Deeds, Recording Acts, Wills & Trusts, Restraints on Alienation Flashcards
Define a deed
Legal instrument that transfers ownership of real property
For a deed to be valid, it must be __________ and __________
Delivered and accepted.
Delivery = issue of intent
The controlling question for delivery of deed is…?
Whether the grantor had present intent to transfer the property.
True or false: physical transfer of a deed is required to make the deed valid
False. Physical transfer is not required.
What is an example of a revokable deed (invalid)
O asks his attorney to transfer a deed for Blackacre to A “in two months’ time, unless I change my mind before then”
This is invalid because O can change his mind before the date of delivery. But note that grantor can make proper delivery to an agent.
True or false: Acceptance is generally presumed if there is a transfer of value
True. There would need to be direct evidence of rejection.
Brokers can be involved in the contract of sale of land so long as they do not …?
Practice law.
Real estate agents generally cannot draft a legal document like a deed or mortgage.
BUT real estate agents and brokers who don’t practice law CAN
prepare contract of sale.
What are the necessary contents of a Deed?
- Identify the parties
- Signed by the grantor (SOF)
- Words of transfer (present intent)
- Sufficient description of the property (not necessarily legal)
Note: Extrinsic evidence may be admitted to clarify ambiguous descriptions of the property
True or false: a grantee is required to sign a deed
False. The grantor bears the brunt of the transaction and we want his signature first and foremost.
True or false: signature of the deed must be witnessed and notarized.
False. neither.
What happens if the signature on a deed is forged?
The deed is void, even if the purchaser is a bona fide purchaser (BFP).
What does the equal dignities rule say re: agents and deeds?
If the agent is required to sign (execute) a deed, the agency relationship must be created in writing
Define recording of deed
Publicly register your deed
True or false: the primary purpose of recording is make a deed valid
False. A deed is valid at delivery.
We care about recording because it tells the world you own the property and helps avoid conflicts b/t subsequent purchasers.
True or false: The common law recording rule of “first in time, first in right” is the only rule that is used for recording rule
False. Every state has a recording statute that modifies the CL rule to give priority to certain deeds when there is a competing claim to title.
BUT in the absence of a recording statute, CL rule “first in time/right” controls
What types of interests are covered under recording?
- Deeds (most important)
- Mortgages
- Leases
- Options
- Judgments affecting title
- Other instruments creating an interest in land (easement/covenant)
True or false: Titles perfected through adverse possession are not covered by recording acts
True. Recording statutes do not cover interests created by operation of law.
Who is protected by recording acts?
Subsequent purchasers – someone who has acquired interest in the land
Why are grantees who acquire title by gift, intestacy, or devise not protected by recording acts?
We want to protect those who make economic investments by acquiring property (on their own).
What are the three kinds of notice required for recording acts?
- Actual = real, personal knowledge of prior interest
- Constructive = record notice
- Inquiry = reasonable investigation would have disclosed existence of prior claims
Name common situations that trigger inquiry notice
- Dude on the land
- Mentioned interest
First recorded or first to record is what kind of recording statute?
Race: the first one to record wins
In good faith or without notice is what kind of recording statute?
Notice statute: A subsequent purchaser wins if she acquires title without notice of a prior unrecorded conveyance
Acquired without notice of prior unrecorded conveyance and records first is what kind of recording statute?
Race-Notice
The shelter rule says, a person who takes a bona fide purchaser protected by the recording act has the same rights as—-?
Her grantor
Define estoppel by deed
when a grantor conveys the land that the grantor does not own
Under estoppel by deed, what happens when a grantor subsequently acquires title to the land?
grantor is estopped from trying to repossess on grounds that he didn’t have title when he made the conveyance
What are the three types of deeds ranked from best to worst, based on protection from breach?
- General: protects against all defects
- Special: defects caused by grantor
- Quitclaim: no warranties as to health of title
The three implied covenants for a general warranty deed for the present (at conveyance) are
- Seisin: deed describes the land in question
- Right to convey
- ?
- Encumbrances: no undisclosed encumbrances on the property that could limit its value
The three implied covenants for a general warranty deed for the future (after conveyance) are.
- Warranty: defend against future claims of title by 3rd party
- Further assurances: Grantor promises to fix future title problems
- Quiet enjoyment: grantor promises that the grantee’s possession will not be interrupted by a 3rd party claim
True or false: the special warranty deed includes the same six covenants as a general warranty deed
True, BUT they only apply to the acts (or omissions) of the grantor
Define alienation
Restriction on transfer of property
Where does one see restraints on alienation
+ inter vivos grant of an estate smaller than fee simple
+ devise of an estate smaller than fee simple
+ Co-tenant agreement
+ Easements
True or false: Absolute restraints on alienation are valid
False. Void.
If a restraint is valid…what happens to any attempt to transfer property rights?
Null and void.
If a restraint is invalid… what happens to the attempt to transfer property rights?
Rejected and property can be alienated in violation of the restraint.
