03 Deeds (1)
ceccion deed
A cession deed is used to give up property rights to a government authority.
Requirements for a Valid Deed
A competent grantor Name of the grantee Granting clause, a.k.a. words of conveyance Statement of consideration Legal description of the property being conveyed Habendum clause Limitations Exceptions and reservations Acknowledgement of the grantor's signature Delivery and acceptance
What is a Deed?
A deed is the legal document that transfers real estate title from one party to another. The purpose of using deeds is to have official records showing when property changes hands. It proves that the holder of the deed has ownership of the property. All deeds must be in writing. Handshakes and pinky swears aren't enough!
Reservations and Exceptions
A deed might note specific reservations or exceptions that might affect conveyance. Here are some things that may be considered reservations or exceptions: Mortgage liens, taxes, restrictions, minerals or mineral leases, and easements that run with the land Grantor reserving some right to the land for their use Grantor placing certain restrictions on the grantee's use of the property Restrictions on the number of houses built in a subdivision
Don't Mix Business and Residential
A deed restriction does not influence how a title is transferred to a buyer, though it does set limits on how the property may be used by the owner. One common deed restriction applies to land bought within an established subdivision. It is usually stated in the deed that such property may not be developed for commercial or industrial uses - that is, the deed limits development to projects that are roughly the same as the surrounding residential properties. If property owners bound by this kind of deed restriction were to run any type of large business out their homes, then they are probably violating the deed restriction.
Consistency
A grantor's name has to be spelled correctly and consistently throughout the deed. If, for any reason, a grantor's name has been changed from what it was when the title was originally acquired, they must show both names. Example: "John Smith, now known as Jamie Smith"
Legal Property Description
A legal property description, on the other hand, is a description that makes it clear to all parties exactly what property is being bought or sold. These descriptions can be used by courts to clarify any disputes about the property that may arise. That means that a sales contract must contain a legal property description that uniquely identifies the property involved in the transaction.
Creation of Deed Restrictions
A real estate owner can create a deed restriction on the use of land by including a provision for it in the deed when the property is conveyed or by filing a separate declaration of restrictions with the county clerk. There is a distinction between restrictions on the owner's right to use and restrictions on their right to sell.
Legal Descriptions of Land (what it is not?)
A regular ol' street address, like 3704 Herbert Dr., is not sufficient.
Difference Between Title and Deed
A title is not a document nor is it a piece of paper. It's not something physical you can hold! Instead, the term title refers to an abstract concept. It includes someone's ownership rights to a specific piece of real property. Title = Abstract concept of ownership 💭 Deed = Physical document that transfers ownership 📝
Acknowledgement Outside of New York
Acknowledgement Outside of New York People who are not residents of the United States should ideally be in New York to sign the deed. Otherwise, they don't have the option of using a notary to witness their acknowledgement for New York recording purposes. They would need to contact the U.S. consulate.
Plats
After the developer creates a plan for the subdivision, they draw up a plat - a detailed map that notes the property lines dividing individual lots. This map also illustrates blocks (collections of lots) and marks sections, streets, monuments, and any other relevant public amenity or structure. The particularities of a plat may vary among different developers. For example, some developers may include engineering data or restrictive covenants as part of their plats. The layout of a housing community, as established in a plat, influences the accessibility of recreational space as well as the general functionality and aesthetic appeal of the development. A developer can create more space for parks and other amenities by varying the street patterns and clustering houses.
Plat Approval
After the plat is complete, the developer must submit it to the proper authorities for approval. In addition, some jurisdictions require an environmental impact report stating the effect(s) that the development will have on the surrounding areas.
Acknowledgement
An acknowledgment is a formal declaration that the person signing a document is signing it by choice with a real signature. Acknowledgment takes place in the presence of a notary or other authorized public officer, like a judge or justice of the peace. This authorized person serves as the legal witness. Unless the notary personally knows the grantor making the acknowledgement, they will ask to see ID to make sure the signing party is who they say they are.
A Lot of Air
An air lot is the space above a particular parcel. How does someone even locate an air lot? Glad you asked. You'll need two key pieces of information to locate an air lot: The location of the parcel of land where the air lot is believed to be The elevation (from the point of the datum) of where the air lot is thought to extend
Alienation
Anyway, the process and act of transferring property from one party to another is called alienation.
Township Lines and Range Columns
As I just explained, range columns run parallel to meridians, and township lines run parallel to baselines, meaning east to west. So, township lines intersect with range lines to create 36-square-mile areas called townships. Township rows are numbered consecutively, north and south of a baseline.
Public Records
As with powers of attorney, mortgages, and other documents relating to real property, deeds will be kept on file in the county clerk's office where the property is located. Once placed in the public record, these records are accessible to anyone who cares to see them. Many counties maintain a searchable computerized database of real property records and some counties make these records available for free online.
Using Landmarks
Back in the day, things called monuments were used as points of beginning or markers for the metes and bounds system. Monuments are landmarks like streams, large boulders, or trees. Monuments may do the trick, but today's surveyors prefer the precision of human-made markers like stakes placed in the ground.
Condominium Descriptions
Condos are a little bit different from other types of dwellings in terms of their legal descriptions. In addition to a unique legal description of the land where the condo is located, the following information must be included: The percentage of the common interest that the owner will acquire along with the unit The designation of the condo being transferred as listed in the declaration (this should be filed as specified by the New York Condominium Act)
Dedication
Dedication is the voluntary gift of one's land to the public. (You get some land! You get some land! YOU get some land!) Some dedications are philanthropic and are conveyed to the government for the good of the public, like donating land to the city to be used as a park. Other dedications often result from the development of a subdivision. After a subdivision is developed, the developer can dedicate the paved streets to the public by transferring all street rights to the government by a cession deed.
Deed Restrictions by Property Developers
Deed restrictions are generally placed on a property by the property developer. When a lot in a subdivision is conveyed by an owner's deed, the deed refers to the plat or declaration of restrictions and incorporates these restrictions as limitations on the title conveyed by the deed. In this manner, the restrictive covenants are included in the deed by reference and become binding on all grantees. Such covenants or restrictions usually relate to: Type of building Use to which the land may be put Type of construction, height, setbacks, and square footage Cost
Enforcement of Deed Restrictions
Deed restrictions are meant to protect property value and public interest. Developers usually place restrictions on the use of all lots in a subdivision as a general plan for the benefit of all lot owners. Deed restrictions are enforced in court. When a lot owner applies for an injunction against another lot owner who is believed to be disobeying a deed restriction, each lot owner has the right to apply to a justice of the peace (JP) court for an injunction to prevent a neighboring lot owner from violating the recorded restrictions. If upheld, the injunction would order the party who is in violation to cease and desist or remove the violation (for example, a construction project or a completed structure). If the violator fails to comply, the court may hold them in contempt of court and punish the violator with fines or citations.
What Deed Restrictions May NOT Do
Deed restrictions usually are considered valid if they are reasonable restraints and are for the benefit of all property owners in the subdivision. They may NOT, however, violate local, state, or federal laws. Deed restrictions in violation of fair housing laws, such as restricting the sale of property to a particular color or race, are void. If a restrictive covenant or condition is considered void by a court, the validity of the deed is not affected. The estate simply stands free from the invalid covenant or condition.
Subdivision Development
During the initial planning stage, before any land is purchased or any construction begins on a subdivision, a developer who has located undeveloped acreage that is for sale has the land surveyed and a plat made. The developer then plans out the community on paper (indicating roads, schools, and parks). The proposed plan for the subdivision is then given to the city for review and approval. The city ensures that the plan adheres to the overall urban plan and subdivision regulations of the city. If modifications or changes are needed, the developer is notified and allowed to submit changes as required by the city. In the next stage, sometimes referred to as the final planning stage, all the initial planning has met approval and now any loose ends are tied up, all the details are finalized, and the final subdivision plat is turned over to whichever authority has jurisdiction for final approval, possibly the Planning and Zoning Commission, the City Council or the city. After final approval, the subdivision plat is filed at the county records office and the developer is given a certificate from the city. It is at this point that the developer may now purchase the property. Hopefully, financing has already been secured. It may sound like a contradiction, but the final stage is called the start-up or disposition stage. This is when actual construction starts. Infrastructure is put into place; roads are paved, water, gas, and electricity are routed to home sites. The lots are now ready to be disposed of (sold) and are ready for the new owners to begin building their homes.
Sections of a Township
Each 36-square-mile township can be divided into 36 individual square mile sections (yes, that's the official term), beginning in the upper right-hand corner. Each square mile contains 640 acres, and every acre has 43,560 square feet. Numbers on a township map represent the different sections. They begin in the top right corner. From there, numbering goes from right to left on the top row, down to the second row, where numbering goes from left to right. On the third row, numbers move from right to left, alternating until every section is numbered. This pattern is called a "snaking" pattern, an alternative to traditional left-to-right numbering.
Dividing Sections
Each section is one square mile. And as you just learned, one square mile equals 640 acres. So, a section can then be divided into halves (320 acres) and quarters (160 acres). Those halves and quarters can then be halved and quartered again. Each part of the section is labelled by its location. Let's say we are talking about the quarter of a section in the northeast corner of Section 1. It would be called NE 1⁄4 of Section 1. If you wanted to further divide that quarter into quarters and wanted to label the southwestern quarter of NE 1⁄4, it would be called the SW1⁄4 of NE 1⁄4. You could then divide it again. For example, the NE 1⁄4 of SW1⁄4 of NE 1⁄4. That section would be 10 acres.
Rectangular Surveys and the Globe
Earth's grid of meridians and parallels are slightly distorted. As one approaches either pole, longitude lines (meridians) get closer together. Every 24 miles north and south of a baseline, we name a correction line, or standard parallel. Then, every 24 miles east and west of a principal meridian, a guide meridian is named. And every 24-by-24 mile area created by a guide meridian and a standard parallel is known as a check.
Involuntary Alienation
Eminent domain (in the form of appropriation/condemnation) Foreclosure Adverse possession Escheat Accession
Eminent Domain (is the right condemnation is the action)
Eminent domain is the right of the government to take private property for public use. The proposed use of the land must be for the greater good of the public. In the United States, just compensation must be paid for private property acquired in connection with federally funded programs or projects. Unfortunately, the property owner doesn't have a choice in the matter. They must sell their land to the government, but New York landowners do retain the right to challenge the amount of compensation offered to them. Condemnation (also called appropriation) is the legal process of acquiring private property for public use through the government's power of eminent domain. Eminent domain is the right; condemnation is the action. Government at any level (local, state, or federal) may use the right of eminent domain to acquire land. Most often, private land is acquired to facilitate the creation of new roads, schools, hospitals, or similar public necessities.
measurements
Even though most of this is up to surveyors, agents need to know how to explain what survey drawings mean to their clients. That way they can clearly identify property lines. What does this mean for you, the agent? It means that you'll need to memorize a few very important measurements: 1 township = 36 sections 1 section = 640 acres (a square mile) 1 acre = 43,560 square feet 1 mile = 5,280 linear feet
Datum (Giant ruler for height)
First up: datum. A datum is a base point from which elevation is measured. From a datum, a measurement moves upward or downward on a horizontal plane, creating standard heights of depths. A datum is established by the mean sea level at New York harbor.
Legal Description
For a deed to be valid, it must contain an accurate description of the real estate conveyed. A legal description is a description of a property that is distinct and precise enough to distinguish it from all other properties. A surveyor would be able to find the property and accurately mark its boundaries using the given description. A street address like 123 Main Street is convenient, but it's NOT sufficient for a legal document like a deed.
Foreclosure
Foreclosure is one of the most common means of involuntary alienation. If a loan is secured by real property, the lender has the right to take that property without the borrower's consent if they default on the terms of the mortgage. The property is then sold and the proceeds are applied to the debt. Default may involve: Failure to make mortgage payments Non-payment of property taxes Failure to maintain insurance Judgments and liens
2 Patterns for plats
Gridiron Curvilinear
Escheat
If an individual dies without a will and has no surviving spouse, lineal descendants, or other known heirs, the decedent's property passes to the state by the legal doctrine of escheat. Through escheat, the decedent's ownership interest in any property is transferred directly to the state without their consent.
Why Habendum Clause is important in NY?
If it's missing from the deed, the legality of the transfer isn't clear and the title is considered unmarketable.
Married couples
If property is owned by a married couple, both people must serve as grantors on the deed.
Area in Square Footage
If you need to find the square footage of the area, you would just need to multiply the acreage by 43,560 (the square footage of an acre, remember?). 43,560 x 20 = 871,200 sq. ft
Ranges
In a rectangular survey system, range lines run parallel to the meridian, running north and south. The columns that range lines create are called ranges. Ranges are numbered consecutively east and west from their respective principal meridians.
Delivery and Acceptance
In order to ensure a smooth transfer of property, you can't rely on just the execution of a valid deed. Weird, right? Execution of a valid deed in itself does not convey title. Delivery and acceptance are the required actions for the proper execution of a deed, involving delivery of the deed by the grantor with the intention of transferring title and acceptance by the grantee receiving the property. The grantor can personally deliver the deed to the grantee or their title company, attorney, or real estate agent. It's also common for the deed to be mailed with the closing documents after closing day. Once accepted, title passes to the grantee. The deed has fulfilled its legal purpose and it can't be used again to transfer the property. If the grantee loses the deed, there is no effect on the grantee's title to the estate. The grantor, for example, can't reclaim the estate just because the grantee lost the deed after it had been delivered and accepted. Likewise, the grantee can't return the property by returning the deed. To do so, the grantee would need to execute a new deed.
Checklist for Recording
In order to record a deed, certain requirements must be met: The deed must be valid, containing all the elements of a valid deed that you just learned about. The grantor and grantee should be identified by address on the deed. Tax authorities need to know where to send tax bills, so a certificate of address for the grantee is needed. A notary or other public official should be the legal witness to the grantor's acknowledging signature. Names should be printed under signatures. A stamp or some other kind of evidence of real estate transfer tax is required. Any past-due taxes should also be resolved.
Subdivision Development: Common Restrictions
In planning a subdivision, the developer usually decides upon the size and the locations of all of the individual lots. There are usually local ordinances stipulating maximum and minimum lot sizes that the developer must consider. For example, many zoning authorities enact zoning standards governing density. A density zoning standard establishes the maximum number of homes that a subdivider may build per acre of land. Compliance with a density standard is a matter of assessing the development as a whole, and does not depend on each individual lot. Usually, the average density for the entire subdivision (often called the "gross density") is measured for compliance purposes. That is to say, if the maximum number of houses per acre is set at four, a legally compliant subdivision could have three houses on one acre and five on another, provided that the average number of houses per acre overall is equal to or less than four. While developing the plan for a subdivision, a prudent developer will study the land to exploit any natural drainage and land contours as they develop easements for water mains, sewer mains, and other utilities.
Granting Clause: Multiple Grantees
In transactions where there are two or more grantees, the granting clause has the important duty of clarifying who will receive what rights to the property. Will the grantees be joint tenants or tenants by the entirety (for married couples)? These types of ownership with rights of survivorship must be created intentionally with the wording of the granting clause. This way, if one of the grantees dies, their share of the property will automatically go to the other grantee(s) without need for a court order or will.
Multiple people
It's certainly possible to have more than one grantor or more than one grantee. If this is the case, each person must be individually identified in the deed. If property is owned jointly by multiple people, it's not permissible for one owner to act alone in transferring the shared property to someone else.
Types of Accession
Land can be lost or gained via many types of natural forces, none of which ask for the owner's consent! Accession includes the following: Accretion: the process that results in the gradual increase in land area through deposits of soil by natural forces. Alluvion is the soil that gets deposited in the process of accretion. Avulsion: the sudden loss of land by an act of nature Reliction: the exposure of previously submerged land due to receding waters
Meridians and Parallels
Longitude lines, or meridians, run north to south. They segment the globe along Earth's poles. Latitude lines, or parallels, run east to west, parallel to the equator. There are also longitude lines that serve as principal meridians, and latitude lines that serve as baselines.
Rectangular Survey System Key Measurements
Meridians: A true meridian running through an initial point, which, together with the baseline, forms the highest level framework for all rectangular surveys in a given area. Baselines: A parallel of latitude, referenced to and established from a designated initial point, upon which all rectangular surveys in a defined area are based. Ranges: A measure of the distance east or west from a referenced principal meridian, in units of six miles. (RUNS NORTH TO SOUTH) Tiers: A measure of the distance north and south from a referenced principal baseline, in units of six miles. Sections: An approximately one-square-mile block of land (640 acres). There are 36 sections in a survey township. Townships: Also known as a survey township. A square parcel of land of 36 square miles, or a measure of the distance north or south from a referenced baseline, in units of six miles.
Vocabulary of Metes & Bounds
Metes refers to the distance measurements used in the description. Distances are often expressed in feet. Bounds are the compass directions used in creating the boundaries that enclose a parcel of real estate. The point of beginning (POB) is an established starting point, often located on a road, from which the description begins. It should be easy to locate. Markers are reference points in the form of fixed physical objects. Surveyors will frequently drive metal rods into the ground (called pins) to use as markers. Each of these features is used when writing a metes and bounds description.
Last Notes on Rectangular Survey System
More land in the United States is defined by the rectangular survey system than by any other method. Not all sections are exactly 640 acres. (Remember: Earth's curvature makes some of these slightly smaller.) Customarily, the county and state are named along with the rectangular survey title.
Adverse Possession Requirements
Most states have specific requirements that must be met for title to transfer by adverse possession. These requirements usually include a continuous and openly hostile possession of the property without permission from the owner, a claim on the title, payment of taxes on the property by the adverse possessor, and the owner's failure to take action to reclaim the land. Essentially, adverse possession occurs when a property owner "sleeps on their rights."
Deed restrictions must:
Not be discriminatory Promote the general welfare of the public Be consistent Be exercised reasonably Be clear and specific Private parties can regulate land use through the use of these deed restrictions.
Subdivisions
Once a surveyor has pinned the corners, numbered the blocks and the lots, crossed their t's and dotted their i's, a property then becomes easy to describe as being part of, for instance, a certain subdivision, on a particular block, or on a specific lot number. This is how most subdivisions are separated. It's common in housing developments, but less common in rural areas.
Terms to Know - Lots and Blocks of Them
Plat - A drawing of a development used in the block and lot method Parcel - A part or portion of land; often used to identify a specific lot within a larger tract of property Lot - Individual piece of land measured and defined by the metes and bounds system Block - A collection of lots Tract - The totality of the property represented on a plat
Deed Restrictions
Private land use can be regulated through deed restrictions. Deed restrictions are non-governmental limitations that control the land's use. Some restrictions exist to control and maintain the quality and character of a property or subdivision, and they may be created by private entities, including the property owners themselves. Pro Tip: The terms "restrictive covenant" and "deed restriction" are used interchangeably in the real world. Just know that restrictive covenants, a.k.a. deed restrictions, put limitations on use or maintenance, or require specific standards for improvements, lot sizes, or architectural design.
Sale and Gift
Real estate is most commonly conveyed by sale or gift. A property owner will exchange their title for consideration (money or something else of value) paid by a willing buyer or they will give it to someone they really like, such as a relative. Both of these processes involve a grantor who is still alive and the use of a deed.
What's a Title?
Recap: A grantor transfers title to a grantee using a deed. But what's title? Title is a bundle of rights with regards to a piece of property in which a party may own a legal or equitable interest. When someone asks, "Who holds the title to 1401 Moat Circle?" they are asking who holds the legal ownership rights to 1401 Moat Circle.
Benefits of Recording
Recording is not necessary to make a deed valid. Still, it's in the grantee's best interest to do so. Recording the deed gives the public constructive notice of the grantee's ownership. It's also handy in the event that the document gets lost. An additional copy can simply be ordered from the county records. One more reason to record? It establishes the priority of ownership claims, which is helpful in the event of any discrepancy. If a deed is invalid for any reason, the act of recording it doesn't make it valid. One of the good things about documents being recorded is that even if the original deed is destroyed, another copy can be obtained from the county clerk's office.
Subsequent Purchasers
Restrictive covenants usually run with the land and are binding on subsequent purchasers. This means that if a deed restriction exists at the time of the original purchase of the home, when the home is resold to the next buyer, that deed restriction will still be applicable to the new buyer as well.
Types of Voluntary Alienation
Sale Gift Dedication Public grant Devise using a will
Survey Process
Starting at the point of beginning, the surveyor describes the next point as "X (number) of feet from the point of beginning" and specifies a particular direction, like north or south. (When a property is adjacent to a street or road, the surveyor will use the road frontage as their starting point.) The survey identifies subsequent points until the description leads back to the point of beginning (POB). This path of points always goes around a parcel of land describing distances in feet and direction in degrees, minutes, and seconds.
Consider This (NY deed doesn't have to specify what? )
The amount paid! In New York, the deed doesn't have to specify the actual amount paid for the property. It just needs to state that consideration was given. This is commonly accomplished by expressing the purchase price as nominal consideration. You might see phrases on deeds stating the consideration as "ten dollars and other good and valuable consideration." Full consideration only needs to be listed in conveyances in which the deed is signed by a referee (for a foreclosure or other public sale) or by a fiduciary (like an executor, trustee, or attorney).
Plats: Curvilinear Pattern
The curvilinear pattern integrates major feeder roads with smaller streets and cul-de-sacs. While the varied road patterns in a curvilinear system prevent monotony and increase open space, this approach generally minimizes service alleys and the more complex road patterns can be difficult to navigate. Overall, however, the curvilinear plat system provides for quieter and safer neighborhoods.
Recording the Deed
The final step in the transfer of a deed is not a requirement, but an optional step. Recording is the process of placing documents into the public record per state law. Documents affecting any interest, right, or title to a parcel of real estate should ideally be recorded as constructive notice to the public of ownership — usually at the county level. Those wishing to discover existing interests in a property can access that information if it has been recorded.
Accession
The final type of involuntary transfer of property is accession. As you learned in Level 1, accession is the right to all that one's own property produces, including that which is added, either naturally or by human action, to the property already owned. Natural means of accession include the gradual accumulation of rock, the recession of a lake or river, or the accumulation of water-borne soils. Artificial accession occurs through labor and human-made improvements. This process does not employ or require an instrument of conveyance, like a deed.
Grantee Requirements
The grantee, a.k.a. "party of the second part," has to be two things: Identified by name on the deed Alive
Granting Clause
The granting clause, also known as words of conveyance, is needed to state the grantor's intention to convey the property. Words like "sell, give, bargain, convey, and grant" are used to make it very clear that the deed is transferring the property from the grantor to the grantee. The granting clause needs to indicate what interest in the property is being conveyed by the grantor. Deeds that convey the entire fee simple interest of the grantor usually contain such wording as "to Jacqueline Smith and to her heirs and assigns forever." If less than the complete interest is being conveyed (such as a life estate to property) the wording must be changed to show this limitation. For example, a deed creating a life estate would convey property "to Jacqueline Smith for the duration of her natural life."
Grantor Requirements
The grantor (sometimes called the "party of the first part" in the deed) in any transaction should be a mentally capable adult. That means someone who is at least 18 years old and fit to enter into a legal contract. If a minor or incompetent party signs a deed, it will most likely be voidable. That means the contract can stand if the parties are okay with it, but it won't be legally binding or enforceable in court. There's an exception to the over-18 rule for grantors. If a grantor is under 18, but they are mentally capable and married, the law will treat them the same as someone who has reached the age of majority. The deed will be valid and legally binding in this case. If a minor or mentally incapable person owns property and needs to convey it to someone else, this can be accomplished by their court-appointed guardian.
Positive identification
The grantor and grantee's full, legal names must be used in the deed. No nicknames, no general identifiers ("my son"), and no misspellings allowed!
Plats: Gridiron Pattern
The gridiron pattern evolved from the government's rectangular survey system; it features large lots, wide streets, and some limited-use service alleys. Sidewalks usually run parallel to the street, possibly separated from the road by a small, grassy area. While the gridiron system makes a subdivision easy to navigate, its drawbacks include most homes being located on or near busy streets and a lack of open space.
Habendum Clause
The habendum clause is a clause within a deed that clarifies the type and extent of interest conveyed by the granting clause. If you see the words "to have and to hold" (and you're not at a wedding...), you're most likely looking at a habendum clause. It serves the purpose of defining or limiting the ownership interest of the grantee (such as a fee simple, defeasible fee, or life estate interest). A habendum clause should follow the granting clause, and its provisions must agree with those set down in the granting clause.
Limitations
The habendum clause specifies both the owner's rights and the limitations on those rights (i.e., prohibited activities). Any limitations on how the property can be used need to be disclosed in the deed.
Signature of Grantor
The next element of a valid deed is the signature. A deed needs to be signed by all grantors named in the deed. When a grantor's spouse has been named as a grantor, the spouse also must sign. Grantees don't need to sign the deed. Witnesses to the grantor's signature are not necessary for the deed to be valid. Still, grantees should insist on the signatures being acknowledged (notarized). Also, a grantor's signature can be signed by someone acting under a general power of attorney, which provides authority to carry out all of the person's business dealings. You don't have to go to law school to be appointed as an attorney-in-fact. You just need your power of attorney to be recorded in the county where the property is situated. For real estate transactions in which an attorney-in-fact will be signing the deed on the grantor's behalf, a phone call to the grantor may be made during closing. This serves as evidence that the grantor is not just consenting, but also alive. Power of attorney is not valid after the person being represented has passed away.
Grantor and Grantee
The person who transfers title to real property in a real estate transaction is the grantor. The person who receives a conveyance of real property in a transaction is the grantee.
Necessity for Recording
The public record should allow discovery of the condition of the title and a purchaser of real estate should have reasonable faith in what is found through a search of the public record. Another good thing about recording a deed is that it provides constructive notice to the world about who owns the property. If we were to have an unscrupulous seller sell their property to two different people, taking money from both and giving a deed to both, the court would probably say that ownership belonged to the person that gave either actual notice (moved in) or constructive notice (recorded their deed) first.
Public Grant
The transfer of government-owned land to an individual is called a public grant. It's a form of voluntary alienation because the government is choosing to convey its interest in property to an individual. The instrument used to convey public land to an individual is called a land patent, not a deed. The land patent serves the same purpose of conveying title, though.
Determining Property Boundaries
There are a few different methods of surveying that yield valid legal descriptions: Metes and bounds Rectangular survey system Block and lot These methods may use existing legal descriptions or surveys as a reference. A single property may be described using one or multiple methods. All of these are accurate methods of identifying a piece of land, with metes and bounds being the most common.
Consideration (usually money for the transaction - something of value)
They say there's no such thing as a free lunch, and in the eyes of the law, there's no such thing as free real estate either. 💸 To be valid, all deeds must have a clause acknowledging that the grantor has received consideration. Consideration is something of value exchanged by the parties as evidence of agreement to the terms of a contract. Promises, goods, and services can all be considered consideration. Usually, consideration is money. But in cases when property is gifted to the grantee, consideration can be as simple as "for love and affection." Aww!
Rectangular Survey System (Not used in NY)
This is a generally easier way to describe newly acquired or surveyed land. While the metes and bounds method requires a physical monument or boundary description, the rectangular survey system method depends on longitude and latitude mapping. The rectangular survey system uses a refined version of the longitude and latitude system of mapping. It involves a surveyed grid of meridians, base lines, townships, and ranges to describe a piece of land. It's sometimes called a government survey system.
Finding the Acreage
To make sure you understand how the acreage is found, let's go through a problem together. (Remember: one square mile equals 640 acres.) Let's say we are interested in the N 1⁄2 of SW 1⁄4 of NE 1⁄4. To find the acreage we would need to multiply the following: 640 × 1⁄2 × 1⁄4 × 1⁄4 This would give us a total of 20 acres!
Surveys and Surveying
To reduce confusion and legal disputes, surveys are used as a way of creating legal descriptions for properties. A survey is the process and physical product of finding and measuring the boundaries of a piece of real estate, including the location of improvements, encroachments, and easements. (Improvements are permanent, human-made additions to the property.) All surveys are conducted by trained and qualified professionals. In fact, they need to be licensed to do so.
Tiers
Township Lines run west and east, parallel to the baseline and 6 miles apart from each other. The sections of land that township lines create are called tiers. Like ranges to meridians, tiers are numbered by their positions either north or south of the baseline.
Devise and Descent
Voluntary alienation of property can also happen by devise after the owner's death. The owner transfers title using a will. The will conveys ownership to another upon the owner's death. A valid will is similar to a deed, in that it's an instrument for voluntary alienation. If a person dies without a will, the state will determine the heirs using the Statute of Descent and Distribution. The transfer of property by descent is actually involuntary alienation because the decedent didn't make the choice.
Acquisitions and Transfers
When a buyer purchases a parcel of property, they are acquiring an interest in that property along with all the rights attached to that property. When an owner sells a piece of property, the owner is choosing to transfer their ownership rights (the title) to the new owner.
Corporate Deeds
When a corporation wants to transfer property using a deed, its board of directors must pass a resolution. It must also have permission from two-thirds of stockholders if a lot of the company's real estate is changing hands. The laws regarding corporate deeds are strict and can get complicated in a hurry. Rules can vary based on the type of corporation involved, especially if it's a not-for-profit or a religious organization. This is an example of the kind of transaction in which help from an attorney is crucial.
Acknowledgment is not essential to the validity of a deed. However...
a deed without acknowledgment cannot be recorded in most states, including New York. To help ensure good title, a grantee should always make sure that the grantor's signature on a deed be authenticated by acknowledgment. Once acknowledged, the deed can be recorded.
reference to a plat
a description on a deed that includes the property's location on a plat map
metes and bounds
a land survey process in which a licensed land surveyor starts at a readily identifiable point of beginning and defines the boundaries of a property in terms of distances and compass directions, finally returning to the point of beginning
parcel
a part or portion of land, often used to identify a specific lot within a larger tract of property
block and lot
a type of legal description that identifies a piece of platted property by referring to the lot and block numbers in the subdivision
Block and Lot (In New York as the section, block, and lot system)
also known in New York as the section, block, and lot system. It's a type of legal description that identifies a piece of platted property by referring to the (You guessed it!) section, lot, and block numbers in a subdivision. This is the most modern type of legal description. Understandably, it's well suited for cities and suburban communities. This method uses metes and bounds to first locate the borders of each parcel. A parcel is a part or portion of land, often used to identify a specific lot within a larger tract of property. Once the surveyor has established the property's perimeter, they can record the dimensions on a plat map for reference. The plat is then divided into blocks and lots with numbers or letters assigned by the developer (example: "Lot A, Block 2 of Sunny Brook, Happy County, New York"). This is a reference to a plat, a description on a deed that includes the property's location on a plat map. Plat maps are recorded in government office records, making them quite official and reliable.
land patent
an instrument that conveys public land to an individual
conveyance (deed)
an instrument that transfers a grantor's interest in real property When an owner of real property wants to convey their ownership to someone else, they use a conveyance. Another word for conveyance, which you'll hear quite often, is deed.
adverse possession
involuntary transfer of title from an owner who does not use or inspect their land for a number of years to another person who has some claim to the land and takes possession. The possession must be open, notorious, and hostile for 10 years. If the property owner does not file a suit, or remove the trespasser within the prescribed period, the adverse possessor receives title. The intent of the adverse possession laws is not to legally steal someone's property, but rather to clear up boundary and title disputes. Adverse possession claims are unusual, and they tend to build incrementally over years without notice or fanfare. A typical claim might include the family that gradually takes over the empty lot next door to their home, or the rancher who has fenced in an adjoining tract and pastured their cattle there for a decade. License holders immersed in a transaction that involves a boundary or title dispute would be well advised to say little but urge their principal to immediately contact competent legal advice.
voluntary alienation
the method by which property is transferred from the current owner to another party either by sale or gift The most common instrument for voluntary alienation is a deed. In order to officially transfer title, the owner will use the deed to convey title in the property to another. The deed must be in writing per the statute of frauds. There are two parties to this conveyance: The seller (called the grantor) who signs the deed The grantee, a.k.a. the person receiving title either through purchase or gift
grantee
the person who receives a conveyance of real property in a transaction To be valid, a deed must name a grantee. Their full, proper name (including any designations like Jr. or Sr.) should be listed. This way, it's clear who's getting the title and the potential for mix-ups is reduced. If the deed is going to be recorded, the addresses of the grantor and grantee should be included as well. If more than one grantee is involved, the granting clause needs to specify each grantee's rights to the property. If a deed names a fictitious person, it's considered void.
grantor
the person who transfers title to real property in a real estate transaction Of legal age: According to New York law, a person reaches the age of majority at 18. If a minor enters into a deed, that deed is usually considered voidable. Of sound mind: A grantor also has to be of sound mind, which means they need to be legally competent. If the grantor is judged to be legally incompetent, the deed is voided. A grantor's name has to be spelled correctly and consistently throughout the deed. If, for any reason, a grantor's name has been changed from what it was when the title was originally acquired, they must show both names. Example: "John Smith, now known as Jamie Smith"
public grant
the transfer of government-owned land to an individual
dedication (dedication by deed)
the voluntary gift of one's land to the government; also known as dedication by deed
involuntary alienation
transfer of title to property without the owner's consent, usually carried out by operation of law