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Property AOG > Conveying Deeds > Flashcards

Conveying Deeds Flashcards

1
Q

Conveying Deeds - Gral/ purpose, how, inconsistency with land sale contract

A
  • To transfer real property between owners:
  • by closing at escrow
  • Type to be specified in land sales contract
  • Control if inconsistent terms with land sale contract
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2
Q

Conveying Deeds- SADD reqs

A
  • SOF
  • Acknowledgment = notarized
  • Description of property: test of specific identity
  • Delivery
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3
Q

Conveying Deeds- SADD - SOF

A
  • Written -Signed by seller/grantor - Failure can be equitably cured with Part Performance Exception
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4
Q

Conveying Deeds- SADD - SOF - Part Performance Exception (PIP)

A

Gral: to invoke circumstances need to be compelling that occupants position can only be explained by existence of conveying deed. - Possession of land delivered to seller - Improvements: buyer undertake significant acts consistent w/ownership - Payment: full/substantial part of price (Some states also invoke estoppel as part of PIP: change of position on reliance)

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5
Q

Conveying Deeds- SADD - SOF - Revocability and Oral Rescision

A
  • Some states allow oral revocation if deed not yet formally recorded - Rest of states: new deed required
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6
Q

Conveying Deeds - SADD - Delivery req

A
  • Legal title passes with delivery of the deed
  • Evidence of objective intent to transfer ownership by seller/grantor
  • Presumption of delivery when deed is recorded - Oral condition on transferability usually disregard
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7
Q

Conveying Deeds - SADD - No delivery when (2):

A

1) Grantor retains deed (rebuttable presumption of lack of intention to transfer)
2) Deed delivered but grantor retains control of it

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8
Q

Conveying Deeds - Types (4)

A

1) Statutory Warranty deed
2) Quitclaim deed (ltd conveyance) (aka “Bargain sale”)
3) Limited Warranties deed
4) “Other”: i.e. new home quality, used home quality

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9
Q

Statutory Warranty Deed - Gral

A
  • All seller duties on 1 title
  • Protects buyer even from seller w/o knowledge of defect
  • Unless otherwise agreed, seller to provide marketable title with TAFED covenants
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10
Q

Statutory Warranty Deed - TAFED

A
  • Title of seisin: grantor has title/ ownership
  • Authority + right to convey of grantor: and no contrary agreements with 3rd parties(options, first refusal, etc)
  • Free of encumbrances - “Marketable title”
  • Enjoyment Quiet: no disturbance from legal claims by 3rd parties.
  • Defend Buyer - “warranty of further assurance” - defend+indemnify from 3rd party claims
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11
Q

Statutory Warranty Deed - TAFED - Personal warranties that don’t run with the land (2)

A
  • Title of seisin
  • Authority + right to convey
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12
Q

Limited Conveyance deed - gral

A
  • Grantor not willing to give full warranties
  • Depend on the jdx quitclaim deed/limited warranty as default if no express mention to statutory warranty deed in land sale contract
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13
Q

Quitclaim deed - gral

A
  • aka “Bargain sale”
  • Grantor only transfer rights - no protection against covenants or with implied warranties
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14
Q

Limited Warranty Deed - gral

A
  • Mid point btwn st warranty deed and quitclaim
  • i.e. seller warrants TAFED defects but not prior conveyances
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15
Q

Other possible warranties - New home quality

A
  • Usually for commercial developers
  • implied warranty of habitability for substantial latent defect - defect must be substantial
  • Express contractual workmanship + mechanical warranties
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16
Q

Other possible warranties - Used home quality

A
  • For dwellings and commercial properties
  • No implied “buyer beware” warranty (caveat emptor).
  • If contracts “as is” - buyer assumes risks of defects
  • Some states require seller’s disclosure on serious/dangerous defects to which he has knowledge and that are concealed or not apparent in buyer’s reasonable inspection
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17
Q

Property conveyance deed - Merger Doctrine

A

Under common law land sale contract and conveyance deed merges - deed will control in case of inconsistency

18
Q

Equitable Reformation of Deed

A
  • Court can reform and include consistent provisions agreed by parties in land sale contract not included in final conveyance deed
  • Few cases also for fraud/misrepresentation/ extreme inequitable conduct
  • Rescission still available to buyer if court wont reform.
19
Q

Estoppel by Deed

A
  • Grantor convey interest not owned at time of the deed, If later acquired courts accept to pass title to grantee
  • Only for 1st original buyer’s claim against seller
  • Subsequent transfer by seller to BFP - takes free of encumbrances from original buyer
20
Q

Risk of loss during conveyance

A

when unsecured loss during the process of property conveyance

21
Q

Risk of loss - Equitable conversion (majority view)

A

- Gral rule: _Risk of buye_r: when loss btwn land sale contract execution and closing.

  • Seller retains legal title until closing - but equitable title passes upon contract execution
  • Exception: Seller’s risk when N or caused loss
22
Q

Risk of loss - Minority view

A

Risk of seller until closing

23
Q

Risk of loss - Impact of assurance

A
  • Most courts will require seller to pay portion of insurance proceeds to buyer as equitable relief.
  • Some states require to specific insurance coverage in land sale contract
24
Q

Risk of loss - Impossibility of performance

A

Buyer excused if property destroyed

25
Q

Closing - Gral

A

-Formal delivery of executed deed + payment of price

    • Both parties deliver docs to closing agent as detailed in escrow instructions.
    • All back taxes paid currently
  • Legal title passes on closing / equitable title passes in execution of sale land contract)
26
Q

Recording Statutes - Gral/ purpose, effect of record

A

Secure quiet enjoyment: Protects against 3rd party later acquiring superior interest from seller

  • Issue: who prevails? First right or second right who records?
  • Record - creates imputed constructive notice on its content to the entire world (not only parties)
  • System usually not express - interpret language
  • Adverse Possession/ easement by implication usually not recorded, hence not subject to these rules.
27
Q

Recording Statutes - Applicable law / state law, CL

A
  • Usually controlled by state statutes
  • CL rule: “First in time first right”: when:
    a) In absence of state statute
    b) No party meets statutory reqs
    c) Recording in wrong place and not discoverable under reasonable title research
28
Q

Recording Statutes - Statutory types (3)

A

1) Pure Race: first to record
2) Pure Notice: priority to subsequent BFP
3) Race-Notice: both (most states)

29
Q

Recording Statutes - Pure Race -Gral

A
  • First to record has priority
  • Irrelevant whether buyer is BFP or has prior notice`
30
Q

Recording Statutes - Pure Notice

A
  • Priority to last BFP
  • BFP status at time of transfer of deed (not at time of filing)
  • Assumes prior buyer didn’t record (bc of constructive notice)
31
Q

Recording Statutes - Record Notice

A
  • Subsequent grantee must be BFP and first to record
  • Used in majority of states
32
Q

Recording Statutes - BFP - FINS elements

A
  • For value
  • In good faith
  • No record or inquiry notice
  • Shelter Rule
33
Q

Recording Statutes - BFP - FINS - For value

A
  • not by gift/devise
  • pay more than nominal value
  • Unrelated debts/judgments to the property dont qualify
  • Mortgage/ cancellation of debt usually ok
34
Q

Recording Statutes - BFP - FINS - In good faith

A
  • No actual knowledge of prior conveyance
  • Subjective Test
35
Q

Recording Statutes - BFP - FINS - No Record or inquiry notice

A
  • Objective test at time buyer received purchase
  • Burden on the holder of previous unrecorded title to prove notice of grantee -

2 methods: 1) Record Notice, 2) Inquiry Notice

36
Q

BFP - FINS - No Record or inquiry notice

A

1) Record notice: Proper recording as constructive notice for everyone - BFP duty to search for the record in title chain
2) Inquiry Notice: Second purchaser with enough info to put reasonable person on notice upon inquiry that would lead to defects in the tile

  • i.e discover someone living in the property.
  • i.e. recorded instrument makes reference to unrecorded transaction.
37
Q

BFP - FINS - No Record or inquiry notice - Recording error as exception to notice / (4) cases

A
  • Usually not imputed as constructive notice to BFP when:
  1. wrong legal description
  2. goes into wrong property index
  3. wrong county record
  4. Only in grantor-grantee index or use wrong name
38
Q

BFP - FINS - No Record or inquiry notice - “Collateral Document Rule”

A
  • Grantee charged with notice of content of deeds from adjacent properties coming from common grantors
  • Duty for grantee to examine all title records from date common grantor sold one of the adjacent parcels.
  • some courts apply rule and impose restrictions in deed from adjacent parcels . i.e. height limitations.
39
Q

BFP - FINS- “Shelter Rule”

A
  • Non BFP takes title from BFP
  • BFP with valid title, “cleanses” title
  • but it doesn’t improve original’s purchaser title
40
Q

Recording statutue - Title Insurance - GRAL

A
  • Purchaser protection for unknown title defects of record on abstract of the chain of title.
  • Required only when specified in land sale contract
  • Doesn’t negate liability for TAFED warranties, but it provides fund to recover
  • Protection Cant be transferred with property to new owner - hence not for subsequent acts
41
Q

Title Insurance - Exclusions

A
  • Defects not included in record of title abstract as of closing date
  • i.e.: unrecorded deeds and mortgages, potential easements, encroachments on adjoining property, boundary disputes, setback violation, adverse possession, error in public records,
  • other defects discoverable by physical inspection of property
42
Q

Conveying Deeds - Implied Warranty of Marketable Title

A

Despite on the use of quitclaim deed and/or limited warranty deed

  • Courts will usually deem the obligation of transferring MARKETABLE TITLE.

Property AOG (13 decks)

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