Real Property Flashcards
Requirements for a valid deed
To be valid, a deed must (1) be in writing, (2) sufficiently describe the land, (3) identify the grantor and grantee, (4) evidence an intention to convey the land, and (5) be signed by the grantor
Requirements for adverse possession
To establish title by adverse possession, the possession must be (1) actual and exclusive, (2) open and notorious, (3) adverse (hostile/under a claim of right), and (4) continuous throughout the statutory period
What does it mean for possession to be “exclusive”?
Exclusive possession means not sharing possession with the true owner or the general public
What does it mean for possession to be “open and notorious”?
Possession is open and notorious when it is such as the usual owner would make of the land and is sufficient to put the true owner on notice of the possession
What does it mean for possession to be “hostile”?
Possession is hostile when it is without the owner’s consent; it does not matter whether the possessor believes he is on his own land or knows he is trespassing
What does it mean for possession to be “continuous”?
Continuous possession is possession that the average owner would make of the property
Notice recording statute language
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
Who is protected by a notice recording statute?
Under a notice statute, a subsequent bona fide purchaser (BFP) prevails over a prior grantee regardless of whether he records
What is a bona fide purchaser (BFP)?
A BFP is a purchaser who takes for valuable consideration and without notice of a prior claim at the time of the conveyance
When are BFPs not protected by recording statutes?
Subsequent purchasers are not protected by the records acts against, and thus take subject to, interests that arise by operation of law (e.g., title by adverse possession, implied easements)
Joint Tenancy Requirements
A conveyance of two or more persons satisfying the four unities of time, title, interest, and possession (T-TIP) creates a joint tenancy. Joint tenants also have a right of survivorship; i.e., when one joint tenant dies, the property is freed from her interest. The right of survivorship must be clearly expressed; otherwise, it’s a tenancy in common.
Lien theory vs. title theory (severance of joint tenancies)
Lien theory: One joint tenant’s execution of a mortgage on her interest does not by itself cause a severance; however the mortgagee risks losing it interest if the mortgagor dies prior to foreclosure
Title theory: A mortgage is regarded as a transfer of title, which destroys the unity of title and severs the joint tenancy
Joint tenancy severance by conveyance
A severance results when one joint tenant executes a valid contract to convey her interest to another. A contract to convey is enforceable in equity, and so if the seller dies before the closing, the purchaser is entitled to a deed and becomes a tenant in common with the original joint tenant.
Effects of equitable conversion on sales proceeds
Under the doctrine of equitable conversion, once a contract is signed and each party is entitled to specific performance, equity regards the purchaser as the owner of the real property and the seller’s right to the sale proceeds as personal property.
If the seller dies, the takers of her real property must transfer title at closing, and the sale proceeds pass to the takers of her personal property.
