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140 Cards in this Set
- Front
- Back
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Natural Rights Doctrine |
assumption that certain real property rights are inalienable. can't be taken away all people deserve them (habitability) running, clean water, warmth, etc prohibition of discriminatory practices. |
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Creation of law doctrine |
dictated or provided by a governmental body state, county, fed, etc air rights: right to own, convey, sell different in different counties, cities and states |
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Real Propert |
the earth and everthything that is affixed to it water depends on if navigable or not |
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Person Property |
movable, temporary items |
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tangible property |
physical easements are tangible property |
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intangible property |
copyrights, patents, air, naming rights, intellectual property, building design |
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define the hierarchy of real estate law |
the organization of the order of precedence for laws enacted by states, cities, counties, nation flows down US Constitution Treaties (pres + 2/3 senate) Executive Orders Federal Statues (administrative regulatory agency enforce) State constitutions State statuettes County, City ordinances Contractual |
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questions for prof |
in hierarchy of real estate law the county and city ordinances are listed together does that mean that they are equal or if we got into finer detail would county take precedence over city? |
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fixture |
personal property that has become so attached to the real property that it loses its identity as a personal property and becomes real property |
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constructive annexation |
a way that personal property can become a fixture something like an ornate bench that matches a built in organ can become real property/fixture |
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industrial plant rule |
when the constructive-annexation test applies to machinery in an industrial setting. if the machinery is essential to the proper functioning of an industrial facility. then personal property is deemed a fixture only applies when machinery is not attached but heavy enough to not be movable |
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trade fixtures |
property installed by a commercial tenant conducting a trade or business on the premises upon which they were installed. |
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waste |
the damage, destruction, or reduction in value of property |
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injunction |
an equitable remedy (nonemonetary) remedy that can be used when monetary damages are inadequate block from removing a fixture |
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right of removal |
aka wrongful or mistaken improver innocent installation of personal property like on the wrong lot, can get it back |
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wrongful or mistaken improver |
nnocent installation of personal propertylike on the wrong lot, can get it back |
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attachments |
crops, trees, bushes and grasses real property while attached to the land personal property once harvested also two rules for if they will pass with the land fructus naturales and fructus industriales |
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fructus naturales |
determines of crops and such pass with the land Provided by nature: not installed by human effort pass with the land |
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fructus industriales |
produced through human effort: crops or fruit groves remain personal property after the sale of the land |
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purchase money security interest |
104 |
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secured debt |
105 |
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unsecured debt |
105 |
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interest |
106 |
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present interest |
106 |
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future interest |
106 |
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estate |
106 |
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freehold estates |
106 |
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nonfreehold estates |
106 |
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leasehold estates |
106 |
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fee simple or fee interest |
106 |
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quiet title actions |
107 |
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fee simple determinable |
107 |
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possibility of reverter |
108 |
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fee simple subject to condition subsequent |
108 |
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right of reentry |
109 |
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power of termination |
109 |
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executory interest |
109 |
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fee tail |
112 |
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life estate |
112
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life tenants |
112 |
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life estate ur autre vie |
112 |
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ameliorative waste |
113 |
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reversion |
113 |
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remainder |
113 |
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vested remainder |
113 |
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contingent remainder |
113 |
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condition precedent |
113 |
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rule in Shelley's Case |
115 |
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Doctrine of Worthier Title |
116 |
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Rule against Perpetuities |
116 |
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fixture |
property that is incorporated into or attached to real estate. it is so attached or affixed to the land as to become part of it |
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3 part test for fixtures |
1. the intention of the parties 2. the character of the property & its adaption to the use or purpose of the realty 3. the actual constructive annexation of the item to the land |
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the relationship of the parties is an important consideration in deciding whether an item is a fixture. |
the law favors a buyer and the borrower over a creditor mortgagee
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define a trade fixture |
an item installed by a commercial tenant for the purposes of conducting a trade or business on the premises. A commercial tenant may remove trade fixtures at the end of the lease, in the absence of a contrary agreement |
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When is a security interest created |
when the debtor's interest in personal property has attached and the debtor executes a written security agreement |
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nonpossessory interest |
an interest in land that constitutes less than full possession or ownership of the land |
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easement |
a right of a person to use the land of another for a specific purpose |
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right-of-way |
aka easement |
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affirmative easement |
gives benefit to the dominate tenement |
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negative easement |
restricts behavior of the servient property
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easement appurtenant |
benefits a parcel of land and continues with the conveyance of either the servient parcel (irrevocable) |
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noncommercial easements in gross |
benefits a person or groups of people not land. Non-commercial is irrevocable, but can't be conveyed or transferred and dyes with the person who has the easement |
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easements by grant |
First Rule: At one point in time one landowner owned both parcels of land created 2 ways |
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express grants |
70 |
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express reservation |
70 |
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easement by reservation |
70 |
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easements by estoppel |
73 |
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easements by necessity |
73 |
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easements by prescription |
76 |
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eminent domain |
79 |
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conservation easement |
82 |
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profit |
83 |
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license |
84 |
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convenant |
85 |
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benefit and burden |
85 |
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affirmative convenant |
85 |
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negative convenant |
85 |
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equitable servitudes |
86 |
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air rights |
the rights of an owner to develop the airspace located above the surface of the earth. |
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navigable airspace |
airspace above the minimum safe altitude provided currently by the Federal Aviation Administration |
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column lot |
all the airspace from the surface of the earth to an imaginary plan 23 feet above the surface of the earth |
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air lot |
all the airspace above the imaginary 23 foot plane |
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transferable development rights |
TDR involve the sale of unused airspace from existing buildings located near future development sites. |
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minerals |
oil and gas owned by the surface landowner. below the surface = real property extracted = personal property |
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rule of capture |
gives an owner title to the gas and oil produced from a well on the owner's property, even if the gas and oil flowed to the well from beneath another's property. belong to original capturer |
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slant drilling |
angling and extending the oil or gas drill into another's property. it is a trespass |
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ownership theory |
treats oil and gas deposits in the same manner as other minerals. owned at the time of the deed and may be severed and sold |
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non-ownership theory |
followed by California treats oil and gas as migratory and flowing from one parcel of land to another.no landowner owns the oil and gas under the surface until it has been captured. |
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doctrine of correlative rights |
a limitation to the rule of capture providing landowners a reasonable opportunity to extract a fair and reasonably share of production by preventing the destruction or recovery of mineral interest by an adjacent landowner |
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unionization or pooling |
a limitation adopted by some states to decrease overexploitation of subsurface resources by some states regulates the number of acres required for a well apportionment among the surface owners with the acreage |
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alternative energy |
fuel other than natural gas or petroleum hydroelectricity wind biomass geothermal solar energy |
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lateral support |
involves removing or changing soil on adjacent property that supports a landowners property landowners are strictly liable for damages even if no fault or negligence to another whose property is damaged when lateral support is removed |
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strictly liable |
liable even without fault or negligence |
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subjacent support |
support from below the surface. the one who removes, oil, gas, water or anything that makes the surface subside may be liable for damages |
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percolating water |
water which flows underneath the soil |
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water right |
the right to use water. |
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navigable waters |
water that can be used for navigation. they don't need to be currently navigable just that it could be. |
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riparian doctrine |
water belongs to those who's land borders the water course. right to reasonably use the water in common with other landowners who abut the same water source. use and share. allocation if needed are proportional to frontage and household use takes priority over commercial |
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littoral rights |
the right the use the water touching your land but may not alter the waters position by artificial means |
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prior appropriation doctrine |
the right of priority acquired on a first in time, first in right to use water over later users |
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watercourse |
a stream of water flowing in a fixed direction or course in a bed with banks. applied only to inland streams by water volume |
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accretion |
the process of increasing riparian land, in areas previously covered by water, by the depositing of solid materials, such as mud, sand or sediment so that it becomes dry land |
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erosion |
the gradual washing away of land bordering a stream or body of water by the water's action |
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reliction |
the process of uncovering land by a permanent recession of a body of water rather than a seasonal retreat of water |
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avulsion |
the sudden and perceptible loss of or additional to land caused by the action of water or a sudden change in the bed or course of a stream |
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surface waters |
water that originates from rain, spring or melting snow |
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Civil law rule |
between upper and lower property owners, the upper owner has an easement to have surface water flow naturally from his land onto the land of the lower owner ?? |
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common enemy rule |
?? see lecture slides
47 |
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reasonable conduct rule |
48see lecture slides |
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nuisance |
a substantial and unreasonable interference with the use and enjoyment of another's land |
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private nuisance |
substantial and unreasonable interferences with the use and enjoyment of another's land that affect one or a limited number of individuals |
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public nuisance |
a nuisance that affects the public at large. substantial and unreasonable interferences with the health, safety or morals of the public |
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nuisance per se |
negligence arising from the violation of a public duty. a plant with good tech still allows lead to leach into the ground |
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coming to the nuisance defense |
when a plaintiff knowingly and voluntarily moves into the range of a nuisance after its creation |
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monetary damages |
money compensation for the injury or loss incurred |
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equitable relief |
an injunction which retrains the nuisance-causing activity |
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injunction |
?? |
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trespass |
an intentional invasion of a tangible object object to another's land without consent |
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nominal damages |
a minimal or token sum awarded when the actual amount of damages can't be proved
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trespassers |
a person who enters another's land without permission |
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attractive nuisance doctrine |
provides that a landowner will be liable for injuries caused to trespassing children if the children where attracted to the the property by something: pool, swing if you have something a child would be attracted to you must take extra care to secure your property |
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licensees v invitees |
Licensee: a person who enters land with permission of the owner Invitee: person who enters land that is generally open to the public or for business |
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Diff btw Riparian and Prior Appropriation Doctrines |
Riparian only riparian owners can acquire water goths riparian owners share water rights equally by reasonable use distinguishes natural uses of water from artificial uses in priority allocation riparian owners typically gain water rights simply by being riparian owners Prior Appropriation Anyone can acquire water rights First in time, first in right to water with no reasonable-use restrictions. Acquirer can use al water No distinction between different types of water use First to divert and use water regularly for beneficial purpose acquires rights |
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secured transaction |
is intended to create rights in the personal property or fixtures of another. Security Interest: gies the holder the right to repossess, retain or dispose of collateral if the person fails to pay priority: has the right to be paid first among all creditors |
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secured creditor |
someone who holds a security interest in property or fixtures for a debt. makes this creditor first in line for payment |
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Waste |
the wrongful removal of property after title is transferred. if you find out after you can sue to get item or value if before you can get an injunction to stop them from taking it |
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Attachments |
Fructus naturales: real property Fructus industriales: private property |
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fructus naturales |
comes from nature or nature mostly cares for it big trees, shrubs real property |
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fructus industriales |
comes from labor: person has to care for crops personal property may return after title and remove when ready to harvest Doctrine of Emblements |
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Doctrine of Emblements |
fructus industriales you can return to harvest after title has transferred |
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*Creditors Rights in Fixtures |
fixtures: personal property that becomes real property Article 9 of the Uniform Commercial Code you sell on credit and its installed: you are a secured creditor |
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Priority of Debt for Fixtures |
Purchase Money Security Interest have to file a Financing Statement 1st even if Perfected Secured Creditors file before Perfected Secured Creditor Secured Creditor who filed Financing Statemen 1st to file is 1st to be paid, unless there are Purchase Money Security Interest creditors Secured Creditor gave credit with collateral car, cabinets
Unsecured Creditor |
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Purchase Money Security Interest |
has ultimate priority the seller of goods extends credit to the buyer have to file a financing statement |
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Default and Remedies 3 |
Choose any one take property back seek judgment: get value instead of item seek Deficiency judgment: if collateral isn't enough to pay debt, sue for the remaining |
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Real Property Estates |
ownership of property by time limit people's possession by time or conditions Present and Future Interests are created |
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2 ways to have interest in a property |
Freehold Leasehold |
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Future Interest |
held by grantor or a third party they get the property |
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Present Interest (2) |
freehold interest an interest in land for an unlimited duration or so long as you meed conditions |
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All interest in property is either (2) |
Present Interest or Future Interest |
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Present Interest 2 types |
Freehold or Leasehold |
