Title Flashcards
Adverse possession requirements
(1) Actual possession
(2) Open and notorious
(3) Continuous
(4) Hostile (without owner’s permission)
(5) Exclusive (not shared with true owner)
Intent to transfer a deed
Grantor must intend to make present transfer of property interest to grantee at time of transfer.
Intent is shown by delivery.
Execution and recording create a rebuttable presumption that the deed is to be presently operative.
Delivery of a deed
Must be intent to make present transfer.
Transfer to grantor’s agent is not delivery but transfer to grantee’s agent is.
Delivery of deed to third party
Transfer to third party with a condition is not delivery if grantor keeps absolute right to recover deed, but if not, treated like a future property interest.
Delivery of deed conditioned upon death
If conditioned upon death, grantor must intend to make a present gift.
Acceptance of a deed
Acceptance is presumed for beneficial transfers.
Valid deed requirements
(1) Identified parties
(2) Grantor’s signature
(3) Words of transfer
(4) Reasonably definite property description
Equal dignities rule
Agent authorization for real estate Ks must be in writing.
Notice recording acts
BFP of prior interest prevails over prior grantee who failed to record.
Must record against subsequent purchasers.
“No conveyance good against subsequent BFP unless same be recorded according to law.”
Race recording acts
First to record prevails, regardless of knowledge of prior conflicting interests.
“No conveyance good against subsequent purchaser of value unless first recorded by law.”
Bona fide purchaser
Purchaser for value without notice.
Race notice recording acts
Subsequent BFP protected only if he takes without notice and is first to record.
“No conveyance good against subsequent BFP unless first recorded by law.”
Notice (in general)
Tested as of the time of the conveyance.
Notice obtained after conveyance does not prevent purchaser from benefiting from recording.
Grantee has actual notice
A grantee with actual, personal knowledge of prior interest cannot prevail under notice or race-notice statute.
Grantee has inquiry notice
If reasonable investigation would disclose prior claims, a grantee cannot prevail against them (e.g., someone other than grantor has possession or documents referenced in chain of title).
Record notice
Properly recorded and appears in chain of title establishes notice.
Title insurance
Protects policy holder (owner or lender) against defects that could have been uncovered by careful title search or forged/undeliverable/unenforceable deeds.
General warranty deed present covenants
Seisin - grantor owns land as described in deed
Right to convey - grantor has right to transfer title
Against encumbrances - no undeclared encumbrances against land
General warranty deed future covenants
Quiet enjoyment - grantee not disturbed in possession by third party’s lawful claim
Warranty - grantor will defend grantee against third party’s claim
Further assurances - grantor will do whatever future acts reasonably necessary to pass title if later determined title is imperfect
Special warranty deed
Same covenants of title as general warranty deed, but only warrants against defects arising during the time grantor has title.
Quitclaim deed
No covenants of title. Grantor conveys as-is with no promises as to encumbrances or title clearness.
Ademption
Devise by will fails because the testator no longer owns the property upon death.
Lapse
Devise by will can fail if the beneficiary named in the will dies before the testator and no alternate beneficiary is named.
Anti-lapse statutes
Prevent a gift from lapsing if the gift is made to individuals specified by the statute and they leave issue who survive the testator.
Inter vivos trust
Created when the settlor conveys his property to the trustee while the settlor is alive.
Testamentary trust
Created by the settlor in his will.
Pour over trust
Created by the settlor during his life but not funded until his death by a devise in his will.
Disabling restraint on alienation
Total prohibition on the transfer of the property interest by its owner.
ALWAYS void.
Forfeiture restraint on alienation
Property is forfeited if the interest owner attempts to transfer his interest.
Restraint on a future interest or a life estate CAN be valid.
Promissory restraint on alienation
Promise by the property interest holder not to transfer the property interest.
Enforceable by an injunction or a suit seeking damages.
Restraint on a life estate CAN be valid.
Prohibited restraints on alienation
An absolute restraint on alienation of a fee simple is void.
Any restraint based on race, ethnicity, or religion not enforceable.
Restraint on equitable interests
A restriction on the transferability of an equitable property interest, such as a spendthrift clause, is valid.
