Professional Documents
Culture Documents
Interests in
Real Property
Overview
Overview
• Chapter 10 discusses:
– The different forms of deeds
– The purpose of the public records system and
the significance of a marketable title
– The purpose of title insurance
– Alternate ways people can take ownership of
real property
– Freehold and leasehold estates
– Various types of liens and easements and their
impact on property
Key Terms
• Abstractor • Cooperative
• Acknowledgment • Deed
• Adverse • Dower
Possession • Easement
• Chain of Title • Encumbrance
• Clouds on the Title • Estate
• Co-ownership • Fee Simple
• Condominium
Key Terms
Deed
Title
Valid Deed
• Seller—grantor
• Buyer—grantee
• For a deed to be valid in most states, it
must be in writing and contain necessary
information on its face
Warranty Deeds
Grantor Guarantees
1. Covenant of seizin
2. Covenant against encumbrances
3. Covenant of quiet enjoyment
4. Covenant of warranty forever
Quitclaim Deeds
Recording
Chain of Title
• A clear and unbroken chronological record of the
ownership of a specific piece of property
– Each owner is linked to the previous owner and the
subsequent owner through deeds
– Forming a chain of title as disclosed in the public
records
• A gap in the chain of title creates uncertainty, which is
referred to as a cloud on the title, AKA color of title
Root of Title
• Marketable record title
• A deed (or other document of transfer) most
recently recorded going back to the period of
time required by the state
• When an owner establishes a marketable
record title, any claims that arose before the
root of title are extinguished, unless they’ve
been preserved
Title Insurance
Abstract of Title
• Abstract of Title
– A title search
– Performed by title abstractor or title company
– Starts with the chain of title
– Results in the creation of an abstract of title
• An abstractor will examine:
– Records of deeds
– Taxes and special assessments
– Liens and judgments
– Mortgages
– Other encumbrances that have ever affected the
property, even if the encumbrance has been removed or
satisfied
• Letter of opinion
Mortgage Lending P&P 3rd Edition/Updated Nov. 6, 2009 33
Chapter 10: Interests in Real
Property
Forms of Ownership
• Ownership or title to property is created by:
• Deed, which is a document that transfers ownership
of real property
• Devise, which is an operation of law when real
property is transferred through a will
• Escheat, which is an operation of law when real
property reverts to the state after a person dies
without leaving a valid will and without heirs.
• Ownership may be:
• In severalty (sole ownership by one “person”)
• Co-ownership
Undivided Interest
• Gives each co-owner the right to possession of the
whole property, not just part of it
• Three forms of co-ownership:
– Tenancy in common
– Joint tenancy
– Tenancy by the entirety.
• Key distinguishing factor is the method in which the
ownership interest is passed
• Right of survivorship means that the property
passes automatically to other co-owners when one
co-owner dies
Unities
• The presence of several conditions, known as
unities, also defines the form of co-ownership:
– Unity of Possession
– Unity of Interest
– Unity of Time
– Unity of Title
• Most states have specific laws that define the
forms of co-ownership and how property may
be held or conveyed. Make sure that you
understand the laws in the states in which you
conduct business!
Tenancy in Common
Joint Tenancy
Adverse Possession
Freehold Estate
• A possessory interest of uncertain duration
– It may end, but no one knows when
• Some events that will end a freehold estate include:
– The transfer of the property to someone else
– The death of the owner
– Foreclosure
– Confiscation for back taxes
• Different types of freehold estates
– Fee simple
– Qualified fee
– Fee on condition
– Life estates
Life Estate
• A freehold estate that lasts only as long as a
specified person, the “measuring life,” lives
• The holder of a life estate is called a life tenant
• A life estate may also be based on another
person’s life
• A life tenant may not commit an act of waste
• Life tenant has restricted rights of use that are
transferred with the life estate
Leasehold Estate
Actual Eviction
Ownership by Organizations
Sole Proprietorship
Partnership
General Partnership
Limited Partnership
Corporation
Corporation
Condominiums
• Physically and legally combine individual ownership
with co-ownership
• Fee simple interest in individual unit
• Undivided interest in common areas
• May be residential or commercial
• Property taxes levied on individual units
• Owner’s association fees cover maintenance of
common areas; levied against all unit owners
• Creditor can claim lien against individual unit in the
event of foreclosure
• Individual unit may be conveyed, and also transfers
undivided interest in common areas
Cooperatives (Co-ops)
Townhome Properties
• Each co-owner has a separate fee simple interest in:
– An individual unit (could share common walls)
– Its roof and basement
– The land directly beneath the unit (may extend to a
small patio or lawn outside of the unit)
• Each co-owner has an undivided interest in the common
areas of the property
• Often used in PUDs and condominium developments
• Owners generally must:
– Adhere to the declarations and by laws set forth by
the development association
– Pay regular assessments for the maintenance of
common areas and other association benefits
Easements
Easements
• Appurtenances—rights that go with real
property
• Easement appurtenant—a right that goes
with land ownership
• A recorded easement gives notice to third
parties
• When title is transferred, the new owner
owns the easement or takes title subject to
the burden of the easement
Easements in Gross
• Involves a specific parcel of land and benefits
a person or company (called the dominant
tenant), not a piece of land
– The burdened land is the servient
tenement
• Most commonly held by the government and
public utilities for commercial purposes
License
Easements
Terminating Easements
• Release
• Merger
• Abandonment
• Prescription
• Failure or Expiration of Purpose
Encroachment or Encumbrance
Liens
• Liens against property don’t prevent its transfer
– But the liens still exist
• Buyer takes the property subject to the liens
• A lien can be:
– General—it attaches to all property, personal
and real, owned in the county by the debtor, or
– Specific—it attaches only to specific property
• Liens may be either voluntary or involuntary
Default
Default
Deficiency Judgment
Transfers
• A mortgage does not prevent the owner
from selling
– The owner of mortgaged real estate may sell
real estate, subject to an existing
mortgage
– Buyer could assume mortgage
• The bank must approve the transfer of
responsibility
• Bank could enforce an acceleration
clause or due on sale clause in the
original mortgage
Liens
Tax Liens
• Liens on property to secure the payment of
taxes
• Property taxes create an involuntary, specific
lien against real estate
• Unpaid federal income taxes also create
liens on real property
• Another type of tax lien is an estate tax lien
• An estate tax is an involuntary, general lien
Judgment Liens
Attachment Liens
Lis Pendens
Lien Priority
• Not unusual to have several liens against real
estate at the same time
• Generally, liens are paid in the order they are
attached to the land, with a few exceptions:
– A property tax lien, is superior to all
other liens on the property
Subordination Agreement
Homestead Laws
Summary
1. A deed is an instrument that conveys ownership in
real property. Title refers to holding the rights
conveyed in a transfer. Deed is evidence of title; title is
actual ownership of rights. Title is not a document, but
rather a concept or theory of ownership. Seller is the
grantor; buyer is the grantee. Valid deeds must be
written and have competent grantor’s signature,
identifiable grantee, words of conveyance, description
of property, consideration, acknowledgment and
delivery, and acceptance.
Summary
Summary
Summary
Summary
5. Ownership can be held in severalty (one person), or co-
owned by two or more persons with each having an undivided
interest. Undivided interest means each co-owner has a right
to possession of the whole property, not just part of it. Forms of
co-ownership are tenancy in common, joint tenancy, or
tenancy by the entirety. Title to real property can be held by
associations of individuals: Corporations, general and limited
partnerships. Condominium units are owned in severalty, and
the owner has an undivided interest in the common areas.
Cooperatives are owned by a corporation, with each
shareholder having a proprietary lease for one unit. Adverse
possession is acquiring title to someone else’s real property
by possession of it for a specified number of years.
Summary
Summary
7. Easements are a non-possessory right to use another’s
land for a certain purpose. They’re appurtenant or in
gross; and created by express grant, reservation,
implication, necessity, or prescription. Liens are also
non-possessory interests, which are financial
encumbrances. Lien holders can foreclose on property
in the event of default, forcing it to be sold so the unpaid
debt can be paid from the sale proceeds. The most
common liens are mortgages, tax liens, mechanics’
liens, and judgment liens. Usually liens are prioritized
(and thus paid out in foreclosure) in the order they are
recorded, but property tax liens always have priority.
Later recorded liens may not be paid if no money
remains after sale. Lis pendens is a recorded notice
stating that a lawsuit is pending, which may affect title to
property.
Mortgage Lending P&P 3rd Edition/Updated Nov. 6, 2009 98
Chapter 10: Interests in Real
Property
Quiz
1. A deed is
a. actual ownership of real estate rights.
b. better than title.
c. a document that must be recorded.
d. evidence of title.
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