California Real Estate Chapter 3

Exclusions & reservations clause

"A list of any encumbrances (easements, private restrictions, or liens) that will burden the grantee in taking the title. However, valid encumbrances usually remain in force even if they aren't listed in the deed."

Lis pendens

"A notice of pending legal proceedings that may affect property"

Title

"A person who owns property is said to have title to it."

Description of the Property

"A valid deed must contain an adequate description of the property to be conveyed. The full legal description should always be used, although a deed can be valid without that, as long as it has a description that makes it possible to identify the property."

Codicil

"An amendment to a will"

Identification of the Parties

"Both the grantor and the grantee must be identified in the deed. The name of the grantee is not required, as long as an adequate description is given; for example, "John T. Smith's only sister." The grantee may also take title under a fictitious name. A married couple to be referred to in a deed as (for example) "John T. Smith, et ux." "Et ux." is a Latin abbreviation that means "and wife." Now it is standard practice to give the name of each spouse in full."

Personal representative

"Either an executor or an administrator may be referred to as the testator's personal representative."

Testate

"Someone who leaves a valid will when he dies is said to have died testate"

Living Grantee

"The grantee does not have to be legally competent in order for the deed to be valid. It is only necessary for the grantee to be alive (or, if the grantee is a corporation, legally in existence) and identifiable when the deed is executed."

Tacking

"The periods of possession of successive adverse possessors can be added together to equal the statutory time period" Ex.: "Tanaka adversely possesses property for four years, then transfers possession to White, who possesses the property for three years. White can claim title because the total period of adverse possession is more than five years."

Testator

"The person who makes a will"

Nonessential Terms

"There are some elements that should be included in a deed even though they aren't legally required. " 1. Habendum clause 2. Exclusions & reservations clause 3. Recital of consideration 4. Grantor's seal 5. Warranties 6. Technical terminology "The date of conveyance is standard, but not legally required. "

Deeds most often in California are?

1. grant deed, 2. the quitclaim deed, 3. the trustee's deed, 4. deeds executed under court order

Quiet Title

"A cloud on a property owner's title can often be cleared away by having the potential claimant sign a quitclaim deed, which releases any interest he might have. In situations where that solution is unavailable, the property owner may file a quiet title action to have the cloud removed. In a quiet title action, the court decides questions of property ownership. The result is a binding determination of the various parties' interests in a particular piece of real estate."

Devisee

"A gift of real property in a will" Ex. "A testator devises real property to devisees"

Attorney in fact

"An attorney in fact (not necessarily a lawyer) is someone the grantor has appointed to act on her behalf in a document called a power of attorney." "A deed can also be signed by the grantor's attorney in fact"

Leaseholder's policy

"Insures only the validity of a lease"

Perfecting Title

"Since an adverse possessor's interest is not apparent from the public record, he must take additional steps to establish marketable title. Unless the true owner is willing to provide a quitclaim deed, the adverse possessor will have to file a quiet title action."

Intestate

"Someone who dies without a valid will is said to have died intestate"

Foreclosure

"Someone who holds a lien against real property may force the sale of the property if the debt secured by the lien isn't paid. Foreclosure is available for any type of lien that attaches to real property, including mortgages, deeds of trust, mechanic's liens, and judgment liens."

Beneficiaries

"Those who receive property through a will are called the beneficiaries." A person who is bequeathed personal property in a will is a legatee. A person who is devised real property in a will is a devisee.

Warranties and covenants

Promises "May be stated in the deed if the parties so desire"

Legal Requirements

Under California law, a will generally must be: 1. in writing, 2. signed by the testator, 3. attested to by at least two competent witnesses.

Reformation deed

When used to cure a cloud on the title, a quitclaim deed is sometimes called a reformation deed. "Perhaps one of the parties' names was misspelled, or the land description was inaccurate. A quitclaim deed used in this way"

Lender's policy

"(Also called a mortgagee's policy) protects a lender's security interest, insuring the lender's lien priority" A mortgagee's policy provides title insurance coverage to protect the lender's security interest.

Requirements for a Valid Deed

"A deed will transfer title only if it meets the legal requirements for validity. To be valid, a deed must:" 1. be in writing, 2. identify the parties, 3. be signed by a competent grantor, 4. have a living grantee, 5. contain words of conveyance (the granting clause), 6. include an adequate description of the property

Interest Insured

"A title insurance policy is designed to insure the particular interest that the policy holder has in the property." "An ordinary residential transaction typically involves two title insurance policies: an owner's policy to protect the buyer, and a lender's policy to protect the buyer's lender. The lender will require the buyer to pay for the lender's policy as a condition of making the loan." In a title insurance policy, the title company agrees to reimburse the policyholder for losses resulting from title problems covered by the policy.

Heirs

"Persons who take property by intestate succession"

Special warranty deed (General warranty deed)

"Rarely used in California", but in some other states it's the most commonly used type of deed (In California, deed warranties have effectively been supplanted by title insurance as a way of assuring buyers of marketable title.) "Title insurance has made it largely unnecessary for buyers to rely on deed warranties" "Contains the same covenants found in the general warranty deed, but the scope of the covenants is limited to defects that arose during the grantor's tenure. The grantor makes no assurances regarding defects that may have existed before she obtained title. This type of deed may be used by entities such as corporations, which may not have the authority to make further warranties."

Marketable title

"Title that is free from serious defects"

Deeds Executed by Court Order

"Used to convey title after a court-ordered sale of property. A common example is the sheriff's deed used to transfer property to the highest bidder at a court-ordered foreclosure sale" "Usually states the exact amount of the purchase price approved by the court and carry no warranties of title."

Habendum clause

"("To have and to hold" clause), which states the nature of the interest the grantor is conveying. A deed defines or limits the type of estate that is being transferred to the grantee. If there is no habendum clause, the deed is presumed to convey a fee simple absolute. Is the grantor conveying a fee simple absolute or a life estate? If a deed doesn't have a habendum clause, it is presumed to convey a fee simple absolute. Unless otherwise specified, the grantor's entire interest is presumed to pass to the grantee. If there is more than one grantee, the deed should say how they will hold title. For example, is this a tenancy in common or a joint tenancy?"

Standard coverage policy

"(Sometimes called a CLTA policy) insures against defects in title, including hidden risks such as forgery. It does not insure against the interests of a person in actual possession of the property, such as an adverse possessor; against title defects known by the owner but not disclosed to the title insurer; nor against interests that would be disclosed by an inspection of the premises, such as an encroachment. (However, if a policy holder wants coverage for a specific item not ordinarily covered by a policy, it may be possible to purchase an endorsement to cover that item.)" Coverage: 1. Marketable title 2. Latent defects in title a. Forged deed b. Incompetent grantor 3. Right of access

Extended coverage policy

"(Sometimes called an ALTA policy) insures against all matters covered by the standard policy, plus matters not of public record, such as the rights of parties in possession of the property, unrecorded mechanic's liens, and encroachments." Coverage: 1. Marketable title 2. Latent defects in title a. Forged deed b. Incompetent grantor 3. Right of access 4. Parties in possession a. Tenants b. Adverse possessors 5. Matters discovered by survey a. Boundary lines b. Encroachments c. Area 6. Unrecorded mechanic's liens 7. Tax liens

Acknowledgment

"A formal declaration made before an authorized official, such as a notary public or county clerk, by a person who has signed a document; he states that the signature is genuine and voluntary." "Occurs when the grantor swears before a notary public or other official witness that her signature is genuine and voluntary. The witness cannot be a person who has an interest in the transfer. For example, if Grandma deeds her property to Granddaughter, who is a notary public, Granddaughter should not be the one to notarize the deed." "A deed may be considered valid even if the grantor's signature is not acknowledged. But in California and many other states, a deed can't be recorded unless it has been acknowledged. However, an unacknowledged deed cannot be recorded." "A valid deed becomes effective, so that title is transferred, when the deed is delivered to the grantee"

Subsequent good faith purchaser without notice

"A grantee who fails to record his deed can lose title to a subsequent good faith purchaser without notice: someone who later buys the property in good faith and without actual or constructive notice of the earlier conveyance. In a conflict between two purchasers, the one who records his or her deed first has good title to the property—even if the other purchaser's deed was executed first."

Signed by a Competent Grantor

"A grantor must be legally competent when she signs the deed. This means that the grantor must be an adult (at least 18 years old) and must be of sound mind. If the grantor is not legally competent, the deed is not valid." "In addition to requiring a deed to be in writing, the statute of frauds also requires the document to be signed by the party who is to be bound by the transfer. Thus, the grantor must sign the deed. The deed is considered to be executed at the time of the grantor's signature. If the grantor's signature is a forgery, the deed is void. If the grantor can't sign his full name (due to disability or illiteracy), he may sign by making a mark. But a signature by mark must be accompanied by the signatures of witnesses who can attest to the grantor's execution of the deed." "If there is more than one grantor, all of the grantors must sign the deed. If the prior deed named more than one grantee, all of them must sign as grantors of the new deed when they convey the property to someone else." "Signatures of both spouses are required to convey community property. For this reason, it is a good idea (although not required) to state the grantor's marital status in the deed and to obtain the spouse's signature if the grantor is married, even if the property is not community property."

Adverse Possession

"A means by which a person may acquire title to property by using it openly and continuously without the owner's permission for the required statutory period." "Another form of involuntary alienation, is the process by which possession and use of property can mature into title. The law of adverse possession encourages the fullest and most productive use of land. It provides that someone who actually uses property may eventually attain a greater interest in that property than the owner who does not use it. The specific requirements for obtaining title by adverse possession vary from state to state. These requirements are often quite technical, and they must be followed exactly in order to obtain title. Legal advice should be obtained in any transaction where title may be affected by adverse possession."

Constructive notice

"A person has constructive notice of a fact if, in the eyes of the law, she should have known about it, whether or not she actually did." "Notice of a fact that a person is held by law to have (as opposed to actual notice). She had the opportunity to discover the fact in question by searching the public record." "In addition to providing constructive notice, recording also creates a presumption that the recorded instrument is valid and effective. Recording will not serve to validate an otherwise invalid deed, nor will it protect against interests that arise by operation of law, such as adverse possession."

Wild Deeds

"A recorded deed that is outside the chain of title" "In some situations, even though a document has been recorded, it is not part of the chain of title for the property." "A wild deed won't necessarily be discovered in a standard title search." "The general rule is that a subsequent purchaser is not held to have constructive notice of a wild deed." "In the example, Cooper's title is unprotected against subsequent good faith purchasers. Suppose Atwood (who knows that Burns never recorded her deed) fraudulently sells the property to Dunn, a subsequent good faith purchaser without notice of Cooper's claim. A court could rule that Dunn has good title to the property, not Cooper."

Partition

"A suit for partition is a way to end co-ownership and divide the property. " "Sometimes co-owners of property can't agree about what should be done with it. For example, one might want to sell the property, but the others refuse to; or they may all want to sell it, but disagree about their respective ownership shares." "When a co-owner files a partition suit, the court decides on a fair disposition of the property, and all of the co-owners are bound by that decision. If it's impractical to divide the property itself, the court can order it sold and divide the proceeds among the co-owners."

Involuntary alienation

"A transfer of property without any action by the owner, as a result of the operation of law." "Involuntary alienation of real property can be the result of rule of law, adverse possession, or accession. Alienation by rule of law includes dedication, intestate succession and escheat, condemnation, and court decisions regarding real property."

Avulsion

"Accretion and reliction are both gradual processes. By contrast, avulsion occurs when land is violently torn away by flowing water or waves and deposited somewhere else, or when land is exposed by a sudden change in a watercourse. Avulsion doesn't necessarily result in involuntary alienation of the land that has been moved or exposed. The original owner still has title to it, if there's some way to reclaim it. If unclaimed, it eventually becomes part of the property it's now attached to."

Actual, Open, & Notorious

"Actual possession means occupation and use of the property in a manner appropriate to the type of property in question. Residence on the property is not required unless residence is the appropriate use." "Actual possession of farmland may be achieved by fencing the land and planting crops, while actual possession of urban property would require a residential or commercial use of the property" "The requirement of "open and notorious" possession means that the possession must put the true owner on notice that his interest in the property is being threatened. "Open and notorious" possession and "actual" possession overlap. Actual possession is generally considered to provide reasonable notice to the world that the adverse possessor is occupying the property."

Title report

"After the title search is completed, the title company prepares a title report describing the condition of the title. The report lists all defects and encumbrances of record; these items will be excluded from the policy coverage. "A report issued after a title search by a title insurance company, listing all defects and encumbrances of record" Based on the report, the parties to the transaction may arrange to have certain liens paid off or other problems resolved. Once the buyer is satisfied with the condition of the title and the transaction is ready to close, the title company issues a title insurance policy in exchange for the required premium. One premium payment covers the entire life of the policy." "The protection provided by a title insurance policy may be limited in a number of ways. As was just mentioned, all defects and encumbrances of record are listed in the policy and excluded from coverage. In addition, the liability of the title company cannot exceed the face value of the policy. The extent of protection also varies according to the type of policy purchased, as described below."

Continuous & Uninterrupted; Payment of Taxes

"An adverse possessor must have continuous and uninterrupted possession of the property for the length of time prescribed by state statute. In California, the possession must be continuous and uninterrupted for five years, and the adverse possessor must pay the taxes on the property during that period." "In some cases, intermittent use of the property may be enough to fulfill the continuity requirement. This is true if the property is a type that an owner would ordinarily use only at certain times of year, such as seasonal farmland or summer resort property. However, the continuity requirement is not met if the adverse possessor fails to use the property for a significant period when it would ordinarily be used, or if the true owner interrupts the period of exclusive possession." "Note that title to government property can never be acquired by adverse possession."

Delivered

"Delivery must occur while the grantor is alive." The grantor must have the intention of immediately transferring title to the grantee. "Example: After Sam Wiggins died, a deed was found in his safe "deposit box. The deed granted Sam's farm to his nephew, Frank Wiggins, but Frank knew nothing about it. The deed is void because it was not delivered during Sam's lifetime." "Delivery is more than the mere physical transfer of the document; the grantor's intent is a key element of delivery. The grantor must have the intention of immediately transferring title to the grantee. The conveyance is completed when the grantee accepts delivery of the deed. The grantee may accept delivery of the deed through an agent."

Recording Procedures

"Filing a copy of the deed or other document at the county clerk's office (or recorder's office) in the county where the property is located. Documents are recorded chronologically, in the order in which they were filed for recording. Each recorded document is assigned a recording number." "Recorded documents have traditionally been indexed by the grantor's last name and by the grantee's last name, and sometimes by tract or property description. Computerization has made this indexing less important; in most cases, computer search functions can now be used to locate documents in the public record."

The Legal Effects of Recording

"Having a document recorded has two extremely important legal consequences. It provides notice of the interest conveyed in the document, and it establishes the priority of that interest."

Inverse Condemnation

"If a property owner feels that his property has been taken or damaged by a public entity, the owner may file a lawsuit called an inverse condemnation action to force the government to pay the fair market value of the property."

Administrator

"If the testator did not name an executor, the probate court will appoint an administrator to perform those functions."

Extent of Coverage

"In California, as in other states, title insurers have traditionally offered two main types of coverage: 1. Standard coverage and 2. Extended coverage. In recent years, these have been joined by a third type, 3. Homeowner's coverage"

Requirements

"In California, there are five basic requirements for adverse possession. Possession of the land must be: 1. actual, open, and notorious, 2. hostile to the owner's interest, 3. under claim of right or color of title 4. continuous and uninterrupted for a specific period of time, and 5. the adverse possessor must have paid the property taxes during the required period of possession."

Acknowledgment, Delivery, & Acceptance

"In addition to a valid deed, a proper conveyance of real property also involves acknowledgment, delivery, and acceptance of the deed."

Power of attorney

"Must include a description of the property and specifically authorize the attorney in fact to convey it. It should be recorded in the county where the property is located. Note that the law does not allow an attorney in fact to deed his principal's property to himself." "Deeds from corporations are usually signed by an authorized officer of the corporation, and the signature must be accompanied by the corporate seal."

Voluntary alienation

"Occurs when an owner deliberately transfers title to someone else." "Voluntary alienation of real property includes the transfer of title by patent, by deed, or by will."

Recording

"Once an interest in property has been transferred (voluntarily or involuntarily), the new owner may protect his interest by having the deed or other document of conveyance recorded. When a document is recorded, it is placed in the public record, so that anyone who's interested can look it up and read it. The recording system provides convenient access to information regarding ownership of real property."

Holographic will

"One where all of the material provisions as well as the signature are in the testator's own handwriting. A holographic will may be valid even though it was not signed in the presence of witnesses. If any portion of an otherwise valid holographic will is typewritten or preprinted, those provisions will be disregarded by the probate court, except for statements of testamentary intent in a commercially printed will form." A holographic will is a will written entirely in the testator's own handwriting, rather than typewritten or filled in on a printed form. In California, a holographic will may be valid even though the testator's signature was unwitnessed. However, if any part of a holographic will is typed or preprinted, that portion will be disregarded by the probate court.

Possession and Notice

"Possession of the land by someone other than the seller gives notice to the buyer that the possessor may have an interest in the property, and the buyer then has a duty to inquire into the matter further." "This is sometimes called "inquiry notice" or "implied notice."

Trustee's Deed

"Property is foreclosed under a deed of trust, the trustee conveys the property to the buyer at the foreclosure sale with a trustee's deed. When a deed of trust is foreclosed on, a trustee's deed is used to convey title. The trustee's deed states that the conveyance is in accordance with the trustee's powers and responsibilities under the deed of trust."

Bankruptcy

"Property may also be conveyed by order of a bankruptcy court. Once a bankruptcy petition is filed, the court has the authority to distribute the eligible property of the debtor in order to satisfy creditors' claims. The debtor's real property may be sold to satisfy the claims of mortgage lenders or other creditors."

Warranty deed

"Rarely used in California" "Title insurance has made it largely unnecessary for buyers to rely on deed warranties" "Gives the greatest protection to a real estate buyer. The grantor makes five basic promises, or covenants, to the grantee. These covenants warrant against defects in the title that arose either before or during the grantor's period of ownership (tenure)"

Statute of frauds

"State law that requires certain contracts and other legal transactions to be in writing" Under the statute, an oral conveyance of title to real property is not valid.

In Writing

"Statute of frauds is a state law that requires certain contracts and other legal transactions to be in writing. With only a few minor exceptions, the statute of frauds applies to any transfer of an interest in real property. An unwritten deed cannot transfer title; it has no legal effect."

Actual notice

"Straightforward. A person has actual notice of a fact if she actually knows about it. She personally observed it, read about it, or was told about it."

Claim of Right or Color of Title

"The adverse possessor must have a good faith but mistaken belief that she is the owner of the land." Ex.: "One who takes possession under an invalid deed. In that situation, the adverse possessor may acquire title to all the property described in the defective instrument, even if she occupies only part of the property."

Hostile

"The adverse possessor must intend to claim ownership of the property and defend that claim against all parties. Hostile intent is proven by the adverse possessor's actions. If the adverse possessor uses the property in the same fashion as an owner would use it, then hostile intent exists. Note that the hostility requirement cannot be satisfied if the possession is with the permission of the actual owner"

Eminent domain

"The government has the constitutional power to take private property for public use, as long as it pays the owner for the property." "The power of eminent domain can be exercised only if two requirements are met: 1. The intended use must be a public use—that is, it must benefit the public; and 2. The owner must be paid just compensation, which is the fair market value of the property." "Taking property for a public park would qualify as a public use. A forced sale in this context is sometimes called a government taking, or just a taking. In cases of mixed public and private benefit the question is more difficult, but generally there is no authority for the government to take one person's land for the sole purpose of turning it over to another person. The power of eminent domain may be exercised by any government entity, and also by some semi-public entities, such as utility companies."

Condemnation

"The legal process used to acquire property by eminent domain" "The act of taking private property for public use under the power of eminent domain"

Grant Deed

"The most commonly used deed in California." A grant deed must use the term "grant" in its words of conveyance. Carries two warranties: 1. The covenant of the right to convey (Grantor has not previously conveyed title to anyone else), 2. The covenant against encumbrances caused by the grantor (Grantor has not caused any encumbrances to attach to property other than those already disclosed)." "Also conveys to the grantee all after-acquired title of the grantor." "Which means that if the grantor's title was defective at the time of transfer, but the grantor later acquires a more perfect title, the additional interest passes automatically to the grantee under the original deed." "Ex. Warner conveyed her property to Meyers on June 1, by a grant deed. However, Warner did not have valid title to the property on June 1 because she held title under a forged deed. On August 12, Warner received good title to the property under a properly executed deed. Meyers automatically acquired good title to the property on August 12."

Grantor

"The owner of real property with a deed" To satisfy the statute of frauds, a deed must be in writing and signed by the grantor. A deed must be signed by the grantor. A deed without the grantor's signature is ineffective, even if it has all of the other elements needed for validity. A grantor may sign with a mark, if the mark is witnessed. If a corporation is the grantor, a corporate seal may be added to confirm that the person signing had authority to sign on behalf of the corporation. Or if a grantor is conveying title to a husband and wife, he may convey title to "William Smith, et ux." "Et ux." is an abbreviation from Latin that means "and wife." Although no longer widely used, you may see it on older deeds. A deed is valid only if the grantor is legally competent when she signs it. In other words, the grantor must be an adult of sound mind. In California, a grantor must be at least 18 years old to execute a valid deed. If the grantor's signature is determined to be a forgery, the deed is void. Also, if the grantor can't sign the deed himself, it may be signed by the grantor's attorney in fact. The attorney in fact will write the principal's name, followed by his own signature as attorney in fact. An attorney in fact is not necessarily a lawyer (an attorney at law), but simply someone the grantor has appointed as his representative. When the property being transferred is owned by more than one person, all of the owners must sign the deed as grantors. If the previous deed named several grantees, all of those grantees should be signing the new deed as grantors.

Alienation

"The process of transferring ownership of (title to) real property from one party to another" "May be either voluntary or involuntary" All of the different methods by which real property can be transferred from one person to another. Whether accomplished by means of a deed, a will, foreclosure, or in any other way, a transfer of ownership is a form of alienation. Alienation is the opposite of acquisition of property.

Conveyance

"The process of transferring real property from the grantor to the grantee by deed" A valid deed must include words of conveyance, sometimes called a granting clause. The deed must explicitly state in some way that the property is being transferred from the grantor to the grantee. Any of several different words can be used to fulfill this requirement, such as "grant" or "convey."

Words of Conveyance

"The requirement of words of conveyance, the granting clause, is easily satisfied. The single word "grant" or a similar word is sufficient. Additional technical language generally should be avoided, since it adds nothing to the validity of the deed."

Common law dedication

"The usual requirement for common law dedication is the owner's acquiescence in the public's use of her property for a prolonged period of time. If property has been used by the public long enough, a government entity can pass an ordinance accepting a common law dedication. The dedication may be treated as a transfer of ownership, or it may establish only a public easement, depending on the circumstances." "Ex.: Barker owns some lakefront property. For many years, people from town have walked across a corner of his lot to gain access to the lake, and Barker has done nothing to prevent this. Barker's acquiescence to this public use could be considered a common law dedication."

Reliction

"The water in a stream or lake may gradually recede; this retreat from the land is called reliction, or sometimes dereliction. When riparian or littoral land is enlarged by the gradual retreat of the body of water, the landowner acquires title to the newly exposed land. Like accretion, reliction must be very gradual."

Wills

"The written declaration of an individual that designates how her estate will be disposed of after death." A will (or testament) is a legal document in which a person specifies how his property is to be distributed when he dies." Valid Will 1. In writing 2. Signed by testator 3. Two competent witnesses "Transfer by will is another method of voluntary alienation" "The will must be signed by the testator in the presence of the witnesses. The witnesses must also sign an acknowledgment that the testator declared the document to be her will." "California also recognizes a type of unwitnessed will"

Chain of title

"This includes tracing the chain of title (the series of recorded deeds that transferred the property from one owner to the next) back in time far enough to establish whether the seller is the true owner." "A complete history of all of the recorded interests in a piece of real property. Also, the series of deeds that transferred title from one owner to another"

Descent

"Those who receive property by intestate succession are said to have received property by descent, rather than by devise or bequest. Intestate succession is supervised by the probate court. The court appoints an administrator, who is responsible for distributing the property in the manner required by statute."

Types of Title Insurance

"Title insurers in California generally use policy forms published by the California Land Title Association (CLTA) & the American Land Title Association (ALTA). " "Title insurance policies can be categorized in two basic ways: 1. According to what interest is being insured, 2. According to the extent of the coverage provided."

Escheats

"Title to the property passes to the state government" "If a person dies intestate and the probate court is unable to locate any heirs, then the intestate person's property escheats." "The reversion of property to the state when a person dies without leaving a valid will and without heirs entitled to the property." "Since the state is the ultimate source of title to property, it is also the ultimate heir when there are no intervening interested parties. To obtain title to the property, the state Attorney General must follow the appropriate legal procedures. The state may also take ownership of abandoned property through escheat."

Recital of consideration

"To indicate that the transfer is a purchase instead of a gift. Many deeds include a recital of consideration as an indication that the conveyance was not a gift to the grantee. (If the transfer were a gift, the grantee might be vulnerable to the claims of the grantor's creditors.) Consideration is something of value, such as money or property, exchanged by the parties to a transaction. The recital of consideration in a deed usually doesn't state the actual purchase price paid; instead, it may say something like "for good and valuable consideration."

Executor

"Under the court's supervision, the estate property is managed and distributed to the beneficiaries by an executor appointed in the will." It is the executor's responsibility to carry out the terms of the will after the testator's death.

Accretion

"Waterborne soil may be deposited on land beside a body of water. The deposited soil is called alluvion or alluvium, and the process is called accretion. When riparian or littoral land is slowly enlarged in this way, the riparian or littoral owner acquires title to the new land. A key feature of accretion is that the buildup of soil must be so gradual that the process is virtually imperceptible"

Intestate Succession

"When someone dies intestate (without a valid will), the law provides for the distribution of his property" "The order of succession varies from state to state, but in general the property passes first to the surviving spouse, then to any surviving children, then to various other relatives. In California, a surviving spouse is entitled to all of the community property. If there is one child, the decedent's separate property is divided evenly between the surviving spouse and that child. If there is more than one child, the surviving spouse gets one-third of the separate property, and the children share equally in the remaining two-thirds."

Title search

"When someone is considering buying a particular piece of property, a title search is performed to determine the validity of the seller's title and find what other claims there are against the property. "An inspection of the public record to determine all claims and interests affecting a piece of property" A title searcher tries to locate all of the documents in the public record that affect title to the property in question." "Almost any document affecting title to land may be recorded: a deed, a mortgage, an abstract of judgment, a lis pendens, and so on." "A deed or other document of conveyance must be acknowledged before it can be recorded, mainly to protect against forgeries. Also, antidiscrimination laws prohibit the recording of deeds that contain racially restrictive covenants"

Title defects

("Clouds" on title) "Problems with a real property owner's title" A common reason for using a quitclaim deed is to clear up title defects, which are often referred to as clouds on the title. Clouds are problems appearing in the public record that cast doubt on the status of the title. Ex. "If someone other than the current owner claims an interest in the property based on a transaction that took place long ago, that claim is a title defect or cloud on the owner's title."

Bequest

(Legacy) "A gift of personal property in a will" A transfer of personal property by will is called a bequest, and the recipients are called legatees. A testator bequeaths personal property to a legatee. Ex. "A testator bequeaths personal property to legatees"

A grant deed uses the term "grant" in its words of conveyance and carries two warranties:

1. "the grantor has not previously conveyed title to anyone else, and 2. the grantor has not caused any encumbrances to attach to the property other than those already disclosed." "Both apply even if they are not expressly stated in the grant deed" The words of conveyance state that the grantor is transferring the property to the grantee. The words of conveyance are also called the granting clause.

Deeds

A deed is the document a private landowner uses to transfer real property to someone else. "The most common form of voluntary alienation is transfer by deed." "A written instrument that, when properly executed, delivered, and accepted, conveys title or ownership of real property from the grantor to the grantee" A deed must: 1. be in writing and signed; 2. identify the parties; 3. have a competent grantor; 4. specify a living grantee; 5. contain words of conveyance; and 6. adequately describe the property 7. The deed must also be acknowledged, delivered, and accepted. The deed must identify the parties—the grantor and the grantee. It isn't absolutely necessary to state the grantee's name in the deed, as long as it includes a description that makes it possible to identify him or her. A valid deed must have an adequate property description. Although a complete legal description isn't required, the deed must make clear what property is being conveyed. A description is adequate if a surveyor could use it to locate the property. The description does not have to describe the buildings on the property.

Grantee

A party that is receiving all or part of a grantors interest in real property" The grantee does not sign the deed. The grantee does not need to be competent. He only needs to be alive or in existence at the time of conveyance. "A grantor conveys real property to a grantee by means of a deed." In contrast, the grantee's signature isn't necessary. In fact, the grantee ordinarily doesn't sign the deed. It isn't necessary for the grantee to be legally competent, but the grantee must be alive at the time of the conveyance. A valid deed requires a living grantee. If the grantee is fictitious (i.e., nonexistent) or dead, the deed does not transfer title.

Quitclaim Deed

A quitclaim deed offers no warranties, conveys no after-acquired title, and creates no liability for the grantor. It is typically used to clear away clouds on title. "A deed that conveys and releases any interest in a piece of real property that the grantor may have." "Contains no warranties of any sort, and it will not convey after-acquired title." "Does transfer any right, title, or interest the grantor has at the time the deed is executed" "Conveys only whatever interest the grantor has when the deed is delivered to the grantee; nothing at all if the grantor has no interest at that time. A quitclaim deed is not appropriate for a standard real estate transaction; a buyer should insist on a grant deed. If a seller tries to use a quitclaim deed, that should be a red flag for the buyer. There may be some problem with the title that the seller hasn't disclosed. But if the grantor does have an interest in the property, the quitclaim deed will convey it just as well as any other type of deed." "Common reason for using a quitclaim deed is to correct a technical flaw in an earlier deed." "Can also be used to prevent or clear away clouds on title caused by the possibility that someone other than the current owner might be able to claim an interest in the property." "A transfer of real property between family members is often made with a quitclaim deed." "Used when the grantor is unsure of the validity of his title and wishes to avoid giving any warranties." "Words such as "grant" or "convey" should be avoided" May imply that the grantor is warranting the title." Should use only terms such as "release," "remise," or "quitclaim" to describe the transfer."

Owner's policy

An owner's policy provides title insurance coverage for the buyer, the new owner of the property. "An owner's policy insures the title of the property buyer (the new owner)" "Has traditionally been standard coverage. Now, however, the owner's policy in a residential transaction is more likely to be homeowner's coverage than standard coverage. In California, most residential purchase agreement forms now provide that a homeowner's policy will be obtained for the buyer, unless otherwise agreed."

Accession

Any addition to real property from natural or artificial causes. An addition to one person's property sometimes involves the involuntary alienation of another person's property. This type of involuntary alienation may occur as a result of one of these natural processes: 1. Accretion, 2. Reliction, 3. Avulsion.

Statutory dedication

As we've discussed, it's called dedication when private property is transferred to public ownership, without compensation to the private owner. While dedication can be a voluntary gift, in many cases the transfer is made under some legal constraint. It is a gift only in the sense that the owner is not paid for the property. This type of transfer is called involuntary dedication. "It involves compliance with relevant statutory procedures" "Ex.: The county requires a land developer to dedicate land within a new subdivision for public streets. Otherwise, the county will deny permission to subdivide." "The subdivision statutes require that land for streets and utilities must be dedicated before a parcel can be subdivided."

Involuntary Dedication

Dedication is the transfer of real estate from private ownership to public ownership, without payment to the private owner. As we've discussed, it's called dedication when private property is transferred to public ownership, without compensation to the private owner. While dedication can be a voluntary gift, in many cases the transfer is made under some legal constraint. It is a gift only in the sense that the owner is not paid for the property. This type of transfer is called involuntary dedication. "When a private owner volutarily or involuntarily donates real property to the public" "While dedication may be voluntary, most often it is required in exchange for a benefit from a public entity."

Notice

Many legal issues depend on whether a person had notice of certain information. If someone had notice of a particular fact, that means he knew or should have known it, and that may affect his legal rights. There are two main types of notice: 1. actual notice 2. constructive notice. "Recording a document gives constructive notice to "the world" (the public at large) of the property interest set forth in the document. Anyone who acquires an interest in a particular property is legally held to know about all earlier recorded interests in that property, whether or not he actually checked the public record."

Probate

Probate is the legal procedure for establishing the validity of a will and distributing property according to the terms of the will. "The legal procedure for proving the validity of a will and carrying out the testator's directions. Note that a will does not create any interest in property until the testator has died and the will has been probated." "In California, are handled in superior court." "If real property devised in a will is going to be sold by the personal representative on behalf of the devisees, then the conveyance may have to be approved by the probate court. (And if a real estate broker handles the sale, the listing agreement and commission rate will also be subject to court approval.)" "Alternatively, if the will is being administered under the Independent Administration of Estates Act, the personal representative may sell the real property without court approval if none of the estate beneficiaries object."

Court Decisions

Title to property can be conveyed by court order in accordance with statutes and common law precedents. The most common forms of court action affecting title to property are: 1. quiet title actions, 2. suits for partition, 3. foreclosures, 4. bankruptcies.

Patents

To transfer real property into private hands, the government gave an individual or a company a document called a patent. Grant by a sovereign "Title to land is transferred from the government to a private party by a document" "Title to all real property originates with the sovereign government." "The government holds absolute title to all the land within its boundaries, except the land that it has granted to various other entities or persons."