Deeds, Recording Acts, Wills & Trusts, Restraints on Alienation

Question 1

Define a deed

Answer 1

Legal instrument that transfers ownership of real property

Question 2

For a deed to be valid, it must be __________ and __________

Answer 2

Delivered and accepted.

Delivery = issue of intent

Question 3

The controlling question for delivery of deed is…?

Answer 3

Whether the grantor had present intent to transfer the property.

Question 4

True or false: physical transfer of a deed is required to make the deed valid

Answer 4

False. Physical transfer is not required.

Question 5

What is an example of a revokable deed (invalid)

Answer 5

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.

Question 6

True or false: Acceptance is generally presumed if there is a transfer of value

Answer 6

True. There would need to be direct evidence of rejection.

Question 7

Brokers can be involved in the contract of sale of land so long as they do not …?

Answer 7

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.

Question 8

What are the necessary contents of a Deed?

Answer 8

1. Identify the parties
2. Signed by the grantor (SOF)
3. Words of transfer (present intent)
4. Sufficient description of the property (not necessarily legal)
   Note: Extrinsic evidence may be admitted to clarify ambiguous descriptions of the property

Question 9

True or false: a grantee is required to sign a deed

Answer 9

False. The grantor bears the brunt of the transaction and we want his signature first and foremost.

Question 10

True or false: signature of the deed must be witnessed and notarized.

Answer 10

False. neither.

Question 11

What happens if the signature on a deed is forged?

Answer 11

The deed is void, even if the purchaser is a bona fide purchaser (BFP).

Question 12

What does the equal dignities rule say re: agents and deeds?

Answer 12

If the agent is required to sign (execute) a deed, the agency relationship must be created in writing

Question 13

Define recording of deed

Answer 13

Publicly register your deed

Question 14

True or false: the primary purpose of recording is make a deed valid

Answer 14

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.

Question 15

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

Answer 15

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

Question 16

What types of interests are covered under recording?

Answer 16

1. Deeds (most important)
2. Mortgages
3. Leases
4. Options
5. Judgments affecting title
6. Other instruments creating an interest in land (easement/covenant)

Question 17

True or false: Titles perfected through adverse possession are not covered by recording acts

Answer 17

True. Recording statutes do not cover interests created by operation of law.

Question 18

Who is protected by recording acts?

Answer 18

Subsequent purchasers – someone who has acquired interest in the land

Question 19

Why are grantees who acquire title by gift, intestacy, or devise not protected by recording acts?

Answer 19

We want to protect those who make economic investments by acquiring property (on their own).

Question 20

What are the three kinds of notice required for recording acts?

Answer 20

1. Actual = real, personal knowledge of prior interest
2. Constructive = record notice
3. Inquiry = reasonable investigation would have disclosed existence of prior claims

Question 21

Name common situations that trigger inquiry notice

Answer 21

1. Dude on the land
2. Mentioned interest

Question 22

First recorded or first to record is what kind of recording statute?

Answer 22

Race: the first one to record wins

Question 23

In good faith or without notice is what kind of recording statute?

Answer 23

Notice statute: A subsequent purchaser wins if she acquires title without notice of a prior unrecorded conveyance

Question 24

Acquired without notice of prior unrecorded conveyance and records first is what kind of recording statute?

Answer 24

Race-Notice

Question 25

The shelter rule says, a person who takes a bona fide purchaser protected by the recording act has the same rights as—-?

Answer 25

Her grantor

Question 26

Define estoppel by deed

Answer 26

when a grantor conveys the land that the grantor does not own

Question 27

Under estoppel by deed, what happens when a grantor subsequently acquires title to the land?

Answer 27

grantor is estopped from trying to repossess on grounds that he didn’t have title when he made the conveyance

Question 28

What are the three types of deeds ranked from best to worst, based on protection from breach?

Answer 28

1. General: protects against all defects
2. Special: defects caused by grantor
3. Quitclaim: no warranties as to health of title

Question 29

The three implied covenants for a general warranty deed for the present (at conveyance) are

1. Seisin: deed describes the land in question
2. Right to convey
3. ?

Answer 29

3. Encumbrances: no undisclosed encumbrances on the property that could limit its value

Question 30

The three implied covenants for a general warranty deed for the future (after conveyance) are.

2. Warranty: defend against future claims of title by 3rd party
3. Further assurances: Grantor promises to fix future title problems

Answer 30

1. Quiet enjoyment: grantor promises that the grantee’s possession will not be interrupted by a 3rd party claim

Question 31

True or false: the special warranty deed includes the same six covenants as a general warranty deed

Answer 31

True, BUT they only apply to the acts (or omissions) of the grantor

Question 32

Define alienation

Answer 32

Restriction on transfer of property

Question 33

Where does one see restraints on alienation

Answer 33

+ inter vivos grant of an estate smaller than fee simple
+ devise of an estate smaller than fee simple
+ Co-tenant agreement
+ Easements

Question 34

True or false: Absolute restraints on alienation are valid

Answer 34

False. Void.

Question 35

If a restraint is valid…what happens to any attempt to transfer property rights?

Answer 35

Null and void.

Question 36

If a restraint is invalid… what happens to the attempt to transfer property rights?

Answer 36

Rejected and property can be alienated in violation of the restraint.