sabato 24 novembre 2007

Lesson 15

24/11/07 Lesson 15

From ILE text book:

pp. 134-136 Introduction to property law ex. 1-4
- Contrasting ideas
- Language use: classification

Listening1 : Easements

Translate in Italian the terms in bold below:

fee tail = n. an old feudal expression for a title to real property which can only be passed to one's heirs "of his body" or certain heirs who are blood relatives. If the blood line ran out (no children) then the title would revert to the descendants of the lord who originally gave the land to the title-holding family. Thus, it could not be transferred to anyone outside the family. The intention was to keep lands within a family line and not subdivided. In 16th century England, trusts were established to get around this "restraint on alienation" so the land could be held in trust for another person to use.
(Fee tail nowadays is of historic and academic interest only)

fee simple = n. absolute title to land, free of any other claims against the title, which one can sell or pass to another by will or inheritance. This is a redundant form of "fee," but is used to show the fee (absolute title) is not a "conditional fee," or "determinable fee," or "fee tail." Like "fee" it is often used in deeds transferring title, as in "Harry Hadit grants to Robert Gotit title in fee simple…" or similar words.

real estate = n. land, improvements and buildings thereon, including attached items and growing things. It is virtually the same as "real property," except real property includes interests which are not physical such as a right to acquire the property in the future.

real property = n. 1) all land, structures, firmly attached and integrated equipment (such as light fixtures or a well pump), anything growing on the land, and all "interests" in the property, which may include the right to future ownership (remainder), right to occupy for a period of time (tenancy or life estate), the right to drill for oil, the right to get the property back (a reversion) if it is no longer used for its current purpose (such as use for a hospital, school or city hall), use of airspace (condominium) or an easement across another's property. Real property should be thought of as a group of rights like a bundle of sticks which can be divided. It is distinguished from personal property which is made up of movable items. 2) one of the principal areas of law like contracts, negligence, probate, family law and criminal law.

freehold = n. any interest in real property which is a life estate or of uncertain or undetermined duration (having no stated end), as distinguished from a leasehold which may have declining value toward the end of a long-term lease (such as the 99-year variety).

leasehold = n. the real estate which is the subject of a lease (a written rental agreement for an extended period of time). The term is commonly used to describe improvements on real property when the improvements are built on land owned by one party which is leased for a long term (such as 99 years) to the owner of the building. For example, the Pacific Land Company owns a lot and leases it for 99 years to the Highrise Development Corporation, which builds a 20-story apartment building and sells each apartment to individual owners as condominiums. At the end of the 99 years the building has to be moved (impossible), torn down, sold to Pacific (which need not pay much since the building is old and Highrise has no choice), or a new lease negotiated. Obviously, toward the end of the 99 years the individual condominiums will go down in value, partly from fear of lessened resale potential. This is generally theoretical (except to lending companies because the security does not include the land) since there are few buildings with less than 50 or 60 years to go on the leases or their expected lifetimes, although there are some commercial buildings which are within 20 years of termination of such leases. In most cases the buildings are obsolete by the end of the leasehold.

From Wikipedia:

foreclosure = is the equitable proceeding in which a bank or other secured creditor sells or repossesses a parcel of real property (immovable property) due to the owner's failure to comply with an agreement between the lender and borrower called a "mortgage" or "deed of trust." Commonly, the violation of the mortgage is a default in payment of a promissory note, secured by a lien on the property. When the process is complete, it is typically said that "the lender has foreclosed its mortgage or lien."

Allodial title = is a concept in some systems of property law. It describes a situation where real property (land, buildings and fixtures) is owned free and clear of any encumbrances, including liens, mortgages and tax obligations. Allodial title is inalienable, in that it cannot be taken by any operation of law for any reason whatsoever.
In common legal use, allodial title is used to distinguish absolute ownership of land by individuals from feudal ownership, where property ownership is dependent on relationship to a lord or the sovereign. Webster's first dictionary (1825 ed) says allodium is "land which is absolute property of the owner, real estate held in absolute independence, without being subject to any rent, service, or acknowledgement to a superior. It is thus opposed to feud.

A restraint on alienation, in the law of real property, is a clause used in the conveyance of real property that seeks to prohibit the recipient from selling or otherwise transferring his interest in the property. Under the common law such restraints are void as against the public policy of allowing landowners to freely dispose of their property. Perhaps the ultimate restraint on alienation was the fee tail, a form of ownership which required that property be passed down in the same family from generation to generation, which has also been widely abolished.
However, certain reasonable restraints will be given effect in most jurisdictions. These traditionally include:

  • A prohibition against partition of property for a limited time.
  • The right of first refusal - for example, if Joey sells property to Rachel, he may require that if Rachel later decides to sell the property, she must first give Joey the opportunity to buy it back.
  • The establishment of public parks and gardens, as was the case for The Royal Parks of London in the UK. These public spaces were created under such terms by the Crown Estate; which meant that these parks were held in perpetuity for the public to use.

Easement = An easement is the right to do something or the right to prevent something over the real property of another. At common law, an easement came to be treated as a property right in itself and is still treated as a kind of property by most jurisdictions. In some jurisdictions, another term for easement is equitable servitude, although easements do not have their origin in equity.
The right is often described as the right to use the land of another for a special purpose. Unlike a lease, an easement does not give the holder a right of "possession" of the property, only a right of use. It is distinguished from a licence that only gives one a personal privilege to do something on the land of another.

The statute of frauds = refers to the requirement that certain kinds of contracts be made in writing and signed.
Traditionally, the statute of frauds requires a writing signed by the party against whom enforcement is sought in the following circumstances:
Contracts in consideration of marriage.
Contracts which cannot be performed within one year.
Contracts for the transfer of an interest in land.
Contracts by the executor of a will to pay a debt of the estate with their own money.
Contracts for the sale of goods above a certain value.
Contracts in which one party becomes a surety (acts as guarantor) for another party's debt or other obligation.
Law students often remember these circumstances by the mnemonic "MYLEGS" (marriage, year, land, executor, goods, surety).
It is important to note that in the United States, each State; in Canada, each province; and in Australia each State has its own variation on the statute of frauds, which may differ significantly from the traditional list.
The term statute of frauds comes from an English statutory law (29 Car. II c. 3) passed in 1677 and more properly called the Statute of Frauds and Perjuries. [1] Many common law jurisdictions have such a statute (i.e., statutory law) or provision in a statute, while a number of civil law jurisdictions have similar requirements in their civil codes

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