Transcript REAL ESTATE - Debra S Austin

REAL ESTATE
Legal Research Guide
Advanced Legal Research
University of Denver College of Law
Spring, 2002
Dawn MacKinnon
Table of Contents
Introduction
 Definitions
 Secondary Sources
 Primary Authority
 Practice Materials
 Online Materials
 Conclusion
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4–5
6 – 14
15 – 26
27 – 32
33 – 35
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Introduction
Real estate, or real property, signifies dominion or right of use, control, and disposition which one
may lawfully exercise over land. Land, in its general usage, includes not only the face of the earth
but everything of a permanent nature over or under it. This includes structures and minerals.
There are further divisions within the real properly classification. The most important are freehold
estates, nonfreehold estates, and concurrent estates. The definitions section provides an
explanation of these types of estates. Within each of these classifications there exists a seemingly
infinite amount of sub-issues. In practice, your search would be limited to a specific issue within
the real estate field, for example, housing discrimination and the application of the Federal Fair
Housing Act, or title issues surrounding the sale of property, or mortgage financing.
For the most part, states have exclusive jurisdiction over the land within their border, and their law
concerning the kind of interests that can be held and how they are created is not subject to federal
law.
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Definition of Terms
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Freehold Estates: An estate in land held in fee simple, in fee tail, or for term of life. The tenure by which such
an estate is held.
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Nonfreehold Estates: Any estate in real property without seisin, such as an estate for years, from period to
period, at will, or at sufferance, any estate except the fee simple, fee tail, or life estate.
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Fee simple: An interest in land that, being the broadest property interest allowed by law, endures until the current holder
dies without heirs.
Fee tail: An estate that is inheritable only by specified descendants of the original grantee, and that endures until its current
holder dies without issue.
Seisin: Possession of a freehold estate in land; ownership.
Tenancy at will: A tenancy in which the tenant holds possession with the landlord’s consent but without fixed terms.
Tenancy at sufferance: A tenancy arising when a person who has been in lawful possession of property wrongfully remains
as a holdover after his or her interest has expired.
Tenancy for years: A tenancy whose duration is known in years, weeks, or days from the moment of its creation.
Concurrent Estates: Ownership or possession of property by two or more persons at the same time. In
modern practice, there are three types of concurrent estates: tenancy in common, joint tenancy, and tenancy by
the entirety.
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Tenancy in common: A tenancy by two or more persons, in equal or unequal undivided shares, each person having an
equal right to possess the whole property but no right of survivorship.
Joint tenancy: A tenancy with two or more co -owners who take identical interests simultaneously by the same instrument
and with the same right of possession.
Tenancy by the entirety: A joint tenancy that arises between husband and wife when a single instrument conveys realty to
both of them but nothing is said in the deed or will about the character of their ownership.
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Definition of Terms
Continued
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Eminent Domain: The inherent power of a governmental entity to take privately owned property, especially
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Bona Fide Purchaser: One who buys something for value without notice of another’s claim to the item or of
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Landlord and Tenant: The landlord, or lessor, is the owner; the tenant, or lessee, supplies payment in order to
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Novation: The act for substituting for an old obligation a new one that either replaces an existing obligation with
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Servitude: An encumbrance consisting in a right to the limited use of a piece of land without the possession of
land, and convert it to public use, subject to reasonable compensation for the taking.
any defects in the seller’s title.
enjoy possession and use of the property for a specified period. Important forms of tenancy include tenancy for
a fixed period, periodic (seasonal) tenancy, tenancy at will, and holdover tenancy (whereby a tenant remains
after the contract has ended).
a new obligation or replaces an original party with a new party.
it; a charge or burden on an estate for another’s benefit.
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Secondary Sources

Treatises provide a broad overview of a particular legal topic and often discuss the most recent
issues as well as historical information and developments.
 Federal Regulation of Real Estate and Mortgage Lending, 4th edition (1998)
by Paul Barron
West Group—ISBN: 0836612256
Discusses law and legislation regarding vendors and purchasers, real estate business, consumer
credit and protection, settlement costs, and interstate land sales.
 Real Estate Contracts, 2d edition (1994)
by Karl B. Holtzschue
Practicing Law Institute—ISBN: 0872240770
Reviews conveyance and contract principles.
 Real Estate Finance Law, 2d edition (1985)
by Grant S. Nelson
West Publishing Company—ISBN: 0314914129
Examines mortgage principles of law.
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Secondary Sources
Treatises Continued
 Real Estate Law, 9th edition (1988)
by Robert Kratovil
Englewood Cliffs—ISBN: 0137633432
Broad overview of common real estate law issues.
 Real Estate Law, (1998)
by Michael Diamond
West Publishing Company—ISBN:0314126155
Reviews interests in real property including co-ownership of real property, real estate contracts,
mortgages, and real estate finance, deeds, wills, and other conveyances of real property.
 Real Estate Law Review Manual, (1997)
by John W. Dunn
West Publishing Company—ISBN: 0314098488
Discusses freehold estates, future interests, concurrent ownership, common interest ownership,
landlord and tenant relationship, servitudes, and other land use limitations.
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Secondary Sources
Legal Encyclopedias
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Legal Encyclopedias
broadly address specific legal topics. They provide annotations that generally
describe the most recent developments in the law from various jurisdictions. The two predominant
encyclopedias are American Jurisprudence (Am. Jur.) and Corpus Juris Secundum (C.J.S.). In each
publication, the index real estate reference is primarily to Property sections. Other subsections include banks,
chain of title, actions and remedies, abstracts of title, condominiums, and easements.
 63C Am Jur 2d § § 1 et. seq.
I. In General §§ 1-3
II. Subjects of Property §§ 8-23
III. Kinds and Classifications of Property §§ 8-23
A. In General §§ 8-10
B. Real Property §§ 11-17
C. Personal Property §§ 18-28
IV. Title; Ownership; Possession; Use §§ 24-33
V. Extinguishment or Loss; Alienation and Transfer §§ 34-36
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Secondary Sources
Legal Encyclopedias Continued
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73 C.J.S. §§ 1 et. seq. (These are all of the sections within the Property Heading)
I. In General §§ 1-10
II. Subjects and classifications of Property §§ 11-23
III. Ownership and Possession and Incidents Thereof: Title and Modes of Acquisition or Loss
§§ 24-37.
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77A C.J.S. §§ 1 et. seq.
I. In General §§ 1-5
II. Requisites & Validity of Contract §§ 9-81
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Secondary Sources
American Law Reports
 American Law Reports (A.L.R.) contain annotations that cite, summarize, and analyze
case law on a particular legal issue. The annotations also reference other relevant research aids.
Sample annotations follow.
 Validity, construction, and application of statutes, or of condominium association’s bylaws or regulations,
restricting sale, transfer, or lease of condominium units—17 A.L.R. 4th 1247
 Regulation of time sharing or interval ownership interests in real estate—6 A.L.R. 4th 1288
 Lessee’s first privilege option to purchase or terms of similar import as requiring existence of prior offer
from third party—76 A.L.R. 3d 1139
 Broker’s right to commission from principal upon procuring third party taking an option—32 A.L.R. 3d 321
 Tenant’s right to damages for landlord’s breach of tenant’s option to purchase—17 A.L.R. 3d 976
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Secondary Sources
American Law Reports Continued
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American Law Reports – Federal
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Property rights of citizens, validity, construction, and application of federal civil right statute dealing with
property rights of citizens—79 ALR Fed 281
Mortgage or lien, right of mortgagee and/or lienor to compensation when property subject to mortgage
and/or lien is taken by federal governmental forfeiture based on criminal acts of owner—136 ALR Fed 593
Real property as subject of forfeiture under Uniform Controlled Substances Act or similar statutes—104
ALR Fed 288
Real Estate Settlement Procedures Act construction and application—142 ALR Fed 511
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Secondary Sources
Legal Periodicals
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Legal Periodicals include such items as law reviews, organizational journals, and
newspapers or magazines. They often contain articles that update, summarize, or debate current
law regarding a specific topic. A sample of articles follows.
 Legal Trac
 Attacks Require Fresh Look at Old Concepts: World Trade Center/Pentagon Attacks: Real Estate
and Title Insurance Trends, Gregory P. Pressman, 226 New York Law Journal s-1, 2001.
 Certainty in Commercial Property Contracts—The Challenge of Equity Over Law, Hilton Mervis &
Paul Brehomy, 151 New Law Journal 1667, 2001.
 A Survival Guide for Real Estate Transactions, Gregg A. Nathanson, 80 Michigan Bar Journal 38,
2001.
 Fundamental Principles for Real Estate Deals, Joshua Stein, 47 The Practical Lawyer 27, 2001.
 Estate Planning Benefits of Deferred Like-Kind Exchanges of Real Estate, Myron Kove & James M
Kosakow, 28 Estate Planning 372, 2001.
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Secondary Sources
Legal Periodicals Continued
 Westlaw
 Joint Tenancy Law, John V. Orth, 5 Green Bag 2d 173, 2002.
 Property Rights, The Market, & Environmental Change in 20th Century America, 32 Environmental
Law Reporter 10254, 2002.
 Palazzolo v. Rhode Island & The U.S. Supreme Court’s Increased Support of the Constitutional
Protection of Private Property: A Response to Echeverria, 32 Environmental Law Reporter 10245,
2002.
 Commercial Leases: Overview of Negotiating Solutions, Landlord & Tenant Perspectives, & Closing
Statements, Richard C. Mallory, Esq., Practising Law Institute, PLI Order No. NO-007T, OctoberDecember, 2001.
 David v. Goliath: Negotiating a Commercial Lease on Behalf of the Tenant, W. Leighton Lord III, 13
South Carolina Lawyer 31, 2001.
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Secondary Sources
Restatements
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Restatements are one of several influential treatises,
published by the American Law Institute, describing
the law in a given area and guiding its development.
Although the Restatements are frequently cited
in cases and commentary, they are not binding on
the courts.
Restatement of Property
American Law Institute
KFC 395 .P7 A3
Subjects discussed: Real property and future interests.
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Conclusion
The path through the labyrinth of real estate research is dotted with wide open plains, thick forests,
and an occasional deep body of water. It is essential, therefore, to spend the necessary time to
focus in on your specific research question. Brainstorming is a valuable process to identify
ancillary real estate factors that may have an impact on your research issue.
While the real estate practice is an established field, its principles are challenged by emerging
societal, environmental, and legislative developments. The internet is a beneficial tool to keep
apprised of recent occurrences and to become educated on legal and practical implications
affecting your subject matter. The plethora of real estate issues provides an interesting and
challenging area for legal practitioners.
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