Titles Flashcards
Adverse possession
A party may gain title to land through adverse possession
- possession must be continuous and uninterrupted for seven years (seasonally use is okay if it is consistent with that type of property, tacking of time is permitted)
- actual entry giving exclusive possession that is Open and notorious such that a reasonable true owner would become aware of the claim
- position must be hostile, the person must possess the land without the owners permission and with the intent to claim land against the claims of all others
- exclusive possession cannot be shared with the true owner that’s two or more people can adversely possessed as tenants-in-common
Constructive adverse possession
In Florida if the property is divided into several lots a person claiming adverse possession of one lot does not obtain constructive adverse possession of any other lots
Under the color of title constructive adverse possession begins when the instrument is properly recorded and the property has been improved
Without color of title adverse possession requires a possessor to pay outstanding taxes filed description with the appraiser and continue to pay the taxes
A person who occupies or attempts to occupy a residential structure solely by claim of adverse possession prior to filing of the necessary document with the county appraiser commits to trespass and if that person offers a property for lease to another they commit a theft
A deed
A deed is a legal instrument that transfers the ownership of real property
To transfer a real property interest
1. the grantor must demonstrate the intent to make a present transfer
2. they grantee must accept the interest
To be valid, the deed must
- comply with the statute of frauds,
- identify the parties
- must be signed only by seller/grantor
- words of transfer
- the deed must be signed in the presence of two subscribing witnesses
- it must describe the land with sufficient accuracy to transfer title (extrinsic evidence admissible)
- and should be recorded although it’s not required
Under the equal dignities rule if an agent executes the deed to the agency authorization for the real estate contract must be in writing
Intents to transfer (Delivery)
Intent is generally manifested by delivery of the deed
Delivery may be accomplished by a physical handling or mailing of the deed to the grantee or the grantees agent
Intent may be implied from words or conduct of the grantor such as when the grantor draft and record the deed
Physical transfer is not required and is not conclusive evidence of the grantors intent
If the grantor keeps the deed the intent to transfer is not presumed. Parole evidence is admissible to establish whether the grantor had the intent to make a present transfer of the property interest. But parole evidence is admissible to show the grantor lacked such intent
If deed is transferred to the grantors agent that is not delivery but if it’s transferred to the grantees agent that is delivery
A transfer to a third party with the condition is not delivery if the grantor keeps an absolute right to recover the deed
Acceptance of the deed
Acceptance is required for transfer to be complete and the green tea is generally presumed to have accepted any beneficial conveyance. The green tea rejects the deed no title passes and the grantor holds the title.
If the grantee accepts and then changed his mind shortly thereafter a knew deed must be executed to convey the property back- his return or cancellation of the deed is not effective to transfer the property back to the grantor
Recording acts
A deed need not be recorded to be valid and convey good title. The common law rule was first first in time 1st and right. All states have a nested recording acts which establish priorities among conflicting claims to land and promote certainty of title. The three types of recording statutes are notice, race and race notice.
Florida is a notice jurisdiction. In a notice jurisdiction, an individual who purchases the property for value and without notice of any prior interest will prevail in the contest for the land.
There are three types of notice: actual notice, inquiry notice, and constructive notice.
Actual notice means the individual had actual personal knowledge of the prior interest.
Inquiry notice means that if a reasonable investigation would disclose prior claims the grantee cannot prevail. In Florida purchaser purchaser has a duty to conduct a reasonable investigation of the premises to determine if someone other than the seller has possession of the property and to inquire as to any ownership rights.
Constructive notice exists when the interest is properly recorded and it appears on the chain of title. A recorded interest gives notice to the world regardless of whether the buyer discovers it.
Gen. warranty deed
Under Gen. warranty deed the grantor makes certain covenants regarding title to property. The guarantees contained in a general warranty deed cover the property’s entire history.
The traditional covenants included in a warranty deed are seisin, Rights to convey, covenant against encumbrances, covenant of quiet enjoyment, covenant of warranty, and covenants of further assurances.
The first three are present covenants:
- Seisin: grantor owns the land
- Right to Convey: grantor has the right to transfer title
- Convenant against encumbrances: there are no undisclosed encumbrances on title
These are future covenants. Future covenants run with the land and can be enforced by remote grantees.
- Quiet enjoyment: no third party with superior claim to ownership of the property
- Warranty: if third party establishes superior claim, grantor will compensate grantee for loss
- Further Assurances: catch all covenant where grantor promises to take any acts reasonably necessary to pass title to grantee
Quit claim deed
Under quitclaim deed grantor makes no promises about title.
Breach of covenant
Breach of present covenants occurs at the time of conveyance. These covenants do not run with the land and cannot be enforced for subsequent grantees.
Breach of the future covenant occurs only upon interference with possession by third-party. Future covenants run with the land and can be enforced by subsequent grantees.
A breach of the covenants of season and right to convey arises when the grand four is not the owner of the described estate.
A breach of the covenant against encumbrances occurs when a property is encumbered by a mortgage lease easement a covenant not specified in the deed.
A breach of a future covenant occurs when the grantee has been sued or evicted buy someone with a valid superior interest. The grantor is not required to defend against third parties wrongful claim or eviction.
A buyer can recover for breach of the covenant against encumbrances the lesser of the difference in value between title with or without the defect or the cost of removing the encumbrance.
To recover for the covenants of enjoyment or warranty, the grantee must notify the grantor of the interference and the grantor must refused to defend the title. Recovery is the lesser of the purchase price or the cost of defending the defective title.
Recovery for covenants of season rights to convey further assurances is the lesser of the purchase price or cost of perfecting the title.
After acquired title
What a person who purports to transfer real property that he does not own subsequently becomes the owner of that property the after acquired title doctrine provides that title to the property automatically vests in transferee
Conveyance by will trust or operation of law
Real property can be conveyed by a will and by statutes that govern intestate succession.
Florida has an anti-lapse statutes to prevent gifts from lapsing if a devisee who is grandparent or descendent of a grandparent, of the testator is dead at the time of the will is executed; does not survive the testator; or is required by law or by the will to be treated as having predeceased the testator. Under the statute. A substitute gift is created in the devisees surviving descendents to take per stirpes
Florida has abolished the doctrine of exoneration of liens and requires any property encumbrance to be paid at the expense of the estate residue only when the will so specified
Conveyance by will trust or operation of law
Real property can be conveyed by a will and by statutes that govern intestate succession.
Florida has an anti-lapse statutes to prevent gifts from lapsing if a devisee who is grandparent or descendent of a grandparent, of the testator is dead at the time of the will is executed; does not survive the testator; or is required by law or by the will to be treated as having predeceased the testator. Under the statute. A substitute gift is created in the devisees surviving descendents to take per stirpes
Florida has abolished the doctrine of exoneration of liens and requires any property encumbrance to be paid at the expense of the estate residue only when the will so specifies
