Transfer of Property Flashcards
alienation of title
any loss of ownership. An involuntary alienation is a forced loss of ownership (for example, a tax foreclosure). Contrast with a voluntary alienation (e.g. a real estate sale).
municipal lien certificate
which creates a public record that the bank is the first lienholder on the property in the event of foreclosure.
registry of deeds
provide a public record of the transfer (public records are available online in Massachusetts at www.masslandrecords.com).
Deeds must always meet the following minimum criteria
- They must be written (per the Statute of Frauds)
- The grantor must be legally competent
- They must name the grantee
- Involve the exchange of consideration (evidenced by a recital of consideration)
- Include a complete and accurate description of the land (“full legal description”)
- Include a granting clause (usually just the words “grant to”)
- Have delivery and acceptance
Land Descriptions
Full Legal Description of the land is the property’s address, a land description, and a title reference (reference to any public records for the property). Land descriptions are drafted by a licensed surveyor who performs a survey of the land.
Survey sketch shows the location and dimension of the land itself.
Spot survey shows the location and dimension of the land, and the location, size, and shape of the improvements on the lot.
Note that not all surveys include a warranty or surveyor liability. An improvement location certificate (ILC) is not a full survey.
Unit of measurements for surveys
1 link: 7.92 inches (call it 8 inches for memorization) 1 foot: 12 inches 1 yard: 3 feet 1 rod: 16 feet 6 inches 1 chain: 66 feet 1 furlong: 660 feet 1 mile: 5,280 feet 1 acre: 43,560 square feet (1 chain x 1 furlong) 1 square mile: 640 acres
metes and bounds survey
is the most common land description you will encounter: it outlines the lot lines (boundaries of the property) by describing directions (bounds) and distances (metes) between monuments (markers, like concrete posts) or benchmarks (permanent markers established throughout the United States), starting and ending at a point of beginning. A datum is a point used to measure elevations, usually defined at the mean sea level of New York Harbor, or some local official datum.
Township
The squares created by the intersections of these township lines and range lines. A township is 6 miles by 6 miles, and contains 36 square miles (23,040 acres)
four basic types of deeds
General Warranty Deeds (or Warranty Deeds) require the grantor to accept liability for any claims made against title to the property, even if the claim originated prior to the grantor’s term of ownership. The warranties provided by a General Warranty Deed are the covenant of seisin or seizin (the grantor warrants they own, and may convey, the property), covenant against encumbrances (the grantor warrants the property is unencumbered), covenant of further assurances (the grantor promises to obtain and deliver any instruments necessary to provide good title), covenant of quiet enjoyment (the grantor guarantees that the grantee’s title will be good against any court actions), and the covenant of warranty forever (the grantor promises to compensate the grantee for any losses associated with claims against title any time in the future).
Special Warranty Deeds state only that the grantor received title to the property, and that they did not cause any issues with title. This means that the grantor is only liable for claims against title if those claims originated from their term of ownership. The grantor is not liable for issues that they did not cause.
Bargain and Sale Deeds are deeds where the grantor states that they have the right to convey ownership of the property, even if they may not own it, and provides no warranties about ownership. They are often used in tax foreclosures.
Quitclaim Deeds state that the grantor conveys only whatever interest the grantor has at the time of conveyance. No warranties are made, which means that the grantor is not liable for any claims against title. Quitclaim deeds are often used in bank foreclosures, and can also be used to correct mistakes in the public record (e.g. a misspelled name on a previous deed).
Special Deeds
Deeds of Trust (or Trust Deeds), which are used to transfer interests in real estate into trusts. They are used in some states in lieu of a mortgage.
Reconveyance Deeds, which trustees use to return property to trustors (e.g. remove property form a trust).
Trustee’s Deeds, which are deeds executed by a trustee to convey real estate to anyone besides the trustor.
Deeds executed pursuant to a court order, which are any deeds issued as a result of the order of a will or a court.
Title Insurance
Title insurance is an insurance policy for protection against undiscoverable title defects. Title insurance does not cover ownership issues that could be discovered by looking at the publically records for a property, such as zoning issues, or publically recorded restrictions. The coverage provided by title insurance can vary, but generally it is either standard coverage or extended coverage (sometimes called an ALTA policy, or American Land Title Association policy). Standard coverage will cover basic title issues such as forged deeds, incompetent parties, delivery issues, or improper marital settlements. Extended coverage usually adds tenants and squatters, survey issues, unrecorded easements and liens, and mineral/water right claims.
The Torrens System (Land Court)
way of dealing with conflicts about property ownership. If petitioned (in an action to quiet title), Land Court will perform a title search and hold hearings to determine who owns a piece of property. Once the Land Court makes its decision about who owns the property, it issues its decision as a Certificate of Title, which registers the land. If land is registered, it is owned by the person named on the Certificate of Title, regardless of any other documents concerning the property. Transfers of registered land must be recorded; any transfer of registered land is not valid until a new Certificate is issued in the name of the new owner.
Will vocabulary
o Testate- have a will
o Intestate- don’t have a will
o Probate= legal system by which your property will be distributed to your heirs
Testate= executor named in your will who will carry out your last wishes
Intestate= court appointed administrator who will distribute your belongings in accordance to the laws of descent and distribution
Pass away intestate without heirs, property escheats to the state
o Devising= transferring real property to heirs
o Bequeathing= transferring personal property to heirs
o Codicil= amendment to a will
o Holographic= handwritten will
o Nuncupative Will= verbal will (usually unenforceable)
o Formal Will= written, witnessed will
o Et con= with husband, et ux= with wife, et al= with others
Adverse possession
is the legal term for squatter’s rights. If a piece of property is used openly and without permission for more than 20 years, the squatter may take legal title to the property. You can remember the rules about adverse possession with the acronym O.N.C.H.A.: Open, Notorious, Continuous, Hostile, and Adverse. Squatter’s rights do not apply to public land, or registered land.
Dedication
is the donation of property rights (ownership, rights of way, etc.) permanently or temporarily for the public use. E.g. the donation of a piece of property for use as a park.
