L9-L10: Title, Deeds & Ownership Restriction + Legal Descriptions Flashcards
Title
The actual ownership of a real property
It’s an abstract concept, the bundle of rights
Deed
The legal physical document the transfers real estate title from one party to another
Conveys present interest during the lifetime of the grantor
Conveyance
Tool that transfers a grantor’s interest in real property
What are the two parties in a deed and their requirements?
1) Grantor (Who conveys the property)
Minimum 18 years old and fit to enter a contract
2) grantee (receives the conveyance)
Identified by name and alive
(Title) Alienation (and 2 types)
The transfer of title (ownership) of a real property
Can be:
A) voluntary (sale or gift)
B) involuntary (without owners consent, normally by operation of law)
Types of Involuntary Transfer of Title
4
1) Eminent Domain (right the government has to seize private property for public use. Pays just compensation)
—> condemnation/appropriation = action of acquiring through eminent domain
2) Foreclosure (property sold to pay debt)
3) Escheat (transfer of ownership interest to state without consent when owner dies without heir/next of kin)
4) Adverse Possession (title is transferred to someone that claims the land and takes possession; when owner doesn’t use/inspect it)
—> possession must be open, notorious and hostile, minimum 7 years of use
3 ways in which government can have land-use control
PET
1) Police Power = regulate and restrict land used to protect the public (zoning, building codes, subdivisions, etc.)
2) Eminent Domain (through the process of condemnation)
3) Taxation on Real Estate
Types of Voluntary Transfer of Title
4
1) Private Grant (sale or gift)
2) Dedication (voluntary gift to the public)
3) Public Grant (government-owned land to an individual)
4) Devise and descent (transfer through a will)
Elements of a valid deed (8)
- competent grantor
– name of grantee
– granting clause (a.k.a. words of conveyance), what and to whom - consideration (something of value, ie. promises, goods, services & money, to be exchanged for the property)
– legal description of the real estate
– habendum clause (defines & limits ownership, ex. type of a state)
—> can show limitations, reservations, exceptions & encumbrances - signature of grantor (+ acknowledgment)
– delivery and acceptance (+ recording of deed if wished)
Covenants and main types (5)
Covenants are a type of protection for grantees that may be included in certain types of deeds
AKA, warrants, warranties and guarantees
Types:
Present
A) covenant of Seisin (grantor is the owner)
B) Covenant Against Encumbrances (liens free)
Future
C) Covenant of Quiet Enjoyment
D) Covenant of Further Assurance
E) Covenant of Warranty Forever
4 Main types of deeds
1) General Warranty Deed (provides the most protection & has all protective covenants), “I own & can vouch”.
2) Special Warranty Deed (protects against defects occurred while grantor held title), “I own & can vouch for the time I owned “
3) Bargain and Sale Deed (no warranties, only covenant of ownership), “ I own but can’t guarantee” - NB: most lenders won’t fund mortgages w this type of deed
4) Quit Claim Deed (conveys interest at the time of execution), “I’m conveying my ownership to you whatever if any it may be“ - NB: commonly used to correct a title defect ex. spelling or description
Further insurance and warranty forever
Titles
Further assurance = protection in which grantor assurance that they will sign and deliver any conveyance tool that might be needed in the future to obtain clear title
Warranty forever = protection in which grantor promises to defend the grantee’s title against any legal claim and promises to do so forever
Special Circumstances Deeds
- Personal representative deed (title to property of a deceased)
- Guardian’s deed (court-appointed rep acting on behalf of minor)
- Committee’s deed (grantor is declared mentally incompetent)
- Tax deed (in case of foreclosure to recoup unpaid real estate taxes)
Will
Instrument made by an individual to voluntarily convey title to their property after their death
Presents no interest in the property until death of testator
Intestate
Condition when person dies without leaving a valid will
Testate
Condition when person dies & has prepared a will
Hereditament
Any property (real or personal) that can be inherited
Testator
Person who dies & leaves a will
Heirs
Beneficiaries of a will
Legatee = receives personal property
Devisee = receives real property
Descent & Distribution
Order of distribution when person dies interstate (spouse, children, parents, siblings)
NB: creditors and lienors get paid first, if applicable
Equitable Title VS Marketable Title
Equitable Title = Ownership of interest created by a financial institution through lien or buyer
Marketable Title = title free of significant encumbrances or defects
Title Search
Thorough examination of public records to determine ownership and possible defects
Chain of title
Entire chronological record of a property‘s ownership
Gap in the chain of title = cloud on the title
Remove cloud = suit to quiet title
Color of title
Title transfer that is defective in unknown way to owner
Abstract of title
Abbreviated history of a property
4 Ways to provide evidence of title
1) opinion of title (official opinion of an attorney)
2) certificate of title (written certificate of attorney‘s opinion of title)
3) torrens certificate (certificate issued after deed is registered on the certificate of title) - best but nonexistent in Florida
4) title insurance (policy that protects homeowners from financial losses due to title issues) - 2nd best option (ex. Owner’s title policy & lender’s title policy)
2 ways to give notice of title
1) Constructive Notice = ownership is recorded publicly, ex. occupancy
2) Actual Notice = from first-hand knowledge, ex. reading the deed or visit in the property
Which are the private land use restrictions?
DELL
A) Deed restriction (mostly put by developers and run with land)
B) easements (interest in or right to use someone else‘s land)
C) liens (claim made by a creditor against a property)
D) leases (temporary interest)
Restrictive covenant
Restriction put on the title via private land use
Controls enacted by owners and developers, ex. façade & materials
Runs with the land (often)
Easement
2 types + 4 categories
Interest in or right to use someone else’s land or property for us a civic and limited purpose
Runs with land and will convey in transfer of deed/title
Types:
Affirmative easement = right to use
Negative easement = prevents property owner from doing something
4 categories:
1) Easement by Appurtenant
2) Easement in Gross
3) Easement by Necessity
4) Easement by Prescription
Easement Appurtenant
Type of easement 1/4
Gives the right to cross —> when 2 different parties own adjacent parcels of land and one owner can cross the other’s land
APPURTENANCES are rights that run with real property ownership & are usually transferred with property
Parties:
Dominant tenement = who benefits from appurtenance
Servient tenement = parcel that must allow crossing
Dominant
Easement in Gross
Type of easement 2/4
Applies to entity or person, NOT land.
Ends upon death or change of ownership
Easement by Necessity
Type of easement 3/4
When dominant tenement could not be used without an easement (ex. Landlocked property without access to road)
Easement by Prescription
Type of easement 4/4
When dominant tenement has used the property in a continuous and open manner (min 20 years) without owners permission.
Grants the right to use, NOT ownership
Encroachment (and Implied Easement)
Physical property that crosses the boundary into a neighboring landowner’s property
—> it’s an unauthorized physical intrusion
Can be turner into an Implied Easement if last 7+ years
4 Types of Liens (2 + 2)
1) Voluntary Lien = created on purpose & in agreement with property owner (ie. mortgage)
2) Involuntary Lien = obtained through action of law (ie.real estate tax lien)
——————————
3) General Lien = lien that applies to all properties, real estate and personal. It is owned in the county level, (ie. judgement, estate tax, income tax lien)
4) Specific Lien = applies to specific properties (ie. mortgage, construction and vendor’s liens)
Lis Pendens
Pending Legal Action
Lien (and priorities)
Claim made by creditors against real or personal property pledged by a debtor as collateral
Lienor = person holding the lien Lienee = property owner
Lien priority:
1) Superior Liens (property tax, special assessment and federal estate tax)
2) Junior Liens (mortgage, judgment, IRS, vendors)
—> all liens are prioritized in order received unless there’s a subordination agreement.
Lease
Contract in which one party conveys property to another for a specific & predetermined period of time
It’s a temporary interest in the property
Parties:
A) landlord (lessor)
B) tenant (leasee)
Gross Lease
Form of lease based on how rent is paid
Tenant is responsible for paying fixed moth charge and landlord pays the operating expenses (ie. Tax & insurance)
Most common for residential properties
Net Lease (3 types) (Form of lease based on how rent is paid)
Tenant pays base rent + operating expenses.
3 types:
A) single net (base rent + property tax)
B) double net (base rent + property tax & insurance)
C) triple net (base rent + property tax, insurance and CAM)
Most common for office and industrial spaces
Percentage Lease
Form of lease based on how rent is paid
Base rent + percentage of business profit
Rent = Fixed rent + (gross sales x % sales rate)
Most common for retail
Variable Lease
Form of lease based on how rent is paid
Base rent changes according to the lease agreement
Increase is usually in specific increments & based on an economic fact
New rent = (new index / original index) x original rent rate
Ground Lease
Form of lease based on how rent is paid
Aka, Land Lease
The lease of bare, undeveloped land (usually net lease)
Common for developments, agricultural and mining and lasts up to 99 years
Subletting and Assignment
Subletting = tenant transfer part of their right of possession in a leased property to another person. Prime tenant retains responsibility for the lease
Assignment = transfer of rights and obligations in a contract from one party to another. New tenant takes over the lease and becomes responsible for it and all payments.
Legal description of land
Description of a property that’s distinct and precise enough to distinguish it from all other properties
Surveys are used to create legal descriptions
Surveys
Process & physical product of finding and measuring boundaries of a piece of real estate + location of improvements, encroachments & easements
Survey methods:
A) Metes & Bounds
B) Lots & Blocks
C) Government Survey System
Metes & Bounds
Survey system
Main survey system used in N america
- Has a readily identifiable Point of Beginning (POB) and boundaries are defined in terms of distances (Metes) and compass direction (Bounds)
- It starts and ends at POB (clockwise direction)
- Each point from POB is a terminus/terminal point
It uses:
- Monuments (fixed landmarks used as markers or POB)
- Benchmarks (permanent markers for location & elevation set by government)
- Datum (base reference point to describe elevation)
Monuments
metes & bounds
Fixed landmarks used as markers or POB
Benchmarks
Metes & bounds
Permanent markers for location & elevation set by government
Datum
Metes & bounds
Base reference point to describe elevation
Lot & Block
Survey method
Most common survey method for cities & suburban areas
It’s a legal description that identifies a piece of platted property by referring to the section, lot & block numbers
Plat map (recorded survey of development)
|
Lot (individual piece of land measured & defined by metes and bounds)
|
Block (collection of lots)
Each parcel gets a parcel identification number used in the creation of tax maps (has info to make assessment roll)
Plat map (Lot & block survey)
Recorded survey of development
Lot
Lot & block survey
Individual piece of land measured & defined by metes and bounds
Block
Lot & block survey
Collection of lots
Linear measurements
Yard & mile
1 yard = 3ft
1 mile = 5280ft
Cubic measurement
cubic yard
1 cubic yard = 27 cubic feet
Squared measurements
sq yard, acre & sq mile
1 square yard = 9 sqft
1 acre = 43560 sqft
1 square mile = 640 acres
