12. Titles Flashcards
What are the five requirements for Adverse Possession?
- maintain open, visible, and notorious possession;
- have actual physical possession or occupancy of the land;
- Exclude others from possession;
- have “hostile” possession(be there without permission); and
- maintain that possession continuously and without interruption.
What does Actual Possession of a Property signify?
It gives notice to the world at large and the property owner that someone is physically possessing the premises.
What is Constructive Adverse Possession?
- Color of title
- Actual possession of at least a significant part of the premises
What does Color of Title refer to?
It refers to something in the adverse possessor’s title that is incorrect or faulty yet indicates ownership of the property.
If a possessor proves Constructive Adverse Possession, how much land do they get?
The whole property as described in the deed/color of title.
What happens if land is divided into two or more lots in a constructive possession case?
Constructive possession extends only to the lot that the possessor actually occupies.
What happens if a third person is in possession of part of the premises in a constructive possession case?
constructive possession will not extend to the portion the third party possesses.
How is a person considered Hostile on the land?
By holding the premises in a manner inconsistent with the rights of the owner.
Under the majority rule, how is hostility judged?
Objectively; the possessor’s state of mind is irrelevant.
Under the minority rule, what must a possessor demonstrate regarding hostility?
The possessor must act in good faith and believe the land is theirs.
What are Mistaken Boundaries in Adverse Possession Cases?
A building on one parcel encroaching slightly on the adjoining parcel, often without the adjoining owner’s knowledge.
What is the Objective Majority/’Maine’ view for mistaken boundaries?
Possession is hostile as long as the possessor intends to claim the land, even if unsure of the boundary.
What is the Subjective Minority/’Connecticut’ view for mistaken boundaries?
The possessor must know that they have crossed over the boundary.
What are three additional methods to deal with Boundary Disputes?
- Oral agreement
- Long acquiescence
- Reliance on one party’s words or acts
How does a possessor show their possession was Continuous?
By possessing the property continuously for the statutory period.
Can a possessor satisfy the Continuous element without being on the property every day?
Yes, in some cases.
Can Seasonal Use of a Property satisfy the Continuous Element?
Yes, if that use constitutes the best use of the property.
What is Tacking in adverse possession?
The ability to add possession time from a previous adverse possessor to satisfy the statutory period.
When is Tacking allowed?
There must be an intentional transfer from one adverse possessor to another.
What happens if ownership of the property changes hands during adverse possession?
Adverse possession continues uninterrupted against the subsequent owner if the two owners are in privity of the estate.
What is Tolling?
The statute of limitations will not run/suspend for a period of time.
When does Tolling occur?
A disability (e.g., minor age, incompetence, imprisonment) tolls the statute of limitations if it exists at the time adverse possession starts.
What happens if the adverse possessor’s possession is in effect before the disability occurs?
The statutory period continues to run despite the period of disability.
When does the Adverse Possession period begin to run with a disabled possessor?
Once the disability ends.
When is Tolling not allowed?
If the disability arises after the adverse possession has begun.
What does an adverse possessor acquire title of a property?
Only what the current possessory estate owner has in terms of title.
What are the two remedies of a True Owner against a wrongful possessor?
- Legal remedies
- Equitable remedies
What is the True Owner’s Legal Remedy for a wrongful possessor?
The party wrongfully in possession must pay the fair market value of the property.
What is the True Owner’s Equitable Remedy for a wrongful possessor?
A mandatory injunction to eject the adverse possessor.
What rights does an Adverse Possessor have when the adverse possession begins?
Considered the owner against the entire world except the true owner.
What rights does an Adverse Possessor have once the Statute of Limitations runs?
The adverse possessor is the true owner as of the date of entry.
What are the three requirements for a Deed?
- Donative intent
- Delivery
- Acceptance
Does the validity of the conveyance of land depend upon consideration being paid?
No, evidence related to consideration is irrelevant.
What is Donative Intent?
The grantor must intend to transfer an interest immediately to the grantee.
What if the grantor intends the deed to take effect only on their death?
Formalities must be observed.
What is Delivery of a Deed?
The grantor relinquishes all control over the instrument as an effective transfer of title.
What are three scenarios where a presumption of delivery exists?
- Deed found in the grantee’s possession
- Deed properly executed and recorded
- Deed contains an attestation clause
Does handing a deed to the grantor’s agent constitute valid delivery?
No, valid delivery occurs when the agent delivers the deed to the grantee.
What are three ways to show insufficient delivery by Grantor?
- Grantor did not intend a present transfer
- Grantor retains the deed
- Agent doesn’t deliver the deed to the grantee
What is the Doctrine of Relation Back?
A grantor’s giving a deed to an escrow agent constitutes valid delivery if the grantor relinquishes control.
What is a Death Escrow?
Grantor gives the deed to a third party to deliver at the grantor’s death.
What interest is the Grantor conveying with a Death Escrow?
A present transfer of a life estate to himself and a remainder to the grantee.
What happens if the grantor expressly retains the right to reclaim the deed from the third party?
The transfer of title through the escrow agent will fail.
When is valid acceptance of a deed presumed?
If the conveyance is beneficial to the grantee.
What is an invalid acceptance?
If the grantee refuses to accept, there is no transfer of property.
What happens if the deed is destroyed after the grantee accepts?
Subsequent destruction of the deed has no legal effect.
What are the four written requirements of a valid deed?
- Identify the parties
- Intent for present transfer
- Describe the property
- Grantor’s signature
What are two instances where Parol Evidence is admissible with Deeds?
- To show an absolute deed was intended to serve as security
- To show the grantor did not intend the deed to have present effect
What is the majority rule dealing with delivery to grantee with an oral condition?
Conveyance is valid, but the oral condition may not be proved.
What is the minority rule dealing with delivery to grantee with an oral condition?
Conveyance is void if the condition is delivery on the grantor’s death.
What does a warranty deed contain?
Covenants from the grantor assuring there are no title defects.
What are the three present covenants in a warranty deed?
- Covenant of seisin
- Covenant of right to convey
- Covenant against encumbrances
What are the two main types of covenants for title?
Present covenants and future covenants
What is a present covenant?
A type of covenant that must be true at the time it is made, concerning the current state of the property
What are the three present covenants?
- Covenant of seisin
- Covenant of the right to convey
- Covenant against encumbrances
What does the covenant of seisin guarantee?
The grantor owns the estate or interest in land, in both title and possession
What does the covenant of the right to convey promise?
The grantor holds the power to convey the property
What does the covenant against encumbrances promise?
There are no impediments to the property, visible or invisible
What is a future covenant?
A type of covenant that can only be breached after the conveyance is made
What are the three future covenants?
- Covenant of quiet enjoyment
- Covenant of warranty
- Covenant of further assurances
What does the covenant of quiet enjoyment guarantee?
The grantee’s possession or enjoyment will not be disturbed by a third party with a lawful assertion of superior title
What is the covenant of warranty?
The grantor will defend on the grantee’s behalf against lawful claims of superior title and compensate for losses
What is the covenant of further assurances?
The grantor will take necessary actions to perfect an imperfect title
What are the three types of deeds used in conveyances of real property?
- General Warranty Deed
- Special Warranty Deed
- Quitclaim Deed
What does a General Warranty Deed guarantee?
The seller warrants no title defects during their ownership and the chain of title
What does a Special Warranty Deed warrant?
No title defects have occurred during the seller’s ownership
What does a Quitclaim Deed do?
The seller conveys whatever interest he may have without making any warranties
What is the statute of limitations for present covenants?
Begins to run when the deed is delivered
What is the statute of limitations for future covenants?
Does not begin to run until a third party asserts a superior title
What is ademption by extinction?
A gift of real estate not in the testator’s estate at the time of death results in the beneficiary taking nothing
What is ademption by satisfaction?
A gift made during the testator’s lifetime is considered satisfied if the specific property is mentioned in the will
What is exoneration?
Inherited real property is taken subject to all outstanding liens and mortgages
What is a bona fide purchaser?
One who takes property for value without notice of competing claims
What are the three elements required to prevail under a Notice Statute?
- The claimant took subsequent in time to another
- The claimant was a bona fide purchaser for value
- The claimant took the property without actual, constructive, or inquiry notice
What is a Race Statute?
The person who records first prevails
What is a Notice Statute?
An unrecorded conveyance is invalid against a subsequent bona fide purchaser without notice
What is a Race-Notice Statute?
An unrecorded conveyance is invalid against a subsequent bona fide purchaser for value, without notice, who records first
What types of parties are not considered bona fide purchasers?
- Grantees acquiring property by gift or inheritance
- Adverse possessors
- Judgment creditors who don’t purchase debtor’s property at a judicial sale
What happens if an encumbrance is expressly noted in a deed?
It cannot serve as the basis for a breach of the covenant against encumbrances
What is the remedy for a breach of the covenant of further assurances?
Specific performance
What is the definition of an encumbrance?
Any right in a third person that diminishes the value or limits the use of the land granted
What are common types of encumbrances?
- Mortgage and judgment liens
- Taxes
- Leases
- Water rights
- Easements
- Restrictions on use
What are the three requirements for a person to be protected by the recording acts?
- Be a purchaser
- Taking without notice of the prior instrument
- Pay valuable consideration
What is a Race-Notice Statute?
An unrecorded conveyance is invalid against a subsequent bona fide purchaser for value, without notice, who records first.
What are the four elements required to prevail under a Race-Notice Statute?
- The claimant took subsequent in time to another person claiming ownership
- The claimant was a bona fide purchaser for value
- The claimant took the property without actual, constructive, or inquiry notice
- The claimant recorded first
What are the four types of notice?
- Actual notice
- Constructive notice
- Inquiry notice
- Lis pendens notice
What is Actual Notice?
Actual notice exists if the claimant actually sees the deed under which the other party is claiming, or otherwise knows of the conveyance.
What is Constructive Notice?
Constructive or record notice exists if the other party’s deed is recorded in the proper place in the record books.
What is Inquiry Notice?
Inquiry notice exists if the appearance of the property is such that the claimant should have asked more questions about the title to the property.
What is Lis Pendens Notice?
Lis pendens notice is notice of a pending lawsuit that will affect a particular piece of property; it provides notice that there is or may be a lien against the property.
What is a Tract-Index?
In tract index jurisdictions, the searcher looks at the legal description of the tract of land followed by a chronological listing of all conveyances involving that piece of land.
What is the Grantor and Grantee Index?
In grantor and grantee index jurisdictions, the searcher establishes a chain of title by searching by grantors and grantees in time.
Would Quitclaim Deeds or Wild Deeds be in the Grantor and Grantee Index?
No, Quitclaim Deeds or Wild Deeds would not be in the grantor and grantee index and thus would not provide any notice.
What is the Shelter Rule?
The Shelter Rule provides protection for a subsequent taker who does not satisfy the applicable recording statute.
When does the Shelter Rule not apply?
- If the person attempts to ‘wash’ his deed by conveying to a third person and then immediately taking a reconveyance
- If the person commits fraud in respect to the deed
What is a judgment lien?
A judgment lien is a court ruling that gives a creditor the right to take possession of a debtor’s real property if the debtor fails to fulfill contractual obligations.
Are Judgment liens protected by any recording acts from a prior unrecorded conveyance made by the defendant?
No, a plaintiff who obtains a judgment lien is not protected by any recording acts from a prior unrecorded conveyance made by the defendant.
What is a tax lien?
A tax lien is recorded in a similar manner to judgment liens, covering all real property and personal property that the taxpayer owns or may own in the future.
How are judgment liens and tax liens enforced?
They can be enforced through a specific levy or foreclosure action on a piece of property, or by waiting until the debtor sells a parcel of real estate.
What is Estoppel by Deed?
Under the doctrine of Estoppel by Deed, when a grantor grants title to property that she does not own, she will be estopped from asserting anything in derogation of the deed.
Can a Forged Deed pass title?
No, a forged deed is void and cannot pass title.
Title Insurance
A title insurance policy insures that a good record of title of the property exists as of the policy’s date and agrees to
defend the record title if litigated. The insurance can be taken out by either the owner of the property or the mortgage lender.
An owner’s policy protects only the person who owns the policy (the property lender or the mortgage lender)
and does not run with the land to subsequent purchasers.
In contrast, a lender’s policy follows any assignment of the
mortgage loan.
