8) Titles Flashcards
analysis: competing claims to land
take potential claimants in chronological order
establish claims
see if any subsequent person can take away title via:
1) AP
2) land-sale k
3) conveyance
AP: def
legally sanctioned stealing of title to land away from the rightful owner
AP: elements
1) actual, open, notorious + exclusive occupation (not hiding), in a manner sufficient to put true owner on reasonable notice
2) hostile intent (just means claiming as your own)
3) continuously for the statutory period
AP: elements: minority rule
also have to pay property taxes
AP: subelements: continuoulsy
question of fact based on nature of land and its use
AP: subelements: staturoy period
at CL, 20 years
AP: subelements: hostile: ways to satisfy
1) claim of right (claiming land as yours)
2) color of title (believed had good title but really didn’t)
AP: subelements: hostile: EXCEPTION
permission to be on the land always destroys hostile intent
but mere knowledge is not permission
AP: subelements: hostile: co-tenants
hard/rare
only possible if outster
AP: subelements: hostile intent: encroachment (maj/min)
maj: mistaken encroachment is enough for hostile intent
minority: hostile intent only if encroaching was intentional, not mistaken
AP: subelements: time: tacking
can only combine (tack) if there is a transfer (deed/will/etc) from one AP’er to the other
scope of what AP’er gets: land (+exception)
generally only the portion of the land actually occupied
exception: IF color of title + occupies significant portion of the parcel described in the deed, then can claim entire parcel
scope of what AP’er gets: surface/subsurface
if true owner has granted sub-surface rights to a 3rd party
AP’er only gets surface rights
scope of what AP’er gets: future interests
ex. if true owner has a life estate, and then AP’er comes, then AP’er only gets the life estate
but ojo, relation back –> so once staturoy period runs, AP ownership relates back to date of entry on the land
disability: def
suspends or tolls the running of statutory period. But, must exist at the time the AP STARTS (no effect if arises after)
disability; kinds
1) infancy
2) legal incompetence
3) imprisonment
during AP, the AP’er is the owner
as against the rest of the world
but not as against true owner, until the statory period runs
if true owner returns during statutory period
can eject AP’er and collect damages
conveyance: def
transfer by deed
conveyance: reqs
1) deed sufficient to satisfy SOF
2) delivery of deed
3) acceptance of deed
deed sufficient to satisfy the SOF: requirements
–in writing
includes:
1) ID parties (dnn name)
2) words indicating intent to make present transfer of property
3) sufficient description of property
4) grantOR’s signature (party to be charged)
deed to satisfy sof: NOT required
1) grantee’s signature
2) consideration
3) notarization
4) recordation
delivery of the deed: def
(not literal!). delivery exists if the grantor has the mental intent that the property transfer from grantor to grantee
delivery of the deed: scenarios
1) grantor gives deed to grantee
2) grantor retains the deed
3) grantor gives deed to 3rd party to give to grantee
delivery of deed: grantor gives deed to grantee: result
–> rebuttable presumption of delivery
no oral conditions allowed! (PER)
delivery of deed: grantor retains deed: result
–> rebuttable presumption of no delivery
delivery of deed: grantor gives deed to 3rd party (escrow): result (+ exception)
–> date of conveyance is when grantor gave the deed to the 3rd party (not when 3rd party gives it to the grantee)
conditions: if there is ONE condition it won’t nec defeat relation back, esp if commercial escrow, so once the condition is met, the conveyance relates back and becomes effective. But more than one condition will fail
exception: if grantor EXPRESSLY retains right to reclaim the deed from the 3rd party, then defeats relation back / no transfer of title
delivery of deed: grantor gives deed to 3rd party (escrow): death escrow
grantor gives the deed to 3rd party, “x give this deed to grantee when I die”
PRESENT TRANSFER of a life estate to himself + remainder to grantee
deed must be accepted by buyer: def
(step 3)
generally always presumed if transfer is beneficial to grantee.
BUT, if grantee refuses to accept the conveyance then no transfer of property.
returning land?
once validly delivered + accepted, can only return title to grantor if deliver a new deed to the grantor + he acccepts
transfers by will: seller dies before closing, but after signing k
decedent’s personal representative must complete the transaction (and $ goes to whoever is inheriting $)
transfers by will: ademption
adeemed by extinction if no longer in the estate
adeemed by satisfaction if already has it (but if this happens and then “1/3 of my estate” is in will, then the real estate not adeemed as part of that unless will or writing from testator or testatee says so
transfers by will: exoneration
real property inherited under a will is taken subject to all outstanding liens + mortgages, estate does not pay them off
transfers by will: lapse
CL: if beneficiary predeceases, gift to the beneficiary fails
anti-lapse statutes: beneficiary’s heirs can stand in his shoes and accept the inheritance
or can address this in the will
general rule / recording acts
strong presumption that first in time is first in right
but recording acts can change by protecting subsequent purchasers
AP / recording
can’t record AP title (until first go to court to get quiet title judgment)
recording acts: kinds
1) race
2) notice
3) race-notice
race statute: def
whoever records first wins
notice statute: def
subsequent person can win if:
1) takes w/o notice of any other claim AND
2) is a bonafide purchaser
race-notice statute: def
subsequent person can win if 1) takes w/o notice of any other claim AND 2) is a BFP AND 3) records first (so whoever is first to do both)...
BFP: def
purchases for value (pays more than a nominal amount. NOT wills/gifts/etc).
mortgager (lender): BFP?
yes, if mortgage issued at the time of the loan
judgment creditor: BFP?
did not pay value so not BFP
AP’er – BFP?
no, dn purchase for value
notice in the title context
1) actual
2) constructive – from recording acts
3) inquiry (need to make visual inspection)
ways recording can work:
1) majority: grantor-grantee index
2) minority: tract index (CN easier)
wild deed
exists outside chain of title, there bc someone said they owned it when they really didn’t
no constructive notice usu
–> estoppel by deed
estoppel by deed: Def
someone transfers title to a property they don’t have, but then later they acquire title
estoppel by deed: majority rule
personal estoppel –> previous grantee must go into court and assert his claim to property, then grantor is estopped from denying it to him
(but grantor could grant to someone else before grantee went to court)
estoppel by deed: minority rule
operation of law theory: twhen the grantor gets it it automatically passes to the grantee
chain of title / shelter rule
protects subsequent purchaser who would not otherwise have good title – “shelters” under good title of his predecessor
title insurance
buyer can get at time of closing ofr defects in title, unexpected incumbrances etc. (then title company uses subrogation to sue to reimburse itself)
owner would get amount of purchase prise, lender woul get amount of loan (need 2 policies)
some policies may not cover matters that can’t be found in review of public records
