Title Flashcards
Elements of Adverse Possession
Continuous for statutory period
open & Notorious
hostile
exclusive
Continuous
not literal, can be seasonal or infrequent like a vacation home or farm land
Tackingg
if the adverse possessor cant satisify the continuity requirement on their own they can tack a previous time on the property must be in privity with the persoon
Disabilities & Limitations on A.P
Statute of limitations will not run against a true owner who has a disability at the time the adverse possession begins
(infancy, insanity, imprisionment)
must exist when they enter the property
Interruptions by True Ower
the own may interupt the possessor by ejecting & stop the Adverse possession clock
open & notorious
use that would reasonably put the true owner on notice of the adverse use
cant be hidden
Hostile
possession is adverse to the owners interest
MajorityL ignore the adverse possessors state of mind
Minority : inquiries into the adverse possessors state of mind
Good faith: based on mistake
Bad Faith: knows the land is not theres and acquires title regardless
Exclusive
adverse possessor cant share with true owner
if two people possess prooerty together they can take together and have a tenancy in common
What are the requirements for deed?
intent to transfer and acceptance?
What does intent requre?
the GOR intent to make a present transfer. If can be for a future interest.
If GOR retains deeds intent is not presumed. If he gives to a 3rd party then that is okay
Acceptance requirement
acceptance is presumed unless rejects deed
if accepts then change mind need a new deed
What must be included in a deed
Id of grantor
Id of grantee
words of transfer
description of property
interest being transferred
GOR siggnatuer
Words of Transfer
granting clause or any evidence a presnet intent to transfer
Description of property
reasonably definite but extrinsic evidnece will be allowed to clarify
How to execute the deed?
siggnature required but no notary
if forged then the deed is void
Can an agent execute a deed on behalf of Grantor?
yes
Equal Dignities Rule
when an act performed by an agent on behalf of the principal is required to be in writing & agents authority must also be in writing.
What does Notice Statue Require
Purchaser must purchase without notice of prioor interest
Contain words like “good faith” or “without notice”
What Does Race Statue Require?
Purchaser who records first prevails regardless of any knowledge before.
What does Race Notice Statute Require?
subsequent purchaser t take interest without notice and be the first to record.
Who is protected under a race statute?
a grantee has to pay value for an interest in real property
What is the shelter rule?
If GOR is protected by recording act then their GEE’s will also be protected. Their interest are sheltered where they would otherwise be unprotected.
Types of Notice
Actual (personal knowledge)
Constructive (should know)
Inquiry (reasonable investigation would reveal)
What is a wild deed?
Chain of title issue where deed is recorded & indexed but not recorded in a way to give notice to sub. purchasers
a recorded deed that is not within the chain of title is a wild deed
Estoppel by Deed
if conveys warranty deed before actually owning, GOR is estopped from later denyingg the effectiveness of the deed
Does a recording act protect against interest affected adversely?
No, if acquired by Adverse possession or prescriptive easement will not be protected under recording act
General Warranty Deed
GOR guarentees six covenants (Present & Future)
Present Covenants
Seisin
Right to Convey
Covenant against encumbrances
Future Covenants
Quiet Enjoyment
Warrant
Further Assurances
When does breach of covenant occur?
time of conveyance
Requirements for Breach of Covenant (Seisin & right to convey)
the GOR is not owner of estate
Requirements for Breach of Covenant Against Encumbrances
when property is encumbered by mortgage, lease, easement
Requirements for breach of future covenant
GEE has been sued or evicted by someone with valid superior interest
What is Special Warranty Deed?
same covenants of title as general warrant but only warrants against defects during the time GOR has title
Quitclaim Deed
promises no covenants of tile
What is a restrains on alienation
restriction on transfering property
Types of Restraint
Disabling (prohibition of transfer of property)
Forfeiture (forfeiture restraint)
Promissory (promise by property interest holder not to transfer property)
Prohibited Restraints
Absolute on fee simple is void
or based on persons race, ethnicity or religion is not enforceable
Permissible Restraints
restraint that is limited in time or purpose may be valid
a right of first refusal which gives the holder of the right the opportunity to purchase the property interest if sold is upheld
restraint on equitable property interest
What is a mortgage
interest in real property that serves as security for an obligation
Lien Theory
MOR is treated as owner of real property and MEE is treated as holder of the lien on that interest
Title Theory
Minority of JD
MEE is treated as the owner and the MOR possess right to regain ownership upon satisfaction of obligation
Deed of Trust
used in place of mortgage deliver title to real property to a 3rd party trustee
the trustee will reconvey title to the borrower upon payment of mortgage note
same req. as mortgage
Absolute Deed
free of all liens & encumbrances transfers unrestricted title to property
What is Mortgagor liability when the mortgage is transferred?
MOR remains personally liable on the lona obligation after the transfer unless MEE agrees to release their liability
What happens if Lenders modifys the terms of the loan after transfer?
original MOR is relieved of liability
Also released from liability if lender releases or impairs poperrty “subject to”
What is Due on Sale Clause?
upon transfer the Lender has option to demand immediate payment of the full amount of outstanding obligation + interest
What is exception to due on sale clause?
Resident property (fewer than five dwellings) not subject to clause
What is a due on sale encumbrance clause?
give lender the right to accelerate mortgage obligation upon a second mortgage
What does it mean to assume a mortgageg?
transferee & borrower are personally liable ro lender to pay obligation
What does it mean to be subject to mortgage?
the transferee buyer takes title subject to an existing mortgage obligation
equity of redemption
after default but prior to foreclosure sale the mortgagor may retain property by paying the amount of the loan obligation
Deed in Lieu of foreclosure
convey all interest in the property to the mortggagee
allows MEE to take immediate possession of property
Clogging Equity of Redemption
waive right too redeem after mortgage is executed in exchange for consideration
What is acceleration clause?
MEE entitled to collect only the amount of the obligation that is currently due unless there is acceleration clause that provides full obligation owed on default
What is acceleration clause?
MEE entitled to collect only the amount of the obligation that is currently due unless there is acceleration clause that provides full obligation owed on default
Priority of Interest
valid foreclosure terminates any interest that is junior to interest being forclosed
Does a forged deed and defective document
forged deed and defective document do not give notice, so BFP who receive these are not protected by receding acts
what is future advance mortgage?
interest in real property given by borrowers in exchange for the right to receive $ in the future
priority for future advance mortgage
subsequent mortgage will have priority if advances are optional
Jd are split whether there is requirement for actual or constructive notice
