Presentation on theme: "Chapter 14 Methods of Transfer and Conveyance in Real Estate."— Presentation transcript:
Chapter 14 Methods of Transfer and Conveyance in Real Estate
Types of Deeds 1. Quitclaim deed 2. Warranty deed 3. Special warranty deed. Warranty only applies as to the time of ownership by the seller. 4. Deed of bargain and sale. Same as a Special Warranty deed 5. Judicial deed
Requirements for a Valid Deed 1. Grantor with legal capacity 2. Signature of the grantor 3. Grantee named with reasonable certainty 4. Recital of consideration 5. Words of conveyance 6. Habendum or type of interest conveyed 7. Description of land conveyed 8. Acknowledgment 9. Delivery 10. Acceptance
Transfer of Title to Real Property 1. Warranty Title is good Transfer is proper Free from encumbrances Quiet enjoyment DeedsWritingWriting DeliveryDelivery (continued on next slide)
Transfer of Title to Real Property 2. Special Warranty Warranty for time of ownership 3. Bargain and sale 4. Quitclaim Transfers title to the extent grantor has title
Howe v. Palmer (#X) Undue Influence Howe – Owner of Farm. Howe inherited a from his mother. Howe was married to Esther, but Esther was not on the deed. Simple Man – Severe Dyslexia. Howe was a simple man with severe dyslexia that was easily influenced. Palmer Befriended Howe. Palmer became Howe’s friend. Palmer moved in with Howe to share expenses. Palmer helped clean the farm up but had a tag sale where he kept the proceeds. Palmer Said Howe Owed Him. Palmer said Howe owed him $20,000-$25,000 for his work on the farm, although no contract or even understanding was in place that Howe would pay Palmer for help in cleaning the farm. Palmer actually intimidated and forced Howe to sell items he did not want to sell. Howe Gave ½ the Farm to Palmer. Palmer then forced Howe off the farm and he ended up living on a trailer of the farm he worked. Howe Sued. 6
Undue Influence 7 Consider 14.1: Undue Influence? House-Keeper. Iver and Mary Villa hired Ary as a house-keeper. Elevated to Care-Giver. Mary died and Iver’s health deteriorated to the point he hired Ary to be a caretaker as well as a house-keeper. Will Leaves Money to Kids. Iver had a will naming his kids as beneficiaries. New House Jointly Owned with Care-Giver. He built a new house worth $350,000 and named Ary as a joint tenant. He also expected problems and gave Ary $5,000 to fight legal issues with the grant of joint tenancy. Undue Influence? Iver died and his daughter, as the personal representative brought suit against Ary and the conveyance on the grounds of undue influence.
Allen v. Scott, Hewitt & Mize (#X) 186 SW3d 782 (MO App 2006), p. 370 Land Sold to Individual with Right to Assign. Allen sold land to Scott personally with an understanding that property would be assigned to Scott, Hewitt & Mize. At Closing, Assigned. Assignment took place but company did not legally exist due to improper filing with the state. Lawsuit. – Improper Assignment as LLC Did Not Exist. – Mistake as to Value. Scott, Hewitt and & Mize listed property at $1,000,000 after just buying it for $90,000 and Allen sued to have the deal rescinded based on the fact that the company did not exist when the property was conveyed. 8
Grantor Capacity, Identification, and Signatures
Diversified International Properties v. Lucas (#X) 2008 WL (Ohio App 5 Dist) Divorce and Quickclaim Deed. Wife signed a quickclaim deed to property to husband. A notary was not present. Husband had friend notarize it later. Deed Recorded. Wife’s Attorney Sued for Recovery of Property. The wife owed the law firm $25,000 for legal fees. Improper Notary. But, the wife signed of her own free will. “Clean Hands” Doctrine. 10
The Common Law Warranties of the Grantor Warranty of seisin Warranty of right to convey Warranty of freedom from encumbrances Covenant of warranty Warranty of quiet enjoyment Warranty of further assurances
Modern Warranties of Grantor 1. The grantor possesses an indefeasible fee simple estate, or the grantor has good title and the transfer is proper. 2. There are no encumbrances against the property except those specifically noted. 3. The grantee shall have quiet enjoyment of the property, and the grantor will warrant and defend title against all claims.
Star Tribune Article: What rights does Barone have? Marc Barone bought a double-wide trailer on 10 acres The trailer is actually on neighbors property and his 10 acres is too wet to build on. Previous owner built the home and lived there for 8 years Problem discovered when assessor bumped real owner’s land value because of home on it shortly after Barone bought it.
Adverse Possession 14 Pepka Outlot 37 Dews Outlot 40 Consider 14.5: Adverse Possession. Pepkas owned Outlot 37 and part of Outlot 40 Pepkas believed they owned the land where they built a driveway. Pepkas improved the driveway by first putting gravel on it and then asphalt. Pepkas also planted 6 trees along the driveway creating a line. The Pepkas and Dews got along well, until the Pepka’s decided to sell and a survey was done. Pepkas offered to purchase the strip, unsuccessfully. Lawsuit for adverse possession. Pepka’s land on outlot 40
Adverse Possession 15 Hendrix Planted Grass on Contested Strip. IN 1970, Dan Juttings dad planted grass on a strip of his lot, including a 10 foot border between the house and the neighbor’s house. The father also planted two trees on the strip and a clothesline. From 1970 until 1998, Juntting’s father mowed and otherwise maintained the strip Survey. In 1997, the son bought the property and a survey was done showing the boundaries where everyone expected Survey. In 1998, the neighbors had a survey completed that revealed a 10 foot mistake in the line, putting the line within inches of the house. Jutting continued to mow and maintain the lawn. Fence Erected. Henrix erected a fence that when within an inch of the house. 10 foot strip Juittings End-of-chapter Q9 Adverse possession – airstrip. Used for 40 year by plaintiff and others. Adverse possession?
Weinstein v. Hurlbert Adverse Possession Disputed Boundary. Time of Possession and then new owner until Adverse Acts – Summer home and these only occurred in the summer – Mowing lawn – Maintenance and replacement of Rosa Rugosa bushes – Parking of boats on property – Removal of sign from new owner in 2008 that staked property Is that adverse enough 16
Adverse Possession 17 Consider 14.4: Adverse Possession. The Kapinskis owned and occupied lot 18 from 1935 to IN 1950 the lot was conveyed to Wyroskis. The Laurins purchased lot 19 in The lots were used as summer homes. Lot 18 planted lilacs and put a boat house that was over the boundary line. The Wyroski’s claim they now own the extra land through adverse possession. Wyroskis Property Lot 18 Laurins Property Lot 19 Lake
Requirements for Adverse Possession 1. Actual and exclusive possession 2. Open, visible, and notorious possession 3. Continuous and peaceable possession 4. Hostile and adverse possession 5. Possession for the required statutory period
Number of Years Required for Adverse Possession (Fig. 14-2) Alabama20 Alaska10 Arizona10 Arkansas7 California5 Colorado18 Connecticut15 Delaware20 Dist. of Col.15 Florida7 Georgia20 Hawaii20 Idaho5 Illinois20 Indiana10 Iowa10 Kansas15 Kentucky15 Louisiana30 Maine20 Maryland20 Mass.20 Michigan15 Minnesota15 Mississippi10 Missouri10 Montana5 Nebraska10 Nevada5 New Hamp.20 New Jersey30 New Mexico10 New York10 N. Carolina20 North Dakota20 Ohio21 Oklahoma15 Oregon10 Pennsylvania21 Rhode Is.10 South Carolina10 South Dakota20 Tennessee7 Texas3 Utah7 Vermont15 Virginia25 Washington7 West Virginia10 Wisconsin20 Wyoming40 These figures represent a general time period. Many states have variations depending on issues such as deed, etc. For example, Texas periods run from 3 to 25 years. StateYearsStateYearsStateYearsStateYears
Requirements for a Gift 1. Donative’s intent by the donor or grantor 2. Delivery of the gift 3. Acceptance by the donee or grantee Consider 14.6 – Transfer to Daughter Gift of House to Daughter. Mary Blettell was in poor health and went to live with her daughter. Mary’s second husband continued to live in Mary’s home. Mary instructed her daughter to bring her deed to her and she signed it over to her daughter. She asked her daughter to put the deed in a safe deposit box until she died. Daughter Recorded Deed When Mother Died. Mary’s Heirs Filed Suit
Consider 14.1 Corporate Owner of Property. Confusing Deed Conveyance. THIS DEED OF CONVEYANCE, made and entered into this 8 th day of April, 1975, between LOGAN MIDDLETON, President of the V.T.C. Lines Incorporated, Harlan, Harlan County, Kentucky, party of the first part, and JOHN CHRISTIAN, Evarts, Harlan, County, Kentucky, party of the second part. Signature Line: /s/Logan Middleton Logan Middleton, President V.T.C. Lines, Incorporated Issue: A creditor of V.T.C. Lines is suing that the conveyance is invalid. 21
Types of Recording 1 Statutes Race – First to record (first in time, first in right) Notice – Last bona fide good faith purchaser (bfp) to take title (failure of others to record) Race/Notice – First bfp to record Notice/Race 1 Not required to transfer: required for future protection
Title Insurance 1. Does not transfer from seller to buyer 2. Purchased by buyer 3. Covers property not person 4. Single premium
Scope of Title Insurance 1. Failure of title to the property (covers forgery, fraud, unauthorized signatures, electronic recording failure and a host of other problems that arise in recording titles to property and executing deeds) 2. Defects in title such as liens 3. Lack of right of access 4. Unmarketable title 5. Encroachments (new in 2006) 6. Does not cover known deficiencies in title
Other Portions of Title Policies 1. Exclusions Outline those items not covered 2. Schedules, generally A and B Outline the added protections or endorsements purchased by the policy holder 3. Conditions Requirements for the issuance of the policy, such as removal of liens 4. Stipulations Certain statements of fact that the parties agree are part of their assumptions for the policy, such as the new definition of what constitutes a “public record”
Exclusions from Title Policies 1. Violations of environmental laws unless recorded in the public records 2. Litigation defense costs for items excluded under schedule B exceptions 3. Purchasers who are not bona fide purchasers 4. Problems noted in public records other than those that are part of the property records designated by the state as the proper filing place for matters affecting property (Continued on the next slide)
Exclusions from Title Policies 5. “Unmarketability of title” items 6. Problems with title based on usury 7. Mechanic’s liens that arise from work contracted for and commenced after the date of the policy 8. Eminent domain rights unless there is notice in the public records of eminent domain proceedings prior to the title policy being issued