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Title (property)

From Wikipedia, the free encyclopedia

In property law, a title is a bundle of rights in a piece of property in which a party may own either a legal interest or equitable interest. The rights in the bundle may be separated and held by different parties. It may also refer to a formal document, such as a deed, that serves as evidence of ownership. Conveyance of the document may be required in order to transfer ownership in the property to another person. Title is distinct from possession, a right that often accompanies ownership but is not necessarily sufficient to prove it. In many cases, possession and title may each be transferred independently of the other. For real property, land registration and recording provide public notice of ownership information.

In United States law, typically evidence of title is established through title reports written up by title insurance companies, which show the history of title (property abstract and chain of title) as determined by the recorded public record deeds;[1] the title report will also show applicable encumbrances such as easements, liens, or covenants.[2] In exchange for insurance premiums, the title insurance company conducts a title search through public records and provides assurance of good title, reimbursing the insured if a dispute over the title arises.[3] In the case of vehicle ownership, a simple vehicle title document may be issued by a governmental agency.

The main rights in the title bundle are usually:

The rights in real property may be separated further, examples including:

Possession is the actual holding of a thing, whether or not one has any right to do so. The right of possession is the legitimacy of possession (with or without actual possession), the evidence for which is such that the law will uphold it unless a better claim is proven. The right of property is that right which, if all relevant facts were known (and allowed), would defeat all other claims. Each of these may be in a different person.

For example, suppose A steals from B, what B had previously bought in good faith from C, which C had earlier stolen from D, which had been an heirloom of D's family for generations, but had originally been stolen centuries earlier (though this fact is now forgotten by all) from E. Here A has the possession, B has an apparent right of possession (as evidenced by the purchase), D has the absolute right of possession (being the best claim that can be proven), and the heirs of E, if they knew it, have the right of property, which they cannot prove. Good title consists in uniting these three (possession, right of possession, and right of property) in the same person(s).

The extinguishing of ancient, forgotten, or unasserted claims, such as E's in the example above, was the original purpose of statutes of limitations. Otherwise, title to property would always be uncertain.

YouTube Encyclopedic

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  • ✪ Ep. 82: How To Transfer Property Title After Death | Wills And Trusts
  • ✪ Land Patent Titles -- The Key to True Property Ownership
  • ✪ Clearing Title
  • ✪ 5 Common Property Title Problems
  • ✪ What do I do when there's a lien against my property?

Transcription

Hello everybody, thank you for coming to this week's video blog here at California Realty Training. My name, Robert Rico. Has been, will always be Robert Rico. And here to try to get you to be more comfortable and more confident in the real estate field. And to see if we can bring in some new topics. That's important. We don't want to do the same stuff over and over and over again. We want to give those that are entering the real estate world the confidence that you're going to need. The tools you're going to need so you can execute beyond what you ever thought was possible. Got it? Today's topic, ready, here we go. Today's topic is a good one. Today's topic is, death in real estate. Now hold on a minute, it's not what you think it is. It's not death in the property. It's what do we do with ownership of a property when somebody dies. Meaning I own this house, I die, what happens to my property. Who gets possession of the property. Who gets to own the property now that I am gone. Now that's a pretty interesting topic. It can be complicating. We'll try to make it, yes. We're going to try to make it as simple as possible. Got it? Okay, here we go. Let's pump the brakes here and back up a little bit. Got it? Hugely important to make sure you've got a deed. Now a deed is ownership papers to a house. Let's pretend it's a pink slip to a car. All right? The deed is the ownership papers to a house. Got it? Now when somebody buys a house, all right, they're giving what's called a vesting form. And they must fill this out stating, claiming, hey, I want to take the title to this house. I want this deed to have my name on it. Or my name and my wife. Or my name and my brother. No matter what it is, this vesting form, you are going to place the name of the people are going to go on the deed. You with me? Called the vesting form. Now that's happening during the escrow process. Got it? Good. Done. Then we close the deal. This house is now recorded with the county recorder's office. Based on what you gave them here. Remember? The vesting form. So now the deed is created, and it's got your name on it. Now this is the crucial part. How are you taking title to this deed? How is this deed set up? Did you take it, ready here goes. Did you take it sole ownership as one individuaL? Or did you take it as joint ownership? Now that's the part that's huge. That's the part that's important and as to what you put on this deed. This deed, especially how you're taking ownership, will determine what happens to this house when the person, when the owner dies. Got it? Good, now let's go here. Let's just go a little deeper. Let's talk about joint ownership. There's a particular stipulation in joint ownership that's called, ready? Wait for it. That's called right of survivorship. Stick with me, we're going with joint ownership now. Joint of course meaning two people or more involve din this ownership. Right of survivorship. Let's throw that in the mix. Right of survivorship. Now look at that word there, those words. Right of survivorship. You see here in the state of California it's very simple. Here in the state of California, just so you know, whenever a husband or wife or husband and husband or wife and wife, whenever people are married, each one gets 50 50 claim of the property. Got that? 50 50 claim of the property, not a big deal. But what happens when somebody dies? We have to be prepared. They have to be prepared, right? So this document, the deed, if it states on there joint ownership with right of survivorship, just like the words say. If one of the owners dies, immediately their 50 percent goes to the one that surviving. The surviving one gets to claim the entire 100 percent now. You with me? They're married? 50 50. Whichever one dies, if this one passes away, their ownership portion transfers over to the surviving spouse. Right of survivorship, you with me? That's easy, that's simple. By having that joint ownership right of survivorship, what does that do? It avoids probate. Now let's talk about probate for a minute. What the hell is probate? Probate, are you kidding me? The word probate gives me a headache. Probate means the courts have to get involved. And that's the last thing we want to do when it comes to ownership. And death. Once somebody dies, the last anybody wants to do is take this property and the ownership rights to this property to court. Now why doesn't anybody wants this to go to court? Wouldn't you want, for example, if somebody dies who owns this house, wouldn't you want it to be executed rather quickly? You would want to be able to transfer this house to the new owners immediately. Whether it's heirs or children or family members. Whoever that the owner who passed away wanted to, their will, their intent. They want it to go to this person. You want it to happen immediately. But if you don't have the proper documentation intact and in place, it goes to probate. It'll be up to the court to decide well who has the right to this property now. Are you kidding me? You know what happens when that occurs? You know what happens? That can take time. That can take so much ... In some case it can take up to a year for the courts to decide who has the right to it. It can take up to a year for just for the court to approve this will. It can take up to a year for a court to have a representative tackle and be responsible for this situation. It can be a major headache, probate. If I were you, the best thing to do is to avoid probate. How can we avoid probate? Very simple. Have the right documentation. Have the right contracts in place. What does that mean? It means have either a will or a trust in place. Stick with me. Have either a will or a trust in place. But they are different. You have somebody that owns this house. They're still alive, and they're still healthy. Best thing to do would be for them to create a living trust. Think about this, it's a living trust. But this is crucial in how it's done, how it's executed. Living trust, got it? Documentation say okay, this is the deal. I'm the owner of this house. And this is what I want to happen when I'm gone. When I die. And what they do is on this living trust, first things first. First thing they do is they going to place themselves as the trustee. 'Cause they're still alive. So they're going to be the trustee. Still handling this trust. In this trust, they're going to have somebody that's going to be in charge of the trust when they die. That's going to be called the successor to the trustee. You got it? You got the trustee who's the one still alive. And the successor trustee. The one that's going to take over once this person dies. And what's going to happen then is this. Once this owner does pass away, and the successor trustee takes over. Then of course they're going to do what? They're going to execute every single stipulation that this trust has listed there. Makes sense, doesn't it? Now why is that, in my opinion, a lot simpler and a lot more beneficial than a will? Well here's the difference between a will and a trust. Is there a major difference? Well there is. You see a will will still have to go to probate. And we just discussed it. Probate can be complicating. Probate can be complicating. A trust isn't. A trust doesn't need probate. When you have somebody taking the property as joint tenants with remember the other term? Right of survivorship. No probate. That's understood. By law it's understood. That being said, the best thing to do to prepare yourself for death and the ownership of property. The aftermath would be that you have a trust in order. Or of course to take your property, if you have somebody with you. Joint ownership with right of survivorship. I know it gets complicating, but it's always best to be prepared. Again if you don't have these items in place, you're going to head straight to probate court. And there going to have people fighting for this property. You're going to have people arguing, have people saying well I own this, I own that, I want this, I want that. They left this to me, they left ... It's always best to have things what? Yeah, in order. Hope this helps you. Most important thing, let's review this real quick. Two ways to own property: sole ownership or joint ownership with somebody else. Community property. Got it? Good. Next thing on that is you can have a living trust or you can have a will. They're both great, but of course the will, you may still have to go to probate. A living trust you don't because all the terms have been executed there. And they're saying this is what I want out of my property. Divide my property up this way. With the living trust. Great so we learned something today. It's confusing, how is this going to affect you as a real estate agent? It probably won't but it's great to know this terminology. It really is. That way you know, if you have a client who wants to sell their house. The first thing to do is going to go to the title report and check the deed and see how they own the property. Because mind you the only ones that can sell a property are those who are on the deed. You with me? This is why it's important for us realtors to know who si on the deed. Because whoever's on the deed, don't forget. The ones that put their names on there via the vesting form, remember that? They're the ones who have to sign the listing agreement. This is what we want to know as realtors. Got it? Good. If you have any questions or concerns regarding this stuff, do me a favor, do you a favor, leave us a question down below. And if there's any topics we haven't touched yet, and we've touched a lot, but if there's some we have not touched and you want to hear about it, leave it in the comment section down below. Hey, listen, we love you, we want you to make it happen. We want you to be successful in this real estate career. Learn, learn, learn. Got it? Good. Have a great day, we'll see you next week.

Contents

Equitable versus legal title

At common law equitable title is the right to obtain full ownership of property, where another maintains legal title to the property.[4]

When a contract for the sale of land is executed, equitable [interest/title] passes to the buyer. When the conditions on the sale contract have been met, legal title passes to the buyer in what is known as closing. Some companies, such as Econohomes/Visio Financial, use this term to describe a "trailing deed". This is not the case. Properties that are sold on the basis of equitable title have a legal chain of title intact, and a recorded transfer with the local municipality.

Legal title is actual ownership of the property as when the property has been bought, the seller paid in full and a deed or title is properly recorded. Equitable title separates from legal title upon the death of the legal title holder (owner). For example: When a person having legal title to property dies, heirs at law or beneficiaries per the last will, automatically receive equitable interest in the property. When an executor or administrator qualifies, that person acquires legal title, subject to divestment when the estate has been administered so as to allow for the lawful passing of the legal title to those having an equitable interest. The resulting merger of the legal and equitable gives rise to "perfect title," often referred to as marketable title.

Legal and equitable title also arises in trust. In a trust, one person may own the legal title, such as the trustees. Another may own the equitable title such as the beneficiary.[5]

Applications

In countries with a sophisticated private property system, documents of title are commonly used for real estate, motor vehicles, and some types of intangible property. When such documents are used, they are often part of a registration system whereby ownership of such property can be verified. In some cases, a title can also serve as a permanent legal record of condemnation of property, such as in the case of an automobile junk or salvage title. In the case of real estate, the legal instrument used to transfer title is the deed. A famous rule is that a thief cannot convey good title, so title searches are routine (or highly recommended) for purchases of many types of expensive property (especially real estate). In several counties and municipalities in the US a standard title search (generally accompanied by title insurance) is required under the law as a part of ownership transfer.

Paramount title is the best title in Fee simple available for the true owner. The person who is owner of real property with paramount title has the higher (or better, or "superior") right in an action to Quiet title. The concept is inherently a relative one. Technically, paramount title is not always the best (or highest) title, since it is necessarily based on some other person's title.[6][7]

A quiet title action is a lawsuit to resolve with any cloud on title, such as competing claims or rights to real property, for example, missing heirs, tenants, reverters, remainders and lien holders all competing to get ownership to the house or land.[8][9] Technical problems with title include misspellings, outstanding debt, unrecorded transactions, and any irregularity that might indicate a break in the chain of ownership. Each of the United States have different procedures for a quiet title action.[10]

However, most personal property items do not have a formal document of title. For such items, possession is the simplest indication of title, unless the circumstances give rise to suspicion about the possessor's ownership of the item. Proof of legal acquisition, such as a bill of sale or purchase receipt, is contributory. Transfer of possession to a good faith purchaser will normally convey title if no document is required.

Political issues

California prevented aliens (mainly Asians) from holding title to land until the law was declared unconstitutional in 1952.[11] Currently there are no restrictions on foreign ownership of land in the United States, although sales of real estate by non-resident aliens are subject to certain special taxation rules.

Aboriginal title

Prior to the establishment of the United States title to Indian lands in lands controlled by Britain in North America was governed by The Royal Proclamation of October 7, 1763. This proclamation by King George III reserved title in land to the Indians, subject to alienation only by the Crown. This continued to be the law of Canada following the American Revolution.[12]

In the United States Indian title is the subservient title held by Native Americans in the United States to the land they customarily claimed and occupied. It was first recognized in Johnson v. M'Intosh, 21 U.S. (8 Wheat) 543 (1823).

It very early became accepted doctrine in this Court that although fee title to lands occupied by Indians when the colonists arrived became vested in the sovereign – first the discovering European nation and later the original states and the United States – a right of occupancy in the Indian tribes was nevertheless recognized. That right, sometimes called Indian Title and good against all but the sovereign, could be terminated only by sovereign act. Once the United States was organized and the Constitution adopted, these tribal rights to Indian lands became the exclusive province of the federal law. Indian title, recognized to be only a right of occupancy, was extinguishable only by the United States. Oneida Indian Nation v. County of Oneida , 414 U.S. 661, 667 (1974).

The usual method of extinguishing Indian title was by treaty.[13]

See also

References

  1. ^ American Bar Association. (1995). The American Bar Association guide to home ownership: the complete and easy guide to all the law every home owner should know. ISBN 0812925351, 9780812925357. Ch.3 sample.
  2. ^ 3 Things You Should Know About Preliminary Title Reports. ZillowBlog.
  3. ^ "What is a Title Company?". Benchmark Title Company. Archived from the original on April 10, 2013.
  4. ^ In the United States, legal titles are those that were recognized by the law courts in England. Equitable titles were those recognized by the English chancery courts. Both concepts were adopted by the various states upon their creation except, possibly, those based upon European Civil Law, such as Louisiana. Most, if not all of the states have merged the law and equity courts into a single court system, though there may still be law and chancery divisions in some of the systems.
  5. ^ "Trusts and Estates – What is the difference between legal title and equitable title?". quizlaw.com. Retrieved 28 March 2010.
  6. ^ "Answers – The Most Trusted Place for Answering Life's Questions". Answers.com.
  7. ^ "Enotes: West's Law Encyclopedia". enotes.com. Archived from the original on 2006-11-21.
  8. ^ "Enotes: West's Law Encyclopedia". enotes.com. Archived from the original on 2006-11-21.
  9. ^ "Legal Dictionary – Law.com". Law.com Legal Dictionary.
  10. ^ For example, California --quiet title action
  11. ^ Sei Fujii v. State of California, 242 P.2d 718, 617 (California Supr. 1952) ("...we hold that the alien land law is invalid as in violation of the Fourteenth Amendment.").
  12. ^ "Virtual Law Office: Royal Proclamation of 1763". www.bloorstreet.com.
  13. ^ "Indian Lands" Douglas Roger Nash
This page was last edited on 25 September 2019, at 19:48
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