Chapter 5 Transfer of Title to Real Property Flashcards
Voluntary Alienation
aka Transfer gift sale consent of property owner Deed must be used
Valid Deed of Conveyance in NC
*in writing (NC statute of frauds : oral deed cannot be enforced) grantor has legal capacity to execute grantor & grantee identified Adequate words of conveyance Legal Description is accurate signed by Grant-ors Delivered to and accepted by Grant-ee
Grantor
legal existence
lawful age
legally competent even while intoxicated–>
deed is voidable but not void
Granting Clause words of Conveyance
convey & warrant grant bargain sell remise release & quitclaim
Signature of Grantor
- Deed must be signed by all the grantors or authorized agents
- if married both must sign even if one is named
Delivery and Acceptance of Deed
- from Grantor to Grantee or third party
- in NC recordation of deed by buyers or their agent is recognized as acceptance.
- Effective date is date of delivery
NOT required for Deeds
- DO NOT have to be witnessed
- DO NOT have to be dated
- DO NOT have to include statement
- DO NOT have to be acknowledged/notary
Note: notarization required before recordation. - DO NOT have to be recorded to be valid
Note: Conner Act says grantee must record the valid deed for 3rd party protection.
*DO NOT have to be sealed
Signing “under seal”
not required but
* extends statute of limitations protecting parties rights from 3-10 years
General Warranty Deed
- Greater protection than any other deed
- BEST deed for Grant-ee
- Grant-or has greatest liability
ALL below extend back to origin
1) Covenant of Seisin
2) Covenant against Encumbrances
3) Covenant of quiet Enjoyment
4) Covenant of Warranty Forever
Covenant of Seisin & right to convey: General Warranty
- Grantor is the legal owner of property & has
right to convey title to it. - Delivery of Seisin IS the actual transfer of
title
Covenant against Encumbrances: General Warranty
Grantor warrants that property is free of liens or encumbrances except those of record
* free of Mortgages * free of Mechanic's lien * free of Real Estate Tax lien * free of Protective Covenants * free of Easements
Covenant of Quiet Enjoyment: General Warranty
Grantor gaurantees that title will be good against third parties who might bring court actions to establish superior title to property.
* Ownership
Covenant of Warranty Forever: General Warranty
Grantor guarantees that if title fails in future that Grantor will compensate grantee for the loss sustained.
*buyer should get title insurance
Special Warranty Deed/Limited Warranty Deed
- Only 2 covenants
- Grantor warrants that they received title to the land and it was not encumbered during time they held title.
Contain words- Remise
- Release
- Alienate
- Convey
Bargain & Sale Deed
- no express warranties against encumbrances
- IMPLIES grant-or holds possession & title
Contain words
*grants and releases- bargains
- and sells
used in forclosure & tax sales
- buyer should get title insurance
Quitclaim Deed/ Non Warranty Deed
Grant-ee with LEAST protection
- No covenant or warranties
- Grant-or only remises, releases, and quitclaims an interest in the property
- *transfer ownership with no gaurantees
- Cure a defect aka CLOUD ON TITLE
Special Purpose Deeds
Correction Deed Deed of Gift Deed of Release Deed in lieu of Foreclosure Trustee's Deed Timber or Mineral Deed Deeds Executed pursuant to Court Order
Correction Deed: Special Purpose
Used when Error in previous deed
such as errors in description of property, names or dates.
Deed of Gift: Special Purpose
Grantor gives property as gift
- Must be recorded within 2 years or void
- No need to pay excise tax
Deed of Release: Special Purpose
When real estate loan has been paid in full
Deed in Lieu of Foreclosure: Special Purpose
To avoid foreclosure, debtor gives lender a deed in lieu (INSTEAD OF) forclosure
* tax issues arise
Trustee’s Deed : Special Purpose
when trustee is named in a
will, trust agreement, or trust deed conveys the real estate to anyone other than trustor.
* Used to transfer title after a foreclosure
Timber or Mineral Deed: Special Purpose
harvesting land or timber
Deed executed pursuant to court order: Special Purpose
Sheriff's Deed Tax Deed Guardians Deed Executors Deed Convey property that is transferred by court order or by will.
Excise Tax
based on sales price of property
- Register of Deeds must mark document showing PD prior to recording
- $1 for ever $500
- Whole dollar amount
- Type of financing used has No effect
- ROUND sales price up to nearest $500
Exempt from Excise Tax
- Transfer by gov’t entity
- Transfer by Will or intestate succession due to death
- transfer by Deed of Gift , no consideration
- transfer by Merger or consolidation
- transfer by lease for a term of years
- transfer by instruments securing debt
- mortgage
- deed of trust
Involuntary Alienation
Forced Transfer
- Escheat
- Eminent Domain
may be by government condemnation of land for public use to the sale of property to satisfy tax debt
Escheat: Involuntary Alienation
intestate = without a will
* no heirs and title passes to the state
Eminent Domain: Involuntary Alienation
Gov’t has right to acquire privately owned real estate for public use.
- Federal, State and Local Governments
- school boards
- some gov’t agencies
- public & quasi- public corporations & utilities
- NC says eminent domain may only be sued to take a blighted parcel.
Condemnation
Process by which Gov’t exercises eminent domain
- NC quicktake - when authorized by law, title and possession of private property can immediately be transferred to public authority.
- Taking of leased property terminates any lease
Lien Foreclosure
land transferred without an owners consent to satisfy debts contracted by the owner that have become liens against real property.
Adverse Possession
OCEAN
Open Continous Exclusive Adverse Notorious
