REAL ESTATE

1. REAL ESTATE Legal Research Guide Advanced Legal Research University of Denver College of Law Spring, 2002 Dawn MacKinnon

2. Table of Contents • Introduction 3 • Definitions 4 – 5 • Secondary Sources 6 – 14 • Primary Authority 15 – 26 • Practice Materials 27 – 32 • Online Materials 33 – 35 • Conclusion 36

3. 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.

4. Definition of Terms • 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. • 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. • 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. • 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. • 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.

5. Definition of TermsContinued • Eminent Domain: The inherent power of a governmental entity to take privately owned property, especially land, and convert it to public use, subject to reasonable compensation for the taking. • Bona Fide Purchaser: One who buys something for value without notice of another’s claim to the item or of any defects in the seller’s title. • Landlord and Tenant: The landlord, or lessor, is the owner; the tenant, or lessee, supplies payment in order to 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). • Novation: The act for substituting for an old obligation a new one that either replaces an existing obligation with a new obligation or replaces an original party with a new party. • Servitude: An encumbrance consisting in a right to the limited use of a piece of land without the possession of it; a charge or burden on an estate for another’s benefit.

6. 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.

7. 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.

8. Secondary SourcesLegal Encyclopedias • 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

9. Secondary SourcesLegal EncyclopediasContinued • 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. • 77A C.J.S. §§ 1 et. seq. I. In General §§ 1-5 II. Requisites & Validity of Contract §§ 9-81

10. Secondary SourcesAmerican 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

11. Secondary SourcesAmerican Law Reports Continued • American Law Reports – Federal • 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

12. Secondary SourcesLegal Periodicals • Legal Periodicalsinclude 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.

13. Secondary SourcesLegal 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, October-December, 2001. • David v. Goliath: Negotiating a Commercial Lease on Behalf of the Tenant, W. Leighton Lord III, 13 South Carolina Lawyer 31, 2001.

14. Secondary SourcesRestatements • Restatementsare 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.

15. 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.