Pg 51 Flashcards
What is a quit claim deed?
A deed that has no covenants of title and where the grantor promises nothing. Often the seller’s claim is doubtful and he never promises marketable title. The seller is just conveying whatever interest he has in the land if any
How do you know if a deed is a quit claim deed?
If it says “all my interest“
What are quit claim deeds best used for?
Clearing title defects and releasing yourself from liability for property
What is a statutory warranty deed?
Applicable when the jurisdiction has a statute that says a deed is a warranty deed if certain language is used unless it is clear that something else is intended. Thus the common-law title covenants are implied into the deed by the statute
What are the major deed problems that can come up?
- reservation
– stranger to the deed rule
– exceptions
If a deed problem comes up, what do the courts try to do?
They try to determine the parties’ intent
What is a reservation?
When the grantor gets a new interest in the land such as a life estate or an easement.
When do reservations often happen?
When the granter wants to have an easement or a profit on the land after conveyance, etc.
How does a reservation work?
The grantor wants to keep title to an easement or profit on the land, so he reserves it and describes its purpose/location/duration and it stays his after the conveyance
What is the “stranger to the deed” rule and what are the different approaches?
– Common law: you cannot reserve an easement or profit in favour of a third person because he has no interest in the land that is being conveyed
– minority: this is allowed and the intent of the parties is followed
– modernly: this rule has been eliminated
– USLTA: this is allowed
What is an exception in relation to the conveyance of property?
When the grantor retains part of a previously existing interest. This means he withholds title to a piece of a larger parcel of land and keeps the same interest he previously had.
What’s the difference between a reservation and an exception when it comes to conveying property?
An exception means you keep a portion of the land you previously owned with the same interest you previously had in it, where a reservation gives you a new interest in land
What are some deed defects that commonly come up?
– Deed inaccurately reflects the intentions of one or more parties – the defect affects essential formalities of the execution, delivery, or capacity of a party – forgery – fraud in the execution – fraud in the inducement – lack of delivery – voidability – otherwise valid deed
If a deed inaccurately reflects the intentions of one or more parties through an inadvertent error, what happens?
Reformation of the deed is done in equity if it came from mistake of the defendant or he was guilty of something like fraud or inequitable conduct. This cannot be gotten against a BFP that relied on the face of the deed
If a deed affects the essential formalities or something like execution, delivery, or there’s a capacity issue, what happens?
The deed is void or voidable
What happens if there has been a forgery in relation to a deed?
The deed is void even against BFPs
What are some examples of situations where there could be a forgery in relation to a deed?
A fake signature, enlarging the scope of the deed through additions/alterations/deletions after it was signed but before delivery, etc.
What is fraud in the execution?
When the grantor is tricked into signing a deed because he believes that is something else
What happens if there has been fraud in the execution with regard to a deed?
The deed is void
What is an example of fraud in the execution?
Papers being slipped in with other documents that you were signing
What is fraud in the inducement?
When you sign a deed but you were induced by a fraudulent representation, even though you understand the nature of the deed
What happens if there has been fraud in the inducement in relation to a deed?
The deed is voidable depending on the grantor’s culpability
What is an example of fraud in the inducement?
A bad check, a false financial statement, etc.
If there has been lack of delivery of a deed, what happens?
The deed is void
What are the defects for a deed that make the deed voidable?
Insanity, lack of capacity, duress, undue influence, mistake, breach of fiduciary duty, etc.
What does “otherwise valid deed“ mean?
Apart from any other defects, the deed is valid. This is verbiage that is used for essay fact patterns and questions and signals that there will be at least one defect in the fact that will likely render the deed invalid. It might not make the deed invalid or void, but something is defective
What is the point of a land description?
It is meant to ensure that any competent reader can figure out the boundary lines of the land with minimum difficulty
Why are courts reluctant to correct defective descriptions of land?
Because they do not want to encourage sloppy draftsmanship
What are the different ways to describe land?
– Government survey system – subdivision plat – metes and bounds – calls of courses and distances – official maps – monuments
What is the government survey system in relation to land description?
Sets of principal meridians going north and south with intersecting base lines that go east and west and extra lines that divide land into townships based on 6 mile squares as well as ranges and sections. This divides townships into 36 numbered sections and is usually used for larger pieces of land
What is a subdivision plat in relation to land description?
A surveyor subdivides land into parcels and numbered plots and then records the map. This usually must be approved by an agency such as town council and then is filed for permanent record in the recording office. This is not usually uniform. The plat must refer to known monuments and lot descriptions are usually brief. All lots are identified by a lot and a block
What is a metes and bounds description?
Starts at a specific point and calls boundary lines until the last line returns to the original point
What is calls of courses and distances in relation to land description?
The first call is a beginning point and the last call returns to it, and the course is shown by degrees, minutes, seconds, with due North being specified first. Each call states a distance plus a course
Who prepares official maps?
City employees or surveyors
What is the deal with ownership regarding streets and highways?
These are easements and the underlying land is private property, so the conveyance that describes land with a call to Main Street conveys title to the centre of the street
Can rivers and streams be considered to be land boundaries?
Yes, but the problem is that rivers and streams often change over time
What happens when a river or stream is a land boundary and there is slow and imperceptible change over time?
The legal boundary changes with the stream
What is accretion? And how does it affect land boundaries?
When soil builds up on the bank of a river or stream or body of water. The extra land becomes the property of the abutting littoral
What is reliction and how does it influence land boundaries?
It is when there has been recession of water from a bank, so the previously submerged land now becomes dry. The littoral owner gains more land because of this
What is erosion, and how does it influence land boundaries?
The littoral owner loses title to the land that becomes submerged
What is avulsion and how does it relate to land boundaries?
When a stream suddenly shifts course by either adding soil or removing soil. The original boundaries stay intact, so the old streambed boundaries continue to be in place
