Chapter 3 Encumrances and Transfer of Ownership Flashcards
encumbrance
Anything that burdens or affects the title or the use of the property is an encumbrance
financial and non-financial
lien
is an obligation to pay a financial encumbrance that may be voluntary or involuntary
specific lien
is one that is placed against a certain property, such as a mechanic’s lien, trust deed, attachment, property tax lien, and lis pendens
general lien
affects all property of the owner such as a judgment lien or federal or state income tax liens.
Does a mechanics lean have to verified and recorded
yes
procedure for mechanics lien to be valid
The four steps to be taken include: (1) the preliminary notice, (2) the notice of completion, (3) no notice of completion, and (4) foreclosure action.
Preliminary Notice:
A preliminary notice is a written notice that must be given to the owner within 20 days of first furnishing labor or materials for a job by anyone eligible to file a mechanic’s lien. This document gives owners notice that their property may have a lien placed on it if they do not pay for work completed
2.Notice of Completion
If the owner records a notice of completion within 10 days after the project is finished, the original contractors have 60 days after the notice is filed, and all others have 30 days after the notice is filed, to record a mechanic’s lien.
3.No Notice of Completion
If the owner does not record a notice of completion when work is finished, all claimants have a maximum of 90 days from the day work was finished to record a mechanic’s lien.
4.Foreclosure Action
After a mechanic’s lien is recorded, the claimant has 90 days to bring foreclosure action to enforce the lien. If he or she does not bring action, the lien will be terminated and the claimant loses the right to foreclose.
notice of non-responsibility
If an owner discovers unauthorized work on the property must file notice that must be recorded and posted on the property to be valid, stating the owner is not responsible for work being done. This notice releases the owner from the liability for work done without permission. The owner must record this notice within 10 days after discovering the unauthorized work. The notice normally is posted with a commercial lease at the beginning of a job, if a tenant is ordering the job.
Special assessments
are levied against property owners to pay for local improvements, such as underground utilities, street repair, or water projects
lis pendens
a recorded notice that indicates pending litigation affecting the title on a property. It clouds the title and gives notice to prospective lenders or buyers that title to the property is disputed.
attachment lien or writ of attachment
An attachment lien is an involuntary, specific lien that is valid for three years. It does not terminate upon death and it may be extended in certain cases.
abstract of judgment
When the abstract of judgment is recorded, it is a general lien on all non-exempt property owned or acquired by the judgment debtor for 10 years, in the county in which the abstract is filed. The court may force the sale of the property to satisfy the judgment by issuing a writ of execution. The sale is called an execution sale.
ingress
the right to enter a property using an easement
egress
the right to exit a property using an easement
Appurtenant Easement
appurtenance is anything used for the benefit of the land
servient tenement
The owner whose land is being used is the one giving the easement and the land
dominant tenement
The person’s land receiving the benefit of the easemen
easements in gross
and only have a servient tenement.. gas company, electric meters
Express Grant
The servient tenement, or the giver of the easement, grants the easement by deed or express agreement.
Express Reservation
The seller of a parcel who owns adjoining land reserves an easement or right-of-way over the former property. It is created at the time of the sale with a deed or express agreement.
Implied Grant or Reservation
The existence of an easement is obvious and necessary at the time a property is conveyed, even though no mention is made of it in the deed.
easement by prescription
process of acquiring an interest, not ownership, in a certain property may be created by continuous and uninterrupted use, by a single party, for a period of five years
Terminating Easements
- Abandonment: Abandonment is the obvious and intentional surrender of the easement. Non-use: If a prescriptive easement is not used for a period of five years, the easement is terminated.
- Destruction of the servient tenement: If the government takes the servient tenement for its use, as in eminent domain, the easement is terminated.
- Adverse possession: The owner of the servient tenement may, by his or her own use, prevent the dominant tenement from using the easement for a period of five years, thus terminating the easement.
- Merger: If the same person owns both the dominant and servient tenements, the easement is terminated.
- Express release: The owner of the dominant tenement is the only one who can release an easement. A usual way would be to sign a quitclaim deed.
- Legal proceedings: In order to terminate an easement, the owner of the servient tenement would bring an action to quiet title against the owner of the dominant tenement. A lawsuit to establish or settle title to real property is called a quiet title action or an action to quiet title.
Estoppel
Unless created by express grant, an easement may be terminated by non-use and the property owner has reason to believe that no further use is intended.
The Requirements for Terminating an Easement ADAM E. LEE
- Abandonment
- Destruction of the servient tenement
- Adverse possession
- Merger
- Express release
- Legal proceedings
- Estoppel
- Excessive
CC&Rs
covenants, conditions, and restrictions
covenant
is a promise to do or not do certain things
injunction
is a court order forcing a person to do or not do an act, such as violating a private restriction
condition
usually a limitation on the use of the property), except the penalty for breaking a condition is return of the property to the grantor
condition subsequent
is a restriction, placed in a deed at the time of conveyance, upon future use of the property
condition precedent
requires that a certain event, or condition, occur before title can pass to the new owner
grandfather clause
allows an owner to continue to use structures, which are now non-conforming with the new zoning laws
encroachment
This unauthorized intrusion on the adjoining land can limit its use and reduce it in size and value. An owner has three years in which to sue the neighbor to have the unauthorized encroachment removed.
Homestead
property is the home (primary residence) occupied by a family that is exempt from the claims of, or eviction by, unsecured creditors
homestead exemption
is in effect a lien that protects a certain amount of equity in a person’s home by limiting the amount of liability for certain debts against which a home can be used to satisfy a
Real property may be acquired and conveyed
will, succession, accession, adverse possession, and transfer.
testator
makes will
testate
person dies and left a will
intestate
a person dies but doesnt leave a will
3 types of california recognized wills
witnessed will
statutory form will
holographic will
witnessed will
signed by attorney and testator
statutory will
“fill in the blank will”
holographic will
hand written will signed and dated by testator
probate
legal process to prove a will is valid
executor
someone named in a will
probate bid
The first offer must be for at least 90% of the appraised value, and a subsequent offer at least 10% of the first $10,000 original bid, plus 5% of the remainder.
succession
is the legal transfer of a person’s interests in real and personal property under the laws of descent and distribution
intestate succession
intestate succession
Accession
is a process by which there is an addition or reduction to property by the efforts of natural forces. The land itself can be enlarged or reduced by natural forces—gradually through accretion and reliction or quickly through avulsion.
accretion
he gradual and imperceptible addition of land to a parcel by the natural deposition and accumulation of alluvium (or alluvion) upon the bank of a stream or river
Avulsion
is the process by which the action of water causes a sudden, perceptible loss of or addition to land.
adverse possession
is the ability to obtain title by occupying land for a statutory time period without the permission of the owner
requirements for adverse possession
•Open possession (some assertion of control, such as fencing or use)
•Notorious possession (i.e., such as a reasonable owner of the property would otherwise recognize)
•Continuous for a five-year time period
•Pay property taxes on the disputed property for the entire five years of the disputed claim
•Hostile (not with the original owner’s permission)
•Adverse to a claim of right (adverse possessor must claim the title)
In addition, the adverse possessor will have to file a lawsuit to quiet title against the person who, until that point, had valid title to the property.
another word for transfer
alienated
instrument
is a formal legal document such as a contract, deed or will. The kinds of deeds commonly used for private grants include grant deed, quitclaim deed, gift deed, and warranty deed.
What must a granting deed have?
granting clause
implied warranties
granting clause
grantor has not already conveyed title to any other person
implied warranties
estate is free of encumbrances other than those disclosed by the grantor
what are the Requirements for a Valid Grant Deed
- According to the statute of frauds, a deed must be in writing.
- The parties to the transfer (grantor and grantee) must be sufficiently identified and described.
- The grantor must be competent to convey the property (not a minor or incompetent).
- The grantee must be capable of holding title (must be a real living person, not fictitious).
- The property must be adequately described but it does not require a legal description.
- Words of granting such as grant or convey must be included.
- The deed must be executed (signed) by the grantor. The deed may be signed by a witnessed mark “X”.
- The deed must be delivered to and accepted by the grantee.
fictitious business name
is a business name other than the name of the person who has registered the business
acknowledgment
is a signed statement, made before a notary public, by a named person confirming that the signature on a document is genuine and that it was made of free will. A deed does not have to be acknowledged to be valid, but must be acknowledged to be recorded.
constructive notice
After a deed has been acknowledged by the grantor, it may be filed with the county recorder
chain of title
This is a sequential record of changes in ownership showing the connection from one owner to the next. A complete chain of title is desirable whenever property is transferred and required by title insurance companies if they are writing a policy on a property
Items a Valid Deed Does Not Require
- Acknowledgment & Recording
- Competent grantee; may be a minor, felon or incompetent
- Date
- Mention of the consideration
- Signature of grantee
- Habendum clause (to have and to hold)
- Seal or witnesses
- Legal description, an adequate description is sufficient
quitclaim deed
contains no warranties and transfers any interest the grantor may have at the time the deed is signed. It is often used to clear a cloud on the title
cloud on title
is any condition that affects the clear title of real property or minor defect in the chain of title which needs to be
public dedication
When real property is intended for public use, it may be acquired There are three means of public dedication: (1) common law dedication, (2) statutory dedication, and (3) deed.
statutory dedication
dedication made by a private individual to the public
operation of law
It is usually an involuntary transfer involving foreclosure or is the result of a judgment or some other lien against the title. There are a variety of situations in which courts establish legal title regardless of the desires of the record owners.
Quiet title action
is a court proceeding to establish an individual’s right to ownership of real property against one or more adverse claimants
execution sale
is a forced sale of property under a writ of execution with the proceeds used to satisfy a money judgment
sheriff’s deed
is given to a buyer when property is sold through court action in order to satisfy a judgment for money or foreclosure of a mortgage.
Partition action
court proceeding to settle a dispute between co-owners (joint tenants or tenants in common) about dividing their interests in real property
Escheat
legal process in which property reverts to the state because the deceased owner left no will and has no legal heirs
