MBE Real Property - Competing Claims

Method of acquiring title to another’s land by hostile continuous possession for a period of time.

Trespasser’s possession must be:

Continuous for duration of statutory period (depends on jurisdiction);

Hostile;

Actual,

Open & notorious;

Exclusive

20 years

Uninterrupted use of the property throughout the statutory period.

Yes as long as it is consistent with the ordinary use of the property (ex. if property is a ski cabin or summer beach house).

When a trespasser “tacks on” (adds on) a prior adverse possession period to meet the statutory requirement.

⚠️ Note: Privity between trespassers is required. The new trespasser must take by non-hostile means without gaps in possession.

If the new trespasser has taken control of the property through hostile means (called “ouster”).

No, SOL will toll (pause) if rightful owner was disabled (minor, incarcerated, mentally incompetent, etc) when the adverse possession started.

Actual, physical possession of the property.

Obvious and not hidden; the owner would know of it with reasonable inspection.

Without the owner’s permission. Trespasser does not need to intend to adversely possess the property.

No, defeats hostility requirement

No, tenancy at sufferance exists, not adverse possession

Majority: Yes, mistake is sufficient

Minority: No, possessor must show they would have intentionally encroached even if they had known of their hostile use

Title that appears valid, but actually isn’t because of some flaw in the deed (i.e. deed doesn’t contain all required elements)

If adverse possessor occupies a significant portion of the land in the deed, the possessor is entitled to the entire property

No

Yes, but only if the co-tenant clearly and unequivocably ousts the others from the land for the statutory period

Only if adverse possessor’s use was consistent with the covenant

Land contract;

Closing;

Deed transfer

In writing;

Signed by the parties to be bound;

Contain essential terms of the deal (description of the land, consideration to be paid, etc)

If buyer does 2 of the following:

Takes possession of the land;

Makes physical improvements; and/or

Pays significant part of the purchase price

title is free from defects and unreasonable risk of litigation

Encumberances;

Covenants

Easements

Mortgages

Liens

Title acquired by adverse possession;

Zoning violations;

Incurable physical defects; and

Future interests that have not consented to transfer

Yes

Seller has duty to disclose all material latent defects; and

Seller cannot misrepresent or fraudulently conceal

No, disclaimers do not limit liability for misrepresentation or fraud

By the date of closing

Can make arrangements on the date of closing to earmark part of the purchase price to remedy the defect and make the title marketable

Notify the seller before the closing date and give them a reasonable time to cure defects

If seller doesn't cure, buyer can seek specific performance, damages, and an action to quiet title

⚠️ If buyer doesn't notify seller beforehand, deed controls b/c of the merger doctrine and seller is not liable

For new property, implied promise that structures will be constructed in a "good and workmanlike" manner

Once the deed is transferred/conveyed to the buyer, the contract merges with the deed and the deed controls, not the contract.

⭐️ This means that whatever obligations the seller had under the contract are not enforceable unless they are also contained in the deed.

Doctrine that helps determine who bears the risk of loss. Once the buyer signs K to purchase land at a later date, but before closing:

Buyer has equitable title; and

Seller has legal title

Holder of the equitable title (the buyer), regardless of whether buyer took possession yet

Buyer will not bear the risk of loss if loss is attributable to the intentional or negligent acts of the seller

Seller should give the buyer a credit equal to the insurance proceeds against the purchase price

Seller's interest is considered personal property & passes to seller's devisees

Interest treated as real property & buyer's devisees can sue for transfer of property to themselves

Instrument that passes legal title to the land from the seller to the buyer

In writing and signed by grantor;

Describe the parties and the land;

Delivered (i.e. seller must have present intent to transfer the interest)

Physical delivery: mailing or handing the deed to the person; or

Any other conduct or words that would imply present intent to transfer

ex. recording the deed, drafting the deed

No, rebuttable presumption that the grantor did not presently intend to transfer the property

Yes

No, delivery only occurs once the agent actually delivers the deed to the grantee.

Occurs when grantor instructs agent to deliver deed to grantee upon grantor's death.

⭐️ Only valid if grantor places deed beyond his/her control, i.e. retains zero control upon transfer to attorney. If grantor retains any power over the deed (e.g. asking it to be returned), then no valid death escrow has been created and no valid deed delivery.

If deed is given to third party and third party subsequently delivers deed to grantee, delivery date will be when deed was first given to the third party

There are multiple conditions on delivery by third party; or

Grantor expressly retains the right to reclaim the deed from the third party

No

Yes, if grantee rejects the deed, no transfer has occured

No, merely giving it back to the grantor does not change ownership - a new deed must be validly executed for ownership to revert back to the grantor

General warranty;

Special warranty; and

Quitclaim

Buyer takes the property "as-is," with no warranties, covenants, or promises

No, buyer takes the interest "as-is," without any warranties or assurances

Contains 6 present and future covenants of title that cover the property's entire history

Present:

Seisin;

Right to convey; and

Against encumbrances

Future:

Quiet enjoyment;

Warranty; and

Further assurances

Contains the same covenants of title as a general warranty deed, but only for the period of the seller's ownership of the land. Does not contain any warranties for what happened before the grantor took ownership

At the time of delivery

After delivery of the deed

Grantor owns the property described in the deed

Grantor has the right to convey title

There are no encumbrances on the property (liens, easements, etc.)

Third party will not assert a claim for a title

Grantor will defend against a third party's claim for title

Grantor will do anything reasonably necessary to perfect the grantee's title

Buyer who:

Purchases property for value;

Without notice of any prior claims

Actual;

Record (also called constructive notice); and

Inquiry

Actual, personal knowledge of a competing claim

Implied to all persons when a conveyance is properly recorded (i.e. if the conveyance was properly recorded, the buyer has record notice)

Reasonable inspection would have revealed the prior claim

⚠️ The buyer doesn't need to actually inspect to have inquiry notice. As long as the buyer would have discovered the claim if they had reasonably investigated, they will have inquiry notice

Notice*

Race-notice*

Race

* Most common

Subsequent bona fide purchaser if earlier purchase was not recorded and and purchaser did not know of earlier purchase

Pure notice jurisdiction

First grantee to record (regardless of whether they are a BFP)

Race jurisdiction

First BFP to properly record

Race-notice

Yes because they have paid value

No, because they did not pay value.

If they received the deed from a BFP, however, the Shelter Rule will apply and they will be protected.

⚠️ This is true even if the grantee records the deed. Since they did not pay value, they are not protected against prior claims (unless Shelter Rule applies)

Deed recorded outside of the chain of title; does not give notice to subsequent purchasers

If a landowner transfers title without actually owning it, and then subsequently does acquire title, she will be estopped (barred) from denying the validity of the first conveyance

If a buyer receives property from a BFP, they will also be protected as a BFP.

⭐️Enables devisees, heirs, or anyone else who isn't a BFP to gain the same protection as BFP has

When the testator gives real property to a beneficiary, but no longer owns the property at their death, the devise is adeemed. The named beneficiary takes nothing.

Ex. Max conveys his home to Ian in his will, but then sells the home to Carly. Max then dies. Ian gets nothing because the devise is adeemed.

More info: Ademption

No, only with a specific devise

The devisee is entitled to the proceeds from the sale of land