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A provision in a contract that requires the completion of a certain act or the happening of a particular event before that contract is binding. Often a buyer will submit an offer to purchase contingent on obtaining financing or rezoning. In such a case, the seller should be sure that the contingency is specifically detailed and unambiguous and that there is a definite cutoff date; otherwise, the buyer could tie up the seller’s property indefinitely while attempting to get financing or rezoning. Parties may waive any contingency clause that was inserted for their benefit. For example, the buyer could force the seller to sell the property even though the buyer was not able to obtain the zoning— the original contingency in the contract for sale. Contingency implies a promise to use one’s efforts to bring it about.

If a contingency is worded too loosely, such as “contingent on my deciding whether it is a good deal or not,” then the entire contract is considered “illusory” and unenforceable by either party due to lack of “mutuality of obligation.” If the sale is contingent on a “satisfactory” inspection or attorney’s review of lease, the courts will try to impose standards of good faith and reasonability so a party cannot back out just because of a change in that party’s plans.

A contingent sale is different from an option. In an option, the optionee has absolute discretion whether to exercise the option. In a contingency, the buyer must buy upon the occurrence or nonoccurrence of a specified event, such as loan qualification.

The financing contingency is not only the most frequently used contingency, it is also the most controversial. Even a well-written contingency statement can cause problems. For instance, assume that a financing contingency stated that the offer was contingent upon buyer obtaining a first mortgage loan commitment for $167,500 with interest not to exceed 5 percent per annum and for a term of not less than 30 years, and monthly payments for principal and interest not to exceed $800.18 plus ¹⁄₁₂ the estimated annual real property taxes and ¹⁄₁₂ the annual insurance premium. Buyers agreed to use good faith and due diligence in obtaining such a loan. Buyers qualified for the loan but refused to take it because the lender added an interest rate escalation clause. Even though a court might allow some deviation in the financing commitment, the inclusion of an escalation clause is a material deviation of the terms of the offer to purchase and thus the buyer would not be in breach of the contract for refusing to complete the purchase; the buyer is entitled to a return of the deposit money. However, a buyer who did qualify for financing on the terms stated in an offer but who later gets divorced or otherwise changes circumstances so as to not be qualified at the time of closing may have difficulty defending a lawsuit for enforcement of the purchase contract. Sometimes, a cautious seller might add a clause to the effect that “the execution of any loan documents by the buyer shall be deemed to be an acceptance of such loan and a waiver of this contingency.”

In proximity to; adjoining or abutting; near, coterminous (having the same boundaries). Many state subdivision laws define a subdivision to include any land consisting of two or more lots, contiguous or not, offered as part of a common promotional plan of advertising and sale. Condominium property does not have to be contiguous either (as when it includes a parking lot across the street), but it must be in the same vicinity. Contiguous owners must yield, to a reasonable degree, their privacy to the general welfare of the community. For example, reasonable inconvenience may be suffered by owners whose properties are contiguous to commercial enterprises and railroads.

Often a partial release clause in a mortgage may require that a partial release be given only on a parcel that is contiguous to a parcel previously released. The term contiguous should be precisely defined so the release clause will not be challenged on grounds of uncertainty and vagueness.
 

Notice of certain facts that may be discovered by due diligence or inquiry into a public record; a legal presumption that a person is responsible for knowing these facts. The proper recording of a document gives constructive notice to the world of the document’s existence and contents. Possession of property also imparts constructive notice of the rights of the party in possession. Examples of rights of parties in possession are rights under an unrecorded deed, contract for deed, lease-option, and rights of adverse possession. Constructive notice is also referred to as legal notice and is in contrast to actual notice, which is express or direct knowledge acquired in the course of a transaction.

Conduct by the landlord that so materially disturbs or impairs a tenant’s enjoyment of the leased premises that the tenant is effectively forced to move out and terminate the lease without liability for further rent. This concept is a product of modern property law, which now tends to place more emphasis on the quality of possession or habitability under a lease. Constructive eviction might occur when a landlord cuts off the electricity or fails to provide heating, makes extensive alterations to the premises or attempts to lease the property to others, or fails to provide elevator service in a highrise building. There can be no constructive eviction without the tenant’s vacating the premises within a reasonable time of the landlord’s act. The tenant’s duty to pay rent is not terminated if the tenant remains in possession.

The tenant can sue to recover possession or bring an action for damages based on breach of the covenant for quiet enjoyment.
 

Parts of a property necessary or convenient to the existence, maintenance, and safety of a condominium, or are normally in common use by all of the condominium residents. All condominium owners have an undivided ownership interest in the common elements. Maintenance of the common elements is paid for by the condominium owners’ association, and each owner must pay a monthly maintenance assessment prorated according to his or her individual common interest. Typical common elements are elevators, load-bearing walls, floors, roofs, hallways, swimming pools, and so on.

To mingle or mix; for example, to deposit client funds in the broker’s personal or general account. Licensees found guilty of commingling funds may generally have their license suspended or revoked by the state licensing agency. Some commingling situations are rather obvious; others are more involved, such as a broker acting as property manager who takes a fee out of the tenant’s security deposit.

Commingling may occur when a broker fails to deposit trust funds into escrow, a client trust, or earnest money account at a bank or recognized depository within the time frame mandated by rule or regulation. 

Commingling does not occur when the broker keeps a minimum amount of the broker’s own money in the client trust account in order to keep the account open. The amount is often regulated by rule or regulation. In many states (but not all), it is permissible to hold an uncashed check until acceptance of an offer when directed to do so by the buyer (offeror); however, before the seller accepts the offer, the broker must specifically disclose the fact that the check is being held in an uncashed form.

As a matter of policy, not cashing checks until an offer is accepted may prevent problems for the broker. Often a buyer submits an offer with a personal check as an earnest money deposit. If the broker deposits the check in the client’s trust account and the offer is rejected, then the broker may be in a position of having to refund the earnest money deposit before the broker knows whether the buyer’s check has cleared. If the broker delays in returning the earnest money deposit, the buyer will be irritated and their business relationship ruined. Yet, if the broker returns the deposit and the check bounces, the broker is out the money. 

A more serious offense than commingling is conversion, which is the actual misappropriation of client monies.
 

A written system of standards of ethical conduct. Real estate brokerage is a profession, an occupation that requires special skill and advanced training. Because of the nature of the relationship between a broker and a client or other persons in a real estate transaction, a high standard of ethics is needed to ensure that brokers act in the best interests of both their principal and any third parties. 

Most professional organizations incorporate a set of self-governing rules that also include the application of penalties for inappropriate behavior or negligence. Although technically only members are held to these standards, increasingly, courts look to the profession’s code of ethics. 

Members of the National Association of REALTORS® (NAR) subscribe to a code of ethics that is in a constant state of flux. NAR has published the booklet Interpretation of the Code of Ethics, applying the code to practical situations. There are also approved Standards of Practice, which interpret some of the articles of the Code of Ethics, which may be cited as additional support for alleged violations of the code. REALTORS® are required to complete ethics training within each four-year cycle. The Code is available in six languages: English, Chinese, Korean, Spanish, Tagalog, and Vietnamese at www.realtor.org.
 

A detailed cash accounting of a real estate transaction prepared by a broker, escrow officer, attorney, or other person designated to process the mechanics of the sale, showing all cash received, all charges and credits made, and all cash paid out in the transaction. A closing statement may also be called a settlement statement or adjustment sheet—in all federally related loans, the HUD-1 settlement sheet is used. The statement shows how all closing and adjustment costs plus prepaid and unpaid expenses are allocated between the buyer and the seller. In many areas, separate closing statements are prepared for the buyers, showing credits, charges, and the balance due from them at closing; for the sellers, showing credits, charges, and the proceeds they will receive at closing; and for the broker, showing a detailed accounting of all monies received and disbursed in the transaction.

Latin for “let the buyer beware.” Buyers should inspect the goods or realty before purchase because they buy “as is” and at their own risk. 

The modern judicial trend is to soften the effect of this ancient doctrine. Today, the seller has more of an affirmative duty to disclose any and all factors that might influence the buyer’s decision to purchase. For residential properties of one to four units, many states now require that sellers deliver to the buyer a written disclosure about certain conditions about the property. Buyers should not rely on the seller’s disclosure as either a warranty or a guarantee. Buyers have not only a right but also a responsibility to “discover” issues about the property that are important to them. In other words, the written seller’s disclosure places the burden on the seller to disclose and on the buyer to discover. 

Although some sellers may “forget” to make certain disclosures, buyers should also remember that sellers cannot disclose that of which they are not aware. Licensees must still disclose those issues of which they have knowledge because the courts have generally held that a prospective purchaser, as a member of the public, can rely on the statements made by a licensed salesperson or broker. 

The doctrine of caveat emptor has been substantially altered with respect to residential leases. In the past, a landlord would lease residential premises “as is” with no obligation to make them habitable or to make repairs. In several states, this doctrine has been replaced in residential leases by an implied warranty of habitability, whereby the landlord has an obligation to make the premises fit before the tenant moves in and to continue to keep the premises fit during the lease.
 

A bill of exchange (check) drawn by a bank (usually signed by its cashier) upon itself as drawer and payable upon demand, like a promissory note executed by the bank. A cashier’s check is preferred to an ordinary personal check, and it (or a certified check) is usually required of the purchaser of property by the contract terms to close a transaction. 

A cashier’s check, however, is still subject to a stop-payment order of the maker. The certified check is subject to a stop-payment order only if the maker obtains the bank certification, not when the payee has the maker’s check certified in the maker’s bank.
 

The spendable income from an investment after deducting from gross income all operating and fixed expenses, including principal and interest. The amount of cash derived over a certain measured period of time from operation of income-producing property after debt services and operating expenses, but before depreciation and income taxes. “Net after-tax” cash flow, or cash available for distribution, includes an allowance for income tax attributable to the income. Pre-tax cash flow is sometimes called cash throw-off. 

Cash flow is different from “net profit.” To arrive at net profit, the owner will make a deduction for depreciation but will not deduct for loan amortization. 

Two benefits of investing in improved, income-producing real property are the tax shelter provided during ownership and the anticipated appreciation in the property value that may be realized upon its sale. Thus, an investment can turn out to be profitable even if there is monthly negative cash flow. Under the 1986 Tax Reform Act, real estate tax shelters were severely limited.
 

The percentage selected for use in the income approach to valuation of improved property. The CAP rate is designed to reflect the recapture of the original investment over the economic life of the improvement to give investors an acceptable rate of return (yield) on their original investments and to provide for the return of the invested equity. In other words, if the property includes a depreciating building, the CAP rate provides for the return of invested capital in the building by the end of the economic life (the recapture rate that allows for the building’s future depreciation) and the return on the investment in the land and the building (similar to yield). 

Example: If a building has a 50-year economic life, then the recapture rate is set at 2 percent per year. If the rate of return on the investment is 8 percent and the recapture rate is 2 percent, then the overall capitalization rate applicable to the building is 10 percent. 

An appropriate CAP rate is influenced by the conditions under which the particular investment is being operated, as well as the availability of funds, prevailing interest rates, and risk. If the property earns $100,000 per year and the cap rate is 9 percent, then determining what the property is worth to the investor is as follows: $100,000 ÷ 0.09 = $1,111,111. Only an experienced appraiser can select the appropriate CAP rate—a mere 1 percent difference in the suggested CAP rate could make a 12½percent difference in the value estimate. 

The CAP rate measures the risk involved in an investment; thus, the higher the risk, the higher the CAP rate; the lower the risk, the lower the CAP rate.
 

The regulations, rules, or laws adopted by a condominium owners’ association or corporation for the condominium’s management and operation. Bylaws cover such matters as the manner and selection of the board of directors and the duties and obligations of the corporation members. These self-imposed rules are a form of private law. Whereas a corporate resolution applies to a single act of the corporation, a bylaw is a continuing rule to be applied on all future occasions. Condominium bylaws are initially established by the developer and then are subject to change when the owners’ association takes over. The bylaws may be amended as noted in the original condominium declaration.

A broker who represents the buyer in a statutory or fiduciary capacity. Some buyer’s brokers practice single agency, in which they represent either buyers or sellers, but never both in the same transaction. Some buyers’ brokers represent only buyers and refer prospective sellers to other brokers—these brokers are called exclusive buyer brokers. The broker is paid by the buyer, or through the seller or listing broker at closing, provided all parties consent. 

With the widespread acceptance of buyer representation, there is a good probability that the listing firm will also have a buyer-client interested in one of its listings. Many companies develop office policy based on whether to continue representing both clients under a consensual dual agency or to practice single agency by referring one of the parties to another brokerage.
 

Any type of business that is for sale (also called business chance brokerage or simply business brokerage). The sale or lease of the business and goodwill of an existing business, enterprise, or opportunity, including a sale of all or substantially all of the assets or stock of a corporation, or assets of a partnership or sole proprietorship. 

Generally, if real property is an asset of the business, a real estate broker’s license is required to sell the business. Because a broker may not be aware of many of the special problems involved in selling a business, however, the advice of an experienced business counselor or attorney may be appropriate. Both seller and buyer should be aware of the application of the bulk transfer laws on the sale of the business. They should also be aware that, under the Uniform Commercial Code, any contract involving the sale of goods of $500 or more must be in writing to be enforceable.
 

A day of the week, except Saturdays, Sundays, and holidays; a normal working day. Because of accepted custom and practice, the term business day is preferable to the term banking day or working day. 

Some laws require notice within five business days; for example, notice to quit for tenant’s failure to pay rent; other laws refer to calendar days. A dispute can arise if a contract fails to state whether the notice be within business days or calendar days, although the usual interpretation is that it is calendar days unless specified otherwise.
 

An ownership concept describing all the legal rights that attach to the ownership of real property, including the right to sell, lease, encumber, use, enjoy, exclude, and devise by will. These rights also include the rights of use, occupancy, cultivation and exploration, and the rights to license, dedicate, give away, share, mortgage and trade, or exchange. When purchasing real estate, the buyer actually buys the rights previously held by the seller, except those that are reserved or limited in the sale. These rights are called beneficial interests associated with real property interests.

A written governmental permission for the construction of a new building or other improvement, the demolition or substantial repair of an existing structure, or the installation of factory-built housing. The proposed construction must conform to local zoning and building codes and usually must be inspected and approved upon completion. In most cases, a building permit must be obtained before the start of a project, which provides a convenient way for local authorities to monitor compliance with the zoning code.

A prudent developer should include in the purchase agreement for a proposed development site not only a condition that the developer obtain a building permit but that it is obtained by a stipulated deadline. Otherwise, the developer could unreasonably delay seeking the permit while keeping the seller’s property off the market. 

Any owner contemplating an addition and/or change to property should first check with the appropriate county or municipal building department to avoid any building code violations, which will generally render a seller’s title unmarketable. Failure to disclose such violations may constitute a material misrepresentation, entitling the buyer to rescind the transaction and obtain the return of his or her money.
 

A broker’s written opinion of the value of a particular property, often in the form of a competitive market analysis. Depending on state law, the broker may charge a separate fee for a BPO, provided it is not used in connection with originating a federally related loan and is not labeled as an appraisal. BPOs are often requested by relocation companies and lenders involved in “short sales” of distressed properties.

1.    Short-term loan to cover the period between the termination of one loan, such as an interim construction loan, and the beginning of another loan, such as a permanent takeout loan; the loan between the acquisition of a property and its improvement or development to make it qualify for a permanent loan. A bridge loan is sometimes used to provide funds for the costs incurred in converting an apartment house into a condominium. (See gap financing, swing loan.)

2.    A residential financing arrangement in which the buyer of a new home borrows money and gives a second mortgage on the buyer’s unsold home to fund the acquisition of a new home. This loan is useful where the seller of the new home will not accept an offer “subject to the sale of the buyer’s home” or where the buyer needs to raise the down payment by a certain date or else lose the new home.

A mortgage secured by several properties or a number of lots. A blanket mortgage is often used to secure construction financing for proposed subdivisions or condominium development projects. The developer normally seeks to have a “partial release” clause inserted in the mortgage in order to obtain a release from the blanket mortgage for each lot as it is sold, according to a specified release schedule. For example, if a developer obtains a $500,000 mortgage to cover the development of 50 lots, he might be required to pay off $12,500 of principal to get each lot released from under the blanket mortgage. Sometimes, land developers have a “special recognition” clause put in the blanket mortgage whereby the lender agrees to recognize the rights of each individual parcel owner, even if the developer defaults and there is a foreclosure. Occasionally, the federal government secures a blanket lien against all properties owned by persons who have defaulted on their income taxes. 

A blanket mortgage may also be used when a purchaser buys a house plus an adjacent vacant lot and finances the purchase with a single mortgage that covers both properties. It may also be used where the equity in one property is insufficient to meet the lender’s requirements.

A written agreement by which one person sells, assigns, or transfers to another a right to, or interest in, personal property. A bill of sale is sometimes used by the seller of real estate to evidence the transfer of personal property, such as when the owner of a store sells the building and includes the store equipment and trade fixtures. The transfer of the personal property can be affected by mention in the deed or, as is more common, by a separate bill-of-sale document. A bill of sale may be with or without warranties covering defects or unpaid liens of the property. 

A bill of sale is normally used when the purchaser is an investor and, for tax reasons (faster depreciation write-off), wants a separate accounting for the personal property involved, especially if the property is valued at an amount greater than the standard price for similar property. The broker in a transaction involving personal property should see that an accurate inventory is taken of the items included in the bill of sale.
 

A contract in which each party promises to perform an act in exchange for the other party’s promise to perform. The usual real estate sales contract is an example of a bilateral contract in which the buyer and the seller exchange reciprocal promises respectively to buy and sell the property. If one party refuses to honor a promise and the other party is ready to perform, the nonperforming party is said to be in default. Neither party is liable to the other until there is first a performance, or tender of performance, by the non-defaulting party. Thus, when the buyer refuses to pay the purchase price, the seller usually must tender the deed into escrow to show readiness to perform. In some cases, however, tender is not necessary. 

Depending on its wording, a listing form may be considered a bilateral contract, with the broker agreeing to use best efforts to locate a ready, willing, and able purchaser for the property, and the seller promising to pay the broker a commission if the broker produces such a buyer or if the property is sold. Once signed by the broker and the seller, such a listing contract becomes binding on both.
 

An itemized financial statement setting forth personal or corporate assets, liabilities, and net worth (the difference between assets and liabilities) as of a specified date. It is a quick cross section analysis of the business. Most lending institutions require an applicant for real estate financing to submit a balance sheet, usually on a form attached to the loan application. Some lenders also require a profit and loss statement showing income and expenses. Some states have enacted false statement acts to penalize the falsification of statements used in the loan process.

An offer to buy submitted to a seller with the understanding that the seller has already accepted a prior offer; a secondary offer. Sometimes the seller accepts the backup offer contingent on the failure of the sales transaction on the part of the first purchaser within a specified period of time. The seller must be careful in how she proceeds, however, when the time for buyer’s performance under the first contract has expired. Rather than just immediately treat the contract as terminated and arrange to convey the property to the backup buyer, the seller should make sure that the seller has fully performed, or made a full and adequate tender of such performance, to the first purchaser. Otherwise, the seller may be contractually bound to convey the same property to two different buyers. The best practice is to obtain a release from the first purchaser. 

The real estate agent should be cautious about encouraging the seller-client to breach any existing contract in order to accept a better second offer. The agent might be sued by the first buyer for the tort of intentional interference with contract.

Buyers should consider reserving the right to withdraw from the accepted backup offer at any time prior to notice that the seller has canceled the first contract. This gives the buyer some flexibility in continuing to look for other properties.

A doctrine of tort law stating that persons who maintain on their property a condition that is both dangerous and conceivably inviting to children owes a duty to exercise reasonable care to protect children from the danger. Thus, an owner who maintains a swimming pool or unmarked open pit, or discards a refrigerator or freezer may be liable for injuries to trespassing children. Construction sites should be adequately secured to prevent inquisitive children from being injured.

A competent and disinterested person authorized by another person to act in her place. In real estate conveyance transactions, an attorney-in-fact, who has a fiduciary relationship with the principal, should be so authorized by way of a written, notarized, and recordable instrument called a power of attorney. The attorney-in-fact need not be an attorneyat-law, although people often give a power of attorney to their lawyers. 

An attorney-in-fact may have a general or specific power; however, even one with general powers may not act in any way contrary to the principal’s interests (for instance, selling the principal’s property for inadequate consideration) or act in his own interests (for example, conveying the principal’s land to himself). The listing broker should think carefully about possible conflicts of interest before accepting a power of attorney from the client and should also consider having separate written instructions detailing exactly what actions, and/or on what terms, the broker is authorized to act. 

An attorney-in-fact appointed by a minor is not competent to convey title to real property owned by the minor. 

A husband cannot be his wife’s attorney-in-fact for purposes of releasing her dower rights.
 

The legal process of seizing the real or personal property of a defendant in a lawsuit by levy or judicial order, and holding it in court custody as security for satisfaction of a judgment. The lien is thus created by operation of law, not by private agreement. The plaintiff may recover such property in any action upon a contract, express or implied. 

Real property is attached by recording a copy of the writ of attachment in the public record. The attachment thus creates a lien against the property before entry of a judgment so that the plaintiff is assured there will be property left to satisfy the judgment. The lien can be enforced by issuance of an execution after a judgment for the plaintiff. 

An attachment may arise from an action for payment of money upon an unsecured contract. The property may not be sold or encumbered free of the attachment without satisfaction or release of the attachment, or without the posting of a cash bond equal to plaintiff’s claim plus costs. An attachment is not available when a party brings an action to collect payment of a secured obligation (mortgage).

The value of real property established for the purpose of computing real property taxes. In general, property is valued or assessed for tax purposes by county and township assessors. The land is usually appraised separately from the building, and the building value is usually determined from a manual or set of rules covering unit cost prices and rates of depreciation, although some states require assessments to be a certain percentage of true or market value (assessment ratio). State laws may provide for property to be reassessed periodically. Each taxing district has its own methods for constantly updating assessments, although most use a combination of building permit records, on-site inspections, and conveyance tax records. Generally, property owners claiming that errors were made in determining the assessed value of their property may present their objections to the local boards of appeal or boards of equalization.

Words in a contract intended to signify that the seller offers the property in its present condition, with no modifications or improvement, and is usually intended to be a disclaimer of warranties or representations. The recent trend in the courts is to favor consumers by preventing sellers from using as-is wording in a contract to shield themselves from possible fraud charges brought on by neglecting to disclose known material defects in the property. 

Even though an as-is clause may give some protection to the seller from unknown defects, the clause is inoperative when the seller actively misrepresents the condition of the property. It does not shield the seller who fails to disclose a readily observable defect, basically saying, “You take it as you see it.” The idea is that the buyer takes the visible condition into account when making an offer and setting the purchase price. Therefore, if a buyer should be expected to discover a defect upon a reasonable inspection, the buyer will be charged with notice; otherwise, the broker and/or seller have the affirmative duty to inform the buyer of the defect, preferably in writing. 

Sellers can protect themselves by being specific in the contract, for example, about recurring plumbing problems, a cracked foundation, leaky roof, den built without a building permit, all in as-is condition. If, for example, the roof defect was not obvious, and the buyer did not know of this material defect but the seller did know, then a general as-is clause is probably worthless. 

Many contracts contain standard language that must be evaluated in light of an as-is clause. For example, the seller may still be required to provide a pest control report even though the property is sold as is. In such a case, the seller may want to affirmatively delete the standard termite clause. Also, “as is” does not normally cover title or encroachment matters unless specifically noted. 

Even where an as-is clause can protect a seller, many courts hold that a broker cannot use the as-is clause to avoid liability for misrepresentation because the broker is not a party to the contract in which the as-is clause is contained. 

In appraisals, “as is” is an indication that the value estimate is made with the property in its current condition, which may not be the highest and best use or may not include needed repairs. 

 

A transaction in which the parties are dealing from equal bargaining positions. Parties are said to deal “at arm’s length” when each stands on the strict letter of her rights and conducts the business in a formal manner without trusting the other’s fairness or integrity and without being subject to the other’s control or dominant influence (as is sometimes the case in transactions between family members). The absence of an arm’s-length transaction may give rise to tax consequences when property is transferred at less than fair market value. Whether a transaction was at arm’s length is also relevant to the “willing-buyer, willing-seller” concept in the estimation of market value.

The nonjudicial submission of a controversy to selected third parties for their determination in a manner provided by agreement or by law. Disputes between listing REALTORS® and cooperating REALTORS® are often settled by arbitration, with both parties agreeing to comply with the final decision of the arbitrator.

Many disputes are settled according to detailed rules established by the American Arbitration Association. (See Appendix A.) The prime feature of a binding arbitration is that it is fast and final, as well as the fact that the findings remain “private.”

 

That, which belongs to something, but not for all time; all those rights, privileges, and improvements that belong to and pass with the transfer of property but are not necessarily a part of the actual property. Appurtenances to real property pass with the real property to which they are appurtenant unless a contrary intention is manifested. A deed normally describes the property granted and then states, “together with all appurtenances.” Typical appurtenances are rights-of-way, easements, water rights, condominium parking stalls, and property improvements.

A report that contains the definition of value to be applied; the estimate and effective date of the valuation; the appraiser’s signature and certifications, along with any limiting conditions; description of the property and rights being appraised; general and specific data; sufficient justification to support the value estimate; consideration of each of the three approaches; and the reconciliation. It is common for the report to include such supporting documentation as maps, floor plans, and photos.

 

State and federal laws designed to maintain and preserve business competition. 

Antitrust situations include price-fixing, certain types of boycotts, allocation of customers or markets, restrictions on competition in shopping center leases, and certain restraints placed on franchisees by franchisors. Also challenged are certain “tie-in” arrangements, as when a developer conditions a sale by insisting that the buyer promise to list the property with the developer if the buyer wishes to resell, or when a property manager attempts to force a client’s commitment to list with the manager in the event of sale. 

Certain real estate brokerage activities have come under public scrutiny by the Federal Trade Commission and the Department of Justice. These activities include the fixing of general commission rates by local boards or groups of brokers and the exclusion of brokers from membership in local boards or in multiple-listing arrangements due to unreasonable membership requirements. As a result of court cases, local real estate boards no longer directly or indirectly influence fixed commission rates or commission splits between cooperating brokers. Moreover, in some states, clients must be specifically informed that the commission rates are negotiable between client and broker.

 

A declaration of intention not to perform made by a buyer or a seller through words or acts prior to closing. At that time, the other party, not being in default, is entitled to enforce the contract in court without first having to offer or tender performance.

 

A contract entered into by two people contemplating marriage for the purpose of settling the property rights of both in advance, also called a prenuptial (“prenup”). It is advisable for each person to have his own legal counsel to negotiate such a contract. The enforceability of an antenuptial (or prenuptial) agreement may depend on the completeness of disclosure and the existence of independent counsel for each party.

 

An expression of the relationship of the total finance charge to the total amount to be financed as required under the federal Truth in Lending Act. Tables available from any Federal Reserve banks may be used to compute the rate, which must be calculated to the nearest one-eighth of 1 percent. Use of the APR permits a standard expression of credit costs, which facilitates easy comparison of lenders. (The act permits use of the abbreviation APR.)

 

A major department or chain store strategically located at a shopping center so as to give maximum exposure to smaller, satellite stores. An anchor tenant is called a magnet store or a traffic generator. In the typical strip shopping center, two anchor stores, such as a supermarket and a large drugstore, are located at opposite ends of a mall, with smaller stores in between. This helps to generate maximum sales volume in the entire shopping center. This strategy is important to the lessor because most commercial lease rents are based on a percentage of gross sales. 

In recent years, the Federal Trade Commission has sought to limit the powers of the anchor tenant in controlling the selection of satellite tenants and their merchandise.
 

The material that constitutes the increase of soil on a shore or riverbank, added by the process of accretion. Also called alluvium or alluvial deposits, it is the fine material, such as sand or mud, carried by water and deposited on land. The words alluvion and accretion are sometimes mistakenly used synonymously.

A provision sometimes found in a promissory note or mortgage that provides that the balance of the secured debt becomes immediately due and payable at the option of the mortgagee upon the alienation of the property by the mortgagor. Alienation is usually broadly defined to include any transfer of ownership, title, or an interest or estate in real property, including a sale by way of a contract for deed. Also called a due-on-sale clause.

An appraisal term meaning that reasonable use, at the time of the property appraisal, which is most likely to produce the greatest net return to the land and/or the building over a given period of time. The use must be legal and in compliance with regulations and ordinances within the police power of the county and the state, including health regulations, zoning ordinances, building code requirements, and other regulations. The highest and best use is determined by evaluating the quantity and quality of income from various alternative land uses. Net return normally is interpreted in terms of money, although consideration may be given to such things as amenities.

For example, vacant land in a central business district currently used as a parking lot may or may not be employed at its highest and best use, depending on whether the surrounding market is ready for further commercial development. A gas station site may be more effective as a fast-food facility or a dry cleaner.

For appraisal purposes, land is always valued as though vacant and available for development to its highest and best use. The estate taxes and the real property taxes paid by an owner of unimproved real estate are usually based on the highest and best use of the land rather than the use to which it is actually devoted.

An action for just compensation brought by a person whose property has been effectively taken, substantially interfered with, or taken without just compensation. For example, when a governmental authority announces it will condemn an owner’s property and then unduly delays in taking the property, the owner can bring legal action to force a condemnation and payment for the taking. Or if the noise of low-flying government aircraft damages the owner’s use of the land, there may be inverse condemnation, or a taking of property for which compensation must be paid. Another example is where some public works are undertaken with resultant damage to a private owner, but no condemnation action is taken by a public body. Such cases are called inverse condemnations because they are started by an owner who seeks compensation from the condemning agency and the payment is for land not directly condemned. (See condemnation.)

Courts have held that a zoning action that merely decreases the market value of property does not constitute a compensable taking actionable under a theory of inverse condemnation as long as a reasonably viable economic use exists. An inverse condemnation suit is not available before there has been an actual taking or physical interference with the subject property.

Inverse condemnation is the flip side of eminent domain and occurs when a public entity indirectly “condemns” private property by acting (e.g., a restrictive use regulation like downzoning), or failing to act when it should have, and property loss or damage results. The taking is not by legal action but by conduct. It is irrelevant whether the act or failure to act was negligent.
 

A rule of agency law stipulating that when a contract is required by law to be in writing, the authority of an agent to enter into such a contract on behalf of the principal must also be in writing. For example, a power of attorney for real estate contracts must be in writing because state statutes of fraud generally require that all real estate contracts be in writing and that the agent’s authority likewise be in writing. Usually, the power of attorney must also be recorded if the real estate contract (such as a land contract for deed) is expected to be recorded.

Use of a new name. A person may change his or her name merely by using another name with the intention to make that the legal name, as long as the change is not done with fraudulent intent. However, because of potential identification problems, most parties changing their names go through a formal name change procedure that usually involves filing a petition with the proper state authorities. They may also be required to publish the change in the local newspaper for a statutory period of time.

A name change can also be embodied in a divorce decree permitting a woman to resume use of her maiden name or that of another former husband. A corporation can change its name by an amendment to its articles of incorporation, which must be filed in the state of incorporation.
People who change their names should be sure that the new name is properly noted at the registrar of titles if they own registered property and at the recorder’s office if they own any other recorded properties. For example, a recorded document should be amended to read, “Cathy Jones, being the same person who acquired title as Cathleen J. Arbuckle.”

If a person uses one name as a grantee of property and then grants the same property under another name, there will be a potential defect in the recorded title. When the second deed is recorded, it will not be recorded in the proper chain of title and therefore will not give constructive notice to the world of its contents. For example, if Patty Lee, a single woman receiving title as such and later changing her name through marriage, should convey title as Patty Wilson, there would be a defect in the record title. Patty Lee should convey title as “Patty Wilson, formerly known as Patty Lee.” An appropriate entry would therefore be made in the grantor-guarantee index so that a title company searching the title could see that the new deed was derived from the chain of title in which Patty Lee was the grantee.

It is helpful to title searchers for a married woman to continue using the name given by her parents. For instance, Patty Ann Lee would become Mrs. Patty Ann Wilson or Mrs. Patty Lee Wilson, not Mrs. Robert Wilson.

One who purchases property for another so as to conceal the identity of the real purchaser; a dummy purchaser; a nominee; a front.

At one time, it was necessary for an owner who wanted to change a title to joint tenancy from severalty to convey the property to a straw man, who would then convey it back to the owner and joint tenant. Many states no longer require that the joint tenancy be created at the same time by one and the same instrument. Thus, an owner can convey to himself and another party as joint tenants, or convey to herself and a spouse as tenants by the entirety without using a straw man.

Where several tracts of land are being assembled for development, confidentiality may be important—hence the desirability of nominees and straw men. However, a federal court has held that if the nominee misrepresents the identity of the principal, with knowledge that the seller would not have negotiated if in possession of the true facts, the seller may set aside the transaction. In addition, if the nominee or straw man exercises any managerial control over the property, then he may be held to be the real owner for tax purposes.

If a broker or a salesperson attempts to use a straw man to purchase property listed by the broke or the salesperson, this relationship with the buyer must be specifically disclosed in writing to the seller. Failure to do so may result in license suspension or revocation.

In a presale of a condominium, a developer normally must attain a certain percentage of purchases before a lender commits to lend money; straw men are sometimes used to meet this minimum requirement, though this practice is clearly against the lender’s policy and would be illegal in connection with VA and FHA loans.

The act of a tenant formally agreeing to become the tenant of a successor landlord; as in attorning to a mortgagee who has foreclosed on the leased premises. Attornment establishes a new tenancy, with the mortgagee being the landlord, and acts as a defense against the defaulting mortgagor’s claim for rent.

In a long-term lease situation, an attornment agreement is typically entered into by a sublessee with a fee owner of the land and a mortgagee holding a mortgage on the fee or on the master leasehold estate. The sublessee seeks to protect his estate from destruction by reason of the premature termination of the master leasehold or from loss by reason of the foreclosure of the mortgage when the sublessor defaults. The attornment agreement provides that, in the event of termination or foreclosure, the sublease will continue, just as though the owner or the mortgagee were the lessor in a lease with the sublessee for a term equal to the unexpired term of the sublease, and upon the same terms and provisions.

An agent who receives no compensation for services. Real estate agents typically work on a payment basis contingent on selling a property. Even though unpaid, the agent still owes full fiduciary or statutory duties to the principal. This may be true even though a licensed agent may have volunteered to help a friend.

A judgment against a borrower, endorser, or guarantor for the balance of a debt owed when the security for a loan is insufficient to satisfy the debt. A deficiency occurs when the foreclosure sale of a property produces less than the amount needed to pay the costs and expenses of the action and to satisfy the obligation secured by the foreclosed mortgage. The deficiency is entered as a personal judgment against the original mortgagor and operates as a lien on the judgment debtor’s assets. It is enforceable and collectible in the same manner as any judgment at law. If this judgment proves uncollectible, the lender is probably entitled to claim a bad-debt deduction on the lender’s income taxes. In the case of a corporate mortgage, this would be a bad business debt and may fully offset against ordinary income.

In states where mortgages generally carry a power of sale, creditors must bring a separate action to obtain a deficiency judgment because the jurisdiction of a court is not invoked. If parties agree that the lender can look only to the collateral (the mortgaged property) in the event of a default, they include language to the effect that “this note is without recourse,” which has the effect of preventing a deficiency judgment. In California and other states, the mortgagee cannot recover a deficiency judgment on a purchase-money mortgage; these states have enacted so-called antideficiency legislation.

A purchaser who assumes the seller’s existing mortgage thereby becomes personally liable (along with the seller) for any deficiency. However, when purchasers buy property “subject to” an existing mortgage, they cannot be held personally liable for any deficiency; thus, upon default, the purchaser’s liability would extend only to the loss of the property.

Terms that transfer ownership from one owner to another. In real estate, the agreement of sale (purchase agreement) includes agreements about price, timing, and interests. 

In a few states, an agreement of sale refers to a land contract or contract for deed.

One authorized to represent and to act on behalf of another person (called the principal). Unlike an employee, who merely works for a principal, an agent works in the place of a principal. The main difference between an agent and an employee is that agent may bind the principal by contract, if within the scope of authority, whereas an employee may not unless given express authorization. 

A real estate broker is the agent of the client (seller or buyer) to whom she owes a fiduciary or statutory obligation. A salesperson, on the other hand, is the agent of his broker and does not have a direct personal contractual relationship with either the seller or the buyer. This fact is relevant when a salesperson decides to change firms and becomes upset when the broker won’t let the salesperson take his listings. 

Note that minors cannot appoint an agent to execute their contracts, but an adult may designate a minor to act as an agent.

Acquired after a certain event takes place. An after-acquired title is obtained by a grantor of property after the grantor has attempted to convey good title. Upon the grantor’s obtaining good title, it will automatically pass by operation of law to the grantee. For example, Smith conveyed his farm to Jones on January 1, 2004, by warranty deed. However, Smith did not have valid title on January 1 because he held title to the property under a forged deed. On March 5, 2005, Smith did receive good title under a properly executed deed, so Jones automatically acquired good title on March 5. 

Note that an after-acquired title will not pass to a grantee under a quitclaim deed, because such an instrument only purports to transfer the grantor’s current interest in the land, if any. (See quitclaim deed.) 

Fixtures that are bought, paid for, and installed by the property owner-mortgagor are subject to the lien of the mortgage. In addition, many mortgages provide that all fixtures found on the property after the mortgage has been made are subject to the mortgage. The Uniform Commercial Code (UCC) has established guidelines to settle conflicting claims between mortgagees and chattel security claimants involving prior rights to after-acquired property, such as appliances bought on time and installed on the mortgaged premises. Under the UCC, a debtor can grant a superior security interest in such after-acquired property to a chattel mortgagee.

 

Housing for individuals or families whose income is a certain percentage of or below the median for the area as determined by HUD and adjusted for family size. Affordable housing projects are usually developed in conjunction with governmental assistance and/or as a condition of a development agreement with the appropriate government authority. 

The intent of affordable housing projects is to recognize the acute shortage of housing and to provide housing for persons otherwise unable to afford it. An affordable housing unit may be subject to certain conditions, restrictions, and requirements in respect of resale and occupancy requirements.

 

A sworn statement written down and made under oath before a notary public or other official authorized by law to administer an oath. The term literally means “has pledged one’s faith.” The affiant (person making the oath, sometimes called the “deponent”) must swear before the notary that the facts contained in the affidavit are true and correct. An affidavit is a complete instrument within itself, whereas an acknowledgment is always part of, or an appendage to, another instrument. An affidavit is sworn to, but an acknowledgment is not. 

The purpose of an affidavit is to help establish or prove a fact, such as identity, age, residence, marital status, and occupancy of property.

 

The prescriptive acquisition of the right to a limited use of another’s land; for example, a pathway easement across another’s property. To acquire an easement by adverse use, the claimant must generally satisfy the same requirements as those for adverse possession, including the prescriptive period. Whereas most easements cannot be lost by mere nonuse, an easement created by adverse use can be terminated by nonuse for the prescriptive period of adverse possession.

 

The acquiring of title to real property owned by someone else by means of open, notorious, hostile, and continuous possession for a statutory period of time. The main purpose of adverse possession statutes is to ensure the fullest and most productive use of privately owned land. The burden to prove title is on the possessors, who must show that four conditions were met: (1) They have been in possession under a claim of right. (2) They were in actual, open, and notorious possession of the premises so as to constitute reasonable notice to the record owner. (3) Possession was both exclusive and hostile to the title of the owner (that is, without the owner’s permission and evidencing an intention to maintain the claim of ownership against all who may contest it). (4) Possession was uninterrupted and continuous for at least the prescriptive period stipulated by state law. In this regard, successive occupation of the premises by persons who are successors in interest (that is, by privity of contract or descent) can be added together to meet the continuous-use requirement. For example, a father adversely occupies a certain parcel of land for four years. Upon his death, his son succeeds to his interest and “tacks on” to his father’s four-year prior possession. Two words can serve as memory aids: POACH (possession is open, actual, continuous, and hostile); CANOE (possession is continuous, actual, notorious, open, and exclusive). 

The statutory period does not run against any individual under a legal disability (insanity) or until the individual has a legal cause of action to oust the possessor. For example, an adverse possessor could acquire title against a life tenant but not against the remainderman, who has no right to possession until the prior life estate is terminated. 

Persons who claim title to property by adverse possession do not have readily marketable title until they obtain and record a judicial decree “quieting” the title or obtain a quitclaim deed from the ousted owner. When all requirements have been met, the owner’s title is extinguished, and a new title is created in favor of the adverse possessor. The effective date of the new title, as far as the original owner is concerned, is the first adverse entry. Thus, suits by the former owner based on trespass, profits, or rents during the adverse period are barred. 

Most states do not require the claimant to have paid taxes on the property for any certain period of time (although in some states, a claimant’s paying taxes may shorten the prescriptive period). However, a court might consider that failure to pay taxes is evidence that the claimant really did not claim ownership of the property. 

The courts do not usually allow a claim of adverse possession if owner and claimant have a close family relationship, such as father and son or husband and wife, because in these cases, hostile claims are too difficult to prove. Cotenants normally cannot claim adverse possession against each other without an actual and clear ejectment of one cotenant by another.

Prescriptive rights in general are not usually favored by the law, insofar as they cause others to forfeit their rights. There is often a presumption that, when a person has entered into possession of another’s property, such possession was with the owner’s permission and consistent with the true owner’s title. 

Generally, one cannot take title to state or federal lands by adverse possession. However, the federal Color of Title Act provides that a claimant who has met all four tests of adverse possession on public land may receive a patent to such land, provided that the land does not exceed 160 acres and that all taxes are paid. The United States, however, reserves the right to all coal and mineral rights to the property. In addition, title to Torrens-registered property usually cannot be taken by adverse possession.

 

To give consideration before it is due.  Money is advanced by one party (such as a mortgagee or vendor) to cover carrying charges (such as taxes and insurance) on the property that were not properly paid by the other party in default.  These amounts are credited to the account of the advance-ing party.  For example,  a second mortgagee might advance delinquent first-mortgage payments of the borrower in order to prevent a foreclosure of the secured property.    

An important issue for lenders is whether a recorded mortgage securing future advances takes priority over a subsequent mortgage recorded before the date of the advance but subsequent to the recording of the first mortgage.  Other advances include additional funds disbursed under an open-end mortgage or advances made by a construction lender to a developer-borrower. 

 

Latin for "according to valuation," usually referring to a type of tax or assessment. Real property tax isanad valorem tax based on the assessed valuation of the property.  Each property bears a tax burden proportionate to its value, as opposed to  a specific tax per unit based on quantity, such as a tax per gallon of gasoline or package of cigarettes. 

The original cost basis of a property reduced by certain deductions and increased by certain improvement costs. The original basis determined at the time of acquisition is reduced by the amount of allowable depreciation or depletion allowances taken by the taxpayer, and by the amount of any uncompensated property losses suffered by the taxpayer.

It is then increased by the cost of capital improvements plus certain carrying costs and assessments. The amount of gain or loss recognized by the taxpayer upon sale of the property is determined by subtracting the adjusted basis on the date of sale from the adjusted sales price.

Adjustments
 

• In appraisal, the increases or decreases to the sales price of a comparable property to arrive at an indicated value for the property being appraised. Adjustments may be made for several reasons. The first adjustment is for seller concessions or conditions of sale; then for financing terms. Another is for time of sale if there has been a change in market conditions since the comparable sale. Adjustments are then made for location and dissimilarities between the physical characteristics of the subject and the comparable property. The indicated value is increased or decreased for each difference or dissimilarity. 

 

• In real estate closings, the credits and debits of a settlement statement, such as real property tax, insurance, and rent prorations.

A contract that is one-sided, favoring the party who drafted the document. In fact, an adhesion contract can be so one-sided that doubt arises as to its being a voluntary and uncoerced agreement because it implies a serious inequality of bargaining power. Courts will not enforce provisions in adhesion contracts that are unfair and oppressive to the party who did not prepare the contract. Also called a take-it-or-leave-it contract. 

Contracts with a lot of fine print, such as franchise agreements, mortgages, and leases, are sometimes challenged as adhesion contracts on the basis that the non-drafting party did not have a chance to bargain on the various provisions of the agreement. 

An insurance contract (property, title, life) also is sometimes challenged as being an adhesion contract. Courts have held that any ambiguity is to be construed in favor of the insured, and any exclusion from coverage must be clearly and conspicuously stated. Courts will also apply the doctrine of unconscionability.

The additional earnest money given by the buyer to the seller or to escrow under a purchase agreement. The additional deposit is usually tendered within a short period of time after acceptance of the offer. For example, the buyer might deposit $1,000 with her offer to purchase the seller’s $150,000 condominium unit and agree to pay an additional deposit of $4,000 within five working days after the seller’s acceptance. 

If the buyer breaches the contract, the seller may elect to keep all deposit money, including the additional deposit, as damages. If the buyer is late in making the additional deposit payment, the seller may be able to terminate the contract if a court holds that failure to make timely payment is a material breach. One way for the seller to ensure this result is to make the seller’s acceptance conditioned upon timely payment of the additional deposit.

Additional material attached to and made part of a document. If there is space insufficient to write all the details of a transaction on the sales contract form, the parties will attach an addendum or supplement to the document. The sales contract should incorporate the addendum by referring to it as part of the agreement. The addendum should refer to the sales contract and be dated and signed or initialed by all the parties.