Title - Adv. Poss. & Valid Deed Delivery Flashcards
What is adverse Possession ?
Ownership transferred to a person who exercises exclusive physical poss. of that prop. for a certain amount of time. For poss. to ripen into title, poss. must be:
- Continuous
- Actual
- Open & Notorious
- Hostile and
- Exclusive
Adverse Possession - Continuous
Poss. must be continuous & uninterrupted for a specific period (statutory pd.)
- Seasonal or infrequent use may be enough if it’s consistent with the type of prop. that is being possessed
- Default time pd. = 20 years (common law)
Adverse Possession - Continuous - Tacking
Combines 2 AP periods to meet the statutory pd. requirement, so long as there is privity b/w successive possessors
- there has been a transfer of int. in prop. from one AP to another
- Privity exists if the possessor takes by any non-hostile means
- Periods of poss. must pass directly from one poss. to the next without gaps
- Can’t tack when there is an actual, wrongful exclusion of a party entitled to poss. (ouster)
Adverse Possession - Actual, Open, & Notorious
Actual entry giving exclusive poss. that is open/notorious such that reas. true owner would become aware of the claim
- Uses that are hidden are insufficient to satisfy the requirement
Adverse Possesion - Hostile
- Must possess the land without the owner’s permission AND
- with the intent to claim land against claims of others
Adverse Possession - Exclusive
- Possession can’t be shared with true owner
- two or more ppl can adversely possess as TIC
When can co-tenants adversely possess against another ?
If one co-tenant ousts another for the statutory period
Constructive Adverse Possession
If pers. enters prop. under color of title (facially valid will or deed) & actually possesses only a portion of the prop.
- Constructive AP can give title to the whole
What is color of title ?
When someone believes their title is valid, but it’s not b/c of flaw in deed
What land rights does an AP get?
Whatever rights the owner has that he took them from
- Any encumbrances on the land remain
What is the effect of a disability in regards to the statute of limitations for Adverse Possession?
Disability occurs when the owner is:
- An infant
- Mentally Incompetent
- A prisoner
It tolls the running of the SOL for adverse possession
Up until the time the AP pd. has run, what right does the true owner maintain?
The owner can have the AP ejected off the land & sue for damages
What occurs at the Closing ?
Deed Becomes the Operative Contract - The deed transfers legal title to some interest in prop. from the seller to the buyer
What are the requirements for the deed to become the operative Contract?
- Lawful Execution of the deed
- Delivery of the Deed
- Acceptance by Grantee
What are the elements of a lawfully executed deed?
- Writing Required - deed must be in writing
- Identify the parties
- Words of transfer - any words evidencing present intent to transfer
- Describe the prop. - sufficient description of prop req. but doesn’t need to be perfect (extrinsic eidence admiss.) AND
- Signed by the grantor
Delivery & Recording of a Deed
- Grantor demonstrates the intent to make a present transfer of the interest
- Grantee must accept the interest AND
- Tranfer of a real prop. int. must be evidenced by a writing (SOF)
- Grantee protects his prop. int against other claims by recording the deed
Delivery of the Deed
Deed is not effective to transfer until it has been delivered by the grantor, Delivery Requires:
- Words or conduct evidencing a grantor’s intention that the deed have some present operative effect
Actual Delivery
Grantor physically or manually delivers the deed to grantee
- Mail or use of an agent is ok
- Creates rebuttable presumption that grantor presently intends that the property transfer to grantee
Delivery by Escrow
Grantor delivers the deed to 3d party (escrow agent) with instructions to deliver the deed to the grantee when the conditions set forth by grantor are satisfied
- Title will pass from escrow to grantee as soon as the conditions are satisfied
Implied Delivery of Deed
Grantor has the present intent (words or actions) to make deed operative & to pass int. immed. to grantee
- Phys. delivery of deed is not required
Presumptions of Delivery
For delivery to be effective, grantor must relinquish absolute & unconditional control over the prop.
- Handed to grantee
- Acknowledged by Grantor b/f notary
- Recorded
Acceptance by Grantee
Grantee must accept deed within a reas. pd. of time
- Most states - acceptance is presumed unless grantee specifically indicated intent not to accept the conveyance
- Express rejection will defeat delivery
Retention of the deed by the grantor
Intent to transfer is not presumed
- Parol Rvidence is admiss. to est. if the grantor had the intent to make a present transfer of the prop. int.
Transfer of Deed to Grantor’s Agent
When grantor transfers deed to her own agent
- Treated as if grantor retained the deed
- Until grantor’s agent delivers the deed to the grantee, grantor can demand that the agent idnore the instruction & return the deed to grantor
Transfer of Deed to Grantee’s Agent
Transfer is Treated as if it had been made to the grantee herself
If grantor retains the deed after writing it, is there a delivery?
There’s a rebuttable presumption that the grantor presently intends not to transfer the prop. to the grantee
- Can be rebutted by Parol evidence that shows grantor intended to transfer
If the grantor gives the deed to a 3d party after deeding property to another, is there delivery?
When grantee gets the deed from the 3d party the delivery date relates back to when deed was first given to the 3d party
What is the effect of a grantor handing the deed to 3d party and placing conditions on the delivery?
If condition placed on delivery, the relation back doctrine will be defeated & delivery date will be when grantee received the deed from the 3d party
What is the relation-back doctrine ?
- When a deed is given to 3d party that tells them to give it to the grantee,
- when grantee gets deed from 3d party the delivery date relates back to when deed was first given to 3d party
What is created when a grantor instructs a 3d party to give a deed to grantee when the grantor dies ?
Interpreted as giving grantor a life estate & conveying a remainder to the grantee
- It’s interpreted as a present delivery prior to death
Real-Estate Agents & Brokers - Contract of Sale
- Many states allow them to prepare real-estate K
- Some states limit this to form Ks
- Some states require attorney review
Mortgage Lenders - Lending Documents
Non-attorneys can prepare mortgage lending docs
- Not considered practice of law
Are attorneys required to conduct a settlement?
Courts split
- Slight majority - Don’t require attorney to conduct settlement
- BUT can’t answer legal questions or give legal advice
Who can execute a deed?
- The grantor OR
- Agent on behalf of principal-grantor
What is the Equal Dignities Rule?
When the act performed by an agent on behalf of the priciple is required to be in writing by law:
- The agent’s auth. must also be in writing
- If agent signs instrument that is subj to SOF, agent’s auth. must also be in writing
Signature on deed by agent
- Valid if agent w/ auth. signs only principal’s name
- Not valid if agent w/ auth. signs only agents name
- BUT deed may be enforced in equity b/w the parties & subsequent purchasers with notice of existence of agency
How must adverse possession be recorded?
It’s outside the recording acts & doesn’t need to be recorded to take effect
- Proper analysis is first in time first in right
