Property 2—Conveyancing—Deeds Flashcards
Absent a statute to the contrary, what covenants are implied in all deeds?
No covenants are implied in deeds.
Property>Conveyancing>Covenants for Title and Estoppel by Deed>Covenants for Title in a General Warranty Deed>Usual Covenants
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When does the covenant of marketable title in a real estate sales contract cease to be assertable?
Once the deed corresponding to the contract has been delivered, absent a showing of fraud or mistake
Property>Conveyancing>Covenants for Title and Estoppel by Deed>Covenants for Title in a General Warranty Deed>Usual Covenants
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What are the three present covenants? When may they be breached?
The three present covenants are 1. Seisen; 2. Right to convey; and 3. Against encumberances. They are breached (and thus the statute of limitations on an action starts running), if ever, at the time of conveyance.
Property>Conveyancing>Covenants for Title and Estoppel by Deed>Covenants for Title in a General Warranty Deed>Breach of Covenants
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What are the three future covenants? When may they be breached?
The three future covenants are: 1. Quiet enjoyment; 2. Warranty; and 3. Further assurances. They are breached (and thus the statute of limitations on an action starts running), if ever, at the time of interference with the grantees use of the land.
Property>Conveyancing>Covenants for Title and Estoppel by Deed>Covenants for Title in a General Warranty Deed>Breach of Covenants
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How is the covenant of seisen breached?
The covenant of seisen is breached if the grantor does not own, or have the authority to convey, the interest purportedly conveyed by the deed.
Property>Conveyancing>Covenants for Title and Estoppel by Deed>Covenants for Title in a General Warranty Deed>Breach of Covenants
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Do subsequent grantees have a right of action for a breach of the covenant of seisen?
The majority rule is that subsequent grantees do not have a cause of action for the original grantor’s breach of the covenant of seisin.
Property>Conveyancing>Covenants for Title and Estoppel by Deed>Covenants for Title in a General Warranty Deed>Breach of Covenants
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What is a land sale contract?
No, the deed need not recite any consideration, nor must any consideration pass in order to make a deed valid. A deed may validly convey real property by inter vivos gift so long as the following requirements are met: (1) donative intent, (ii) delivery, and (iii) acceptance (see C. infra).
Property>Conveyance>Deeds - Form and Content>Formalities
What does a land sale contract need to be enforceable?
No, a seal is unnecessary.
Property>Conveyance>Deeds - Form and Content>Formalities
What is the doctrine of part performance?
Attestation by witnesses is generally unncecessary, as is an acknowledgement.
NOTE: Either or both might be required for the deed to be recorded.
Property>Conveyance>Deeds - Form and Content>Formalities
What is the evidentiary theory supporting the doctrine of part performance?
A deed must be signed by the grantor. The grantor may designate an agent to sign on the grantor’s behalf, but if the signing is not done in the grantor’s presence, the Statute of Frauds generallly requires that the agent’s authority be written.
Property>Conveyance>Deeds - Form and Content>Formalities
What is the hardship or estoppel theory supporting the doctrine of part performance?
In the case of deeds by corporations, statutes usually provide for execution by two officers of the corporation and the affixing of the corporation’s seal. If the deed represents a conveyance of all or a substantial part of the corporation’s assets, a resolution of the board of directors approving the transfer may be necessary.
Property>Conveyance>Deeds - Form and Content>Formalities
In the majority of states, what is required in order to be qualified as a “part performance”?
The grantee’s signature is not necessary even if the deed contains covenants on her part. Her acceptance of the deed (called a “deed poll” when signed only by the grantor) is sufficient to make the covenants enforceable.
Property>Conveyance>Deeds - Form and Content>Formalities
What are the two relevant theories when determining whether a seller can obtain specific performance based on a buyer’s acts?
In a minority of states, when grantor wishes to sell her primary residence, her spouse must sign the deed, even if the spouse is not an owner, because the spouse has “homestead” rights as the spouse of the owner. Homestead rights must be waived by the holder of the rights for good title to be conveyed.
Property>Deeds>Formalities>Signature
How is the evidentiary theory used when determining whether a seller can obtain specific performance based on a buyer’s acts?
When real property is helf in trust, the trustee must sign a deed conveying the property. The beneficiary’s signature is not generally required.
Property>Deeds>Formalities>Trustee’s Signature
How does the hardship and estoppel theory impact Statute of Frauds application to land sale contracts?
A deed that is defective may be either void or voidable.
Void = implies that the deed will be set aside by the court even if the property has passed to a bona fide purchaser.
Voidable = implies that the deed will be set aside only if the property has not passed to a bona fide purchaser.
Property>Deeds>Defective Deeds & Fraudulent Conveyances>Void and Voidable Deeds
What is the doctrine of equitable conversion?
Deeds considered void include those that are forged, were never delivered, were issued to a nonexistent grantee (e.g., a grantee who is in fact dead at the time of delivery, or a corporation that has not yet been legally formed), or were obtained by fraud in the factum (i.e., the grantor was deceived and did not realize that he was executing a deed.
Property>Deeds>Defective Deeds & Fraudulent Conveyances>Void and Voidable Deeds>Void Deeds
What is the risk of loss under the doctrine of equitable conversion?
Deeds considered voidable include those executed by persons younger than the age of majority or who otherwise lack capacity (e.g., becuase of insanity), and deeds obtained through fraud in the inducement, duress, undue influence, mistake, and breach of fiduciary duty.
Property>Deeds Form and Content>Defective Deeds and Fradulent Conveyances>Void and voidable Deeds>Voidable Deed
Casualty Insurance
Under the Uniform Fradulent Transfer Act (which nearly all states have adopted), a conveyance is fradulent if it was made:
- with actual intent to hinder, delay, or defraud any creditor of the grantor; or
- without receiving a reasonably equivalent value in exchange for the transfer, and the debtor was insolvent or became insolvent as a result of the transfer.
Property>Deeds Form and Content> Defective Deeds and Fradulent Conveyances>Fradulent Conveyances
Passage of Title on Death
Yes fradulent conveyances can be set aside by the grantor’s creditors.
However, the deed will not be set aside as against any grantee who took in good faith and paid reasonably equivalent value.
Property>Deeds Form and Content> Defective Deeds and Fradulent Conveyances>Setting aside fradulent conveyances
Death of Seller
In land contracts and deeds, property may be described in various ways:
- by reference to a government survey
- by metes and bounds
- by courses and angles
- by references to a recorded plat
- by reference to adjacent properties
- by the name of the property
- by a street and number system
Property>Deeds Form and Content>Description of Land Conveyed
What happens to a buyer’s interest in property when the buyer dies before the contract of sale is completed?
A description is sufficient if it provides a good lead as to the identity of the property sought to be conveyed.
Property>Deeds Form and Content>Description of Land Conveyed >Sufficient Description Provides a Good Lead
In what types of land sale contracts must the seller provide a title that is deemed “marketable?”
If the description is too indefinite, title remains in the grantor, subject to the possibility of a suit for reformation of the deed.
Real Property > Conveyance > Deeds (Form & Content) >Description of Land Conveyed > Insufficient Description - Title Remains in Grantor
How can “marketability” of a title be defined?
The general rule is that parol evidence is admissible to explain or supplement a written description or to clear up an ambiguity. Parol evidence may be used to clear up a patent or latent ambiguity.
Real Property > Conveyance > Deeds (Form & Content) >Description of Land Conveyed > Parol Evidence Admissible to Clear up Ambiguity
Title may be unmarketable because of a _____ in the chain of title.
Where there is a mistake or inconsistency in the description, the following rules of construction are applied to carry out the parties’ probable intent: (1) Natural monuments prevail over other methods of description i.e. artificial monuments, courses and distances, surfaces, acreage or general descriptions; (2) artificial monuments prevail over all but natural monuments; (3) Courses prevail over distances; (4) all of the foregoing prevail over general descriptions such as name or quantity.
Real Property > Conveyance > Deeds (Form & Content) >Description of Land Conveyed >Rules of Construction
