date of valuation

In appraisal, the date for which the value of the subject property is established, not to be confused with the date at which the appraisal takes place.

datum

A horizontal plane from which heights and depths are measured.

debenture

A type of long-term bond or note given as evidence of debt. Unlike a mortgage note, a debenture is not secured by a specific property. Fannie Mae issues debentures to finance the acquisition of mortgages in the secondary mortgage market. If a borrower defaults on an FHA loan, the government gives interest-bearing debentures to the mortgagee after the title is transferred to FHA. (See Fannie Mae, FHA)

debit

A charge on an accounting statement or balance sheet (appearing on the left-hand column); the opposite of a credit. Used in bookkeeping and in preparing the closing statement in a real estate transaction.

debt coverage ratio

The relationship between net operating income (NOI) and annual debt service (ADS). Often used as an underwriting criterion for income property mortgage loans. Example: Annual debt service for a mortgage loan on a certain office building is $10,000. The property generates $25,000 in annual gross rent, and requires $7,000 for expenses of operation, leaving $18,000 net operating income. The debt coverage ratio is 1.8 calculated by the following formula: NOI / ADS.

debt financing

Money loaned by a third party for the purchase of property, customarily secured by a mortgage or trust deed on the property.

debt ratio

The relationship between a person's long term debt payments and their monthly income.

debt service

The making of mortgage payments by the borrower, as arranged with the lender.

debt service constant

The annual loan payments to both principal and interest, divided by the loan amount, and expressed as a percentage. Unless the loan is interest-only, the loan constant will be higher than the quoted interest rate. Also called “loan constant.”

debt service coverage ratio

A property lender’s estimate of monthly or annual net operating income divided by the monthly or annual loan payments.

debtor

One who owes money; a borrower, a maker of a note; a mortgagor.

decedent

A dead person, especially one who has died recently.

declaration of condominium

The declaration includes

  1. A legal description of the condominium units and the common elements (including limited common elements-those that serve only one particular unit);
  2. A copy of the condominium's bylaws, drafted to govern the operation of the owners' association;
  3. A survey of the property;
  4. An architect's drawings, illustrating both the vertical and horizontal boundaries of each unit; and
  5. Any restrictive covenants controlling the rights of ownership.

declaration of restrictions

A statement of all the covenants, conditions and restrictions (CC&Rs) that affect a parcel of land. A subdivider may note the restrictions on the map or plan when recording the subdivision plat. If the restrictions are numerous, the subdivider may also prepare a separate document called a declaration, listing all the restrictions and then record this declaration. (See CC&Rs)

declaratory relief action

An action to have a court determine the rights of parties before a violation of rights has occurred.

declining balance depreciation

A method of depreciation, often used for income tax purposes, whereby a rate is applied to the remaining balance to derive the depreciation deduction. Compare to "accelerated depreciation."

declining-balance method

An accounting method of depreciation for income-tax purposes designed to provide larger-than-straight-line deductions in the early years of a property's life and applicable to property placed in service before 1981. The declining-balance method of calculation is applied in the IRS percentage tables for determining ACRS depreciation deductions applicable to personal property. The 3, 5, 7 and 10-year classes use the 200 percent declining-balance method, switching to straight-line at the appropriate time, and the 15 and 20-year classes use the 150 percent declining-balance method, also switching to straight-line. (See depreciation, straight-line method)

dedication

The voluntary transfer of private property by its owner to the public for some public use, such as for streets or schools.

deed

A written instrument that, when executed and delivered, conveys title to or an interest in real estate. (See title)

deed executed pursuant to court order

Executors' and administrator' deeds, masters' deeds, sheriffs' deeds and many other types are all deeds executed pursuant to a court order. These deeds are established by state.

deed in lieu of foreclosure

Voluntarily signing over to a lender the property pledged as collateral on a defaulted loan. It is an alternative to a foreclosure action. Its main disadvantage to a lender is that the deed does not wipe out junior liens, as a foreclosure action would. (See junior liens)

deed in trust

An instrument that grants a trustee under a land trust full power to sell, mortgage and subdivide a parcel of real estate. The beneficiary controls the trustee's use of these powers under the provisions of the trust agreement.

deed of reconveyance

A document used to transfer legal title from the trustee back to the borrower (trustor) after a debt secured by a deed of trust has been paid to the lender (beneficiary).

deed of trust and assignment of rents

The first page of a lending instrument; identifies the parties to the agreement, conveys title to the trustee, describes the collateral, states the terms and conditions of the note and refers to previously recorded "fictitious deeds of trust."

deed restrictions

Provisions placed in deeds to control future uses of the property. (See covenants, conditions & restrictions, restrictive covenants)

default

The failure to perform a promised task or to pay an obligation when due. Some specific examples are: (1) failure to make a rent payment or other type of lease financial obligation when due, (2) failure to make mortgage loan payments when due, (3) failure to keep a retail store open when this is an obligation of a shopping center lease, (4) failure to vacate a leased premises upon expiration of the lease term, (5) failure of a buyer to provide the funds for closing on a property purchase in a timely manner, (6) failure of a seller to provide required due diligence information to a buyer in accordance with the purchase agreement.

defeasance clause

A clause used in leases and mortgages that cancels a specified right upon the occurrence of a certain condition, such as cancellation of a mortgage upon repayment of the mortgage loan.

defeasible fee estate

An estate in which the holder has a fee simple title that may be divested upon the occurrence or nonoccurrence of a specified event. There are two categories of defeasible fee estates fee simple on condition precedent (fee simple determinable) and fee simple on condition subsequent.

defect

A condition that materially affects the value or use of property in an adverse manner.

defect of record

Any encumbrance on a title that is made a part of the public record. Recorded defects include judgments, deeds of trust, mortgages, other liens and easements. (See encumbrance)

deferred capital gain

The part of the realized gain that is tax deferred. (See capital gains, excluded capital gain, realized capital gain (loss), recognized capital gain)

deferred maintenance

In appraisal, a type of physical depreciation owing to lack of normal upkeep. Example: The appraisal found the following examples of deferred maintenance on the subject property: (a) broken window glass, (b) missing roof shingles, (c) peeling paint, (d) broken guttering.

deficiency

In mortgage finance, the shortfall of funds recovered through the sale of property securing a foreclosed loan compared to the amount of debt, accrued interest, foreclosure expenses and damages incurred by the lender. See "deficiency judgement." Example: A lender foreclosed a mortgage loan with outstanding principal balance of $100,000 and accrued interest of $2,000. At the foreclosure sale, the property brought $80,000. The lender claimed a deficiency of $22,000 plus expenses when filing for a judgement in the courts.

deficiency judgment

A personal judgment levied against the borrower when a foreclosure sale does not produce sufficient funds to pay the mortgage debt in full.

delinquent

The status of a financial obligation, such as a mortgage loan, when it is past-due.

demand

The amount of goods people are willing and able to buy at a given price; often coupled with supply. (See supply)

demised premises

A legal phrase that refers to the space that is leased pursuant to a lease agreement.

demising walls

The partition walls that separate one tenant's space from another or from the building's common area, such as a public corridor.

demographics

Population, income, household, and related statistics for a defined area. One of the criteria used by retailers to qualify potential locations.

demolition

Destruction and removal of an existing structure from a site; necessary to prepare a site for new construction. Example: A block of old houses in the city is to be converted into a new shopping mall. This conversion will require demolition of the houses, site preparation and construction of the mall.

density

The intensity of a land use. See also "land use intensity." Example: a 10-acre subdivision contains 30 single-family houses. The density is 3 dwelling units per acre.

density zoning

Laws that restrict land use intensity. Example: A zoning ordinance states that all zones designated "R-2" may contain no more than 4 detached housing units per acre. This is an example of density zoning.

Department of Real Estate (California)

The California agency that administers the Real Estate Law, including the licensing of real estate brokers and agents; headed by the Real Estate Commissioner, who is appointed by the Governor and presides over the Real Estate Advisory Commission whose ten members are appointed by and serve at the Commissioner's discretion.

deposit

Money offered by a prospective buyer as an indication of good faith in entering into a contract to purchase; earnest money; security for the buyer's performance of a contract. An earnest money deposit is not necessary to create a valid purchase contract because the mutual promises of the parties to buy and to sell are sufficient consideration because the mutual promises of the parties to buy and to sell are sufficient consideration to enforce the contract. If the buyer completes the purchase, the deposit money is applied toward the purchase price.

depreciable basis

In investment real estate only structures can be depreciated. The depreciable basis is the original basis less the value of the land. (See basis)

depreciation

The decrease in the value of a capital asset such as a building over its estimated useful life due to obsolescence and/or physical deterioration. Depreciation also refers to the periodic calculation of such loss of value for accounting and tax purposes.

depreciation (accounting)

Allocating the cost of an asset over its estimated useful life. Example: Collins buys a warehouse for $550,000. Of the price, $50,000 is for land, which is not subject to depreciation. Of the remaining $500,000, she claims accounting depreciation of $10,000 per year over a 50-year depreciable life, despite the fact that the property is expected to increase in value because of the location of the land.

descent

Acquisition of an estate by inheritance in which an heir succeeds to the property by operation of law.

design/build

An arrangement in which a single entity is responsible for both the design and construction of a facility for a tenant or owner-user, often involving the fast- track method of construction; also referred to as "design/construct."

designated agent

A licensee authorized by a broker to act as the agent for a specific principal in a particular transaction. A designated agent is the only agent in the company who has a fiduciary responsibility toward the principal.

destruction of premises

In many states, once the sales contract is signed by both parties, the buyer bears the risk of any damage to the property that may occur before closing. Of course, the contract may provide otherwise.

developer

One who attempts to put land to its most profitable use through the construction of improvements on subdivided land.

devise

A transfer of real property under a will. The donor is the devisor, and the recipient is the devisee.

direct capitalization

A technique used in the income capitalization approach, where estimated value equals net operating income divided by capitalization rate.

divisible contract

A contract that consists of separate agreements that are not dependent on each other. The illegality of one part will not void the balance of the contract.

direct endorsement

The ability of an FHA-approved lender to secure FHA single and multifamily mortgage insurance by following FHA guidelines. Under a direct endorsement program applications for many of FHA's mortgage insurance programs can be underwritten by approved lenders who certify that the mortgage complies with applicable FHA requirements. (See mortgage insurance)

disability

A physical or mental impairment that substantially limits one or more major life activities, such as walking, seeing, learning and working. Disability includes a record of such impairment or the fact of being regarded as having such impairment. The Americans with Disabilities Act (ADA) protects individuals with disabilities from various forms of discrimination in employment, public services, transportation, public accommodations and telecommunication services. A person abusing illegal drugs or alcohol is not covered, but a person who is rehabilitated in these areas may be protected under ADA. (See handicap)

discharge of contract

A contract is discharged when the agreement is terminated. Obviously, the most desirable case is when a contract terminates because it has been completely performed, with all its terms carried out. However, a contract may be terminated for other reasons, such as a party's breach or default.

disclaim

Renunciation of ownership of property.

disclaimer

A statement denying legal responsibility, frequently found in the form of the statement, "There are no promises, representations, oral understandings or agreements except as contained herein." Such a statement, however, would not relieve the maker of any liabilities for fraudulent acts or misrepresentations. (See hold-harmless clause)

disclosed dual agency

Real estate licensing laws may permit dual agency only if the buyer and seller are informed and consent to the broker's representation of both in the same transaction. Although the possibility of conflict of interest still exists, disclosure is intended to minimize the risk for the broker by ensuring that both principals are aware of the effect of dual agency on their respective interests. The disclosure alerts the principals that they may have to assume greater responsibility for protecting their interests than they would if they had independent representation. The broker must reconcile how, as agent, he or she will discharge the fiduciary duties on behalf of both principals, particularly providing loyalty and protecting confidential information.

disclosure

It is the agent's duty to keep the principal informed of all facts or information that could affect a transaction. Duty of disclosure includes relevant information or material facts that the agent knows or should have known.

disclosure statement

A statement required by law, in which sellers of particular kinds of property, or under certain circumstances, must reveal specified information to potential buyers. Examples: (a) most states require sellers of real estate to disclose any "dangerous condition" to potential buyers; (b) many sellers of investment interests in real estate are required to disclose their own interest and even profit potential; (c) sellers of time-share interests must disclose which portions of the project will be retained by the developer, and the costs and conditions of use by time-share buyers.

discount

To sell at a reduced value; the difference between face value and cash value.

discount points

An added loan fee charged by a lender to make the yield on a lower-than-market-interest VA or FHA loan competitive with higher-interest conventional loans. One discount point is equal to 1 percent of the loan amount.

discount rate

In commercial leasing, the interest rate used to calculate the net present value of a lease’s projected income stream by taking into account the lease payments, lease concessions, and other costs, in addition to any other relevant financial terms. In commercial property sales, the interest rate used to calculate the net present value of an investment property using discounted cash flow analysis.

discounted cash flow analysis

A technique of valuing investment property by the income capitalization approach that determines the net present value of future annual operating cash flows over an assumed property holding period, plus the proceeds from an eventual property sale (reversion) by applying compound interest calculations. Also known as “DCF” analysis. DCF analysis can also be used to calculate a projected yield for a property investment at a given price.

discounting

The process of estimating the present value of an income stream by reducing expected cash flow to reflect the time value of money. Discounting is the opposite of compounding. Mathematically they are reciprocals. See "discounted cash flow", "net present value." Example: If the sale of land expected to be $1 million in the year 2000 was discounted to a present value in 1994 at a 15% risk rate, it would provide a value today of approximately $432,000.

discretionary income

Income left over for investment after allocations for bills and savings.

disintermediation

The process of individuals investing their funds directly instead of placing their savings with banks, savings and loan associations and similar institutions for investment by such institutions. This bypassing of financial institutions occurs when proportionately higher yields are available on secure investments (such as high-grade corporate bonds, money market funds and government securities) than can be obtained on savings deposits.

distraint

The legal right of a landlord to seize a tenant's personal property to satisfy payment of back rent. Example: Abel is 6 months in arrears on rent. Landlord Baker obtains a court order to seize Abel's furniture to satisfy the rent due. Baker is exercising his right of distraint.

distressed property

Real estate that is under foreclosure or impending foreclosure because of insufficient income production. See "workout." Example: An apartment building is financed with mortgages that require $25,000 in annual debt service. Because of high vacancies and rising expenses, net operating income drops to $20,000. The owners have ceased making loan payments because their resources are insufficient to pay the negative cash flow. The property is considered distressed property.

distributions of net investment income

The amount of investment income derived from customary and ongoing investment management operations that is (1.) actually distributed to investors, or (2.) credited to investors in the case of investment fund dividend or income reinvestment programs that are elective by the investor. (Mandatory reinvestment programs or automatic cash retention programs are not considered elective by the investor.) A distribution of net investment income does not include proceeds related to disposition and refinancing activities.

dock high loading

Industrial loading docks built to approximately 50" above the ground to facilitate loading and unloading to and from trucks.

doctrine of prior appropriation

In states where water is scarce, ownership and use of water are often determined by the doctrine of prior appropriation. Under this doctrine, the right to use any water; with the exception of limited domestic use, is controlled by the state rather than by the landowner adjacent to the water.

domicile

From domus, Latin for "house." The state where an individual has his or her true, fixed permanent home and principal business establishment and where that person has the intention of returning whenever he or she is absent from it. Once established a domicile is never lost until there is a concurrence of specific intent to abandon the old domicile, intent to acquire a specific new domicile and actual physical presence in the new domicile. Though a person may have residences in different states and reside there at different times of the year, it is possible to have only one domicile. Because domicile consists of physical presence plus an intention to make the state one's permanent abode, such factors as local registration of autos, driver's license, voting, paying taxes, membership in local organizations, local bank accounts and local business interest are all important in establishing the requisite intent.

dominant tenement

The estate that is said to attach to and derive benefit from the servient estate in reference to an easement appurtenant. For example, an easement road passes over an owner's land (the servient tenement) to give access to an adjacent parcel (the dominant tenement). The dominant tenement usually adjoins the servient tenement. (See easement, servient tenement)

double taxation

One of the main disadvantages of corporate ownership of income property is that the profits are subject to double taxation. As a legal entity, a corporation must file an income tax return and pay tax on its profits. The portion of the remaining profits distributed to shareholders as dividends is taxed again as part of the shareholders' individual incomes.

dower

The legal right or interest, recognized in some states, that a wife acquires in the property her husband held or acquired during their marriage. During the husband's lifetime the right is only a possibility of an interest; upon his death it can become an interest in land.

down payment

The amount one pays for property in addition to the debt incurred.

down zoning

A change in zoning from a higher to a lower or from a more active to less active classification, such as from residential to conservation, or multifamily to single-family use. In these cases, there is no taking under eminent domain and thus no compensation paid to the affected landowner who helplessly sees the property reduce in value. (See zoning)

draws

  1. An advancement of money against future earning.
  2. Periodic advances of funds under a construction loan agreement.

dropped ceiling

A suspended ceiling attached to the underside of the floor above.

dual agency

The term for when an agent represents both sides-the landlord and the tenant-in a commercial lease transaction. This relationship is typically governed by state law and regulation, requiring full disclosure in writing by the agent to all parties to the transaction.

due diligence

The process of investigation performed by the parties to a property transaction to verify the material facts about the transaction’s physical, financial, and legal details.

due-on-sale-clause

A provision of a property loan that makes the loan balance due and payable upon a sale of the property, thus prohibiting an assumption by the new owner.

duplex

A structure that provides housing accommodations for two families and supplies each with separate entrances, kitchens, bedrooms, living rooms and bathrooms. A two-family dwelling with the units either side by side or one above the other.

duress

Unlawful constraint or action exercised upon a person whereby the person is forced to perform an act against his or her will. A contract entered into under duress is voidable.

dwelling

Any building, structure or part thereof used and occupied for human habitation or intended to be so used, including any appurtenances. Many municipalities have adopted ordinances relating to the repair, closing and demolition of dwellings unfit for human habitation.