MBE Property IV: Titles Flashcards
adverse possession requirements
- continuous
- actual
- open and notorious
- hostile
- exclusive
tacking and requirements
An adverse possessor may tack on his predecessor’s time in order to satisfy the statutory period if there is privity between successive possessors. Privity is satisfied if the possessor takes by any non-hostile means (such as descent, devise, contract, or deed). The periods of possession must pass directly from one possessor to the next without any gaps.
when is tacking not allowed to satisfy statutory period for AP?
Tacking is not allowed when there is an actual, wrongful exclusion of a party entitled to possession from the property (ouster).
is there intent to make present transfer?
A executes a deed that transfers real property to B. The deed itself contains no conditions. A gives the deed to C to hold and says, “Give this deed to B on his 21st birthday, unless I ask for the deed back before then.”
Because A retained an absolute right to recover the deed, A did not have the intent to make a present transfer.
what is required to transfer a real property interest?
- grantor must demo intent to make present transfer of the interest
- grantee must accept interest
pursuant to SoF, transfer must:
be evidenced by writing
grantee may be able to protect prop int against others by recording deed
T or F: physical transfer of deed is conclusive evidence of grantor’s intent to transfer property interest
false. but creates presumption that grantor intended to make present transfer of property interest
what happens when grantor transfers deed to grantee subject to oral condition?
parol evidence not admissible; condition not enforceable
does A have intent to make present transfer?:
A executes a deed that transfers real property to B. The deed itself contains no conditions. A gives the deed to C to hold and says, “Give this deed to B on his 21st birthday, unless I ask for the deed back before then.”
no. A retained absolute right to recover the deed
what happens if grantor does not retain right to retrieve the deed?
key is whether the grantor intends to make a present gift of a property interest. If so, the grantor cannot later void the gift.
the conditional transfer is treated as creating a future property interest in the grantee
what interest does B have in the real property?:
A executes a deed that transfers real property to B. The deed itself contains no conditions. A gives the deed to an independent third party, C, and says, “I want B to have this property when she has her first child. Please give the deed to her then.”
Since A gave C the deed with the intent of presently creating an executory interest in B, B currently has an executory interest in the real property.
when a third party’s transfer of a deed to grantee is conditioned on death of grantor, grantor’s transfer of deed to 3rd party must…
evidence intent to make a present gift
is this transfer effective?
A executes a deed that transfers real property to B. The deed itself contains no conditions. A gives the deed to an independent third party, C, saying, “I want B to have this property upon my death. Please give the deed to her then.”
Because A gave C the deed with the intent of presently creating a remainder interest in B, the transfer is effective.
death escrow
method of transferring property outside of probate by delivering deed to escrow agent to be held until grantor’s death
effective if transfer not revocable by grantor; must conform to statute of wills
is this transfer effective?
A executes a deed that transfers real property to B. The deed itself contains no conditions. A gives the deed to an independent third party, C, saying, “I want B to have this property if she outlives me. Please give the deed to her then.”
Because A gave C the deed with the intent of making a testamentary transfer (i.e., requiring that B survive A in order to take the property), the transfer is ineffective unless the requirements for a testamentary transfer were satisfied.
how are priorities to conflicting claims to real property resolved?
unless recording acts governs, common law rule of first in time, first in right applies generally
three types of recording statutes
- notice
- race
- race-notice
notice statute
typically “in good faith” or “without notice”
purchaser need only purchase w/o notice of prior interest to porevail under notice condition (tends to protect subseq purchasers against people who could have, but didnt record documents describing their interest)
what type of statute is this: “No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice unless the same be recorded according to law.”?
notice statute
in a notice jurisdiction, who does a purchaser need to record interest in order to prevail over?
need not record to prevail over prior interest, but must record to prevail against subseq purchaser
race statute
minority of states; purchaser who records first prevails, regardless of knowledge of any prior conflicting interests
what type of statute is this?
“No conveyance or mortgage of real property shall be good against subsequent purchasers for value unless the same be first recorded according to law.”
race-notice statute requirements
requires subseq purchaser to take int w/o notice of prior conflicting int, AND be first to record
look for “in good faith” + phrases such as “first duly recorded”
what type of statute is this?
“No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice who shall first record.”
race-notice
what do recording acts provide?
prior conveyances and mortgages that would prevail under the common-law rule may be defeated by certain “subsequent purchasers for value” who meet the requirements of the recording act (e.g., took without notice, recorded first, or both); protects people who would have lost under first in time, first in right
who is protected by a recording act?
grantee who pays value for interest in real property; need not be market value, but most jx require substantial amount that is not grossly inadequate
who gets the property?
A sells Blackacre to B, who forgets to record the deed. In the interim, A gives a deed to his daughter, C, who promptly records her deed.
B. C did not pay value for property
Is C protected against B’s interest?
B makes a loan to A and A grants B a mortgage interest in Blackacre as security for the loan. C, a creditor of A, not knowing of the deed to B, then records a judgment lien against Blackacre.
no; it preceded the recording of C’s lien
Who gets the property?
B makes loan to A and A grants B mortgage interest as security. C records a judgment lien against property as a creditor of C, not knowing about B. C obtains an order requiring a sheriff to levy on the lien and Blackacre is sold at a judicial sale. D purchases Blackacre at the sale.
D gets blackacre, free of B’s mortgage interest
shelter rule; exception
Grantors who are protected by the recording act protect (or “shelter”) their grantees who would otherwise be unprotected. The exception to the shelter rule is that a purchaser who has notice of a prior property interest cannot sell his property interest to a person without such notice and then buy back the property to gain the protection of the shelter rule.
