Titles - In general

Learning Outcomes

This article examines the core principles governing title to real property, including:

• Distinguishing “title” from the documents that evidence, secure, or transfer it (deeds, public records, mortgages, and judgments).
• Evaluating whether a seller can deliver marketable title under a land sale contract, spotting typical defects, and predicting likely MBE outcomes and remedies.
• Applying the elements of adverse possession—actual, exclusive, open and notorious, hostile, and continuous possession—along with tacking, disabilities, future interests, color of title, and government ownership issues.
• Analyzing whether a deed is validly executed and delivered, distinguishing conditional delivery and escrow arrangements, and comparing the protection offered by general warranty, special warranty, and quitclaim deeds.
• Classifying covenants for title as present or future, determining when each type is breached, what statute of limitations applies, and which parties (original or remote grantees) may sue.
• Applying estoppel by deed and after-acquired title rules, including how they intersect with recording acts, notice and race‑notice statutes, and the rights of bona fide purchasers.

MBE Syllabus

For the MBE, you are required to understand the concepts related to proving and transferring title to real property, with a focus on the following syllabus points:

• Recognize what “title” represents (the legal right to possession) and distinguish it from documents that evidence title (such as deeds and records).
• Analyze whether title is “marketable” based on potential defects, including encumbrances, adverse claims, and chain of title problems.
• Apply the elements of adverse possession: actual, exclusive, open and notorious, hostile, and continuous possession for the statutory period.
• Understand how disabilities, government ownership, and future interests affect running of the adverse possession period.
• Explain “color of title” and when it leads to constructive adverse possession beyond the area actually occupied.
• Apply the concept of tacking and the privity requirement between successive adverse possessors.
• Identify the requirements for a valid deed: writing, signature, parties, description of property, words of intent, and delivery (including escrow).
• Distinguish different types of deeds (general warranty, special warranty, quitclaim), and identify which covenants for title they typically contain.
• Classify title covenants as present or future and determine when each is breached and who can sue.
• Recognize the doctrine of estoppel by deed and its interaction with later-acquired title and recording acts.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following defects MOST likely renders title unmarketable?
   1. An existing zoning ordinance that permits only residential use.
   2. A recorded utility easement providing electrical service to the property.
   3. A significant encroachment by a neighboring structure onto the property.
   4. A mortgage that the seller intends to satisfy using the proceeds at closing.
2. To acquire title by adverse possession, the possessor's occupation of the land must be:
   1. With the true owner's express permission.
   2. Intermittent, provided the total time meets the statutory period.
   3. Without claim of right or title.
   4. Openly visible and apparent to put a reasonable owner on notice.
3. Which element is NOT essential for a valid deed conveying real property?
   1. The signature of the grantor.
   2. An adequate description of the land.
   3. A statement of the consideration paid.
   4. Words indicating an intent to transfer title.

Introduction

In real property, title means the legal right to possess and control land. Because title is an intangible bundle of rights, the law uses various mechanisms to prove, transfer, and sometimes modify who holds it. Three clusters of rules are heavily tested on the MBE:

• The quality of title a buyer is entitled to under a land sale contract (the implied covenant of marketable title).
• Acquisition of title by adverse possession.
• Transfer of title by deed, including the covenants for title and the doctrine of estoppel by deed.

Although these doctrines often appear in separate questions, they interact. For example:

• A seller may try to satisfy the contract promise of marketable title by showing that defects have been cured by adverse possession.
• A buyer’s post‑closing remedies for title problems depend on the covenants in the deed, not on the contract promises, because of merger.

Understanding how these pieces fit together is critical for solving MBE questions involving contracts for the sale of land, boundary disputes, quiet title actions, and deed-based lawsuits.

Key Term: Title
The legal right to possess and control real property; an intangible bundle of ownership rights, as distinguished from the documents (like deeds or records) that evidence those rights.

Key Term: Marketable Title
Title reasonably free from doubt or the threat of litigation, which a prudent, informed buyer would accept in the exercise of ordinary business judgment.

Key Term: Chain of Title
The series of recorded conveyances and other instruments by which ownership of real property has passed over time, from one owner to the next.

Legal vs. Equitable Title and the Role of Deeds

In a typical land sale:

• The contract is signed first. At that point, the buyer usually receives equitable title (the right to obtain legal title), while the seller retains legal title as security for the purchase price.
• At closing, the seller delivers a deed, which transfers legal title to the buyer.

Key Term: Merger (of Contract into Deed)
The doctrine that, at closing, the land sale contract merges into the deed; thereafter the buyer’s rights concerning title quality are governed by the deed, not by the contract, except as to collateral promises.

You will often need to track three distinct items in a fact pattern:

• Who currently has legal title (e.g., from the last valid deed or by adverse possession).
• What the contract for sale promises (e.g., marketable title, no encumbrances except as stated).
• What the deed actually delivers (type of deed and covenants, if any).

The recording system interacts with title by providing notice to later purchasers and lenders, but the basic question of who owns what is still resolved under property and contract principles. Recording acts matter most when there are competing claimants and you need to determine which one prevails.

Key Term: Quiet Title Action
A lawsuit brought to establish or confirm the plaintiff’s title to real property and to remove clouds, adverse claims, or uncertainties from the record.

With that framework, the rest of this article develops:

• When title is considered “good enough” (marketable title).
• How title can shift away from the record owner over time (adverse possession).
• How title is formally transferred and what promises accompany that transfer (deeds, covenants, and estoppel by deed).

Marketable Title

Every contract for the sale of land contains an implied covenant that the seller will provide marketable title at closing. This is title reasonably free from doubt, meaning title that a prudent buyer would accept in the exercise of ordinary business judgment. Marketable does not mean perfect; it does mean that a reasonable buyer should not face a substantial risk of litigation over ownership or significant encumbrances.

On the MBE, you must always ask:

• At what point is marketable title required?
• What defect is alleged?
• Has the buyer waived the defect or agreed to take subject to it?
• What remedies are available if title is not marketable?

When and How the Covenant Operates

• The seller’s obligation is to deliver marketable title at closing, not at contract formation. Defects that exist when the contract is signed can be cured up to the closing date.
• The covenant of marketable title is implied in every land sale contract unless expressly disclaimed.
• It normally applies to the estate the seller has contracted to convey (e.g., a fee simple, not a life estate unless specified).
• Once closing occurs and the deed is delivered and accepted, the contract merges into the deed. Thereafter, the buyer’s remedies are based on deed covenants, not on the implied covenant of marketable title (subject to limited exceptions for collateral promises or fraud).

Common exam twist:

• A buyer discovers a defect after closing and sues for “breach of contract to provide marketable title.” Unless the defect also breaches a deed covenant or involves fraud, the buyer generally loses because of merger.

Contract Terms and Waiver

The implied covenant can be modified by the parties’ express agreement.

• If the contract states that the buyer will accept title “subject to all easements and restrictions of record,” the buyer has effectively waived objection to recorded easements and covenants.
• If the buyer has actual knowledge of a defect (e.g., saw a visible easement or tenant in possession) and proceeds without objection, some courts treat that as waiver or evidence that the defect is acceptable.
• The buyer can affirmatively waive specific defects, often in exchange for a price reduction.

On the MBE, read the contract language carefully:

• “Subject to easements of record” generally allows easements that are recorded, even if undisclosed elsewhere.
• A general entire-agreement clause (“entire agreement”) does not, by itself, waive the implied covenant unless there is explicit language to that effect.

Key Term: Encumbrance
A non-possessory interest in land (such as a mortgage, lien, easement, or restrictive covenant) or a physical intrusion (like an encroachment) that burdens title or reduces the property’s value.

Defects Rendering Title Unmarketable

Defects that typically make title unmarketable fall into three broad categories:

• Defects in the record chain of title.
• Encumbrances.
• Significant encroachments or violations of law.

Defects in the Record Chain of Title

These are problems suggesting the seller may not have the full estate they purport to convey, such as:

• A break in the chain of recorded deeds (e.g., a deed missing between two owners).
• Significant inconsistencies in property descriptions across deeds.
• A deed in the chain executed by someone who lacked capacity (e.g., a minor or adjudicated incompetent).
• A forged deed (always void).
• An improperly executed deed (e.g., required formalities not satisfied under state law).

Because buyers and lenders rely on public records to evaluate title, defects in the record chain create a real risk of adverse claims.

Key Term: Adverse Possession
A method of acquiring title to real property by possessing it for a statutory period under certain conditions: actual, exclusive, open and notorious, hostile, and continuous possession.

• Title by adverse possession: Title acquired by adverse possession is generally treated as unmarketable unless and until it has been confirmed in a quiet title action or clearly established by long-accepted possession.

  • The reason is the risk that the record owner (or their successors) will contest the adverse possessor’s claim.
  • On the MBE, if the seller’s only claim to some portion of the property is adverse possession and no court judgment has been entered, assume the title is not marketable.

• Gaps and wild deeds: A “wild deed” (one recorded outside the chain of title) does not give marketable title because it is not traceable through the chain from a common grantor. A gap where an intermediate conveyance is missing or unrecorded similarly casts enough doubt to make title unmarketable.

Encumbrances

Mortgages, liens, easements, covenants, and significant encroachments usually render title unmarketable unless the buyer agrees to take subject to them.

Typical encumbrances include:

• Monetary charges: mortgages, deeds of trust, tax liens, judgment liens.
• Non-monetary interests: easements (e.g., rights-of-way), profits, private restrictive covenants, options to purchase, rights of first refusal.
• Physical encroachments: structures that cross boundary lines.

Key nuances for the exam:

• Mortgages and liens:

  • The existence of a mortgage or lien before closing does not automatically make title unmarketable if the contract contemplates that it will be paid off from the sale proceeds at closing. Sellers routinely do this.
  • If it is clear the seller cannot or will not pay off the lien, or the lien will remain after closing when the buyer did not agree to assume it, title is unmarketable.

• Easements:

  • An undisclosed easement that burdens the property (e.g., a neighbor’s right-of-way) ordinarily makes title unmarketable.
  • However, an easement that benefits the property (e.g., the parcel has a utility easement across someone else’s land) typically does not.
  • A visible or known easement that does not materially interfere with reasonable use (for example, a clearly visible utility line along a boundary) may, in some jurisdictions, be treated as acceptable—especially if the buyer viewed the property and did not object.

• Restrictive covenants:

  • Private restrictions (e.g., “residential use only,” “no commercial buildings,” architectural controls) are encumbrances and therefore potential defects unless the buyer consented by contract.
  • The covenant itself is distinct from zoning; zoning is public regulation, not a private encumbrance.

Key Term: Zoning vs. Zoning Violation
Zoning ordinances are public regulations that, by themselves, do not make title unmarketable. An existing violation of zoning, however, is a defect that can render title unmarketable because it exposes the owner to enforcement actions.

• Leases and tenancies:
  • A tenant’s unexpired lease is generally treated as an encumbrance.
  • If the property is “subject to” an existing lease and the buyer is expected to become the new landlord, the contract must make that clear; otherwise, a buyer expecting vacant possession can usually reject title as unmarketable.

Zoning, Building Codes, and Other Public Regulations

• A mere zoning ordinance—such as “only residential use allowed”—does not make title unmarketable. It affects use, not ownership.
• An existing violation of zoning or building codes (an illegal structure height, setback violation, or unpermitted addition) does render title unmarketable because it exposes the owner to enforcement and possible compelled alteration or demolition.
• Similarly, outstanding special assessment liens or unpaid property taxes typically make title unmarketable until satisfied or otherwise dealt with.

Significant Encroachments

An encroachment is a physical intrusion by a structure on one parcel into another parcel (e.g., the seller’s garage extends over the lot line, or a neighbor’s fence intrudes onto the property).

• Substantial encroachments—those likely to generate litigation or materially affect value—usually make title unmarketable.
• Slight encroachments (e.g., a fence or hedge extending a few inches over the line) may sometimes be treated as de minimis, especially where local custom tolerates small boundary deviations.

On the MBE, if the facts emphasize that the encroachment is “substantial,” “significant,” or likely to cause litigation, treat the title as unmarketable.

Buyer’s Duties and Remedies

If the buyer discovers a defect before closing:

• The buyer must notify the seller of the defect and allow a reasonable time to cure, even if this requires a short extension of the closing date.
• Reasonableness of time depends on:
  • How serious the defect is.
  • Whether cure is realistically achievable before a short postponement of closing.
• If the seller cannot cure and provide marketable title by closing, the buyer may:
  • Rescind the contract and recover any deposit.
  • Sue for damages (e.g., reliance or expectation damages, depending on the jurisdiction).
  • Seek specific performance with an abatement (price reduction) to reflect the defect, if the buyer is willing to take the property with the defect.

Because the covenant of marketable title only protects the buyer up to closing, once the deed is delivered and accepted, the buyer can no longer sue on that covenant and is limited to any deed covenants (if present) or to other theories like fraud or misrepresentation.

Key Term: Bona Fide Purchaser (for Value Without Notice)
A person who gives value for an interest in property and has no actual, record, or inquiry notice of prior adverse claims at the time of purchase. Recording acts often protect a bona fide purchaser against earlier unrecorded interests.

Worked Example 1.1

Seller contracts to sell Blackacre to Buyer. The contract is silent about encumbrances. A title search shows (i) a recorded mortgage that Seller plans to pay off at closing from the purchase price, and (ii) a small but clear encroachment of Seller’s garage onto the neighbor’s land. There are no other defects. Before closing, Buyer demands that Seller cure both the mortgage and the encroachment, or Buyer will rescind. Seller can pay the mortgage but cannot move the garage. Is Buyer entitled to rescind?

Answer:
Buyer must allow a reasonable time for Seller to satisfy the mortgage at closing; that encumbrance alone does not justify rescission if it will be paid off. However, the garage encroachment is a significant, permanent encumbrance that likely renders title unmarketable because it may expose Buyer to litigation with the neighbor. If the encroachment is substantial (as suggested here) and Buyer did not agree to take subject to it, Buyer may rescind if Seller cannot cure.

Worked Example 1.6

Seller contracts to sell a 100‑acre farm to Buyer for $1,000,000. Before closing, it is discovered that Seller owns only 90 acres; the remaining 10 acres were previously conveyed to a neighbor. The missing 10 acres consist of a small, rocky strip along the back boundary worth about$10,000. Buyer still wants the farm but demands a $100,000 price reduction. Seller refuses, offering a$10,000 reduction. If Buyer sues for specific performance, what is the likely result?

Answer:
Seller cannot deliver marketable title to the entire 100 acres, but the defect is relatively small and readily measured. A court of equity will generally grant specific performance with an abatement reflecting the proportionate loss in value. Here, that is about $10,000, not$100,000. Buyer is entitled to purchase the 90 acres Seller can convey, with an appropriate reduction, but cannot insist on a much larger price cut unrelated to the actual loss.

Adverse Possession

A person can acquire legal title to real property owned by another through adverse possession if their possession meets specific requirements for a statutorily defined period. This doctrine encourages productive use of land and penalizes owners who fail to assert their rights.

Key Term: Hostile Possession (Claim of Right)
Possession that is without the true owner’s permission and inconsistent with the owner’s rights. The possessor’s subjective belief (good‑faith mistake or knowing trespass) is usually irrelevant under the majority rule.

The classic elements are:

• Actual and exclusive possession.
• Open and notorious possession.
• Hostile possession (under claim of right).
• Continuous possession for the statutory period.

Key Term: Color of Title
A written instrument (such as a deed or will) that appears to convey title but is defective in some way. Entry under color of title can, in some circumstances, extend constructive adverse possession to the entire tract described in the instrument.

Key Term: Tacking
The doctrine allowing successive adverse possessors to combine (tack) their periods of possession to meet the statutory period, if there is privity—a voluntary connection—between them.

Key Term: Constructive Adverse Possession
The doctrine by which an adverse possessor who actually occupies part of a parcel under color of title is deemed to possess the entire parcel described in the defective instrument, if certain conditions are met.

Key Term: Privity (for Adverse Possession)
A voluntary legal relationship between successive possessors (such as by deed, will, or lease) that allows their periods of adverse possession to be added together for purposes of satisfying the statutory period.

1. Actual and Exclusive Possession

• Actual possession means a physical occupation or use consistent with the nature of the property (e.g., living in a house, farming land, fencing pasture).
  • Mere occasional trespasses (e.g., walking across land a few times a year to fish) are not enough.
  • Activities should resemble how a typical true owner of similar land would behave.
• Exclusive means the possessor does not share possession with the true owner or the general public. Occasional, incidental entries by others do not necessarily destroy exclusivity, but shared control with the record owner does.

Constructive Adverse Possession under Color of Title

When the possessor enters under color of title and actually occupies part of the property described in the defective instrument, many jurisdictions allow the possessor to acquire title by adverse possession to the entire tract described, so long as:

• The instrument adequately describes the larger tract.
• The part actually possessed bears a reasonable relation to the whole (e.g., not a tiny, isolated corner far from the rest).

On the MBE, if the possessor has a defective deed describing 100 acres but actually fences and uses 10 acres in the center, you may be expected to extend possession to the 100 acres by constructive adverse possession, unless the facts specify a more restrictive local rule.

2. Open and Notorious Possession

The possession must be visible and obvious enough to put a reasonable true owner on notice that someone is occupying the land under a claim of right.

• Typical acts satisfying this element: building structures, clearing timber, cultivating fields, fencing the property, posting signs, or regularly using a driveway.
• Secret use (e.g., underground mining invisible from the surface, or hidden use at night) is generally not open and notorious.
• In boundary disputes, a visible fence or hedge maintained as the boundary often satisfies this requirement.

3. Hostile Possession (Claim of Right)

“Hostile” in this context does not mean angry or violent. It means the possessor is on the land:

• Without the owner’s permission, and
• Under a claim of right that is inconsistent with the owner’s title.

Majority rule for the MBE:

• The possessor’s state of mind is irrelevant. It does not matter whether they reasonably think they own the land (good‑faith), know they are trespassing (bad‑faith), or are simply careless. The focus is on the objective conduct.

Common issues:

• Permissive entry:

  • If possession begins with permission (tenant, licensee, family member), it is not hostile.
  • It becomes hostile only when the possessor clearly and unequivocally repudiates the owner’s permission (e.g., by expressly claiming ownership or refusing to recognize the owner’s rights).
  • The statute of limitations does not start to run until this repudiation is communicated or is clearly apparent to the owner.

• Co-tenants:

  • Each co-tenant has a right to possess the whole. Possession by one co-tenant is presumed to be on behalf of all.
  • To be adverse, there must be an ouster—a clear act or statement denying the co-tenant’s rights (e.g., excluding them from the property or asserting sole ownership and refusing entry).
  • Merely occupying the property and paying taxes, without more, is usually not enough to establish hostility against a co‑tenant.

Key Term: Ouster
An act by one co-tenant that clearly denies another co-tenant’s right to possess the property, such as refusing entry or expressly claiming sole ownership.

4. Continuous Possession for the Statutory Period

Key Term: Continuous Possession
Possession that is maintained for the entire statutory limitation period in the way a typical owner of that type of property would use it. It does not require constant physical presence.

• The required period varies by state (often 10, 15, or 20 years); on the MBE, the period will be provided or you can assume a traditional 20‑year period if unspecified.
• “Continuous” means consistent with the ordinary use of similar property:
  • Seasonal use of a summer cabin or hunting land may be continuous if a typical owner would use it that way.
  • Long gaps that look like abandonment break continuity.

Tacking

Successive adverse possessors can “tack” their periods of possession to meet the statutory period if:

• There is privity between them—a voluntary transfer such as a deed, will, or lease from one possessor to the next, and
• There is no break in possession (no abandonment or reentry by the true owner).

If A adversely possesses for 8 years, then conveys by deed (even a defective deed) to B, who continues possession for 12 years, and the statutory period is 20 years, A and B together can satisfy the period.

If, instead, B simply ousts A without any conveyance, there is no privity and no tacking; each must meet the full period separately.

Disabilities and Future Interests

Many jurisdictions toll the statute of limitations when the record owner is under a disability at the time adverse possession begins.

• Common disabilities: minority, insanity, imprisonment.
• The disability must exist when the adverse possession starts. Later-arising disabilities do not stop the clock.
• Typically, the statute runs for some number of years after the disability is removed (e.g., after the owner reaches majority), but you will be given any specific periods on the exam.
• Multiple disabilities do not stack; if one exists at the start, the statutory extension is fixed by statute.

For future interests:

• The statute does not run against a future interest holder until that interest becomes possessory.
  • Example: O conveys “to A for life, then to B.” If X enters adversely during A’s life, the statute runs against A’s life estate. It does not start to run against B’s remainder until A dies and B’s interest becomes possessory.
  • If the statutory period runs against A’s life estate, the adverse possessor acquires A’s life estate, but not B’s remainder interest, unless the period also runs after B’s interest becomes possessory.

Finally, most jurisdictions do not allow adverse possession against government land. Assume on the MBE that you cannot adversely possess property owned by the United States or a state unless the question indicates a specific statute to the contrary.

Scope of Title Acquired

An adverse possessor acquires only the interest that the true owner held and only to the extent actually possessed (subject to constructive possession under color of title):

• If the record owner had a life estate, the adverse possessor acquires that life estate, not a fee simple.
• If the possessor uses only part of a larger tract, and has no color of title, the possessor generally acquires only the part actually occupied or enclosed.
• If there are multiple owners (e.g., tenants in common), adverse possession without ouster is effective only against the world, not against co‑tenants.

Effect of Adverse Possession on Title

Once the statutory period is met and all elements are satisfied:

• The adverse possessor becomes the legal owner of the property (or of the portion actually possessed, unless constructive possession applies).
• The prior owner’s title is extinguished.
• Title is good against the former owner and the world, subject to recording and marketability issues.

However:

• Title acquired by adverse possession is not automatically marketable for purposes of a land sale. Unless and until a court quiets title, the risk of a competing claim remains.
• Any subsequent transfer by the adverse possessor must satisfy the Statute of Frauds (a written deed, signed by the grantor). Oral “reconveyances” back to the original owner are ineffective.

Worked Example 1.2

Oscar owned Greenacre, a five‑acre wooded parcel. In 2000, Penelope, mistakenly believing Greenacre was part of her adjacent property described in her deed, began clearing a one‑acre section of Greenacre along their boundary and built a small cabin there. She used the cabin for weekend retreats several times a year. Oscar never visited Greenacre and was unaware of Penelope's presence. The statutory period for adverse possession is 20 years. In 2021, can Penelope claim title to the one‑acre section?

Answer:
Yes, likely. Penelope's possession was actual (clearing, building cabin), exclusive (not shared with Oscar or the public), open and notorious (clearing and cabin are visible), hostile (without Oscar's permission, regardless of her mistaken belief—majority view), and continuous (seasonal use consistent with a weekend retreat cabin for over 20 years). She acquires title by adverse possession to the one‑acre portion she actually occupied. She does not, however, acquire title to the remaining four acres because she lacked actual possession and had no color of title extending to the larger tract.

Worked Example 1.3

In 2010, A entered vacant farmland owned by O and began farming 30 fenced acres. In 2015, A deeded “all my interest in the 30 acres I occupy” to B, who continued farming the same fenced area. O never acted. The statute of limitations for adverse possession is 10 years. In 2022, who owns the 30 acres?

Answer:
A’s possession from 2010–2015 (5 years) and B’s possession from 2015–2022 (7 years) may be tacked because there is privity—a voluntary conveyance by deed from A to B. Their combined period is 12 years, exceeding the 10‑year statute. If all other elements are satisfied, B now holds title to the 30 acres by adverse possession, and O’s title to that portion has been extinguished.

Worked Example 1.7

In 2000, O owned Blackacre. O’s daughter D moved into the house on Blackacre with O’s permission. In 2005, O moved away and stopped visiting. In 2006, D began telling friends that the property was now “hers,” but she never told O this and continued sending O holiday cards. D remained in possession, paying all taxes, until 2021. The statutory period is 15 years. Has D acquired title by adverse possession?

Answer:
No. D’s original entry was permissive. To become hostile, D had to clearly repudiate O’s ownership and communicate that repudiation to O or act in a way that would put a reasonable owner on notice. Her private statements to friends do not suffice. Without a clear repudiation communicated to O, her possession remains permissive, so the statutory period never begins to run.

Worked Example 1.8

In 2000, O, age 30 and mentally competent, owned a parcel in fee simple. In 2002, P entered adversely and met all adverse possession elements continuously thereafter. In 2005, O was adjudicated incompetent. The jurisdiction’s statute gives owners under a disability 10 years after the disability is removed to sue, but a disability must exist when adverse possession begins to toll the period. The normal period is 20 years. In 2023, O (still incompetent) sues P to eject him. Who prevails?

Answer:
P prevails. O was not disabled when P’s adverse possession began in 2002; the disability arose later in 2005 and therefore does not toll the statute. The 20‑year period ran from 2002 to 2022, at which point P acquired title by adverse possession and O’s title was extinguished. O’s later disability does not revive the extinguished title.

Deeds and Title Covenants

A deed is the legal instrument used to transfer title to real property. To be effective, it must be properly executed and delivered.

Key Term: Deed
A written instrument that satisfies the Statute of Frauds and is used to transfer an interest in real property from grantor to grantee.

Key Term: Delivery (of Deed)
The grantor’s intent that the deed presently transfer an interest in the property to the grantee. Physical handover is evidence of intent but is not required if intent is otherwise clear.

Deed Formalities

Unless a statute in the question says otherwise, the following formalities are required:

• Writing:

  • The deed must be in writing to satisfy the Statute of Frauds.

• Signature of the Grantor:

  • The grantor (the person conveying the interest) must sign.
  • The grantee’s signature is generally not required.

• Identification of the Parties:

  • The deed must identify the grantor and grantee with reasonable certainty. Any ambiguity that can be resolved by extrinsic evidence is usually acceptable.

• Description of the Property:

  • The deed must describe the land sufficiently to identify the property.
  • Precise surveyor’s metes and bounds are not always required; a street address or other reasonably definite description often suffices.
  • Ambiguities can sometimes be resolved with extrinsic evidence; if impossible, the deed may be void for uncertainty.

• Words of Present Intent to Convey:

  • The deed must contain operative words indicating a present intent to transfer an interest in realty (e.g., “grant,” “convey,” “give,” “sell”).
  • A promise to convey in the future is not enough; that is a contract to convey, not a deed.

• Consideration:

  • A deed does not need to recite consideration to be valid. “For love and affection” or even no stated consideration does not affect validity, though it may matter for some recording‑act issues.

Capacity and Void vs. Voidable Deeds

• A deed signed by a minor or an adjudicated incompetent is typically voidable, not automatically void; it can be avoided by the person with the disability.
• A forged deed is void and passes no title, even to a bona fide purchaser.
• A deed executed by someone under duress, undue influence, or fraud in the factum may be void or voidable depending on the circumstances.

On the MBE, if the facts describe an outright forgery, assume the deed is void and cannot pass good title, even under recording acts.

Delivery and Acceptance

• Delivery requires a present intent by the grantor that the deed be effective now.
  • Physical transfer to the grantee is strong evidence of delivery but not indispensable.
  • Words alone can suffice (“I hereby give you this property” with the deed lying on a desk).
• Acceptance by the grantee is required but is usually presumed if the conveyance is beneficial.

Delivery through Escrow

• Delivery may be made to a third party (escrow) with instructions to deliver to the grantee upon the occurrence of a condition (e.g., payment of the price).
  • If the condition is satisfied, delivery relates back to the date the deed was placed in escrow for many purposes.
  • If the grantor dies before the condition is met, most courts treat the deed as still effective when the condition is later fulfilled.

Conditional Delivery to Grantee vs. Third Party

• If the grantor hands the deed directly to the grantee but imposes an oral condition (“this will be yours only if you marry by next year”), most courts ignore the condition and treat delivery as presently effective; the grantor cannot contradict the clear written transfer with an oral condition.
• If the grantor hands the deed to a third party with a written condition, courts are more likely to honor the condition as part of an escrow arrangement.

“Deeds” Intended to Operate Only at Death

• If a grantor executes and delivers a deed but reserves a life estate (“to A, but possession to start at my death”), this is usually a valid present conveyance of a future interest in A.
• If the grantor’s intent is that the deed have no effect until death and retains control, the instrument may be treated instead as an invalid testamentary disposition unless it complies with will formalities.

Types of Deeds and Title Covenants

Deeds differ based on what promises (covenants for title) the grantor makes regarding the quality of title being transferred.

Key Term: Present Covenants
Covenants for title that are breached, if at all, at the moment the deed is delivered: seisin, right to convey, and against encumbrances.

Key Term: Future Covenants
Covenants for title that are breached, if at all, only when the grantee’s possession is disturbed in the future: quiet enjoyment, warranty, and further assurances.

Key Term: General Warranty Deed
A deed in which the grantor warrants against all defects in title, whether arising before or during the grantor’s period of ownership, and includes the six traditional covenants.

Key Term: Special Warranty Deed
A deed in which the grantor warrants only against defects in title that arose by, through, or under the grantor; defects created by prior owners are not covered.

Key Term: Quitclaim Deed
A deed that contains no covenants for title and conveys only whatever interest, if any, the grantor presently has.

1. General Warranty Deed

A general warranty deed provides the greatest protection. It typically contains six covenants:

• Present covenants (breached, if at all, at delivery):

  • Seisin: The grantor owns the estate they purport to convey.
  • Right to convey: The grantor has the power to make the conveyance (e.g., not under a disability, not subject to a restraint on alienation).
  • Against encumbrances: There are no encumbrances (mortgages, liens, easements, covenants, or significant encroachments) other than those disclosed in the deed.

• Future covenants (breached only upon interference with possession):

  • Quiet enjoyment: The grantee will not be disturbed in possession by a third party’s lawful claim of superior title.
  • Warranty: The grantor will defend the grantee against reasonable claims of title by third parties.
  • Further assurances: The grantor will do whatever is reasonably necessary in the future to perfect the grantee’s title (e.g., execute corrective deeds).

Important timing point:

• Present covenants are breached, if at all, when the deed is delivered. The statute of limitations begins to run then.
• Future covenants are breached when the grantee is actually or constructively evicted or otherwise lawfully disturbed in possession.

Many jurisdictions treat future covenants as running with the land, allowing remote grantees to sue. Present covenants are often limited to the immediate grantee, though some jurisdictions permit remote suits.

2. Special Warranty Deed

This deed usually contains the same six covenants, but they are limited to defects caused by the grantor. The grantor warrants:

• That they have not conveyed the estate to someone else, and
• That they have not encumbered the property during their ownership.

Defects created by prior owners are not covered.

3. Quitclaim Deed

A quitclaim deed contains no covenants for title. The grantor makes no promises about the state of title and transfers only whatever interest, if any, they have. If the grantor has nothing, the grantee takes nothing.

Quitclaim deeds are often used:

• To clear up potential clouds on title (e.g., to give up any possible interest).
• In intra-family transfers (e.g., in divorce settlements).
• In tax sales.

However, using a quitclaim deed does not allow a seller to avoid liability for fraud or misrepresentation. It simply means there are no contractual covenants for title in the deed itself.

Worked Example 1.4

Seller conveyed Blueacre to Buyer via a quitclaim deed. Buyer later discovered a properly recorded mortgage on Blueacre granted by a previous owner before Seller acquired the property. Does Buyer have a claim against Seller based on the deed?

Answer:
No. A quitclaim deed contains no covenants for title. Seller transferred only whatever interest Seller had, subject to all existing defects and encumbrances. Because the mortgage was a preexisting encumbrance and no covenants were made, Buyer has no claim under the deed. Buyer might have other claims (e.g., fraud) if Seller knowingly misrepresented that title was free of encumbrances, but there is no covenant‑based claim.

Breach of Covenants and Remedies

• Present covenants are breached at delivery if title is defective (for example, the grantor does not actually own the full estate or there is an undisclosed easement).
• Future covenants are breached only when a third party lawfully asserts superior title or otherwise lawfully disturbs the grantee’s possession (e.g., by winning an ejectment suit).

Typical remedy:

• Damages, often measured by:
  • The purchase price (sometimes with interest) if there is total failure of title, or
  • The cost of removing the encumbrance or the diminution in value caused by the defect, if partial.

Specific performance is generally not available for breach of title covenants; deeds are documents of completed conveyance.

Worked Example 1.9

Grantor conveys by general warranty deed “Blackacre, a 10‑acre parcel” to Grantee for $200,000. Unknown to Grantor and Grantee, a prior deed correctly conveyed 2 of the 10 acres to Neighbor years earlier. Neighbor sues Grantee and successfully ejects Grantee from the 2‑acre portion. Grantee then sues Grantor for breach of covenant against encumbrances and of general warranty. What damages are appropriate?

Answer:
There is a partial failure of title as to 2 of the 10 acres. Grantor has breached the covenant of seisin, the covenant against encumbrances, and the future covenants of warranty and quiet enjoyment. Damages are generally the lesser of (1) the proportionate part of the purchase price allocated to the 2 acres (here, 2/10 of $200,000 =$40,000) plus interest, or (2) the difference in value between the land as warranted and as actually conveyed. On the MBE, unless told otherwise, use the proportionate purchase‑price measure.

Estoppel by Deed

Key Term: Estoppel by Deed
The doctrine that if a grantor conveys property they do not own, but later acquires valid title, that after‑acquired title automatically passes to the earlier grantee, and the grantor is estopped from denying the validity of the prior conveyance.

Key Term: After-Acquired Title
Title that a grantor obtains after purporting to convey an interest in property they did not own at the time of the original conveyance.

Estoppel by deed arises when:

• A grantor purports to convey an interest in land that the grantor does not yet own, typically by a warranty deed or other deed containing covenants; and
• The grantor later acquires the title they purported to convey.

In that situation:

• The subsequently acquired title automatically benefits the prior grantee.
• The grantor is “estopped” from denying that the earlier deed was effective.

This doctrine is most clearly applied where:

• The original deed is a warranty deed or a grant deed (which generally implies some title warranties), because covenants of seisin and right to convey are implicated.
• A quitclaim deed, by contrast, usually does not give rise to estoppel by deed because the grantor only conveys whatever interest they have at the time and makes no promise of ownership.

Interaction with recording acts:

• If the grantor later conveys to a bona fide purchaser who records first, some recording statutes protect the later purchaser over the earlier grantee, despite estoppel by deed.
• In a notice jurisdiction, a later bona fide purchaser without notice can prevail if the earlier grantee did not record or otherwise give notice.
• In a race‑notice jurisdiction, the later bona fide purchaser must also record first.

On the MBE, pay close attention to:

• The type of deed used in the first conveyance.
• Whether the first grantee recorded.
• The kind of recording statute in place.

Worked Example 1.5

In 2015, O owned Blackacre. In 2016, X (who owned nothing) conveyed Blackacre to B by general warranty deed, and B promptly recorded. In 2018, O conveyed Blackacre to X by valid deed, and X recorded. In 2019, X conveyed Blackacre to C, a bona fide purchaser without notice of B’s deed, and C recorded. The jurisdiction has a notice recording statute. Who owns Blackacre?

Answer:
Under estoppel by deed, when X acquired title from O in 2018, that title automatically passed to B because X had previously conveyed Blackacre to B by general warranty deed. Thus, X had nothing to convey to C in 2019. Although C is a bona fide purchaser, under a pure notice statute a subsequent purchaser can prevail only if the grantor had title to convey. Because X’s after‑acquired title had already passed to B by estoppel, X’s deed to C was a nullity. B owns Blackacre.

Worked Example 1.10

Same facts as Worked Example 1.5, except: (i) X’s 2016 deed to B was a quitclaim deed rather than a general warranty deed, and (ii) B did not record. In 2018, O conveys Blackacre to X, who records. In 2019, X conveys by warranty deed to C, a bona fide purchaser who records. The jurisdiction has a race‑notice statute. Who prevails between B and C?

Answer:
Because X’s 2016 deed to B was a quitclaim deed, X did not represent that it owned Blackacre and did not covenant seisin or right to convey. Many courts would refuse to apply estoppel by deed in favor of B in this setting. Even if estoppel by deed might conceptually apply, B failed to record. Under a race‑notice statute, C prevails if C is a bona fide purchaser without notice and records first. Here, C had no notice of B’s interest (B had not recorded) and recorded before B. C therefore takes title, and B loses, both because estoppel by deed is weak or inapplicable with a quitclaim and because the recording act protects C.

Key Point Checklist

This article has covered the following key knowledge points:

• Title refers to the legal right to possess real property; deeds and public records are the instruments that evidence and transfer title.
• Every land sale contract contains an implied covenant that the seller will deliver marketable title at closing—title reasonably free from doubt and the risk of litigation.
• Defects rendering title unmarketable include serious chain of title problems, undisclosed encumbrances (mortgages, liens, easements, restrictive covenants, unexpired leases), significant encroachments, and existing violations of zoning or building codes.
• Zoning and other public regulations by themselves do not make title unmarketable; existing violations do.
• The buyer must notify the seller of title defects and allow a reasonable time to cure. If defects remain at closing, the buyer may rescind, seek damages, or pursue specific performance with abatement.
• The covenant of marketable title applies only until closing; after delivery and acceptance of the deed, contract promises merge into the deed, and the buyer’s remedies are based on deed covenants and fraud theories.
• Adverse possession requires actual, exclusive, open and notorious, hostile, and continuous possession for the statutory period. Permission defeats hostility, and co‑tenants must be ousted for possession to be adverse as to them.
• Tacking allows successive adverse possessors to combine their time if there is privity between them, and the statute generally does not run against future interest holders until their interests become possessory.
• Disabilities can toll the statute of limitations for adverse possession, but only if they exist when adverse possession begins. Government land is generally not subject to adverse possession on the MBE.
• Title acquired by adverse possession is valid between the parties but is not automatically marketable for purposes of a sale; a quiet title action or long‑standing recognition is often required.
• A valid deed requires a writing, grantor’s signature, identification of the parties and property, words of present intent to convey, and proper delivery and acceptance.
• Delivery is about the grantor’s present intent that the deed take effect; physical transfer is helpful but not indispensable. Delivery through escrow is valid if conditions are met; oral conditions attached to a deed delivered directly to the grantee are usually ignored.
• Deeds differ by the covenants for title they contain: general warranty deeds provide the broadest protection, special warranty deeds cover only the grantor’s own acts, and quitclaim deeds contain no covenants.
• Present covenants (seisin, right to convey, against encumbrances) are breached at delivery; future covenants (quiet enjoyment, warranty, further assurances) are breached only upon later interference and often run with the land to remote grantees.
• Under estoppel by deed, if a grantor conveys land they do not own but later acquires valid title, that title passes automatically to the earlier grantee (for deeds with title warranties), and the grantor is estopped from asserting otherwise.
• Recording acts can modify the outcome of estoppel by deed disputes when a later bona fide purchaser records first, especially in notice and race‑notice jurisdictions.
• A bona fide purchaser for value without notice is often protected against prior unrecorded interests under recording statutes, but cannot take better title than the grantor had when estoppel by deed has already shifted after‑acquired title.

Key Terms and Concepts

• Adverse Possession
• After-Acquired Title
• Bona Fide Purchaser (for Value Without Notice)
• Chain of Title
• Color of Title
• Constructive Adverse Possession
• Continuous Possession
• Deed
• Delivery (of Deed)
• Encumbrance
• Estoppel by Deed
• Future Covenants
• General Warranty Deed
• Hostile Possession (Claim of Right)
• Marketable Title
• Merger (of Contract into Deed)
• Ouster
• Present Covenants
• Privity (for Adverse Possession)
• Quiet Title Action
• Quitclaim Deed
• Special Warranty Deed
• Tacking
• Title
• Zoning vs. Zoning Violation