Definitions Glossary

Acquisition: The act of obtaining a property interest from another person.

Beneficiary: 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 may also be an "incidental beneficiary" or a "third party beneficiary." This refers to someone 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.

Common Law: A body of laws based on custom, usage, and rulings by courts, not on government legislation.

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 through the enactment of zoning and other ordinances. The plan serves as a guide to 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 a particular use such as residential, commercial, or water dependent use. Some areas may be designed for mixed uses. The plan may also include future goals for locating transportation, public facilities, and desired public shorefront access.

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: 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 use the path for free, then Amy has provided no consideration and the promise 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 most significant areas of legal concern and can involve variations on circumstances and complexities. To prove the existence of a contract, the following factual elements must be demonstrated: a) an offer; b) an acceptance of that offer which results in a meeting of the minds; and 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). Contracts relating to land must be in writing. 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. 2) v. To enter into an agreement.

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.

Conveyance: 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). Transfers of title of real property (land) must be recorded in the County Land Records office within the county where the property is located. 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.

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.

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 a way to facilitate the developer in achieving his goals, but that is still consistent with the town’s comprehensive plan. The developer may provide the town 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).

Easement: 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 access a stream or river, for use of private shorelands or islands by the public for recreational purposes. Easements can be created through the recording of a deed just like any real property interest or imposed by law if certain conditions are met. 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 for a particular purpose ("to provide access to the Jones property" or "access to the saltwater"). Title reports and title abstracts will usually describe all existing easements upon a parcel of real property.

Easement of Necessity: An easement imposed by a court due to equity (fairness) concerns. A court, for instance, may impose an easement by necessity to enable an owner to access a “land-locked” piece of property.

Easement on Development Rights: An easement that simply restricts development, by, for example, limiting the building of a structure for the purpose of protecting visual access.

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.

Floating Easement: An easement that allows access for a particular purpose (i.e. "to provide access to the Jones property" or "to provide access to the saltwater"), but does not state the exact dimensions and location of the easement.

Full Fee Interest: An entire ownership share in real property that is not subject to any easement, covenant, etc.

Full Title: Ownership of real 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.

Horizontal Access: Reaching a publicly accessible beach or shore by traversing along parallel to the beach or shore.

Impact Fees: Charges imposed on new development for the impact of the development on the public facilities that benefit them. In some states, 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/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 such things as 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.

Invitee: A person who is on your premises for some purpose that materially or commercially benefits you or the occupier of your premises. Under Alabama law, a landowner owes invitees a duty of reasonable care for their safety; however, they do not have to warn or protect them from open and obvious dangers on their property.

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 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.

Liability: Responsibility or fault for an incident resulting in injuries and damages to person or property.

Licensee: A person who visits a landowner's property with the landowner's consent or as the landowner's guest but with no business purpose. Under Alabama law, a landowner owes a licensee a duty to abstain from willfully or wantonly injuring the licensee.

Mean High Water: The average of all the high waters occurring in a particular 19-year tidal epoch period.

Negative Easement: An easement that limits a landowner from using their land in ways they would otherwise be entitled to. For example, a property might be subject to a negative easement that prohibits the owner from building a structure that blocks a neighbor’s view.

Partial Interest: A property interest to a share of real property that is less than the entire ownership of that property.

Perpendicular Access: Access gained to a beach or shoreline from a road or otherwise publicly accessible location across the upland area (perpendicular to the shore).

Police Powers: 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 and local regulatory statutes.

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 use of the easement is not always clear and occasionally moves by practice or erosion. To establish a prescriptive easement in Alabama, the party claiming the easement must (1) use the premises over which the easement is claimed for a period of twenty years or more, (2) adversely to the owner of the premises, (3) under claim of right, exclusive, continuous, and uninterrupted, with actual or presumptive knowledge of the owner. Further, the claimant has the burden of proving that the use is adverse to the owner.

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: 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 value is usually established by an Assessor, a municipal official.

Public Easement: 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. However, the public trust doctrine allows the public the right of use of navigable waters and land located below the mean high tide lines for purposes of navigation, fishing, recreation, and commerce.

Public Trust Doctrine: 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.

Restrictive Covenant: A type of deed restriction which places limitations on the use of property. Restrictive covenants can address any number of water-access rights, such as the number of allowed access trails to the water, or the annual water access road maintenance fees for a condominium complex.

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.

Tax Incentive: A tax reduction afforded to landowners for particular purposes; for example, for 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.

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.

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.

Trespasser: One who enters another person's property without permission of the owner and without lawful authority and causes damage. Any interference with the owner's (or a legal tenant's) use of the property is a sufficient showing of damage 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: 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.

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 what other uses might be permitted by special permit. The zone must be consistent with the municipality’s comprehensive plan.

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