Chapter 3 Flashcards
Transfer of Title and Title Insurance
what is a title
the actual lawful ownership of property. it includes the bundle of rights. (disposition, exclusion, enjoyment, possession, and control DEEP-C). it is NOT the doc. its the concept of ownership
what is a deed
the ownership document
who is the grantor
the person transferring title to
who is the grantee
the person who receives the conveyance of real property
what is the original title
title passed from the government
what is the derivative title
title transfer from person to person
what is the legal term for transferring ownership to real property from one person to another
alienation. may be transferred through voluntary or involuntary alienation.
what are the ways owners act in voluntary alienation
sale. will (aka testament). dedication and gift.
what are the terms used to describe the different type of property conveyed in a will
devise: testamentary transfer of real prop.
bequest: transfer of personal property
legacy: transfer of money or property bequeathed.
what happens when a will goes into probate
it is a legal process where
- determines the validity of a will
- pays the debts of the deceased and
- distributes the remaining assets.
what is the executors job and what happens if no will exists or the executor is not named
named in the will to carry out the wishes of the testator and handle the estate. if not named or no will, the court appoints the administrator.
what is a holographic will
written, dated, signed in the testator’s handwriting, but NOT witnessed. AZ recognizes these wills
What is a codicil
a supplement or an addition to a will that does not revoke the entire will. must be executed with the same formalities as a will and be witnessed by the required number of ppl.
what is the weakest type of will
a nuncupative. it is oral and usually delivered by person who is near death to at least two witnesses. cannot distribute personal property and not real property. not valid in AZ
what is dedication in a voluntary alienation
governmental entity. ie. if someone gifts prop to state so that it can be used for beneficial public use.
define consideration
is something of value which is given in exchange for something from another
name all the types of involuntary alienations
- laws of descent
- eminent domain
- enforcing leins
- adverse possession
- escheat
- natural forces
explain laws of descent
person dies without a will (intestate) and has heirs, the state determines the disposition of the prop. ie. spouse first, then children, parents, etc.
explain eminent domain
gov. power to take private land for the good of the public with fair and just compensation
explain enforcing leins
the person who gives the lien takes it back. ie forclosure and bank takes back the property
explain adverse possession and what are the requirements to aquire land by adverse possession
- open use
- notorious use
- continuous use
- hostile use (w/out owners permission)
what is an alternative way to avoid losing title to property through adverse possession
giving permission, aka giving a license.
explain escheat
person dies without a will (intestate) and with no heirs prop goes to state. abandoned prop also escheats.
explain natural forces
title to real prop can be affected by forces of nature that can cause land to move or change shape. if natural sources move property out of property lines, X will lose title to the soil and Y will own it.
what is erosion
the gradual loss of soil due to the action of wind, water , or other forces.
what is avulsion
violent and sudden loss of land by floods, earthquakes, and other natural forces
what is accretion
gradual addition to dry land. ie deposits waterborne sediment on shoreline property. the deposits are called alluvion or alluvium.
what are the elements of a valid deed
must be in writing. with 2 exceptions:
- broker-to-broker agreements (commission splits)
- leases for one year or less (not less than one year)
must have a competent grantor
must have definite grantee: must be transferred to a legal person.
what are the two types of consideration that can be used in a deed
- valuable consideration : anything having monetary value
- good consideration : love and affection, usually a fift for kindred of blood or marriage.
what is a granting clause
affirms grantor is giving up ownership and clarifies which type of interest is conveyed.
- fee simple (higher ownership interest)
- life estate (estate lmtd to the duration of life)
- easement (non possessory use of prop owned by someone else
what is a habendum clause
part of the deed beginning with “to have and to hold”. identifies the extent of ownership being transferred.
what happens in a discrepancy between a habendum clause and a granting clause
granting clause prevails
what is CC&Rs
covenants, conditions, and restrictions
the rules that stick with the property with anyone who it gets transferred to
what is the only signature needed on the deed
the grantor, the party conveying. if married, need both
explain acknowledgment
means deed is notarized to assure that the signer is actually the seller/giver and the signature is given without duress.
is the grantee required to sign the deed
not always. however, when the grantee takes title with right of survivorship (WROS) then they must sign and must do so before a notary
what must happen with the grantee before the deed is valid
must be delivered to and accepted by the grantee
legal delivery does not refer to the act of manually transferring the doc. but it refers to the intention of the grantor. (ie sending to escrow)
what are the different types of deeds
they are considered conveyance deeds
- general warranty deed
- special warranty deed
- bargain and sale deeds
explain the general warranty deed
the grantor warrants the title against the defects that might have arisen before or during his period of ownership.
broadest possible protection
with this it guarantees:
covenant of:
-seizin
-quiet enjoyment
-against encumbrances
-further assistance: agree to perfect or correct title if necessary
-warranty forever : grantor warrants he shall defend grantee’s interest against all lawful claims of title.
explain special warranty deeds
i own and i will defend against
aka limited warranty deed
grantor warrants the title only against defect arising during the time that he owned the property not against defects arising before that time.
- guarantees there are not any encumbrances he created
- promises to defend title against anyone claiming under his ownership
usually used in land transactions
what is a bargain and sale deed
“i own but i won’t defend”
grantor makes no promises regarding title. nor does the grantor guarantee that he even has the right to convey title.
lower quality than other deeds and offer the least protection to grantee.
often used to convey property from foreclosure
what are some of the bargain and sale deeds and explain what they mean.
- sheriff’s deed -conveys prop after mortgage forclosure for failure to make house pays
- treasurer’s deed-conveys prop after forclosure for failure to pay prop taxes
- trustee’s deed-conveys prop placed in trustee’s hands for disposal, often result of bankruptcy or deed of trust forclosure
what is a quitclaim deed
after ownership
conveys any interest in real prop. the grantor has at the time the deed is executed.
used to clear up problems with title, known as clouds on the title
what is a disclaimer deed
prior to ownership
statement denying legal responsibility
often used in marital situations to deny a spouse’s interest in prop.
what is a fiduciary
someone in an appointed position of trust acting on another’s behalf
whose responsibility is it to have the deed recorded
grantees
recordation is not necessary to make a deed valid
when does recordation occur
when a docket and page number are assigned
and will be processed in the order they are filed
when are lien priority recorded
lien priority is normally determined by the time and date recorded . there are two exceptions:
- prop tax liens and special assessments are unrecorded. they always take first priority even over those liens previously recorded.
- in AZ the priority of mechanic’s liens is another exception.
when must a mechanic’s liens be filed
within 120 days of the completion of the job but revert back to the day the first person was on the job or the materials were delivered.
what is the affadavit of value
when a deed is submitted it must be accompanied by a notarized affidavit of value. its a sworn statement attesting to the purchase price and signatures of buyer and seller or their agents
what are the 3 types of notices that people receive when they have conflicting claims
constructive notice (written)
actual notice (seen first hand, saw, heard or read)
inquiry notice (additional questions. some indication of a claim or other that would lead a person to be alerted to a possible problem and cause further inquiry)
what is the proper recording of a document
the County Recorder’s Office gives constructive notice
what is a marketable title
aka clear title
free and clear from undisclosed encumbrances or other defects that would expose a purchaser to litigation or impeded a purchases ability to enjoy the property or to later sell the property easily.
what is the succession of property owners called
the chain of title
this lists the owners not the leins or encumbrances
what happens if there is a missing link in the chain of title
considered a gap in the chain
what is a cloud on title
any claim or encumbrance that may impair an an owner’s title on the property that is considered a cloud on title.
how do you remove a cloud on title?
an owner may need to initiate a suit to quiet title.
what are the two deeds that may be necessary to close a gap and clear a cloud on the title
a quitclaim deed or a correction deed
what is a color of title
refers to a claim of title that appears to be good but is not.
what are the 3 evidences of title that are generally recognized evidences used to establish ownership of the property
abstract with attorney’s opinion
- an abstract is a summary of the history of prop
- an attorney renders an opinion about the quality of the title aka certificate of title
Torren’s system
-landowners registers the prop w/ the state who researches the title and issues a Torrens cert. NOT used in AZ
Title Insurance
-insurance po. that protects the po. holder against loss or damage from defects in the title, such as leins or claims against title, whether recorded or unrecorded.
what is accretion
the natural addition of land by its addition to real estate already owned, through human actions or natural processes.
what is adverse possession
acquiring title to land because of a long term, open, and notorious use of the land . legal process called prescription - required time period is 10 years
define bequeath
to transfer property to someone else via a will. the gift of personal property is bequest
define codicil
an addition to a will that does not revoke the entire will
define erosion
a gradual loss of soil due to natural causes, such as the movement of wind or water
define habendumn clause
a clause in a deed that describes the type of estate granted, known as the “to have and hold” clause
define intestate
a person who dies without making a will
define quitclaim deed
a a deed that grants any interest in property that the grantor must have
what is testate and testator
testate, someone who died and left a will. testator someone who made a will or given a legacy
what is a warranty deed
a deed in which the grantor fully warrants good and clear title to the property and agrees to defend the premises against the lawful claims of third parties (aka General Warranty Deed)
what is probate
the legal process of:
determining the validity of a will
paying the debts of the deceased
and distributing the remaining assests
what is a fee simple
highest ownership interest possible
what is a life estate
estate that is limited to the duration of the life of its owner or a designated person
what is an easement
non-possesory use of property owned by someone else
what is the habendum clause
part of the deed beginning with “to have and to hold”
identifies the extent of ownership being transferred
does the grantee always need to sign the deed?
no
what makes the transfer of ownership valid
the deed must be delivered to and accepted by the grantee before it is valid
what are the 3 types of deeds
general warranty deed - grantor warrants title against defects that might have arisen . before or during his period of ownership
special warranty deed - aka limited warranty deed - grantor warrants title only against defect arising during the time he owned the property
bargain and sales deed - without warranties
what is a quitclaim deed
(after ownership) conveys an interest in real property the grantor has at the time the deed is executed
what is a Disclaimer Deed
(prior to ownership) a statement denying legal responsibility
often used for marital situations to deny a spouse’s interest in property
what is an affidavit of value
when deed submitted for recordation it must be accompanied by a notarized affidavit of value. includes a sworn statement attesting to the purchase price and signatures of buyer and seller or their agents.
when does recordation occur
when the docket and page number are assigned
what are the 3 types of notices given
constructive notice (written) actual notice (seen first hand) inquiry notice (additional questions)
what is marketable title guaranteed by
title insurance. protects the policy holder against loss or damage from the defects in the title weather recorded or not recorded
what is subrogation
a company issuing title insurance usually reserves the right to pursue third parties to regain any claim money paid. subrogation is the process
