Washington Real Estate Law
Lesson 9:
Title to Real
Property
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Introduction
In this lesson:
 voluntary alienation (deeds and wills),
 involuntary alienation (intestate succession,
escheat, court decisions, adverse possession,
condemnation, dedication, natural changes),
 recording, and
 title insurance.
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Alienation
Alienation: The process of transferring ownership
of real property from one person to another.
 Alienation may be voluntary or involuntary.
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Voluntary Alienation
Deeds
Deed: A document used by an owner of real
property to transfer all or part of her interest in a
property to another.
 Grantor: Person transferring property.
 Grantee: Person receiving property.
The most common method of voluntary alienation
is by deed.
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Deeds
Requirements
A valid deed must:
 be in writing,
 contain words of conveyance and description of
property,
 identify grantee,
 be signed and acknowledged by competent
grantor, and
 be delivered to and accepted by grantee.
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Deeds
Requirements
The statute of frauds requires any transfer of an
interest in real property to be in writing.
 A transfer of real property can’t be
accomplished orally.
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Deeds
Requirements
Words of conveyance: Language in a deed that
actually conveys the property to the new owner.
Also called the granting clause.
 The requirement for words of conveyance is
easily met—usually one word, such as
“convey,” is sufficient.
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Deeds
Requirements
The property being conveyed must be adequately
described in the deed.
 A legal description should always be included.
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Deeds
Requirements
For deed to transfer title, it must name an existing
and identifiable grantee.
 Grantee can be minor or mentally incompetent.
 Grantee may be corporation or other legal
entity.
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Deeds
Requirements
A valid deed requires a competent grantor (of
legal age and sound mind).
 Every deed must name the grantor.
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Deeds
Requirements
Grantor must sign deed (grantee’s signature is not
required).
 Representative of grantor may sign instead, but
grantor must authorize this via document called
a power of attorney.
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Deeds
Requirements
A power of attorney is automatically revoked if the
principal dies.
It’s also automatically revoked if principal
becomes mentally incompetent.
 Exception: A durable power of attorney (one
that states it will remain effective despite
principal’s incompetence).
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Deeds
Requirements
Acknowledgment: A declaration by the grantor
that he has signed a deed or other document
voluntarily.
 Acknowledgment usually occurs when grantor
signs in front of notary public.
 Someone with interest in property can’t act as
notary.
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Deeds
Requirements
In Washington, deed can be valid even though it
wasn’t acknowledged by grantor.
 Unacknowledged deed can’t be recorded
(recording provides constructive notice of the
transfer to third parties).
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Deeds
Delivery, donative intent, acceptance
Even if deed contains all required elements, it will
not transfer title until:
 it is delivered by grantor,
 with intent to pass title, and
 grantee accepts it.
Physical delivery of deed is usually necessary.
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Deeds
Delivery, donative intent, acceptance
Delivery must take place during grantor’s lifetime.
 Deed can’t be delivered to grantee after
grantor’s death.
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Deeds
Delivery, donative intent, acceptance
Grantee may refuse to accept a deed.
 This may happen because of personal or
financial reasons.
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Deeds
Other elements
Deeds often include optional elements, such as:
 date of deed,
 grantee’s signature, and
 recital of consideration given for property.
 While optional, recital of consideration may
help show that transaction was purchase
and not gift (gift deed may be vulnerable to
claims by grantor’s creditors).
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Voluntary Alienation
Types of deeds
Three main types of deeds in Washington:
 general warranty deed,
 bargain and sale deed, and
 quitclaim deed.
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Types of Deeds
General warranty deed
The general warranty deed contains these
guarantees:
 grantor has good title to property conveyed,
 grantor has right to convey property,
 property is free from undisclosed
encumbrances,
 grantor promises quiet and peaceable
possession, and
 grantor will defend title against anyone with
possible lawful claim to it.
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Types of Deeds
General warranty deed
General warranty deed is most comprehensive
and most commonly used deed in Washington.
 It gives the grantee the most protection.
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Types of Deeds
Bargain and sale deed
Bargain and sale deed contains these guarantees:
 nothing grantor has done has encumbered the
property, and
 grantee’s possession of property won’t be
disturbed by claims of ownership brought by
grantor’s heirs or assigns.
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Types of Deeds
Bargain and sale deed
With bargain and sale deed, grantor only
guarantees her own actions.
 Essentially, grantor conveys the same interest
in the property that she acquired from previous
owner.
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Types of Deeds
Quitclaim deed
A quitclaim deed is often used to cure clouds on
title.
 Clouds could be technical flaws in an earlier
conveyance, such as misspelling party’s name.
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Types of Deeds
Quitclaim deed
In a quitclaim deed, grantor simply conveys
whatever interest he has.
 Quitclaim deed contains no warranties.
 Quitclaim deed will convey nothing at all if
grantor has no interest in property when deed
is signed.
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Types of Deeds
Quitclaim deed
Quitclaim deed used when grantor wants to avoid
making any warranties.
 Grantor might want to avoid warranties when
making a gift, or when unsure of her title.
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Types of Deeds
After-acquired title
After-acquired title: The acquiring of good title
after having made a transfer to a grantee of
something less than good title.
 In this situation, good title automatically passes
to grantee (provided transfer was by a general
warranty deed or a bargain and sale deed).
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Types of Deeds
After-acquired title
After-acquired title normally does not pass to
grantee under quitclaim deed.
 Quitclaim deed transfers only grantor’s current
interest.
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Voluntary Alienation
Wills
Will terminology:
Testator: The person making out a will.
Bequest: A gift of personal property in a will.
Devise: A gift of real property in a will.
Codicil: An amendment to a will.
Executor: Person named in a will to carry out the
will’s directions.
Probate: Court process by which will is validated
and the execution of its directions is supervised.
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Wills
Requirements
In Washington, any person of sound mind who is
at least l8 years old may make a will.
To be valid, a will generally must be:
 in writing,
 signed by competent testator, and
 attested to by two or more competent
witnesses.
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Wills
Writing requirement
Exception to written will requirement:
 Under limited circumstances, Washington will
recognize a nuncupative (oral) will used to
dispose of personal property.
 Real estate can never be devised by a
nuncupative will.
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Wills
Signature requirement
Generally, will must be signed by testator.
 Someone else may sign for testator, at the
request of testator, and in testator’s presence.
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Wills
Competency requirement
Testator must have capacity: sufficient mind and
memory to understand the transaction,
comprehend the nature and extent of her property,
and recollect the “objects of her bounty.”
 To invalidate will, evidence of incompetency
must be clear, cogent, and convincing.
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Wills
Witness requirement
Washington requires two or more competent
witnesses to sign their names to the will in the
presence of the testator.
 To validate will, witnesses must be able to
testify that testator signed will or acknowledged
his signature in their presence.
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Wills
Witness requirement
Any competent adult may act as a witness.
 A beneficiary under the will should not act as a
witness—doing so generally renders any
provisions that give him property void.
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Wills
Revocation
Will may be revoked by a later will, or by being
intentionally destroyed.
 If will is accidentally lost or destroyed, but the
court has sufficient evidence of will’s contents,
it can proceed with probate.
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Wills
Community property
In Washington, when a married person or
registered domestic partner dies, one-half of any
community property goes to surviving
spouse/partner.
 The other one-half of the community property,
and any of deceased’s separate property, may
be disposed of by will.
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Summary
Voluntary Alienation
 Alienation
 Cloud on title
 Deed
 After-acquired title
 Grantor/grantee
 Will
 Power of attorney
 Testator
 Acknowledgment
 Codicil
 General warranty deed
 Executor
 Bargain and sale deed
 Probate
 Quitclaim deed
 Testamentary capacity
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Involuntary Alienation
Involuntary alienation: Any transfer of ownership
or interest in property that occurs without action
by the owner or against the owner’s wishes.
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Involuntary Alienation
Situations where involuntary alienation occurs:
 someone dies without a will,
 adverse possession,
 court decision,
 government action, or
 geological changes to the land.
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Involuntary Alienation
Intestacy
Intestacy: Dying without leaving a valid will.
Heirs: Family members listed by intestacy statute
to receive the property of one who died intestate.
Administrator: Person appointed by probate court
to carry out distribution of intestate’s property.
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Involuntary Alienation
Escheat
Escheat: The process by which the state takes
title to property of a person who dies intestate and
without any heirs.
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Involuntary Alienation
Escheat
Escheat rarely occurs because number of
potential heirs under intestacy statute is large.
Heirs (in order of preference):
 children, then their descendents,
 parents, then their descendents, and
 grandparents, then their descendents.
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Involuntary Alienation
Court decisions
The most common court actions that can result in
involuntary alienation are:
 foreclosure,
 partition, and
 quiet title.
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Court Decisions
Foreclosure
Foreclosure: When someone holding liens against
a piece of real property forces the sale of the
property because the liens aren’t paid off.
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Court Decisions
Foreclosure
Foreclosure is available for any type of lien that
attaches to real property, including:
 mortgages,
 construction liens,
 tax liens, and
 judgment liens.
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Court Decisions
Foreclosure
In some foreclosure actions, the court will order
the sheriff to auction the debtor’s property.
 Buyer receives a certificate of sale that ripens
into title if debtor does not pay off debt within 8
months (or within 1 year in some cases).
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Court Decisions
Partition
Suit for partition: A lawsuit to divide property when
co-owners can’t agree how to divide it.
 Frequently the court will order property sold
and proceeds divided among co-owners.
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Court Decisions
Quiet title
Quiet title action: A lawsuit used to remove a
cloud on the title or settle some other dispute
regarding ownership.
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Involuntary Alienation
Adverse possession
Adverse possession: A statutory process by which
possession of someone else’s property can
mature into title to that property.
 Purpose of adverse possession is to encourage
productive use of property.
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Adverse Possession
Adverse possession can’t be claimed against
government property (such as state-owned forests
or city parks).
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Adverse Possession
Requirements
In Washington, adverse possession requires
possession of the land that is:
 actual,
 open and notorious,
 hostile,
 exclusive, and
 continuous and uninterrupted for specified
period of time.
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Adverse Possession
Requirements
Actual possession: Occupation and use of the
property must be in a manner appropriate to the
type of property.
 Living on the property isn’t necessary unless
residence is an appropriate use.
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Adverse Possession
Requirements
Many adverse possession claims involve narrow
strips of land between adjoining properties.
 Planting and maintaining plants and hedges
may meet requirements for actual possession.
 Just mowing lawn on a disputed strip is
probably not enough to claim actual
possession.
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Adverse Possession
Requirements
Open and notorious: Manner of possession must
be open enough to put a reasonable owner on
notice that her ownership is threatened.
 Possessor can’t hide out on the land.
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Adverse Possession
Requirements
Hostile: The adverse possessor must treat the
property as his own as against all parties.
 If the owner has given the person permission to
use property, use isn’t hostile.
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Adverse Possession
Requirements
Exclusive: The adverse possessor cannot share
possession with the true owner (knowingly or not).
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Adverse Possession
Requirements
Continuous and uninterrupted: In Washington, an
adverse possessor must possess the land for 10
successive years (7 years in some cases).
 Uninterrupted means without significant break.
 Continuous use only requires kind of use that
true owner would make of property.
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Adverse Possession
Requirements
The required period of continuous possession is
only 7 years if possessor claims property:
 in good faith,
 under color of title, and
 pays taxes on it.
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Adverse Possession
Requirements
Color of title: Someone who appears to have title,
or believes she has title, even though her title is
invalid, has color of title.
 The invalid title may be due to defect such as
forged deed or erroneous land description.
 7-year possession must be in good faith:
possessor can’t know title is defective.
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Involuntary Alienation
Condemnation
Condemnation: The exercise of the government’s
power of eminent domain; a power to take private
property for public use in return for fair market
value.
 This power is granted by the Constitution.
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Condemnation
Any government entity can exercise power of
eminent domain (state, city, school district, etc.).
 Limited use of power can also be delegated to
private entities (though only for public benefit).
 Example: A private utility company authorized
to condemn property for utility lines.
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Involuntary Alienation
Dedication
Dedication: The transfer of privately owned land to
the public without compensation.
 Sometimes dedication is voluntary, as when a
philanthropist donates land for public park.
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Involuntary Alienation
Dedication
Developers often have to dedicate land.
 If developer wants government approval for a
subdivision, he may have to dedicate areas for
public use (for streets, sidewalks, etc.).
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Involuntary Alienation
Natural changes
Water action may change property boundaries.
Accretion: The gradual enlargement of a property
by water-borne soil deposits.
Reliction: The gradual enlargement of a property
by the retreat of a body of water.
Avulsion: The sudden tearing away of land by
flowing water or waves (however, the severed
land still legally belongs to the original owner).
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Summary
Involuntary Alienation
 Intestate succession  Adverse possession
 Escheat
 Color of title
 Foreclosure
 Condemnation
 Suit for partition
 Dedication
 Quiet title action
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Recording
The recording system protects purchasers by
providing record of who holds interest in the land.
The public record typically reveals the:
 present owner,
 legal description,
 liens against the property, and
 easements or restrictive covenants affecting
the property.
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Recording
Procedures
Various documents should be recorded, including:
 deeds,
 easements,
 covenants,
 certain long-term leases,
 mortgages and releases of mortgages,
 community property/separate property
agreements, and
 powers of attorney to convey real estate.
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Recording
Procedures
To record a document, deposit it with county
recorder and pay a small fee.
 Recorder copies document and puts it in the
public record.
 After recording, original document is returned to
party named on the document as entitled to
possession.
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Recording
Procedures
Recorded documents can be searched for by:
 grantor name,
 grantee name,
 filing date,
 recording number,
 document type (deed, etc.), and
 legal description and other information.
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Recording
Notice
The main purpose of recording deeds and other
documents is to provide notice of the transaction
to others.
 Every purchaser or mortgagee of land is
charged with notice of all prior recorded
documents concerning that property.
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Recording
Notice
Constructive notice: Notice imparted by operation
of law as a result of recording a document.
 A court won’t let a party claim ignorance of a
recorded document.
 The document could easily have been
discovered by checking public record.
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Recording
Notice
Actual notice: Information (notice) acquired
personally by a party.
 Actual notice may be gained from the seller,
from other parties, or by inspecting the
property.
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Recording
Washington law
Washington’s recording statute has detailed
format rules; documents that don’t meet these
rules incur an additional fee and recording may be
delayed.
Among other things, a recordable document must:
 contain an abbreviated legal description,
 show county assessor’s tax parcel number, and
 have page margins of a certain size.
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Recording
Washington law
Washington’s recording statute is a race-notice
statute.
 This statute comes into play when there is an
unrecorded sale or other transaction.
 The person who records first—provided he has
no notice of the unrecorded conveyance—is
considered true owner.
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Recording
Washington law
Purchaser who knew about earlier conveyance
cannot be true owner, even if she records first.
 She's not bona fide (good faith) purchaser.
 Because the recording statute is meant to
protect purchasers, someone who inherits
property or receives it as a gift may not be
protected even if she records first.
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Recording
Torrens system
Torrens system: Washington has also adopted the
Torrens system of registration of land.
 The Torrens Act provides for the registration of
title to land through a procedure that
establishes a title free from all unregistered
rights or claims. (This procedure is rarely used.)
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Summary
Recording
 Recording
 Actual notice
 Constructive notice
 Race-notice statute
 Bona fide purchaser
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Title Insurance
Title insurance: A contract in which a title
insurance company agrees to indemnify
(reimburse) the policy holder for losses caused by
defects in the title.
 Title insurance is typically required when real
property is purchased or mortgaged.
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Title Insurance
Obtaining coverage
Before issuing a policy, the title insurance
company:
 conducts title search, and then
 issues preliminary commitment for insurance,
listing defects that will be excluded from
coverage.
Excluded defects typically include recorded liens
and encumbrances.
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Title Insurance
Obtaining coverage
If the party requesting insurance is satisfied with
preliminary commitment, she will purchase the title
insurance policy by paying the required premium.
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Title Insurance
Obtaining coverage
Hidden defect: A title defect that can’t be
discovered through a standard search of the
public record.
 Title insurance policies usually cover hidden
defects.
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Title Insurance
Obtaining coverage
Some common types of hidden defects:
 forged signature on a deed,
 deed or mortgage release signed by a minor,
 deed or mortgage incorrectly stating marital
status, or
 deed that was not properly delivered.
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Title Insurance
Types of coverage
There are three basic types of title insurance
policies in Washington:
 standard coverage policy,
 extended coverage policy, and
 homeowner’s coverage policy.
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Title Insurance
Types of coverage
Standard coverage policy: Policy that insures an
owner or lender against recorded defects in title,
including hidden risks such as forgery.
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Title Insurance
Types of coverage
Standard policy does not cover problems that
would be revealed only by an accurate survey or
inspection of the property.
Matters that an inspection might reveal:
 adverse possession,
 unrecorded easement, or
 encroachment onto the property.
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Title Insurance
Types of coverage
Extended coverage policy: Policy that insures
against all matters covered by the standard
coverage policy, plus matters that should be
revealed by an inspection of the property.
 Buyer typically purchases extended coverage
policy for the lender’s protection.
 This is called the mortgagee’s policy.
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Title Insurance
Types of coverage
Homeowner’s coverage policy: Policy that covers
most of the same title problems as an extended
coverage policy, but also some additional items,
such as violations of restrictive covenants.
 In Washington, residential purchase and sale
agreements usually require seller to buy a
homeowner’s policy for buyer.
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Title Insurance
Types of coverage
Coverage of items not included in a title insurance
policy might be obtained by buying an
endorsement.
 Coverage is not generally available for
protection from losses due to government
action (condemnation, zoning change, etc.).
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Title Insurance
Abstract of title
Abstract of title: An alternative to title insurance,
no longer used in Washington, in which a property
owner receives a condensed history of all
recorded interests in the property (chain of title).
 An attorney examines abstract and renders an
opinion on the condition of title.
 Does not provide protection against latent or
undiscovered defects in the title.
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Summary
Title
 Title insurance
 Hidden defect
 Standard coverage policy
 Extended coverage policy
 Homeowner’s coverage policy
 Abstract of title
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