Types of Legal Titles

Question 1

Ways to Acquire Legal Title

Answer 1

• Transfer by Deed
• Adverse Possession
• Operation of Law and Will

Question 2

Three Requirements for a Valid Deed Conveyance

Answer 2

Include:

• donative intent
• delivery
• acceptance.

Question 3

Donative Intent

Answer 3

The grantor must intend to transfer an interest immediately to the grantee, if the grantor intends the deed to take effect only on the death of the grantor, formalities of a will must be observed.

Question 4

Delivery of the Deed

Answer 4

Delivery exists if the grantor has the mental intent to transfer the property to the grantee (not about physical delivery).

Question 5

Delivery: Grantor Gives Deed to Grantee

Answer 5

There is a rebuttable presumption of delivery that may be rebutted by extrinsic evidence that shows the grantor did not intend a present transfer.

Question 6

Rebuttable Presumption of Delivery (Evidence of Oral Conditions)

Answer 6

Oral conditions are not allowed in the majority of jurisdictions. Therefore, the presumption of delivery will control without the oral condition.

Question 7

Delivery: Grantor Retains the Deed

Answer 7

There is a rebuttable presumption of no delivery. May be rebutted by extrinsic evidence that shows a delivery was intended.

Question 8

Returning a Deed to the Grantor

Answer 8

Once a deed has been validly delivered and accepted, title can only be returned to the original grantor by way of a new deed and acceptance (e.g. something like tearing up the original deed is insufficient).

Question 9

Delivery: Grantor Gives Deed in Escrow

Answer 9

Conveyance to the grantee relates back to the date the grantor gave the deed to the escrow agent. Is important because the delivery might have a condition.

Question 10

Escrow Conditions

Answer 10

The general rule is that the more conditions the grantor places on the conveyance, the more likely the conditioned conveyance will fail (idea is that this negates intent).

Question 11

Death Escrow

Answer 11

When the grantor gives the deed to the escrow agent and says, “give this deed to the grantee when I die.” Courts will interpret this as the grantor making a present transfer of a life estate to himself and giving a remainder to the grantee.

Question 12

Grantor’s Reservation in Escrow

Answer 12

If the grantor expressly retains the right to reclaim the deed from the third party, there is no delivery (therefore, no transfer of title).

Question 13

Acceptance of the Deed

Answer 13

Acceptance is presumed if the transfer is beneficial to the grantee. If the grantee refuses to accept, there is no transfer of property.

Question 14

SOF for Deeds

Answer 14

There are four written requirements of a valid deed:

• sufficient identification of the parties
• words indicating an intent to make a present transfer
• sufficient description of the property (identifiable parcel (a description of a boundary tract is inadequate))
• grantor’s signature

Question 15

Deed Requirements: Existent Grantees

Answer 15

A deed to a nonexistent grantee (e.g. a corporation that has not fully formed) is void.

Question 16

Adverse Possession

Answer 16

Legally sanctioned stealing of title to land away from the rightful owner (because the law favors productive use of land). Three major components: physical, mental, and time.

Question 17

Physical Component of AP

Answer 17

Adverse possession must be actual, open and notorious, and exclusive, in order to put true owner on reasonable notice of a cause of action. A minority of jurisdictions also require the adverse possessor to pay taxes on the property.

Question 18

AP: Open and Notorious

Answer 18

Possession must be obvious to anyone who bothers to look, so as to put the true owner on notice that a trespasser is in possession.

Question 19

AP: Exclusive

Answer 19

The adverse possessor does not share control of the property with anyone else (unless in privity with himself). Two individuals can actually adversely possess property together and form a co-tenancy (there would be privity of estate between them).

Question 20

Mental Component of AP

Answer 20

Adverse possession must be hostile (adverse possessor has to occupy the land with sufficiently hostile intent).

Question 21

AP: Hostile

Answer 21

This requirement involves claiming the land as your own: Two ways to satisfy this requirement:

• Claim of right (claiming land as your own)
• Color of title (adverse possessor believes he or she has good title to the property under a deed but does not).

Question 22

AP: Hostile Intent (Permission)

Answer 22

Permission to be on the land from the lawful owner destroys hostile intent. But mere knowledge of the adverse possessor does not imply permission.

Question 23

AP: Co-Tenancy

Answer 23

The only way adverse possession can be done by a co-tenant is through an ouster.

Question 24

AP: Hostile Intent (Encroachment)

Answer 24

• (Majority Rule)- a mistaken encroachment is sufficient hostile intent.
• (Minority Rule)- hostile intent only exists if the person who was doing the encroaching intended to encroach.

Question 25

Time Component of AP

Answer 25

Adverse possession must be continuous for the statutory period. CL period is 20 years, it is otherwise determined by statute.

Question 26

What is Continuous?

Answer 26

Continuous is a question of fact based on the nature of the land and the use to which is being put.

Question 27

AP: Continuous (Tacking)

Answer 27

Combines adverse possessors periods of possession in order to meet the continuous requirement if there is a transfer from one adverse possessor to another (either a will or deed would be sufficient).

Question 28

Scope of Adverse Possession

Answer 28

Generally, once the claim has ripened, the adverse possessor can only claim that portion of the land actually occupied.

Question 29

Exception to the Scope of Adverse Possession

Answer 29

When an adverse possessor enters under color of title and occupies a significant portion of the parcel described in the flawed deed. If the requirements are satisfied the adverse possessor can get the entire parcel described in the deed. Also referred to as constructive adverse possession.

Question 30

Future Interests

Answer 30

Future interests cannot be obtained by the adverse possessor until they become presently possessory. (E.g. if one adversely possesses a life tenant, they will only get a life estate, they will not get the remainder interest).

Question 31

True Owners Rights Against Adverse Possessor

Answer 31

Before the SOL clock has run, the adverse possessor can eject the true owner and collect damages up to the point the statutory period has run.

Question 32

Rights of the Adverse Possessor

Answer 32

(Before the SOL runs)- the adverse possessor is considered to be the owner against the entire world except the true owner

-(After SOL runs)- the adverse possessor is the true owner from the date they entered the land (relates back)

Question 33

Adverse Possessors v. Easements

Answer 33

Remember that adverse possession and prescriptive easements are different things. Therefore, if one adversely possesses property that it is subject to an easement they will still be subject to the easement.

Question 34

Transfer by Operation of Law and Will

Answer 34

When seller dies after executing a sales K, but before closing, the decedent’s personal rep must complete the transaction. The $ received goes to the beneficiary who inherits PP.

Question 35

AP SOL: What if True Owners Are Disabled?

Answer 35

A disability (infancy, incompetence, imprisonment) can suspend or toll the running of the SOL if the disability exists at the time the adverse possession starts. But the SOL clock will begin to run once the disability ends.

Question 36

Inheriting RP: Ademption

Answer 36

If a gift of realty described specifically in a will is not in the testator’s estate at the time of death, the gift is adeemed by extinction, and the beneficiary takes nothing.

-If a gift of real estate was made during the testator’s lifetime, but the specific property is still mentioned in the will, the gift is adeemed by satisfaction because the beneficiary has already received it.

Question 37

Ademption: Devising Part of Realty

Answer 37

If a gift of reat estate was made during the testator’s lifetime, but a general devise is in the will (e.g. “one-third of my estate”), then the real estate already received will not be adeemed unless:

• will provides for deducting the gift
• testator, in writing, declared that the gift was part of the general devise; or
• devisee, in writing acknowledged that the gift was part of the general devise.

Question 38

Exoneration (Liens and Mortgages v. Inherited Property)

Answer 38

The majority rule is that inherited RP is taken subject to all outstanding liens and mortgages

Question 39

Lapse (When a Beneficiary Dies Before Grantor)

Answer 39

• CL- if a beneficiary predeceases a decedent, any gift to the beneficiary fails
• ML- many states now have anti-lapse statutes (beneficiary’s heirs “stand in his shoes” and get the bequest).