TRANSFER BY DEED – DELIVERY
__________ is about the grantor’s intent, not about the deed being recorded.
Delivery
_______________ is the unlawful taking of another’s property. A person gains title to property through adverse possession when their possession is continuous, open and notorious, actual, and hostile.
Adverse possession
What is a Present Covenants?
If present, breaches of present covenants occur when the land is conveyed. The grantee can only sue the person who actually sold them the land.
Definition of Bona-fide purchasers
are people who purchase a property without notice.
What is the definition of Lapse
is when someone who is going to receive a gift in a will dies before the testator.
Name five of the delivery systems?
physical delivery
Hand Delivery with Future Recording Condition
Delivery by an Escrow Agent
Death escrows
Grantee Rejection
Delivery with an Oral Condition that is Not on the Deed Itself
Delivery to a Dead Person
Deed to a Corporation
Grantee Wants to Give Back the Deed
Estoppel by Deed
Open and Notorious – There are two ways to prove this element
1) Showing that the actual owner knew you were there and didn’t agree with it; OR
2) Your conduct on the property is so obvious that the owner should have known (i.e. building a fence or installing a no trespassing sign).
What are the three present covenants?
Covenant of Seisin – This is a promise that the grantor is in possession of the land they are trying to sell.
Covenant of Right to Convey – This is a promise that the grantor has the legal right to sell the land. If the grantor is in possession, they almost always have the right to sell.
If the seller is a trustee or representative then they may have the right to sell without possession.
Covenant Against Encumbrances – This is a promise that there are no rights on the land held by third parties (i.e. easements, covenants, servitudes, mortgages, liens).
What are examples of items that are NOT BEPs?
The follow are not BFPs - a donee (get the property by gift), an heir, a devisee (get the property from a will), or a judgment creditor.
What is the definition of Anti-lapse statutes?
Anti-lapse statutes save the gift and allow it to pass to the beneficiary’s living descendants, but generally only if the beneficiary was a sibling or child of the testator.
A valid deed must meet the following conditions:
In writing;
Signed by the person selling the land (the grantor); AND
Describe the land (doesn’t have to be a complete description (i.e. “all of goat’s land,” “all of goat’s land in Chicago”, but cannot say “some of goat’s land”).
What is the side rule for Open and Notorious?
If the adverse possessor tells other people the true owner actually owns the land, then they cannot claim it under adverse possession.
What are the three future covenants?
Covenant of Quiet Enjoyment – The covenant of quiet enjoyment is breached by eviction by the grantor or by someone showing up with superior title to the grantee.
Covenant of Warranty – This means that the grantor will pay the grantee’s legal costs if someone shows up with better title than the grantee. The grantor will help the grantee defend against them.
Covenant of Further Assurances – This is a promise to make sure the title is always good. If the title is defective, the grantor will give the grantee a new one and take care of later discovered liens that arise from third parties.
What are the three types of Notice?
Actual – Prior to closing, buyer #2 finds out about buyer #1.
Constructive – Buyer #2 is under a duty to inspect the land. If a reasonable inspection would reveal that someone else owned the property, even if buyer #2 does not do an inspection, then buyer #2 is still considered to be on notice.
Record Notice – Buyer #2 has a duty to search the record office. If the deed is recorded in the record office, then buyer #2 is considered to be on notice.
What is the definition of Ademption?
Ademption is when a specific bequest of real property or personal property, simply isn’t in the estate when you die (it was sold or lost).
Delivery by an Escrow Agent.........
If the grantor gives the deed to an escrow agent and tells the agent to only deliver the deed upon a certain condition (i.e. only deliver the deed to Goatina if she gets married), but the agent delivers it to the grantee before that condition is met. This delivery is improper because it lacks present intent of the grantor.
What is the vocab word for this definition: The adverse possessor does not have the true owner’s permission to be on the property.
Hostile
What is the definition for future covenants?
Future covenants protect the grantee from random issues that could come up in the future. A future covenant can be breached at the time of delivery and any time after as well.
What is the side rule?
BFPs and mortgagee for value are the same thing.
When does the will "speak"
The will speaks at the time of death.
Deeds that are Void for Lack of Intent............
Forged, stolen, tricking someone into signing the deed for transfer, grantor lacked capacity, deed has been tampered with, or the deed gives the grantor the power of revocation.
What elements should must be meet for Constructive Adverse Possession
The AP enters the land under color of title (a deed that appears to give them title but doesn’t actually because it is defective);
The AP enters the land in good faith thinking their deed actually gives them title;
The AP enters a portion of the land (even if it’s a small part); AND
The owner is not there.
What are the three types of Deeds?
Quitclaim Deed (0 Promises and 0 Covenants) – A quitclaim deed offers no form of protections for the grantee. A grantor can give a quitclaim deed even if they have no interest in the property, if the grantee takes the chance on accepting it then they cannot sue the grantor.
General Warranty Deed (6 Promises) – A general warranty deed contains all 6 promises (present and future covenants) and offers the grantee the most protection against encumbrances.
Special Warranty Deed – A special warranty deed only promises two thing on behalf of the grantor themselves, not anyone before them:
What is the shelter rule?
When an heir, donee, or devisee gets the land from a bona- fide purchaser and becomes a bona-fide purchaser themselves. They are protected by the bona-fide purchaser’s status whether they have notice or not and will prevail against any interest the BFP would have prevailed against.
What is the side rule for TRANSFER BY WILL AND OPERATION OF LAW
A testator cannot give a deed that is a restraint on alienation (i.e. “to goat, provided that goat does not sell the land for 10 years.”).