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CHAPTER 41 REAL PROPERTY AND JOINT OWNERSHIP. DAVIDSON, KNOWLES & FORSYTHE Business Law: Cases and Principles in the Legal Environment (8 th Ed.). PROPERTY RIGHTS. Two distinctly different meanings for property: An object subject to ownership, a valuable asset.

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chapter 41 real property and joint ownership

CHAPTER 41REAL PROPERTY AND JOINT OWNERSHIP

DAVIDSON, KNOWLES & FORSYTHE Business Law: Cases and Principles in the Legal Environment (8th Ed.)

property rights
PROPERTY RIGHTS
  • Two distinctly different meanings for property:
    • An object subject to ownership, a valuable asset.
    • A group of rights and interests protected by law.
property rights3
PROPERTY RIGHTS
  • Rights associated with owning property:
    • To use property personally.
    • Give someone else the use of it.
    • Rent it to someone else.
    • Use property to secure loan.
property rights4
PROPERTY RIGHTS
  • Rights associated with owning property:
    • Right of support from adjoining lands.
    • Right to use adjacent body of water.
    • Limited rights to airspace.
    • Right to grow things.
    • Right to things attached to the land.
real property defined
REAL PROPERTY DEFINED
  • Definition of Real Property:
    • Land and things permanently attached to land, like buildings and roadways.
  • Definition of a Fixture:
    • Property at one time was movable and independent of real estate but became attached to it.
    • Examples are: water heaters, built-in ovens, installed dishwashers.
real property defined6
REAL PROPERTY DEFINED
  • The Nature of Plants:
    • Generally considered as real property.
    • UCC classifies plants based on who will remove them:
      • Seller removes plants: personal property.
      • Buyer removes plants: real property.
  • State Governance.
    • Property laws vary from state to state.
    • Laws of the state where property located govern land.
real property defined7
REAL PROPERTY DEFINED
  • Federal Regulation:
    • Title III of the Americans with Disabilities Act, regulates property open to the public to accommodate those with a disability.
    • Violators subject to damages and civil penalties.
acquisition of real property
ACQUISITION OF REAL PROPERTY
  • Original Occupancy:
    • Private ownership of land previously owned by the government.
    • May be accomplished by outright grants or homestead entry laws.
  • Voluntary Transfer by the Owner:
    • Transfer accomplished by written deed.
    • Deed is evidence used for real estate and indicates who owns the land.
    • Written document required by Statutes of Fraud.
acquisition of real property9
ACQUISITION OF REAL PROPERTY
  • Voluntary Transfer by the Owner.
    • Warranty deed: contains implied covenants to effect that a good and marketable title is being conveyed.
    • Grant deed: includes covenant that grantor has not conveyed property interest to anyone else and all the encumbrances are listed on the deed.
    • Quitclaim deed: grantor makes no promises about property interest.
acquisition of real property10
ACQUISITION OF REAL PROPERTY
  • Delivery of the Deed: Grantor delivers deed to grantee to complete transfer or uses a third person to deliver.
  • Recording of the Deed: Accomplished by filing the deed with the proper authority.
    • Not a legal prerequisite to transfer, but establishes grantee’s interest in the property.
acquisition of real property11
ACQUISITION OF REAL PROPERTY
  • Transfer by Will or Intestate Succession.
    • Person arranges to transfer real property by provisions in a valid will.
    • If person doesn’t have valid will pass by intestate succession statute of state where property is located.
    • Intestate statute determines who inherits property if valid will does not exist.
protection of real property
PROTECTION OF REAL PROPERTY
  • Real property subject to loss:
    • By operation of law.
    • Due to actions of government.
    • Due to actions of another person.
    • Or by act of nature.
  • Such losses are generally involuntary on part of the owner.
protection of real property13
PROTECTION OF REAL PROPERTY
  • Involuntary Transfers by Operation of Law.
    • Lender may foreclose if a person is in default on a mortgage.
    • Property may be attached to satisfy a legal judgment.
    • Failure to pay for labor or materials will create a mechanic’s liens.
protection of real property14
PROTECTION OF REAL PROPERTY
  • Involuntary Transfers by Government Action.
    • Government has right to take private land for public use.
    • This right is called eminent domain.
    • Government must have legitimate use and must pay owner a reasonable amount of money.
    • Government may enact zoning and planning laws that restrict how the property may be used.
protection of real property15
PROTECTION OF REAL PROPERTY
  • Private Restrictions on Land Use:
    • Restrictive covenants may limit how land can be used.
    • These are private agreements between landowners on the use of the property.
protection of real property16
PROTECTION OF REAL PROPERTY
  • Adverse Possession:
    • Occurs when someone tries to take title and possession of real estate from the owner.
    • If possession is of an adverse nature and continues for sufficient length of time, adverse possessor may take ownership from true owner.
protection of real property17
PROTECTION OF REAL PROPERTY
  • Adverse Possession.
    • For possession to be adverse, it must be actual, open, and notorious.
      • Actual: adverse possessor is actually on land and is using real estate in a reasonable manner.
      • Open: must be obvious that adverse possessor is on the property.
      • Notorious: must be adverse or hostile to the true owner.
    • Required holding period varies from state to state and is specified by state statute.
protection of real property18
PROTECTION OF REAL PROPERTY
  • Easements: Person entitled to use the land of another in a particular manner.
    • Not a right to own, but the right to use property in a particular manner.
  • Easements created by:
    • Express.
    • Prescription.
    • Contract.
    • Necessity.
    • Implication.
rental of real property
RENTAL OF REAL PROPERTY
  • Types of Tenancies:
    • Owner of real property may allow others to use their property.
    • Exchanging temporary possession of property for money or other consideration is a rental agreement.
    • Tenancies are governed by the rules of both contract law and real estate law.
rental of real property20
RENTAL OF REAL PROPERTY
  • Types of Tenancies:
    • Tenancy for a fixed term: automatically expires after a set period of time.
    • Periodic tenancy: starts at specific time and continues for successive periods until expired.
    • Tenancy at will: terminated by landlord or tenant at will.
    • Tenancy at sufferance: tenant entered into possession properly and with landlord’s permission but wrongfully remains on the property.
rental of real property21
RENTAL OF REAL PROPERTY
  • Rights and Duties of Tenants:
    • Tenants rents the right to exclusive possession and control of premises.
    • Landlord not entitled to enter the premises.
    • Tenant is allowed to remove trade fixtures, but if removal causes damages, tenant must repair.
    • Tenants do not have an obligation to make major improvements.
rental of real property22
RENTAL OF REAL PROPERTY
  • Rights and Duties of Tenants:
    • Warranty of Habitability: landlord impliedly promises that premises will be fit for living.
    • Constructive Eviction: owner does not protect interest of tenant and allows material interference with tenant’s enjoyment of premises.
    • Assignments and Subleases: allowed unless prohibited by lease. Transfer of the tenant’s entire interest in the lease (assignment); tenant transfers only part of interest and retains the balance (sublease).
rental of real property23
RENTAL OF REAL PROPERTY
  • Rights and Duties of Landlords:
    • Have right to retake possession of property at the end of the lease.
    • Rent: compensation landlord receives in exchange for granting tenant the right to use the property.
    • Damages by the Tenant: landlord has right to reimbursement from tenant for any damages caused by the tenant.
rental of real property24
RENTAL OF REAL PROPERTY
  • Rights and Duties of Landlords:
    • Security Deposits: money to be used after tenant has vacated the premises to repair any damage negligently/intentionally caused by tenant.
    • Duty to Protect a Tenant and His or Her Guests: landlord does not warrant premises are safe but does have duty to warn tenant of latent defects.
    • Rights After Abandonment by a Tenant: tenant wrongfully abandons premises during the term of the lease, landlord has several options.
legislative trends
LEGISLATIVE TRENDS
  • Discrimination in housing prohibited by federal statutes.
  • Amendment increased the amount of protection by providing methods for enforcement:
    • HUD can initiate lawsuit in federal court or before administrative law judge, if all parties agree.
    • Person subjected to discrimination can file suit in state or federal court.
    • U.S. attorney general can file suit if pattern or practice of discrimination exist.
legislative trends26
LEGISLATIVE TRENDS
  • To recover retaliatory eviction tenant must prove:
    • Complaint was bona fide, reasonable, and serious.
    • Did not create the problem.
    • Complaint was filed before the landlord began eviction proceedings.
    • Primary reason landlord began eviction proceedings was to retaliate against the tenant for filing complaint.
joint ownership of property
JOINT OWNERSHIP OF PROPERTY
  • Exist when two or more people have concurrent title to property.
  • Five forms of joint ownership recognized in property law.
  • Each of co-owners have undivided right to use the whole property.
  • Most forms of co-ownership created voluntarily or by someone else.
joint ownership of property28
JOINT OWNERSHIP OF PROPERTY
  • Primary remedies to resolve a dispute are:
    • To sell property and divide the proceeds.
    • To divide the property equitably and give each tenant a separate parcel.
  • Tenancy in Common:
    • Exists when two or more people have an undivided right to use the whole property.
    • Tenant may sell, assign, give, and in a valid will, pass his/her interest.
    • No valid will, then interest passes to heirs.
joint ownership of property29
JOINT OWNERSHIP OF PROPERTY
  • Joint Tenancy with Rights of Survivorship:
    • Each tenant has an equal interest in the property.
    • Interest passes to other tenants upon death of a tenant.
    • Will has no effect on this type of tenancy.
joint ownership of property30
JOINT OWNERSHIP OF PROPERTY
  • Tenancy by the Entireties:
    • Tenants must be husband and wife, who share the property.
    • Each tenant is a joint owner in the whole property.
    • One spouse dies, the survivor receives the property.
joint ownership of property31
JOINT OWNERSHIP OF PROPERTY
  • Community Property:
    • Each spouse owns one-half of property accumulated during marriage.
    • Separate property includes:
      • Property acquired before marriage
      • Inherited, received by gift, or by intestate succession
      • Purchased with separate funds
joint ownership of property32
JOINT OWNERSHIP OF PROPERTY
  • Distinguishing Among the Forms of Joint Ownership:
    • If tenants are married, most states presume community property or entireties property.
    • If state recognized neither form, it will presume a joint tenancy with the right of survivorship.
    • If tenants are not married, most states presume a tenancy in common.
joint ownership of property33
JOINT OWNERSHIP OF PROPERTY
  • Transfer on Death Ownership:
    • Transfer on death or pay on death ownership should be distinguished from forms of joint ownership.
    • Recipient does not have an interest in the asset during the owner’s life.
    • Recipient entitled to the assets at the owner’s death.