Real Estate Transactions Part III: Deeds & Notice (cont’d); Wild Deeds; Allocating Risks; Deed Warranties - Mar. 23 Flashcards
What does it mean when a lien be perfect? (Barros)
Perfection typically requires some form of notice to the property owner and recording within a certain time period after the work is completed. (429)
What is the key date for most liens and property interests? (Barros)
For most liens and other property interests, the key date for priority is the date of recording. (429)
Why do mechanic’s liens present unique title problems? (Barros)
Mechanics’ liens present unique title problems because they often take priority not from the date of recording, but from the date visible construction began on the project. (429)
What is the doctrine of relation back? (Barros)
Under this doctrine, the mechanics’ lien becomes effective as of, or relates back to, the date of visible construction. (429)
What are wild deeds? (Barros)
Wild deeds are deeds that are recorded and are outside of the chain of title. (433)
What is the doctrine of idem sonans? (Barros)
The doctrine of idem sonans is that though a person’s name has been inaccurately written, the identity of such person will be presumed from the similarity of sounds between the correct pronunciation and the pronunciation as written. Therefore, absolute accuracy in spelling names is not required in legal proceedings, and if the pronunciations are practically alike, the rule of idem sonans is applicable. (434)
When is the rule of idem sonas inapplicable? (Barros)
The rule is inapplicable, however, under circumstances where the written name is material. To be material, a variance must be such as has misled the opposite party to his prejudice. (434)
What is a marketable title? (Barros)
Marketable title is typically defined as title that would not create reasonable doubts in a reasonable person. (438)
When is a title unmarketable? (Barros)
Title is unmarketable if it exposes the buyer to the hazards of litigation. In some contract. (438)
What three problems can make a title unmarketable? (Barros)
Ownership, encumbrance, or encroachment. (438)
What is the covenant of quiet enjoyment? (Barros)
The grantor promises that the grantee will have quiet enjoyment in their possession and ownership of the property. As a practical matter, this covenant is a duplicate of the covenant of general warranty. (448)
What is the covenant of further assurances? (Barros)
The grantor promises to execute any document, or take any similar steps, necessary to fix any title problems that later arise. (448-49)
What is the covenant of general warranty? (Barros)
The grantor promises to defend the grantee against lawful claims of title by another person and to compensate the grantee for any losses that result for such a claim. The word “lawful” is critical here—the covenant is only breached if the other person asserting title wins. This limitation makes sense because if the other person loses, then the grantee has good title to the property and therefore has exactly what the grantor promised to convey. The scope of this covenant is broad enough to cover any type of title problem, and it is not just limited to competing claims of outright ownership. (448)
What is the covenant of seisin? (Barros)
The grantor promises that she owns the interest that she is conveying. This promise is breached, for example, if the grantor does not have any interest in the property, if the grantor only owns a life estate but is purporting to convey a fee simple, or if the grantor only owns eight of the ten acres described in the deed. (447)
What is the covenant of right to convey? (Barros)
The grantor promises that she has the right to convey the interest. In most circumstances, this will duplicate the covenant of seisin—if a person owns the interest, then she generally has the right to convey it. There are some circumstances where a person might own property but not have a right to convey. For example, a trustee might be the legal owner of property but the trust’s governing document might restrict the trustee’s right to convey the property. (447)
