Chapter 2 Section 9 Alienation, Wills and Deeds
Voluntary Alienation; Dedication
-A dedication is the free transfer (no compensation) of privately owned land to a governing body with the stipulation that it be used for public purposes (ex: dedicate land for roads in subdivision developments).
Voluntary Alienation; Public Grant
-A public grant is a transfer of title from the government to an individual. A special deed known as a patent deed is used for a public grant.
Nuncupative
-Nuncupative will is an oral will.
Probate
-Probate; with or without a will, the estate is always subject to probate. It is the formal, legal process by which a court reviews the distribution of a deceased person's estate. In the case of a will, the court determines the validity of the will, the extent of the assets, and see that the assets are distributed properly, making sure that legitimate debts and taxes are paid.
Voluntary Alienation; Deed
A deed of conveyance is the most common method of acquiring title to real property and is a written instrument used to transfer title voluntarily.
Frequently used covenants:
Frequently used covenants: -Covenants of seisin -Covenants of quiet enjoyment -Covenants against encumbrances -Covenants of warranty forever -Covenants of further assurances -Covenants against grantor's acts
Involuntary Alienation
Involuntary Alienation; may occur by descent and distribution, adverse possession, unintentional dedication of land for public use, accession, estoppel, foreclosure, eminent domain and escheat.
Special warranty deed
Special warranty deed; is a conveyance by which the grantor guarantees (warrants) the title he is conveying only against defects arising during the tenure of his ownership guardianship and not against previous defects in title. "By, through, or under the grantor, but not otherwise.." It is commonly used for non payment of taxes (tax deed) or where any trustee conveys property (as with a sheriff's sale to satisfy a judgment).
Testimonium clause
Testimonium clause; containing the statement "In witness whereof the parties to these present have hereunto set their hands and seals..." is the conclusion of a deed.
Intestate vs Testate succession
The heirs or devisees that take title pursuant to a will do so by virtue of testate succession, the term "testate" indicating the existence of a valid will. If a property owner dies without a will (or with a defective will) and there is no survivorship provision in the chain of title, he is said to have died intestate.
Types of Deeds:
Types of Deeds: -General warranty deed -Special warranty deed -Bargain and sale deed -Quitclaim deed -Correction deed -Deed of trust (trust deed) -Deed in trust -Guardian's deed -Deed in foreclosure -Deed in partition -Patent deed
Voluntary Alienation
Voluntary Alienation may occur by means of deeds, wills, dedications and public grants.
-Reservations, exceptions and restrictions (if any)
a reservation is the right retained by the grantor (such as an easement). An exception is when the grantor retains fee title to a part of the land - the grantor excepts a portion of the property for himself. A deed restriction is usually imposed by the original developer.
-Covenants of quiet enjoyment
arises from the grantor's assurance that the grantee shall enjoy possession of the property in peace and without disturbance by hostile claimants. This is breached only by an eviction by reason of a title superior to that of the grantee.
Alienation
is a term referring to any type of transfer of ownership of real property. It can be accomplished voluntarily by a deed or will, or involuntarily by adverse possession or intestate succession. Occasionally restraints are placed on an owner's ability to transfer property. However, one of the bundle of rights inherent in ownership of land is the right to convey the property or transfer title.
-Covenants against encumbrances
is the grantor's guarantee that there are no encumbrances against the property except those specifically disclosed. Encumbrances should be listed in the deed after the property description. This could not be breached or broken, but by failing to list in the deed an open, visible encumbrance such as a power line or drainage ditch. But if an encumbrance is not visible and is not listed in the deed, the grantor will be liable for the grantee's expenses to correct the problem or liable for damages.
-Deed of trust (trust deed)
is used to convey title to a third party trustee to be held as security for a debt.
-Deed in partition
issued by a court when property is sold at a partition sale for the purpose of dividing a joint tenancy-in-common ownership.
-Signature of the grantor; sometimes with witnesses and acknowledgement
the grantor must sign the deed. In some states the signature must be witnessed and/or notarized. The grantee may also be required to sign if he is assuming a mortgage or agreeing to abide by a restrictive provision.
-Patent deed
used to convey title to real estate from the US govt to an individual.
Voluntary Alienation; Will
-A will is a written instrument whereby an individual (testator) provides for the transfer of title to property to another, after his death.
Administrator
-Administrator is a person appointed by the court to carry out the terms of the will in the event there is not executor, or to oversee the distribution of assets of a person who dies intestate.
-Bargain and sale deed
-Bargain and sale deed; is a conveyance by which the grantor conveys property but does not agree to warrant or defend the title in any way. He implies the warranty of seisin.
Bequest
-Bequest; a gift of personal property by will
Codicil
-Codicil is a modification of, or addition to, an already existing will.
-Correction deed;
-Correction deed; is any type of deed used to correct a mistake in a prior deed.
Devise
-Devise; a gift of real property; devisee-someone who receives real property by will; personal property conveyed by will is known as a bequest or legacy.
Executor
-Executor is a person named in the will who executes, or carries out, the wishes of the testator.
-Foreclosure
-Foreclosure due to unpaid debts (mortgage loans, property taxes and other liens) also results in the transfer of ownership of real property without the owner's consent.
-General warranty deed
-General warranty deed; is a conveyance by which the grantor fully warrants, or guarantees, clear title to the real estate being sold. It offers the greatest possible protection and is the most common type of deed used.
There are several requirements that must be met to create a valid, legally enforceable deed:
-Grantor -Grantee -Consideration -Words of conveyance -Legal description -Reservations, exceptions and restrictions (if any) -Signature of the grantor; sometimes with witnesses and acknowledgement -Delivery and acceptance (or registration - Torrens System only)
Holographic
-Holographic will is one that is written in the testator's own handwriting but is not witnesses or acknowledged.
Premises clause
-Premises clause; sometimes called the granting clause because it contains the words of conveyance, states the names of the parties involved, the extent of ownership, recites the consideration and legally describes the property.
-Quitclaim deed;
-Quitclaim deed; is a conveyance by which the grantor transfers and releases any interest he might have in the property. The grantor does not agree to warrant or defend the quality of title in any way and also does not promise that he has any interest or rights to convey at all. He merely agrees that if he does have an interest he will relinquish it. A quitclaim deed only transfers whatever right, title or interest the grantor had in the land at the time the deed was executed. These are used frequently to clear up clouds on title.
-The government power of eminent domain
-The government power of eminent domain that permits governments and quasi-public corporations and utility companies to take private land for public use through a condemnation suit results in involuntary alienation of real property. When land escheats to the state, it is considered a form of involuntary alienation.
-Title by accession
-Title by accession describes the acquisition of additional land and/or improvements under certain unusual circumstances. Ex: owner A builds a shed on owner B's property with no written provision for removal. Owner B may acquire title to the shed by accession. This could happen of the court determined that since there was no agreed upon provision to remove the shed at some future date, then the original intention was for the shed to remain forever.
-Title by estoppel
-Title by estoppel (deed by estoppel) is a legal principle whereby a person may obtain title to real property over the apparent owner, because the apparent owner has failed to act in such a manner as to put everyone on notice as to his rights in the property. EX: a buyer fails to take possession of his property and fails to record his deed. The original seller fraudulently sells the same property to a second buyer who has no knowledge of the prior sale. The second buyer records and/or takes possession. The court may recognize the second buyer as the true owner, in which case the first buyer will be estopped from belatedly proving his title.
-adverse possession
-adverse possession is the acquisition of title to real property owned by someone else by means of open, notorious, hostile and continuous possession for a statutory period of time. If a true owner sleeps on his rights and does not eject an open and hostile trespasser, the owner will lose his title tot he trespasser. If an adverse possessor can prove that he has met all the statutory requirements, then he may gain marketable title by applying to the courts for a judicial decree "quieting" the title against all other claimants.
descent and distribution
-descent and distribution refers to the acquisition of an estate by inheritance when an heir succeeds to the property by operation of law. If a person dies leaving no will he is said to have died intestate. When this happens property is distributed to heirs according to state laws of descent. This is know as title by descent or intestate succession.
-unintentional dedication
-unintentional dedication of land for public use; many property owners who allow public access to, or through, their private property will erect barriers at regular intervals just to evidence the fact that the public right to use the property is merely a license and not a right or interest in the property itself. Some owners have established permanent plaques that read "Private Property - Permission to Use is Revocable". Usually " No Trespassing" signs are insufficient to prevent a claim of public donation.
Escrow
An executed deed with purchase money and instructions can also be deposited into escrow (a bond, deed, or other document kept in the custody of a third party, taking effect only when a specified condition has been fulfilled). In a valid escrow this is an irrevocable deposit, and under the relation-back doctrine the death of the grantor does not terminate the escrow. The escrow has the authority to deliver the deed upon performance of the instructions. In other words, the delivery of the deed relates back to the date it was originally deposited with the escrow agent. In states that use the Torrens System, title passes when the deed is registered, not when it is delivered to the new owner.
Habendum clause
Habendum clause; the "to have and to hold clause" that follows the granting clause and indicates the types of estate or interest the deed is conveying, such as a fee simple estate, a life estate, etc. If there is any discrepancy between the extent of ownership described in the premises clause and the habendum clause, the the premises clause prevails.
Consideration
The consideration named can be significant (the actual price paid) or nominal, such as, "....for $1.00 and other good and valuable consideration."
Testate Succession
The heirs or devisees that take title pursuant to a will do so by virtue of testate succession, the term "testate" indicating the existence of a valid will. If a property owner dies without a will (or with a defective will) and there is no survivorship provision in the chain of title, he is said to have died intestate.
Deeds
The most common form of voluntary alienation involves deeds. A deed is a written instrument whereby a property owner conveys title to another. The differences in deeds are the types of covenants (or promises) that are made by the grantor. A will conveys no interest in property until after the death of the testator. By contract, a grantor conveys interest in real property by delivering a deed to another during his lifetime. In order for a deed to be valid, the grantor must be alive at time of delivery. Parties to a deed are the grantor (the person who conveys title) and the grantee (the person who receives title).
Covenants in Deeds
These may restrict alienation or conveyance. Covenants are warrants or unconditional promises contained in contracts. Covenants are found in many real estate documents, including leases, mortgages, contracts for deed, deeds, etc. When found in a warranty deed, general or special, covenants are promises made by the grantor and binding on his heirs and assigns that warrant that the title is of certain character. Also if it is found to not meet these guidelines, the grantors or heirs will compensate the grantee for damages suffered.
-Covenants of warranty forever
assures the grantee of possession and continuance of the title transferred to the grantee. This covenant also promises the grantee that the grantor will bear the expense of defending the title against all third person claims.
-Deed in trust
conveys real property to a trustee. This is usually done to create a land trust. The trustee has the power to sell, mortgage and subdivide the property, but usually only under the direction of the beneficiary. It can also be used to shield the identity of the property owner.
-Guardian's deed
executed on behalf of a person who lacks legal capacity to convey title, such as a minor or any person judged incompetent by the courts.
Covenants of seisin
is an assurance (promise) by the grantor to the grantee that the grantor has the estate of title in the quantity and quality that the grantor claims to convey. This covenant would be in breach if the title was held by a third party or did not hold the full title.
-Legal description
is required although in the case of a condo the postal address may be sufficient since the full legal description is in the recorded declaration.
-Covenants of further assurances
is the grantor's primes to do such further acts as might be required in the future to guarantee or perfect the title of the grantee. This is broken with the grantor refuses to take required action or pay proper expenses or charges.
-Deed in foreclosure
may also be called a referee's or commissioner's deed (when foreclosure is undertaken by a private mortgagee) or a tax deed or sheriff's deed, when property is sold to pay taxes. This is a deed used to convey real property in a court-ordered foreclosure sale. This is equivalent to a special warranty deed.
-Delivery and acceptance (or registration - Torrens System only)
must be delivered by the grantor and voluntarily accepted by the grantee.
Grantee
must be identified, and cannot be solely the grantor (a person may not deed a piece of property to himself only, but can deed it to himself and another jointly). Minors and incompetents are valid grantees.
Grantor
must be identified, and must be of age and sound mind. Only the grantor needs to sign the deed, not the grantee.
-Words of conveyance
that distinguish it from a mortgage instrument, such as "I hereby grant and convey..."
-Title by accession; acts of nature
the action of a stream or river takes soil from one owner's property (erosion) and adds it to another's property (accretion). These soil deposits are known as alluvion or alluvium (also could happen by earthquake or mudslide). The individual who gets the extra soil, gets to keep it.
-Covenants against grantor's acts
used in special warranty deeds in which the grantor is a fiduciary such as an executor, trustee, or guardian. The grantor promises that the has done nothing to injure or adversely affect the title while he has been the personal representative of the estate and has had control of the property.
