land transfers -- the deed Flashcards
what is a deed?
a writing that transfers title to real property from a grantor (the seller) to a grantee (the buyer)
what does a deed need to constitute a valid transfer of a person’s property interest in land
must satisfy the SOF
must manifest the intent of the grantor to transfer title
identify the grantor and the grantee
describe the land with sufficient specificity
signed by the grantor
AND TO BE EFFECTIVE THE DEED MUST BE DELIVERED
does a deed need to be recorded to be valid
no!
is it ok for the grantor to leave the grantee’s name blank in a deed?
yes! it will still be effective; if the grantor delivers the deed to the grantee, the grantee has IMPLIED AUTHORITY to fill in in grantee’s name in the blank
if the grantor delivers the deed to the grantee and the name of the grantee is blank, when does the deed become effective?
on the date that the grantee’s name is filled in.
what is the premise part of the deed
sets for the identity of the parties, the consideration that was paid for the property, and a legal description of the property
what is the legal decritpion of the property needed in the deed
ie what can be found in the count recorder’s office via the plat book
what is needed in terms of description of considertaion for a deed to be recorded in SC
the deed must include the actual consideration; otherwise ‘an affidavit of true consideration must be attached to the deed.
what is the granting clause
states the the intent of the grantor to transfer title ; just need verbiage to show the intent to transfer
‘grantor conveys the property’
what are the parts of the deed
- premises
- granting clause
- habendum clause
4.. warranty clause - restrictions
- derivation clause
- tax map number
- signature and date
- subscribing witnesses
- acknowledgment or probate
- notarization
what is the habendum clause
describes the interest and estate that the grantor is transfering through the deed
‘to have and to hold as a life estate’
what is the warranty clause
sets forth the the sort of warranty that the grantor is providing as to the title that he or she transfers
ie in terms of promise of marketability of title in the contract
what is the restriction part of the deed
any restrictions or encumbrances that the property is subject to (such as covenants or easements)
any restrictions in the property HAVE TO BE LISTED HERE
what is the derivation clause (necssary for recording in SC)
usually follows the legal description, and it provides the recording information for the previous deed – the deed that established the grantor’s ownership
what is the subscribing witness part of the deed
the deed must include the signature of two witnesses (not including the grantor)
what is the acknowglment or probate part of the deed
- the deed must include either
An acknowledgment under oath by the grantor to the notary that the grantor did execute the deed OR
A probate, which provides for one of the two witnessess to confirm to either the other witness or to the notary that he witnessed the grantor execute the deed
which parts of the deed are REQUIRED IN SC in order for the deed to be recorded
- derivation clause
- tax map number
- signature and date
- subscribing witnesses
- acknowledgment or probate
- notarization
can title ever transfer without a deed?
yes via ap, eminent domain, will/intestate sucessession, part performacne or ee
with part performance/ee, there must be an oral intention to INSTANTLY transfer the property
what is a reservation in the deed
A deed may designate that in granting the property to the grantee, the grantor is reserving an interest for herself
what is an exception in a deed
A deed may designate that in granting the property to the grantee, the grantor is excepting an interest for some third party
The grantor must create a separate deed for that interest and deliver it to the third party
Glasgow v glasgow (exceptions and reservations): man conveys life estate to wife but son won’t allow her on
Issue: when the granting clause and the habendum of a deed contradict each other as to what is being conveyed, which one controls?
When the estates given in the granting clause and the habendum of a deed are so repugnant to each other as to not be susceptible of any reasonable reconciliation, the GRANTING CLAUSE WILL CONTROL and the habendum will be rejected as void
Mother should have lost because you cant create a land interest via an exception, but the court decided to be extra lenient with her
what absolutly needs to happen for a deed to be effective
delivery
what does it mean to deliver the deed
the grantor intending the written deed to be effective (and irrevocable) immediately (physical delivery is not necessary, you just need that correct intent)
Ie via the grantor putting the grantee in physical possession of the deed
is conditional delivery possible ?
ie A gives B a deed and says ‘the land is yours once you quit smoking for 30 days’
yes, delivety has occured and the smoking comdtiom is igonred
A gives a deed to B and says ‘the land is yours once I die’ – was there a delivery of deed?
No! Because the condition is death of grantor, the intent is TESTAMENTARY
what happens if the condition is the grantor’s own death in the future (ie testamentary intent?)
courts will do not recognize any transfer of property through a delivery of a deed where the grantor manifests a testamnetary intent
what happens if the condtion that the grantor specifies (without writing it into the deed) is not based on the grantors death
courts will recognize a valid deed delivery and just ignore the condition
in what situation would a condition on a deed (thats not written into the deed) not be ignored
it may be valid if the grantor delivers the deed to an escrow agent under certain conditions:
the escrow agent must be a third party who is not the agent of either party, the grantor must instruct the agent that once the condtion is fuflilled, the escrow shall deliver the deed to the grantee.
when the condition is valid because of delivery of the deed to escrow, what is the delivery date?
it relates back to date that the grantor delivered the deed to the agent if two elements are met
- the grantor must not be able to retreive the deed from the escrow agent
- there must be a k of sale between the grantor and grantee for the property that is the subject of the deed
can a grantor make the posessory interest of the grantee dependent on a future condition
yes! ie via a springing executory interest! the grantor would presently transfer title without transferring physical possession of the land
Pai v Thom (delivery of deed): govt tries to buy land from Ps but doesn’t pay in time
Thoms property was one of 14 parcels of land and improvements that the state wanted to acquire, either by negotiation or condemnation for the expansion of a community college
the state made an offer which included the condition that if the sale wasn’t closed in 60 days the agreement to purchase would be terminated
In 1971, Thoms signed and executed the deed
Their agent notarized the transaction, recorded the execution of the deed by the Thoms and delivered the deed to the state
It was not until 1972 that the state first tendered its check of payment for the land to the Thoms
However, before that, the Thoms agent told the states agent that the Thoms would not accept a check because it was inadequate and untimely in that it was in violation of term and condition 8,
Issue: Did the state receive title to the subject property upon delivery of an executed deed by the Thoms to the state, notwithstanding that though the contract provided payment of the full purchase price ‘payable on transfer of fee simple title to the state’ , the state tendered the required purchase monies 10 months late?
the delivery to the grantee of a deed absolute on its face will pass complete title to him regardless of any condition or contingency on which its operative effect is made to depend
There is no evidence here that negate Thoms intention to presently deliver an absolute deed
The fact that the deed was lost or misplaced does not divest the state of the title nor revert it in the grantor
The condition is only valid under CONTRACT LAW
If it was in the granting clause, it would be under property law
rosengrant(delivery of deed): aunt and uncle unsuccessfully try to convey land to nephew
Both Harold and Mildred signed the deed and told jay to leave the deed at the bank with the banker and when something happened to them, he was to take it to Shawnee and record it and it would be theirs
Harold personally handed the deed to jay to ‘make this legal’
Jay accepted the deed and then handed it back to the banker who told him he would put it an envelope and keep it in the vault until he called for it
ISSUE
Was the deed null and void for failure of legal delivery?
Yes
The donative intent on the part of the grantors is clear, BUT where a grantor deliverers a deed under which he reserves a right of retrieval and attaches to that delivery the condition that the deed is to become operative ONLY after the death of granters and further continues to use the property as if no transfer had occurred , grantors actions are nothing more than an attempt to employ the deed as if it were a will
The ritualistic delivery of the deed to the grantee and his redelivery of it to the third party for safe keeping created under these circumstances is only symbolic
The physical act was not enough to overcome fact that harold lacked intent to transfer land AT THE MOMENT HE PHYSICALLY GAVE JAY THE DEED
Harold still had control via ability to revoke – the envelope had harold and jays name on it
The condition was testamentary which makes delivery invalid
if there is a problem with the title when can you sue on the competence of marketable title? — might be wrong check
you can sue in the CONTRACT up to the point that the deed passes – and this is ONLY if the deed contains a warranty clause
what does it mean if a deed doenst have a warranty clause?
then it comes with no warranties of title
what are the three types of deeds and what makes them different from each other?
quitclaim deed, general warranty deed, and special warranty deed
they are different in that they depend on if they make a promise in regard to the quality of title that they are transferring
what is a quitclaim deed
The grantor makes no promises as to the quality of title that she transfers through the deed
The deed simply doesn’t warrant that the title being transferred is superior to any other claim of title to the subject property
what is a general warranty deed
The grantor makes six covenants with respect to the title that he is transferring
Of the six, three are present, and three are future
when can the three present covenants in a general warranty deed be breached?
they can be breached only at the time of conveyence
when can the three future covenants be breached?
may be breached only AFTER conveyance
what are the three present covenants in a general warranty deed
- covenant of seisin – grantor warrants that he holds good title (aka owns) to the property that he is conveying
- Covenant of right to convey -grantor warrants that he has the legal right to convey the property
- covenant against encumbrances – grantor warrants that the property is not subject to encumbrances (other than those references or disclosed in the deed)
what are the three future covenants in a general warranty deed
- covenant of general warranty- grantor warrants that he will defend the grantee against successful claims against the title
- covenant of quiet enjoyment – grantor warrants that the grantee will not be disturbed in possession and enjoyment though someone asserting superior
- covenant of further assurance – grantor warrants that he will execute documents required to perfect title
what kind of protection does each deed give you
quit claim – none
general warranty – full
special warranty – some
what do the covenant of sesin and right to covney mean
they are pretty much the same, and the say that the grantor onws the property and has a right to convey it
what does the third covenant (covenant agaInst encumbrances) do
precludes any restriction on the title that is not referenced in the deed
The encumbrances can be there, they just have to be DISCLOSED
Ex: a mortgage, a lease, an easement, or a restrictive covenant
what do the cov of gen warranty and cov of quiet enjoyment ultimalty say
They warrant that no one will successfully prevail on a claim of superior title
gen warranty = No one in future will bring this against you that is SUCCESSFUL and if they do, i will reimburse you
quiet enjoyment= doesn’t mean quiet neighbors lol
what does the cov of further assurances say/when does it come up
arises where documents are needed to be signed by the grantor in the future to perfect title
If the grantee has lost the deed instrument and needs it to record, this covenant ensures that the grantor will re-execute a duplicate deed
when are the covenats made in a general warranty deed enforceable?
within the statues of limitations period; so with the present covnenat the clock starts at the time the deed is delivered, and the future covenant clock starts at a future date
what is the accronym for the general warranty deed covenants?
SR. WEAQ – (not in order lol)
S – SESIN
R - RIGHT TO CONVEY
W – WARRANTY
E – NO ENCUMRANCES
A – ASSURANCES
Q – QUIET ENJOYMENT
does a quit claim deed transfer different title in property than a general warranty deed?
no! Both transfer the same title, just a matter if you have a REMEDY or not for issues in the future
what is a special warranty deed
it contains the covenants of the general warranty deed, but those covenants are only with respect to the time period that the grantor has held title to the property – IT DOES NOT PROTECT AGAINST DEFECTS FROM BEFORE THE GRANTORS OWNERSHIP
Brown v lober: the mistaken coal rights case
issue: As to covenant of Sesins: did the Ps file their claim at the proper time?
As to quiet enjoyment: whether the plaintiffs have alleged facts sufficient to constitute a constructive eviction
the mere existence, without more, of a superior title does not constitute a breach of quiet enjoyment
Sesin: no, they waited too long, as the breach occurred at delivery of the deed
Quiet enjoyment: no, the paramount owner didn’t do anything to prevent them from using the land, and the fact that they had to alter their k with the coal company does not mean anything here
what is the merger doctrine
says that Once the grantor delivers the deed to the grantee, any claim that the grantee asserts for a deficiency in the title must be based on a DEED COVENANT
what does the sales contract control
the relationship between the buyer and seller during the executory period and the sale contracts provisions are no longer enforceable after closing
what is the recording act system
THE RECORDING ACT SERVES AS THE EXCEPTION TO THE FIRST IN TIME RULE
it happens when here are two competing claims to title(don’t need to be the same claim, just need to be against the same property) of property the recording act comes into play
Under this system, each state has a system that gives priority to competing property claims in land, based in part on whether a claimant has recorded his land interest in the county recorder’s office for real property deeds
what is a BFP
someone who has paid valuable CONSIDERATION for property without knowledge that the seller had previously transferred the property to someone else
what does a BFP need to be able to do to prevail under a reocording act statute
BFP must be able to trace their title back to the root of title
what is the root of title
represents the recorded transaction that exists before some specific time, through which all subsequent claimants claim good title
what is the chain of title
The order of grantors, beginning with the root of title and ending with the present grantor
what does it mean that someone is arguing for the recording act excpetion
that they would loose under common law first in time
what is the purpose of the recording act if first in time is the default common law rule?
The RA is meant to give subsequent purchasers some means of protection
First buyer is protected via first in time by recording
what will the first person who got the property alwasy aruge (in terms of a recording act fact pattern)
first in time
what are the three types of recording act statues
notice, race notice, and race
describe the notice statue and how a BFP will win in a notice jurisdiction
A notice statute gives priority to a BFP who purchased the property without notice of a prior claim to the property
A subsequent BFP will prevail against anyone who was prior in time IF the prior person DID NOT RECORD his deed before the BFP purchase AND if the BFP did not know of the prior person at the time of purchase
in a notice jurisdiction, when are we worried about whether the BFP lacked notice of the previous purchase?
The subsequent purchaser who lacked notice AT THE TIME OF THE PURCHASE will prevail against competing claimants who FAILED to record prior to the subsequent purchasers purchase
descirbe the race notice statue and how a bfp would prevail under a race notice jurisdiction
Gives priority to a BFP who both 1) purchased the property without notice of a prior claim to the property and 2) recorded her deed prior to the recording of any competing claims
The subsequent purchaser of property who lacked notice at the time of purchase and who then recorded her deed (before any competing claimants) will prevail as against the competing claimants
what is a race jurisdiction and how would a bfp prevail in a race jurisdiction
Gives priority to a purchaser who is the first to record his deed
Knowledge of prior competing claim is IRRELEVANT
Priority does not depend on being a BFP because to be a BFP, a person must lack knowledge of competing claimants
This statue is rare
what are the types of notice in the RA and describe them
actual, record, or inquiry
Record notice
The purchaser has constructive knowledge because that interest is recorded in the county recorder’s office
Inquiry notice
The purchaser has constructive Knowledge because he is aware of facts that would cause a reasonable person to make an inquiry into whether there is a competing property interest
what is a competing claim
A competing claim may be another deed that purports to give someone else ownership in the property at issue
It can also be an encumbrance such as an easement, a mortgage, covenant or a lease
The relevant question is whether the holder of the encumbrance recorded the encumbrance PRIOR to the purchase of the land
which jurisdiction does this lang represent? (ie recording act)
no conveyance .. shall be good against creditors or subsequent purchasers for a valuable consideration and WITHOUT NOTICE, unless the same be recorded
no conveyance or motrgage of real property shall be good against subsequent purcahsers WITHOUT NOTICE unless the same be recorded according to law
notice statute/jurisdiction
which jurisdiction does this lang represent? (ie recording act)
all deeds are vaild so as to affect the rights of subsequent creditors or purchasers for valuable consideration WITHOUT NOTICE, only from the day and hour when they are RECORDED
every conveyance not recorded is void against subsequent purchaser… in good faith and for a valuable consideration… whose conveyance is first DULY RECORDED
race notice
which jurisdiction does this lang represent? (ie recording act)
no conveyance of land…shall be valid as against lein creditors or purchasers for a valuable consideration.. but from the time of registration thereof… instruments registered.. shall have priorty based on the ORDER OF REGISTRATION as determined by the time of registration
race
what is the rule for race jurisdiction
first to record wins
what is the rule for notice jurisdiction
subseqent purchaser (bfp) if she acquires without notice of prior UNRECORDED conveyance
what is the rule for race notice jurisdiction
subsequnet purchaser (that is a bfp) wins if she does not have notice of a prior unrecorded claim AND she records it first
what is the shelter rule (ie the exception to the recording act)
Provides that anyone who takes an interest in property from a BFP may step into the shoes of the BFP
once a grantee prevails under the recording act as a BFP, all persons taking the property through him also take good title.
Cohen: purchaser of property does not check with current lessees
In 1968, the lessors, who are not parties in this appeal, leased 10 lots to the lessee for five years at a monthly rental of 400 dollars
The lease contained provisions regarding holding over, a right of refusal and an option to renew
These later two provisions WERE NOT RECORDED
After the lease expired in 1973, the lessee RETAINED POSSESSION and continued to pay rent
issue: Whether the Cohens, who had CONSTRUCTIVE NOTICE of the lessee’s tenancy, had a duty to inquire to the lessee concerning the lessee’s rights in the leased property – ie can recording act protect the cohens as BFPS who lacked knowlege?
Whether the Cohens took title subject to the lesses’s right of first refusal
Having notice of the tenancy by virtue of the lessee’s possession, the Cohens had a duty to inquire of the lessee concerning its rights in the leased property
They take subject to all rights which would have been revealed by reasonable inquiry, including the lessee’s right of first refusal
Notice jurisdiction and lease was not recorded
However, Cohens failed because they had inquiry notice
what is the shelter rule fact pattern
a bfp conveys their interest to a another; and for them to win they’d need to be able to say that the bfp could have won against the other competing claim too
