Chapter 2- Estates, Transfers, and Titles: California Real Estate principles 14th Edition

6 Certain *interest and obligation* the life tenant usually has , as long as the life estate is in effect

*1.* Has the right of physical possession of the property *2.* Has the right to all rents and profits, but this terminates when the life estate holder dies *3.* Can usually lease the property, but not beyond the time frame of the life estate. *4.* Is obligated to keep the property in good repair, although he or she is not required to make improvements *5.* may not damage or destroy any permanent part of the property to the detriment (damage) of succeeding interests *6.* is usually responsible for all anuual costs and expenses

A *VALID DEED* has all *5* essential elements

*1.* It must be in writing *2.* The parties (grantee and grantor) must be properly named and have legal capacity. *3.* The property must be adequately described (need not be legal description) *4.* There must be a granting clause (action clause). *5.* It must be signed by the granting party (grantor) @@ *A valid deed passes title when the deed is recorded (which is delivered and accepted). In order for title to be transferred, the grantor must sign the deed and deliver it with the intention of passing title immediately.*

Quitclaim Deed

- A deed to relinquish or conveys ( Từ bỏ hay Chuyển nhượng ) any present interest in property that the grantor may have, without any warranty of title or interest. - *Quitclaim deeds make NO "covenants" (promises); they guarantee nothing. They only convey any rights the grantor may have* - This deed is used primarily to clear a *"Cloud on Title"* from the records. - Quitclaim deed and Quiet title Legal Action > to remove *Cloud on Title* ( see page 33 & page 263

*Grantor* and *Grantee*

- A person who transfers title to real property is the *Grantor* ; therefore anyone who signs a grant deed or a quitclaim deed is a " *grantor*" - The person receiving property is the "*Grantee*"

Cloud on Title

- is a claim, encumbrance, or condition that impairs the title to real property until disproved or eliminated. - *Cloud on Title* can be removed by Quitclaim deed and Quiet title Legal Action/ court action ( see page 33 & page 263) - *If a buyer purchases a property on an installment plan and abandons that property after a few payments, then there will likely be a "cloud on the title" if the contract was recorded*

Quiet Title Action

- is a court proceeding to remove a *cloud on title* to real property. - *The ownership of real property may best be determined by a "quiet title action"* ( see example page 33)

VESTING

- is the placing of a person's name on the deed and the description of the method by which that person will hold title. - *Vesting is the method by which one holds title. A deed to a fictitious name is valid; a deed to a fictitious person is void*

7 Basic ways to "ACQUISITION and TRANSFER" real property ( 7 cách cơ bản mua lại và chuyển nhượng)

1. *Deed* ( Grant Deed ; Quitclaim Deed) 2. *Will* ( Witnessed; Holographic) 3. *Probate* ( Superior Court Procedure; Administrator ; Executor) 4. *Intestate Succession* ( Disposal by Law; No will) 5. *Accession* ( Natural Causes; Permanent Fixtures; Encroachment) 6. *Occupancy* ( Abandonment; Adverse Possession; Prescription) 7. *Dedication* ( Voluntary; Mandatory)

2 types of *ESTATE OWNERSHIP*

1. *Estate Freehold* ( Real Property) 2. *Estates Less-Than-Freehold* ( Personal Property)

4 types of *Less-Than-Freehold Estates* OWNERSHIP- PERSONAL PROPERTY Leases and Rental Agreements

1. *Estate for years* ( Fixed time ; No 30 days Notice) 2. *Estate from Period-to-Period* ( Renewal; 30 days notice) 3. *Estate at Will* ( No true @ California; use @ East coast ; term similar to Period to Period). it can be terminated by either the lessor or the lessee. 4. *Estate at Sufferance* (Tenant stay AFTER (expiration) of a lease )

2 Major types of *Freehold estates* ( Real Property)

1. *Estates in fee* (Fee simple estates) "Estate of Inheritance" 2. *Life estates*

2 types of *Estates in fee* ( Fee simple estates)

1. *Fee Simple Absolute* - is the greatest interest a person can hold, it is of "indefinite duration" (perpetual), "freely transferable," and "inheritable" 2. *Qualified (Defeasible) conditions Limitations* ( Example: A buyer agrees not to sell alcoholic beverages on a property. This condition is included in the deed. The buyer has taken fee simple defeasible title to the property. If a person takes title subject to a condition that liquor not be sold on the premises, and then turns around and breaks this promise, the previous title holder has grounds to reclaim tile through a court action)

Some Subtypes of *grant* or *quitclaim deeds* used in California are:

1. *GIFT DEED* - Granted as a gift of love and affection. 2. *TAX DEED* - Given if property is sold as payment of past-due property taxes 3. *ADMINISTRATOR'S DEED OR EXECUTOR'S DEED* - Given to the purchaser of the deceased person's real property 4. *SHERIFF'S DEED* - Granted to the purchaser at a court-ordered sale. 5. *TRUSTEE'S DEED*- Given to the purchaser of property at a trust deed foreclosure sale 6. *GUARDIAN'S DEED*- Used by a guardian to transfer the real property of minors or incompetents. 7. *LAND PATENT*- Used by the government to grant public land to an individual.

Title may be obtained through *Adverse Possession* only if certain conditions are met

1. *Open and notorious Occupancy* 2. *Hostile and adverse* 3. *Uninterrupted use for 5 years* - the adverse possessor must use the property continuously for at least 5 consecutive years 4. *Right or color of title* -Example: a person could claim that his uncle gave the property to him before he died, but the deed is missing. 5. *Property taxes* - must have paid all taxes for 5 consecutive years.

7 years lease would be considered :

1. An estate for years 2. Personal property 3. chattel Real

2 types of *Life Estates*

1. Estate in *Reversion* 2. Estate in *Remainder*

4 Exceptions to the rule " Priority of Recording" 4 trường hợp ngoại lệ cho quy tắc " Priority of Recording"

1. Government liens, property taxes, and special assessments 2. Actual or constructive notice of another person's prior rights. 3. Mechanic's liens. 4. Agreements to the contrary.

If a real estate agent advises a buyer how to take title to real property, he/she may be liable for :

1. Practicing law 2. Giving tax advice 3. discrimination

4 necessary unities ( T-TIP) of JOINT TENANCY

1. Title- All owners are granted title by the same instrument. 2. Time- All owners obtain title at the same time 3. Interest- All owners share an equal interest. 4. Possession- All owners have an equal right to possess the property.

3 Basic Methods of delivery

@@ *A deed does NOT have to be acknowledged to be valid. Delivery and Acceptance of the deed is presumed with recording* 1. *MANUAL DELIVERY* is a direct transfer of the deed from the grantor to the grantee. 2. *DELIVERY THROUGH RECORDING* is the act of putting the title of record in the grantee's name at the county recorder's office. The grantee must have agreed to the recording. 3. *CONDITIONAL DELIVERY* requires that a specific event take place before title can be passed, and must be handled by disinterested third party. The deed is then delivered manually.

Grant Deed

A deed using the word "grant" or like words, containing warranties against prior conveyances and encumbrances. This is the most commonly used deed in California. *Grant deeds contain "implied warranties" that are NOT expressed in writing*

Fee Simple Defeasible Estate

A fee estate that is subject to particular limitations imposed by the grantor of the estate. - if a *condition* is attached to a property's use, it's a *fee simple defeasible estate*

Witnessed Will

A formal expression of a person's desires, witnessed by others, as to the disposition of his or her property after death. di chúc có sự chứng kiến của những người khác, như đến việc định đoạt tài sản sau khi qua đời.

Holographic Will

A handwritten expression of a person's desires as to the disposition of his or her property after death. di chúc viết tay sắp đặt để giao quyền thừa kế sau khi chết

Notary Public

A person authorized by the state to witness the signatures of persons executing documents, sign the certificate, and affix the official seal. * A notary public does NOT acknowledge a document, but "witnesses" an acknowledgment.*

Intestate Succession

A process of law by which the state lays out the correct succession of inheritance when a person dies without leaving a valid will Một tiến trình của pháp luật mà tiểu bang đưa ra sự kế thừa của các thừa kế khi một người chết đi mà không để lại di chúc hợp lệ

Severalty

An estate of a single entity held by a single person alone. *Severalty means "sole ownership"*

Freehold Estate

An estate of indeterminable duration, e.g.,fee simple or life estate.

Remainder

An estate that is transferred to a third party (anyone other than the grantor) upon the death of the life estate holder.

Reversion

An estate that reverts back to the grantor after the life of the tenant expires.

Encroachment

An unlawful intrusion onto another's property by making improvements to real property, e.g., a swimming pool built across a property line. - Example: A fence built over the property line onto a neighbor's lot is a form of *encroachment.* - The neighboring landowner has *3 years* from discovery to take action for its removal.

Separate Property

Any property obtained by either the husband or wife before marriage

*Less-Than-Freehold Estates*

Are personal rights to the use of real property for a period of time. ( like *leases or rental agreements*)

Tenancy in Common

Co-ownership of property by two or more persons who hold undivided interest, without right of survivorship. The interests need not be equal.

A *life estate holder* may lease the property to someone else, but if the designated person dies, the estate ends and all rights, including any tenant rights, revert back to the original owner/grantor

Example: John owns a life estate base upon his own life. He leases the property to a tenant on a 5 year lease. John, the life tenant, dies 2 years later. The lease is terminated. *A life estate is an example of a freehold estate*

*TRUST DEED*

Is *NOT* a deed, but rather a conveyance; it gives bare (or naked) legal title to a trustee with the power to sell.

Dick and Jane, brother and sister, own an apartment building in joint tenancy. Dick needs $10,000 to cover unexpected medical expenses, so he borrows the money from a lender and signs a trust deed on the property that was soon recorded in the public records. 45 days later, Dick dies.

Jane now owns the apartment building free and clear of her brother's $10,000 debt.

When selling his home to John, Bert negotiated a leaseback arrangement in order to continue renting and occupying the property for the next 2 years. John immediately placed the unrecorded grant deed into a safe deposit box for ultimate security. 2 days later, Bert "Sold" the home a second time to Julie who promptly recorded her deed.

Julie is the likely owner of the property because she recorded her deed first. ( if the same property is sold to more than one party, the individual who has given constructive notice first ( by possession or recordation) will usually be recognized as the rightful owner.)

Recording

Placing a document in the official records of the county. - *A Deed does NOT have to be acknowledged to be valid, but must be acknowledged to be recorded.*

*Accretion*

The addition to land from natural causes, such as earthquakes, volcanoes, or the action of moving water

Probate

The court procedure of proving that a will is valid. * The minimum length of time for probate is 6 months. A party has 4 months to file a claim for probate.

Dedication

The giving of private land by its owner for a public use; most commonly, the developer who gives it to a city.

Abandonment

The intentional and voluntary relinquishment of any ownership interest ( such as an easement) or possession of real property. * When a tenant voluntarily moves out of an apartment and never returns, it is called abandonment or vacating*

Alluvium

These deposits of earth made through *the natural action of water* ( phù sa bồi đắp)

3 types of Transfer by Occupancy

*1.* Abandonment. *2.* Adverse Possession *3.* Prescription (by use)

*Estates*

*Estate* is an interest, share, right, or equity in real estate. *An estate is an ownership interest in Land*

*Accession*

*occurs when the owner acquires* title to additional property by *natural growth* ( additional land by natural causes) Xảy ra khi chủ nhà thâu được với quyền sở hữu cho những tài sản bổ sung ,thâu được bởi sự tăng trưởng tự nhiên (đất được bồi thêm bởi các nguyên nhân tự nhiên)

6 distinct methods of holding TITLE (6 phương pháp riêng biệt của Quyền sở hữu nhà đất)

1. Severalty ( "Sole Ownership"): it can Will and Sell 2. Tenancy in Common: it can Will and Sell 3. Joint Tenancy : No will; Yes can Sell 4. Tenancy in Partnership: No Will; No Sell 5. Community Property: Yes- Will; No Sell 6. Community Property ( w/ Right of Survivorship) : No Will; No Sell

Adverse Possession

A method of acquiring title to real property, through possession of the property for a statutory period under certain conditions, by a person othe than the owner.

General and Limited

A voluntary association between two or more people to carry on a business with general and limited partners.

The following is needed to transfer property deeded " Mary Smith, a married woman"

Both husband and wife's signature.

Constructive Notice

Documents filed with the County Recorder in such a way as to be considered open notice to the world.

Affirmation, Affidavit, Verifacation

Many different types of statements made before a professional witness.

Community Property

Property acquired by husband and/or wife during marriage that is not acquired as separate property. Each spouse *has equal rights of management, alienation, and disposition.* - *wages (paychecks) earned* by either spouse *during a marriage* are considered community property.

Delivery

The act of receiving a deed.

Prescription

The means of acquiring interests in land, usually an easement, by continued use.

Escheat

The reverting of private property to the state when there are no valid heirs.

Joint Tenancy

Undivided ownership of a property interest by 2 or more persons, each of whom has a right to an equal share in the interest and *a right of "survivorship" ; cannot be willed*. - *Joint tenancy is free of "unsecured debts"*

*Codicil*

is a change in a will before the maker's death

*Revocable Living Trust*

is a trust that is effective during the life of the owner, rather than upon his/her death. * it can eliminate probate (to prove a will) cost and serve the same function as a will*

*Life Estate* ( Indefinite Period)

is an ownership interest in real property that only exists for the life of any designated person or person ( often the grantee)

Avulsion

is the *sudden, violent tearing away* of land by , for example, a river