Requirements of a Deed - Written
- statute of frauds requires that every instrument dealing in rights of RE - other than a lease for 1yr or less - be in writing
Requirements of a Deed - Execution
- the deed must be executed - signed - by the grantor
- the grantee doesn't need to sign the deed
- a deed that is executed in blank does not transfer title when a prop description is inserted at a later date
- forged deed is void and transfers no interes
Requirements on a Deed - Description
- prop must be described sufficiently so that no doubt exists about the identity of the property being conveyed and the boundaries must be positively located
Requirements of a Deed - Delivery
- a deed must be delivered to transfer title
- most important element - intent of grantor - grantor must intend to transfer title irrevocably to the grantee and to divest immediately
Requirements of a Deed - Acceptance
- a deed must be accepted to be valid
- law will not force a person to take title
- acceptance is presumed if the grant is to the benefit of the grantee
- failure to repudiate a transfer w/in a period of time also implies acceptance
- exercise of dominion
Requirements of a Deed - Granting Clause
- language of the deed must clearly indicate a transfer of title
Requirements of a Deed - Competent Parties
- grantor must be a competent party
- gift deed - grantee can be a minor or incompetent
Requirements of a Deed - Grantee
- grantee must be identified
- title cannot pass to a nonexistent person
Not Required for Deeds
- ACKNOWLEDGEMENT - made by grantor before a notary public or other authorized person - a deed need not be acknowledged to be a valid transfer but w/o it - the deed will not be accepted for recording
- RECORDING - an unrecorded deed can convey good title,
GRANT DEED
- used commonly in CA to transfer title
- 2 implied covenants >> prior to the time of execution, the grantor hasn't conveyed the same estate to another person and the estate is free from encumbrances
- if the grant deed is breached >> the grantee will be
QUITCLAIM DEED
- a grantor under a ___ transfers only the interest that the grantor has and makes no warranties of title
- if grantor has a fee simple title - then thats conveyed
- if the grantor has a life estate - the life estate is conveyed
- often used to clear titl
WARRANTY DEED
- grantor expressly guarantees good title and agrees to defend the title and to be liable if the title is defective
- title insurance use in CA makes these less needed
SHERIFF'S DEED
- given at execution of a judgement under a sheriff's sale - transfers only the former owner's interest and contains no warranties
TAX DEED
- given when a property is sold by the tax collector to the public for nonpayment of taxes
- after 1yr of purchase - the prop is acceptable for title insurance
- RE taxes are a priority lien -- a tax sale removes junior encumberances
TRUST DEED
- given by a borrower to a third party to hold in trust as security for a lender
TRUSTEE'S DEED
- given to the highest bidder at a nonjudicial foreclosure sale on a deed of trust
GIFT DEED
- any deed where no valuable consideration was given
- valid unless it was given to defraud creditors >> it can be voided
VOID DEED
- a void deed transfers no interest whatsoever even if a purchaser paid value and acted in good faith
- reasons for a void deed: forgery, alteration, the fact that the grantor is a minor or the grantor was declared insane or is w/o understanding, failure
VOIDABLE DEED
- valid deeds unless or until they are voided
- reasons for a deed to be voided: fraud, undue influence, duress or menace, the grantor's not being of sound mind (but not insane or entirely w/o understanding
- statute of limitations to challenge a voidable
RESERVATION IN A DEED
- a reservation in a deed gives the grantor a right that did not exist separately prior to the grant
EXCEPTION IN A DEED
- an exception withdraws part of the described property from the grant
- exceptions in deeds often use the word SANS which means without
DEDICATION
- a donation of land for public use - donor receives no consideration
- a person can't dedicate more than the person owns
- one cotenant can't dedicate land to public use w/o consent of other cotenants
- SUBDIVISION MAP ACT - to obtain approval - subdivid
ADVERSE POSSESSION
- involuntary transfer of real prop
- a user of land can acquire title to the land of another by adverse possession
Rules:
1. possession must be an actual occupation - used or fenced in - exclusive use
2. a claim of occupancy can be based on the occupancy
EMINENT DOMAIN
- power of govt to take private property for the public good
- set forth in the Fifth amendment of US Const. and in the CA Const.
- can be exercised at any level of govt
- condemning entity must compensate the owner for the property taken
- owner is entit
POLICE POWER
- its to protect health, safety, morals, and general welfare - cannot be delegated and it does not entitle an owner to compensation
PROPOSITION 99
- prohibits taking of private property by eminent domain when the intention is to turn the property over to a private party rather than take it for public use
Private Parties can obtain an easement for..
- for utility services over the land of others by eminent domain if:
1. there's a great necessity for the easement
2. the easement location provides the most reasonable service and is consistent with the least damage to the burdened property
3. if the tak
INVERSE CONDEMNATION
- if an owner is unable to use the property as a result of public action - an action could be brought for ___
- to force condemnation proceedings
SEVERANCE DAMAGE
- if 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
GOVERNMENT SEIZURE
- the govt can seize property w/o compensation to the owners when the property was used w/ owner's knowledge for unlawful acts - ex. sale/manufacture/distribution of controlled substances - or was purchased w/ revenue derived from drug traffic
- Financial
TESTATE SUCCESSION
- a WILL is a testamentary declaration about the disposition of a person's property - to take effect upon the maker's death - its an AMBULATORY INSTRUMENT bc it can be changed any time before the maker's death
- maker of the will - TESTATOR
- a later VALI
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 should not be witnesses
HOLOGRAPHIC WILL
- handwritten by the testator
- to be valid - the material provisions must be in handwriting of the testator and signed by the testator
- witnesses/date are not required
NUNCUPATIVE WILL
- oral wills - no longer valid in CA
ADEMPTION
- disposition of property prior to a person's death revokes the portion of the will giving the property to a named beneficiary
SIMULTANEOUS DEATH
- when spouses die in a common disaster - and insufficient evidence to conclude that one spouse survived the other - the estate of each spouse will be distributed as if each had survived the other
INTESTATE SUCCESSION
- when a deceased leaves no will - the property passes to the deceased's heirs by the law of ____
- all community property passes to the surviving spouse
- separate property passes as follows:
- no spouse/children >> parents
- no spouse/children/parents >
ESCHEAT
- if a person dies and that person's rep. can't locate an heir w/in 2 yrs after death >> the attorney general will bring an action to declare title to be vested in the state
- heirs fail to come forward w/in 5 yrs of the death - the property will escheat
PROBATE
- legal procedure that provides for the transfer of real/personal property of the deceased and the pmts of the debts
- person appointed under the will to serve as representative >> EXECUTOR
- deceased died intestate - the court will appoint a personal rep
DOMICILIARY PROBATES
- probates in the state where the deceased resided
ANCILLARY PROBATES
- probates in other states where the deceased didn't live
PROBATE STARTS WITH...
- petition for probate (if a will) or letters of admin. (if intestate)
- a hearing is held - rep. is appointed or confirmed
- creditors have 4 months from publication of notice to file their claims
- inventory and appraisal are filed w/ the court clerk
-
LIVING TRUSTS
- may be used in addition to a will
- the trustor generally transfers their property to themselves as trustees for the beneficiaries who are the same people
- living trust - is revocable trust - avoids probate bc the trustors have already conveyed their p