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Property—Cotropia Open-Source Property Casebook

Interests and Land Transfers I.

Estates and Future Interests a. Concepts, Vocabulary and Conventions i. Possessory estate: a legal interest that confers on its owner the right to present possession of some think. ii. Future Interest: a legal interest that exists in the present, but does not entitle the owner to the possession until some point in the future. 1. A lease is a transaction where the landlord gives the tenant a possessory estate (a leasehold estate), and retains a future interest. 2. Reversion: an unqualified right to future possession retained by the party who created the possessory interest that precedes it. a. The right to take possession at some point in the future. b. If landlord sells her interest in the property, they’re not selling the property, they’re selling the landlord’s reversion c. A legal interest in real property that exists in the present but will not entitled its holder to possession of that real property until some point in the future. 3. A grant or conveyance is a transfer of an interest in property. a. Person making the grant is the grantor, person receiving it is the grantee. b. Inter vivos conveyance: grant made during the life of the grantor. c. Testamentary conveyance: conveyance in a will. i. Devise: a testamentary conveyance of real property. ii. Bequest: a testamentary conveyance of personal property. d. Testate: dying with a valid will i. Testator/ testatrix e. Intestate: dying without a valid will. i. Administrator/ administratrix: intestate disposed of by a court appointed one. f. Estate: assets a decedent owned at death. i. Executor/ Executrix: instructions in the will carried out by one of these. g. Beneficiaries/ devisees: parties receiving the bequest (for real property) h. Devised a property: decedent passes property by will. i. Devisable: property interest that the decedent has the power to transfer by will

II.

j. Partial intestacy: a will that fails to provide instructions for all the assets owned by the testator at death. k. Residuary clause: good practice to include one in a will. Disposes the assets of the decedent not devised through specific bequests. l. Residuary estate: the unenumerated assets. m. Descendible: property interest that can pass by intestate succession. i. Until a property owner dies, her relatives have no legally enforceable rights in her property under the laws of intestate succession. n. Mere expectancy: heirs apparent to property. o. Issue: the direct descendants of the decedent (children, grandchildren, great-grandchildren, etc.) p. Ancestors (parents, grandparents, great-grandparents, etc.) q. Collaterals: relatives who are not direct ancestors or descendants (siblings, aunts, uncles, nieces, nephews, cousins.) r. Escheats: person dies without a will and without any heirs at law, property escheats to the state, which becomes its owner. Basic Estates and Future Interests a. Fee Simple Absolute: the most complete interest in land that the law will recognize. i. “I transfer my land to Jess and her heirs.” Will creates a fee simple absolute in any jurisdiction or any time. ii. “O owns Blackacre,” means he has a present possessory fee simple absolute. iii. Has no inherent end, is an estate of indefinite duration. iv. Descendible, devisable, and alienable inter vivos. 1. Can be transferred to a new owner, but cant be destroyed. 2. Common law: “to A and his heirs.” 3. Modern: “To A.” b. Life Estate: an estate that confers a right to possession for the life of its owner. i. Life tenant: owner of a life estate. ii. “To A for life.” 1. Any land held by a life tenant must be subject to a future interest in some other person. 2. Nemo dat quod non habet (nemo dat): a grantor cannot convey title to something she doesn’t herself own. The owner of an interest in real property cannot convey more than their interest. 3. Life estates are alienable inter vivos during the life of the life tenant, but not devisable or descendible.

III.

a. If A transfers their life estate to B, B receives a possessory estate that will terminate by operation of law when A dies. b. Life estate pur autre vie: life estate “for another life”. i. “To A for the life of B.” c. Reversion: the retained interest in the grantor, created when a grantor conveys less than his entire estate, that will become possessory by operation of law upon the natural termination of the preceding estate. i. the residual interest left over when a grantor gives away less than they have—a retained interest. Will always be a fee simple absolute. d. Remainder: a type of future interest created in someone other than the grantor. Remainders will only follow a life estate. i. Cannot cut short or divest any possessory estate. ii. “To a for life, and then to B.” Construing Ambiguous Grants a. Valid rules of construction of an ambiguous will: i. Determine the intent of the testator (the writer of the will). ii. Avoid creating an intestacy. iii. Avoid disinheriting the testator’s children. iv. Presumption in favor of largest estate the testator could devise.

In The Estate of Dalton Edward Craigen (CONSTRUING AN AMBIGUOUS WILL)  

“Debbie gets everything till she dies . . .I leave to my wife Daphne all p. real and personal property. Primary object of inquiry in interpreting a will is determining the intent of the testator. o Testator’s intent must be drawn from the will, not the will from the intent. o “In construing the will, all its provisions should be looked to, for the purpose of ascertaining what the real intention of the testator was; and, if this can be ascertained from the language of the instrument, then any particular paragraph of the will which, considered alone, would indicate a contrary intent, must yield to the intention manifested by the whole instrument. o When a will is drafted by a layperson, courts don’t place too great emphasis on the precise meaning of the language used where the will is the product of one not familiar with legal terms or not trained in their use. o Testator’s intent gathered from the will as a whole prevails against a technical meaning, unless the testator intended to use the word or phrase in a technical sense. o No particular words are needed for a life estate, but the words must clearly show the testator’s intent to create a life estate. o Very strong presumption that when a person leaves a will, the testator intended a complete disposition of his property.  “The very purpose of a will is to make such provisions that the testator will not die intestate.”

o Craigen did not mention his children in his will and made no provisions to expressly benefit them.  All Craigen’s property would go intestate. o The rule that Craigen did not likely intend to create an intestacy favors the trial court’s construction. o “Although the first sentence in the will is susceptible to the interpretation that Craigen created a life estate, the will becomes ambiguous when Craigen expressly names Daphne as the beneficiary of all of his property and makes no further provision for his estate upon her death.” o “The immediate vesting construction favors Daphne, the sole beneficiary named in Craigen’s will. It also affords the phrase, “till she dies,” a nontechnical meaning. o “Taking the will as a whole, the dominant gift is all of Craigen’s property to his wife in fee simple. As this is the dominant clause, Craigen’s expressed intention prevails.” o *Presumption that someone intends to transfer the largest interest in their estate that they can*  Holographic Will: a will handwritten by the testator.  Half of American jurisdictions refuse to recognize them as valid wills at will. o Most jurisdictions have similar rules of construction o Two big rules here: presumption against intestacy and the clear-statement rule for creation of a life estate (some jurisdictions call it a presumption in favor of the largest estate the grantor could convey). o Presumption against disinheritance: overridden in Craigen. Land Transactions  

Paper transactions that are subject to the statute of frauds. Deed: a written conveyance. o Transfers by operation of law (adverse possession and intestacy) are most common.

Harding v. Ja Laur (FRAUD V. FORGERY)   

Bill alleged that a deed had been obtained from the appellant through fraud practice. “Signature was falsely and fraudulently attached to the first page of a deed identified as the same deed.” Harding alleges that she signed a blank paper, and was told that her signature was necessary in order to straighten out a boundary line. o She did not know she was conveying away her interest in and to a certain 1517 acres of land.

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“Forgery has been defined as a false making or material alteration, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability.” o Forgery is the fraudulent making of a false writing having apparent legal significance. o One of the essential elements of forgery is a writing in such form as to be apparently of some legal efficacy and hence capable of defrauding or deceiving. Material alteration may be in the form of: (1) an addition to the writing, (2) a substitution of something different in the place of what originally appeared, (3) the removal of part of the original. o Removal can be by erasure, or some other manner such as cutting off a qualifying clause appearing after the signature. o Forgery includes the alteration of or addition to any instrument in order to defraud. “Appellant’s signature was written upon a paper, which paper was thereafter unbeknown to her made part of a deed, if true, demonstrates that there has been a material alteration and hence a forgery.” “The title of a bona fide purchaser, without notice, is not vitiated even though a fraud was perpetrated by his vendor upon a prior title holder.” “A deed obtained through fraud, deceit, or trickery is voidable as between the parties thereto, but not as to a bona fide purchaser. A forged deed, on the other hand, is void ab initio (void from its inception). Common Law Rule: a forger can pass no better title than he has. o A forger, having no title, can pass none to his vendee. o There can be no bona fide holder of title under a forged deed. o In a fraudulent deed an innocent purchaser is protected because the fraud practiced upon the first person is by successful due to some act or omission on their part. o A forged deed, on the other hand, does not necessarily involve any action on the part of the person against whom the forgery is committed. o If a person is presented with and signs a deed, and the deed is altered thereafter, through a change in the description or affixing the signature page to another deed, that is forgery and a subsequent purchaser takes no title.

Walters v. Tucker (CONSTRUING AN AMBIGUOUS DEED)     

Action to quiet title P and D are owners of adjoining residential properties. Dispute over lot size: P says its 50 feet in width east and west. D says lot is only 42 feet. Common source of title: the Wolf’s o House on the property already that the Wolfs lived in. P is the last grantee and successor in title to the lot

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D are last grantees of and successors in title to the remaining portion of the lot. Extrinsic evidence was heard for the purpose of enabling the trial court to interpret the true meaning of the description of the deed. o Ambiguity existed which justified the hearing of extrinsic evidence. o Trial court found a “latent ambiguity” in the deed. o Parol evidence was admissible to ascertain and determine the deed’s true meaning. o Concrete driveway 8 feet in width, was built by one of plaintiff’s predecessor’s in title. o Driveway was upon an appurtenance of plaintiff’s property. “The description under which plaintiffs claims title, to wit: “The West 50 feet of Lot 13 . . .’ is on its face clear and free of ambiguity.” “When there is no inconsistency on the face of a deed and, on application of the description to the ground, no inconsistency appears, parol evidence is not admissible to show that the parties intended to convey either more or less or different ground from that described.” “Where there are conflicting calls in a deed, or the description may be made to apply to two or more parcels, and there is nothing in the deed to show which is meant, then parol evidence is admissible to show the true meaning of the words used.” Lot 13 was vacant land when the deed was made. Stucco house was not built until the following year. “Under no conceivable theory can the fact that defendants’ predecessors in title thereafter built the stucco house within a few feet of the east line of the property described in the deed be construed as competent evidence of any ambiguity in the description.” o Deed used three different techniques to describe the land:  “United States Survey 1953 . . . .” is a reference to a government survey  Townships are standard 36-square-mile-tracts established by a federal government survey.  “Twp. 45, Range 8 East” identifies a specific township in Missouri  “of Lot 13 of West Helfenstein Park” references the subdivision plat filled by the developer who laid out the neighborhood.  “The West 50 feet” is a (crude attempt at) a metes and bounds description of the property.  Metes and bounds may refer to: o geospatial coordinates (longitude and latitude measured by GPS) o Natural landmarks (Millers’ Creek) o Artificial markers (the survey stake labelled G34) o Distances and directions (300 feet along a course at 45 degrees)

Loughran v. Kummer (DELIVERY OF A DEED, SIGNED, SEALED, DELIVERED)

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Appellee conveyed land in Pittsburgh to Mrs. Kummer for $1 o Bill was filed to set aside the deed, for confidential relationship, undue influence, and impaired mentality. o Lower court found that the deed was absolute on its face, had been executed, acknowledged, and deliver to appellant by appellee, on condition that it should not be recorded until the appellee’s death. o Appellant deceived appellee when she stated the deed had been destroyed.  “she wanted to ease his mind by making him believe that it had been destroyed.” QP: Whether a deed absolute on its face, acknowledged, executed, and delivered vested such title in the grantee as could be revoked for the above reasons. Grantor said the deed should not be recorded until after his death, and the grantee in accepting the deed took it on that condition. “All control over the deed was relinquished when it was handed to Kummer.” o Presumption must be that at that time he intended to pas title.” “The general principle of law is that the formal act of signing, sealing and delivering is the consummation of the deed, and it lies with the grantor to prove clearly that appearances are not consistent with truth.” o Burden is on the grantor by clear and positive proof that there was no delivery and it was so understood at the time. o When the deed is signed, sealed and delivered, and is attacked as in fact otherwise intended, there is a further presumption that the title is in conformity with the deed, and it should not be dislodged except by clear, precise, convincing and satisfactory evidence to the contrary. Quiet title: disputes over who actually owns the property. Gift was executed, and that Kummer was not supposed to record it was not of the slightest consequence when viewed against the delivery and passing of title. o It was merely a promise, the breach of which entailed no legal consequences. There are circumstances, where acknowledgement, together with physical possession of the deed in the grantee, does not conclusively establish an intention to deliver, and the presumption arising from signing, sealing, and acknowledging, accompanied by manual possession of the deed by the grantee, is not irrebuttable, but this presumption can be overcome only by evidence that no deliver was in fact intended and none made. The legal effect of such delivery is not altered by the fact that both parties suppose the deed will not take effect until recorded, and that it may be revoked at any time before record, or by contemporaneous agreements looking to the reconveyance of the property to the grantor or to the third party upon the happening of certain contingent events or the nonperformance of certain conditions. Title to land ought not to be exposed to the peril of successful attack except where the right is clear and undoubted, and whatever may be our desire to recognize circumstances argued as unfortunate, we cannot go to the extent of overthrowing principles of law governing conveyances of real estate that have stood the test of ages.

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An oral understanding on the delivery of a deed that it should not be recorded will not affect the absolute character of the conveyance if free of other conditions. An agreement to deliver a deed in escrow to someone will not make the delivery conditional. o If delivered under such an agreement, it will be deemed an absolute delivery and a consummation of the execution of the deed. Principal elements of a deed: o Sufficient writing o Signed o Delivered. o “as a deed may be delivered to someone without words, so may a deed by delivered by words without any act of delivery. As if the writing sealed lies upon the table, and the grantor says to the grantee, ‘Go and take up that writing, it is sufficient for you, or it will serve your turn, or Take it as my deed. Either is a sufficient delivery.” Two ways to do delivery right: o (1) Sign and hand over a deed at closing, when all of the necessary parties are in the same room and can execute all of the appropriate documents effectively simultaneously. o (2) Use an escrow: a third party who receives custody of the signed deed along with instructions to deliver it to the grantee when appropriate events have taken place. FLOW CHART FOR DELIVERY OF A DEED: 1. intend to pass title to the property interest immediately 2. physically relinquish control over the deed by manual act of manual or constructive delivery. If the grantor had the ability to retrieve deed out of a safety deposit box while the grantor was alive, Quitclaim Deed: a deed with no warranties. “I am gonna give you what I got. If I have any rights to the property I am giving them to you.” o Verizon buying property in eastern VA for cell towers. Going to have everyone try and sign quitclaim deeds, don’t know who owns the property but I will handle the lawsuits as they come, let me get as many rights as I possibly can. o Is no warranty at all. If this were the transfer between Housworths and McMurrays, there would be no claim. Deed with Full Covenants: contains a lot of promises from the grantor to the grantee o 1. Is seized of said premises in fee simple, and has good right to convey the same. o 2. Party shall quietly enjoy the premises o 3. Free from incumbrances. o 4. Grantor will execute or procure any futher necessary assurance of the title to the land (I will help sue the other people if someone tries to challenge your ownership)

o 5. This person will forever warrant the title to said premises. o One of the promises will always be a general warranty deed, which includes a warratny free from encumbrances o Quietly enjoy: no one is going to challenge your right to the property. HYPO GENERAL WARRANTY DEED: A contract to buy from C, house is subject to a restrictive covenant requiring any house erected to be two stories or higher. Current house is only one story. Contract contains the following clauses: 1. Certified to date showing good merchantable title . . . guaranteeing said title . . . free and clear of all encumbrances.  

Essentially a general warranty deed Private encumbrance, so violation.

2. Subject, however, to all restrictions and easements of record applying to this property. 

This clause will not save...