Real Estate Law

Real estate law involves a person's rights relating to the ownership and possession of land, buildings or structures on land (including those materials beneath the land's surface, such as minerals and oil, and the area above the land's surface). Real estate is sometimes referred to as real property in order to distinguish it from personal property, which is moveable property. A common stumbling block for many consumers entering the real estate market is the number of unfamiliar terms used to describe the various possessory and ownership interests a person can have in a piece of real estate. Chester Clem, P.A. discusses on this page some of the basic concepts in real estate ownership, including buying a home or condominium and landlord/tenant relations.
Real Estate Ownership
There are a variety of ways in which a person can own real estate. The most common form of ownership is fee simple absolute. Fee simple absolute means the owner has the right to sell the property, use the property as security for loans (i.e., encumber the property), improve the land or buildings, possess the property and pass the property on to his or her beneficiaries as part of the estate. A fee simple absolute is the most complete form of ownership.   
Property can also be owned jointly by two or more persons. A tenancy in common, for example, is a form of joint ownership whereby all of the owners have a distinct and undivided interest in the property. Each owner is free to possess, sell or encumber the property. Should one of the owners die, his or her interest will be transferred according to his or her will or according to the state's intestacy laws if there is no will. A joint tenancy is also a form of joint ownership. However, when a joint tenant dies, his or her interest in the property is transferred to the remaining joint tenants, not to his or her beneficiaries. This transfer of ownership to the remaining owners is known as a right of survivorship.
Additionally, property can be owned by a husband and wife as an estate by the entireties which is similar to a joint tenancy. However, if the marriage is dissolved, the former husband and wife become tenants in common.   
An encumbrance is an obligation that attaches to a piece of real property and is held by a party who is not the owner of the property. An encumbrance is not an ownership interest in real property, and the property may be bought and sold even though there are encumbrances attached to the property. Encumbrances attach to property, not property owners, so a person who buys property with an encumbrance is bound by the encumbrance.
One of the more common forms of an encumbrance is an easement. An easement is the right to use another person's land for a particular purpose. There are many forms of easements. Public utility companies frequently have utility easements that permit them to run gas, water or electrical lines through property. The owner of property on a lake shore might sell to the owner of an adjacent lot without lake access an easement to cross over to the shore. A person who owns property that is landlocked may receive an easement from an adjacent landowner to have access in and out of the property. This is known as a right of way.
Another type of encumbrance is a lien, which is a charge against property that provides security for a debt or obligation of the property owner. The lien holder does not own the property. The owner of property may voluntarily agree to a lien, perhaps by taking out a mortgage. Sometimes mortgages provide the holder of the mortgage with additional rights if the property is sold or encumbered further. A lien will be imposed for nonpayment of taxes. Another common lien is a construction lien. A construction lien may arise when someone furnishes labor or materials to improve a piece of property and is not paid. By giving proper written notice and filing and serving a claim of lien with the clerk of the circuit court within the required time, the construction lienor (the person holding the lien) may force the sale of the property and payment of the lien. A property owner must comply with the construction lien law in order to avoid paying for labor and materials in excess of the amount specified in the contract with the general contractor.
Deed restrictions, also known as covenants, conditions or restrictions, encumber an owner's freedom to use the land. They may be imposed on a buyer when property is sold and are included in the deed to the property. Property developers seeking to retain a certain community atmosphere often use deed restrictions. Restrictions may limit the number or types of trees, the color of a house, the size and shape of a house, and require general upkeep of the property.
There are other restrictions on the use of property as well, such as zoning ordinances and building codes.  

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Chester Clem, P.A.
2145 15th Avenue
Vero Beach, FL 32960-3435
772-978-7675 (Fax)

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