Titles/ Transfer Flashcards
Notice Juris
Recording acts are used to determine priority among competing property interests. In a notice jurisdiction, a bona fide purchaser (BFP) has priority over an earlier property interest if the BFP took without notice of that interest. There are three types of notice:
**Actual **– a buyer has direct knowledge of a prior interest in land
Record – a document showing a prior interest is properly recorded in the land records and appears in the buyer’s chain of title
**Inquiry **– a buyer knows, or should know, of circumstances that would prompt a reasonable person to investigate (eg, visible use of the property, reference to unrecorded transaction in recorded instrument)
Restraints on alienation
Direct restraints on alienation (eg, prohibitions on some or all types of transfers) are valid only if they are deemed reasonable.
** Total restraints on the alienability of fee simple estates are always unreasonable.
Indirect restraints are VALID unless lacking rational justification
Adverse Possession
To acquire title to another’s land by adverse possession, a person’s possession of the land must be: OCEAN
Open and notorious – apparent or visible to a reasonable owner
Continuous – uninterrupted for the statutory period
Exclusive – not shared with the owner
Actual – physical presence on the portion of the land to be adversely possessed
Non-permissive – hostile and adverse to the owner
IF the surface & mineral estates have NOT been severed
==> AP aquires title to both
IF the surface & mineral estates have been severed
==> AP will only aquire title to estate actually possessed
AP can establish possession of mineral estate via mining or drilling
Donee x title transfers
Donee status is relevant in that a donee cannot claim title under a recording act bc they are a not a BFP (they did not purchase)
==> so donee status bars them from seeking recovery via recording alls (notice, race & race-notice all only pertain to BFPs)
Shelter Rule: a person who receives a property interest from a BFP is entitled to the same protection under the recording act as the BFP.
==> so donee can b protected via recording act IF they received it via a BFP/ if they r sheltered by a BFP
What happens when a tenancy in common is deeded to a nonexistent (eg, deceased) co-tenant
When a tenancy in common is deeded to a nonexistent (eg, deceased) co-tenant, the deed is void as to that co-tenant and the **grantor retains the co-tenant’s interest. **
As a result, a tenancy in common forms between the grantor and the other co-tenant(s) named in the deed.
Deed Requirements
- is in writing and signed by the grantor
- unambiguously identifies the grantor and grantee
- unambiguously describes the land
- includes words of transfer.
Time for performance is not an essential term. Instead, courts will infer that performance within a reasonable time was intended.
Insurance
Both owner’s and lender’s title insurance policies protect insureds—named persons covered by the policy—from undisclosed title defects by **requiring the insurer to indemnify (i.e., compensate) the insureds for any resulting losses. ** This means that an insurer is only responsible for title defects that:
1. are not disclosed in the insurance policy
and
2. affect the named insureds .
An owner’s title insurance policy does remain in effect so long as the named insured (or the named insured’s heirs) owns the property or conveys it by warranty deed.
Covenant Against Encumbrances
A covenant against encumbrances promises that **there are no outstanding claims on, or interests in, the property ** (e.g., mortgages, tax liens) other than those disclosed in the deed.
Deed delivered through death escrow
A **deed effectively transfers ownership of a landowner’s (grantor’s) real property to another (grantee) when it is delivered to, and accepted by, the grantee. **
To deliver a deed through a valid death escrow, the grantor must:
1. give the deed to an escrow agent (eg, attorney) with instructions to transfer it to the grantee upon the grantor’s death
and
2. relinquish the right to take back the deed (ie, by placing the deed beyond his/her control).
Since most death escrows are gratuitous, a contract (written or oral) is not required.
Delivery is presumed when a deed is given to the grantee directly. But when the deed is given to an escrow agent, there is no delivery unless the grantor relinquishes his/her right to recover it
A gratuitous death escrow becomes irrevocable once the grantor delivers the deed—not when the grantee dies
Doctrine of ademption
Causes a devise to fail in two circumstances:
**Ademption by extinction **– when the specifically devised asset is not owned by the testator (or is destroyed or fundamentally changed) at the time of death
**Ademption by satisfaction **– when the devisee received the devised asset (or some other asset intended to satisfy the devise) during the testator’s life
As a result, the devisee takes nothing unless the will expressly states otherwise.
Doctrine of Lapse
Causes any type of devise to fail when the devisee dies before the testator.
Scope of Recording Acts
Relate to all real property interests
deed reqs
A valid deed
(1) is in writing and signed by the grantor,
(2) unambiguously identifies the grantor and grantee,
(3) unambiguously describes the land, and
(4) includes words of transfer.
N: The identity of the parties and the land must be ascertainable with reasonable certainty, but extrinsic evidence can be used to resolve ambiguities.
(think named! Think.. any qs would arise?)
Action to Quiet Title
An action to quiet title is a lawsuit that establishes who is the legal owner of a property by resolving conflicting claims. It can also resolve property boundary disputes and technical title defects
Duty to disclose
Residential Sales
Sellers of residential property have a duty to disclose known material defects that the buyer cannot reasonably discover.
==> However, the seller can disclaim this duty (eg, with an “as is” clause) so long as the seller has not fraudulently misrepresented or concealed the condition of the property
Commercial Sales
No duty to disclose property defects unless otherwise provided
