CA Bar Prep - Property (The Deed)
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16 terms
Terms | Definitions |
|---|---|
 The Deed - what is it? | Transfer of an interest in land can only be accomplished through a legal document called a "deed" that satisfies various formalities required by state statute. So, you enter into a contract first. At closing, you transfer the deed. |
| Statute of Frauds requirement | A deed must be in writing and signed by the grantor. A deed must contain the unambiguous description of the property... it doesn't have to be formal, but the parties must be identified along with the land. If the deed is blank as to "grantee," then whomever the deed was delivered to will be presumed the grantee. However, without specific authority, the grantee cannot fill in the "land" description, and the grantee also does not have the authority to fill in her own name. No need for a seal, consideration, attestation. |
| Sufficient Description: Is "all my land" enough? what about "all my land in Orange County?" | Yes to both. It's enough to provide a good lead. Property can be described in various ways. |
| Insufficient Description - what happens? | The title remains in the grantor, but a suit could be brought for reformation. However, parol evidence is not admissible... it would violate the statute of frauds. Insufficient description is one thing, ambiguity is another. "I grant you one acre off the western end of my 30 acre tract." "Off the western end" is too vague to ascertain which acre is being talked about. |
| Ambiguity | This is weird, because ambiguity is different than "insufficent description." Ambiguity is like "I grant you blackacre" and then three lines later "I grant you whiteacre," and it is unclear which is being conveyed, then you COULD use parol evidence to clear up the difference. If the ambiguity is not obvious from the face of the deed - a specifically described piece of land that is, for whatever reason, hard to identify -- "my house in San Fransisco." You CAN use parol evidence to figure out where the guy lives. But you can't use to if he has THREE houses in San Fransisco. |
| Rules of construction - where there is doubt the exact location of the property line, or two measurements give different results. | These ARE NOT ironclad rules of law -- there can be clear evidence of a contrary intent that will supersede them. 1. Natural monuments 2. Artificial monuments 3. Courses 4. Distances 5. General descriptions ("Dan's Island") or quantity. So, if the same deed says "from point X to the old oak tree" and also "from point X south 100 feet," you go with the old oak tree. |
| Where my boundary at?? | If you're next to a road, and your deed says " you are bounded by that road," you have title up to where the road starts. If the deed is otherwise conveyed, you have title to "the center" of the road -- or the whole thing, if the grantor retained no adjoining land. If the deed says "your property runs along the street" you are bounded by presumption, but you need more specific language to be "bounded" by a watercourse. |
| Delivery: What if a non-delivered deed to sold to a BFP? | That BFP is screwed, unless he can show that O negligently entrusted the deed to the guy who sold it to the BFP. |
| Delivery: can you use parol evidence to show that a deed is conditionally delivered? | No. You cannot. If you give A an absolute deed, but say "this is yours when you pay off your hospital debt," A has the property. However, you CAN use parol evidence to show NO delivery. So... "I'm giving you this deed so you can take Blackacre when I die." |
| Third party delivery - can you give conditional delivery? | YES, and you can use parol evidence to show it. So, if you give B a deed and say "give this to A," most courts say that's delivery. If you give B a deed and say "give this to A when I tell you," no delivery has occurred. If you don't say anything, it's delivery if B is A's lawyer, and nothing if B is your lawyer. |
| Third party commercial delivery with conditions | Oh my, what the hell?? Okay, that's when O gives B a deed to A, and he says "give A that sh t when he pays me $5000." That's an escrow delivery, and that's a valid conditional delivery, AND the deed has present operative effect. i.e. A gets title if it happens, O keeps title if it doesn't. Parol evidence is COOL in this case. You can take it back if there's no written contract. If the screw guy screws you, the minority is that you are screwed too, but the majority is that title can't pass to a BFP. |
| Escrow transactions and "relation back" | In an escrow transaction, the title does not pass until performance of the named conditions, but title will be said to "pass" on the day the condition was established if necessary to avoid: - rules about grantor death if instrument is not a will - rules about incompetency - rules about a grantor's creditor attaching to the title. DOES NOT APPLY TO BFPs and MORTGAGEEs. (or if the escrow knew the deal beforehand, too.) |
| General Warranty Deeds | Come with several covenants: - sesin (i have title and possession) - right to convey (i have the authority) - encumbrances (there are no encumbrances) - quiet enjoyment (no third party with a lawful claim of title will bother you) - warranty (I will defend you if somebody claims) |
| When are these covenants breached? | It depends on the specific warranty. The sesin and right to convey are breached, it at all, at conveyance of the land. As does the covenant against encumbrances. The SoL starts running at the time the warranty deed was given. For encumbrances, the rules change by jx depending on how obvious the easement was or wther the buyer knew of the encumbrance. For quiet enjoyment, warranty, they are not breached until somebody steps and claims the property is their own. |
| Estoppel by deed | I don't own it now, but I sell it to you anyway. Then, later I own it. It automatically passes to you by warranty deed, but if i sold you a quitclaim deed? You are hosed. If I sold the property to someone else after I got it, you are similarly hosed. |
| judgment lien priority | Those acquiring judgment leads are not protected by the recording statute in most jx. |
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