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By admin, February 11, 2010 9:08 pm

What is real estate?

Wikipedia has certainly not got it right!

Many people think it is their home or place of work, or a lot of buildings, and there are not far wrong.

Maybe it is was the cause of the current financial crisis—or was that all the debt we ran up or the bonuses paid to the bankers?

Maybe it is that part of our parent’s estate we expect to inherit. But, that can’t be real as at the present rate of knots they will owe more than they own at the end!

Historically, ‘real estate’ meant property that was capable of being recovered by a ‘real action’ (i.e. an action that sought to recover true possession of the property and not merely a claim for recompense). Real estate or “real property” was considered unique and simply asking for money was not enough. You wanted your property back ‘in kind’.

Well, here is a more detailed definition from the Encyclopedia of Real Estate Terms:

Land and anything permanently fixed thereto, as well as any rights or interests in land, including estates of fee simple, fee tail, an estate for life and other similar right to hold land. A right or claim that attaches to the very substance of land; as distinguished from personal estate which belongs to a person and, as such, is temporary and movable. Historically, ‘real estate’ meant property that was capable of being recovered by a real action (i.e. an action that sought to recover true possession of the property and not merely a bare claim supported by recompense). Thus, in a strict legal sense, real estate does not include a leasehold, which is regarded in the common law as personal estate (a ‘chattel real’) and is capable of recovery only by a personal action between the parties (1 Co Litt 46a; Butler v Butler (1884) 28 Ch D 66; Montreal Light, Heat & Power Consolidated v Westmount (Town) [1926] SCR 515, 520 (Can); City of New York v. Mabie, 13 NY (3 Kern) 151, 159, 64 Am Dec 538 (1855); Pacific Southwest Dev. Corp. v. Western Pac. R. Co., 47 Cal.2d 62, 301 P.2d 825, 829 (1956)). However, this common law anachronistic interpretation of ‘real estate’ has been superseded generally by the modern view that a leasehold (especially a lease for a fixed term of more than one year) is real estate (Anno: 103 ALR 826: Interest Created by Lease as Real Estate). (In the US, in some jurisdictions, real estate may even include an oil and gas lease, at least until the oil or gas is extracted (United States v. Texas Eastern Transmission Corp., 254 F Supp 114 (DC La 1965); Cf. Pacific Southwest Dev. Corp. v. Western Pac. R. Co., supra at 829)). In a statute that authorizes condemnation of “real estate”, the term may include a lease (40 USCA § 258a; United States v. Fisk Building, 99 F Supp 592, 594 (DC NY 1951)).
   In English law, ‘real estate’ is defined to extend to “manors, advowsons, messuages, lands, tithes, rents, and hereditaments, whether corporeal, incorporeal, or personal, and to any undivided share thereof, and to any estate, right, or interest (other than a chattel interest) therein”, Wills Act 1837, s. 1, as amended. Thus, it does not include a leasehold interest, which is a ‘chattel’. However, it would normally include a rentcharge that is limited in the same way as a freehold. In connection with the devolution of property onto a personal representative on a person’s death, “‘real estate’ includes—(i) Chattels real [a leasehold interest] and land in possession, remainder or reversion, and every interest in or over land to which a deceased person was entitled at the time of his death; and (ii) Real estate held on trust (including settled land) or by way of mortgage or security, but not money secured or charged on land”, Administration of Estates Act 1925, s. 3(1). See also chattel, freehold, fixture, real property.

Try finding the terms in bold on www.realestatedefined.com

Delta Alpha

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By admin, August 23, 2009 11:02 pm

A few quotations that appear in the Encyclopedia of Real Estate Terms.

“Property is nothing but a basis of expectation; the expectation of deriving certain advantages from a thing which we are said to possess, inconsequence of the relation which we stand towards it. … Property and law are born together, and die together. Before laws were made there was no property; take away laws, and property ceases”, Jeremy Bentham, 1 Theory of Legislation 137, 139 (Boston: 1840).

“A man shall not be allowed to blow hot and cold – to affirm at one time and deny at another – making a claim on those whom he has deluded to their disadvantage, and founding that claim on the very matters of the delusion. Such a principle has its basis in common sense and common justice, and whether it is called ‘estoppel’, or by any other name, it is one which the Courts of law have in modern times most usefully adopted”, Cave v Mills (1862) 7 Hurl & N 913, 927–8, 158 Eng Rep 740.

“It is not for its own sake that men desire money, but for the sake of what they can purchase with it”, Adam Smith, The Wealth of Nations (1776), Book Four, Ch. I.

“Why should anyone outside a lunatic asylum wish to use money as a store of wealth? Because … our desire to hold money as a store of wealth is a barometer of the degree of our distrust of our own calculations and conventions concerning the future … The possession of actual money lulls our disquietude”, J.M. Keynes, The General Theory of Employment (1937), Quart. J. Econ. p. 216.

“Our law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law”, Entick v Carrington (1765) 2 Wils KB 275, 291, 95 Eng Rep 807, 817.

“The fundamental feature of a trust is that it separates the functions of administration and enjoyment which were so inseparably combined in the Roman law concept of dominium. Although the trustee is invested with the legal title (which, by definition carries the administrative powers of management and disposition) his ownership is nominal and purely formal. The legal title is a ‘paper title’; the trustee, a mere ‘paper owner’. The substance of beneficial enjoyment is reserved at all times for the beneficiary … The legal title is a matter of form; the rights of the beneficiaries represent the substance”, K.J. Gray and P.D. Symes, Real Property and Real People (1981), p. 22

Terms in bold are defined and explained in detail in the Encyclopedia.

Comments (5)

By admin, August 23, 2009 11:01 pm

This is the first posting for realestateresearchonline.com
So let’s start with 20 Questions

1. How does a color of title affect a right to adverse possession?
2. If it’s called a condominium (or condo) in the US and strata title (or a unit) in Australia what is the equivalent in the UK and France?
3. What are the four essential requirements for an easement and if you are not sure where would you readily find these?
4. What is the difference between open market value (OMV), market value (MV), fair value (FV), and fair market value (FMV) and where would you find the most widely used explanation(s) of these terms
5. How do you measure GEA, GIA, GLA, NIA, NLA and RA and who provides the most detailed explanation(s) for their use?
6. What is a reasonable restraint on alienation?
7. What is the rule in Dumpor’s Case and the rule in Shelly’s Case?
8. If an American appraiser refers to an Inwood factor what would an English valuer understand it to mean?
9. In the US it’s called a homeowners’ association (HOA) (or condominium owners’ association), in Australia a body corporate (owners corporation or strata company), what is it called in the UK?
10. What are the formula to find the annuity one will purchase and for an NPV?
11. At the end of a bail à construction or an emphyteotique lease who owns the permanent buildings on the land and which books would give you detailed information on the subject?
12. What is the difference between a determinable interest, a conditional interest, and a contingent interest and a contingent remainder?
13. If there are ‘approaches to value’ in the US what are they called in the UK and what are the four principle means used for carrying out valuation or an appraisal?
14. Where would you find the titles waiver in Am.Jur., C.J.S., and Halsbury’s Law of England and what cases best explain the difference between waiver and abandonment?
15. Can a mortgagee secure a collateral advantage when granting a mortgage so as not to create a clog on the equity of redemption?
16. How do you convert a Township into hectares and ares into square feet?
17. What did the US Supreme Court say about native title in 1923, 1836 and 1955, the Privy Council in 1957 and 1991, and the Supreme Court of Canada in 1997?
18. Is a tenant for life impeachable for voluntary waste and is a tenant for a term of years liable for permissive waste?
19. What is the connection between Sir Richard Torrens and a good title?
20. What is the difference between spot zoning and a floating zone?

(Terms in bold are defined and explained in detail in the Encyclopedia.)

To answer all these questions could take hours, but the answers and many, many more can be found in the Encyclopedia of Real Estate Terms (Third Edition (hardcover, 1,536 pages) (purchase at www.deltaalpha.com) or Online (subscribe at www.realestatedefined.com). Alternatively, these reference sources will indicate where to go for further research.