EXAM 3 (10,11,12,13,14,16,17)

the acknowledgement or proof of an instrument of writing may be made in this state before

1. a clerk of the district court 2. a judge or a clerk of the county court 3. a notary public *most are taken by a notary public.

on the intestate death of one of the spouses to a marriage, the community property estate of the deceased spouse passes to surviving spouse if

1. no child or other descendant of deceased spouse survives the deceased spouse 2. and all surviving children and descendants of the deceased spouse are also children or descendants of surviving spouse. if the child of deceased spouse is not a child or descendant of the surviving spouse then the spouse gets half of the community estate.

in order to obtain the status of bonafide purchaser for value without notice, the prospective purchaser has the obligation to....

1. search the record 2. look at the property to see who is in possesion.

real estate lien note contains

1. the amount 2; interest rate 3. and additional interest provisions for past due unpaid principal and interest.

Trustee's deed (foreclosure deed)

A deed executed by a trustee conveying land held in a trust.

Deed in Lieu of Foreclosure

A deed given by the mortgagor to the mortgagee when the mortgagor is in default under the terms of the mortgage. This is a way for the mortgagor to avoid foreclosure.

Deed

A deed is a written instrument by which a landowner transfers the ownership of his land.

Legal Description

A detailed way of describing a parcel of land for documents such as deeds and mortgages that will be accepted in a court of law. *property must be sufficiently described so that it is distinct from any other property, and so that it can be reasonably ascertained exactly which property is being conveyed. If the description of the property is indefinite that it cannot be identified with certainity, the deed is VOID.

release of lien

A lien on a property that is now free from a mortgage.

5 year statute of limitations

A person must bring suit not later than 5 years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who: cultivates, uses, or enjoys the property pays applicable taxes on the property claims the property under a duly registered deed * does not require title or color of title

Involuntary Alienation

A transfer of title to real property without the owner's consent .

Holographic will

A will written entirely by the testator with his own hand. does not require any witnesses. is a valid, binding will.

Texas law recognizes two types of wills

A witness will and a holographic will

acknowledgement of a deed

An acknowledgement is not necessary for the valid conveyance of real estate and is only necessary for recording. If a valid deed is not acknowledged or recorded, it is still good and binding between the parties.

Tacking (Adverse Possession)

An adverse possessor can tack together successive periods of adverse possession in order to satisfy the statutory period. However, tacking is not allowed if there are gaps in possession!

Adverse Possession

Basically somebody can enter upon your land, peaceably establish his claim of right to that property, and if the true owner is not diligent enough in trying to effect removal of the adverse claim to his property, the adverse claimant's right to property can ripen into full legal title against the interest of the true owner. 3,5,10,25-year statuses of limitations under which an adverse in Texas claimant can gain title of the property adversely to the true owner. default period is 10 years in TX.

what are advantages and disadvantages of wraparound mortgage?

Disadvantage- the buyer runs the risk of the seller may not pay off the prior lien notes and may default. Advantages- Grantor pays grantee directly. Basic seller financing, as opposed to outside financing.

t/f acknowledgement makes the instrument official or legal

False. Simply makes it recordable.

eminent domain

Power of a government to take private property for public use. exercised through a legal process called condemnation. may be delegated by the state.

What does the term matured indicate?

That the entire amount of the note is due and payable.

The compensation rights of the grantor under eminent domain proceedings are basically founded in...

The 14th and 5th amendments to the constitution. Article 1, section 17

25 year statute of adverse possession

The abstractor starts with the present owner and goes back in time to the sovereignty of the soil or back for only 25 years

right of redemption

The right to buy back. A debtor may buy back or redeem his or her mortgaged property when he or she pays the debt.

Bargain and sale deeds (deed without warranties)

These deeds contain no real warranty against unnamed limitations, and only imply that the grantor has the right to convey the property.

Court Ordered Deeds

Used when an officer of the court needs to convey title

If a deed doesn't have an identifiable grantee it is....

Void. NOT voidable

Lis pendent "lawsuit pending"

When a lien against a parcel of real estate may result from a lawsuit currently before the court one examining the public records should look for this

Reservation

a paragraph in a deed creating or reserving an interest to the grantor out of the title being conveyed. Ex: grantor could convey the surface rights but keep the mineral rights to himself.

Three year statute for adverse possession

a person must bring suit to recover real property held by another in peaceable and adverse possession under the title or color of title not later than three years after the day the cause of action accrues.

Covenant against encumbrances

a promise that the property is not encumbered with liens, easements, or other such limitations except as noted in the deed

the only sale of real property taxes in Texas is for

ad valorem taxes pursuant to state law

Section 121.012 of the civil practices and remedies code requires

all officers authorized or permitted by law to take acknowledgments shall keep a well-bound book.

actual notice

an assertion of real property interests that is open, continuous, and apparent to all who examine the property

nuncupative will

an oral will

Witness will (formal will)

by statute, must be: in writing be signed by the testator or by another person for him by his direction and in his presence Be attested by two or more creditable witnesses above the age of 14.

Covenants

clauses in deeds that are usually given or received as consideration for transfer of title. ex: a deed may contain a covenant that as part of the conveyance, the grantee agrees not to construct any noxious or odorous industrial plants on the property, or even prohibitions of using the land to construct slaughterhouses or wastewater facilities, etc....

Involuntary conveyance

conveyances over which the grantor has little or no control. Include adverse possession, condemnation, foreclosure, intestacy, tax sales and escheat

Voluntary Conveyance

conveyed by deed and will

Reliction

creation of dry land by the gradual withdrawal of water

Requirements of a deed

deed must be in writing, be subscribed to, and properly delivered *if not delivered, it is not a valid conveyance must have all elements of a contract before it can be valid 1. Must be in writing 2. Must be signed by the party to be charged 3. There must be operative words of grant showing a present intent to convey 4. The grantor and grantee must be identifiable 5. The subject matter conveyed must be identifiable (sufficient legal description)

most common deed in TX

deed of trust

accretion

growth in size or increase in amount by gradual deposition of solid material from operation of natural causes.

tract index system

index that keeps records of the titles of real property for each particular tract of land.

alluvion

solid material deposited by a body of water

tax deed

to effect the sale, tax deed is used. This is a deed given to a purchaser at a public sale of land held for nonpayment of taxes. It conveys to the purchaser only such title as the defaulting taxpayer had.

Intestate without a spouse

1) to his children and their descendants 2) if no children, then to his father and mother in equal portions. if only one is alive, then passed down in equal portions to the alive one and the bro and sis. 3) if no mom or dad, then brother and sister and their descendants 4) then to grandma and grandpa, but if only one survivor then equally portioned to the survivor and descendants. *see pg 236 diagram.

Requirements of an earnest money contract

1. Must be a written instrument 2. Must be signed by the party to be charged 3. There must be operative words of grant showing intent to convey an interest at some time in the future 4. The grantor and grantee must be identifiable *must be legal entities 5. The subject matter to be conveyed must be identifiable.

4 basic requirements an instrument must have to be properly recorded

1. can't be a copy 2. must be in English, not a foreign language 3. instrument must be properly acknowledged, properly witnessed, or sworn to with proper jury. 4. must be recorded in county where prop. is located. 5. must contain notice on first page. 12pt uppercase letters, or bold face type.

requirements to make an effective acknowledgement

1. the person who executed the instrument must appear before the person authorized to take the acknowledgement. 2. the officer taking the acknowledgement must know or have satisfactory evidence that the person making such acknowledgement is the individual who executed the instrument. 3. signer must acknowledge to the officer taking the acknowledgement that he executed the instrument for the purposes and consideration therein expressed, and in the capacity stated. 4. The acknowledgement must be signed by authorized officer and be sealed.

Basic premises behind the recording act

1. to protect the individual who owns interest in real estate *by recording he establishes the priority of their interest. 2. to assure subsequent purchasers and creditors as to the status of title of that real estate. **any instrument that is not recorded is still legal binding, but it is not notice to third parties or subsequent creditors or purchasers of the property and therefore would not be binding against them.

taxing authority must file suit for taxes due on real prop. within ____

20 years

taxing authority must file suit for taxes due on personal prop. within ____

4 years.

Defeasance Clause

A necessary mortgage clause in title theory states. When the debt is satisfied, this clause causes title to pass automatically back to the borrower. Satisfaction of mortgage; release from records.

Types of deeds

General Warranty Deed Special Warranty Deed Trustee's Deeds Court-Ordered Deeds Bargain and Sale Deeds (Deeds without warranties) Quitclaim Deeds

Covenant of seizin

Grantor has good title and right to convey it, and has not conveyed the same estate previously.

Special warranty deed

Guarantee title only if you own the property

beneficial ownership

Holding property but only for the benefit of another person

MERS

Mortgage Electronic Registration System

power of sale

Mortgage provision that grants the authority to conduct foreclosure to either the lender or a trustee. Enables nonjudicial foreclosure. every time there is a default the lenders have the right to recover and protect their interest.

General Warranty Deed

Most widely used deed in this state and by both statute and case law, ensures the highest warranty the law recognizes.

5th amendment

No one can be denied the right to his property without due process of law.

constructive notice

Notice given to the world by recorded documents. All people are charged with knowledge of such documents and their contents, whether or not they have actually examined them. Possession of property is also considered constructive notice that the person in possession has an interest in the property.

Intestate leaving spouse:

Spouse gets 1/3, and the rest is divided for children or child of deceased and their descendants. if no children, then spouse gets all the personal estate and 1/2 of the lands of the intestate without remainder to any person. the other half will be passed on according to rules the descended distribution. If no other descended then spouse gets all.

Delivery of a deed

The be effective as valid conveyance, a deed must be property delivered and be accepted by grantee. Partial delivery or acceptance is not valid.

What is the biggest difference between the tax sale and any other form of execution or foreclosure?

The tax sale provides for a specific right of the debtor, termed the right of redemption.

Signature of Grantor

To be valid, a deed must be signed by all grantors named in the deed. If it is community property or homestead property, must be signed by party's spouse as well. Some states also require witnesses to the grantor's signature.

T/F the "maker" is also called the buyer" in real estate lien note.

True. can also be called mortgagor.

Intestate

When a person dies without a will

Jurat

a certificate added to an affidavit stating when, before whom, and where it was made signatory party is swearing that the facts contained in the instrument are true and not simply that he signed same for the purposes and consideration therein expressed.

power of sale clause

a clause authorizing a private foreclosure sale that does not require court action

Quitclaim Deed

a deed in which the grantor gives up any claims to the property without making any assertions about there being a clear title. The grantor does not have any interest in that particular property but is saying that if he does, he conveys it to the grantee by virtue of the quitclaim deed.

all sales by execution conferred by any deed of trust or other lien shall be made

at the door of the county courthouse in the county in which the land is located at public Venue between 10am and 4pm of the first Tuesday of every month After proper notice has been posted at said courthouse door, and notice of sale has been mailed by certified mail to each debtor at least 21 days preceding the date of sale

if a person acquires real property without either type of noice he is considered to be a...

bona fide purchaser for value without notice and acquires title to that real property free and clear of any other claims.

Intent to grant title

can generally be constructed from the consideration recited and the words of conveyance *the words "grant" and convey are sufficient enough to convey, as is any word of positive command or direction.

list of grantor-grantee records is established in what order?

chronological. When they are in this order, they are referred to as abstract of title in TX.

chain of title

deed recorded by the volume and page number of the deed records of the county in which the land is located. conveyances affecting a particular parcel of land arranged from the original source of title down to the present holder.

escheat

in TX, provides for transfer of real estate belonging for any person who dies without a will and has no heirs, or where the owner of any real property shall be absent for a term of seven years and is not known known to exist. this simply provides for the state of Texas to get title to real estate so that no parcels of property will be unaccounted for.

what are the requirements of an advertisement of a sale?

in case of tax sales, must occur for 3 consecutive weeks in some newspaper published in the same county the property is for sale in. must state time, place, and terms of sale first Tuesday of every month legal hours at courthouse door

Wraparound Mortgage

larger loan that does not disturb underlying mortgage

can a tenant be an adverse possessor?

no because they are there with the owners permission

patent

original grant from the Sovereign of Texas in 1836.

Grantor

owner and seller of the property

What happens when ad valorem taxes are not paid?

owners property may be levied against to satisfy all delinquent taxes

executor/administrator

person designated to oversee and execute the terms of a will

title

refers to a regular chain of transfers from or under the sovereignty of the soil, and color of title is meant as a consecutive chain of such transfers down to the person

Color of title

refers to title that may have the appearance of good and valid title to property, but in actuality, there is either no title or a vital defect in the title that makes it ineffective. Thus, by law, color of title fails to establish ownership in land.

what happens when a note has been paid in full

renders conveyance to the trustee void or null.

encroachments

something that extends across a property line onto the property of another

difference between real estate lien notes and other promissory notes is

that the real estate lien

process of recording the interest in real estate is performed in...

the county clerk's office in the country courthouse in which the land is situated.

what happens when a property is sold subject to an existing mortgage?

the grantee does not become obligated to pay the mortgage but merely has the option of paying that mortgage if he chooses to do so. transfer=balance becomes due *grantor still remains primarily liable on the note, and the grantee has no obligation at all to the original lender.

If a document to be recorded is a deed, or any conveyance conveying an interest in real property it should contain....

the mailing address of each grantee appearing on the document or a separate instrument signed by grantor or grantee attached to the document. failure to do so does not render instrument void or voidable, but it substantially raises the recording fee for that instrument.

Grantee

the one to whom a deed is given

most mortgage procedures in Texas require the execution of two instruments:

the promissory note *or real estate lien note in financing real estate transactions deed of trust

T/F Texas is a notice state

true

T/F if not used within 10 years, the owner may buy back parcel at price received.

true

Texas is a lien theory state t/f

true

holder of the note acts through a

trustee

index of grantors/grantees

where an individual can trace the chain of title, and perform their own title search.

The 10-year statute of adverse passion requires that the claimant:

without a title, a.p limited to 160 acres, including improvements. if more than 160, peaceable and a.p extends to the real property actually enclosed must bring suit no later than 10 years after the day the cause of action accrues to recover real property.