Music:
Madonna, I’m Breathless (1992)
Coming Attractions
Mon 4/16: Make-Up Class 8:00-8:55 am (here)
Wed 4/18: Beatles & Grateful Dead Critiques Due
Fri 4/20: Course Evaluations
Mon 4/23: Make-Up Class 8:00-8:55 am (here)
Wed 4/25: Closing Up
DQ113: Title Search with
Grantor-Grantee Indexes
Purchasing from Mr. Carroll. How do you
begin?
DQ113: Title Search with
Grantor-Grantee Indexes
Purchasing from Mr. Carroll.
1. Check grantee index under Carroll
going backward from present. You
find record of deed: Byers  Carroll
(1984). What now?
DQ113: Title Search with
Grantor-Grantee Indexes
Purchasing from Mr. Carroll.
1. Deed: Byers  Carroll (1984).
2. Check grantee index under Byers
going backward from 1984. You find
record of deed: Arias  Byers (1969).
What now?
DQ113: Title Search with
Grantor-Grantee Indexes
Purchasing from Mr. Carroll.
1. Deed: Byers  Carroll (1984).
2. Deed: Arias  Byers (1969).
3. Check grantee index under Byers
going backward from 1984. You find
record of deed: U.S. Govt  Arias
(1962). What now?
DQ113: Title Search with
Grantor-Grantee Indexes
From Grantee Index:
• Byers  Carroll
(1984).
• Arias  Byers
(1969).
• U.S. Govt  Arias
(1962).
Check grantor index to
see if Arias conveyed
any interests between
1962 and 1969. You
find nothing until Arias
 Byers deed in 1969.
What Next?
DQ113: Title Search with
Grantor-Grantee Indexes
From Grantee Index:
• Byers  Carroll
(1984).
• Arias  Byers
(1969).
• U.S. Govt  Arias
(1962).
• Arias  Byers (1969).
Check grantor index to
see if Byers conveyed
any interests between
1969 and 1984. You
find easement granted
to Electric Co. in 1971 &
nothing else until Byers
 Carroll deed in 1984.
What Next?
DQ113: Title Search with
Grantor-Grantee Indexes
From Grantee Index:
•
Byers  Carroll
(1984).
•
Arias  Byers
(1969).
•
U.S. Govt  Arias
(1962).
• Arias  Byers (1969).
• Byers  Elec. Co. (1971)
(Easement)
• Byers  Carroll (1984).
Check grantor index to see if
Carroll conveyed any
interests between 1984 and
the present PLUS check to
see if Electric Co. released or
transferred the easement.
Nothing Additional. What Next?
DQ113: Title Search with
Grantor-Grantee Indexes
From Grantee Index:
• Byers  Carroll
(1984).
• Arias  Byers
(1969).
• U.S. Govt  Arias
(1962).
From Grantor Index:
• Arias  Byers (1969).
• Byers  Elec. Co.
(1971) (Easement)
• Byers  Carroll (1984).
Check all documents
uncovered through
index for content and
references to
unrecorded interests.
Tract Indexes
• Index transactions by location not names
of parties
• Much easier to use for most types of
transactions
• Exist almost everywhere privately; and as
official public record in a few jurisdictions
• Many states have rules based on grantorgrantee indexes even if public or private
tract indexes exist
Shelter Rule (Notice Jurisd.)
OA
OB (BFP)
A records
• In a notice jurisdiction, B wins
over A as a subsequent BFP
even though A recorded first
• Note that for A’s recording to
serve as notice to B, it must have
taken place prior to the time B
purchases the land.
Shelter Rule (Notice Jurisd.)
OA
Who wins A v. C?
OB(BFP) • The OA deed is recorded before
C’s purchase so C is not a BFP.
A records
BC
Shelter Rule (Notice Jurisd.)
Who wins A v. C?
OA
• The OA deed is recorded before
OB(BFP)
C’s purchase so C is not a BFP.
A records
• BUT: Shelter rule: Subsequent
BC
purchaser from BFP stands in
shoes of BFP and defeats prior
interest
– even if not BFP
– unless original grantor
WHY?
Shelter Rule (Notice Jurisd.)
OA
• Protects title of a BFP from
recording or adverse publicity
OB(BFP)
that occurs subsequent to
A records
purchase. Otherwise, couldn’t
BC
sell, so victory over A worthless
Otten Sells Land to Both Alexander
and Bell; Flees to Cayman Islands
Buyers Confused, Angry:
Who Will Get the Land
and Who Will Have to
Chase After Otten?
Tattler Exclusive:
Seller’s Friends Say
Not Surprised.
Shelter Rule (Notice Jurisd.)
Otten  Alexander
Otten  Bell (BFP)
Massive Publicity on Slow News Day
Bell  Creech (Actual Notice; Not BFP)
Creech wins over Alexander to give value
to Bell’s interest
CHAIN OF TITLE PROBLEMS
Problems in way things are recorded or
indexed that frustrate basic search. If
significant enough:
– Can mean no record notice
– Can mean not “recorded” for purpose of
race-notice
CHAIN OF TITLE PROBLEMS
Problems in way things are recorded or
indexed that frustrate basic search.
Examples: (FYI; not tested)
• Documents recorded out of usual order
• Document refers to several lots w/o listing
individually (all land owned by X)
• Same person referred to by different name
on later document
– misspelling
– name change or multiples
1948 Grant to Elizabeth Taylor
Where do you look in the grantor index
going forward?
1948 Grant to Elizabeth Taylor
Where do you look in the grantor index?
1950
Elizabeth Taylor Hilton
1948 Grant to Elizabeth Taylor
Where do you look in the grantor index?
1952
Elizabeth Taylor Hilton Wilding
1948 Grant to Elizabeth Taylor
Where do you look in the grantor index?
1957
Elizabeth Taylor Hilton Wilding
Todd
1948 Grant to Elizabeth Taylor
Where do you look in the grantor index?
1959
Elizabeth Taylor Hilton Wilding
Todd Fisher
1948 Grant to Elizabeth Taylor
Where do you look in the grantor index?
1964
Elizabeth Taylor Hilton Wilding
Todd Fisher Burton
1948 Grant to Elizabeth Taylor
Where do you look in the grantor index?
1975
Elizabeth Taylor Hilton Wilding
Todd Fisher Burton Burton
1948 Grant to Elizabeth Taylor
Where do you look in the grantor index?
1976
Elizabeth Taylor Hilton Wilding
Todd Fisher Burton Burton
Warner
1948 Grant to Elizabeth Taylor
Where do you look in the grantor index?
1991
Elizabeth Taylor Hilton Wilding
Todd Fisher Burton Burton
Warner Fortensky
PROMISSORY SERVITUDES:
TRADITIONAL ELEMENTS
• Runyon v. Paley: Lot limited to residence only
& not more than 2 residences; restriction
terminates if area changes character
• Davidson Bros.: Can’t put supermarket or
grocery store on lot for 40 years
PROMISSORY SERVITUDES:
TRADITIONAL ELEMENTS (1)
with
FLEETWOOD MAC
DQ114: INTENT TO RUN
Generally: Fact Question
• Can be explicit language in the covenant
– Davidson Bros. “This restriction shall be a
covenant attached to and running with the
lands”
– Runyon (burden only): “running with said land
by whomsoever owned”
• Can be inferred from circumstances
DQ114: INTENT TO RUN
Runyon: Agreement was explicit about intent
regarding the burden running, but not the
benefit.
What evidence did the court rely on to
determine that the parties also intended
the benefit to run?
DQ114: INTENT TO RUN
Runyon: evidence that the parties intended the
benefit to run?
• Explicit intent to have burden run indefinitely
suggests right to enforce also must run
• Limit to residential use significantly affects value
of nearby lots; suggests tied to land
• Circumstances suggest concern with character
of neighborhood
– part of secluded parcel
– she continued to live next door there & receive benefit
DQ114: INTENT TO RUN
Runyon: evidence that the parties intended
the benefit to run?
• Court doesn’t mention, but note she died
the year after the transaction.
• Could argue that if she was old or very ill
when provision was drafted, not much
point in restricting just for herself .
DQ115: NOTICE
1. Actual Notice
2. Record Notice
3. Inquiry Notice
DQ115: NOTICE
1. Actual Notice: Fact Question
– Conceded in Davidson Bros.
2. Record Notice
3. Inquiry Notice
DQ115: NOTICE
1. Actual Notice: Fact Question
2. Record Notice: Constructive
Notice of Documents Properly
Recorded
– Agreement in Runyon was in
records, so what was disputed?
3. Inquiry Notice
DQ115: NOTICE: Runyon
Like Intent Issue: Ds claim that notice
must include explicit reference to
benefit running. Court says sufficient
notice from:
•
•
Notice that burden intended to run;
Notice from records that lot carved from
larger parcel part of which is retained by O
Looks like trying to protect laymen by not
insisting on technical requirements
DQ115: NOTICE
1. Actual Notice
2. Record Notice
3. Inquiry Notice: Actual or
constructive notice of facts that
suggest 3d party interest.
• Can be on face of property; duty to
inspect
• Can be in documents in chain of title
DQ115: NOTICE
1. Actual Notice
2. Record Notice
3. Inquiry Notice: Strict duty to inquire
•
•
Need to inquire directly of persons with
apparent claim; not grantor b/c incentive
to lie
If don’t inquire
–
–
held to knowledge of 3d party interest.
can’t argue that inquiry wd have been futile
DQ115: NOTICE
1. Actual Notice
2. Record Notice
3. Inquiry Notice: Examples
•
Actual possession always is notice
– can be residence or other regular use
– if someone you don’t know on land: ask
DQ115: NOTICE
1. Actual Notice
2. Record Notice
3. Inquiry Notice: Examples
•
•
Actual possession always is notice
Other signs of use or ownership
– paths: inquire of n-bors
– signs of occasional use
DQ116-17: PRIVITY
HORIZONTAL: Sufficient Relationship Betw.
Original Parties?
• Trad’l common law: needed consecutive estates
– landlord-tenant
– life estate & reversion
• American jurisdictions allow mutual interest in
same land (e.g. easement)
• Most states allow grantor-grantee
– both Runyon & Davidson fit here
• Trend toward abolishing
DQ117: PRIVITY
The comment to the Restatement (quoted on
P895) says the requirement of horizontal
privity “can easily be circumvented with a
conveyance to a strawperson….” What does
this mean?
E.g., Dorothy and Glinda are neighbors. They
agree to mutual restrictions on their lots (all
paving must be yellow brick) and want them
to be enforceable as real covenants. What do
they do?
DQ117: PRIVITY
Conveyance to a strawperson:
Dorothy  Scarecrow (fee simple)
Glinda  Scarecrow (fee simple)
then immediately after & simultaneously:
Scarecrow  Dorothy (fee simple with yellow
brick covenant)
Scarecrow  Glinda (fee simple with yellow
brick covenant)
Why is the availability of this approach
significant?
DQ116: PRIVITY
VERTICAL: RELATIONSHIP BETWEEN
ORIGINAL PARTY TO THE TRANSACTION
AND CURRENT PARTY TO THE DISPUTE
• Traditionally needed same estate
– Usually, grantor-grantee works (Davidson)
– In landlord-tenant context, assignees but not
sublessees in vertical privity with tenants
• Some jurisdictions: Any legal successor
DQ116: PRIVITY
VERTICAL: RELATIONSHIP BETWEEN
ORIGINAL PARTY TO THE TRANSACTION
AND CURRENT PARTY TO THE DISPUTE
• In Runyon, why is vertical privity met as to
Williams and not as to the Runyons?
• If you were the lawyer for Mrs. Gaskins and
she wanted the Runyons to be able to
enforce the provision, what could you have
done?
PROMISSORY SERVITUDES:
TRADITIONAL ELEMENTS (2)
With THE
EAGLES
PROMISSORY SERVITUDES:
IMPLIED FROM A COMMON
SCHEME
with the
Temptations