Property Transfer

Front 1

delivery

Back 1

a valid conveyance (transfer of title) requires that the deed be delivered to the grantee or his or her agent. mailing generally constitutes deliver, but there must be intent to pass title immediately. a recorded deed is presumed to have been delivered

Front 2

deeds

Back 2

transfer document for an interest in real estate. used ONLY ONCE. when you buy, you get a deed from the seller, when you sell you give a new deed to the buyer. the destruction or return of the deed by a grantee does NOT return title to the grantor

Front 3

acceptance

Back 3

law does not force someone to take title, valid deed requires acceptance. acceptance can be any words or conduct of the grantee that indicates intent to accept.

i.e. grantee offering to sell or lease the deeded property indicates acceptance of the deed.

failure to repudiate (deny) a grant within a reasonable time after learning of the grant could also indicate acceptance, acceptance can be presumed where the grant clearly benefits the grantee

Front 4

conveyance

Back 4

deed must have a "granting clause" words indicating title is to pass

Front 5

writing

Back 5

all deeds must be in writing (statute of frauds)

Front 6

unambiguous description

Back 6

property must be described so that the location can be known. a few states require a legal description on a deed, such a description is generally not required to convey title. however, it is required to obtain title insurance

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habendum clause

Back 7

most states require a deed to define the interest or estate granted (such as fee simple or life estate). this is the function of the clauses, which usually says "to have and to hold"

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competent grantor

Back 8

grantor must be legally capable of conveying title. grantees do not always have to be competent parties

i.e. title can pass to a minor by gift

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definite grantee

Back 9

grantee must be readily identifiable. although property can be conveyed to a grantee using a fictitious name, the grantee must be a definite (specific) person

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signed

Back 10

deed must be signed by the grantor. generally the grantee does not have to sign the deed. a forged deed is void & conveys nothing, nor does an altered deed (i.e. one in which the property description was changed w/o the grantor's consent)

Front 11

NOT REQUIRED FOR A VALID DEED

Back 11

1. witnesses
2. recording
3. address of parties
4. seal
5. acknowledgement
6. consideration
7. date

Front 12

witnesses

Back 12

not generally needed for deeds (unless grantor signs with an x)

Front 13

recording

Back 13

making deed a matter of public record, the recording process gives implied notice (known as constructive notice) to others of the interest conveyed, deed must be recorded to give constructive notice of the transfer to 3rd parties. NOT REQUIRED between grantor & grantee bc they already have knowledge of the transfer

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address of parties

Back 14

some states require the address of the grantee in order to record the deed. purpose is to determine where tax statements are to be sent, but the deed need not be recorded to be valid between the parties

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seal

Back 15

most states don't require seals, where required, usually just the word "seal" is sufficient

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acknowledgement

Back 16

admission by grantor, before a notary public, that he or she is the grantor, & that the signing (execution) is an act of free will. generally NOT required to have a valid transfer between the parties, but IS required to record the deed

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consideration

Back 17

in some states this must be stated in the deed, but in others it may not be needed

transfer tax or revenue stamps (in Arkansas $3.30 per $100)

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date

Back 18

deed does not need to be dated, it is considered dated as of the date of recording

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types of deed

Back 19

1. warranty
2. general warranty
3. special warranty
4. quitclaim
5. bargain-and-sale
6. sheriff's
7. tax
8. gift

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warranty deed

Back 20

grantor personally guarantees the title

Front 21

general warranty deed

Back 21

grantor binds himself or herself and all heirs to defend the title of the grantee (and that of his or her heirs) against claim of others, even prior to the grantor's ownership of the property

Front 22

special warranty deed

Back 22

grantor warrants that he or she has made no undisclosed transfer of title or encumbrances (limitation on use of title) warranty of title is limited to those who claim their interest under the grantor

Front 23

quitclaim deed

Back 23

deed transfers whatever interests the grantor MAY have in property w/o making any claims of having any interest or ownership. frequently used to remove clouds on title or to give us an easement

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bargain-and-sale deed

Back 24

similar to quitclaim, grantor is not guaranteeing title but is implying that he or she has an interest in the property. there is no such implication in a quitclaim deed

not used in arkansas

value changes hands, in quitclaim value does not change hands

this type of deed does NOT have warranties

Front 25

sheriff's deed

Back 25

given at a sheriff's sale, carries no warranties or representations. it gives only the interest that was foreclosed. there could still be encumbrances

Front 26

tax deed

Back 26

NOTHING & NO ONE comes ahead of property taxes, they are the highest priority

given at a tax sale, property taxes & special assessments generally are priority liens taking precedence even or prior recorded liens. in most states, a tax sale would wipe out liens such as mortgages

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gift deed

Back 27

any type of deed given for "love & affection" can be voided if it can be shown it was given to defraud creditors. otherwise, it is a valid grant (whereas a promise to make a gift requires consideration, a completed gift does not)

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clauses in deeds

Back 28

1. exception (clause excludes a portion of the property from the grant. the word "sans" meaning without, may be used in the deed)
2. reservation (retains for the grantor some right, such as right-of-way over the property--easement)

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recording of deeds

Back 29

recording is considered to be constructive notice to the entire world as to the contents of the document. constructive notice (implied by law), ACTUAL notice is when a party has personal knowledge of a fact

no time limit, date & time though determine priority, "race of the diligent"

name spelled incorrectly so that diligent records search would fail, recording would not give constructive notice

recorded in the wrong county also would fail to provide constructive notice

recording of gift deed does not take priority over a prior unrecorded deed or mortgage given for valuable consideration

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encumbrances

Back 30

limitation on the use or title of property

could be a charge against property such as a lien, restriction on use

can be beneficial such as restrictive convenant

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restrictive convenants

Back 31

aka CC&Rs (covenants, conditions, & restrictions)

zoning is a mandatory public control of land use

private voluntary agreements to land use, buyer needs to know restrictions (i.e. "setback" - building line, "run with the land" - owner to owner)

you can lose property for violating condition, but NOT if if you violate covenant

restrictions that unreasonably restrict future conveyances (alienation) will not be enforced

forced through injunction (a court writ order prohibiting a party from doing or continuing a certain action) courts ordinarily will not grant relief if any of these circumstances are present:
a. parties have waived their rights to enforce the covenants bc of failure to enforce previous breaches of covenant
b. party who seeks to enforce the covenant is in violation of the covenant (entering court with dirty hands)
c. changes have been made in the area that would cause the enforcement to be unreasonable
d. court determines that the restrictions are against public policy

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encroachment

Back 32

trespass by placing improvements (bld or fence) on or over another's land. property owner can take court action to have it removed (ejectment)

Front 33

nuisance

Back 33

nonphysical invasion - smell/light/dust/vibration/radio or dangerous activity

person cannot use property in such a manner that it unreasonable interferes w/the reasonable use of others' property

private nuisance affects a relatively small area of the community, whereas a public nuisance affects a larger area

private nuisance: abatement or injunction can be brought by another property owner

public nuisance: city or county would have to bring actions against this

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abatement action

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to require removal of the nuisance, legal action, also known as a reduction of a property tax assessment

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liens

Back 35

claim on a property & is used as security for a debt or obligation; debt that gives rise to lien may be a result of agreement between the debtor or creditor (as in a mortgage), or it may arise as a result of operation of law (such as tax lien)

voluntary lien (mortgage)
involuntary lien (tax lien)

14-day statutory notice in arkansas

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mechanic's lien

Back 36

statutory lien (estab by state law) used to secure payment for labor, services, or materials used in construction, repair or improvement or real property. based on the theory that the mechanic (supplied of material/services) has enhanced value of the prop & to deny their rights would be to unjustifiably enrich the prop owner. specific to the prop on which the work was done. mechanic must file lien w/prescribed time & verify that the facts stated are correct

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verification

Back 37

swearing to the truthfulness of a statement

Front 38

judgement

Back 38

plaintiff brings legal action against a defendant based on a claim, final order by a court that defendant must pay an amount of money. when recorded, a judgement becomes a general lien on all real prop owned by the debtor w/in the county where the abstract of judgement was recorded

can be recorded in more than 1 county

by writ of execution, judgement creditor can have prop sold by the sheriff to satisfy the judgement (i.e. foreclosures)

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attachment lien

Back 39

i.e. restraining order

a type of lien placed on the property of a defendant before a judgement has been rendered

purpose is to assure the plaintiff that, by bringing the prop under custody of the court, there will be prop to levy against after a judgement is rendered.

this option is only available when it is believed the defendant will flee or otherwise dispose of the prop

Front 40

lis pendens

Back 40

(suit pending)

that there IS or WILL BE lawsuit connected to the prop

serves as constructive notice of an interest claimed in the subject prop by a party other than the owner of record

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priority of liens

Back 41

1. prop taxes
2. mechanics liens
3. order of recording