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RE Ch 5 Defs
Real Estate Definitions for Chapter 5
| Term | Definition |
|---|---|
| Legal Title | Possession of all ownership interests |
| Equitable Title | The interest or right to obtain legal title to a property in accordance with a sale or mortgage contract between the legal owner and a buyer or creditor |
| Actual notice | learning of something through direct experience or communication |
| Constructive notice | aka legal notice; knowledge of a fact that a person could have or should have obtained |
| Alienation | aka Transfer of title to real estate; occurs voluntarily and involuntarily |
| Conveyance | when the transfer of title uses a written instrument |
| voluntary alienation | an unforced transfer of title by sale or gift from an owner to another party |
| public grant | A voluntary alienation conveyance with a government entity as the transferor and a private party recipient |
| private grant | A voluntary alienation conveyance with a private party as the transferor |
| Deed of conveyance | aka deed; a legal instrument used by an owner to transfer title to real estate voluntarily to another party |
| transfer by will | a private grant that occurs when the owner dies |
| involuntary alienation | transfer of title to real property without the owner's consent; occurs primarily by the processes of descent and distribution, escheat, foreclosure, eminent domain, adverse possession, and estoppel |
| Grantor | Real estate owner |
| Grantee | Real estate recipient |
| Conveyance clause | describe the details of the transfer |
| Granting clause | aka premises clause; the only required clause; contains the conveyance intentions; names the parties; describes the property; indicates nominal consideration |
| Habendum clause | describes the type of estate being conveyed (fee simple, life, etc.) |
| Reddendum clause | aka serving clause; recites restrictions and limitations to the estate being conveyed, e.g., deed restrictions, liens, easements, encroachments, etc. |
| Tenendum clause | identifies property being conveyed, in addition to land |
| Covenant clause | present the grantor's assurances to the grantee |
| Warrant of seizen | assures that the grantor owns the estate to be conveyed, and has the right to do so |
| Warrant of quiet enjoyment | assures that the grantee will not be disturbed by third party title disputes |
| Warrant of further assurance | assures that the grantor will assist in clearing any title problems discovered later |
| Warranty forever | aka warranty of title; assures that the grantee will receive good title, and that grantor will assist in defending any claims to the contrary |
| Warrant of encumbrances | assures that there are no encumbrances on the property except those expressly named |
| Warranty against grantor's acts | states the assurance of a trustee, acting as grantor on behalf of the owner, that nothing has been done to impair title during the fiduciary period |
| statutory deeds | most common deeds; the covenants are defined in law and do not need to be fully stated in the deed |
| Bargain And Sale Deed | the grantor covenants that the title is valid but may or may not warrant against encumbrances, or promise to defend against claims by other parties |
| General Warranty Deed | aka warranty deed; most commonly used. Contains the fullest possible assurances of good title and protection for the grantee. Technically a bargain and sale deed where the grantor promises to defend against any and all claims to the title |
| Special Warranty Deed | the grantor warrants only against title defects or encumbrances not noted on the deed, which may have occurred during the grantor's period of ownership or trusteeship |
| Quitclaim Deed | transfers real and potential interests in a property, whether an interest is known to exist or not |
| cloud | errors in deeds or other recorded documents that might encumber the title |
| quiet title suit | requires the lienor to prove the validity of an interest |
| special-purpose deed | tailored to the requirements of specific parties, properties, and purposes |
| Personal representative's deed | aka executor's deed; used by an executor to convey a decedent's estate |
| Guardian's deed | used by a court-appointed guardian to transfer property of minors, or mentally incompetent persons |
| Sheriff's deed | used to convey foreclosed property sold at public auction; usually executed pursuant to court order |
| Deed of trust | used to convey property to a third party trustee as collateral for a loan |
| reconveyance deed | conveys the property back to the borrower upon satisfaction of the loan terms |
| Deed in trust | used to convey property to the trustee of a land trust |
| Master deed | used to convey land to a condominium developer; accompanied by the condominium declaration when recorded |
| Partition deed | used to convey co-owned property in compliance with a court order resulting from a partition suit |
| Patent deed | used to transfer government property to private partie |
| Tax deed | used to convey property sold at a tax sale |
| last will and testament | aka will; a legal instrument for the voluntary transfer of real and personal property after the owner's death |
| testator | aka devisor; the maker of the will |
| heir | aka devisee; beneficiary of a will |
| devise | property transferred by the will |
| amendatory instrument | can be changed at any time during the maker's lifetime |
| executor | aka personal representative; named by the testator of the will to oversee the settlement of the estate |
| guardian | a person identified by the testator to handle the legal affairs on behalf of a minor named in the will |
| Witnessed will | in writing and witnessed by two people |
| Holographic will | in the testator's handwriting, dated and signed; some states also regard typed wills signed by the testator to be holographic |
| Approved will | on pre-printed forms meeting the requirements of state law |
| Nuncupative will | made orally, and written down by a witness; generally not valid for the transfer of real property |
| Probate | court proceedings that settles a decentest's estate, whether the person has died testate or intestate |
| testate | having left a valid will |
| intestate | having failed to leave a valid will |
| administrator | a court appointed executor |
| Testate Proceeding | decedent died with a valid will; liens are satisfied; legal life estate claims are heard and satisfied; once all claims have been satisfied, the balance of the estate's assets pass to the rightful heirs free and clear of all liens and debts. |
| Intestate Proceeding With Heirs | If the decedent died without a valid will, the estate passes to lawful heirs according to the state's laws of descent and distribution |
| descent and distribution | aka succession; laws that stipulate who inherits and what they receive, without regard to the desires of the heirs, or the intentions of the deceased |
| Intestate Proceeding With No Heirs | the estate reverts to the state or county after all claims and debts have been validated and settled |
| Escheats | reverts to the state or county |
| Laws of Descent | State statues that identify heirs and the respective shares of an estate with a title holder dies without a valid will; in the absence of heirs, title transfers to the state or county by escheat |
| Abandonment | Property that has been abandoned for a statutory period may also escheat to the state or county. |
| involuntary title transfer | aka involuntary alienation; regulated by state laws; occurs by the laws of descent, abandonment, foreclosure, eminent domain, adverse possession, or estoppel |
| Foreclosure | A property owner who fails to fulfill loan obligations or pay taxes |
| Eminent Domain | Involuntary transfer of private property to the public sphere, even thought he owner receives compensation. |
| Adverse possessor | someone who enters, occupies, and uses another's property without the knowledge or consent of the owner, or with the knowledge of the owner who fails to take any action over a statutory period of time (15 years in KY) |
| Claim of right | |
| Color of title | when a grantee has obtained defective title, or received title by defective means, but occupies the property as if he or she were the legal owner |
| notorious possession | possession without concealment |
| hostile possession | a claim to ownership and possession regardless of the owner's claims or consent |
| Estoppel | prevents a person from claiming a right or interest that is inconsistent with the person's previous statements or acts; can prevent an owner from re-claiming a property that was transferred under false pretenses. |
| title records | public records that contain a history of every parcel of real estate in the county, including names of previous owners, liens, easements, and other encumbrances that have been recorded |
| marketable title | a title free of undesirable encumbrances |
| Chain of title | the succession of property owners of record dating back to the original grant of title from the state to a private party |
| Clouded title | a broken chain of title; a missing link in the chronology of owners; a defective conveyance |
| suit to quiet title | clears the title record of any unrecorded claims; removes clouds from titles |
| Abstract of title | a written, chronological summary of the property's title records, and other public records affecting rights and interests in the property |
| Title search | search of public records to uncover defects in title or unrecorded breaks in the chain of title |
| title plant | a duplicate set of records of a property copied from public records and maintained by a private company, such as a title company |
| Torrens System | a system of recording where title passes only when the conveyance has been duly registered on the title certificate itself |
| binder | issued by the title company; commitment to insure; recapitulates the property description, interest to be insured, names of insured parties, and exceptions to coverage |
| Attorney's Opinion of Abstract | states that the attorney has examined a title abstract, and gives the attorney's opinion of the condition and marketability of the title |
| Title Certificate | a summary of the condition of title as of the date of the certificate, based on a search of public records by an abstractor or title analyst |
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medct