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habendum clause
That part of a deed beginning with the words "to have and to hold," following the grantor is conveying.

Fit for human habitation. (See implied warranty)

As defined in the fair housing act, a physical or mental impairment that substantially limits one or more major life activities (walking, seeing, learning, working) or a record of having such an impairment or being regarded as having such impairment. Handicap does not include current, illegal use or addiction to a controlled substance. (See disability)

hard money loan:
A loan made in cash by a non-institutional lender.

hazardous waste:
A subset of solid wastes that pose substantial or potential threats to public health or the environment and meet any of the following criteria:
  • Is specifically listed as a hazardous waste by EPA;
  • Exhibits one or more of the characteristics of hazardous waster (ignitability, corrosiveness, reactivity, and/or toxicity;
  • Is generated by the treatment of hazardous waste or is contained in a hazardous waste.
Toxic waste materials jeopardizing the value of real estate. (See asbestos, Environmental Protection Agency, undergound storage tanks, urea-formaldehyde)

hazardous waste disclosure:
California Health and Safety Code (§ 25359.7(a)) requires owners of nonresidential properties to disclose to prospective buyers or lessees the existence of hazardous substances on or beneath a property. Both residential and nonresidential tenants are required to notify landlords if hazardous substances have been released on a property.

heat absorbing glazings:
A technology that uses heat-absorbing glazing with tinted coatings to absorb solar heat gain through windows. This approach does allow some light to pass through the tinted windows.

heat exchanger:
Heat exchange is the method by which the unwanted heat is removed from a system. A heat exchanger is a device by which energy (in the form of heat) is transferred from one fluid or gas to another across a solid surface.

A person who inherits under a will or a person who succeeds to property by the state laws of descent if the decedent dies intestate. (See intestate)

Property capable of being inherited.

HERS score:
A number between 0-100 that is used to designate the energy efficiency of a home compared to guidelines established by the Home Energy Rating System Council. The higher the score (number), the greater the energy efficiency of the residence. (See Home Energy Rating System (HERS))

The quality or state of being heterogeneous; different in kind; unlike; incongruous.

highest and best use:
The possible use of a property that would produce the greatest net income and thereby develop the highest value.

highrise developments:
Sometimes called mixed-use developments (MUDs), these combine office space, stores, theaters and apartment units in a single vertical community. MUDs usually are self-contained and offer laundry facilities, restaurants, food stores, valet shops, beauty parlors, barbershops, swimming pools and other attractive and convenient features.

hold-harmless clause:
A contract provision whereby one party agrees to indemnify and protect the other party from any injuries or lawsuits arising out of the particular transaction. Such clauses are usually found in leases in which the lessee agrees to "indemnify, defend and hold harmless" the lessor from claims and suits of third persons for damage resulting from the lessee's negligence on the leased premises.

Funds not released under a construction loan agreement due to a failure to lease to the required minimum.

holder in due course:
The holder of a negotiable instrument (check or note) purchased for value when the instrument appears complete and regular on its face; is taken before its due date and without notice of previous dishonor; and the holder has no notice of any defects in title of the transferor.

holdover tenancy:
A tenancy whereby a lessee retains possession of leased property after the lease has expired and the landlord, by continuing to accept rent, agrees to the tenant's continued occupancy as defined by state law.

holographic will:
A will that is written, dated and signed in the testator's handwriting, but not witnessed. Some states consider a holographic will to be valid even though it was not witnessed, presumably on the theory that the handwriting can be analyzed to verify authenticity and demonstrate competency.

home equity loan:
A loan (sometimes called a line of credit) under which a property owner uses his or her residence as collateral and can then draw funds up to a prearranged amount against the property.

Home Energy Rating System (HERS):
A standardized system for rating the energy efficiency of residential buildings. (See HERS score)

home expense-to-income ratio:
A ratio expressed as a percentage that is used by the mortgage industry to determine a borrower's qualification for a loan. It is calculated by dividing the borrower's total monthly housing expenses by his or her gross monthly income.

Home Mortgage Disclosure Act (HMDA):
Enacted by Congress in 1975 and implemented by the Federal Reserve Board's Regulation C, a federal law that requires lenders with federally related loans to disclose to the Federal Reserve the number of loan applications and loans made in different parts of their service areas; designed to eliminate the discriminatory practice of redlining. (See Federal Reserve, redlining)
  Home Mortgage Disclosure Act Website

homeowner instructions:
Instructions given to a property owner by a listing broker that advise the owner of cleaning and repairs that will improve the appearance and increase the value of a listed property.

homeowner's association:
A nonprofit association of homeowners organized pursuant to a declaration of restrictions or protective covenants for a subdivision, PUD or condominium.

Homeowner's Guide to Earthquake Safety:
A document produced by the State of California Seismic Safety Commission intended to help inform homeowners on earthquake safety issues in homes.

homeowner's insurance policy:
A standardized package insurance policy that covers a residential real estate owner against financial loss from fire, theft, public liability and other common risks. (See basic form homeowner's policy and broad form homeowner's policy)

A statutory exemption of real property used as a home from the claims of certain creditors and judgments up to a specified amount; requires a declaration of homestead be completed and filed with the county recorder's office.

homestead exemption:
The amount of homestead protection from unsecured creditors—$50,000 for single persons, $75,000 for families, $100,000 for persons 65 years of age, and $100,000 for disabled persons unable to work.

home warranty insurance policy:
An insurance policy that insures against plumbing, electrical, heating, and major appliance problems for the term of the policy.

Composed of parts all of the same kind or of the same kind or nature; essentially alike.

housing accommodation:
Housing accommodations are any improved or unimproved real property, or portion thereof, used as the home, residence, or sleeping place of one or more human beings. It does not include accommodations operated by non-profit religious, fraternal, or charitable associations or corporations, provided that such accommodations are used in the furtherance of the primary purposes for which the association or corporation was formed.

housing affordability index:
A measure of the percentage of the United States population who can afford to purchase a home; based on average income and average home price.

Housing Financial Discrimination Act of 1977 (Holden Act):
The Act prohibits financial institutions (banks, savings & loans, or other financial institutions, including mortgage loan brokers, mortgage bankers and public agencies) from engaging in discriminatory loan practices.

household waste (also referred to as domestic waste):
Solid waste, composed of garbage and rubbish, which normally originates from residential, private households, or apartment buildings. Domestic waste may contain a significant amount of toxic or hazardous waste from improperly discarded pesticides, paints, batteries, and cleaners.

A federal cabinet department officially known as the U.S. Department of Housing and Urban Development, HUD is active in national housing programs. Among its many programs are urban renewal, public housing, model cities, rehabilitation loans, FHA-subsidy programs and water and sewer grants. The Office of Interstate Land Sales Registration is under HUD's jurisdiction, as are the Federal Housing Administration (FHA) and the Government National Mortgage Association (GNMA).
  HUD Website
  HUD—Office of Interstate Land Sales

HUD-1 settlement statement:
At closing, in conformance with Real Estate Settlement Procedures Act (RESPA) regulations, a HUD-1 settlement statement is prepared showing the exact closing costs to buyer and seller. (See RESPA)

The acronym for Heating, Ventilation, and Air Conditioning.

hybrid financing:
Mixing forms of conventional financing to create a new approach. (See convertible loan, participation mortgage)

To pledge real or personal property as security for a loan or other obligation without surrendering possession of the property. The borrower retains the rights of control and possession, and the lender secures an underlying equitable right in the pledged property.


identification period:
The period during which the exchanger must identify replacement property in a 1031 tax deferred exchange. The identification period starts on the day the exchanger transfers the first relinquished property and ends at midnight on the 45th day thereafter.

illusory contract:
An apparent contract that is not a contract because the parties have not agreed to be bound.

implied agency:
An agency agreement created by the actions of the parties, and not a stated (written or verbal) agreement. (See express agency)

implied agreement/contract:
A contract under which the agreement of the parties is demonstrated by their acts and conduct.

implied easement:
When the owner of two or more adjacent properties sells a part thereof, he or she grants by implication all those apparent and visible easements which are necessary for the reasonable use of the property granted. (See easement)

implied authority:
The authority of an agent to perform acts which are reasonably necessary to accomplish the purpose of the agency.

implied warranty:
A theory in landlord/tenant law in which the landlord renting residential property implies quiet enjoyment of the property or that the property is habitable. (See habitability, quiet enjoyment)

impound account:
A trust account established to set aside funds for future needs relating to a parcel of real property. Many mortgage lenders require an impound account to cover future payments for taxes, assessments, private mortgage insurance and insurance in order to protect their security from defaults and tax liens. In the case of FHA loans, many lenders require a tax reserve of six months and an insurance reserve of one year. When the property is sold and the buyer assumes the seller's mortgage, the lender does not usually return the escrow account balance to the owner. The sum remains with the lender, and it is the responsibility of the buyer and seller to prorate the balance between them. Impound accounts are required for FHA loans, and although VA regulations do not require an impound account for taxes and insurance premiums on GI loans, many lenders customarily require that such accounts be established and maintained. Under RESPA, the amount of reserves in the impound account is limited to one-sixth of the estimated amount of taxes and insurance that will become due in the 12-month period beginning at settlement. Sometimes, part of the purchase price due the seller may be impounded or put aside by escrow to meet the postclosing expense of clearing title or repairing the structure. The issue of use of interest earned on reserve funds is frequently debated. Typically, lenders do not pay interest to borrowers on money held as reserves.

1) Any structure, usually privately owned, erected on a site to enhance the value of the property--for example, building a fence or a driveway. 2) A publicly owned structure added to or benefiting land, such as a curb, sidewalk, street or sewer.

incentive zoning:
Zoning that offers incentives to developers, such as retail shops on the first floor of multistory office buildings if a plaza for public use is included. (See zoning)

income and expense report:
A financial report generated by a property manager that details the income and expenses from a property and the amount remitted to the owner.

income approach:
The process of estimating the value of an income-producing property through capitalization of the annual net income expected to be produced by the property during its remaining useful life. (See appraisal)

income ratio:
The relationship between a person's total income and the amount needed to make one month's mortgage payment.

incorporeal right:
A nonpossessory right in real estate; for example, an easement or a right of-way.

increasing and diminishing returns:
The addition of more improvements to land and structures which increases value only to the assets' maximum value. Beyond that point, additional improvements no longer affect a property's value. As long as money spent on improvements produces an increase in income or value, the law of increasing returns applies. At the point where additional improvements do not increase income or value, the law of diminishing returns applies.

A brokerage firm operating on-its-own without an affiliation with a regional or national franchise.

independent contractor:
One who is retained to perform a certain act, but who is subject to the control and direction of another only as to the end result and not as to how he or she performs the act. The critical feature, and what distinguishes an independent contractor from an employee or agent, is the degree of control the employer has over such a person's activities.

Because many licensing laws make brokers responsible for the activities of their salespeople, even if they are independent contractors, many brokers want to exercise a high degree of control over such activities. However, the state licensing laws do not preclude the establishment of independent contractor status for tax purposes, provided the relationship is carefully structured to avoid possible classification of such a person as an employee. A broker should always consult a tax attorney concerning such matters. (See employee)

Used to set interest rates, such as the six month Treasury bill rate. (See index rate)

index lease:
A lease containing an escalation clause that is tied to an index. (See lease)

index method:
The appraisal method of estimating building costs by multiplying the original cost of the property by a percentage factor to adjust for current construction costs. (See appraisal)

index rate:
The rate to which the interest rate on an adjustable rate loan is tied (see adjustable-rate mortgage). At set adjustment periods, the borrower's interest rate will move up or down as the index rate changes. Four indices are most commonly used:

  • Six-Month Certificate Of Deposit (CD) Spot Index—This index is the weekly average of the interest rates paid by institutions on negotiable six-month certificates of deposit. Because it reflects every blip and swing of the market, it can change quickly.

  • One-Year Treasury Spot Index—This index is the weekly average interest paid by the U.S. Government on funds borrowed for one year. It changes more slowly than the CD index.

  • Treasury Twelve-Month Average Index—This index is the yearly average of the monthly interest paid by the U.S. Government on actively traded securities. It changes more slowly than either of the preceding indices.

  • Eleventh District Cost-of-Funds Index—This index is the monthly weighted average cost of what banks on the West Coast pay for their various deposits and for the advances they get through the Federal Home Loan Bank Board of San Francisco. It moves at a tortoise's pace compared to the other indices.
indirect management costs:
Expenses in a budget of a real estate agency or parent company the are partially attributable to the operation of a management department. (See direct management costs)

Individual Retirement Account (IRA):
An Individual Retirement Account (IRA) is an IRS-approved way for any working individual to set aside savings for retirement each year in a tax-deferred account. The individual is not taxed for accumulated earnings in an IRA until benefits are withdrawn (usually after retirement when the person may be in a lower income tax bracket).

indoor air:
Breathing air inside a habitable structure, often highly polluted because of lack of exchange with fresh oxygen from outdoors. Solvents, smoke, paints, furniture glues, carpet padding, and other synthetic chemicals trapped inside contribute to an often unhealthy environment.

industrial broker:
A real estate broker who specializes in brokering industrial real estate.

industrial development bonds:
A bond that allows private investors to finance apartment and commercial development by using tax-exempt, inexpensive funds. TRA '86 imposed severe restrictions on this financing technique. (See TRA '86)

industrial property/parks:
A property primarily used for the production or manufacture of goods or products.

industrial revenue bonds:
Bonds issued for the development of an industrial park or the construction of a building for lease to commercial tenants.

The gradual reduction of the purchasing power of the dollar, usually related directly to the increases in the money supply by the federal government.

A way to enter a property - access. The opposite of egress.

inheritance taxes:
An "estate" tax imposed by the state on heirs for their right to inherit property. The tax is not levied on the property itself, but rather on the heirs for their right to acquire the property by succession or devise. Therefore, the rates or the deductions may vary depending on the degree of the relationship.

At the time of a person's death, a statutory lien usually attaches to all real property interests owned by the decedent, which lien remains in effect until the inheritance taxes have been paid and a "tax clearance" is issued. This applies even if property was held in joint tenancy with right of survivorship. (See estate taxes, statutory lien)

in-house sale:
A sale in which the listing broker is the only broker in the transaction; there is no outside broker involved as in a cooperative sale. Either the listing salesperson finds the buyer, or another salesperson working for the listing broker finds the buyer. If the buyer is a client of the broker, the issue of dual agency arises.

initial rate:
The inital rate charged to a borrower for the first adjustment period of an adjustable rate mortgage. (See adjustable rate mortgage (ARMs))

A legal action whereby a court issues a writ that forbids a party defendant from doing some act or compels the defendant to perform an act. An injunction requires the person to whom it is directed to refrain from doing a particular thing, such as violating deed restrictions or house rules. (See restraining order)

installment contract:
A contract for the sale of real estate whereby the purchase price is paid in periodic installments by the purchaser, who is in possession of the property even though title is retained by the seller until a future date, which may not be until final payment. Also called a contract for deed or articles of agreement for warranty deed.

installment note:
A promissory note with payments of principal and interest made at designated intervals. (See promissory note)

installment sale:
An income tax method of reporting gain received from the sale of real estate when the sales price is paid in installments, i.e., where at least one payment is to be received after the close of the taxable year in which the sale occurs. No down payment is required in an installment sale.

If certain conditions are met the taxpayer can save on taxes by postponing the receipt of an installment and the reporting of such income to future years when his or her other income may be lower. Thus, a taxpayer can avoid paying the entire tax on the gain in the year of sale. (See realized capital gains)

Institute of Real Estate Management (IREM):
A national organization concerned with professional management of real estate. The professional designation conferred by IREM is ARM, Accredited Resident Manager.
  IREM Website

institutional lenders:
Savings and loan associations, banks, life insurance companies and mutual savings banks. (See noninstitutional lenders, savings and loan associations)

insurance companies:
Insurance companies accumulate large sums of money from the premiums paid by their policyholders. While part of this money is held in reserve to satisfy claims and cover operating expenses, much of it is free to be invested in profit-earning enterprises, such as long term real estate loans. Although insurance companies are considered primary lenders, they tend to invest their money in large, long-term loans that finance commercial and industrial properties rather than single-family home mortgages.

A charge made by a lender for the use of money.

interest factor:
In a table, numbers derived from formulas used to determine the present or future value of money. Interest factors are a function of interest rate and time, and can be derived for any combination of the two. (See future worth)

A term loan calling for payments of interest only, not to include any amount for principal. (See term loan)

intermediate theory:
Some states have adopted an intermediate theory of mortgage based on the principles of title theory, but requiring the mortgagee (lender) to foreclose to obtain legal title as is necessary in lien theory. (See lien theory, title theory)

A judicial proceeding by which, when two parties make the same claim against a third party, the rightful claimant is determined. As such, he could require them to litigate their problems between themselves, instead of litigating it with him.

A judicial proceeding where an innocent third party, such as an escrow agent or broker, can deposit with the court property or money that he or she holds and that is subject to adverse claims. The court can then distribute it to the rightful claimant.

interim financing:
A short-term loan usually made during the construction phase of a building project (in this case often referred to as a construction loan).

interim occupancy agreement:
An agreement allowing a buyer to take possession of a property as a tenant prior to close of escrow.

Internal Rate of Return (IRR):
A multi-year analysis of rate of return similar to Financial Management Rate of Return (FMRR). Used by investors in medium and large properties (occasionally on small properties). Multi-year cash flows and net sale proceeds are analyzed using discounted cash flow techniques to solve for the Financial Management Rate of Return (FMRR).

IRRs and FMRRs are the best rate of return indicators, because they require an analysis of the investor's entire holding period, not just a single year. The discounting process takes into consideration the time value of money and thereby produces a more realistic rate of return. (See Financial Management Rate of Return (FMRR))

Interstate Land Sales Full Disclosure Act:
A federal law, enacted in 1968, that regulates interstate land sales by requiring registration of real property with the Office of Interstate Land Sales Registration (OILSR) of the U.S. Department of Housing and Urban Development (HUD). The main purpose of the act is to require disclosure of full and accurate information regarding the property to prospective buyers before they decide to buy. To comply with the act, the developer must prepare a statement of record and register the subdivision with HUD. After the registration is effective, the developer must deliver to the purchaser (and obtain a receipt for) the property report before execution of the purchase agreement. The developer must give prospective buyers a cooling-off period of seven calendar days to consider the material contained in the property report. Many large subdivisions are registered with HUD because HUD regulations apply if the developer uses the mails or any other means of interstate commerce in the sale of lots.

There is an intrastate exemption to the regulations of the act that is limited in scope and very narrowly construed. If the subdivision contains fewer than 300 lots that are sold or leased to residents of the same standard metropolitan statistical area (SMSA) in which the subdivision is located (leeway is given so that 5 percent or less of sales in any one year may be made to residents of another state), the subdivider may apply for the exemption. Some of the more common exemptions from HUD filing requirements are:

  • Subdivisions in which there are fewer than 100 lots. If there are fewer than 25 lots, there is a total exemption from the act, not just from the registration and disclosure requirements.

  • Subdivisions in which all the lots are 20 acres or larger (inclusive of easements).

  • Subdivisions in which the land is improved by a building or in which there is a contract obligating the seller to erect such a building within a period of two years.

  • Bulk sales of lots to another developer.

  • Sale to a contiguous owner.

  • Fewer than 12 sales per year.

  • Sales to a governmental agency.

  • Sales of a single-family residential subdivision when the subdivision meets local code standards, title passes within 180 days after the contract and the seller refrains from promotional techniques such as gifts and dinner programs.

Note that condominium units are considered by HUD to be lots "in the sky," and thus the developer may have to register a condominium with HUD as well as the local regulatory agency. The risk of noncompliance is greatest in those larger projects in which the developer is building in separate increments but promotes the use of common facilities that may not be completed for more than two years (such as a golf course).

A developer need not register with HUD a condominium in which each unit has been completed before sale. In this regard, the term completed means habitable and ready for occupancy. The developer can also avoid registration (and thus not be required to furnish buyers with a property report) if the unit is sold under a contract that obligates the seller to complete construction of the development within two years following the sale, as long as construction is not delayed by conditions beyond the developer's control. Also, the developer need not give a prospective buyer a HUD property report before the buyer signs a reservation, only before he or she signs a contract to buy.

A registered subdivider who sells on an installment contract must refund any payments over 15 percent of the purchase price (excluding interest owed) if the purchaser defaults on the contract. This requirement can be avoided if the contract requires the subdivider to deliver legal title within 180 days after the execution of the contract.

The three-year statute of limitations for fraud does not begin to run until discovery of the fraud is made or should have been made.

Note that even though a particular subdivider or subdivision may be exempt from registration under the law (e.g., a 60-lot subdivision), it is still unlawful to make false statements regarding such sales by means of interstate commerce. However, if there are fewer than 25 lots, then the subdivider is not subject to any provision of the act.

The condition of a property owner who dies without leaving a valid will. Title to the property will pass to the decedent's heirs as provided in the state law of descent.

intestate succession:
A succession of a property to the heirs when a person dies without a will.

intrinsic value:
An appraisal term referring to the value created by a person's personal preferences for a particular type of property.

1. to come into use; take or have effect. 2. to become beneficial or advantageous.

inverse condemnation:
A property owner forcing a government to take a property by eminent domain when that government's actions resulted in the owner's inability to use the property. (See condemnation, eminent domain)

Money directed toward the purchase, improvement and development of an asset in expectation of income or profits.

investment group financing:
Large real estate projects, such as highrise apartment buildings, office complexes and shopping centers, are often financed as joint ventures through group financing arrangements like syndicates, limited partnerships and real estate investment trusts. (See equity trust)

investment property rule:
The Internal Revenue Code specifies that no gain or loss should be recognized on the exchange of property held for productive use in trade or business or for investment if the property is exchanged for property of like kind that is to be held for productive use in trade or business or for investment. (See like kind)

involuntary lien:
A lien placed on property without the consent of the property owner. (See lien).

IRS tax lien:
A federal tax lien, or Internal Revenue Service (IRS) tax lien, results from a person's failure to pay any portion of federal taxes, such as income and withholding taxes. A federal tax lien is a general, statutory, involuntary lien on all real and personal property held by the delinquent taxpayer. Its priority, however, is based on the date of filing or recording; it does not supersede previously recorded liens. (See lien)


joint and several liability:
A situation when more than one party is liable for repayment of a debt or obligation. A creditor can obtain compensation from one or more parties, either individually or jointly. (See liability)

joint protection policy:
A title insurance policy insuring the interest of both owner and lender.

joint tenancy:
An estate or unit of interest in real estate that is owned by two or more natural persons with rights of survivorship. The basic idea of a joint tenancy is unity of ownership; title is held as though all owners collectively constituted one person, a fictitious entity. The death of one joint tenant does not destroy the owning unit--it only reduces by one the number of persons who jointly own the unit. The remaining joint tenants receive the deceased tenant's interest by the right of survivorship. Thus, the decedent's interest cannot be transferred by will or descent. As each successive joint tenant dies, the remaining tenants acquire the interest of the deceased. The last survivor takes title in severalty, fully inheritable at his or her death by heirs and devisees. (See four unities)

joint venture:
The joining of two or more people to conduct a specific business enterprise. A joint venture is similar to a partnership in that it must be created by agreement between the parties to share in the losses and profits of the venture. It is unlike a partnership in that the joint venture is for one specific project only, rather than for a continuing business relationship. (See partnership)

The formal decision of a court on the respective rights and claims of the parties to an action or suit. A judgement that has been entered and recorded with the county recorder usually becomes a general lien on the property of the defendant.

judgment decree:
Specifiies the award made by the court in a civil case.

judgment lien:
A general lien on the property of a judgment debtor, giving the holder of the judgment a right to levy the property to satisfy the debt. (See general lien)

judicial foreclosure:
A method of foreclosing on real property by means of a court-supervised sale. In a judicial foreclosure, there is an appraisal, after which the court determines an upset price below which no bids to purchase will be accepted. (See nonjudicial foreclosure, strict foreclosure)

judicial precedent:
In law, the requirements established by prior court decisions.

jumbo loan:
A "jumbo" loan is any loan that exceeds the underwriting guidelines for Fannie Mae/Freddie Mac maximum loan limits ($240,000 as of January 1999). (See Non-conforming loan, Fannie Mae, Freddie Mac)

junior lien/mortgage:
An obligation, such as a second mortgage, that is subordinate in right or lien priority to an existing lien (senior loan) on the same real estate. (See senior lien/loan)

junction box:
A rectangular metal or plastic box that provides a nexis (junction) for a home's electrical wiring system. Protects the wiring from the elements.

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