Transfer of Title to Real Property Flashcards
testate
with a valid will, property may transfer to others
intestate
without a will, property descends to heirs
testator
author of the will
codicil
amendment or addition to a will
bequest
personal property transferred through a will (left to a legatee)
holographic will
hand written (may or may not be found valid)
nuncupative will
given on one’s deathbed, normally oral (may or may not be found valid)
Law of Situs
Real Property is distributed according to the laws of the state in which the property is located
Law of Domicile
Personal property is distributed according to the laws of the state in which the deceased held legal residence
Statutory Dedication
an owner transfers private property to the state
Adverse Possession (acquire title)
Actual, open and notorious, so as to constitute reasonable notice to the owner.
Exclusive and hostile, meaning without the owner’s permission.
Uninterrupted and continuous for the time prescribed by state law (18 years in Colorado).
Adverse Possession (prevented by)
Granting the trespasser a lease to possess the property for a limited time.
Action for eviction prior to the time requirement being met.
Tacking
consecutive occupation of the property by a successor in interest (heir) may allow adding the two periods together to meet the continuous use requirement.
Color of Title
if a person believes she holds a valid deed (when in fact it has some defect) and acts “in good faith” for a period of 7 years, that owner may secure good title.
Elements of a Deed
Written Instrument Date Named parties (Grantor and Grantee) Consideration (or recital thereof) Words of Conveyance (Habendum clause) Legal Description Exceptions and Restrictions Warranties and Covenants - convey all of the grantor’s interest. Signature of the Grantor Delivery and Acceptance - intent of the grantor. Acknowledgment Recording
Proof other than a Deed
A policy of title insurance;
An abstract and opinion;
A Torrens certificate.
Marketable Title
good, clear and reasonably free from risk of litigation over defects other than any specified in the sales contract.
cloud
a defect that turns up in the title commitment, but was not identified in the sales contract
Patent defect
in title is one that is obvious and can be seen by a knowledgeable person
Latent defect
title is one that is not obvious, and could not be identified even by a knowledgeable person
Owner’s Title Policy
Issued about 4 to 6 weeks after closing.
Will protect the insured against losses arising from title defects (hidden risks), like forged documents.
Does not protect against anything not recorded or taxes and assessments not yet due
Mortgagee’s Title Policy
Insurance coverage is equal to the amount of the loan; it reduces as the loan is paid down over time.
Normally paid by buyer; usually a small charge if purchased through the same title insurance company.
Stays in effect as long as the loan remains on the property, regardless of successive owners.
Abstract and Opinion
The abstract must be certified to date of sale.
An attorney’s letter of opinion must support the certified abstract to create legal evidence of merchantable title.
An Abstract and Opinion together do constitute legal evidence of title but do not protect against forged documents or anything that has not been recorded.
Torrens Certificate
The initial use of the Torrens system is optional, but once property is registered, subsequent transfers must follow the same registration procedures.
For several reasons, most mortgagees require title insurance even for Torrens-registered titles.
Land held under Torrens registration is not subject to claims of adverse possession.
