Texas Real Estate Exam Review

fixture

real estate that was once personal property but became real property when it was attached to real estate

Tests of fixture

1. written document 2. agreement or intent of the parties 3. adaptation 4. Annexation

Severance

process by which fixture becomes personal property

Trade fixture

personal property annexed to leased premises by the tenant as a necessary part of the tenant's business and must be removed prior to the expiration of the lease or it becomes the property of the lessor.

personal property

a right in things of a movable nature

3 physical characteristics of land

non-homogeneity, immobiity, and indestructibility

4 economic characteristics

scarcity, improvements, permanence of investment (fixity), and area preference (situs)

encumbrance (cloud on the title)

A right or interest in a property held by someone who is not the legal owner.

easement by necessity

allows ingress and egress to landlocked property

easement in gross

not created to benefit a dominant estate (utility easement)

easement appurtenant

is annexed to the ownership of another's parcel of land and runs with the land is transferred from one owner to another

easement by prescription

continuous use of property, for 10 years or more without permission of the owner

easement by implication

surface easement that is usually given when a mineral interest is transferred or sold

deed restrictions (deed covenants)

limits the use of land and are private land controls

liens

claims against property

general liens

attach to all property of a debtor that is not exempt from forced sale (judgment lien, estate tax lien and an income tax lien)

specific lien

attach to one or more specific properties (ad valorem tax lien, mortgage, special assessment and an M&M lien)

Ad valorem tax liens

Statutory, involuntary liens placed againt all real property on Jan 1 of each year. Property tax liens have priority over all other liens on the property

Special assessment

creates a lien against only those specific properties which benefit by the improvements. These liens must be disclosed to potential purchasers

Mechanics & Materialmen's Lien (M&M Lien)

claim for the purpose of securing priority payment for work on repairing a building

encroachment

fixture or structure which invades a portion of property belonging to another. To determine encroachments you must get a survey.

license

Permit to use the and of another. Is defeated upon transfer of property

Leasehold estate

a possessory interest for a determined period of time

estate for years

any lease with a definite start and stop date

periodic estate

month-to-month lease

Freehold estates

ownership for an undetermined period of time

fee simple defeasible estate

property is conveyed (deeded) to another party "for so long as" and automatically reverts to the grantor if the property is not used as specified in the grant

fee simple subject to condition subsequent

property conveyed to another "on the condition that" and does not automatically revert to grantor when condition no longer exists

ordinary life estate

estate granted by the owner of a property to a person for that person's lifetime. It cannot be inherited

Pur Autre Vie

life estate that exists "for the life of another

legal life estates

homestead allows for an automatic life estate for a surviving spouse who can keep possession as long as they live and cannot be forced to sell by anyone who may have inherited an interest in the property

Tenancy in Severalty

ownership by one person (individual, corporation, or partnership) alone and thus severed from any other person

tenancy in common

ownership of property by two or more persons with transferable, undivided interest in the property and may be partitioned. Partners can have unequal shares of ownership. Has only unity of possession

Joint tenancy

joint ownership in which both persons have a transferable undivided share that can't be inherited and in partners have equal shares. Has unity of time, title, interest and posession

Tenancy by entirety

form of joint tenancy in which owners are husband and wife

General partnership

ownership by 2 or more persons in wich each partner is liable for losses and obligations of the partnership and all partners participate in the day to day management of the partnership business

limited partnership

have only a monetary interest and are liable only to the extent of their investment in the partnership

corporation

form of ownership in severalty because law considers a corporation a "person". Subject to double taxation because it pays taxes on their profit and shareholders on dividends

limited liability company

pays no taxes on income, which is passed straight through to shareholders

syndicate

where two or more parities work together to develop and/or operate a real estate investment

Mets and Bounds

use terminal points and angles from a point of beginning to obtain legal description

escheat

process by which property reverts to the state when someone dies INTESTATE (leaving no will). State looks for the heirs for seven years

eminent domain

government's right to take private property for public use through the act or the means of condemnation. Owner will be paid market value for property

police powers

include rent control, zoning, health and safey laws

zoning

regulation of structures and uses of property

buffer

separate zones ex. industrial and residential

buffer zoning

step-down zoning where land used are stepped down from a higher use or classification to the lower classifications

spot zoning

zoning variation for a small area that is significantly different from surrounding areas

variance

exception to a zoning regulation that may be permitted if an undue hardship is placed on the property owner by the ordinance

conditional use permit

zoning classification where special conditions are imposed on a permitted use

nonconforming use

use of a property that existed before zoning or a zoning change that no longer conforms to the new zoning

comprehensive plan

a plan to ensure that the city can balance the social and economic needs of the community with the environmental and aesthetic needs

planned unit development (PUD)

special zoning classification, often used with a multi-use or cluster zoning and involves a nonprofit community association

extraterritorial jurisdiction

area outside the city limits that may at sometime in the future be annexed into the city. the seller must inform the buyer if the property i outside the city and may be subject to annexation

deed restrictions

private covenants or land use controls placed on property by the grantor when the property is sold. Attached to land and do not go away when the property is sold.

CC&R's (conditions, covenants, and restrictions)

are a declaration of restrictions that are placed on public records that affect land use for condos

riparian rights

refers to a property owner's rights to use or enjoy the water when the property is located along the bank of a stream or river as long as he doesn't interrupt the water flow

littoral rights

permits ownership of land bordering on the shore of a pond, lake or ocean up to mean vegetation line

accretion

a gradual increase in land by natural causes

alluvion

land that is created in accretion process

erosion

gradual loss of property by natural causes

avulsion

sudden loss of land by an act of nature

Characteristics of property that Affect Value

Demand
Utiity
Scarcity
Transferability

Principle of substitution

no person is justified in paying more for a property than the cost to build a simiar property

principle of conformity

max value is found when there is present a reasonable degree of similarity in the area

progression

when properties in the area cause the value of the subject property to increase

Regression

when properties in the area cause the value of the subject property to decrease

principle of highest and best use

- the use of a property that will give the property owner the greatest economic return and that is legal and economicaly feasible in today's market

market approach

comparables that are sold properties that are very similar to subject property. Used primarily for residential property and land

cost approach

replacement cost based on current construction costs, less depreciation, plus land value. Used for properties without comps or are very run down

Income approach

estimated future benefit of an income stream. Used for income property. Net operating income/cap rate

physical deterioration

ordinary wear and tear. Deferred maintenance is also an example.

functional obsolescence

changes in building arts or buyer's taste

external obsolescense

brought about by actions in the area outside the property (ex. economic)

accrued depreciation

sum of all three forms of depreciation - physical, functional, external

assemblage

combining of two or more tracts of land and usually the combined tract is worth more than the value of the two separate tracts

plottage

increase in value due to assemblage

assessed valuation

official estimate of a value of property for taxation purposes. Related to AD VALOREM (property) tax

economic life

period of time during which imporvements contribute to the value of the property.

unearned increment

value added to property by economic factors in the area

CMA/BPO (competitive market analysis/broker price opinion)

comparioson of recently sold properties and properties that were listed and didn't sell by the broker to determine a list price

Mortgage bankers

provide both funds and servining

mortgage brokers

the middlemen. they do not loan money or service loans. They arrange loans and make commissions like real estate brokers

FHA

Insures owner occupied loans. Each county has a max amount. These are for everyone, no US CITIZENSHIP IS NEEDED and there is no requierment for the borrorwer to be poor

VA

guarantees Veteran ownder occupied loans.

Certificate of reasonable value

an appraisal issued by VA

conventional

not guaranteed or insured by the federal government

blanket mortgage

covers more than one piece of real property developers use

package mortgage

includes personal and real property

wraparound loan

owner financed and seller continues to pay his mortgage without paying if off at time of sale

balloon mortgage

long-term amortization with "balloon" payment at the end of a shorter loan term

budget loan

includes principal, interest, taxes, and insurance. Most of these loans are fully amortized

term loan/straight loan

usually an interest only loan with one principal payment at the end of the term

participation mortgage

lender will share in the equity when the property is sold. Usually for large commercial loans

FNMA (fannie mae)

privately owned corp that buys and sells fha, va, and conventional loans. Raise money by selling mortgage-backed secuirties that are guaranteed by FNMA and not the government

GNMA (Ginnie Mae)

fed agency taht administers special loan or assistance programs. Sells bonds that are guaranteed by the fed

FHLMC (freddie Mac)

deal primarly in the conventional loan market but also pool va and fha loans. bonds are backed by mortgages that they own

deed of trust (lien theory)

three party security instrument used by the borrower (trustor) to pledge the property as collateral for the loan.

deficiency judgment

occurs when the property is foreclosed and the sale does not repay the lender in full

alienation clause

Due on sale Clause" in deed of trust that declares that the entire balance becomes due upon transfer of ownership

acceleration clause

call clause" which gives lender the right to accelerate the note upon default

defeasance clause

requires the lender to release the lien when the debt is paid

amortization

liquidation of a debt by periodic installment payments. Principle and interest decline so that less interest/more principal paid monthly.

Prepayment penalty

extra amount borrower must pay in order to pay off principal prior to maturity

subordination

when one lien holder agrees to switch lien positions with another lender

equity

difference between market value and the indebtedness for the property owner

discount points

mark down interest rate by paying 1% of the loan amount up front

buy down

points when used to reduce the interest rate

discount rate

interest rate a commercial bank p ays when it borros money from the fed

prime rate

interest rate at which banks loan to prime customers

hypothecation

pledging of property as security for a loan

usury

charging of an illegal interest rate

appreciation

increase in the worth of a property

Truth-in-Lending act (Regulation z)

informs the borrower of the true cost of obtaining credit through uniform disclosures

three-day right of rescission

Part of Truth-in-Lending Act. allows borrower to cancel a home loan and walk away without losing money. Applies to junior liens, but not first lien mortgages

advertising

Part of Truth-in-Lending Act. if more than general phrases like "liberal financing available" are made, then full disclosure is required

Real Estate Settlement and Procedures Act (RESPA)

Applies to 1-4 family residential loans that are federally related.
Requires:
1. use of a hud-1 or uniform settlement statement
2. the lender to provide a good faith estimate of closing costs and the special information booklet to the borrower within 3 bu

Equal Credit Opportunity Act

protects against illegal discrimination to ensure that funds are available to all qualified applicants

home mortgage disclosure act

prohibits red-lining

red lining

not serving a specific geographical area in the market

community reinvestment act

lender must demonstrate (by documentation) that it serves the entire community in which it is chartered to do business.

Secure and Fair Enforcement of Mortgage Licensing Act (SAFE)

a residential mortgage loan originator who is an employee or subsidiary of a depository institution will be registered with the federal banking agency having jurisdiction over that institution and will be included in the National Mortgage Licensing System

agency

relationship of trust between agent and principal. Formed when principal has hired the agent

client

when the principal becomes a "client" and the broker becomes his "agent

customer

broker/salesperson does not represent this party and thus does not give them advice, opinions or help in negotiating a sales contract

general agency

relationship between broker as a client and salesperson as his agent in which broker has limited power to bind and limited power to sign. Often occurs in a property management agreement between owner and broker.

Special agency

relationship between broker and client in which there is no power to sign or bind

expressed agency

orally or in writing, agency clearly understood by both parties

implied agency

agency by words/actions, but not expressly stated

ostensible agency (agency by estoppel)

agency by which others assume your authority because of your actions or when a pincipal fails to monitor his agent

agency by ratification

by a prinicipal accepting actions of another after the fact. Implied agency often leads to this kind of agency

agency coupled with a monetary interest

agent has an interest in the property he is representing. ex. agent has a management agreement and a listing agreement on the same property

Sherman Antitrust Act

disallowed price fixing, boycotting, allocation of customers or markets, and tie-in arrangements

price fixing

service providers must set their own fees or commission rates without consulting any other provider

boycotting

two or more service providers agree to not work with the competitor to reduce competition

allocation of customers or markets

two or more service providers get together and divide the market geographically or by customer profile

tie-in arrangements

service provider requires customer to use an assocated service as a requirement for doing business

fair housing laws

prohibit discrimination in connection with selling or renting residential real estate. Protects race, color, religion, sex, national origin, hadicapped, and family status

civil rights act of 1866

covered race only. Lawsuits filed under this act must be taken to federal court

fair housing law of 1968 (Title VIII of Civil rights act of 1968)

covered discrimination on the basis of race, religion, and national origin. Sex was added in 1973

fair housing amendments act of 1988

physically/mentally handicapped added as protected class under fair housing laws

Steering & Channeling

guiding people into or away from any area based on their protected class (violation of fair housing)

blockbusting & panic selling

tactics to induce a person to sell their home based on the anticipated entry of a protected class (violation of fair housing)

Fair credit reporting act (FCRA)

if an action against prospective borrower was based on credit score, the the score must be disclosed to applicant

commingling

putting client money anywhere other than in a trust account

conversion

taking earnest money for broker's own use

bilateral contract

contract in which both parties have specific duties to perform

unilateral contract

contract in which only one party has obligations to fulfill

novation

re-write of contract. ex. converting FHA contact to a conventional form or where you have a substitution of parties

addendum

something added to the base contract with the agreement of both parties

amendment

change to an existin gcontract with mutual agreement of all parties

default

non-performance of a duty under a contract.

default paragraph

paragraph of promulgated form that spells out choices for non-defaulting party

valid

contract that is enforceable by the parties

void

as though it never existed, usually lacking consideration or legal purpose

voidable

may appear to be valid but disaffirmed if one party is incompetent, was under undue influence, or fraud was involved

unenforceable

neither party can enforce contract. Ex. verbal listing where parties agree to a commission

exclusive right to sell

broker is excllusive agent and receives commission even if owner sells the property himself

Exclusive agency

broker is exclusive agent and receives the commission unless the owner sells the property himself

open

owner has multiple brokers and only broker that sells gets commission. Often used by government agencies

net listing

broker keeps all money over the amount the owner wants from the sale of the property

contract for deed (land contract)

does not convey legal title immediately, buyer has equitable title. Title transferred when seller is paid in full

percentage lease

lease in which all or part of the rent is based upon the income of the tenant's business

gross lease

only the monthly rent is paid by the tenanct, which includes all services. No separate charge for utilities, taxes, etc.

Net lease

tenant pays rent plus some or all of operating expenses

ground lease

lessee has a lease on the land only and agrees to build a building on the property. All improvements made by lessee becomes the property of the lessor

hold over tenant

tenant who fails to move out when the lease expires

tenancy (estate) at will

type of leasehold estate created when a holdover tenant has the permission of the owner to stay and the owner continues to accept rent

tenancy (Estate) at sufferance

wrongful holding over without the landlord's consent

sale and leaseback

grantor sells and then leases back the property from the new owner in order to free up capital

constructive eviction

landlord's failure to provide promised life service (water, electricity, etc.) forces the tenant to move out

sub-lease

original lessee leases property to someone else. Original lessee retains liability

assignment

lessee gives up his rights to a property to a third party and is relieved from obligation

distraint

landlord's right to use forced entry and seizure of a tenant's belongings for due rent

option to purchase

contract for the right to purchase specific property within a definite time at a specified price. Since there is no obligation for the purchaser to buy, but the seller is obligated to sell, it is a unilateral rather than a mutual obligation

option money

payment in order to obtain the option to purchase

contingency clause

special conditions in the contract for the seller to meet. If not met, buyer will get his earnest money back

independent contractor

employment between broker and agent with three conditions:
1. a written independent contractor agreement
2. a real estate license
3. payment based on performance, not number of hours worked

mortgagee's title policy

protects the lender, guarantying him that he has a valid lien recorded on the policy

restriction (deed restriction)

limits the use of land

reservations

grantor's ownership rights that are not being conveyed to the new owner (easement, mineral rights)

abstract of title (chain of title)

recorded history of title to property that details every recorded event pertaining to the property. guarantees nothing

deed

conveyance that transfers real property and is not negotiable (cannot be assigned)

conveyance

written instrument that evidences transfer of some interest in real property, not personal property

bill of sale

the way personal property is transferred

general warranty deed

deed in which guarantees and protects against defects. Warrants title to be good from the separation of soil. Only grantor signs the deed, and deeds do not need to be recorded to be valid

special warranty deed

deed in which seller warrants or guarantees the title only against defects arising during the period of his or her tenure or ownership of the property

quit claim deed

deed that gives no warranties or guarantees

patent

a type of deed under the first tranfer of real property out of government ownership to an individual

habendum clause

defines or limits the estate granted in the deed

seisin

grantor warrants that he has both title and possession at the time of the grant and the authority to transfer property

alienation

act of transferring ownership, title or interest in real property from one person to another. 2 types:
1. Voluntary - sale, gift, will
2. involuntary - escheat, eminent domain, foreclosure, adverse possession

adverse possession

property acquired from rightful owner under "adverse" conditions through 10-year provision

Heridaments

property that can be inherited

writ of attachment

freezes assets pending the outcome of a trial

statute of limitation

law pertaining to the period of time during which an action may be brought to the court

partition

lawsuit to ask the court to sever concurrent ownership

closing

when the property actually changes hands

recording

gives constructive notice of ownership and protects against fraudulent sale

capital gains taxes

a tax paid on the profit made from the sale of real property

legal title

freehold interest in property

equitable title or interest

less than freehold interest in property. ex. lease, easement, lien, sales contract, mortgage or a contract for deed

probate

formal judicial proceeding to prove validity of a will

testate

one who dies leaving a valid will

intestate

one who dies without leaving a will. Property will be inherited by their heirs though laws of descent and distribution

executor

person named to administer the estate of a person who leaves a valid will

administrator

court appointed person to handle the estate of an intestate

condominiums

owner holds fee simple interest in the unit and owns from the interior wall to the interior wall and an interest in the common areas

cooperative

ownership of the property is held by a corp and the occupant is a stockholder and has a proprietary lease

time share

owner, must be a real estate licensee, has the right to occupy a particular unit in the project for a specified period of time each year

subdivision

land divided into lots and sold to builders

leverage

effective use of borrowed money to maximize rate of return

homestead

constitutional provision that protects primary residence from foreclosure from all creditors except those who have a lien on the house

deceptive trade practices act

consumer protection act addressing misrepresenting, disparaging, misleading a client. Must file for damages within two years. Designed to protect all consumers, not just in real estate transactions

CERCLA (Comprehensive Environmental Response compensation and liability act of 1980)

made funds available for cleaning up toxic waste

Superfund Amendment and reauthorization act of 1985

amendment to CERCLA providing an "innocent landowners provision" that says if a buyer does reasonable due diligence before buying a property he will not be held responsible later if a hazard is discovered

Environmental Impact Statement (EIS)

report that includes a detailed description of a proposed development and discussed the likely impact on the environment

power of sale claue

allows for mortgages to go through a non-judicial foreclosure

defiency judgment

a judgment the lender must obtain againt a borrower for the balance of a debt owed when the secuirty for a loan is insufficient to satisfy the debt

statutory right of redemption

allows the owner to redeem the property within 6 months for non-homestead property and wihtin 2 years on homestead property if the owner pays the amount of taxes owed plus 25% the first year and 50% the second year

accession

gaining title to improvement as a result of the annexation of fixtures

annexation

process of attaching personal property so that it becomes real property and thus creating a fixture

chattel

personal property

datum

marker used in the survey of elevations

DD 214

veteran's discharge papers - provided to demonstrate eligibility for a VA loan

injunction

what the court will use to enforce deed restrictions

inverse condemnation

occurs when the improvement may not take the property but causes the subject properrty to suffer a loss in value of 25% or more and the condemining entity must pay the owner for that loss

IRS Form 8300

must be filled out when a client brings more than $10,000 in cash to the closing or in earnest money

MIP (mortgage insurance premium)

insurance on the FHA loan

Modification

economic characteristic of land stating that improvements made by man will alter the laue of the land and surrounding properties

parcel

a single piece of property, also called a plot or a lot

remainderman

person who becomes the owner of property at the end of a life estate. Has fee simple interest

residual value

what is remaining after the economic life of a property is gone