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Real Property > Title - Adv. Poss. & Valid Deed Delivery > Flashcards

Title - Adv. Poss. & Valid Deed Delivery Flashcards

1
Q

What is adverse Possession ?

A

Ownership transferred to a person who exercises exclusive physical poss. of that prop. for a certain amount of time. For poss. to ripen into title, poss. must be:

  1. Continuous
  2. Actual
  3. Open & Notorious
  4. Hostile and
  5. Exclusive
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2
Q

Adverse Possession - Continuous

A

Poss. must be continuous & uninterrupted for a specific period (statutory pd.)

  • Seasonal or infrequent use may be enough if it’s consistent with the type of prop. that is being possessed
  • Default time pd. = 20 years (common law)
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3
Q

Adverse Possession - Continuous - Tacking

A

Combines 2 AP periods to meet the statutory pd. requirement, so long as there is privity b/w successive possessors

  • there has been a transfer of int. in prop. from one AP to another
  • Privity exists if the possessor takes by any non-hostile means
  • Periods of poss. must pass directly from one poss. to the next without gaps
  • Can’t tack when there is an actual, wrongful exclusion of a party entitled to poss. (ouster)
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4
Q

Adverse Possession - Actual, Open, & Notorious

A

Actual entry giving exclusive poss. that is open/notorious such that reas. true owner would become aware of the claim

  • Uses that are hidden are insufficient to satisfy the requirement
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5
Q

Adverse Possesion - Hostile

A
  1. Must possess the land without the owner’s permission AND
  2. with the intent to claim land against claims of others
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6
Q

Adverse Possession - Exclusive

A
  • Possession can’t be shared with true owner
  • two or more ppl can adversely possess as TIC
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7
Q

When can co-tenants adversely possess against another ?

A

If one co-tenant ousts another for the statutory period

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8
Q

Constructive Adverse Possession

A

If pers. enters prop. under color of title (facially valid will or deed) & actually possesses only a portion of the prop.

  • Constructive AP can give title to the whole
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9
Q

What is color of title ?

A

When someone believes their title is valid, but it’s not b/c of flaw in deed

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10
Q

What land rights does an AP get?

A

Whatever rights the owner has that he took them from

  • Any encumbrances on the land remain
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11
Q

What is the effect of a disability in regards to the statute of limitations for Adverse Possession?

A

Disability occurs when the owner is:

  1. An infant
  2. Mentally Incompetent
  3. A prisoner

It tolls the running of the SOL for adverse possession

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12
Q

Up until the time the AP pd. has run, what right does the true owner maintain?

A

The owner can have the AP ejected off the land & sue for damages

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13
Q

What occurs at the Closing ?

A

Deed Becomes the Operative Contract - The deed transfers legal title to some interest in prop. from the seller to the buyer

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14
Q

What are the requirements for the deed to become the operative Contract?

A
  1. Lawful Execution of the deed
  2. Delivery of the Deed
  3. Acceptance by Grantee
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15
Q

What are the elements of a lawfully executed deed?

A
  1. Writing Required - deed must be in writing
  2. Identify the parties
  3. Words of transfer - any words evidencing present intent to transfer
  4. Describe the prop. - sufficient description of prop req. but doesn’t need to be perfect (extrinsic eidence admiss.) AND
  5. Signed by the grantor
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16
Q

Delivery & Recording of a Deed

A
  1. Grantor demonstrates the intent to make a present transfer of the interest
  2. Grantee must accept the interest AND
  3. Tranfer of a real prop. int. must be evidenced by a writing (SOF)
  4. Grantee protects his prop. int against other claims by recording the deed
17
Q

Delivery of the Deed

A

Deed is not effective to transfer until it has been delivered by the grantor, Delivery Requires:

  • Words or conduct evidencing a grantor’s intention that the deed have some present operative effect
18
Q

Actual Delivery

A

Grantor physically or manually delivers the deed to grantee

  • Mail or use of an agent is ok
  • Creates rebuttable presumption that grantor presently intends that the property transfer to grantee
19
Q

Delivery by Escrow

A

Grantor delivers the deed to 3d party (escrow agent) with instructions to deliver the deed to the grantee when the conditions set forth by grantor are satisfied

  • Title will pass from escrow to grantee as soon as the conditions are satisfied
20
Q

Implied Delivery of Deed

A

Grantor has the present intent (words or actions) to make deed operative & to pass int. immed. to grantee

  • Phys. delivery of deed is not required
21
Q

Presumptions of Delivery

A

For delivery to be effective, grantor must relinquish absolute & unconditional control over the prop.

  • Handed to grantee
  • Acknowledged by Grantor b/f notary
  • Recorded
22
Q

Acceptance by Grantee

A

Grantee must accept deed within a reas. pd. of time

  • Most states - acceptance is presumed unless grantee specifically indicated intent not to accept the conveyance
  • Express rejection will defeat delivery
23
Q

Retention of the deed by the grantor

A

Intent to transfer is not presumed

  • Parol Rvidence is admiss. to est. if the grantor had the intent to make a present transfer of the prop. int.
24
Q

Transfer of Deed to Grantor’s Agent

A

When grantor transfers deed to her own agent

  • Treated as if grantor retained the deed
  • Until grantor’s agent delivers the deed to the grantee, grantor can demand that the agent idnore the instruction & return the deed to grantor
25
Q

Transfer of Deed to Grantee’s Agent

A

Transfer is Treated as if it had been made to the grantee herself

26
Q

If grantor retains the deed after writing it, is there a delivery?

A

There’s a rebuttable presumption that the grantor presently intends not to transfer the prop. to the grantee

  • Can be rebutted by Parol evidence that shows grantor intended to transfer
27
Q

If the grantor gives the deed to a 3d party after deeding property to another, is there delivery?

A

When grantee gets the deed from the 3d party the delivery date relates back to when deed was first given to the 3d party

28
Q

What is the effect of a grantor handing the deed to 3d party and placing conditions on the delivery?

A

If condition placed on delivery, the relation back doctrine will be defeated & delivery date will be when grantee received the deed from the 3d party

29
Q

What is the relation-back doctrine ?

A
  • When a deed is given to 3d party that tells them to give it to the grantee,
  • when grantee gets deed from 3d party the delivery date relates back to when deed was first given to 3d party
30
Q

What is created when a grantor instructs a 3d party to give a deed to grantee when the grantor dies ?

A

Interpreted as giving grantor a life estate & conveying a remainder to the grantee

  • It’s interpreted as a present delivery prior to death
31
Q

Real-Estate Agents & Brokers - Contract of Sale

A
  • Many states allow them to prepare real-estate K
  • Some states limit this to form Ks
  • Some states require attorney review
32
Q

Mortgage Lenders - Lending Documents

A

Non-attorneys can prepare mortgage lending docs

  • Not considered practice of law
33
Q

Are attorneys required to conduct a settlement?

A

Courts split

  • Slight majority - Don’t require attorney to conduct settlement
  • BUT can’t answer legal questions or give legal advice
34
Q

Who can execute a deed?

A
  1. The grantor OR
  2. Agent on behalf of principal-grantor
35
Q

What is the Equal Dignities Rule?

A

When the act performed by an agent on behalf of the priciple is required to be in writing by law:

  • The agent’s auth. must also be in writing
  • If agent signs instrument that is subj to SOF, agent’s auth. must also be in writing
36
Q

Signature on deed by agent

A
  • Valid if agent w/ auth. signs only principal’s name
  • Not valid if agent w/ auth. signs only agents name
    • BUT deed may be enforced in equity b/w the parties & subsequent purchasers with notice of existence of agency
37
Q

How must adverse possession be recorded?

A

It’s outside the recording acts & doesn’t need to be recorded to take effect

  • Proper analysis is first in time first in right

Real Property (14 decks)

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