Deeds must: (5 elements)
(1) be in writing, (2) sufficiently describe land, (3) ID g/or and g/ee, (4) evidence intent to convey land and (5) by signed by g/or
Invalid deed =
hostile possession bc they are claiming rights superior to that of the true owner.
Shelter Rule
means subsequent buyer even if not BFP is entitled to use the predecessor’s BFP status as their own.
Joint Tenancy
CL:
Modern Law:
Common law JT: needs TTip title, time, interest, possession
Modern Law: JT results only when right of survivorship clearly expressed
Mortgage in lien and title theory states
A mortgage is a conveyance in title theory state and lien in lien theory state
A mortgage severs JT in lien? in title?
A mortgage severs JT only if it’s in a title theory state.
In a lien theory state a mortgage severs JT only if it is foreclosed and the property is sold.
If seller dies before closing
purchaser gets deed and becomes tenant in common. (TIC)
If seller dies,
takers of her real property must transfer title at closing.
When is JT severed?
When 1 JT executes a valid K to convey her interest to another the JT has been severed. Bc the K to convey is enforceable in equity so it’s treated as an effect transfer of equitable interest.
- A fee simple subject to a condition subsequent is created when
- What happens then?
- A fee simple subject to a condition subsequent is created when the grantor retains power to terminate the estate of the grantee upon the happening of a specified event.
- Upon the happening of the event stated in the conveyance, the estate of the grantee continues until the grantor exercises his power of termination (right of entry) by bringing suit or making reentry.
How do you reserve a right of entry?
- Generally, the grantor must expressly reserve the right of entry; this retained interest does not automatically arise.
- The following words are usually held to create conditions subsequent: “upon condition that,” “provided that,” “but if” and “if it happens that.”
What is a fee simple determinable?
- A fee simple determinable is an estate that automatically terminates on the happening of a stated event and goes back (reverts) to the grantor.
- It is created by the use of durational, adverbial, language, such as “for so long as,” “while” “during” or “until.”
- The grantee takes the land subject to the termination of the estate by the happening of the event.
Can future interests pass at death?
Future interests can pass at death by will or inheritance unless an interest’s taking is subject to an express or implied contingency of survival.
What is the general policy of courts regarding estates?
- The general policy of courts is to avoid forfeiture of estates.
- Thus where terms of a conveyance are ambiguous there is a presumption in favor of the fee simple subject to condition subsequent because forfeiture is not automatic.
What are notice statutes?
Notice statutes mean that a subsequent BFP takes the property free of prior interests.
- The subsequent purchaser must pay valuable consideration and show that he:
- did not actually know of any prior conveyance (actual notice),
- did not have notice from a properly recorded deed (record notice), and
- did not have notice of whatever a reasonable inquiry- such as an inspection of the premises- would have revealed (inquiry notice).
What is the covenant against encumbrances?
The covenant against encumbrances assures that there are no visible encumbrances (easements, servitudes, etc.) nor invisible encumbrances (mortgages, etc.) against the title or interest conveyed.
What type of covenant is a covenant against encumbrances? (and when is it breached?)
This is a present covenant and is breached, if at all, at the time of conveyance.
What does it mean for a covenant to “run with the land?”
If a covenant for title can be enforced against the covenator by a transferee of the covenatee, it is said to “run with the land.”
The majority rule is that present covenants do not run with the land and cannot be enforced by remote grantees.
Covenants: In jurisdictions that do not follow the majority rule…
In jurisdictions that do not follow the majority rule, a remote grantee may sue on the covenant against encumbrances unless the grantee had notice of the encumbrance.
what is required for a valid deed? [5]
- For a deed to be valid it must:
- be in writing
- sufficiently describe the land
- identify the grantor and grantee
- evidence an intention to convey the land, and
- be signed by the grantor
- parties may be identified by name or by describing them in some other way
- if grantee’s name is left blank, some courts presume that the person taking delivery has the authority to do so, and if they do, the deed is valid
how is title by adverse possession established? [COAH]
- to establish title by adverse possession, the possession must be:
- actual and exclusive
- open and notorious
- adverse [hostile]
- and continuous throughout the statutory period
- exclusive means not sharing possession with the true owner or the general public
- possession is open and notorious when it is such as the usual owner would make of the land is sufficient to put the true owner on notice
- possession is hostile when it’s without owner’s consent [doesn’t matter if possessor believes the land is theirs or knows they’re trespassing]
- in most states, the payment of property taxes is not required to establish title by adverse possession BUT it’s good evidence of a claim of right
the effect of interests arising by operation of law [i.e., title by adverse possession] on superiority/priority of title
subsequent purchasers are NOT protected by recording acts against, and thus take subject to, interests that arise by operation of law [adverse possessor would have superior claim over BFP]
What is required for adverse possession? COAH
To establish title by adverse possession, the possessor must show that possession was continuous, open and notorious, actual and exclusive, and hostile. To have actual possession the possessor must physically occupy the property; designed to give the true owner notice of the extent of possessors claim. Possession is open in notorious when it’s the kind of use the usual owner would make of the land. Possession is hostile if the possessor does not have permission to occupy the land. 
When may periods of adverse possession be tacked together?
Separate periods of adverse possession maybe talk together to make up the full statutory period Provided there is privaty between the success adverse holders. Privity is satisfied if the subsequence possessor takes by dissent by device or by deed per ing to convey title
