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Permission from the owner, not trespassers (to cross land, temporarily occupy, etc.) NOT permanent, revocable by the grantor, can be granted orally, ordinarily non-transferable, PERSONABLE RIGHT(not real estate)
dominant & servient estate, “runs with the land”, irrevocable(unless it has an express term by agreement), benefit dominant parcel can be reciprocal (party wall)
allows dominant parcel to use servient parcel (EX: driveway across it)
originally one parcel, established by prior use or quasi-easement (when property owner visibly and continuously has used one part of the land, when sold separate other part needs it to enjoy it..etc) and it is a “reasonable necessity” for enjoyment of the land, easement NOT DESTROYED if new access obtained,
“Acquisition of an intangible property right such as an easement through wrongful use of another’s land for a period of time”
An easement created by an owner expressly granting in a deed or other instrument a specific right to another to use the property.
An easement created when an owner of property conveys title to another by deed while specifically reserving an easement in his or her favor.
When two (or more) properties depend on each other. Both owners want to ensure continued benefit from burdens placed on neighboring property.
REA (Reciprocal Easement Agreement)- benefit shopping centers especially when different parcel owners with no public street access, tend to pay for these easements however get ability to cross the land, use parking, etc.
Is an easement an interest in real estate?
Yes they are an interest in real estate, however not entitled to possession of land just its use
What is a “profit à prendre”?
Nonpossessary interest in real property that permits the holder to sever and remove resources (timber, ores, soil, wild animals, etc.), implies access to those resources as well
What are the three basic requirements for the proper exercise of the power of Eminent Domain?
How does a person establish (prove/”win”) ownership by Adverse Possession?
POSSESSION must be:Actual, open, visible, & notorious, continuous and exclusive, hostile and adverse for the period of time (12,15,20 or 21 years typically)
What happens if the ownership of one of the parcels of land (either the one being adversely possessed or the one owned by the claimant) changes?
Tacking is allowed usually as long as if one acquired titled directly from the other (through sale/transfer or upon death)
What is the principle behind Adverse Possession? That is, why has the law grown to allow it?
What is “tacking” in the context of Adverse Possession?
Adding up periods of successive adverse user if one acquired titled from another directly
What kinds of involuntary liens are commonly allowed?
Mechanics lien, tax lien, judgment liens, vendors liens
Give an example of an involuntary lien that is specific to a particular property.
Mechanics lien, vendors lien, property tax lien
Give an example of an involuntary lien that is NOT specific to particular property.
Property tax liens have ultimate priority, then unpaid income taxes (after filed with court of Clerks) have same priority as judgment as other liens.
Can a judgment granted by a court in Dane County, Wisconsin be a lien on real estate in Milwaukee County, Wisconsin?
Can a judgment granted by a court in Dane County, Wisconsin be a lien on real estate in San Francisco, CA?
Can a judgment granted by a court in Dane County, Wisconsin be a lien on real estate in Lyons, France?
The aggregate evidence that gives rise to a legal right of possession or control
Those collected records (and other information) have to be investigated and interpreted to determine legal rights in real estate thru chain of title
Which system – conveyancing or registration – is more common in the rest of the world?
Written instrument that transfers title to real property to a trustee as security for a debt owed by the borrower to the lender, who is a beneficiary of the trust
It is obtained through actual notice, implied notice, and constructive notice
Money/documents are delivered to and held by a third party until terms and conditions of escrow agreement are satisfied
The escrow agent makes sure the transaction closes on conditions agreed to by parties because they are a stakeholder in property
one time liquidation of all assets (less asset exemptions), often NOT used by individuals,
Try to get them to use chapter 13 to get the most of the $$$ back to lenders, In this situation the assets become property of the “bankruptcy trustee” who pays off creditors (eliminating debts entirely, clean sweep)
business reorganization (airlines often use), APPROVED IF: creditors must receive at least as much as they would have had the debtor filed Ch.7,
now can be used by individuals as well (creates a “time-out” to settle debts & continue business)
paying future incomes against debt owed,
DO NOT need to liquidate assets,
often pay only a % of debts owed on the $$ (creates a wage earner’s payment plan)
What is a Ch. 11 proceeding under the Bankruptcy Code?
If a person goes through bankruptcy, are all of his or her assets taken away?
If a person goes through bankruptcy, are all of his or her debts discharged?
Is brokerage controlled primarily by state or federal law?
Listing in which the seller gives on broker authority to procure a buyer for property but also retains the right to procure a buyer for the property.
A seller’s agent puts the listing on the service, and get contacted by a buyer’s agent, and they split the commission. The Buyer’s agent can participate
Can a seller hire a real estate broker with a verbal agreement?
Members of National Association of Realtors
They are pledged to a code of ethics which was adopted in 1913 and standards of practice, which includes duties to clients and customers, the public, and other Realtors
How far can real estate brokers go when write real estate contracts? What limits are there against a broker’s delivery of legal advice to buyers or sellers?
It depends on the state. Most states say they can’t draft contracts or give legal advice. Most states permit broker to fill in the blanks, but it’s a fine line
Race, Color, National orientation, Religion, Sex, Familial status, and Disability
Why are real estate contracts typically bi-lateral executor contracts?
A counteroffer is where an offeree alters the terms of the offer and thus makes a proposal with new terms
An offeree who communicated a rejection of an offer and then decides to accept the offer has actually rejected the offer. The purported acceptance merely results in a counteroffer, which the original offeror is free to accept or reject.
An offeror may specify an expiration date for an offer. A purported acceptance after the specified date is ineffective.
When no date is specified, the offer lapses after a reasonable period of time, which is determined case by case
Offer is terminated if the offeror dies prior to the offeree’s acceptance. If accepted, thereby making the offer a contract, death will normally not excuse performance of one’s contractual obligations unless the performance involves personal services
When a developer is completing due dilligence on a potential site, they may add contingencies so that they may complete due diligence without the obligation to enter contract. For example, they could create a contingency clause stating that the contract be conditional on the change of zoning regulation or on the soil condition/type.
Buyer’s benefit: Making the contract conditional on the sale of the buyer’s house.
Seller’s benefit: Seller may make the contract conditional on confirmation of a job transfer by a present employer
A statute that necessitates that certain contracts, to be enforceable, must be supported by a written memorandum signed by the party against whom enforcement is sought. The statute of frauds intends to protect against fraud and perjury. Real Estate purchase contracts are governed by the statute of frauds.
Real Estate Settlement Procedures Act. Enacted in 1974 to ensure that buyers are informed of the amount and type of charges they will pay at settlement.
RESPA requires that the lender provide:
The loan applicant with the Special Information Booklet Buying Your Home within three business days of receipt of the loan application
PMI is required for loans greater that 80 percent LTV
FHA fully insures all loans that have met required underwriting criteria. All FHA loans require PMI.
An annual mortgage insurance premium (MIP) is required for all loans approved
MIP is subject to automatically cancellation when the LTV reaches 78 percent, providing the borrower has paid the premium for at least five years.
The insurance, however, will remain in force for the life of the loan
Annual percentage rate.
The relationship between the total finance charge and the amount to be financed in annual percentage terms.
Refers to a sale in which buyer agrees to purchase property subject to the lien of the mortgage.
A buyer who takes property “subject to” the mortgage has no personal obligation to pay off the debt if there is the a default and the property is foreclosed
The assumption agreement does not relieve the mortgagor/grantor of personal liability for the debt.
The mortgagor/grantor continues to be responsible to the mortgagee, but has the right to sue the buyer if the debt is not paid
In a novation, the original mortgagor is discharged and the old debt is extinguished.
In the assumption, the original mortgagor has a secondary liability even after the property is sold. However, novation relieves the seller of all liability for the debt upon sale
They are desirable for defendants of PRP
One defense against PRP is “did not know or have reason to know”.
PRPs are broadly defined to include past or present owners or operators of the facility, past or present generators if the waste disposed at the facility, and past or present transporters of waste to the facility, if the transporter selected that facility.
A PRP does not have to participate in, or even know about, the disposal of the hazardous waste. Merely being an owner or operator at the time the hazardous waste was deposited on the site qualifies one as a PRP
1. If the hazardous waste was placed on the site before the defendant PRP became the owner and the defendant did not know or have reason to know that the waste was on the site at the time of acquisition.
2. If the PRP is a government agency that obtained the land involuntarily (e.g., nonpayment of taxes).
3. If the accused PRP acquired the site through inheritance or bequest.
1. The original parties must intend that it run with the land,
2. There must be privity of estate (phrase used to express the successive relationship of the parties to the land) between the parties, and
3. The covenant must touch and concern the land
No, no conveyances and usually no mortgages, transfer of apartments governed by the UCC and not RE Law. The cooperative owner does not have a fee simple interest. Instead, the owner has shares of stock in the corporation that owns the land and building, along with a long-term proprietary lease.
The original investor takes out an 80% LTV for the building, and the remaining 20% is paid initially by the investor but is recouped by the issuance of stock to future tenants.
Future tenants pay their share of the 20 percent by purchasing stock when they join the co-op, additionally, each makes monthly payments that cover his or her share of the mortgage payment as well as operating expenses
A document required by state law, which must accompany and be recorded with the master deed for the condominium development
Includes: a description of each unit, description of any area that is subject to limited control, and any common areas and each apartments fractional interest in the entire condominium regime
One of the required documents, accompanies the Declaration and includes site plans for the condominium project and individual floor plans of the units (or dimensional drawings for parking places, etc.)
In addition, the plat will show any unit or building located or to be located on the property
Each unit owner has a tenancy in common, and thus equal right to, the land and buildings and other structures not constituting the interior of his individual unit
All units share in use
Common elements are the parts of the development property that are necessary or convenient for the residents of the condominium and are owned in common by all the condominium residents
Board of directors of the association make an assessment of all the unit owners. Usually a percentage based on the size of each unit
Simply manages them for the “true owners”; the true owners are the unit owners. The association is mandated by statute to administer the operation of the common elements of the condominium
1. Special Information Booklet, which contains consumer information regarding various real estate settlement services. (Required for purchase transactions only)
2. A Good Faith Estimate (GFE) of settlement costs, which lists the charges the buyer is likely to pay at settlement
3. Disclosure to the borrower whether the lender intends to service the loan or transfer it to another lender
Affiliated Business Arrangement (AfBA) Disclosure is required whenever a settlement service provider involved in a RESPA covered transaction refers the consumer to a provider with whom the referring party has an ownership or other beneficial interest.
HUD-1 upon request by the borrower, one day prior to actually settlement
Loan servicers must deliver to borrowers an Annual Escrow Statement once a year. The annual Escrow account statement summarizes all escrow account deposits and payments during the servicer's twelve-month computation year. It also notifies the borrower of any shortages or surpluses in the account and advises the borrower about the course of action being taken. A Servicing Transfer Statement is required if the loan servicer sells or assigns the servicing rights to a borrower's loan to another loan servicer.
Valid deed, Enforceable Contract, Delivery, Escrow Agent, Escrow Agreement, Conditions
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