Chapter 1 Sources of Real Estate Law The law The law is the collection of rules for the operation of society as established and enforced by the sovereign gov t By either the population s consent or sovereign force Lockean philosophy of civil society John Locke 1632 1704 All are born equally free under natural law with a God given right to life liberty and happiness property This natural state of liberty is threatened by the wrongdoing of man So we consent to be governed for protection from this wrongdoing Government in a free civil society exists to protect and preserve the preexisting rights to life liberty and property Declaration of Independence We hold these truths to be self evident that all men are created equal that they are endowed by their Creator with certain unalienable Rights that among these are Life Liberty and the pursuit of Happiness Slide 2 Ch 1 Slide 2 Priority of laws No single source of law need a system of priority Priority first Federal law then state law Supremacy Clause of US Constitution establishes Fed law as the supreme law of the land Only if Congress acted within its constitutionally delegated enumerated powers as interpreted by the US Sup Court Federalism Fed only has powers granted by states people All powers not specifically enumerated to Fed gov t in the US Constitution are reserved to the states people 10th Amendment Reservations Clause Bill of Rights 1st 10th Amendments limits government s powers vis vis our natural rights Lockean Slide 3 Ch 1 Slide 3 Sources of law Constitutions are the highest law within the applicable jurisdiction Fed or state Foundation for our system of law Established up front and difficult to add or amend US Constitution Proposed by 2 3 vote of US Congress both houses or states at constitutional convention ratification by of the states 38 27 amendments last in 1992 after 202 yrs States often include process for creating laws by popular vote via constitutional amendment by referendum and general election CO Additional laws come from Fed State legislative statutes and executive regulations branches and our Fed State judicial branches case law and common law Slide 4 Ch 1 Slide 4 Private laws Finally there exists a kind of private law with the force of law by the fact it is enforceable in the courts of law Private parties entering into consensual agreements like contracts deed restrictions and restrictive covenants Law is really anything where there is some redress or remedy is available through our judicial system Slide 5 Ch 1 Slide 5 The law pyramid Slide 6 Ch 1 Slide 6 U S Constitution U S Constitution property laws 4th Amendment Bill of Rights Prohibits searches seizures of persons property w out probable cause 5th Amendment Bill of Rights Prohibits Fed gov t from depriving any person of life liberty or property without due process of law Prohibits Fed gov t from taking private property for public use without due process plus the payment of just compensation 14th Amendment post Civil War Reconstruction Amendment Nearly identical to 5th Amend but applies to States Also Equal Protection Clause laws must apply equally to all persons absent some rational basis for unequal treatment Acknowledges preserves our natural right to private property which may only be deprived upon due process and only taken upon both due process and just compensation Slide 7 Ch 1 Slide 7 Fed statutes regulations Federal legislative statutes carry out the lawful purposes of the US Constitution and Fed gov t think skeleton Source Citation Cite U S Code 28 U S C 1 Federal administrative regulations fill in details for application of Fed statutes think muscles Source Citation Cite Code of Federal Regulations 12 C F R 226 Daily update the Federal Register Generally concern property laws in certain areas environmental tax fair housing consumer lending Slide 8 Ch 1 Slide 8 State constitutions Like US Constitution foundation broad general However may include detailed specific laws because more easily amended via popular vote through referendum CO May include laws directly affecting property So unlike the US Constitution with very limited and broad property rights implications we have to really know our state Constitutions Slide 9 Ch 1 Slide 9 State statutes regs local ordinances Like Fed statutes regulations skeleton muscles Common source of property law including uniform laws Uniform laws a k a model statutes are drafted by special interest stakeholders and often affect property laws probate landlord tenant marital property partnership etc Primary source of laws concerning professions including real estate and mortgage brokerage appraisal etc Source cite Colorado Revised Statues C R S 38 1 101 2009 Colorado Laws go to Title 38 for prop laws County City ordinances are extremely important in connection with land use e g zoning building and development codes often uniform laws Slide 10 Ch 1 Slide 10 Private laws Not laws per se but enforceable in our courts so the power force of law so effectively law Examples affecting property Real estate purchase and sale contracts and other legal agreements Leases Deed restrictions Restrictive covenants CC Rs or Declaration Slide 11 Ch 1 Slide 11 Court decisions case law Case law made by courts by their decisions All laws have to be applied and interpreted Constitutions statutes regulations and ordinances don t give enough detail for every situation context Contracts private law too don t define every term etc Court decisions apply interpret constitutions statutes regulations ordinances contracts to make case law Published generally only appellate supreme court cases Creates binding precedent w force of law more below Must be considered along with constitutions statutes regulations etc when asking What s the law Think how skeleton muscles work in a particular situation Slide 12 Ch 1 Slide 12 Court decisions cont d common law A particular form of case law Decisions not interpreting applying a constitution statute regulation or ordinance a dispute not based on any such existing law E g a neighbor s cow gets loose and tramples eats my crops Courts look to and apply historic common doctrines of civil law common law King appointed someone judge to decide disputes Traditions developed and handed down over time doctrines Same power authority as all law precedence Much common law has been codified into statutes etc Lots of real estate law is common law Slide 13 Ch 1 Slide 13 Precedent precedence The binding authority of case law