Types of Deeds, Wills & Trusts, and Restraints on Alientation

Question 1

General Warranty Deed

Answer 1

Provides the greatest amount of title protection; the grantor warrants title against ALL defects, even if the grantor did not cause the defects.

There are 6 implied covenants in the general warranty deed (3 present and 3 future)

Three Present Covenants:
1) Covenant of Seisin: warrants that the deed describes the land in question

2) Covenant of the Right to Convey: warrants that the grantor (seller) has range right to convey the property

3) Covenant Against Encumbrances: warrants that there are no undisclosed encumbrances on the property that could limit its value

Three Future Covenants:
1) Covenant of Quiet Enjoyment: grantor promises that there grantee’s possession will not be disturbed by a third-party claim

2) Covenant of Warranty: grantor promises to defend against future claims of title by a third party

3) Covenant of Further Assurances: grantor promises top fix future title problems

Question 2

Special Warranty Deed

Answer 2

The grantor warrants against defects only caused by the grantor.

This type of deed provides a lesser amount t of title protection than a general warranty deed.

It includes the same six covenants as a general warranty deed, but they only apply to the acts (or omissions) of the grantor.

Question 3

Quitclaim Deed

Answer 3

The grantor makes no warranties as to the health of the title.

This type of deed offers the least amount of title protection.

Often used in tax sales and intra-family disputes (eg, divorces).

Question 4

Breach of Present Covenants

Answer 4

Breach of the present covenants occurs at the conveyance

Remedies = damages

Question 5

Breach of Future Covenants

Answer 5

Breach of the future covenants occurs after the conveyance, once there is interference with possession

Remedies = damages

Question 6

Wills

Answer 6

Real property can be transferred by devise; the guiding principle in the interpretation of wills is the testator’s intent.

Question 7

Escheat

Answer 7

If a descendent dies without a will and without heirs, the decedent’s property goes to the state.

Question 8

Ademption

Answer 8

A devise of property that fails (or adeems) because it is not in the testator’s estate at death.

Basic Rule: the gift fails and the intended recipient t gets nothing

Satisfaction: if the testator gives the intended beneficiary the promised gift during life, then the beneficiary keeps the gift (ademption by satisfaction)

Question 9

Lapse and Anti-Lapse

Answer 9

Lapse: the intended beneficiary predeceases the testator. Traditionally the gift fails (lapses) and woulds fall into the residuary gift.

Anti-Lapse: every state has an anti-lapse statute to prevent a gift from failing because an intended recipient predeceased the testator
- in most states, top qualify under an anti-lapse statute, the predeceasing beneficiary must be a relative of the testator who dies leaving issue (goes to their child)

Question 10

Trusts

Answer 10

A device for managing property with bifurcated ownership. One person (the trustee) owns property (legal title) for the benefit of another person (the beneficiary) who holds equitable title.

Question 11

Restraints on Alienation

Answer 11

A restriction on transferring property.

An absolute restraint on alienation is VOID.

A partial restraint is valid if it is for a limited timer and a reasonable purpose.

A restriction on the use of property its generally permissible (eg, covenants).

If a restraint is valid, any attempt to alienate the property will be null and void.

If the restraint is invalid, the restraint is rejected and the property can be alienated in violation of the restraint.