Titles Flashcards
Title questions on the exam
Establish CHAIN OF TITLE. Who had it first? for everyone else, is there some theory allowing them to take it?
Adverse possession: 3 elements
Physical: actually, openly, notoriously, exclusively occupies land in manner sufficient to put owner on reasonable notice
Mental: possessor needs hostile intent. two types of hostile intent: claim of right (claiming land as own) or color of title (incorrect belief of good title). Permission destroys hostile intent but mere knowledge does not imply permission
Time: must occupy continuously for statutory period. common law: 20 years. otherwise, jx statute controls.
- “continuously” is fact question based on type of use - primary home might need 12/12 months, vacation home less
- tacking: can combine periods by multiple adverse possessors if they transfer b/t
Scope of adverse possession
Generally, when claim ripens, AP gets portion of the land actually occupied
Exception: if AP by virtue of defective deed/instrument, can claim everything described
Also, limited by what true owner owns. no mineral rights, e.g., if already sold
FUTURE interests can’t be taken by AP until they become presently possessory
AP’d life estates measured by life of true owner not APer
Disability re: AP
Conditions that render the true owner incapable of pursuing a cause of action stop the AP from tolling. e.g. infancy, mental disability, sometimes imprisonment
Rights of respective owners
True owner can eject AP and collect damages up until statutory period runs
When AP begins, AP is considered owner against the entire world except true owner. Once clock runs out, AP considered true owner as of the date they entered the land
Transfer by deed: 3 requirements
Donative intent: must intend immediate transfer of interest
Delivery: mental intent to transfer property. Presumed yes if deed actually given, presume no if deed not given, both challengable by extrinsic evidence. Delivery to third party (escrow) sets conveyance date
Acceptance: presumed if transfer beneficial. If grantee refuses, no transfer
Deed sufficient to satisfy statute of frauds (4 elements)
ID the parties
Words indicating intent to transfer
description of the property
grantor’s signature
What if seller dies before closing?
Rep has duty to complete transaction. Money goes to beneficiary of personal property, not real estate
By will
Inherited real property is taken subject to all outstanding encumbraces. Estate does not pay off liens/mortgages
Title Assurance Systems - recording acts
Strong presumption that first in time is first in right. First person to have a valid claim is the one who presumptively owns the property. Recording acts can change this by protecting subsequent purchasers
Race statute: first to record wins
Notice statute: later purchaser wins if they take without notice of earlier claim
Race-notice statute: need both requirements to win
Notice
Actual notice: you literally know
Constructive notice: deed has been recorded, giving world constructive notice
Inquiry notice: a reasonable person would have inquired further and gained actual notice
Grantor-grantee index
Two sets of books for recording - one by name of grantor, one by name of grantee
Tract index
Minority rule recording system. A legal description of the tract of land, w chronological listing of all conveyances. Since all conveyances immediately visible, you always have constructive notice
Estoppel by deed
Majority rule: if you transfer title you don’t actually have, then acquire real title, you are ESTOPPED from denying it to the person you transferred to
Chain of title - shelter rule
Subsequent takers who don’t meet the recording statute’s requirements are “sheltered” if the person they took from did meet the recording statute. Predecessor’s good title “shelters” them
Exceptions: no “washing” by transferring and then transferring back, no fraud
