulative zoning, partial zoning, spot zoning)