Acquisition: the act of obtaining a property interest from another person.
Appreciated land: Land that is increased substantially in value from the purchase price.
Assessor: A certified official who appraises property for tax purposes, determining the assessed value, not the tax rate.
Bargain sale: Sale of land at less than full market value. When this sale takes place to a charitable organization or land trust, the difference between the sale price and market value may be used as a charitable deduction from income tax.
Beach: The part of a coast that is washed by waves or tides.
Beneficiary: n. a broad definition for any person or entity (like a charity) who is to receive assets or profits from an estate, a trust, an insurance policy or any instrument in which there is distribution. There is also an “incidental beneficiary” or a “third party beneficiary” who gets a benefit although not specifically named, such as someone who will make a profit if a piece of property is distributed to another.
Capital Gains Tax: a tax on the gains of an investment, payable only when the investment is sold or disposed of in some other way.
Capital Gains: n. the difference between the sales price and the original cost (plus improvements) of property. Capital gains taxes can be a financial shock to individuals who bought a house or business many years ago for the going price and now find it is highly valued, greatly due to inflation. Example: a couple buy an oceanfront house in 1950 for $20,000 (then a high price) and upon retirement want to sell it for $400,000. There is a potential of tax on a $380,000 gain. There are some statutory cushions to ease this blow. Donating or selling the land o a land trust that will provide public access could reduce the capital gain tax owed.
Charitable Gift Annuity: A contract between a donor and a charitable organization to pay an income stream, expressed as a percentage of the original principal amount, to not more than two people for life in exchange for a gift of cash or other asset(s).
Charitable Remainder Trust (Charitable Remainder Irrevocable Unitrust): n. a form of trust in which the donor (trustor or settlor) places substantial funds or assets into an irrevocable trust (a trust in which the basic terms cannot be changed or the gift withdrawn) with an independent trustee, in which the assets are to go to charity on the death of the donor, but the donor (or specific beneficiaries) will receive regular profits from the trust during the donor’s lifetime. The IRS will allow a large deduction in the year the funds or assets are donated to the trust, and the tax savings can be used to buy an insurance policy on the life of the donor which will pay his/her children the proceeds upon the donor’s death. So, for example, the donor (trustor) can make the gift of land to a land trust that will provide public access, the donor can receive a return on his/her money and still arrange to make a monetary gift at death to his/her heirs.
Charitable Remainder Unitrust: In a charitable remainder unitrust, the land is put in a trust. The trustee sells the land to a land trust and invests the net proceeds from the sale. One or more beneficiaries receive payments each year for a fixed term or for life, then the remaining funds in the trust are turned over to the land trust.
Common Law: A body of laws based on custom, usage, and rulings by courts, not on government legislation.
Compensation: something (such as money) given or received as payment.
Comprehensive Plan: An all-inclusive, long-range plan for the future growth of a community. The plan is designed to reflect community values and goals, and is built into local law once it is completed to guide policymakers regarding decisions about the physical development of the community. The plan describes land use patterns according to whether a given district or parcel will be devoted to residential, commercial, water dependent use, etc. Such a plan may also include transportation, public facilities, existing and desired public shorefront access.
Concession: Something granted or conceded during a negotiation
Conservation Easement: An agreement between a landowner and a private land trust or government. The agreement limits certain uses on all or a portion of a property for conservation purposes while keeping the property in the landowner’s ownership and control. The agreement is usually tailored to the particular property and to the goals of the owner and conservation organization. It applies to present and future owners of the land.
Consideration: n. 1) Payment or money. 2) Something of value given by each side in the making of a contract to make the contract binding. For example, when John promises to let Amy use a path across John’s land to the ocean for one year in exchange for $100, the consideration is the $100 and the right to use the path. If John promises to let Amy the path for free, then Amy has provided no consideration and the promises is not enforceable as a contract. A vital element in the law of contracts, consideration is a benefit which must be bargained for between the parties, and is the essential reason for a party entering into a contract. Consideration must be of value (at least to the parties), and is exchanged for the performance or promise of performance by the other party (such performance itself is consideration). In a contract, one consideration (thing given) is exchanged for another consideration. Not doing an act (forbearance) can be consideration, such as “I will pay you $1,000 not to build a fence that will block my view of the ocean” Sometimes consideration is “nominal,” meaning it is stated for form only, such as “$10 as consideration for conveyance of title,” which is used to hide the true amount being paid. Contracts may become unenforceable or rescindable (undone by rescission) for “failure of consideration” when the intended consideration is found to be worth less than expected, is damaged or destroyed, or performance is not made properly (as when the marine mechanic does not make the outboard motor run properly).
Consideration: Something of value given by each side in the making of a contract to make the contract binding. For example, when John promises to let Amy use a path across John’s land to the ocean for one year in exchange for $100, the consideration is the $100 and the right to use the path. If John promises to let Amy the path for free, then Amy has provided no consideration and the promises is not enforceable as a contract.
Contract: 1) n. an agreement with specific terms between two or more persons or entities in which there is a promise to do something in return for a valuable benefit known as consideration. Since the law of contracts is at the heart of most business dealings, it is one of the three or four most significant areas of legal concern and can involve variations on circumstances and complexities. The existence of a contract requires finding the following factual elements: a) an offer; b) an acceptance of that offer which results in a meeting of the minds; c) a valuable consideration (which can be a promise or payment in some form); Contracts can be either written or oral, but oral contracts are more difficult to prove and in most jurisdictions the time to sue on the contract is shorter (such as two years for oral compared to four years for written). In some cases a contract can consist of several documents, such as a series of letters, orders, offers and counteroffers. The variations are almost limitless. For example, I promise to pay you $100 for the right to cross your land to reach the clam flats for the period of one year. 2) v. to enter into an agreement.
Contractual Agreement: see contract.
Convey: v. to transfer title (official ownership) to real property (or an interest in real property) from one (grantor) to another (grantee) by a written deed (or an equivalent document such as a judgment of distribution which conveys real property from an estate). This is completed by recording the document with the County Recorder or Recorder of Deeds. It only applies to real property. Conveyance can include granting title to the entire parcel of land and retaining none; or it can include granting a lesser property interest that allows only partial use of the land
Conveyance: the act of transferring a property interest from one person to another.
Covenant: 1) n. a promise in a written contract or a deed of real property. The term is used only for certain types of promises such as a covenant of warranty, which is a promise to guarantee the title (clear ownership) to property, a promise agreeing to joint use of an easement for access to real property, or a covenant not to compete, which is commonly included in promises made by a seller of a business for a certain period of time. Mutual covenants among members of a homeowners association are promises to respect the rules of conduct or restrictions on use of property to insure peaceful use, limitations on intrusive construction, etc., which are usually part of the recorded covenants, conditions and restrictions which govern a development or condominium project. For example, mutual covenants between a waterside condo owners may dictate rules about how residents or the public can use the condo wharf. Covenants which run with the land, such as permanent easement of access or restrictions on use, are binding on future title holders of the property. Covenants can be concurrent (mutual promises to be performed at the same time), dependent (one promise need be performed if the other party performs his/hers), or independent (a promise to be honored without reference to any other promise). 2) v. to promise.
Current Use Taxation: A method of taxation where the value at which the land is taxed is based on its value as it is currently being used, rather than based on the value that it would have if it were divided up and developed for maximum profit.
Dedicated Interest: A property interest that has been transferred from private to public ownership.
Deed: A written document that transfers title to real property from one owner to another.
Development Agreements: A form of contract zoning (a zoning amendment) that is negotiated between the zoning body and the developer that rezones the land in way to facilitate the developer in achieving his goals, but that is still consistent with the locality’s comprehensive plan. The developer may provide the locality with land for access to the water in exchange for such a rezoning. This differs from exactions because the developer is not required to do so and conversely is not entitled to develop without the rezoning.
Development Right: The legally allowed potential for improvement or construction on a parcel of real property. The development right can be separated from the underlying fee, such that one person owns the property while another (such as a land trust) owns the right to development (usually for the purpose of preventing the exercise of that right).
Duty: a legal obligation to do or refrain from doing something.
Easement: n. the right to use the real property of another for a specific purpose. The easement is itself a real property interest, but legal title to the underlying land is retained by the original owner for all other purposes. Typical easements are for access to shoreline held by the public, for use of a path to clam flats by clammers, for use of private shorelands or islands by the public for recreational purposes. Easements can be created in a number of ways: by a deed to be recorded just like any real property interest; by continuous and open use by the non-owner against the rights of the property owner for a statutory number of years, typically five (“prescriptive easement”); or by a court due to equity (fairness), including the ability to get to a “land-locked” piece of property (sometimes called an “easement of necessity”). Easements may be specifically described by boundaries (“24 feet wide along the northern line for a distance of 180 feet”), somewhat indefinite (“along the trail to the northern boundary”) or just for a purpose (“to provide access to the Jones property” or “access to the saltwater”) sometimes called a “floating easement.” There is also a “negative easement” such as a prohibition against building a structure which blocks a view. Title reports and title abstracts will usually describe all existing easements upon a parcel of real property. Issues of maintenance, joint use, locking gates, damage to easement and other conflicts clog the judicial system, mostly due to misunderstandings at the time of creation.
Easement of necessity: An easement imposed by a court due to equity (fairness), including for example the ability to get to a “land-locked” piece of property.
Easement on development rights: An easement that simply restricts development, for example limiting the building of a structure for the purpose of protecting visual access.
Egress: The right to leave a tract of land. Often used in connection with access.
Eminent Domain: n. the power of a governmental entity to take private real estate for public use, with or without the permission of the owner. The Fifth Amendment to the Constitution provides that “private property [may not] be taken for public use without just compensation.” The Fourteenth Amendment added the requirement of just compensation to state and local government takings. The usual process includes passage of a resolution by the acquiring agency to take the property (condemnation), including a declaration of public need, followed by an appraisal, an offer, and then negotiation. If the owner is not satisfied, he/she may sue the governmental agency for a court’s determination of just compensation. The government, however, becomes owner while a trial is pending if the amount of the offer is deposited in a trust account. Eminent domain may be used for public uses such as waterfront land for parking lot, access ramp, pier and wharves, etc.
Estate Tax: n. generally a federal tax on the transfer of a dead person’s assets to his heirs and beneficiaries. Although a transfer tax, it is based on the amount in the decedent’s estate (including distribution from a trust at the death) and can include insurance proceeds. Currently such federal taxation applies to the amount of an estate above $600,000, or as much as double that amount if the estate is distributed to a spouse. Some states have an estate tax, more commonly called an inheritance tax.
Exaction: An interest in land required to be transferred to the public as a condition for a permit to develop the land, as a means to offset the negative impact of that development, usually as a result of a permit process under zoning ordinances. For an exaction to be imposed it must be logically connected, and roughly proportional to the negative impact that it is being required to offset.
Express Enabling Authority: Authority given to municipalities by the state through explicit language passed by the state legislature that allows the municipality to enact certain types of regulations (such as contract zoning) that the municipality would not otherwise have the authority to engage in.
Failure of Consideration: n. not delivering goods or services when promised in a contract. When goods a party had bargained for have become damaged or worthless, failure of consideration (to deliver promised goods) makes the expectant recipient justified to withhold payment, demand performance or take legal action.
Federal Tax Code: The collection of rules promulgated by the Internal Revenue Service that detail the circumstances in which taxes are required to be paid.
Fee Acquisition: The act of acquiring the fee interest in a piece of real property.
Fee Holder: The owner of the underlying interest in real property, who owns all aspects of that property not conveyed to other partial interest holders in the form of easements, covenants etc.
Fee Simple: n. absolute title to land, free of any other claims against the title, which one can sell or pass to another by will or inheritance. This is a redundant form of “fee,” but is used to show the fee (absolute title) is not a “conditional fee,” or “determinable fee,” or “fee tail.” Like “fee” it is often used in deeds transferring title, as in “Harry Hadit grants to Robert Gotit title in fee simple…” or similar words.
Fee: n. 1) absolute title in land, from old French, fief, for “payment,” since lands were originally given by lords to those who served them. It often appears in deeds which transfer title as “Mary Jo Rock grants to Howard Takitall in fee…” or similar phrasing. The word “fee” can be modified to show that the title was “conditional” on some occurrence or could be terminated (“determinable”) upon a future event. Ownership in fee may still be subject to easements, the term fee simple absolute is used to designate a fee not subject to any easements.
Fishing, Fowling, Hunting and Taking of Oyster and Other Shellfish: public easement rights over the privately owned land between high and low tide. This public easement was created by a centuries old colonial ordinance applicable only to Virginia and Massachusetts that granted this land to private ownership subject to the public easement for “fishing, fowling, hunting and taking of oyster and other shellfish.” In most other coastal states this intertidal land is owned by the state in trust for the public under the public trust doctrine. For more information, see the following sections of the code of Virginia:
- 28.2-1200. Ungranted beds of bays, rivers, creeks and shores of the sea to remain in common.
- 28.2-1502. Ownership of ungranted shores of the sea, marsh and meadowlands.
- 28.2-1504. Preparation of management plan.
Floating Easement: an easement that is specifically for a purpose (i.e. “to provide access to the Jones property” or “to provide access to the saltwater.”)
Foreshore: The part of the shore or beach lying between mean high tide and mean low tide.
Full Fee Interest: An entire ownership share in real property that is not subject to any easement, covenant, etc.
Full title: ownership of real property or personal property, which stands against the right of anyone else to claim the property. In real property, title is shown by an appropriate document recorded in the public records of the county such as a deed.
Holdout: a negotiator who hopes to gain concessions or prevent a deal by refusing to come to terms. For example, a land trust may wish to purchase some land for a waterfront park that spans four parcels, each individually owned. Three of the owners may willingly sell, but the deal may be prevented if the fourth landowner becomes a holdout. The government would not have a problem with holdouts because it has the ability to compel the fourth owner to sell through eminent domain.
Horizontal Access: reaching a publicly accessible beach or shore by traversing along the beach or shore.
Impact Fees: charges imposed on new development for the impact of the development on the public facilities that benefit them. Impact fees can be used to finance any type of public facility or service, such as a public oceanfront park, which will benefit the new development. However, impact fees can only be used to cover the percentage of the cost that is attributable to the new development.
Incentive or Bonus Zoning: Incentive zoning is a system by which zoning incentives are provided to developers on the condition that specific physical, social, or cultural benefits are provided to the community. Incentives include increases in the permissible number of residential units or gross square footage of development, or waivers of the height, setback, use, or area provisions of the zoning ordinance. The benefits to be provided in exchange may include waterfront access, waterfront recreational facilities, open space, , infrastructures, or cash in lieu thereof.
Income Tax: n. a tax on an individual’s net income, after deductions for various expenses and payments such as charitable gifts, calculated on a formula which takes into consideration whether it is paid jointly by a married couple, the number of dependents of the taxpayers, special breaks for ages over 65, disabilities and other factors. Federal income taxes have been collected since 1913 when they were authorized by the 16th Amendment to the Constitution. Most states also assess income taxes, but at a substantially lower rate than that of the federal government.
Indemnify: v. to guarantee against any loss which another might suffer. Example: two parties settle a dispute over a contract, and one of them may agree to pay any claims which may arise from the contract, holding the other harmless.
Installment Contract: n. an agreement in which payments of money, delivery of goods or performance of services are to be made in a series of payments, deliveries or performances, usually on specific dates or upon certain happenings. One significance is that failure to pay an installment when due is a breach in which damages can be assessed based on the portion which has not been paid, and is an excuse for the other party not to perform further. In many installment contracts, failure to make a payment gives the seller of an article the right to repossess (take it back).
Installment Sale: A real estate transaction in which the sales price is paid in installments. This type of transaction may permit capital gains to be reported by installments for successive tax years in order to minimize the impact of capital gains tax in the year of the sale.
Interest: see property interest.
Invitees: A person who comes onto another’s property, premises or business establishment upon invitation. The invitation may be direct and express or “implied,” as when a shop is open and the public is expected to enter to inspect, purchase or otherwise do business on the premises. It may be legally important, because an invitee is entitled to assume safe conditions on the property or premises, so the owner or proprietor might be liable for any injury suffered by the invitee while on the property due to an unsafe condition which is not obvious to the invitee (a latent defect) and not due to the invitee’s own negligence.
Jurisprudence: n. the entire subject of law, the study of law and legal questions.
Just Compensation: In takings the amount paid to the property owner. Just is defined as making the owner no richer or poorer than before the taking.
Land Bank: a land conservation program created to acquire, hold, and manage important open space resources and endangered landscapes for the use and enjoyment of the general public. The land bank competes in the open market to acquire land which provides the public a wide range of opportunities. It can hold beaches, wetlands, ocean frontage, and harbor frontage, and use properties for passive and active recreation.
Land Gains Tax: A capital gains tax (a tax on the difference between the sale price and the original cost, plus improvements, of the property) on land sales from land that the seller owned for a short period of time.
Land Speculation: the purchase of land for the sole purpose of selling it again for a large profit when it appreciates in value. Land speculation causes those who wish to use the land for their livelihood to compete for ownership with those using the land as an investment mechanism.
Land Transfer: the conveyance of land from one owner to another.
Land Trust: A nonprofit organization that assists landowners who wish to voluntarily conserve their properties. Land trusts are usually organized as charitable corporations, not as trusts.
Lease: n. a written agreement in which the owner of property (either real estate or some object like a boat) allows use of the property for a specified period of time (term) for specific periodic payments (rent), and other terms and conditions. Leases of real property describe the premises (often by address); penalties for late payments, termination upon default of payment or breach of any significant conditions; increases in rent based on cost of living or some other standard; inclusion or exclusion of property taxes and insurance in rent; limitations on use (example: for a lobster pound only), charges for staying on beyond the term (holding over); any right to renew the lease for another period; and/or a requirement for payment of attorneys’ fees and costs in case of the need to enforce the lease (including eviction).
Legal Authority: the source of the power under which a regulation is created. The legal authority of the federal government is limited to those powers enumerated in the constitution. The legal authority of state governments come from a general power to regulate for the public welfare, subject to the restrictions outline in the state constitution.
Legal Doctrine: is a framework, set of rules, procedural steps, or test, established in law, through which judgments can be determined in a given legal case. A doctrine comes about when enough judges make a ruling where a process is outlined and applied that can be equally applied to similar cases.
Liability: 1) Responsibility or fault for an incident resulting in injuries and damages to person and/or property. 2) One of the most significant words in the field of law, liability means legal responsibility for one’s acts or omissions. Failure of a person or entity to meet that responsibility leaves him/her/it open to a lawsuit for any resulting damages or a court order to perform (as in a breach of contract or violation of statute). In order to win a lawsuit the suing party (plaintiff) must prove the legal liability of the defendant if the plaintiff’s allegations are shown to be true. This requires evidence of the duty to act, the failure to fulfill that duty and the connection (proximate cause) of that failure to some injury or harm to the plaintiff.
Licensees: A person who is privileged to enter or remain on land only by virtue of the possessor’s consent.
Life Estate: n. the right to use or occupy real property for one’s life. Often this is given to a person (such as a family member) by deed or as a gift under a will with the idea that a younger person would then take the property upon the death of the one who receives the life estate. Title may also return to the person giving or deeding the property or to his/her surviving children or descendants upon the death of the life tenant-this is called “reversion.” Example of creation of a life estate: “I grant to my mother, Molly McCree, the right to use and/or receive rents from the boat house on said real property, until her death,” or “I give my daughter, Sadie Hawkins, said real property, subject to a life estate to my mother, Molly McCree.” This means a woman’s mother, Molly, gets to use the property until she dies, then the woman’s daughter, Sadie, will own the property.
Mean High Tide: The line on the shore made by the average of all the high tides as calculated over a long period of time.
Mean Low Tide: The line on the shore made by the average of all the low tides as calculated over a long period of time.
Navigable Waters: waters sufficiently deep and wide for navigation by all, or specified vessels.
Negative easement: An easement that limits a landowner from using their land in ways they would otherwise be entitled to.
Option / Right of First Refusal: n. a right to purchase property or require another to perform upon agreed-upon terms. An option is paid for as part of a contract, but must be “exercised” in order for the property to be purchased or the performance of the other party to be required. “Exercise” of an option normally requires notice and payment of the contract price. Thus, a potential buyer of a tract of ocean front land might pay $5,000 for the option which gives him/her a period of time to decide if he/she wishes to purchase, tying up the property for that period, and then pay $500,000 for the property. If the time to exercise the option expires then the option terminates. The amount paid for the option itself is not refundable since the funds bought the option whether exercised or not. Often an option is the right to renew a contract such as a lease. A “lease-option” contract provides for a lease of property with the right to purchase the property during or upon expiration of the lease.
Partial Interest: A property interest to a share of real property that is less than the entire ownership of that property.
Perpendicular Access: reaching the beach or shore from a road or otherwise publicly accessible location across the upland area.
Physical Access: the ability to actually reach the beach or shore.
Police Powers: n. from the 10th Amendment to the Constitution, which reserves to the states the rights and powers “not delegated to the United States,” which include protection of the welfare, safety, health and even morals of the public. Police powers include licensing, inspection, zoning, safety regulations (which cover a lot of territory), quarantines, and working conditions as well as law enforcement. In short, police powers are the basis of a host of state regulatory statutes.
Preferential Tax Program: A tax program that reduces the tax burden based on the use of the property. This can take the form of tax abatements or current use taxation.
Prescriptive Easement: n. an easement upon another’s real property acquired by continued use without permission of the owner for a period provided by state law to establish the easement. The problems with prescriptive easements are that they do not show up on deeds or title reports, and the exact location and/or use of the easement is not always clear and occasionally moves by practice or erosion.
Private Agreement: a mutual exchange of promises that may or may not rise to the level of a legally enforceable contract.
Property Interest: legal ownership share (either partial or entire) of a piece of real property.
Property Tax: n. an annual governmental tax on real property or personal property based on a tax rate (so many dollars or cents per $100 value of the property). The property value is usually established by the Commissioner of Revenue.
Property: n. anything that is owned by a person or entity. Property is divided into two types: “real property,” which is any ownership interest in land, real estate, growing plants or the improvements on it, and “personal property,” which is everything else. “Public property” refers to ownership by a governmental body such as the federal, state, county or city governments or their agencies (e.g. waterfront parks). The government and the courts are obligated to protect property rights and to help clarify ownership.
Protracted Purchase Agreement: A contract to purchase real property where payment is drawn out of a long period of time. For example, an installment sale. Structuring payment over a long period may have tax benefits, but a government may be forbidden to enter into such contracts because current legislators may not have the ability to contractually bind future legislators to allocate money to pay for the installments.
Psychological Access: knowledge that the shore is available and unspoiled, even if physical access does not occur.
Public Access: defined by the Virginia State Planning Office as people reaching the shoreline either physically (actively being there), visually (seeing the shore from a distant location) or psychologically (knowing the shore is available even if physical access is not achieved).
Public Easement: n. the right of the general public to use certain streets, highways, paths or airspace. In most cases the easement came about through reservation of the right when land was deeded to individuals or by dedication of the land to the government. In some cases public easements come by prescription (use for many years) such as a pathway across private property down to the ocean. Beach access has been the source of controversy between government and private owners in many seaboard states.
Public Investment: The use of public funds to fund infrastructure that will benefit the public over the long term.
Public Trust Doctrine: n. the principle that the government holds title to submerged land under navigable waters in trust for the benefit of the public. Thus, any use or sale of the land under water must be in the public interest.
Real estate transfer tax: A sales tax on land imposed on the transfer in ownership from one owner to another. The tax is usually based on the value of the land.
Real Property: Land, buildings, and whatever is attached or affixed to the land. This is in contrast to personal property which are movable things such as boats, lobster traps, etc.
Remainder Interest: The residual ownership of property left in trust or in a life estate after the interest of a previous beneficiary or the life tenant has terminated. If John grants his lobster pound to his mother to own while she is alive, then John’s mother owns a life estate in the lobster pound, and John owns the remainder interest. When John’s mother dies, John will again own the lobster pound.
Remainder: n. in real property law, the interest in real property that is left after another interest in the property ends, such as full title after a life estate (the right to use the property until one dies). A remainder must be created by a deed or will. Example: “Patricia Parent deeds Happy Shores Ranch to her sister Sally for life and upon Sally’s death to Charla Childers, Sally’s daughter, or Charla’s children if she does not survive.” Charla has a remainder, and her children have a “contingent remainder,” which they will receive if Charla dies before title passes. A remainder is distinguished from a “reversion,” which gives title back to the grantor of the property (upon Sally’s death, in the example) or to the grantor’s descendants; a reversion need not be spelled out in a deed or will, but can occur automatically by “operation of law.”
Remote Access: access, such as visual or psychological access, that can be achieved from a location that can be physically accessed, but does not necessarily need to be at the beach or shore.
Renewal: n. keeping an existing arrangement in force for an additional period of time, such as a lease, a promissory note, insurance policy or any other contract. Renewal usually requires a writing or some action which evidences the new term.
Reserved Life Estate: When a remainder interest is granted to another party, the grantor retains the right of ownership of the land for the rest of his life. This interest is known as a reserved life estate.
Restrictive Covenant: n. 1) an agreement included in a deed to real property that the buyer (grantee) will be limited as to the future use of the property. Example: no fence may be built on the property when it abuts the shore. Commonly these covenants are written so that they can be enforced by the grantor and other owners in the subdivision, so that future owners will be bound by the covenant (called “covenant running with the land” if enforceable against future owners).
Right of First Refusal: A provision in an agreement that requires the owner of a property to give another person the first opportunity to purchase or lease the property before he or she offers it for sale or lease to others.
Right of Renewal: A clause within a lease giving the holder of the lease the right to renew the existing lease for a specified term on specified conditions.
Right: a legal entitlement to do or refrain from doing something.
Shore: A shore or shoreline is the land at the edge of the ocean.
Special Permits: A permit for a use or structure that is not permitted as a matter of right in a land-use zone, but is permitted under the provisions of the zoning ordinance if certain special conditions defined in the ordinance are met. Special permits are sometimes also referred to as conditional uses, special uses, special exceptions, or secondary uses.
Subdivision Review Process: The process a developer goes through to obtain approval from a planning board for a proposed subdivision.
Submerged Lands: Land lying below tidal waters, seaward of the ordinary low water mark, including bays, inlets, and other arms of the sea, out to the seaward boundary of the State.
Takings Clause: n. Clause of the US Constitution that limits the scope of governmental action by safeguarding private property and preventing governmental action that effectively deprives an owner of all economically viable uses of the land without payment of just compensation.
Takings: a shorthand way to refer to government regulations which the courts decide are unconstitutional because they violate the takings clause of the Constitution which states that the government will not take private property without “just compensation.”
Tax Abatement: A reduction of taxes or an exemption from taxes granted by a local government on a piece of real property for a specified length of time.
Tax Incentive: a tax reduction afforded to people for particular purposes, for example, donating coastal land to a land trust for use as a waterfront park
Tax Increment Financing: A financing method which uses the additional taxes generated by a completed development to pay for development costs such as land acquisition and site improvements.
Taxation: a compulsory charge against a citizen’s person or property or activity for the support of government.
Title: n. 1) ownership of real property or personal property, which stands against the right of anyone else to claim the property. In real property, title is shown by an appropriate document recorded in the public records of the county such as a deed.
Transfer: n. 1) the movement of property from one person or entity to another. 2) passage of title to property from the owner to another person. 3) a piece of paper given to allow a person or shipment to continue travel.
Transfer of Development Rights: A technique for guiding growth away from sensitive resources and toward controlled development centers through the transfer of development rights from one area to another. Development Rights in coastal areas would be restricted by the town (and the landowner compensated for that restriction). The town would then recover the cost of the restriction by selling the development rights to developers in other specially designated areas, allowing them to develop more densely than they otherwise would be permitted to.
Trespassers: One who enters another person’s property without permission of the owner and without lawful authority and causes any damage, no matter how slight. Any interference with the owner’s (or a legal tenant’s) use of the property is a sufficient showing of damage sufficient to form the basis for a lawsuit against the trespasser by the owner or a tenant using the property. Trespass for an illegal purpose is a crime.
Trust: n. an entity created to hold assets for the benefit of certain persons or entities, with a trustee managing the trust (and often holding title on behalf of the trust) for the benefit those certain persons or entities. “charitable remainder unitrust,” which provides for eventual guaranteed distribution of the trust assets to charity, thus gaining a substantial tax benefit. For example, a person wishing to donate their land to a land trust to provide public access, but still live on the land can achieve this arrangement by putting the land in a trust, with the land eventually (after their death) going to the land trust. There can be tax benefits, and possible income to the trust beneficiary during the period the land is held in trust.
Uniformity Clause: A section of the Virginia Constitution that requires that taxes apply uniformly throughout the state. Article IX, Section 8, of the Virginia Constitution provides: “Section 8. Taxation. All taxes upon real and personal estate, assessed by authority of this State, shall be apportioned and assessed equally according to the just value thereof.”
Uplands: lands lying above the reaches of the highest high tides.
Use Right: a legally recognized entitlement to possess (use) something that is owned by someone else.
Use-value Assessment: see current use taxation.
Visual Access: the ability to view the beach or shore from a location that can be physically accessed.
Water Dependent Use Zoning: A type of zoning ordinances for functionally water-dependent uses. Municipalities may establish districts within these zones to give preference to commercial fishing and other maritime activities. The ordinance would defines what constitutes a permitted water dependent use, and water other uses might be permitted by special permit. The zone must be consistent with the municipality’s comprehensive plan.
Working Waterfront: A term that applies to shoreline and coastal uses that depend upon water to function, such as fishing, boat-building, and all related industries (as opposed to restaurants, housing and other non-water-dependent uses). For current-use taxation purposes, “Working waterfront land” means a parcel or portion of a parcel of land abutting tidal waters or is located in the intertidal zone (located between the high and low water mark) the use of which is more than 50% related to providing access to or in support of the conduct of commercial fishing activities.
Working Waterfront Covenant: An agreement in recordable form between the owner of working waterfront real estate and one or more qualified holders to assure the continued and permanent access and availability and affordability of the working waterfront real estate for working waterfront use.
Zone: 1) v. the act of creating zoning regulations; 2) n. an area designated by zoning regulations for a specific use. For example, a water-dependent use only zone.
Zoning Amendment: The addition of new ordinances or the modification of existing ordinances in a towns zoning regulation. Typically a zoning amendment must be enacted through the same process required to pass the original zoning ordinance.
Zoning Body: The entity that has the power to pass zoning ordinances, usually the town council or selectmen, or sometimes the state.
Zoning: n. a system of developing a city or county plan in which various geographic areas (zones) are restricted to certain uses and development, such as industrial, light industrial, commercial, light-commercial, marine use, agricultural, single-family residential, multi-unit residential, parks, schools and other purposes. Zoning is the chief planning tool of local government to guide the future development of a community, protect neighborhoods, concentrate retail business and industry, channel traffic and play a major role in the enhancement of urban as well as small-town life.