Atlas Mortgage - Real Estate In-Depth.pdf

(6789 KB) Pobierz
Real Estate In Depth
Real Estate In Depth
The "Real Estate In-Depth" section reviews different elements and issues about real estate. This section
contains the following articles:
1. Introduction to Real Estate : Land; Real Estate; Real Property
2. All About Air Rights : Condominium; Railroads; Airplane over-flights
3. All About Deeds : Types of deeds; Requirements for a valid deed
4. All About Easements : Classification of easements; Creating & Ending Easements
5. All About Fixtures : Regular fixtures; Tenant fixtures
6. What You Should Know About Foreclosures : History of mortgage foreclosures; Types of
foreclosures; Foreclosure process; Relief against foreclosure
7. All About Leases : Leasehold estates; Types of leases; Elements of a lease
8. Lease Requirements and Elements : Basic lease elements; Tenant responsibilities; Landlord
responsibilities; Condition of property; Termination of lease
12. Closings and Transaction : The closing process; Pre-closing legal issues; Real estate closings;
Mortgage closings; Closing in escrow; Post-closing issues
13. Condominiums : Elements of the Condominium; Condominium Loan Requirement; Condominium
Conversion & Construction
14. Cooperatives :
16. Eminent Domain : Requirements; Procedure
17. Marketable Title : Seller's true ownership; Liens; Easements; Building and zoning restrictions; Leases
and tenants; Encroachments; Title insurance coverage
18. Mortgage Deed and Promissory Note : Dissecting the Mortgage Deed; Analyzing the Promissory Note
20. Real Estate Contract : Contract basics; Elements of the real estate contract; Alternative types of real
estate contracts; Buyer Issues to Consider; Seller Issues to Consider; Remedies
21. Real Estate Fraud : Misrepresentation; Conduct; Non-disclosure
22. Real Estate Taxes and Special Assessments : Types; Process; Enforcement; Challenging
assessments
23. Real Estate Trusts : Living and testamentary trusts; Land trusts; Real estate investment trusts (REIT)
25. Recording : Why recording is necessary; The recording process; Chronological order
28. Subsurface Rights : Mineral Rights; Oil and gas
29. Surveys and Legal Description : Metes and bounds; Government survey system; Plat of survey
30. Title and Estates in Land : Freehold estates (fee simple and life estates); Leasehold estates (estate for
years, periodic estate, estate at will and estate at sufferance)
31. Title and Title Insurance : Abstracts and title examination; Title certification; Torrens system; Title
insurance
182653971.001.png
We hope that you've found our Mortgage and Real Estate Resource helpful and informative. We welcome all
comments, critiques and suggestions; please send emails to atlas@atlastitle.net . Remember that whether your
are buying a home or an office building, you are investing in real estate. As with all investments, the best
investors are those who can gather the most knowledge, tools and resources. Regardless of whether you use
our lending services, please spread the word about our resource center to anyone you know who may benefit
from our site.
Assistance from Atlas Mortgage
If you would like to obtain a mortgage loan preapproval to determine your optimum loan qualification, please
complete the Preapproval Application form. We will obtain a preliminary approval for you, based on the
information you provide in the application. There are no obligations on your part; you may decide to cancel at
any time until the closing , and even until three days after the closing with refinances of owner-occupied
182653971.002.png
Introduction to Real Estate
Any understanding of the legal issues involved with real estate and mortgages must begin with the land and the
other key elements of real estate, as well as how real estate is owned.
Real estate in the United States follows the allodial system of property ownership. This system recognizes the
right of individuals to completely and fully own a parcel of property. This is no small thing, especially when this
system is compared to other systems:
l
Feudal system. All the lands are owned by the sovereign ruler, who then gives certain ownership or
usage rights to his or her subjects, who then may allow peasants and other workers to lease land for
farming or other use. This was the predominant system in Europe for much of the Common Era.
Communist system. Similar to the feudal system, all the lands are owned by the state-or the "people."
Use of land is dictated by the state, and no individual can ever fully own any property.
l Allodial system. The system used in the United States and much of the developed and developing
democratic world.
l
In American-English legal theory, it is important to understand the difference between these elements of land,
real property, real estate and associated rights, such as air, mineral and water rights. This chapter will discuss
these elements in three categories:
1. Land. The ground surface and the natural elements below and above it.
2. Real Estate. Land and any improvements on it.
3. Real Property. Real estate and the different "rights" involved with it.
Most people treat the terms land, real estate and real property as interchangeable. They are not. Anyone who
aspires to invest in real estate or work in the real estate industry must understand the key distinctions between
these terms. Fortunately, they are not difficult concepts to grasp.
Land
In the real estate industry, the legal concept of land encompasses more than just the ground that we see or that
comprises a parcel of property. Land includes everything natural beneath and above the surface. The operative
term here is "natural"; but the concept of land need not be completely tangible.
It may be helpful to view land as an inverted pyramid extending from the center of the earth and projecting
outwards into the atmosphere. Land includes, but is not necessarily limited to the following elements:
Surface ground. This is what most people think of when they hear the term "land," but it's obviously
much more.
l Subsurface soil and water. Landowners have traditionally owned the water underneath their land
surface and can access it at will. However, many local governments and new regulations have begun to
exercise control over aquifers and other subsurface water sources.
l Minerals, oil and gas. This is an extension of subsurface land rights. These elements are prime
l
182653971.003.png
commodities and can give the property owner additional income-if that owner still controls the rights to
those subsurface elements. For more information, see the "Subsurface Rights" article.
Airspace above the ground. Believe it or not, air space is part of real estate. For example, your
neighbor cannot build an overhanging bay window that extends into your property's air space. An
increasingly more common discussion of air space involve condominiums , in which the condo owner
often only owns the air space within their units—but not the walls, floors or ceilings. For more
information, see the "Air Rights" article.
l Permanently attached natural elements (trees, boulders and vegetation). The law does differentiate
between permanent vegetation and annual crops. Trees, grass and perennials are called "fructus
naturales" and are considered part of larger real estate. Planted annuals and crops are called "fructus
industrials" and are considered personal property. For more information, see the "All About Fixtures"
article.
The concept of personal property , as opposed to real property, will discussed later in this article. As you can see,
however, the land can contain both real property and personal property. Ownership of land can also be further
divided into different facets-which allow for separate uses and manners of possession.
Example: Ownership of Land
Sally owns a ranch. She learns that there may be precious minerals under
her land. She would like to take advantage of this fact, without jeopardizing
her ranch operations. So, Sally sells the rights to the mineral under her land
without surrendering her land. The mining company that purchases the
mineral rights is allowed to mine for it, within strict limits, while Sally is free to
continue with her ranch operations.
Real Estate
The concept of real estate begins with land, but typically includes more. Real estate also includes all the artificial
improvements to land, such as buildings, sewers, pavements, fences and wells.
When discussing real estate, we are talking about the entire property as a physical entity—soil, minerals, air
space and all improvements. The real estate industry sees all of these as commodities that can be quantified,
bought, sold and transferred.
In short, the term "real estate" starts with the land, but then includes all improvements made to that land.
Real Property
The term "real property" normally applies to the legal concept of property ownership. In our system of property
law, there are different elements to ownership, especially with ownership of real estate.
When using the term real property, you should try to avoid thinking of the tangible, physical elements of real
estate. Instead, you should view the term "real property" as a concept or idea. The key issue here is ownership,
l
and the rights involved with ownership.
In this sense, what you own is not as important as how you own it. These elements or facets of property
ownership are often grouped into a "bundle of rights" that include the following five:
Possession. This facet of ownership pertains to the right to occupy the property. For example, a
landlord gives the renter the right to temporarily possess, enjoy and exclude the property, but the
landlord keeps the right to control its usage and the right to dispose the property to another person.
l Enjoyment. This facet pertains to the right to possess the property without interference.
l Control. This facet pertains to the owner's right to determine how the property may be used.
l Disposition. This facet pertains to the owner's right to give, sell or transfer the property (either in whole
or in separate "rights") to another individual. This right to dispose is one of the cornerstone of the real
estate market.
l Exclusion. This facet pertains to the owner's right to restrict other individuals from accessing or using
the owner's property. Trespassing laws arise from this right.
When many people talk about property rights, it takes on an almost majestic set of rights. This goes hand in hand
with American principles (or myths) about self-reliance, privacy rights and individualism. We may find an
historical basis for this view of property rights in monarchial Europe, where landowners were essentially royalty
and had near-absolute power over their dominions, no matter how small.
Even in America's allodial system, however, ownership is never infinite or unlimited. The government reserves
the right to "take" any or all of the ownership elements from any private individual. However, the government
must justify any such "taking" as being for the public good and the owner must be compensated the fair market
value of the property taken. As long as the government meets these two conditions and follows due process, the
property owner cannot prevent such a taking.
For example, when the state, county or city must build a new highway or street, they will need to buy the homes
and properties in the path of the proposed road through a taking.
Another, more limited example, would be if the local county wanted to build a river-walk and took an easement
through the property of the riverfront owners. The property technically still belongs to the property owner, but the
easement gives the government full usage and control of the river's shore.
For more information about the government's ability to limit or take real property from their private owners, see
the "Eminent Domain" article.
Real vs. Personal Property
Most physical items can normally be classified into either real or personal property. This is an important
distinction in the real estate industry and can translate into serious money.
The quick way to understand the difference between the two types of properties is to think of personal property,
as everything not permanently attached to the real estate.
As noted above, real estate is land (with its included rights) and anything permanently attached to that land.
Personal property is legally called "chattel," most probably because defining the concept of personal property
became a legal need when cattle became big business.
l Attachment. The permanency of an item's attachment to the real estate determines whether it is real or
l

Plik z chomika:

Inne pliki z tego folderu:

Inne foldery tego chomika:

Zgłoś jeśli naruszono regulamin