Titles Flashcards
What are the 4 elements of adverse possession?
- exclusive possession; WHICH IS
- actual, open and notorious; AND
- hostile to the rightful owner; AND
- continuous for the statutory period
How may an adverse possessor prove open and notorious possession?
An adverse possessor must occupy the property in an open, notorious, and visible manner
The possessors acts must constitute reasonable notice to the owner that the adverse possessor is claiming dominion of the land so that the owner can defend their rights
*generally, open and notorious acts are those that look like typical acts of an owner of property
How may and adverse possessor prove “continuous” possession?
through a degree of occupancy and use that the average owner would make of the particular type of property
*for example: to claim adverse possession go a hunting blind, the adverse possessor would only have to prove they used the hunting blind to hunt
How may an adverse possessor prove “hostile” possession?
the adverse possessor must be on the land w/out the owner’s permission or knowledge
*hostile possession does NOT require animosity, only that the possession is w/out the owner’s consent
What is the warranty of marketable title?
Included in every land sale K, guarantees that seller’s title is free from reasonable doubt, which a prudent purchaser would accept
*perfect title is not required, the title just must be such that there is no reasonable probability that the buyer will be subjected to a lawsuit
Which 3 remedies are available to a buyer when the title is unmarketable at closing?
- rescission of K
- specific performance
- damages
What does the warranty of fitness or quality guarantee to buyers of real property?
Implied in the sale of new homes, and warrants that the home is constructed in a reasonable workmanlike manner, is fit for human habitation, and is free from latent defects
Where there is privity between the builder and owner, the owner can recover damages under the implied warranty
-HOWEVER, the courts are split as to whether a subsequent owner or remote grantee can recover damages beside on this implied warrant
*warranties of quality ONLY apply to sale of residential housing
When is a seller liable for defects in existing buildings?
If:
- the seller knowingly makes any false statements to the buyer as to a fact that materially affects the value of the premises to the buyer, and the buyer relies on the false statement in purchasing; AND/OR
- the defects were intentionally concealed by seller
What disclosures must a seller of land make to a buyer?
Majority of state hold that seller must disclose all know material defects to the buyer
-requirement applies even if house is being sold “as is”
*this disclosure may not be waived by the seller
-in most states, the seller must provide at closing a form stating all
What is a deed?
A signed document transferring the title of an interest in real property
*a deed will not be effective until it is delivered
What is the effect of a void deed?
a void deed is ineffective to transfer property
What are the 2 requirements of a valid deed delivery?
- words or conduct by the grantor that show the intent to make the present transfer of the interest to the grantee AND
- there is a transfer of the deed by the grantor to the grantee or 3rd party
*delivery may be presumed under limited circumstances; if the deed is: (i) recorded; (ii) physically handed to the grantee, OR (iii) acknowledged by the grantor before a notary
What is the effect of a conditional delivery of a deed?
A conditional deed delivery will result in:
- no delivery and the deed is ineffective until the condition happens; OR
- delivery will be permitted because the grantor only intends to pas an interest that is subject to a stated condition
What are the 3 requirements to validly accept a deed?
- deed is handed to the grantee
- deed is acknowledged by the grantor before a notary OR
- the deed is recorded
What constitutes a dedication of a deed?
A dedication of a deed is a transfer of land to public organization
To be effective, there must be:
- an offer (either written or oral)
- submission of a map showing the dedication or opening land for public use AND
- acceptance by public org via formal resolution or approval
What 2 types of covenants are included in every warranty deed?
- present covenants AND
- future covenants
*there is no implied covenant to provide marketable title in the DEEED –> ONLY the land sale contract
What is the covenant of “seisin”?
Included in every warranty deed, it promises that the grantor owns the interest that they want to convey
What is the covenant of the “right to convey”?
promises that the grantor actually has the power to make the conveyance they claim to offer
*this covenant is satisfied if the grantor has the title to the property they purport to convey
What is the covenant “against encumbrances”?
promises that there are no easements, covenants, mortgages, liens, or other encumbrances on the property
*this only applies to private encumbrances
-public land use rules still control
What is the covenant of quiet enjoyment?
promises that the grantee will not be disturbed in possession or enjoyment of the property by a third party’s LAWFUL assertion of superior title
*breached only when the covenant holder is evicted or somehow else disturbed in possession
What is the covenant for “further assurances”?
promises that the grantor will perform whatever acts are reasonably necessary to perfect the purchaser’s title
What is a “quitclaim deed”?
Is a deed that carries no warranties
The grantor merely transfers whichever right, title, or interest they have, if any
*a quitclaim deed can still transfer an interest, as long as the grantor has an interest to transfer
What is “estoppel by deed”?
The concept that when a grantor conveys realty in which they have no interest they are estopped from denying the validity of that interest or conveyance when they later acquire the previously transferred interest
*in estoppel by deed scenario if the grantor subsequently acquires title, the title passes, by operation of law, to the grantee under the earlier deed
What are the three types of recording statutes?
- race
- notice
- race-notice
What is the effect of a notice recording statute?
NOTICE JURISDICTION: the subsequent purchaser for value wins if they have no actual inquiry or contstructive/record notice of a prior claim at the time of conveyance
*a typical notice statute includes language like “without notice”
What is the effect of a race-notice recording statute?
RACE-NOTICE
For a subsequent bona fide purchaser to win, they must be without notice AND win the race to record
*a typical race-notice statute uses language like “whose conveyance is first recorded”
What is the effect of a race recording statute?
RACE
The party who wins the race to record prevails over a person who has NOT recorded or who subsequently records
What are the 2 requirements to be a bona fide purchaser?
To be a BFP, one must:
- be a purchaser who pays valuable consideration for the property AND
- takes w/out notice of the prior conveyance
What is the “shelter rule”?
Holds that a person who takes from a bona fide purchaser will prevail over any interest over which the BFP would have prevailed
*applies even when the person who took from the BFP had actual knowledge of the prior unrecorded interest
What is “ademption”?
The doctrine used to determine what happens when property bequeathed under a will is no longer in the testator’s estate at the time of the testator’s death
*ademption does NOT apply to general devises
What is an “anti-lapse statute”?
If a testator devises a gift to a person in their will and that person dies before the testator, the anti-lapse statute will allow the gift to pass on to that person’s heirs
*under Common Law: if a lapse occurred the gift was void
HOWEVER - now nearly all states have anti-lapse statutes that prevent that outcome
When must a seller of real property provide the buyer w/ marketable title?
the title must be good and marketable at date of closing
*that mean title does NOT have to be marketable UNTIL the closing
What is the effect of a conveyance by a quitclaim deed on the land sale contract?
Conveyance by a quitclaim deed has no effect on the warranty to provide marketable title
It is implied that the seller must furnish the buyer w/ good and marketable title at closing, even if the K calls for conveyance by quitclaim deed (which makes no warranties of title)
