What is a title and what are the two functions of a title?
-right of ownership; evidence of ownership
-represents the "bundle of rights" the owner possess in the real estate, and it denotes the facts that if proven would enable a person to recover or retain ownership or possession of a parcel of real estate.
Title to real estate may be transferred in Texas by what four main ways?
1. voluntary alienation
2. involuntary alienation
3. will
4. descent
What is the difference between a title and a deed?
-a title is the history and status of ownership of the property; shows who is in possession, liens, past deeds and actions of the property; invisiable document
-deed is transfer of ownership; a new deed is created for each transactions; must be in writing; current status, not history of property
What is a deed?
-a written instrument by which an owner of real estate intentionally conveys to a purchaser a right, title, or interest in a parcel of real estate.
The owner (who sells or gives the land) is referred to as the _________, and the purchaser (who acquires the title) is called the ____________.
-grantor
-grantee
The minimum general requirements for an instrument to qualify as a deed in Texas are that it must:
-name the grantor and grantee,
-state the consideration was given,
-contain a description of the property sufficient to identify it,
-Reservations and exceptions (if any)
-contain words of conveyance
-Habendum and Warranty Clauses,
-be in writing and signed by the grantor or property authorized agent, and
-be delivered to the grantee or an agent and accepted.
-Acknowledgement or Jurat
Explain what each of these requirements mean in order for the deed to be valid.
-names of grantor and grantee; must be valid age, competent, and willing.
-Consideration: to be valid, all deeds must contain a clause acknowledging the grantor's receipt of consideration; money, love and affection, etc.
-Description of property: accurate legal description of the real estate
-reservations and excepts (subject too): grantor may reserve some right to the land (minerals) or place restrictions on a grantee's use of the property (such restrictions may be stated in the deed or contained in a previously recorded document); restrictions usually have time limits and renewal clauses; also include any encumbrances or limitations the affect the title being conveyed.
-Words of conveyance (granting clause): specific words or wording needs to be used to state the owner giving up possession and rights to the property
-habendum clause: begins with the wording "to have and to hold" followed by the granting clause
-warranty clause: states the nature of the grantor's warranties: the part of the deed in which the seller warrants the title conveyed to the buyer: "forever" in a general warranty deed; "by or through me" in a special warranty deed; "without warranty" in a deed without warranty
-signature of grantor: must be signed by all grantors named on the deed or power of attorney
-title to real estate does not "pass" until the deed is actually delivered to and accepted by the grantee
-acknowledgement or Jurat: grantors confirm that the signature on the deed is indeed theirs; since they don't have to sign in front of the notery; jurat signs to confirm askin: SUBSCRIBE AND SWORN TO before me, the undersigned authority, on the 16th day or July, 2009, by John Doe.
The License Act prohibits real estate licensees from drawing up deeds.
True
Voluntary alienation of title means...
transfer of title may be made by either gift or sale.; an owner must use some form of deed of conveyance
A deed executed by an infant (minor) is considered to be void.
false: voidable
A person who is younger than 18 and married is considered to be of legal age to buy and sell real estate even though such person may be divorced before age.
true; also true for majority status in court or by serving in armed forces
A deed executed by a person considered to be mentally incompetent is only voidable.
true; however, a deed executed by a person who is judged legally incompetent is considered to be void
In Texas, witnesses to the grantor's signature on the deed are not necessary and no seal is required.
true: but the signature must be acknowledged (notarized) to permit recording
An attorney-in-fact is any person who has been given power of attorney to do what?
to sign legal instruments for a grantor.
The effect date of the deed transfer of title from the grantor and to the grantee is the date of...
delivery of the deed itself.
Execution is what?
-the signing and delivery of an instrument. Also a legal order directing an official to enforce a judgement against the property of a debtor.
A corporation is considered a legal entity, and for a corporation to convey real estate, what two basic rules must be followed?
1. a corporation can convey real estate only by authority granted in its bylaws or on a proper resolution passed by its board of directors.
2. Deeds to real estate can be signed only by an authorized officer.
What are the four types of deeds?
1. General warranty deed
2. Special warranty deed
3. Deed without warranty (bargain and sale deed)
4. Quitclaim deed
A general warranty (aka warranty deed) deed provides the greatest protection of any deed because certain covenants or warranties legally bind the grantor. The warranties are usually implied by the use of certain statutory terms such as "convey and warrant," "warrant generally," and "grant, bargain, and sell." What are the five general style warranties?
1. covenant of seisin: grantor warrants that he is the owner of the property and has the right to convey the title. The grantee may recover damages up to the full purchase price if this covenant is broken
2. Covenant against encumbrances: the grantor warrants that the property is free from any liens or encumbrances except those specifically stated in the deed.
3. Covenant of quiet enjoyment: the grantor guarantees that the grantee's title is good against third parties that might bring court actions to establish superior title to the property.
4. Covenant of further assurance: the grantor promises to obtain and deliver any instrument needed to make the title good; ex: spouse forgets to sign
5. Covenant of warranty forever: the grantor guarantees that she will compensate the grantee for the loss sustained if title fails at any time in the future.
Unless, otherwise negated by express language in the deed, the words grant or convey create implied warranties to the grantee and to any heirs and assigns for the first two covenants listed.
true
A seller should provide no greater warranties than what was received.
true
A special warranty deed is used in most transactions.
false: general warranty deed
A conveyance that carries only one covenant is a ________ warranty deed. Warrants against defects occurring during the grantor's ownership
special warranty deed
-deed generally contain words such as remise, release, alienate, and convey
A special warranty deed is usually used by fiduciaries such as....
trustees, executors, and corporations
The deed without warranty (aka bargain and sale deed), uses the words "______ and _____" or "______, _____, and ____" in the granting clause. This type of deed contains no warranties against encumbrances; however it does imply that the grantor holds title and possession of the property.
"grant and release" or "grant, bargain, and sell"
A quitclaim deed provides what?
-the least amount of protection
-a conveyance by which the grantor transfers whatever interest she has in the real estate, without warranties or obligations
How is the special warranty deed different from the general warranty deed?
-special deed does not cover the entire history of the property, only the history of the current seller's ownership; does not gurantee that the owners prior to them own the property free and clear.
Bargain and sale deed (Deed without warranty) are commonly used in what kind of property transactions?
tax sale or foreclosure
Bargain and sale (Deed without warranty) guarantees and doesn't guarantee what?
-gurantees that the seller does own the title
-does not guarantee that there is anything wrong with the title, such as liens, encumbrances, etc.
What is the most important thing with a deed?
-to know that the seller has the right to sell the property
-you can research the other stuff
Quitclaim deeds are usually used in...and bascially states what?
-divorce
-family member was passed down a property and they want to sell the property or transfer it to another person.
-states that the person selling it does not have any interest in it, just wants to sell it, does not know about titles condition and doesn't feel like going through all the legal stuff to find out title info.
Deeds are mainly liability
true
What is the deed in trust function?
-method of delivering a deed into a trust from a trustor to a trustee--until some future event that would cause the trustee to deliver the deed to the beneficiary/trustee; usually a general warranty deed or a special warranty deed.
***Is NOT the same as Deed of trust, which is a security instrument for a loan, not a deed.
What is the trustee's deed function?
-is used when a trustee named in the will, trust agreement, or deed of trust, sells or conveys property out of the trust; it is usually general or special warranty deed.
A deed executed pursuant to court order, a sheriff's deed, an executor's deed, and an administrator's deed, among others, are signed and delivered by court order or through another directive; these are usually general or special warranty deeds.
true
Involuntary alienation is the title of property can be transferred without the owner's consent and is usually carried out by operation of law. What are the four main types of involuntary alienation actions?
Action---Process--Property Taken by
1. Person dies interstate; no heirs--escheat--state
2. Land needed for public use--eminent domain--public or government agency
3. Nonpayment of a debt secured by real property--foreclosure--creditor
4. Open, notorious, continuous, hostile, and adverse use of another's property for prescriptive period--adverse possession--adverse possessor
What is adverse possession?
-the acquiring of full title to real property owned by someone else by open, notorious, hostile, and continuous possession for a statutory period; 3, 5, 10, or 25 years
-similar to squatters rights
What are the requirements of the 3, 5, 10 and 25 year statutes for adverse possession?
-3 yr statute: have title or color of title (following chain of transfers down to the adverse possessor); possess a general or special warranty deed
-5 yr statute: cultivate, use, or enjoy the property; pay taxes; register a deed; does not have to have color of title, or chain of title; indefeasible title
-10 yr statute: cultivate, use, or enjoy the property; does not have to have a deed or other form of conveyance or payment of taxes.
-25 yr statute: have a deed that is recorded in the county; act in good faith; does not have to have a valid deed; the grantor may not have had legal capacity to sign the deed.
Through the principle of ________, successive periods of adverse possession can be combined by successive adverse possessors, thus enabling a person who is not in possession for the entire required time to establish a valid claim.
tacking
Freehold estates are estates of unknown length can be divided into which two main estate styles?
-estates of inheritance: include fee simple and defeasible fee estates
-life estates: two types; 1. conventional life estates; created by acts of the parties, and 2. legal life estates, created by law
Sole ownership, or ownership in severalty, indicated that tile is held by one person or entity, but title to real estate can be held concurrently by more than one person called ________.
co-ownership
Most common forms of co-ownership are..
-tenancy in common: each party holds an undivided interest in severalty; individual owners may sell, mortgage, convey, or transfer their own interest; pasted down to heirs due to death
-community property: share between husband and wife; each spouse owns one-half; properties acquired by a spouse before marriage and through inheritance, gifts, or agreements after the marriage are deemed separate property, even property purchased from separate funds and money received from the sale of separate property are considered separate property
-joint tenancy: involves tow or more owners normally with the right of survivorship; must be stated clearly in agreement; four unities; time, title, interest, and possesion.
When a person dies without having left a valid will, it is called what and how is property passed down?
-called interstate
-the decedent's real estate and personal property pass to the heirs according to the statue of descent and distribution; state makes will for the decedent.
_______, is the person who has died.
Decedent
A person who dies and has prepared a will indicating how property will be disposed of after his/her death is called what?
testate
A __________________ is an instrument made by an owner to voluntarily convey title to the owner's property after death.
-last will and testament.
A will can take affect before death.
false; can only take affect after death; deed can take affect before death.
In Texas, a surviving spouse automatically owns one-half of the couple's community property acquired during the marriage and a will is not necessary to protect that interest.
true
A person who has died and left a will is said to have died _______, a party who makes a will is know as a ______.
-testate
-testator
The gift of real property by will is know as a _______ and a person who receives real property by will is known as a ______.
-devise
-devisee
A gift of personal property is know as a ________ or _________; the person receiving the personal property is known as a __________.
-legacy or bequest
-legatee
What are the requirements for a valid formal will?
-legal age (18+, married, court independent or served)
-sound mind (not mental, understanding of will, can identify heirs)
-proper wording
-no undue influence (no influence by others)
-signed
-witnessed
In Texas a formal, or witnessed will must be in writing and signed by the testator in the presence of two or more credible witnesses. What are the requirements of the witnesses? The testator may modify the executed will by means of codicil, which must be in the same form as the will it amends.
-above the age of 14 who will subscribe their names as witnesses; should not be persons named as devisees or legatees in the will.
Texas law also recognizes a holographic will, which is what?
-one that is wholly in the handwriting of the maker
________ is a legal process by which court determines the validity of a will and establishes the assets of a decedent and who will inherit those assets.
probate
A will that is not probated may be no will at all. Why?
probate means "to prove"; a decentant of the deceased may get the will probated in order to claim if it is valid; if there are any objections to the will.
-to find out if it is the deceased last will.
After the heirs are established by probate of will, the court appoints an ___________ to oversee the administration and distribution of the estate if no executor/executrix was named in the will.
administrator/administratrix for woman
The court give the administrator (if there is no will) or executor (if there is a will) the authority...
to appraise the assets of the estate and satisfy all debts that are owned by the decedent.
Real property specified in a will passes with all debts against it unless the will specifically states that the debt is to be paid from the estate.
true
A broker entering into a listing agreement with the executor or adminstrator of an estate in probate should be aware of what?
-that the amount of commission will be fixed by the court and that such commission is payable only from the proceeds of the sale.
-should as be aware of who owns the property and has the authority to sign the listing agreement.
-the broker will not be able to collect a commission unless the court approves the sale.
Under the decent status, the primary heirs of the deceased are...
The relative's rights to inherit must be established by proof of heirship during the __________ process.
-the spouse and close blood relatives, such as children, parents, brothers, sisters, aunts, uncles, and in come cases first and second cousins.
-probate
-Texas law with legally adopted children are considered heirs of the adopting parents, but will not be considered heirs of ancestors of the adopting parents; unless stated in will.
Community property passes on the death of one spouse without a will in one of two ways:
-to the surviving spouse; if all surving children are underage or children belong to the surving spouse
-one-half to the surviving spouse and one-half to the children
The Texas Law of Descent and Distribution provides that real estate located in Texas and owned as separate property by a deceased owner who died intestate is distributed in what ways in the situations below?
1. If the deceased leaves a spouse and children or descendents of the deceased children, how is the property given?
2. If there are no surviving spouse and if the deceased leaves one or more children, how is the property given?
3. When the deceased does not leave children or their descendents but does leave a spouse and parents, brothers, sisters, or descendants of deceased brothers or sisters, the spouse take one-half of the real estate and the other half passes in one of the following ways:
4. If the deceased leaves a spouse but no children or descendants of children and no parents or descendants of parts...
5. If the decedent leaves no spouse or descendants (unmarried person), the decedent's entire ownership of real estate passes as...
6. If none of the foregoing exist...
7. If the deceased leaves no surviving spouse and no kindred or heirs...
1. the spouse takes one-third of the real estate for life and the balance is shared equally by the children.
2. the children take the real estate equally among them
3. -to both parents equally
-half to the surviving parent and the other half to the brothers and sisters and their descendants
-all to the surviving parent if there are not living descendants
-all to the descendents's brothers or sisters or their descendants
4. the spouse takes all of the estate
5. indicated in item 3
6. one-half of the real estate passes to the paternal kin and the other half to the maternal kindred (relatives). The statue contains tracking for order of heirs
7. the real estate echeats to the state.
Every deed must be signed by the...
grantor
Alicia, age 15, recently inherited many parcels of real estate from her late father and his decided to sell one of them. If Alicia signed a deed conveying her interest in the property to a purchaser without the signature of her legal guardian, such a conveyance would be...
voidable
To voluntarily transfer a right, title, or interest in real estate, an owner may use all the various deeds of conveyance EXCEPT;
A. a sheriff's title
Title to an owner's real estate can be transferred at the death of the owner by...
last will and testament
Ken signed a deed transferring ownership of a property to Terrence. To provide evidence that Ken's signature was genuine, Ken executed a declaration before a notary. This declaration is know as an
acknowledgement
Alvin executes a deed to Sylvia as grantee, has it acknowledged, and receives payment from Sylvia. Alvin holds the deed, however, and arranges to meet Sylvia the next morning at the courthouse to deliver the deed to her. In this situation at this time,
B.
Xavirer, a bachelor, died owning real estate that he devised by will to his niece, Anna. In essence, at what point does title pass to his niece?
immediately up Xavirer's death
A person who pays for and receives a quitclaim deed,
C.
An owner of Texas real estate, who was judged legally incompetent, later made a will during his stay at a nursing home. He died and was survived by a wife and three children. His real estate will pass...
by the laws of descent and distribution as if no will had been made at all.
A warranty deed usually implicitly obligates the grantor to the following warranties EXCEPT:
B. escheat
The statue or act that creates the need for a deed to be in writing in order to be enforceable is the...
statue of frauds
An instrument authorizing one person to act for another is called...
