#1 Ownership and Property 1-2017 2 Up 10-4-2017

10/4/2017
#1 Ownership & Property

Michael Devlin
DREclass.com
Michael Devlin - DREclass.com 1
PROPERTY
(What is owned?)
Michael Devlin
DREclass.com
1
10/4/2017
Property
• The rights or interests which the owner has in the

thing he owns.
• The owner has a Bundle of Rights
• The right to possess, to use, to sell, to enter, to give
away, to lease, to encumber, to dispose, to exclude,
to do nothing.
• Subject to governmental powers (police power,
escheat, taxation, eminent domain) and the claims
of others (easements, leases, trust deeds, etc.).
Bundle of Rights
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10/4/2017
Property
• The owner may dispose of the whole bundle or any

one of these rights at any time.
• Holding these rights to the exclusion of others
defines ownership.
• All property is either personal property or real
property.
Property
Real Property Personal
Immovable Moveable
Affixed Apurtenant
Land (attached or (runs with
fixture) the land)
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10/4/2017
Personal Property
• A chose, chattel, personalty.

• Generally movable property.
1. Mortgages, trust deeds and stock in a real estate
syndicate.
2. A leasehold interest in real estate.
3. Personal property can be alienated, be hypothecated,
or can sometimes become real property.
• Personal property is transferred by a bill of sale signed by
the seller.
• A search of public records will NOT show title to personal
property, but will for real estate.
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10/4/2017
Real Property (Realty)
• Generally immovable (by law)

• It includes:
1. Land
2. Fixtures
3. Appurtenances
• A bearing wall would be real property.
• Not include leasehold estates (not leases).
Land
• Material of the earth including the soil, rock,

minerals, oil and other substances.
• Minerals are real property until they are mined at
which time they become personal property.
• Mineral rights are automatically transferred when
property is sold.
• Land may be divided vertically or horizontally.
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10/4/2017
Mineral rights are automatically transferred

when property is sold.
Land May Be Divided Vertically Or

Horizontally
Air Rights
Surface Rights
Sub-surface Rights
Horizontal
Vertical
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10/4/2017
The Owner of Land
• Legal Concept of Land: Owns the space beneath

the surface to the center of the earth and the
airspace above it.
• Has the right to lateral and subjacent support.
• May have water rights, which are usually not
listed in the county records, title insurance policy
or the deed.
• These rights are not absolute.
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10/4/2017
Lateral & Subjacent Support

• C owns the surface rights only,
because the mineral rights were
sold to B, many years ago.
• A may not dig a strip mine and
slice down the property line many
feet, because B's and C's land
would crumble at the edges and
fall into the strip mine.
• A has a duty of lateral support to B
and to C. Also, B cannot carelessly dig deep
mines and cause the surface to
cave in, because B owes the duty
of subjacent support to C.
Riparian Rights
• The right of a landowner to the reasonable and

appropriate use of water from a stream, river, brook
or watercourse touching their land.
• Riparian rights can be severed from the land by
condemnation or prescription.
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10/4/2017
More About Water
• Littoral Rights - The right of a landowner to the

reasonable and appropriate use of water from a
lake, sea or ocean touching their land.
• Appropriation - Only the state can give permission
to a nonriparian owner to take water from a river or
lake.
• Surface Waters - Owner may build a dike to protect
land from flood waters but landowner cannot dig a
trench to divert surface flood water form its natural
course to the vacant lot next door and will be liable
for any damage to the other property.
Water Rights
APPROPIATOR = right of non-
RIPARIAN = flowing stream river
riparian owner to take water
or watercourse
A A B
FLOOD WATERS = can DIKE,

cannot DIVERT
LAKE
LITTORAL = lake, sea or ocean
(tidal). Owns to mean high tide
mark
OCEAN
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10/4/2017
More About Water
• A water table denotes the depth where water is

found.
• Land is deeded to the mean high tide line in tidal
areas.
• Underground waters not in a defined channel are
called percolating waters.
• A flood hazard is classified as frequent when
flooding occurs, on average, more than once in a
10-year period (2 or more times in ten years).
Anything Affixed to the Land: Fixtures
• May be attached by roots (plants, vegetation and

trees), imbedded in it, permanently resting on it, or
permanently attached to a building which is resting
on it.
• Items of personal property which now are attached
(physically or legally) to the land and are now
considered real property (screens, Venetian blinds,
wall bed, wall to wall carpeting).
• They are incorporated into the land and now is
considered to be real property.
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10/4/2017
5 Tests of a Fixture
MARIA
•Method of attachment Size and cost
•Adaptability of Item of the item or
•Relationship of parties time of
attachment
•Intention of person attaching it
are not tests
•Agreement between parties for a fixture.
The Relationship Of The Parties
• Emblements (growing annual crops, industrial

crops, cultivated crops) are considered real property
between buyer and seller.
• Emblements are personal property between
landlord and tenant. The tenant farmer has the
right to harvest crops even after lease has expired.
• Industrial crops, when cut, mortgaged, or sold,
become personal property.
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10/4/2017
Trade Fixtures
• Articles of personal property that a tenant has

attached to real property which are necessary in a
trade or business.
• Business office equipment
• May usually be removed by the tenant, if removed
without damage to the property.
• They are not considered real property.
More About Fixtures
• Real property can become personal property and

vice versa (a fence which is removed by the owner
and placed on the ground is personal property).
• Affixed personal property should not be removed
without the written consent of all parties.
• Between landlord and tenant, fixtures are
presumed to belong to the landlord.
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10/4/2017
More About Fixtures
• Fixtures which are purchased and installed by an

owner, after the execution of a mortgage, are
subject to the lien of the mortgage.
• Water heaters which are installed in an apartment
building are fixtures.
• All other things being equal, in a dispute between a
buyer and a seller over a fixture, the courts tend to
favor the buyer.
Appurtenances
• Anything used with the land for its benefit.

Appurtenances “run with the land.”
• They do not need to be mentioned in the deed or
contract. No separate contract is needed to convey.
• They pass automatically to the new owner.
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10/4/2017
Appurtenances
• Easements.
• Stock in a mutual water company.
• It is appurtenant to a specific parcel.
• No separate sales contract is necessary.
• Covenants, conditions and restrictions.
• Minerals.
• Watercourses and streams.
• Dwellings, fences, etc.
Stock in a Mutual Water Company
REAL PROPERTY =
H2O
1. Land
Deed 2. Fixtures
3. Appurtenances
MWC
X STOCK
STOCK IN A MUTUAL
WATER COMPANY
• Immovable by law
• Always real property
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10/4/2017
ESTATES
(How long is it owned?)
Michael Devlin
DREclass.com
Estates
• Ownership rights and interests which are or could

become possessory (estates or fees).
• The degree, quantity, nature and extent of interest
which a person has in real property.
• There may be two or more estates in the same
property (fee simple and estate for years).
• Estates are divided into two types: Freehold estates
and less-than-freehold estates.
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10/4/2017
Estates In Real Property
Interests
Present
Future
(possessory)
Non
Freehold
Freehold Reversion Remainder
(Title)
(Leases)
Estate for Estate at Estate as

Fee Estate Life Estate Periodic
Years Will Sufferance
Defeasible
Absolute
Estates
Less Than
Freehold
Ownership
Freehold
Leases
Definite
Indefinite
Time Period
Life Fee
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10/4/2017
Estates In Real Estate
Freehold
Estates
Fee Simple Life Estate

(Estate of (Non-
Inheritance) inheritable)
Fee Simple Fee Simple

Absolute Defeasible
FREEHOLD ESTATE
• Endures for a period which is not fixed or specified.

• Fee Simple Estate (Fee, estate in fee, perpetual
estate, estate of inheritance, freehold).
• It is indefinite in duration and can be conveyed
during life or upon death.
• It may have encumbrances.
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10/4/2017
Fee Simple Absolute
• The owner holds title without any qualifications.

• It is the greatest degree of ownership.
• It is indefinite in duration.
• Clear Title - If the property is unencumbered,

owner has “clear title.”
Fee Simple Defeasible
• There are conditions or limitations on the use of the

property.
• If they are broken (condition subsequent), the owner's title
is defeated and the property will revert to the original
owner.
• Grantor gave title on the condition that no alcohol be sold
on the premises.
• A condition precedent in a deed is an event which
has to occur before the title (or other right) to the
property will actually be in the name of the party
receiving title.
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10/4/2017
Life Estate
• A freehold estate limited in duration to the life or

lives of one or more designated persons.
• It can be created by will or by deed, and it creates
more than one estate in the property.
Holder of Life Estate (life tenant):
1. Has the right of possession and use.

2. Cannot allow waste.
3. May sell, encumber or lease it for the duration of
the life estate.
• When the life estate ends, the lease or encumbrance is
terminated.
4. Has an estate in property.
5. Cannot will (devise) life estate if based on their
own life; can, if based on another's life.
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10/4/2017
Life Estate
•A deeds to B for B’s Life, then back to A.

• A = Grantor and Estate in Reversion
• B = Life Tenant & Measuring Life
•A deeds to B for the life of C, then
remainder to D.
• A = Grantor
• B = Life Tenant
• C = Measuring Life
• D = Estate in Remainder
More About Life Estates
• Estate in Reversion – Held by original grantor, if

property is to revert to grantor upon death of
designated person.
• Estate in Remainder – Held by third party, if estate
is to pass on upon death of designated person.
• If holder of life estate (life tenant) dies before the
designated person (not the life tenant), the
property goes to the heirs of the life tenant until the
death of the designated person.
20
10/4/2017
LESS-THAN-FREEHOLD ESTATE
(leasehold, chattel real)
Michael Devlin
DREclass.com
Less Than Freehold Estate
Leasehold
Estates
Estate For Periodic Estate At Estate At

Years Tenancy Will Sufferance
21
10/4/2017
Less Than Freehold Estates
• A sale-leaseback would cause an owner's fee simple

estate to become a less-than-freehold estate.
Fee Simple Estate
Seller Buyer
Lessee Lessor
Less-Than-Freehold
Types of Leasehold Estates
• Estate for Years (Lease) - Continues for a definite

period fixed in advance.
• No notice to terminate is required.
• May be for days, weeks, months, or years.
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10/4/2017
• Estate of Periodic Tenancy (month-to-month

rental)- Continues from period-to-period.
• Notice to terminate is required.
• Estate at Will - Continues until ended by unilateral
decision of lessor or lessee.
• Very little or no notice of termination is required.
(California courts have held that notice must be given.)
• Estate at Sufferance - Lessee (Holdover tenant) has

rightfully come into possession but retains
possession after the expiration of their term,
without the consent of the landlord.
• Acceptance of rent by landlord constitutes consent which
would make it an estate at will or a periodic tenancy.
• Tenant holding over after one year lease expired has
estate at sufferance.
23
10/4/2017
Less Than Free Hold Estates
Type Definition Notice to

terminate?
Estate for Fixed period of time No
years
Periodic Period to period Yes
tenancy
Estate at will Terminated at will Yes, by landlord
Estate at Holdover tenant Terminated by legal

sufferance action
Types of Leases
• Gross Lease - Landlord pays taxes, insurance and

maintenance.
• A gross lease is least likely to be found in retail spaces.
• Net Lease- Lessee pays variable expenses such as
taxes, insurance and maintenance.
• Lessor receives fixed income.
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10/4/2017
Types of Leases
• Percentage Lease - Lessee pays rent based on

percentage of gross receipts often with an
established minimum.
• Typical rates are: storage garage and parking lot, 50%;
chain grocery store, 1%.
• Graduated Lease (graded lease, step-up lease)
Lessee pays a varying rent determined by an
escalator clause. Commercial leases often use the
Consumer Price Index (CPI).
Types of Leases
• Housing costs are included in the Consumer Price

Index because for most families they are a major
expenditure.
• Sandwich Lease - Leasehold interest which lies
between the primary and the operating lease.
• Found in a sublease.
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10/4/2017
Parties: The Lessee (tenant)
• Has an interest in real property.

• That interest is a form of personal property, and the laws
governing personal property apply.
• Leasehold estates in real property are personal property.
• Owns the less-than-freehold estate. Has a leasehold
interest.
• Has the right to exclusive possession.
• A lease transfers temporary possession but not ownership
of the real property.
Parties: The Lessee (tenant)
• Signing a lease is similar to a man hiring personal

property.
• Cannot commit "waste."
• The tenant of an apartment and the owner-
occupant of a condominium would both have an
estate in property.
• A tenant who knows of or suspects that a release of
a hazardous substance has occurred on or beneath
the property must notify the owner or lessor in
writing.
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10/4/2017
Parties: The Lessor (landlord)
• Holds the basic title during the existence of the

lease.
• Conveys a portion of their estate for a term less
than their own.
• Holds a “reversionary interest,” an estate in
reversion.
• The lessor's interest in a lease is personal property.
Parties: The Lessor (landlord)
• A residential tenant has a duty to care for and

maintain a leased premises. This duty includes:
• Disposing of all rubbish, garbage and waste in a
sanitary manner.
• Allowing no person who is on the premises with the
tenant’s permission to intentionally damage any part of
the premises or the facilities, equipment or
appurtenances.
• Occupying and using the premises for the purpose it is
intended to be used.
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10/4/2017
Creation of Lease
No particular language required, so long as intention to rent

property appears. Included must be:
1. The names of the parties.
2. The description of the property.
3. Amount of rent. (It is not a requirement that the rent be
paid in advance.)
4. Length of time.
• Max lease on agricultural/horticultural lands – 51 years.
• Max lease on urban property – 99 years.
5. Agreement to let and take.
Other requirements
• Must be in writing, if longer than one year. (See

Statute of Frauds.)
• If in writing, must be signed by the lessor.
• A lessee taking possession and paying rent binds himself
to the lease.
• A landlord is required to provide a copy of the written
lease to the tenant within 15 calendar days.
• When a lessor sells property and leaves it, the lease is
binding upon the new owner.
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10/4/2017
Tenant Has Right to Terminate Lease
Constructive eviction.
• Landlord breaks terms of contract (fails to repair).
• Tenant must notify landlord about needed repairs and
allow landlord reasonable time to repair.
• Tenant may terminate lease or spend up to a month's rent
to make the needed repair. (No more than twice every 12
months.)
• If tenant decides to terminate lease, tenant does not
need to give 30 days notice.
Tenant Has Right to Terminate Lease
• Landlord evicts tenant for breach of contract (actual

eviction).
• Property is condemned by eminent domain.
• Landlord threatens expulsion.
• Extensive and unwarranted alterations are made to
the property by the landlord.
NOTE: Sale of property does not usually terminate a

lease.
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10/4/2017
Remedies of Landlord
If tenant fails to pay rent, landlord may:

• Consider the lease still in effect and sue for each
installment as it becomes due (cannot immediately
sue for entire balance); or
• Consider the lease terminated, retake possession if
abandoned and relet the premises to others. If he
sustains a loss, he may sue for damages; or
Remedies of Landlord
• Evict the tenant by an unlawful detainer action

(court suit).
• Serve 3-day notice to pay or quit.
• Institute unlawful detainer action (used by offended
lessors).
• Court orders sheriff to evict tenant.
• If rent is past due, landlord can file unlawful detainer
action to evict tenant.
• If a person occupies a property after unlawfully
entering it, he would be a trespasser and removed
by the sheriff. (Not by an unlawful detainer action.)
30
10/4/2017
Quiet Enjoyment and Possession
• Tenant has the right to quiet enjoyment and

possession of the property for the purpose for
which it was leased.
• If it is residential property, the landlord must keep it
warm and habitable.
• Eviction by the landlord or by another person who has
paramount title is a breach of their covenant.
• Landlord cannot refuse to rent to a tenant with a
waterbed if tenant provides insurance and meets other
conditions.
Terms Used
• Surrender - Termination of the lease by mutual

agreement of the parties.
• Abandonment – Tenant leaves voluntarily.
• Rent - Consideration for the use of a property. It is
due at the end of the term, unless the contract
states otherwise.
• The rent of a warehouse is quoted by the square foot.
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10/4/2017
Transfer of Interest by Tenant
Tenant may transfer interest, unless original lease

prohibits it, in which case, contract transferring interest
is voidable by landlord.
• Assignment - Tenant (assignor) conveys all interest in
the property (time, space and rights) to a new tenant
(assignee).
• Lessee may be responsible for both rent and maintenance.
• Sublease - Tenant conveys part of interest in the
property (may be time, space or rights) to a new tenant
(sublessee).
• The original tenant is still liable for the rent.
• Transfers possession, not ownership.
Assignment
• Transfer of all interest.
Assignor Assignee
Possession Lessee Possession New tenant
Lessor
 
A LEASE B LEASE C
Rent
Rent
Assignment
Agreement
32
10/4/2017
Sublease
• Transfer of part of interest.
Sublessor Subleasee
Lessor Possession Lessee Possession
New tenant

A LEASE B SUBLEASE C
Rent
Rent
Security Deposits
• Including last month's rent paid in advance, on

residential property are limited by the term of the
rental and whether or not it is furnished.
• They cannot exceed 2 months' rent on unfurnished
residential property or 3 months' rent on furnished
residential property.
33
10/4/2017
Security Deposits
• They must be accounted for and refunds made

within 21 calendar days after tenant moves out.
• Security deposits are refundable if the tenant
complies with the terms of the lease.
• In addition to cleaning the unit when the tenant
moves out, the landlord can use a residential tenant’s
security deposit for unpaid rent.
More About Leases
• An attornment agreement in a lease provides for

the continuation of the tenant's rights in the event
of a foreclosure.
• License - The personal, revocable and unassignable
permission to do one or more acts on the land of
another (hotel room, parking lot, theater ticket).
• It may be oral.
• Unlike a lease, a license does not include rental payments,
the right to exclude others from entry, or a termination
date.
34
10/4/2017
TITLE VESTINGS
(How is it owned?)
Michael Devlin
DREclass.com
Title Vestings
• Tenancy is the mode or method of holding title.

Real property may be owned in separate or
concurrent estates.
• SEPARATE - Ownership in severalty. Sole
ownership.
• Ownership by one person. Interest has been
severed, cut off, from everyone else. (A city, which
is a corporation [a legal person], holds title to parks,
playgrounds, and public buildings in severalty.)
35
10/4/2017
Concurrent Estates
• Simultaneous ownership by two or more persons;

each has an undivided interest which can be
severed by a partition action.
• An attorney, not a broker, should advise on how to
take title (giving legal or tax advice).
• NOTE: A brother and sister could take title to a fee
simple estate in joint tenancy or tenancy in
common.
Joint Tenancy
• Any two or more persons may hold title to real or

personal property as joint tenants.
• They are joint and equal owners of an undivided
interest in property. It is a single estate; there is one
title.
• The most distinguishing characteristic of joint
tenancy is the Right of Survivorship.
• Upon the death of one co-owner, that interest terminates
and the title vests in the other co-owner(s) automatically.
36
10/4/2017
Creation of Joint Tenancy
To create a joint tenancy, there must be the four

unities of time, title, interest and possession.
1. Time - All owners acquire title at the same time.
2. Title - All owners are named in one instrument
(deed, will).
3. Interest - Each owner's interest and rights are
equal.
4. Possession - All owners have equal possessory
rights. An owner cannot force another owner to
pay rent for using the property.
Joint Tenancy
• Interest cannot be willed.

• Property is not controlled by probate.
• Surviving joint tenant is not liable to creditors of
the deceased who hold unforeclosed liens.
• Joint tenant may sell share without consent of other
joint tenants.
• The new owner would probably be a tenant in common.
37
10/4/2017
Joint Tenancy
• Corporations cannot hold title in joint tenancy with

a natural person because of the corporation's
perpetual existence.
• Owner(s), including husband and wife, may deed
property to themselves or themselves and others as
joint tenants.
• A joint tenancy can be severed by voluntary transfer
or operation of law, but not by borrowing against
one's interest.
NOTE: “et ux” means “and wife.” “et al” means “and others.”
38
10/4/2017
Tenancy in Common
• Two or more persons are owners of an undivided interest in

property.
• Each owns no specific part.
• Only one instrument is necessary.
Tenancy in Common
Each owner:
• Has a right of possession of all of the property and
does not need to pay rent to the other owners.
• This is the only unity required.
• Any rent collected from others is divided among the
owners.
• May hold an unequal ownership interest.
39
10/4/2017
Tenancy in Common
Each owner:
• May sell, convey or encumber their interest
separately without the consent of the other
owners.
• Must pay their share of the expenses.
• Leaves their interest to their heirs, if any.
• Has a separate title to an undivided interest.
40
10/4/2017
Joint Tenancy & Tenancy in Common

• Joint Tenancy has 4 • Tenancy in Common has
unities. one unity.
•Time •Possession
•Title
•Interest
•Possession
Community Property
41
10/4/2017
Community Property
• All property acquired by husband and/or wife

during marriage, other than separate property. Each
spouse owns 50%.
• Separate property is property acquired:
1. Before marriage.
2. During marriage, by gift or inheritance.
3. As damages for personal injury, paid by one
spouse to the other spouse.
42
10/4/2017
Community Property
• Husband or wife may buy real or personal property

without the other's consent.
• If husband or wife buys encumbered real property
without the other's consent it is voidable within one
year by the injured spouse.
Community Property
• Husband or wife may sell community personal

property (except home furnishings and clothing
“necessities”) without the other's consent.
• Husband or wife may not give away community
personal property without the other's written
consent.
43
10/4/2017
Community Property
• If husband or wife sells community real property

without the other's consent, the injured spouse has
one year to void the sale.
• It is unenforceable during that year.
• Husband or wife may list, or lease for one year or
less, community real property, without the other's
consent.
• If listed, the community property assets are liable for the
commission.
Community Property
• Husband or wife may dispose of their or her 1/2

interest by will.
• Failing to do so, the surviving spouse receives all
interest by intestate succession, and holds title in
severalty.
• If the deed names the owners as "husband and
wife,” the vesting is assumed to be community
property.
44
10/4/2017
Community Property
• One to list, Two to sell.

• Without other spouses consent,
cannot
•Sell
•Encumber
•Lease for more than one
year
Tenancy In Joint Community

Common Tenancy Property
Parties Husband/Wife
2 or more 2 or more
natural or legal natural Domestic
Partners
Possession Equal Equal Equal
Interests Equal or Unequal Equal Equal

Undivided
Title Separate Same Time In the

Same Title community
Death Will or Probate Right of Will/Probate

Survivorship Survivorship
45
10/4/2017
More About Tenancy
• Tenancy in Partnership - Property held by 2 or more

persons, as partners, for partnership purposes.
• Tenancy by the Entirety - A vesting for husband and
wife, but not used in California.
46

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#1 Ownership and Property 1-2017 2 Up 10-4-2017

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10/4/2017

#1 Ownership & Property

Michael Devlin - DREclass.com 1

Michael Devlin - DREclass.com 2

• The rights or interests which the owner has in the

Michael Devlin - DREclass.com 3

Michael Devlin - DREclass.com 4

• The owner may dispose of the whole bundle or any

Michael Devlin - DREclass.com 5

• A chose, chattel, personalty.

Michael Devlin - DREclass.com 8

Real Property (Realty)

• Generally immovable (by law)

Michael Devlin - DREclass.com 9

• Material of the earth including the soil, rock,

Michael Devlin - DREclass.com 10

Mineral rights are automatically transferred

Michael Devlin - DREclass.com 11

Land May Be Divided Vertically Or

Michael Devlin - DREclass.com 12

The Owner of Land

• Legal Concept of Land: Owns the space beneath

Michael Devlin - DREclass.com 13

Michael Devlin - DREclass.com 14

Lateral & Subjacent Support

Michael Devlin - DREclass.com 15

• The right of a landowner to the reasonable and

Michael Devlin - DREclass.com 16

More About Water

• Littoral Rights - The right of a landowner to the

Michael Devlin - DREclass.com 17

FLOOD WATERS = can DIKE,

More About Water

• A water table denotes the depth where water is

Michael Devlin - DREclass.com 19

Anything Affixed to the Land: Fixtures

• May be attached by roots (plants, vegetation and

Michael Devlin - DREclass.com 20

Michael Devlin - DREclass.com 21

The Relationship Of The Parties

• Emblements (growing annual crops, industrial

Michael Devlin - DREclass.com 22

• Articles of personal property that a tenant has

Michael Devlin - DREclass.com 23

More About Fixtures

• Real property can become personal property and

Michael Devlin - DREclass.com 24

More About Fixtures

• Fixtures which are purchased and installed by an

Michael Devlin - DREclass.com 25

• Anything used with the land for its benefit.

Michael Devlin - DREclass.com 26

Michael Devlin - DREclass.com 27

Stock in a Mutual Water Company

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• Ownership rights and interests which are or could

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Estates In Real Property

Estate for Estate at Estate as

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Estates In Real Estate