Ch. 3 Key Terms Flashcards
Alienation
A general term that refers to all of the different methods by which title to real property can be transferred from one person to another.
A person who owns real property is said to have title to it.
Whether accomplished by means of a deed, a will, foreclosure, or in any other way, a transfer of ownership is a form of alienation.
Deed
A written instrument that, when properly executed, delivered, and accepted, conveys title or ownership of real property from the grantor to the grantee and is used to transfer real property.
Voluntary alienation
Includes transferring property by patent, deed, will, or dedication.
Patent
A document that transfers government land to private land for an individual or a company.
Conveyance
The transfer of real property from the grantor (property owner) to the grantee (person receiving the property). To carry this out these three steps are important: acknowledgement, delivery, and acceptance.
Warranty deed
The deed that provides the greatest protection to a purchaser of real property, because it contains five basic convenants against defects int he title.
Warranty Deed Conenants
These are applied automatically whenever a warranty deed is used and are guarantees against title problems that may have developed while the grantor owned the property. Not only that, they also cover problems that may have arisen earlier, before the grantor owned the property.
- Seisin
- Right to Convey
- Against Encumbrances
- Quiet Enjoyment
- Warranty
Seisin
The grantor promises that she actually owns the interest that the deed is conveying to the grantee.
Right to Convey
The grantor promises that she has the right to convey the interest in question to the grantee.
Against Encumbrances
The grantor promises that there are no easements, liens, or other encumbrances against the title that have not been disclosed to the grantee.
Quiet Enjoyment
A promise that the grantee’s possession of the property will not be disturbed by the lawful claims of any third parties.
Warranty
The grantor promises to defend the grantee’s title against any claims by third parties that existed at the time the conveyance was made.
Special Warranty Deed
The covenants cover only problems that arose while the grantor owned the property. It is usually used in various special circumstances such as the grantor is a fiduciary (such as an executor of an estate) who is holding the land only temporarily.
After-acquired title
An interest in the property that the grantor acquires after executing the either the warranty deed and special warranty deed.
Quitclaim deed, sometimes called a Reformation deed
A deed that conveys and releases any interest in a piece of real property that the grantor may have. It contains no warranties of any kind, but does transfer any right, title, or interest the grantor has at the time the deed is executed. A common reason for using a quitclaim deed is to clear up minor title defects, which are often called clouds on the title.
Cloud or Cloud on the title
Problems appearing in the public record that cast doubt on the status of the title.
For example, it might be created by a technical flaw in an earlier deed, such as a typographical error in the property description.
Or result from an unreleased lien, which indicates that there may be an unresolved claim against the property.
Sheriff’s deed
Used to convey title to someone who purchases property at a mortgage foreclosure sale.
Trustee’s deed
Used to convey title to the purchaser at the trustee’s sale.
Tax deed
The foreclosure sale purchaser receives this when the government forecloses on property because the property taxes weren’t paid.
Gift deed
Used when one party gives property to another. It is not supported by consideration, and is the easiest for a court to set aside if there is any hint it was executed in order to defraud creditors.
Deed Requirements aka. essential elements
- In writing
- Identify the Parties
- Signed by a competent grantor
- Specify a living grantee
- Contain words of conveyance
- Adequately describe the property
Deed Requirements - In Writing
The statute of frauds is a state law that requires certain types of contracts and transactions to be put into writing. Under the statute, an oral conveyance of title to real property is not valid.
Deed Requirements - Identify the Parties
The deed must identify the parties, the grantor and the grantee. It isn’t absolutely necessary to state the grantee’s name in the deed, as long as it includes a description that makes it possible to identify her.
For example, a deed could be valid if the grantor conveyed title “to my sister,” as long as the grantor had only one sister.
Deed Requirements - Signed by the Grantor
A deed must be signed by the grantor. A deed without the grantor’s signature is ineffective, even if it has all of the other elements needed for validity.d
Also, a deed is valid only if the grantor is legally competent when he signs it.
In Washington, a grantor must be at least 18 years old to execute a valid deed.
Deed Requirements - Specify a living Grantee
It isn’t necessary for the grantee to be legally competent, but the grantee must be alive at the time of the conveyance.
A valid deed requires a living grantee (or, if the grantee is a business entity, it must be legally in existence).
If the grantee is dead, the deed does not transfer title.
However, the grantee’s signature isn’t necessary. In fact, the grantee ordinarily doesn’t sign the deed.
Deed Requirements - Contain words of conveyance
A valid deed must include words of conveyance, sometimes called a granting clause. The deed must explicitly state in some way that the property is being transferred from the grantor to the grantee.
Any of several different words can be used to fulfill this requirement, such as “grant” or “convey.”
Deed Requirements - Adequately describe the property
A valid deed must have an adequate property description. Although a complete legal description isn’t required, the deed must make clear what property is being conveyed. A description is adequate if a surveyor could use it to locate the property.
Attorney in fact
Here are some important points about the grantor’s signature. If the grantor can’t sign the deed himself, it may be signed by the grantor’s attorney in fact.
An attorney in fact is not necessarily a lawyer; an attorney in fact is someone the grantor has appointed as his representative.
Power of Attorney
A document called a power of attorney is used to appoint an attorney in fact.
If the power of attorney specifically authorizes it, a deed can be executed on the grantor’s behalf by the attorney in fact.
Grantor’s Signature
When the property being transferred is owned by more than one person, all of the owners must sign the deed as grantors. If the previous deed named several grantees, all of those grantees should be signing the new deed as grantors.
Acknowledgement
A formal declaration made before an authorized official, such as a notary public or county clerk, by a person who has signed a document; he states that the signature is genuine and voluntary.
Record of Deed transfer
A valid deed will transfer title from grantor to grantee even if it is not acknowledged. BUT in Washington and many other states, a deed cannot be recorded unless it has been acknowledged.
Transfer on death deed
This type of deed transfers real property to the grantee automatically (without probate) when the grantor dies.
The deed must state that the transfer will take place on the grantor’s death. Also, the deed must be recorded.
Habendum clause aka. “to have and to hold” clause
It defines or limits the grantee’s estate. It may specify fee simple ownership or some lesser interest, such as a life estate. For example, it might read: ‘To have and to hold unto Dennis Morrison, grantee, a life estate in the property described herein.’ If a warranty deed doesn’t have a this clause, it is presumed to convey a fee simple absolute. So if the grantor means to convey anything less than a fee simple absolute, it’s important to include this clause making that clear. (Optional Clause)
Exclusions and reservations clause aka. encumbrances
Most deeds contain a brief statement concerning encumbrances. This is sometimes called an exclusions and reservations clause. It lists any easements, private restrictions, or liens that will burden the grantee’s title.
Note that valid encumbrances ordinarily continue in effect even if they aren’t listed in the deed. (Optional Clause)
Recital of Consideration
The consideration for the conveyance is the purchase money that the grantee gave the grantor in exchange for the property. The consideration exchanged in a transaction doesn’t have to be stated in the deed for the document to be valid. The recital usually doesn’t state the actual purchase price. Instead, it says something like ‘for $1.00 and other valuable consideration.’ The purpose of the recital of consideration is to indicate that the property wasn’t a gift from the grantor to the grantee.
If the property were a gift, the grantor’s creditors might still be able to assert their claims against it.
Date of execution
Although it may seem surprising, a deed can be valid even though it’s undated. But as a matter of convenience, it’s important to include the date of the conveyance on the deed.
