Kaplan Pgs 585-601 - Titles

Question 1

What are exceptions to the rule that a person that constructively adversely possesses property under colour of title possesses the whole of the property?

Answer 1

– if the land is divided into two or more distinct lots, constructive possession only applies to the lot the possessor actually occupies
– if a third person is in possession of part of the premises, constructive possession does not extend to the portion that the third person possesses

Question 2

What does the term hostile mean as an element of adverse possession?

Answer 2

– Majority rule: this is judged objectively, so it looks at whether the possessor intends to be on the premises, regardless of whether he knows that the premises is owned by someone else
– minority: the possessor has to act in good faith and believe the land is his
– a few courts: require bad faith, that the possessor show he knows the land is not his but he intends to claim it anyway

Question 3

What are the two views for mistaken boundary cases with regard to adverse possession?

Answer 3

– Objective majority/Maine view: possession is hostile if the possessor intends to claim the land as his own, even if he is unsure about the location of the boundary
– Subjective minority/Connecticut view: possession is only hostile if the possessor actually knows he has crossed the boundary

Question 4

If there is a boundary dispute, what are the different ways to determine possession?

Answer 4

– Adverse possession
– oral agreement to settle a boundary dispute: this is enforceable if the parties later accept the line for a long time
- long acquiescence: this is evidence of an agreement between the parties to fix the boundary line
– estoppel: if one party makes representation through words or acts to the other concerning the location of the boundary, and the other party changes position in reliance on it, the other person can be estopped from denying the validity of this representation

Question 5

What is required in order for tacking to be successful in adverse possession?

Answer 5

Tacking is allowed if the adverse possessor and his predecessor are in privity of estate. This requires an intentional transfer of possession from one person to the next.

Question 6

What is a situation that an adverse possessor cannot tack his possession onto a previous person’s?

Answer 6

If the previous person was dispossessed by the adverse possessor

Question 7

If the ownership of property changes hands during the period of adverse possession, does it continue to run against the later owner?

Answer 7

Yes, as long as the two owners are in privity of estate

Question 8

What are the three elements that are required in order to convey real property?

Answer 8

– immediate donative intent
– delivery
– acceptance

Question 9

How is delivery of a deed usually accomplished?

Answer 9

Through the physical act of handing the deed over to someone

Question 10

Is it possible to accomplish delivery of a deed through mere words?

Answer 10

Yes it can happen by a declaration of intent and relinquishment of control or some other ways

Question 11

When does a presumption of delivery arise with regard to a deed conveyance?

Answer 11

When:
– the deed is later found in the grantee’s possession
– the deed is properly executed and recorded
– the deed contains an attestation clause that attests to delivery

Question 12

Does handing the deed to the grantor’s agent constitute a valid delivery?

Answer 12

No, delivery doesn’t happen until the grantor’s agent delivers the deed to the grantee or the grantee’s agent, which then triggers the relation back doctrine

Question 13

Is parole evidence admissible to show that a deed was intended to be a mortgage, or that the grantor did not intend the deed to have present effect?

Answer 13

Yes

Question 14

What is the rule for deeds that have been delivered but made with oral conditions?

Answer 14

– Majority rule: the conveyance is valid, but the oral condition cannot be proved
– minority rule: the conveyance is void
– a few jurisdictions: the conveyance is valid and the oral condition can be proved

Question 15

What is the hierarchy for land descriptors?

Answer 15

The following is a list of things that prevail over the underlying things:
- natural monuments over artificial monuments
- courses and angles over everything but natural monuments
– general descriptions (last) like “Blackacre”

Question 16

What is the difference between a General warranty deed and a special warranty deed?

Answer 16

– General: the seller warrants that there are no title defects that happened during his ownership and there are no defects in the chain of title
– Special: the seller warrants that no defects have occurred during his ownership, but he does not warrant that there are no defects in the chain of title

Question 17

When does the SOL begin running for present and for future covenants?

Answer 17

– Present covenants: The SOL begins to run when the deed is delivered
– future covenants: The SOL does not begin to run until a third-party asserts a superior title

Question 18

What are the things that are usually set out in a conveyance contract between the parties for real property?

Answer 18

Important points of agreement such as: time of closing, time of possession, transfer of keys, responsibility for utility payments still owing and property taxes, what items will remain on the property, what condition seller will leave the property, etc.

Question 19

After a contract has been executed and a down payment deposited into escrow, what happens with the chain of events?

Answer 19

• The entity that will handle closing, which is either an attorney or title company begins performing a title search and writing an abstract of title to ensure that marketable title will be transferred
  – title insurance is purchased
  – reviews of liens that been filed against the property happen, and an accurate “pay off sum” is gotten from each lender so the lender on each lien can be paid in full on closing. Each lender agrees to file a “release of lien“ after the lien has been paid
  – The deed is drafted. It is important that the buyer knows the language of the deed before closing to avoid errors on how the deed is titled. The buyer should clearly inform the drafter of the way he wants to take title and should read it closely before the deed is recorded. It is also important to double check the property address and the address that tax bills will be mailed to to ensure that they are correct.

Question 20

What does a durable power of attorney do?

Answer 20

Continues an agency relationship beyond the incapacity of the principle. These are most often used to deal with situations involving either property management or health care.

If a couple wants to sell their property, but they’ve already moved to another state and do not want to have to come back for closing, they can execute a power of attorney to the realtor, so the realtor can sign all the closing documents on their behalf

Question 21

What is ademption by extinction?

Answer 21

A testamentary gift fails if the property specifically bequeathed or devised is not in the testator’s estate at his death

Question 22

What is ademption by satisfaction?

Answer 22

When a testator makes an inter vivos gift of property to a beneficiary of a general or residuary disposition with the intent that the provision of the will will be thereby satisfied.

Any property a testator gave in his lifetime to a person is treated as a satisfaction IF:
– the will provides for deduction of the gift
– the testator declared in a contemporaneous writing that the gift is in satisfaction of the devise or that it’s value is to be deducted from the value of the devise, or
– the devisee acknowledged in writing that the gift is in satisfaction of the devise, or that its value is to be deducted from the value of the devise

Question 23

What is the majority rule about whether a beneficiary of a devise under a will takes the property subject to a lien/mortgage, or is exonerated from it?

Answer 23

The majority rule is that the beneficiary takes the property subject to any outstanding lien or mortgage and is not entitled to exoneration. Although the testator can provide expressly or by necessary implication that the lien in the property should be paid off

Question 24

Recording statues apply to what kind of conveyances?

Answer 24

Freehold interests, easements, profits, covenants, servitudes, mortgages, assignments, and liens

Question 25

Will recordation cure defects in a deed caused by things like lack of delivery, forgery, or fraud?

Answer 25

No

Question 26

What is the shelter rule?

Answer 26

This gives protection to a later taker who doesn’t satisfy the recording statutes. A person that is a successor in interest to someone protected by the recording statute is also protected. This applies to race, notice, and race – notice jurisdictions.

Ie: If O owns Blackacre and conveys it to A, who does not record. Then O conveys it to B, who pays value, records immediately, and takes without notice of the previous deed. B then conveys Blackacre to C, who takes by gift. Normally under a notice or a race – notice statute, C would not prevail over A because he did not take for value. However, when B took Blackacre, he would have prevailed over A under the proper recording statute, so C can seek shelter under B’s protected status, and that will mean that C can prevail over A

Question 27

What are the exceptions to the shelter rule?

Answer 27

A later person can’t shelter if he:
– tries to “wash“ his deed by conveying it to a third person and then immediately taking a reconveyance to the property, or
– if he commits fraud with respect to the deed

Question 28

Recording statutes only apply to protect subsequent purchasers that have done what?

Answer 28

Paid value

Question 29

Are mortgagees and lien creditors protected as subsequent purchasers under the recording statutes?

Answer 29

Yes, because they are considered to have paid value

Question 30

What are examples of grantees that do not qualify as subsequent purchasers for the recording statutes?

Answer 30

Anyone who takes the property by gift, devise, or adverse possession because they did not pay value

Question 31

What are the three different kinds of liens you can get?

Answer 31

– judgement lien
– tax lien
– mechanic’s lien

Question 32

What is a judgement lien?

Answer 32

A lien filed in the county where defendant resides after the defendant has lost a lawsuit. Once the lien is recorded, it covers all real property the defendant owns or may own in the future in that county. Some states say it even covers personal property

Question 33

How does it work if someone who took later in time fails to qualify under the relevant recording statute?

Answer 33

Then the common law approach is applied, and that approach is “the property is awarded to the person who took the property first in time.“

Question 34

If two parties claim property under a relevant recording statute, how do you figure out who gets the property?

Answer 34

It is awarded to the person that first satisfies the requirements of the recording statute

Question 35

What is a wild deed and does it give constructive notice?

Answer 35

It is a deed that is recorded outside of the chain of title, and it does not give constructive notice

Question 36

What is Lis Pendens notice?

Answer 36

Notice of a pending lawsuit that will affect a particular piece of property. This is not a lien, but it is notice that there may be a lien against the property as a result of a judgement in the future. When this is properly recorded, it gives constructive notice to other lienholders, but doesn’t record the lien itself

Question 37

What is the point of the marketable title act?

Answer 37

It provides a cut off point that limits the time period that a subsequent purchaser has to search the records (usually 30-40 years).

Ie: in 1960, 0 owner Blackacre, and granted an easement to A which was recorded. In 1960 0 conveyed Blackacre to B and the deed did not mention A’s easement. In 2004 B conveyed Blackacre to C. In 2005 A tried to use the easement, but C stopped him. The jurisdiction has a 30 year marketable title act. The 1967 deed becomes the “root of title“ in 1997, when it had been recorded for 30 years. Under the marketable title act all competing interests recorded prior to the root of title are extinguished, so A’s easement was extinguished in 1997

Question 38

What happens to forged deeds?

Answer 38

They are void and they do not transfer title. So someone that would otherwise be a BFP will lose out to the original grantor when the property has been taken away from him because of a forged deed