Define Law

~ A body of rules of action or conduct prescribe by controling authority and having leagal force. ~That wich must be obeyed and followed

What are the sources of law?

1) Public vs. Private

2) Constitutions

3) Statues

4) Administrative

5) Judicial Decisions

Sources of Law: Public vs. Private

Describe Public Law:

~ Deals with the relationship between government and individuals. For example: real estate license for realtors and brokers

~ Defines, regulates, and enforces rights in which the government is a party to the subject matter

~ Primary sources: constitutions, statues, administrative law

Sources of Law: Public vs. Private

Describe Private Law:

~ Deals with the relationship between individuals, such as contracts, property, and torts

~ Law of property encompasses real estate, as well aspersonal property (both tangible and intangible)

Sources of Law: Constitutions

~ U.S. and State Constitutions

-U.S. Constitution is the supreme law of the land.

-2 major parts of Constitution

-14th amendment guarantees "due process" before taking away life, liberty, or property

-State constitutions cannot impair rights grantedunder the 14th amendment

-Generally, federal and state constitutions work in harmony

Sources of Law: Statues

~ Defined

- Laws enacted by legislative bodies (federal, state or local)

~ Courts interpret statutes, but statutes prevail over conflicting judicial decisions

Sources of Law: Administrative

~ Administrative agencies have been called the 4thbranch of government

~ Agencies are created at federal,statead loal levels, and deal directly with citizens

~ Given Judicial or Quasi-judicial power toenforce regulations

~ Examples: IRS, FTC, FAA, FCC,EPA, RE Commission

Sources of Law: Judicial Decisions

~ Courts deide Actual Cases

-JD resolve a particular conflict

-Suordinate to Constitution and Statues

~ Judicial deisions are primary source for determining how the Constitution is interpreted and applied

~Decisions become precedent and guidance for other courts

~They are the primary source of private law especially real estate law

~ Based on Common Law:

-Judge made law created when there is no controlling constitution, statutory or other law

-from England, centralized court system, and gave stare decisis. Brought uniformity

-Civil (Roman) Law: most of Europe, Central and South America

Define Common Law

~ Common Law Deficiency - after the fact

~ Lawof Equity: Set up Court of chancery

~ An attempt to "do equity" and provide relief before a wrong occurred

~ Injuntion - a court ordered prohibiting some from doing some speified act or commending someone to undo some wrong or injury

~ Specific Preformance - type of injunction ordering the defendant to preform a specific act

State Courts

~ Lowest "trial" courts divided into courts of general and limited jurisdiction

~ Trial courts can appeal to intermediate appellate courts. No new trial, just the record

~ Highest court is usually the State Supream court

Mississippi State Court System

~State Court

- Lowest "tiral" courts diided into courtsof general andlimitedjurisdiction

-Trial Courts can appeal tointermediate appellate courts. No new trial, just the record

- Highest court is usually the State Supreme Court

~ Justice Court

-Small Claims ($0 to $2,500)

-Preliminary hearings, misdemeanor

~ Municipal Court

-misdemeanor & trafic/other violations

~ Chancery Court

-Tort, contract, realpropety, probate/estate, mental health, civil equity appeal

-domestic relations

-juvenile

-appeals from Justice and Municipal in no Country Court

~ County Court

-Tort, contract, real property ($0 to $75,000) civil appeals, Probate/estate and mental health Preliminary hearing, misdemeanor

-juvenile

~ Circuit Court

-Tort,contract, real property ($200 to no max), civil law appeals

-criminal

~ Court of Appeals

-mandatory jurisdiction in civil, noncapital criminal, administrative agency, juvenil, original proceeding, interlocutory decision cases assigned by the Suppream Court

~ Supreme Court

- Mandatroy jurisdiction in civil, capital criminal, criminal, administrative agency, juvenile, disciplinary, original proceedings, interlocutory decision cases -discretionary jurisditionin certfied questions from federal court cases

Define Substantive Law

The law, public or private, that creates and defines rights and duties

Define Procedural Law

Provides the means of enforcing and protecting the rights grated bythe substantive law

Federal Courts

~ U.S. District court is the "trial" court. Can hear cases involving federal lawand criminal cases defined by federal statute

~ U.S. Courts of Appeal has 13 circuits

~ U.S. Supreme Court hears only selected cases

Legal Procedure

~Procedural Law provides means to resolving disputes

~ But most real estate transactions are resolved by mediation or arbitraton

1) Discovery

2) The Trial

3) Opening Statements

4) Cross-Examination

5) Motion for Direct Verdict

6) Jury Verdict

7) Appeal

8) Enforcement - local official seize property - Garnishment - employer pays plaintiff

Alternative Methods of Resolving Disputes

~ Settlements

-before end of litigation

~ Administrative Adjudication

-Administrative agency or tribunal createdby statue

~ Neutral Third Party

-Arbitration -has the authority to decide the dispute

-Mediation -has no authority

The Concept of Property

~ Property means "things" in general terms both real or personal, tangible or intangible, moveable or immovable

~ Legally, property describes th relationship between people and things

~ Property is the right of a person to posses, use or own things

Define Real Property

~ Fixed, immovable, and permanent

~ Includes structures affixed to land

~ Inclued fixtures

~ In some cases, crops

~ Rights to air space above land and mineral rights below land

Real Property vs. Real Estate

~ Real property - ownership in land and appurtenances, including anything of a permanent nature such as structures, trees, minerals, and the interests, benefits and rights thereof

~ Real Estate - Land and structures

Define Personal Property

~ Everything that is not real property

~ Movability

~ Tangible personal property can be touched, such as automoiles, computers

~ Intangible personal property represents something of value, such as stock certicicates, trademarks, or patents

Identify the sources of law for personal property

~ Uniform Commercial Code

- a code of law that governs commercial transactions

- Generally UCC does not apply to real estate

- Contracts for sale of goods over $500 must be in writing

Define Statue of Frauds

~ A law that disallows any suit or action involving certain classes of contracts, such as interests in land, unless theagreement is evidencedby a note or memorandum in writing signed by the party to be charged

~ Agreements involving real estate must be in writing to be enforceable

Define Fixture

A legal hybrid, a piece of personal property that has become affixed toreal property in such a way that it becomes part of the real property

Fixture Tests:

Annexation Test

~ Reuires personal property be annexed or affized to real estate

~"Constructive Annexation" items fitted for a house but not yet in place

Fixture Tests:

Adaption Test

Whether article is adapted to the use or purpose of real estate

Fixture Tests:

Intention Test

~ Intent: controlling test for fixtures

~ Determined by actions, purpose, and relationships of the parties

Trade Fixture

Thoes articles placed on the premises by the tenant to carry on the trade or business of the tenant

Define Collateral

Property that is pledged as security for the satisfaction of a debt

Real Property vs. Personal Property

                 Real Property      Personal Property

Source of Law        Common Law      UCC Article 2

Form of Transfer     Deed                 Bill of Sale

Taxation Real        Estate Tax         None

Rights to the Sky

~ Traditional Approach

~ Trespass - invading the "space" of another individual without permission

~ In Common Law, trespasser is liable for nominal damages even if no actual damage is proven

~ The Legal interest in the vertical dimension of property

~ Air rights may be sold separately from surface rights

Rights to the Depths

~ Traditional Approach

~ Ad Infernos (to the depths)

~ Oil, gas, minerals, underground storage contamination, and water

~ Courts agree it is trespass to cross to another's land, even if it is underneath

~ Subserface improvements and subsurface assets like gas, oil, coal

Water Rights:

Navigable Water

~ Navigable Water: must be "navigable in fact"

 - Navigable Water: any body of water that by itself or by uniting with other waters, forms a continuous highway over which commerce can be carried on with other states or countries

~Navigable "in fact"

Define Riparian Owner

The owner of land contiguous to flowing navigable water such as streams and rivers

Reparial Rights

Allows each riparian owner to use and share the water benefically so long as the use does not interfere unreasonable with beneficial use of other riparian owners

Define Natural Flow Theory

Each riparian owner is entitled to have the water that is maintained in its natural state

Transferable Development Rights

A market-based system designed to preserve land. Property owners are given financial incentives to grant their rights to develop to others

Nuisance

An unreasonable interference with the use and enjoyment of land.

Define Air Rights

The Legal interest in the vertical dimension of property

Easement

An interest in land that gives the owner the right to use real estate owned by another for a specified purpose

License

A privilege to enter the premises for a certain purpose, which does not operate to confer on, or vest in, the licensee any title, interest, or estate in such property

Profit

An interest in the land of another that confers rights of use and removal of the profits of the soil

What are the 3 types of rights in the land of others?

1) Easement

2) License

3) Profit

Purchase of Development Rights (PDR)

A type of conservation easement conveyed to a local governmental entity in which land-owners agree to restrict the use of their land in exchange for a reduction in taxes

Dominant Estate

(Dominant Tenement)

The land that benefits from the easemnet on another property. The possessor of the dominant estate is entitled to the benefits of uses authorized by the easement