Real Estate Law -UNIT NINE - ACQUISITIONS AND CONVEYANCES

If a probate court bid for a property is $180,000, how much must a late bid be to be considered?

$189,500. The bid must be 5% higher

Which is(are) characteristic(s) of a recorded deed?

(a)It must be acknowledged. (b)It is presumed to have been delivered. (c)It provides constructive knowledge of the transfer.

To obtain a marketable title, an adverse user would have to

(a)obtain a quitclaim deed from the title owner of record. (b)commence a quiet title action to have the court determine ownership.

The following would make a deed void:

1. Forgery 2. Alteration 3. The fact that the grantor is a minor 4. The fact that the grantor has been declared insane or is entirely without understanding 5. Failure of delivery

The following would allow a deed to be voided:

1. Fraud 2. Undue influence 3. Duress or menace 4. The grantor's not being of sound mind (but not declared insane or entirely without understanding)

the grant deed, has two implied covenants:

1. That before the time of execution of such conveyance, the grantor has not conveyed the same estate or any right, title, or interest therein to any person other than the grantee 2. That such estate is at the time of execution of the conveyance free from encumbrances done, made, or suffered by the grantor or any person claiming under the grantor (other than those declared)

All of the following are required to acquire title to land by adverse possession

1. payment of taxes. 2. open, notorious and hostile possession 3.five years' continuous and uninterrupted use.

bequest

A bequest is a transfer of personal property.

codicil

A codicil, an amendment to a will, requires the same formalities as a will.

A dedication

A dedication is a donation of land for public use. Because it is a donation, the donor receives no consideration.

A deed dedicating property

A deed dedicating property to a governmental body must be accepted by the governmental body

Which deeds would fail to transfer title?

A deed made to Henry or Henrietta Schmidt

Dated

A deed need not be dated. The deed takes effect on delivery. A mistake in the date on the deed does not affect its validity. However, the date of a deed could be important in the case of a conflicting claim.

Devise

A devise is a transfer of real property by will.

Formal will

A formal will must be signed in the presence of at least two witnesses who, at the maker's request, attest to the testator's declared will. Beneficiaries under the will may not be witnesses. While a formal will need not be dated, an undated will could create a problem when more than one will is found because the dated will is presumed to be the latest in time.

Quitclaim deed

A grantor under a quitclaim deed transfers only the interest that the grantor has and makes no warranties of title. If the grantor has a fee simple title, then that is the title conveyed. If the grantor has only a life estate, then only the life estate will be conveyed. Quitclaim deeds often are used to clear title from grantors who have a possible or disputed interest.

Holographic will

A holographic will is hand-written by the testator. For such a will to be valid, the material provisions must be in the handwriting of the testator, and it must be signed by the testator, but neither witnesses nor a date are required. A letter could meet the requirements of a valid holographic will if it were handwritten with estamentary intent.

LIVING TRUSTS

A living trust may be used in addition to a will. Under the living trust, the trustor(s) generally transfer their property to themselves as trustees for the beneficiaries, who are usually the same people. The living trust, which is a revocable trust, avoids probate because the trustors have already conveyed their property to the trust. The trust provides for the division of the property after the death of the last trustor. The successor trustee makes the conveyance, thus avoiding probate costs and delays.

Reservation in a deed

A reservation in a deed gives the grantor a right that did not exist separately before the grant. For example, a grantor could reserve an easement over the property conveyed, retain a life estate, and retain oil and mineral rights, and so on.

Revocable transfer on a death deed

A revocable transfer on a death deed can also be used to avoid probate. The property is deeded to a beneficiary, but it can be revoked during the owner's lifetime. The ownership is not effectted until death and, if not revoked, transfers title to the beneficiary.

Sheriff's deed.

A sheriff's deed is given at execution of a judgment under a sheriff's sale. It transfers only the former owner's interest and contains no warranties

Tax deed

A tax deed is given when property is sold by the tax collector to the public for nonpayment of taxes. After one year from date of purchase, the property is acceptable for title insurance. Because real estate taxes are a priority lien, a tax sale removes junior encumbrances.

Trust deed

A trust deed is given by a borrower to a third party to hold in trust as security for a lender.

Trustee's deed

A trustee's deed is given to the highest bidder at a nonjudicial foreclosure sale on a deed of trust

ADVERSE POSSESSION

A user of land can acquire title to the land of another by adverse possession. The rationale is that property should be used productively and taxes should be paid.

Void and voidable deeds

A void deed transfers no interest whatsoever, even if a purchaser paid value and acted in good faith.

TESTATE SUCCESSION

A will is a testamentary declaration about the disposition of a person's property, to take effect upon the maker's death.

Acknowledgment

Acknowledgment is made by a grantor before a notary public or another authorized person. The grantor acknowledges that the signing of the deed is the grantor's own free act.

Exception in a deed

An exception withdraws part of the described property from the grant. For example, the grantor, after describing the deeded property, could except the south 20 feet from the grant. Exceptions in deeds often use the word "sans," which means "without."

Gift deed

Any deed where no valuable consideration was given is considered a gift deed. The deed is valid unless it was given to defraud creditors, in which case it can be voided.

Able's property was taken by the city for a new civic center. Baker was Able's tenant in the property and had five years remaining on an advantageous lease. Which statement is TRUE of Baker's rights?

Baker only had 30 days notification

Recording

Between the parties, an unrecorded deed can convey good title. However, an unrecorded deed does not give constructive notice to the world of the grantee's interest.

joint tenancy with living trust

By holding property in joint tenancy, property is automatically transferred to the surviving joint tenant(s) upon death of one joint tenant, thus avoiding probate.

Implied dedication

Dedication may be accomplished through a grant deed or by recording a subdivision map showing the publicly owned areas, which would be implied dedication.

ADEMPTION

Disposition of property before a person's death revokes the portion of the will giving that property to a named beneficiary (i.e., ademption). For example, if a man's will gave a specific property to his cousin, but he sold that property before his death, the devise to the cousin would be revoked. The proceeds from the sale would go to residual beneficiaries and not to the cousin.

Escheat

If a person dies intestate and that person's representative is unable to locate an heir within two years after death, the attorney general will bring an action to declare title to be vested in the state. If heirs fail to come forward within five years after the person's death, the property will escheat to the state, and it can then be sold.

inverse condemnation

If a public entity delays for more than six months in commencing eminent domain after announcing it will take the property, an owner can bring an action for inverse condemnation

Inverse condemnation

If an owner is unable to use the property as a result of public action, an action could be brought for inverse condemnation to force condemnation proceedings. For example, if the construction of a new airport caused jets to pass 500 feet over the roof of a house, the noise might destroy the owner's peaceful use of the premises, and an action for inverse condemnation would be proper.

Intestate and administrator

If the deceased died intestate (without a will), the court will appoint a personal representative (commonly referred to as an administrator) to represent the deceased.

Severance damage

If the taking of property results in a lower value to the remaining property that has not been taken, the owner will be entitled to severance damage

Witnesses and seals

In California, deeds need not be witnessed (unless they are signed with an X), nor are seals required. As for other documents, the presence of a seal on a corporate deed creates the presumption that the person signing had corporate authority.

Probate is in Superior Court

In California, estates are probated in superior court in the county where the real property is located or the deceased resided.

An owner's property was seized because it was used for drug sales. Which statement is correct?

Innocence of any knowledge of the use would be a defense against seizure

Legacy

Legacy refers to money.

cotenant in a dedication

One cotenant cannot dedicate land to public use without the consent of the other cotenants.

Nuncupative will

Oral, or nuncupative, wills are no longer valid in California.

PROBATE

Probate is the legal procedure that provides for the transfer of the real and personal property of the deceased, as well as the payment of the debts of the deceased.

Probate steps

Probate starts with a petition for probate (if a will) or letters of administration (if intestate). A hearing is held, and a representative is appointed or confirmed. Creditors generally have four months from publication of notice to file their claims. An inventory and appraisal are filed with the court clerk. The representative files an accounting of all receipts and disbursements and requests court approval. Finally, the representative petitions the court to distribute the remaining assets to the proper heirs and devisees.

ancillary probates.

Probates in other states are ancillary probates.

Proposition 99 (Homeowner and Private Property Protection Act)

Proposition 99 (Homeowner and Private Property Protection Act) prohibits the taking of an owner-occupied residence by eminent domain when the intention is to turn the property over to a private party rather than take it for public use

domiciliary probates

Real property is probated in the state where the property is located. Probates in the state where the deceased resided are domiciliary probates.

What type of deed is received by a purchaser after a sheriff's sale?

Sheriff's deed

Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA)

The Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA) provides for the forfeiture to the United States of any real or personal property derived from proceeds traceable to violation of 18 U.S. Code Section 1014, which prohibits "knowingly making any false statement . . . for the purpose of influencing in any way the action of . . . any institution the accounts of which are insured by the Federal Deposit Insurance Corporation upon any application for a loan." Falsifying a loan application could, therefore, result in the forfeiture of the property securing the loan.

The 4th Amendment

The Fourth Amendment protects property owners against seizure without a notice and hearing.

Deed

The deed is the transfer instrument in a voluntary transfer. When the deed is properly executed, delivered, and accepted, it transfers title to real property from a grantor to a grantee.

Execution

The deed must be executed—that is, signed—by the grantor. The grantee, who receives the deed, need not sign the deed.

Manner of taking title

The deed need not indicate how title is being taken. If the grantee is a single individual, the grantee would take title in severalty. In the case of more than one grantee, it would be presumed that they are taking title as tenants in common. An exception to this is that deeds to both spouses in a marriage that do not indicate how title is to be taken pass title as community property.

Grant deed

The deed used most commonly in California to transfer title

government seizure of property

The government can seize property without compensation to the owners when the property was used with the owner's knowledge for unlawful acts, such as the sale, manufacture, or distribution of controlled substances, or was purchased with revenue derived from drug traffic.

Delivery of Deed

The grantor must intend to transfer title irrevocably to the grantee or a trustee and to divest the grantor of title immediately.

testator

The maker of a will is a testator. Anyone 18 or older and of sound mind may make a will. The testator must understand the nature of the testator's property and the disposition of the property.

eminent domain payments

The owner is entitled to the fair market value of the property at the time it is taken. Any increase in value because of the use by the condemning entity is not considered in determining value.

Executor

The person appointed under the will to serve as the personal representative of the deceased during probate is commonly referred to as the executor.

EMINENT DOMAIN

The power of the government to take private property for the public good is called eminent domain and is set forth in the Fifth Amendment to the U.S. Constitution as well as the California Constitution. Eminent domain may be exercised at any level of government. It may be delegated to schools, hospitals, and public utilities. The condemning entity must compensate the owner for the property taken.

Description

The property must be described sufficiently so that no doubt exists about the identity of the property being conveyed, and the boundaries must be positively located. A legal description is not required on a deed, although title insurance cannot generally be obtained in the absence of a legal description.

5 years

The statute of limitations to challenge a void or voidable deed is ____________, 20 years if the claimant is a minor or insane

right of survivorship

The________________ means the right of other co-owners to receive one co-owner's interest upon his death.

Revocable transfer on death deed

This deed does not affect possession or ownership while the owner is alive. If not revoked by the owner, it transfers title to the beneficiary upon the owner's death without necessity of probate.

Titles not taken by adverse possession

Title cannot be taken from a government entity, public utility, or railroad by adverse possession.

a way to obtain Subdivision Map Act approval

To obtain Subdivision Map Act approval (local control over subdivisions), subdividers might donate land for streets, bike paths, parks, schools, et cetera, in fee as well as in easement rights.

Warranty deed

Under a warranty deed, the grantor expressly guarantees a good title and agrees to defend the title and to be liable if the title is defective. Because of the use of title insurance in California, warranty deeds are not commonly used.

Transfers of Real Property Upon Death

Upon an owner's death, the owner's property can be transferred voluntarily to the heirs—by will—or involuntarily by the laws of intestate succession to relatives, or by escheat to the state.

Voidable deeds

Voidable deeds are valid deeds unless or until they are voided.

INTESTATE SUCCESSION

When a deceased leaves no will, the property passes to the deceased's heirs by the law of intestate succession.

intestate succession

When a deceased leaves no will, the property passes to the deceased's heirs by the law of intestate succession.

SIMULTANEOUS DEATH

When spouses die in a common disaster, simultaneous death, and there is insufficient evidence to conclude that one spouse survived the other, the estate of each spouse will be distributed as though each had survived the other. For this reason, joint tenant property owners should each have wills.

Consideration

While a promise to give a deed would require consideration in order to be enforceable, a deed is not a contract. It is a completed transfer, and consideration generally is not required. However, consideration is required for deeds by personal representatives (executors, guardians, attorneys-in-fact, etc.).

REQUIREMENTS OF A DEED

Written, Execution and Description

A grantor retained an easement over conveyed land. What is this called?

a reservation

When you receive and record a gift deed, which could adversely affect your title?

a)Creditors of the grantor (b)Rights of parties in possession (c)Prior unrecorded deeds given for valuable consideration

All of the following are required for a valid deed EXCEPT

acknowledgment

All of the following are required to acquire title to land by adverse possession EXCEPT

actually living on the property.

Tacking on refers to

adverse use of a previous or subsequent user

A codicil providing for transfer of real property is a(n)

amendment to a will.

A deed technically takes effect on the

date of delivery.

A donation of land for public use is called a

dedication.

To transfer title a deed must be

delivered

Alex's inheritance of a house from his uncle George would be called a

devise

A deed must be ___________ to be valid.

executed

Which of the following would make a deed void?

forgery

The deed most commonly used in California is the

grant deed

A will that is handwritten by the testator is called

holographic will

Living trusts are gaining popularity because of their

inheritance tax exemption.

When a deceased leaves no will, the property passes to the deceased's heirs by the law of

intestate succession.

Eminent domain is the condemnation of one's land by an authorized authority. It is essential that the purpose of eminent domain be

public and provide just compensation.

If the government takes property resulting in a lower value to the remaining property that has not been taken, the owner is entitled to

severance damage

Loss of value of remaining land caused by a taking under eminent domain is known as:

severance damage.

The government can seize property without compensation to the owners when

the property was used with the owner's knowledge for unlawful acts.

In obtaining title by adverse possession, it is NOT necessary to

to live on the property

Acknowledgment is necessary to

validate a deed for recording