Chapter 20: Transferring Title

Deed

A written document that when properly executed and delivered, conveys title to land.

Essential Elements of Deed

1. Competent Grantor

2. Identifiable Grantee

3. Consideration

4. Granting Clause (Words of Conveyance)

5. Legal Description of the Property

6. Grantor’s Signature

7. Delivery and Acceptance

Statute of Frauds

Requires that transfers of real estate ownership be in writing and signed in order to be enforceable in a court of law.

*The name of the grantor MUST BE on?

The deed.

Grantor

The person named in a deed who conveys ownership. (The person giving or transferring the property)

Grantee

The person receiving the property.

The only signature needed on the deed is who?

The grantor

The grantee must be clearly identified, but it is not required that s/he

Have full legal capacity.

Granting Clause

Deed must clearly state the intention to convey the property from the grantor to the grantee.

Consideration

Anything given, good or valuable, to induce another to enter into a contract.

The grantor may be reserving an easement for himself/herself to access adjoining property. The transfer may place conditions on the use of the property which?

Will be noted on the persons deed.

Signature of Grantor

The grantor is required to sign the deed; however, the grantee is not.

Delivery and acceptance- For a deed to be VAILD, the deed must be delivered by the grantor and accepted by the grantee (or a person empowered to accept on behalf of the grantee). This delivery and acceptance must take place during the?

The lifetime of the parties.

Covenant

A written agreement or promise.

Warranty

An assurance or guarantee that something is true as stated.

Five Covenants

1. Seizin

2. Quiet Enjoyment

3. Against Encumbrances

4. Further Assurance

5. Warranty Forever

Covenant of seizin (sometimes spelled seisin):

The grantor warrants (guarantees) to be the owner and possessor of the property being conveyed and to have the right to convey it.

Covenant of Quiet Enjoyment:

The grantor warrants to the grantee that the grantee will not be disturbed, after taking possession, by someone else claiming an interest in the property.

The term quiet enjoyment is also used in a leasing situation.

A tenant has, by implication if not expression, the right to use and enjoy a leased property for the purposes for which it was leased.

The grantor guarantees to the grantee that the title is not encumbered with any easements, restrictions, unpaid property taxes, assessments, mortgages, judgments, and so on, except as stated in the deed.

Covenant Against Encumbrances:

Covenant of Further Assurance

The grantor promises to obtain and deliver any instrument needed to make the title good.

Warranty forever:

A guarantee to the grantee that the grantor will bear the expense of defending the grantee's title.

Habendum Clause

That part of a deed beginning with the words "to have and to hold," following the granting clause and defining the extent of ownership the grantor is conveying.

While a date is common in the deed it is?

It is not required.

Constructive notice must be given in?

Writing

Witnesses

Witnesses are NOT required for the deed to be VAILD, but they ARE required to record the deed.

In Georgia how many witness are required.

2

In Georgia, two witnesses are required to record with one being__ and the other?

With one of them being an official witness typically a notary public. The other can be anyone

While acknowledgment is not a requirement of a valid deed:

Acknowledgment is a requirement to record at the county courthouse into public record.

Recording

The most effective way to provide constructive notice to the world of the owner's interest in the property.

True or False: Recording a deed is NOT required for it to be valid between the parties

True

General Warranty Deed

Grantor makes full guarantee to buyer against defects of title.

General Warranty Deed contains?

All 5 covenats and warranties

Special Warranty Deed

Grantor warrants title only against defects occurring during the grantor's ownership. (Person can only account for the time they have had the deed and no other.)

The special warranty deed is commonly used by?

Executors and trustees who convey on behalf of an estate or principal because the executor or trustee has no authority to warrant and defend the acts of previous holders of title.

Form of deed has also become very common in typical property transfers in Georgia.

Special Warranty Deed

Bargain and Sale Deed

A deed that contains no covenants but does imply that the grantor owns the property being conveyed.

A deed that contains no covenants and only the minimum essential of a deed is?

Bargain and Sale Deed

Quitclaim Deed

A legal instrument used to convey whatever title the grantor has; it contains NO covenants, warranties, or implication of the grantor's ownership.

A deed that means to renounce all possession, right, or interest.

Quitclaim Deed.

Remise means to:

Give up any existing claim one may have, as does the word release.

Cloud on Title

Any claim, lien, or encumbrance that impairs title to property.

A quitclaim deed may also be used to create:

An easement, as well as release (extinguish) an easement.

Sheriff's deeds and referee's deeds in foreclosure are issued to the new buyer when a person's real estate.

Is sold as the result of a mortgage or other court-ordered foreclosure sale.

If a person dies without leaving a last will and testament (or leaves one that is subsequently ruled void by the courts because it was improperly prepared).

That person is said to have died intestate, which means without a testament.

Intestate Succession

When a person dies without a last will and testament, it directs how the deceased's assets will be distributed.

The amount each heir receives, if anything, depends on individual state law and on how many persons with superior positions in the succession are alive.

If no heirs can be found, the deceased's property escheats (reverts) to the state.

Testate

When a person dies leaving a last will and testament.

The person who made the will is?

The testator (masculine) or testatrix (feminine).

Real property that is willed is known as:

A devise, and the recipient, the devisee.

Personal property that is willed is known as:

Bequest or Legacy

Personal Representative

The person named in the will or appointed by the court to settle the estate.

Notice an important difference between the transfer of real estate ownership by deed and by will:

Once a deed is made and delivered, the ownership transfer is permanent; the grantor may not have a change of mind and take back the property.

Probate Court

Upon death, the deceased's will must be filed with a court having power to admit and certify wills.

If the testator owned real property, its ownership is conveyed using?

An executor's deed

The executor's deed is used both to:

Transfer title to a devisee and to sell real property to raise cash.

An executor's deed is a?

Special warranty deed.

Holographic Will

A handwritten will with no witnesses.

Which will has no effect in the state of Georgia?

Holographic Will

Besides the fact that holographic wills are considered to have no effect in Georgia or 30 other states, what is the often result?

They often result in much legal argument in states that do accept them.

Nuncupative Wills

Oral or spoken will made in anticipation of death. This will, sometimes referred to as a soldier and sailor will, is recognized in Georgia.

Codicil

An amendment or change to a will rather than a complete re-creation.

The codicil must be.

Dated, signed, and witnessed in the same manner as the original will.

The only way to change a will is by?

Adding a codicil or by writing a completely new will.

The law will not recognize?

Cross-outs, notations, or other alterations made on the will itself.

Adverse Possession

Through the unauthorized occupation of another person's land for a long enough period of time, it is possible under certain conditions to acquire ownership.

Oral Will

Not recognized in Georgia.

MUST be witness by two people with no interest in the estate.

MUST be out into writing within 30 days of being spoken

Color of Title

Some plausible but not completely clear-cut indication of ownership rights.(Involves Encroachment)

Suggest the appearance of ownership interest

Color of Title

Tacking

Claimant can add on their period to another possessor.

In accumulating the required number of years:

Adverse ownership rights claimants may tack on their period.

A claimant must be able to prove that he/she has met Adverse Possession for how many years?

20 years in Georgia

7 years if the claimant has color of title

An easement may also be acquired by:

Prolonged adverse use. This is known as acquiring an easement by prescription.

With adverse possession, the laws are:

Strict

Accretion

Gradual addition of land caused by natural forces, such as wind, tide, flood, or watercourse deposits.

Ownership of land can be altered by?

Accession

Accession

Can result from natural or manmade causes.

Alluvion

The increase of land caused by the gradual depositing of waterborne soil.

Reliction

The permanent receding of water, exposing dry land.

Avulsion

A sudden washing away of land that does not typically alter the property lines.

Causes the change of the boundary line?

Alluvion, Reliction, and Erosion

When land is rapidly washed away by the action of water, it is known as?

Avulsion

Manmade accession occurs through?

Annexation of personal property to real estate.

A transfer of land by a government body to a private party is called a

Public Grant.

When an owner makes a voluntary gift for the use of land to the public, it is known as?

Dedication

Dedication is not a transfer of title, but, rather, a:

Dedication of use for the benefit of the public.

Common law dedication takes place when landowners, by their acts or words, show that they intend part of their land to be dedicated:

Even though they have never officially made a written dedication.

Forfeiture of Title

Can occur when a deed contains a condition or limitation.

If it includes on the deed that the property must be used for a certain person and you do not it automatically reverts back to the grante.

Forfeiture of Title

Alienation of Title

A change in ownership of any kind. In this context simply means "to transfer.

Alienation can result from:

Court action in connection with escheat, eminent domain, partition, foreclosure, execution sales, quiet title suits, and marriage.