Glossary

Coastal Access Toolkit
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Common Law & Statutes
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Glossary A-H

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

Appreciated land: Land that is increased substantially in value from the purchase price.

Assessed value: The value used to determine property taxes assigned by a public tax assess for the purposes of taxation.

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.

Bond financing: Long-term promissory notes issued and backed by the government, for funding at the state or local level.

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 Rrust (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.

Colonial Ordinance:A centuries-old ordinance applicable only to Maine and Massachusetts that granted land between the high and low tide line to private ownership subject to the public easement for “fishing, fowling and navigation.” The ordinance of 1641-1647 was accomplished by legislators from the Massachusetts Bay Colony who decided to transfer ownership of certain tidelands to coastal landowners, to encourage private wharf construction. In most other coastal states this intertidal land is owned by the state in trust for the public under the public trust doctrine.

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) 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).

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.

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.

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: 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.

Current Use Taxation: A method of taxation that bases the value at which the land is taxed on its value as it is currently being used, rather than on the value of its highest and best use, that is if it were to be fully developed to its full potential.

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 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).

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.

Exactions: These can be used when a municipality requires a landowner seeking to develop her property to provide a public benefit that mitigates any harm caused by the development. This approach requires land developers to dedicate an interest in land (or pay a fee in lieu of this dedication) to mitigate the reduction of some public benefit that their development will cause. 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.

Excise tax: A tax on manufacture, sale or for a business license or charter (as opposed to taxes on property, income or estates) that may be levied by federal, state, or local governments. Excise taxes are most commonly applied to items like alcohol, tobacco, and gasoline.

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, and Navigation: 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 Maine and Massachusetts that granted this land to private ownership subject to the public easement for “fishing, fowling and navigation.” In most other coastal states this intertidal land is owned by the state in trust for the public under the public trust doctrine.

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.

Highest and best use: A concept in real estate appraisal in which market value is achieved by the reasonable and probable legal land use that results in the highest value.

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.

Home rule: A state legislative provision or action allocating a measure of autonomy to a local government. Powers that are otherwise in the hands of the state (e.g., zoning) may be delegated to municipalities.

Horizontal Access: reaching a publicly accessible beach or shore by traversing along the beach or shore.