Outline
Conveyance |
I. Valid Conveyance (Any Interest) |
Document + Delivery |
A. Valid Document |
(Deed, Note, etc...) |
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Statute of Frauds |
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Execution |
B. Delivery |
Intent - to make a present transfer |
II. Interest |
Interest in Land |
A. Interest Held (By Grantor) |
B. Interest Conveyed (To Grantee) |
III. Recording Acts (Other statutes, if given) |
Q: Who is protected? |
A. Notice |
B. Race |
C. Race-Notice |
Items to Remember
Adverse Possession |
Contract Law |
Statute of Frauds |
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Implied promises with every land sale |
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a. Marketable Title |
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b. Chain of Title |
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Warranties |
Conveyance |
Time |
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Delivery |
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Deeds (Legal transfer doc w/sigs) |
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Title (Concept/Abstract - Right to Use/Own) |
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Closing |
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Recording Acts |
Bona Fide Purchaser for Value |
Mortgages |
Adverse Possession
Three Elements |
Physical, Mental, Time |
Physical Element (PE): Exclusive |
(depending on the customs of the land) |
PE: Actually, Open and Notorious |
(visible) |
PE: Continuous and Exclusively |
(Can use tacking approach) |
Mental Element (ME): Hostile Intent |
Taking from the true owner |
ME: Color of Title |
(Faulty paperwork - should convey title but does not) |
Time Element (TE): For a period of time set by the statute of limitations |
20+ years in most |
TE: Tacking allowed |
APs passing bad title |
CA ONLY: Pay taxes |
CA must pay property taxes in addition to possession |
AP barred if True Owner disabled |
Chain of Title
Chain of Title |
Historic Record of Ownership and transfers |
1. Wild Deed |
Improperly Recorded Deed (no recording) |
2. Estoppel by Deed |
Buyer buys from Seller but seller doesn't own. When seller acquires they areprevente from denying sale |
3. Shelter Rule |
Buyer, not a BFP, can be protected by a recording system if Seller was a BFP |
Land Sale Contracts
Problems In Land Sale Contract |
X----Closing----Y |
Pre Close |
X----Closing |
Post Close |
Closing----Y |
Statute of Frauds |
Everything must be in writing |
Equitable Conversion (Pre) |
Bifurcation of Title |
Equitable Title |
Created at X - Transfer to Buyer |
Legal Title |
Created at X - Transfer to Seller |
Date of Closing |
Must provide marketable title |
Marketable Title |
Reasonably free from defects |
Merger Doctrine |
Land Sale Contract merges into Deed @ Closing |
Covenants of Title / Warranties
Deed Types |
Quit Claim - As is |
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Warranty Deed (General Warranty) |
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Special Warranty Deed (Created by Statute) |
PRESENT Covenants of Title (General) |
Seisin - Promise grantor owns property to give. |
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Right to Convey - Promise they can give property |
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No Encumbrances - Promise there are no unknown encumbrances |
FUTURE Covenants of Title (General) |
Quiet Enjoyment - No 3rd party will interfere |
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Warranty - No other parties other than grantor/ee |
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Further Assurances - Promise from Grantor to protect titles |
SPECIAL WARRANTY |
Protect only from Grantor, not before |
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Execution: Written as per SoF |
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Granting Clause |
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i. Delivery |
CLOSING |
Buyer Pays, Seller delivers Deed, Contract Done, Deed now Effective |
Remedies After Closing
Traditional Rule |
Caveat Emptor |
Modern Approach |
Implied Warranties (Fitness, Quality, Disclaimer) |
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Duty of Disclosure |
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Tortious (Duty, breach, causation, and damages) |
Covenants and Equitable Servitude
Real Covenant (Monetary) |
Touch and Concern |
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Intent |
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Notice (Servient Side Only) |
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Privity (Horizontal & Vertical( |
Horizontal Privity |
Mortgagor / Mortgagee |
Vertical Privity |
Transfer of Ownership |
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Servient Side - ALL Must transfer with land |
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Leases and others don't establish privity |
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Dominant Side - Any transfer of Interest |
*Equitable Servitude (Non Monitary) |
Touch and Concern |
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Intent |
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Notice |
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NO PRIVITY NEEDED |
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Mortgages and Security Devices
Land Security Devices |
Mortgage - Enforceable Interest in Land |
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Note - Promissory note / personal obligation of debtor |
Deed of Trust |
Trust relationship between debtor/lendor |
Deed Absolute |
Transfer of deed to lendor |
Deed
Valid Deed |
Written Document |
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Contents |
Needed for Deed (Contents) |
Signature of Grantor |
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Words Indicating Intent to convey |
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Identification of Grantor & ee |
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Adequate description of land |
Deed Delivery and Acceptance (Conveyance)
Delivery |
Delivery is a state of Mind |
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Intent to transfer from grantor to ee |
Delivery Types |
Grantor gives to Grantee |
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Grantor retains deed |
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Grantor gives to 3rd party (Escrow) |
Death Escrow |
Majority will uphold |
Acceptance |
General = Acceptance is Presumed |
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Grantee can refuse delivery |
Recording Acts
Bona Fide Purchaser (PFB) |
Pay value for property |
Race Statute |
First person to record wins (No BFP Requirement) |
Notice Statute |
Subsequent BFP will prevail |
Race-Notice |
Subsequent BFP will prevail over previous grantees if BFP records first |
NOTICE DEFINITION |
Actual and Constructive Notice |
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ACTUAL - second buyer knew about sale to first buyer |
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CONSTRUCTIVE - Someone is considered to know if they didn't actually know. |
Constructive Notice |
Inquiry Notice - 2nd didn't know sale of the 1st but could have reasonably discovered |
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Record - 2nd buyer would have seen it recorded before the second |
Creditor Remedies
Options |
In personam = Personal Suit |
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In rem = Property Suit |
Foreclosure Process |
Proceeds of Sale |
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Cost of Sale |
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Distribution to Mortgagee |
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Deficiency Judgement if not enough money |
Debtor Remedies
Redemption (2 Types) |
Equitable Right of Redemption (Pay off debt) |
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Statutory Right (Given time after foreclosure to pay) |
Transfer of Mortgage Property |
Mortgage Runs with Land (Unless sold to BFP) |
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Personal Liability (Suit is in personam) |
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Recording Systems
Tract Index |
Parcel Index (Paged for Parcels) |
Grantor-Grantee Index |
Chronological listing of each transaction in different Grantor / Grantee Books |
Land Use (Easements, Profits, Licenses)
Interest in Land |
Right to use someone's else land for specific purpose |
Use of Easement |
Express Language |
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Reasonable Use |
Easement |
Most Common |
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Non-possessory INTEREST that grants holder use of another's land |
Servient Estate |
Property owner were easement exists |
Dominant Estate |
Land that benefits from easement |
Easement Appurtenant |
Landlocked Land needs access across another |
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Always a servient estate |
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Always a dominant estate |
Appurtenant Transfer |
Appurtenant - Travels with dominant estate |
Easement in Gross |
Benefited an entity (Power Company) |
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Always a servient |
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Never a dominant |
In Gross Transfer |
Will only change if owner assigns |
Profits |
Non-possessory INTERESTS that allows holder to remove something from another's land |
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e.g. - take water from spring |
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Must enter into agreement |
License |
Special persmission to do something on or with another's property |
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e.g. - Sporting event, Movies, Museum, enter land for specific purpose |
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General Rule - FREELY REVOCABLE |
Creating Easements, Profits, Licenses
Easement Creation |
Expressly |
Writing sufficient for Statute of Frauds |
Impliedly (quasi-easement) |
Implied by prior use (Applied Grant, Applied Reservation) |
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Common Ownership From Original Owner |
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Necessity |
Necessity |
Common Ownership |
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Necessity |
Prescription |
Adverse Possession on Easement - Continual Use |
Profits |
Expressly |
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Prescription |
License |
Orally |
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Expressly |
Covenants and Equitable Servitude
Termination |
Merger of Ownership |
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Written Release |
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Abandonment |
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Estoppel |
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Abandonment |
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Agreement |
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Changed Circumstances |
Implied Reciprocal Servitude |
Common Scheme or plan for development |
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Current Owner of the parel where restriction is to be implied took notice |
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