Transfer of Title By Deed; Recording Flashcards
In order to prevail over a prior grantee under a notice statute, when must a subsequent bona fide purchaser record?
A bona fide purchaser will prevail over a prior grantee under a notice statute without ever recording.
A notice statute is a recording act that:
alters the common law rule of “first in time, first in right” to protect a subsequent bona fide purchaser (“BFP”)—i.e., one who gives valuable consideration and lacks notice of the prior conveyance.
A subsequent purchaser is only protected by a notice statute if
he had no actual or constructive notice of the prior grantee.
How can a prior grantee protect his interest from a subsequent BFP?
A prior grantee must record his interest so as to ensure a subsequent purchaser has constructive notice of the prior interest.
From when is the notice requirement of BFP status measured
BFP status is measured from the time of the conveyance, NOT the time of recording.
To prevail in race and race-notice statutes, what action, if any must a BFP take to protect his interest?
Under race and race-notice statutes, the BFP must record his interest prior the prior grantee in order to prevail.
Must a deed be recorded to be valid?
No. The deed is effective and enforceable between the original parties to it without being recorded.
Name two advantages of properly recording a deed.
Properly recording a deed has several advantages, such as raising rebuttable presumptions that the instrument was validly delivered and that it is authentic.
How can a landowner convey constructive notice of a deed?
By recording it. Recording conveys notice of the deed and its contents.
Will properly recording a deed protect it from adverse possession?
Recordation does not protect against interests that arise by operation of law (e.g., title by adverse possession), rather than from a recordable document. Because there is no instrument to record to perfect such interests, the recording acts do not apply.
To be valid, a deed:
must be a writing, signed by the grantor, that identifies the land and the parties.
When does a deed become effective?
A deed is not effective until it has been delivered and accepted.
Properly recording a deed creates what presumptions?
That a deed is authentic and was validly delivered. But these presumptions are rebuttable.
In most jurisdictions, when is parol evidence not admissible?
Parol evidence is not admissible to show that a facially unconditional deed given directly to a grantee was in fact subject to a condition. The condition will be ignored.
Generally, when is parol evidence admissible?
Parol evidence generally will be admitted to show oral conditions on the delivery of a deed placed in escrow.
Generally, when the deed is given directly to a grantee, will parol evidence be admissible?
No.
Generally, when a deed is deposited with escrow, will parol evidence be admissible?
Yes.
If a court concludes by clear and convincing evidence that a deed was really given for security purposes, how will the court treat the deed?
A court will treat the deed as an equitable mortgage.
How can an equitable mortgage be determined?
i) the grantor’s debt; (ii) the grantee’s promise to return the land if the debt is paid; (iii) the amount advanced to the grantor being much lower than the property value; (iv) the degree of the grantor’s financial distress; and (v) the parties’ prior negotiations.
When can a voidable deed be set aside?
Voidable deeds will be set aside only if the property has not yet passed to a bona fide purchaser.
Under the Uniform Fraudulent Transfer Act, a conveyance is fraudulent and may be set aside by the grantor’s creditors if:
the grantor/debtor actually intended to hinder, delay, or defraud a creditor; or if the grantor (i) did not receive a reasonably equivalent value in exchange for the transfer and (ii) was insolvent or became insolvent as a result of the transfer.
Under the Uniform Fraudulent Transfer Act a conveyance, though fraudulent, will not be set aside against:
any grantee who took in good faith and paid reasonably equivalent value.
When can a void deed be set aside?
Void deeds will be set aside by a court even if the property has passed to a bona fide purchaser.
When is a deed considered void?
Deeds considered void include those that are forged, were never delivered, or were obtained by fraud in the factum (meaning the grantor was deceived and did not realize that he was executing a deed—e.g., a deed the grantor signed because he was told it was a promissory note).
