The Deed

Question 1

Components

Answer 1

• Description of the land, boundaries of the parcel
• Buyer and seller
o Generally signed by both; need to be signed at least by the grantor
• Quitclaim – deed with no guarantees
o Whatever interest the grantor has in the property is transferred to the grantee, but there is no guarantee that the grantor has any interest at all
• Warranties
o General warranty – against all title defects, whatever their source
o Special warranty – against title defects caused or created by the grantor personally
• Once the deed is passed, it is controlling (not the sale contract)  Merger
• Important act is delivery, not signing/drafting
o Need intent to deliver

Question 2

• Capozzella v. Capozella – VA (1973)

Answer 2

o F: Husband owns land in trust; wants to have the trustees transfer to him and his new wife, together; but then this relationship fizzles but the deed had never been delivered to the two of them as joint tenants; wife sues for her share
o H: For P (wife) – Ct. finds that there was intent to deliver – actual / constructive
 Here, deed was delivered to third person for transmittal to the grantee (attorney’s husband – delivery to the husband’s agent is effectively delivery to both spouses in this case)
 Physical deposit with the named grantee is not critical
o Dissent argues for actual delivery req – was equivocality on intent here

Question 3

Deed Covenants: • Present –

Answer 3

• Present – breached at time of transfer; statute of limitations applies on these

o Seisin – promise that grantor owns the estate in land which the deed purports to convey

o Right to convey – grantor has right to transfer land that is owned (e.g. not a minor)

o Against encumbrances – no interests in third parties which would qualify but not negate the title being transferred (e.g. easements, profits, leases, liens, covenants)

Question 4

Deed Covenants: • Future –

Answer 4

breached only when third party challenges grantee with superior legal interest

o Warranty – grantor will come to defense of grantee if he suffers any loss to someone holding superior claim to all/part of land transferred
o Quiet Enjoyment – functionally same scope as warranty
o Further assurances – promise that grantor will execute additional documents necessary to establish grantee’s title
 Can be enforced by specific performance (other 5 are money damages)

Question 5

• Brown v. Lober – IL (1979)

Answer 5

o F: P finds that 2/3 of mineral rights were actually not owned by D at transfer time (P bought land from D); P sues for breach of seisin
o H: For D because statute of limitations (10 years) had run for seisin
 Can’t bring suit for quiet enjoyment/warranty because third party has not tried to oust P (no invasion, thus can’t invoke future covenants; no constructive eviction here)
 Could argue that there was encumbrance to enter and get mineral rights, but this might also fail b/c statute of limitations

Question 6

Title Insurance

Answer 6

• Enforcing future liability – as noted above cap is no more than amt he received for sale of property

Question 7

• Fidelity National Title Insurance v. Miller – CA (1989)

Answer 7

o F: Miller transfers property to daughter, in doing so reminds that it is subject to negative easement which is recorded; deed says nothing about warranties, but doesn’t disclaim the warranties. P sues, saying Miller guaranteed no encumbrances
 Guarantee imposed by statute in CA
o I: What does absolute guarantee of no encumbrances really mean?
o H: Remand b/c factual question (had been for D below)
 Preliminary report is not abstract of title
 Q whether D relied on representations of P about the state of the title
 Grantee’s knowledge of an encumbrance is not a defense when the grantor has warranted that the property is free from encumbrances
• Note: Courts have split on this
o Dissent – P negligent in title search, should have seen negative easement b/c recorded