Transfer of Property
October 12, 2020
A typical sale of real estate is considered to be a transfer of property by voluntary alienation. Voluntary meaning your own free will and alienation meaning transfer. So, it's simply a fancy way of saying you sold your house. How that gets accomplished is that the grantor, or seller, will give a deed to the grantee or buyer. Thus, transferring the title over to the buyer. There are several types of deeds that can be used in the transfer of the real estate. The first one is called a general warranty deed, which is by far the most commonly used deed. Several promises are made to the buyer, which is why this deed is the best protection for the buyer. Promises the seller makes would include the covenant of seisin, which means that the seller owns the property. Another promise made by the seller is a promise of quiet enjoyment, meaning that the buyer does not have to worry about any third-party claims against ownership of the property in the future.
The second type of deed that can be used is called a special warranty deed. This type of deed puts a time-frame on the seller’s promises. The seller promises everything's been all right since the seller has owned the property. However, there would be no promises before that. Where this is used sometimes is with relocation companies who own property for a short time and then resell the property. They might use a special warranty deed to transfer a title over to the buyer. A third type is called a bargain and sale deed. The only promise the seller makes here is that the seller owns the property, or, the covenant of seisin. A fourth type is called a quitclaim deed. This is where the seller quits claiming rights in the property but makes no promises whatsoever. So, this is the least protection for the buyer because no promises are made, not even the promise of ownership. Quick claim deeds are typically used to quiet a cloud on the title. A cloud on the title means something's not quite right, such as an ownership dispute, or maybe a misspelled name. Quitclaim deeds can be used to resolve those problems.
With a Will
Real estate can also be transferred through a will. If a person dies with a valid will, we call that testate. Testate is when a person dies with a valid will. Conversely, if a person dies without a valid will, we call that intestate. If a person does die with a valid will, however, the person named in the will to carry out that will is referred to as the executor.
Real estate can also be transferred by what is called an involuntary alienation, which will be a transfer without your consent. One example might be when a person dies without a valid will or intestate. If that's the case, then the courts will have to step in and figure out who is going to be receiving that person's property. Their property then passes according to what we call descent. Descent meaning who will it descend to, who were the descendants, hence the word descent, which is a transfer by involuntary alienation. Another way to transfer property would be by adverse possession, which is basically legalized stealing. That's a situation where you use somebody else's property for 10 or 15 years continuously, openly, and without permission, and then actually obtain ownership to the property. This is similar to an easement by prescription, with the difference being here, that you actually gain ownership of the entire property, not merely an easement.
Another type of deed that would be considered involuntary would be at a foreclosure sale, like where you receive a tax deed or a sheriff's deed to a property being auctioned off. Transfer by water or wind can also happen with what we call erosion. Erosion is a gradual wearing away of soil, whereas the word accretion is a gradual buildup of soil. If we have a slow-changing event where the soil erodes away and builds up somewhere else, people actually gain or lose land. Let's contrast that with an avulsion, which is a sudden change or sudden transfer, such as after a flood many times, the stream or river might change course. If the boundary-line flowed along that stream or river, even though it has changed course, the boundary line remains where it was prior. In other words, no one loses or gains land. So, with an avulsion, the title does not transfer because it was a sudden change. Finally, if we have a cloudy title, which means something's not quite right, such as an ownership dispute, or a misspelled name, that can be resolved through a quitclaim deed, which is used to correct or clear up a cloudy title. If a quitclaim deed would not work, then the last choice is to go to court and have a judge determine who rightly owns a property. In an ownership dispute, it’s referred to as a quiet title suit.
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