Real Property - Titles

Question 1

What is adverse possession?

Answer 1

Adverse possession allows a trespasser in unlawful possession of land owned by another to acquire title to that land if their possession is:

1. Continuous for the statutory period;
2. open and notorious;
3. exclusive;

AND

4. hostile

Question 2

As to the continuous requirement, will seasonal or infrequent use suffice?

Answer 2

Seasonal or infrequent use will suffice if the use is consistent with the type of property being possessed.

Question 3

What is tacking?

Answer 3

Tacking. An adverse possessor can tack on the time of possession of a prior adverse possessor to meet the statutory period requirement if the adverse possessors are in privity with one another (i.e., the transfer of land was voluntarily agreed upon).

Question 4

As to the contin. requirement, what if the owner had a disability?

Answer 4

Disabilities. The statutory period will not run against a true owner who had a disability (e.g., insanity, imprisonment, etc.) at the time the adverse possession begun.

Question 5

What is required for the open and notorious element?

Answer 5

The adverse possessor must use the property as if they were a true owner (i.e., the trespasser’s possession of the property cannot be hidden from the true owner).

Question 6

What is required for the exclusivity element?

Answer 6

The adverse possessor cannot share possession of the property with the true owner.

Question 7

What is required for the hostile element?

Answer 7

The adverse possessor cannot have the true owner’s consent to possess or use the property (i.e., the possession must be adverse to the true owner’s interest).

Question 8

To be valid, a deed must…

Answer 8

A valid deed must:

1. Satisfy the statute of frauds (i.e., be in writing + signed by the grantor);
2. Identify the parties (i.e., the grantor and grantee);
3. Describe the property sufficiently;

AND

4. Be delivered and accepted.

Question 9

What is required for delivery?

Answer 9

PRESENT INTENT.

A deed is delivered when the grantor demonstrates a present intent to transfer the property (physical transfer of a deed is not required – present intent can be demonstrated orally). A deed is NOT delivered if the delivery is revocable (e.g., “I will transfer you this property in 3 weeks, unless I change my mind before then”). A grantor can make a valid delivery to an agent (e.g., a grantor can deliver a deed to his attorney with clear instructions to deliver it to the grantee).

Question 10

What is required for acceptance?

Answer 10

Acceptance is generally presumed provided that the transfer is for value, unless the grantee explicitly rejects it.

Question 11

The execution requirement for a valid land conveyance is satisfied as long as

Answer 11

the deed is signed by the party to be charged (the seller or transferor).

Question 12

What is a general warranty deed?

Answer 12

General Warranty Deed. General warranty deeds provide the greatest amount of title protection. The grantor warrants title against all defects, EVEN IF the grantor did not cause the defects.

Question 13

What is a Special Warranty Deed?

Answer 13

. Special warranty deeds provide less title protection than general warranty deeds. The grantor warrants titles against defects caused by the grantor.

Question 14

What is a quitclaim deed?

Answer 14

Quitclaim Deed. Quitclaim deeds provide the least amount of title protection. The grantor makes no warranties as to the health of the title.

Question 15

How many implied covenants are contained in general and special warranty deeds?

Answer 15

Six.
Three present: seisin, right to convey, no encumbrances
Three future: quiet enjoyment, warranty, further assurances

Question 16

Covenant of Seisin.

Answer 16

Warrants that the deed describes the land in question and that the grantor is the rightful owner.

Question 17

Covenant of the Right to Convey.

Answer 17

Warrants that the grantor has the right to convey the property.

Question 18

Covenant Against Encumbrances.

Answer 18

Warrants that there are no undisclosed encumbrances on the property that could limit its value (e.g., easements, mortgages, etc.).

Question 19

Covenant of Quiet Enjoyment.

Answer 19

Grantor promises to defend against future
challenges to the grantee’s title to the property.

Question 20

Covenant of Warranty.

Answer 20

Grantor promises to defend against future
developments that extend into the grantee’s property boundary.

Question 21

Covenant of Further Assurances.

Answer 21

Grantor promises to do what is reasonably necessary to cure future problems with title.

Question 22

What is the first in time, right in right rule?

Answer 22

Under the common law, if a grantor transfers the same piece of property to multiple grantees, the first grantee to receive the deed acquires rightful title. In the absence of a recording statute, the common law rule controls.

Question 23

There are three types of notice:

Answer 23

Actual

Constructive

Inquiry

Question 24

Actual Notice.

Answer 24

A subsequent purchaser has actual notice when he has personal knowledge of a prior interest.

Question 25

Constructive Notice.

Answer 25

A subsequent purchaser is on constructive notice when the prior interest is recorded (i.e., validly recording a deed by publicly registering it automatically puts the entire public on notice).

Question 26

What is a wild deed? What is its effect?

Answer 26

If a deed is not recorded properly, it is considered a wild deed.

A wild deed does NOT put subsequent purchasers on constructive notice.

Question 27

Inquiry Notice.

Answer 27

A subsequent purchaser has inquiry notice when a reasonable investigation would have revealed the existence of prior claims (e.g., someone is clearly living on the property in question).

Question 28

Race Statutes.

Answer 28

The first grantee to record acquires title, regardless of notice.

Question 29

Notice Statutes.

Answer 29

A subsequent purchaser acquires title if the purchase is made
WITHOUT notice of a prior unrecorded conveyance.

Question 30

Race-Notice Statutes.

Answer 30

A subsequent purchaser acquires title if:

1. The purchase is made WITHOUT notice of a prior unrecorded conveyance;

AND

2. The subsequent purchaser records first.

Question 31

What is the Shelter Rule?

Answer 31

A person who is transferred property from a bona fide purchaser (BFP) has the same recording statute protections as the BFP (i.e., the transferee “takes shelter” in the status of the BFP transferor).

Question 32

What if a bona fide purchaser?

Answer 32

A BFP is a person who pays valuable consideration (i.e., not an heir, devisee, or donee) for real property without notice of a prior interest.