Term
| What are the two basic types of easement and what is the difference? |
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Definition
Easement appurtenant -- attaches to the estate and transfers with it unless specifically stated otherwise in the transaction documents
Easement in gross -- a personal right to use that does not attach to the grantor's estate. |
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Term
| What is a common example of an easement by necessity? |
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Definition
| The need for access to a property so that it is not landlocked. |
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Term
| How are easements created? |
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Definition
Voluntary action
Necessity
Prescriptive operation of law
Grant or reservation
Implication
Government power of eminent domain (condemnation) |
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Term
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Definition
| An encroachment is the unauthorized, physical intrusion of one owner's real property into that of another. |
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Term
| What is a license in regards to an easement? |
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Definition
| A license, much like a personal easement in gross, is a personal right that a property owner grants to another to use the property for a specific purpose. Licenses are not transferrable and do not attach to the land. They cease on the death of either party, or on the sale of the property. Unlike a personal easement in gross, a license is revocable at any time. Licenses are often granted informally, as a verbal statement of permission. |
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Term
| what is a deed restriction? |
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Definition
A deed restriction is a limitation imposed on a buyer's use of a property by stipulation in the deed of conveyance or recorded subdivision plat.
The land use
The size and type of structures that may be placed on the property
Minimum costs of structures
Engineering, architectural, and aesthetic standards, such as setbacks or specific standards of construction |
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Term
| Define encroachment and give an example. |
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Definition
| An encroachment is the unauthorized, physical intrusion of one owner's real property into that of another. An example would be a driveway extending beyond the lot line onto the neighbor's land. or a tree limb that fell over a property line fence |
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Term
| How is a license different from a personal easement in gross? |
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Definition
| A license may be informal and is revocable at any time. Revocation of a personal easement in gross may require the death of the grantee or express release of the easement by the grantee. |
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Term
| How are the two types of deed restriction created? |
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Definition
| A deed condition is created in the transfer documents. A deed covenant is created by mutual agreement of the owner and others. |
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Term
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Definition
| A specific lien attaches to a single item of real or personal property and does not affect other property owned by the debtor. A conventional mortgage lien is an example, where the property is the only asset attached by the lien. |
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Term
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Definition
| A general lien is one placed against any and all real and personal property owned by a particular debtor. |
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Term
| Compare a voluntary lien and an involuntary lien |
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Definition
A property owner may create a voluntary lien to borrow money or some other asset secured by a mortgage. An involuntary lien is one that a legal process places against a property regardless of the owner's desires.
If statutory law imposes an involuntary lien, the lien is a statutory lien. A real estate tax lien is a common example. If court action imposes an involuntary lien, the lien is an equitable lien. An example is a judgment lien placed on a property as security for a money judgment. |
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Term
| The category of superior, or senior, liens ranks above the category of inferior, or junior, liens, meaning that superior liens receive first payment from the proceeds of a foreclosure. |
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Definition
Superior liens in their rank order include:
Real estate tax liens
Special assessment liens
Federal estate tax liens
State inheritance tax liens
Inferior liens in their rank order include:
Federal income tax liens
State corporate income tax liens
State intangible tax liens
Judgment liens
Mortgage liens
Vendor's liens
Mechanic's liens (priority by date work was performed) |
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Term
| what is a judgement lien? |
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Definition
| A judgment lien attaches to real and personal property as a result of a money judgment issued by a court in favor of a creditor. In Oklahoma, a judgment lien remains attached to a debtor's property for five years. |
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Term
| what is a Municipal Utility Lien? |
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Definition
| A municipality may place a utility lien against a resident's real property for failure to pay utility bills. |
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Term
| what is a Surety Bail Bond Lien? |
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Definition
| In some states, a real estate owner may put up real estate instead of cash to pay bail if he or she has been charged with a crime. A surety bail bond lien is recorded if the owner can prove that he or she has a net worth of at least twice the amount of the bail. Homestead property cannot be levied against for surety bail bond lien. |
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Term
| Most liens do not convey ownership. What is the one exception to that rule? |
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Definition
| A mortgage lien conveys legal title to the lender. |
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Term
| What type of lien takes priority over all other liens? |
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Definition
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Term
| What factors determine lien priority? |
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Definition
The lien's categorization as superior or junior
The date the lien was recorded |
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Term
| How can the priority order of a junior lien be changed? |
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Definition
| A lienor can change the priority of a junior lien by voluntarily agreeing to subordinate, or lower, the lien's position in the hierarchy. |
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Term
| What is a judgment lien and how long is it effective? |
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Definition
| A judgment lien results from a lawsuit. It attaches to real and personal property as a result of a monetary judgment issued by a court in favor of a creditor. It attaches to the property for five years. |
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Term
| What is a mechanic's lien? |
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Definition
| If a property owner fails to pay for work performed or materials supplied, a worker or supplier can file a mechanic's lien to force the sale of the property and collect the debt. |
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Term
| what is Easement appurtenant |
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Definition
dominant tenement's right to use or restrict adjacent servient tenement; attaches to the real estate
easement by necessity: granted by necessity, e.g. to landlocked owners
party wall: negative easement in a shared structure |
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Term
| what is Easement in gross ? |
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Definition
a right to use property that does not attach to the real estate. Utilities or railroads are examples. Those employed to buy or sell easements in gross must be licensed or registered with OREC.
personal: not revocable or transferable; ends upon death of easement holder
commercial: granted to businesses; transferable |
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Term
| what is Easement creation ? |
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Definition
voluntary grant court decree by necessity or prescription, eminent domain
by prescription: obtainable through continuous, open, adverse use over a period |
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Term
| what is Easement termination ? |
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Definition
| release; merger; abandonment; condemnation; change of purpose; destruction; non-use |
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Term
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Definition
| - intrusions of real estate into adjoining property; can become easements |
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Term
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Definition
| personal rights to use a property; do not attach; non-transferable; revocable |
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Term
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Definition
| - conditions and covenants imposed on a property by deed or subdivision plat |
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Term
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Definition
| - claims attaching to real and personal property as security for debt |
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Term
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Definition
| - restrict free and clear ownership; non-payment may trigger foreclosure; do not convey ownership, except for mortgage lien; attach to the property; multiple liens may attach; terminate on payment and recording |
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Term
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Definition
| - voluntary and involuntary; general and specific; superior and junior |
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Term
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Definition
| - rank ordering of claims established by lien classification and date of recording; determines who gets paid first if lienee defaults |
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Term
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Definition
| - rank over junior liens; not ranked by recording date; real estate tax and assessment liens and inheritance taxes |
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Term
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Definition
| - rank by recording date: judgment; mortgage, vendor's, utility, mechanic's, other tax liens; mechanic's lien priority "dates back" to when work or sale transpired |
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Term
| what is Tenancy In Severalty? |
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Definition
| If a single party owns the fee or life estate, the ownership is a tenancy in severalty. Synonyms are sole ownership, ownership in severalty, and estate in severalty. The root of this word is "SEVER," meaning to "cut off" everyone else's interests. |
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Term
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Definition
| If more than one person, or a legal entity such as a corporation, owns an estate in land, the estate is held in some form of co-ownership. Co-owners are also called co-tenants. |
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Term
| what is Tenancy In Common? |
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Definition
The tenancy in common, also known as the estate in common, is the most common form of co-ownership when the owners are not married. The defining characteristics are:
Two or more owners - Any number of people may be co-tenants in a single property.
Identical rights - Co-tenants share an indivisible interest in the estate, i.e., all have equal rights to possess and use the property subject to the rights of the other co-tenants. No co-tenant may claim to own any physical portion of the property exclusively. They share what is called undivided possession, or unity of possession.
Interests individually owned - All tenants in common have distinct and separable ownership of their respective interests. Co-tenants may sell, encumber, or transfer their interests without obstruction or consent from the other owners. (A co-tenant may not, however, encumber the entire property.) |
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Term
| what is Electable ownership shares? |
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Definition
| Tenants in common determine among themselves what share of the estate each party will own. For example, three co-tenants may own 40%, 35%, and 25% interests in a property, respectively. In the absence of stated ownership shares, it is assumed that each has a share equal to that of the others. |
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Term
| what does "No survivorship" mean in context of tenants in common? |
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Definition
| - A deceased co-tenant's estate passes by probate to the decedent's heirs and devisees rather than to the other tenants in common. Any number of heirs can share in the ownership of the willed tenancy. |
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Term
| in terms of tenants in common, what does"No unity of time" mean? |
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Definition
| - It is not necessary for tenants in common to acquire their interests at the same time. A new co-tenant may enter into a pre-existing tenancy in common. |
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Term
| what does "Partition suit" mean in context of tenants in common? |
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Definition
| If other share holders will not buy the interests of a shareholder who wants to sell out, and no one can be found to buy the shares, an individual share holder can request that the courts sell either his/her shares (seek an equitable distribution) or the whole property. |
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Term
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Definition
In a joint tenancy, two or more persons collectively own a property as if they were a single person. Rights and interests are indivisible and equal: each has a shared interest in the whole property, which cannot be divided up. Joint tenants may only convey their interests to outside parties as tenant-in-common interests. One cannot convey a joint tenant interest.
Unity of ownership-- Whereas, tenants in common hold separate title to their individual interests, joint tenants together hold a single title to the property.
Equal ownership-- Joint tenants own equal shares in the property, without exception. If there are four co-tenants, each owns 25% of the property. If there are ten co-tenants, each owns 10% |
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Term
| what are the rules for joint tenants transferring interest? |
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Definition
-- A joint tenant may transfer his or her interest in the property to an outside party, but only as a tenancy in common interest. Whoever acquires the interest co-owns the property as a tenant in common with the other joint tenants. The remaining joint tenants continue to own an undivided interest in the property, less the new cotenant's share.
Survivorship-- In most states, joint tenants enjoy rights of survivorship: if a joint tenant dies, all interests and rights pass to the surviving joint tenants free from any claims of creditors or heirs. |
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Term
| what are the rules for creation of Joint Tenancy? |
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Definition
To create a joint tenancy, all owners must acquire the property at the same time, use the same deed, acquire equal interests, and share in equal rights of possession. These are referred to as the four unities.
Unity of time -- all parties must acquire the joint interest at the same time
Unity of title -- all parties must acquire the property in the same deed of conveyance
Unity of interest -- all parties must receive equal undivided interests
Unity of possession -- all parties must receive the same rights of possession |
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Term
| More info about Joint Tenancy |
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Definition
Joint tenancy may not be created by operation of law! Joint tenancy creates the right of survivorship, which means that when one owner dies, the owner's interest passes to the other joint tenants rather than to heirs. This may avoid probate, depending on state laws.
Joint tenancy can be created only by grant or purchase (by a deed of conveyance) or by devise (will). The grantees or devisees must be specifically named as joint tenants. For example, if you wanted to will real estate to your children as joint tenants, you would place in your will something like the following: "To Jane and Bill Smith, and to the survivor of them, and his or her heirs and assigns as Joint Tenants, with rights of survivorship, and not as tenants in common." |
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Term
| ways for termination of joint tenancy |
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Definition
A joint tenancy is terminated when any of the four unities is broken.
Sale of an interest: if there are three joint tenants and one sells his interest to a fourth party, this fourth party becomes a tenant in common with the remaining two joint tenants.
Bankruptcy of any of the joint tenants.
Foreclosure of the property.
Partition suit: as stated above under Tenants in Common
A partition suit is a legal avenue for an owner who wants to dispose of his or her interest against the wishes of other co-owners. The suit petitions the court to divide, or partition, the property physically, according to the owner's respective rights and interests. If this is not reasonably feasible, the court may order the property sold, whereupon the interests are liquidated and distributed proportionately. |
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Term
| Who decides how title to real estate will be held (what type of ownership)? |
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Definition
| The grantee or buyer decides. The seller decides the type of estate transferred. |
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Term
| What are the primary differences between tenancy in severalty and co-ownership? |
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Definition
| The primary difference is the number of owners—one vs. two or more. Secondarily, the treatment of the estate on the death of an owner. In a severalty, the estate passes to heirs by probate. In a co-ownership, the estate may pass to heirs (tenancy in common) or to surviving co-owners (joint tenancy, tenancy by the entireties, tenancy in partnership) or to a combination (community property). |
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Term
| What are the primary differences between tenancy in common and joint tenancy? |
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Definition
| Title-- only one title in a joint tenancy, multiple titles in tenancy in common; ownership share-- equal shares in joint tenancy, electable in tenancy in common; transferability-- tenant in common may sell, encumber, etc., his or her share, but joint tenant's interest becomes a tenancy in common interest if sold; survivorship-- joint tenant's interest goes to other joint tenants on death, but tenant in common's interest goes to heirs; creation-- joint tenancy requires the four unities, otherwise a tenancy in common results. |
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Term
| what is Tenancy By The Entireties? |
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Definition
Tenancy by the entireties is a form of ownership reserved exclusively for husband and wife. It features:
Survivorship - On the death of husband or wife, the decedent's interest passes automatically to the other spouse.
Equal, undivided interest - Each spouse owns the estate as if there were only one owner. Fractional interests cannot be transferred to outside parties. The entire interest may be conveyed, but only with the consent and signatures of both parties.
No foreclosure for individual debts - The estate is subject to foreclosure only for jointly incurred debts.
Termination - The estate may be terminated by divorce, death, mutual agreement, and judgments for joint debt. |
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Term
| what is Community Property? popular is spanish speaking areas |
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Definition
Community property law distinguishes real and personal property into categories of separate and community property. Separate property belongs to one spouse; community property belongs to both spouses equally.
Separate property consists of:
property owned by either spouse at the time of the marriage
property acquired by either spouse through inheritance or gift during the marriage
property acquired with separate-property funds
income from separate property
property by gift
settlements for personal injury
a written contract with the spouse
Community property consists of:
all other property earned or acquired by either party during the marriage |
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Term
| what is Tenancy In Partnership? |
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Definition
| Tenancy in partnership is a form of ownership held by business partners, as provided by the Uniform Partnership Act (UPA). The UPA is a model law with provisions governing business partnerships. The original (1914) version was adopted in every state except Louisiana. The most recent revision (1997) has been adopted in 37 states. |
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Term
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Definition
A living trust allows the trustor, during his or her lifetime, to convey title to a trustee for the benefit of a third party. The trustor charges the trustee with all necessary responsibilities for managing the property, protecting its value, and securing whatever income it may produce. The trustee may also be ordered to sell the property at a given point. The beneficiary receives all income and sales proceeds, net of the trustee's fees.
Unlike a will, which takes effect only after death, the living trust can provide benefits while the trustor is still alive. It can be revocable in nature, so the trustor can make changes to adapt to changes personal circumstances.
A living trust is established by a written agreement or declaration appointing a trustee to manage and administer the trustor's property. The trustor can name any competent adult as trustee. Many choose a bank or a trust company to fill this role. |
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Term
| what is a Testamentary Trust? |
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Definition
A testamentary trust is structurally and mechanically the same as a living trust, except that it takes effect only when the trustor dies. Provisions of the decedent's will establish the trust. A testamentary trust can also be created under a revocable living trust or an irrevocable life insurance trust.
Testamentary trusts are irrevocable and unchangeable, since the trust is created after the trustor's death, when the trustor has no ability to amend or revoke it. |
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Term
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Definition
A land trust allows the trustor to convey the fee estate to the trustee and to name himself or herself the beneficiary. The land trust applies only to real property, not to personal property. The agreement, or deed in trust, grants the beneficiary the rights to possess and use the property, and to exercise control over the actions of the trustee. The trustee holds legal title and has conventional fiduciary duties. The trustor must be a living person, but the beneficiary may be a corporation.
The distinguishing features of the land trust are:
Beneficiary controls property -- this includes occupancy and control of rents and sale proceeds
Beneficiary controls trustee -- the trustee is empowered to sell or encumber the property, but generally only with the beneficiary's approval
Beneficiary identity not on record -- public records do not identify the beneficiary; the beneficiary owns and enjoys the property in secrecy
Limited term -- the term of the land trust is limited and must be renewed or else the trustee is obligated to sell the property and distribute the proceeds |
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Term
| what is the Beneficial Interest in a land trust? |
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Definition
The beneficiary's interest in a land trust is personal property, not real property. This distinction offers certain advantages in transferring, encumbering, and probating the beneficiary's interest:
Transferring -- the beneficiary may transfer the interest by assignment instead of by deed
Encumbering -- the beneficiary may pledge the property as security for debt by collateral assignment rather than by recorded mortgage
Probating -- the property interests are probated in the state where the beneficiary resided at the time of death rather than the state where the property is located
This graphic may help you better understand estates in trust. |
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Term
| What are the primary differences between tenancy by the entireties and joint tenancy? |
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Definition
| Tenancy by the entireties requires co-owners to be married; tenancy by the entireties can have only two owners; a tenant by the entireties cannot convey his or her interest separately to an outside party. |
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Term
| Describe the main features of the concept of community property. |
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Definition
| Applies to legally married spouses; distinguishes between community property and separately-owned property; protects each spouse's ownership of the whole community property while spouses live; preserves half of community property for surviving spouse |
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Term
| What are some of the apparent advantages of a land trust as a way of owning property? |
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Definition
| Anonymity; ease of transfer; ease of use as collateral; potential benefits in treatment of estate on death of beneficiary (grantor). |
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Term
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Definition
A condominium is a hybrid form of ownership of multi-unit residential or commercial properties. It combines ownership of a fee simple interest in the airspace within a unit with ownership of an undivided share, and as a tenant in common, of the entire property's common elements; such as lobbies, swimming pools, and hallways.
A condominium unit is one airspace unit together with the associated interest in the common elements. Do not confuse this with a townhouse, where the property owner also holds fee simple interest in the ground beneath the townhouse. |
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Term
| co-op expense and liability |
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Definition
Expense liability
The failure of individual shareholders to pay monthly expense assessments can destroy the investment of all the other co-op owners if the co-op cannot pay the bills by other means.
Since the corporation owns an undivided interest in the property, debts and financial obligations apply to the property as a whole, not to individual units. Should the corporation fail to meet its obligations, creditors and mortgagees may foreclose on the entire property. A completed foreclosure would terminate the shareholders' proprietary lease, and bankrupt the owning corporation. Compare this situation with that of a condominium, in which an individual's failure to pay endangers only that individual's unit, not the entire property.
Transfers
The co-op interest is transferred by assigning both the stock certificates and lease to the buyer. |
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Term
| board of directors for a co-op differs from condo in what way? |
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Definition
Board of Directors
The shareholders elect a board of directors. The board assumes the responsibility for maintaining and operating the cooperative, much like a condominium board. Cooperative associations, however, also control the use and ownership of individual apartment units, since they are the legal owners. A shareholder's voting power is proportional to the number of shares owned. |
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Term
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Definition
| Time-share ownership is a fee or leasehold interest in a property whose owners or tenants agree to use the property on a periodic, non-overlapping basis. This type of ownership commonly concerns vacation and resort properties. Time-share arrangements provide for equal sharing of the property's expenses among the owners. |
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Term
| what is a timeshare lease hold? |
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Definition
| The time-share leasehold arrangement allows the leaseholder to use the property year after year without incurring the obligations of paying property taxes or closing costs. |
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Term
| What are the primary differences between a condominium and a cooperative as forms of ownership? |
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Definition
| Condo owner actually owns real property-- airspace and share in common elements-- while co-op owner owns shares in a corporation and proprietary lease; condo unit can be transferred, encumbered or foreclosed as an entity, while co-op interest cannot be so handled, but only as an interest in the corporation; entire property is endangered by default of co-op share holder, but only individual unit is endangered by default of a condo owner. |
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Term
| Describe the main differences between deeded time-share ownership and vacation interval ownership as forms of ownership. |
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Definition
Describe the main differences between deeded time-share ownership and vacation interval ownership as forms of ownership.
The deeded time-share owner owns real property; the interval owner owns personal property; the deeded owner acquires the rights to use (a unit at a specific time), rent, sell, exchange or bequeath the interest; the interval acquires a right-to-use (no particular unit, at a specific time) and may have other rights to sell, exchange, etc., if allowed by the resort owner. |
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Term
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Definition
| sole ownership of a freehold estate |
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Term
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Definition
| - co-tenants enjoy an individually owned, undivided interest; any ownership share possible; no survivorship |
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Term
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Definition
| - equal, undivided interest jointly owned by two or more parties, with survivorship; requires four unities to create: time, title, interest, possession; joint tenants can sell their interest, but the interest becomes a tenancy in common with remaining joint tenants |
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Term
| Tenancy by the entireties |
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Definition
| - equal, undivided interest jointly owned by husband and wife |
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Term
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Definition
| per state law, joint ownership of property by spouses as opposed to separate property |
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Term
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Definition
| acquired before marriage or by gift or inheritance, personal injury claims, purchase from separate funds, by sale of separate property, or written contract with the spouse |
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Term
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Definition
| - ownership by business partners |
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Term
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Definition
| - property granted by trustor to fiduciary trustee for benefit of beneficiary |
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Term
| Living trust and testamentary trust - |
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Definition
| personal and real property ownership created to take effect during one's lifetime (living trust) or after one's lifetime (testamentary) |
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Term
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Definition
| real property ownership where grantor and beneficiary are same party; beneficiary uses, controls property, does not appear on public records |
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