Warranties of Title A sellers warranties concerning the state of the title conveyed are expressly contained in the deed.

No warranties are implied. (a) Types of Deeds: 1. General Warranty Deed Deed guaranties the present and future covenants concerning title (see below). Each covenant is a promise that title is absolutely free of the warranted defect regardless of whether the defect arose before or during the time the grantor had title. 2. Special Warranty Deed Warrants that there are no defects in title created by the grantor. This deed type contains the same 6 or fewer covenants of the general warranty deed, the only difference is that the grantor warrants against defects of title that arose during the grantors time of holding title. Defects arising before the grantors ownership are not covered. 3. Quitclaim Deed Contains no warranties, this deed operates to convey to the grantee whatever interests in the property that the grantor may own. The usual function is to remove apparent and uncontested defects in title without resort to litigation. Present Covenants Present covenant is broke, if ever, at the time the deed is delivered (the date of the closing). SOL begins to toll on the date of the delivery of the deed. The following represent covenants: a. Covenant of Seisin - Grantor warrants that he owns the estate that he purports to convey. Breached if the grantor does not in fact own what he purports to convey regardless of whether he is aware of the defect or not. b. Covenant Of Right To Convey - The Grantor warrants that he has the right to convey the property. Breached if the grantor lacks to power and authority to convey the interest whether or not he is aware of the limits on his authority to convey.

c. Covenant Against Encumbrances - The grantor warrants that there are no encumbrances on the property. Breached if the title is encumbered at the time of delivery of the deed, whether or not the owner is aware of the encumbrance.

Future Covenants Promises the Grantor will do some act in the future, such as defending against claims of 3rd parties or compensating the grantee for loss by virtue of failure of title. A future covenant is not breached until the grantee or his successor is evicted from the property, buys up the paramount claim, or is otherwise damaged. SOL begins to toll at the time of eviction or when the covenant is broken in the future. The following are future covenants. a. Covenant Of General Warranty - The grantor warrants that he will defend against lawful; claims and will compensate the grantee for any loss that the grantee may sustain by assertion of superior title. b. Covenant Of Quiet Enjoyment - The grantor warrants that the grantee will not be disturbed in possession and enjoyments of the property by assertion of superior title. This covenant is usually omitted from general warranty deed because it mirrors the covenant of general warranty. c Covenant Of Future Assurances - The grantor promises that he will execute any other documents required to perfect the title conveyed. Usually dropped from general warranty deeds because of its open-ended obligation imposed on the seller, or because it adds little to the first 4covenants, or because the doctrine of after-acquired title has made this covenant redundant. Notes and questions: The Deed Consideration is necessary to prove that you are the bonafied purchaser for value without notice.( BFP) You typically have to include a description of the property as well. Forged Deed Is void, the orignal grantor whos signature was forged will still be the rightful owner if the land is conveyed. Fraud A BFP will be the owner and the rightful owner cannot take it back.

p. 647

Title Assurance.
How current owners can obtain assurance that they actually have good title to the land they purchased. Clear rules promote efficiency and alienability. We are also hoping to avoid self-help and litigation. This is why we have recording acts. A deed does not have to be recorded to be valid. A deed becomes valid when it is delivered. Common law rule is first in time first in right. This is the race statute below.

(1) Recording Acts - the recording system developed to keep record of deeds and mortgage demonstrating title to real property. The purpose to provide certainty in the real estate transaction our market system would not work if the buyer didnt believe that when he bought a property, he actually owned it. Recording acts apply if:(a) The grantee is protected in that jurisdiction(b) The document can be recorded. (2) Types of Recording Acts : (a) Race Statute the concept of underlying the earliest type of recording acts a race statute was literally a race to the county courthouse to be the first one to record the conveyance. Notice of a prior transfer of an interest in property is irrelevant. (2 states still have this North Carolina and Louisiana). 1 Recordation cuts off the possibility that either a prior unrecorded purchaser or a later purchaser could prevail. Subsequent purchaser does not have to be a BFP. We fall back on the common law if the recording act doesn't tell us who wins. Title is valid on delivery, a title cannot revert is no one records it. (b) Notice Statute - Subsequent bona fide purchaser without notice of a prior unrecorded transfer prevails over the prior purchaser who fails to record(1/2 of American states recognize this statute):

1. BFP: one who gives valuable consideration to purchase the property and is without notice of prior unrecorded conveyance2 True: even if the subsequent BFP has not recorded. Notice statues only protect BFPs. Recording is important only to the extent that it imparts constructive notice.

On the day of the purchase, if the buyer had constructive or actual notice then he would not win. If O conveys the land to B as a gift then it does not make him a BFP so it would give A claim to the title because he is a BFP.

(c) Race-Notice Statute - Protects subsequent BFPs who 1. lack notice of prior conveyance 2. record first 3. Are a BFP. 1 Encourages Recording 2. Eliminates Disputes over which of the conveyances was first delivered. .3 Recordation cuts off the possibility that either a prior unrecorded purchaser or a later purchaser could prevail. (3) Consequences of NOT Recording: There are 2 important consequences to failure to record:(a) Common law rule applies if nobody has recorded the common law principle of first-in-time, first-in-right apply, except in a notice jurisdiction when the subsequent BFP lacks notice.(b) Grantor can convey good title to a later purchaser: Without recordation, the grantor is left with the power to convey good title to a later purchaser. The Grantor may be liable to losing first purchaser for the proceeds received from the second purchaser. (4) When is an instrument recorded? To be recorded, an instrument must be eligible for recording and be entered into the records in a manner that complies with the jurisdictions requirements. Common instances when instrument of the record that is wholly or partially unrecorded:(a) Instrument not indexed. The recorders failure to index and instrument or to index it so improperly that I cannot be found by a diligent searcher using the standard search methods.(b) Omnibus or Mother Hubbard clauses: A variation on the improperly indexed instrument is an instrument that accurately describes 1 parcel and also includes all other land owned by the grantor in the county. These clauses sweep the cupboard bare. The recorder can only record this instrument by reference, because it is an unreasonable burden on the recorder to search the grantor. They are void against the later purchasers of

the grantors property because a diligent searcher of the index will never locate any reference to the omnibus clause. Luthi v. Evans Owens owned interests in 8 oil and gas leases. She assigned to International Tours her interest in those leases under an assignment that specifically described each of the seven different parcels and included an omnibus clause that assigned to Tours Owens interest in all oil and gas leases owned by Owens, where or not such leases are specifically identified by the assignment. The lease was not specifically described. 4 years after Tours recorded the assignment Owens assigned her interest in the lease to Burris who obtained an abstract of title, which did not reveal the existence of the omnibus clause in the Owens to Tours assignment. The court held that the omnibus clause in the assignment did not give constructive notice to the later purchaser, Burris. Does the mother hubbard rule enough to give contructive notice? No it did not give constructive notice. If the deed is required in the buyers direct chain of notice then you have constructive notice. If you have actual notice then you are not a BFP and you do not have protection under the recording statute. Tours

Misspelled Names - Jurisdictions are divided over whether a misspelled name in a recorded instrument gives constructive notice. all jurisdictions agree that if the misspelling is so significant that it does not even sound like the correct name, there is no constructive notice. the problem that divides jurisdictions is whether the misspelling that sounds like the correct name supplies constructive notice.

Doctrine of idem sonans Holds that a misspelling that sounds substantially identical to the correct name gives constructive notices. This doctrine is NOT the prevailing rule with respect to the issue of constructive notice from the real estate records. p. 661

Orr v. Byers Orr obtained a judgment against Elliott, but Orrs lawyers prepared the judgment by spelling Elliotts name as Elliot. And abstract of judgment, listing the judgment debtor as Elliot or Eliot was recorded in CA, and indexed under those names only. Elliott later conveyed property subject to the judgment lien to Byers and Orr sought to foreclose his lien against the parcel acquired by Byers from Elliott. The Court held that idem sonans did not apply in CA., and that the recorded instrument did not give constructive notice of Orrs lien. Byer prevailed. If Byer had actual notice of Orrs lien he would have lost.

The majority of courts will argue that you do have to look up similarly spelled names. Title Assurance. How current owners can obtain assurance that they actually have good title to the land they purchased.(1) Recording Acts the recording system developed to keep record of deeds and mortgage demonstrating title to real property. The purpose to provide certainty in the real estate transactionour market system would not work if the buyer didnt believe that when he bought a property, he actually owned it. Recording acts apply if:(a) The grantee is protected in that jurisdiction (b) The document can be recorded.(2) Types of Recording Acts (a) Race Statute the concept of underlying the earliest type of recording acts a race statute was literally a race to the county courthouse to be the first one to record the conveyance. Notice of a prior transfer of an interest in property is irrelevant. (2 states still have this North Carolina and Louisiana). 1 Recordation cuts off the (b) Notice Statute - Subsequent bona fide purchaser without notice of a prior unrecorded transfer prevails over the prior purchaser who fails to record (1/2 of American states recognize this statute): 1. BFP: one who gives valuable consideration to purchase the property and is without notice of prior unrecorded conveyance

2. True: even if the subsequent BFP has not recorded.(c) Race-Notice Statute Protects subsequent BFPs who lack notice of prior conveyance and record before the prior purchaser. 1 Encourages Recording 2 Eliminates Disputes over which of the 2 conveyances was first delivered. 3 Recordation cuts off the possibility that either a prior unrecorded purchaser or a later purchaser could prevail.(3) Consequences of NOT Recording: There are 2 important consequences to failure to record: (a) Common law rule applies If nobody has recorded the common law principle of first-in-time, first-in-right apply, except in a notice jurisdiction when the subsequent BFP lacks notice. (b) Grantor can convey good title to a later purchaser: Without recordation, the grantor is left with the power to convey good title to a later purchaser. The Grantor may be liable to losing first purchaser for the proceeds received from the second purchaser. (4) When is an instrument recorded? To be recorded, an instrument must be eligible for recording and be entered into the records in a manner that complies with the jurisdictions requirements. Common instances when instrument of the record that is wholly or partially unrecorded:(a) Instrument not indexed. The recorders failure to index and instrument or to index it so improperly that I cannot be found by a diligent searcher using the standard search methods.(b) Omnibus or Mother Hubbard clauses: A variation on the improperly indexed instrument is an instrument that accurately describes 1 parcel and also includes all other land owned by the grantor in the county. These clauses sweep the cupboard bare. The recorder can only record this instrument by reference, because it is an unreasonable burden on the recorder to search the records to identify all the other property owned by the grantor. They are void against the later purchasers of the grantors property because a diligent searcher of the index will never locate any reference to the omnibus clause.

Hypo: O => as a gift Anr O>Br(no notice)