Florida Quit Claim Deed Requirements

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Florida Quit Claim Deed Requirements Powered By Docstoc
					              STATUTES OF LIMITATION
                      AND OTHER CURATIVE STATUTES

The Marketable Record Title Act was adopted by the Florida Legislature in 1963. The
purpose of the Act is to extinguish ancient defects and stale claims against the title to real
property and make titles to real property more secure. The Act accomplished this by
declaring as marketable record title any estate or interest in land reflected by a recorded
chain of title for thirty years or more (Florida Statute 712.02), and it extinguishes, subject
to certain enumerated exceptions (Florida Statute 712.03), all interests which are older
than the root of title. The Act further provides that a title which has fulfilled the
requirements of a marketable record title and has avoided all the statutory exceptions
"shall be free and clear of all estates, interests, claims or charges whatsoever" which
depend on title transactions and events which "occurred prior to the effective date of the
root of title" (Florida Statute 712.04).

The term "root of title" is defined as the last title transaction which creates or transfers the
estate and which has been recorded for at least thirty years prior to the time when
marketability is being determined.

"Title transaction" is defined as any recorded instrument of court proceeding which
affects title to any estate or interest in land.

Note that a root of title does not have to be a deed. It can be "any recorded instrument" or
a "court proceeding" such as a probate, for example. But, be careful of quit-claim deeds,
as noted below.

The Act has the effect of a quiet title action in curing defects appearing in that part of the
title lying beyond the root of title, unless the claim is preserved by the filing of a notice,
or one of the exceptions to the Act applies.

The following Title Standards state the nature and purpose of the Act.

                               TITLE STANDARD 17.2

A marketable record title to an estate in land exists, subject to the specific exceptions of
the Act, when a person, alone or together with predecessors in title, has been vested with
such estate of record for thirty years or more and nothing of record purports to divest the
person of the estate.

                               TITLE STANDARD 17.3

All estates, interests, claims or charges whatsoever, the existence of which depends upon
any act, title transaction, event or omission that occurred prior to the effective date of the
root of title, are extinguished by the Act unless they are disclosed by or are defects
inherent in the muniments of title beginning with the root of title, provided no other
exception to the Act is applicable.

                                 TITLE STANDARD 17.4

Estates, interests, claims, or charges may be protected from the operation of the Act by
the filing of proper notice.

                                TITLE STANDARD 17.9

The Act can be relied upon to eliminate outstanding inchoate dower in real property
arising out of title transactions prior to the root of title, unless notice is filed during the
30-year period immediately following the effective date of the root of title.

                                TITLE STANDARD 17.10

The Act can be relied upon to defeat a claim of homestead against a conveyance recorded
prior to the root of title, unless claimant files a notice within the 30-year period after the
effective date of the root of title.

                                TITLE STANDARD 17.11

The chain of title should be examined as before the Act and any imperfection of title
considered to determine whether it is eliminated by the Act.

Although the Act appears to cut off a great many interests, the exceptions to the Act must
be considered. (Florida Statute 712.03).

Some of the exceptions are illustrated by the follo wing Title Standards:

                                TITLE STANDARD 17.5

The Act does not affect or extinguish the rights of any person in possession of the land.

                                TITLE STANDARD 17.6

The Act does not affect or extinguish estates, interests, claims or charges arising out of a
title transaction recorded subsequent to the recording of the root of title.

                                TITLE STANDARD 17.7

The Act does not affect or extinguish the rights of any person in whose name the land is
assessed for the period of time the land is so assessed and three years therea fter.

                                TITLE STANDARD 17.8
The Act does not affect any right, title or interest of the United States or Florida reserved
in the patent or deed by which the United States or Florida parted with title.

Further exceptions to the Act are as follows: (See Florida Statute 712.03).

       1. Estates or interests, easements and use restrictions disclosed by the root
       of title and defects inherent in the title arising after the root of title
       (reference to those interests in the muniments of title must be specific
       rather than general).

       2. Estates or interests preserved by the filing of a proper notice.

       3. Recorded or unrecorded easements, including those of a public utility or
       governmental agency, as long as they are used, even in part.

       4. State's title to lands beneath navigable waters acquired by virtue of its
       sovereignty. (Since 1978)

Thus you can see there are some significant exceptions to the Act which limit its effect as
a curative statute. This means, for our purposes, that there will be things prior to the root
of title which are not eliminated by the Act and for which a search must be made.

Some further points to consider in connection with the Act are as follows:

       1. A quit-claim deed does not qualify as a root of title. If the quit-claim
       deed only purports to transfer whatever interest the Grantor may have had
       in the land without specifying the exact interest the Grantor was
       attempting to convey, it won't qualify as a root of title. See Wilson v.
       Kelley, 226 So.2d 123 (Fla. 1969). If the quit-claim deed, however,
       conveys a specific interest of the Grantor, it may qualify.

       2. There is some authority for the proposition that wild deed may
       constitute a root of title. See City of Miami v. St. Joe Paper Company, 364
       So.2d 439 (Fla. 1978). This same case held that a city is not an agency of
       the State in the application of the provisions of the Act.

       3. The Act does not define marketability. The Act does not create a title
       which is marketable in the commercial sense. A marketable title under the
       Act exists when any person having the legal capacity to own land, or his
       predecessors, has been vested with any estate in land of record for 30
       years or more. This title is free of all claims except the matters set forth as
       exceptions to the Act. (See Florida Statute 712.02 and 712.03).

       4. The Act will not eliminate a mineral reservation prior to a root of title.
       It has been recognized in Florida that there can be two estates in land--the
       mineral estate and the surface estate. See P & N Investment Corp. v.
       Florida Ranchettes, Inc., 220 So.2d 451 (Fla. 1968). An owner of the
       mineral estate does not have to file a statutory notice to preserve this
       interest.

               NOTE: However, that rights of entry or an easement for
               mining, drilling, exploring, or developing for oil, gas,
               minerals or fissionable materials come under the
               Marketable Title Act. See Florida Statute 704.05.

       5. The Act may be used to eliminate old restrictions and reverter clauses
       prior to the root of title. Thus, where there is a warranty deed of record for
       more than 30 years which was placed of record subsequent to the last deed
       imposing or making specific reference to the restrictions and reverter and
       they are not on the plat according to which the property was described, the
       restrictions and reverter are eliminated provided no claim has been filed as
       allowed by Florida Statute 712.05 or is protected by 712.03(2). But,
       caution should be used in applying this to policies for large amounts.

       6. If a false or fictitious claim is asserted by the filing of notice pursuant to
       the Act, the prevailing party may be entitled to costs and attorney fees
       arising out of any action related thereto and damages sustained as a result
       of the filing of such notice. Florida Statute 712.08.

                                CURATIVE STATUTES

1. MORTGAGES

Florida Statutes 95.281 provides that the lien of a mortgage terminates five (5) years after
the date of maturity if the final maturity date is ascertainable from its face or, if the final
maturity date is not ascertainable from its face, twenty (20) years after the date of the
mortgage.

Note that the statute provides that the parties may execute an extension agreement which
will keep the statute from running, Note also that the statute does not apply to the
mortgages executed by railroads or other public utility companies.

We will rely on this statute where it is impossible for us to obtain a satisfaction. Get an
affidavit that there have been no extensions. If we are able to obtain a satisfaction of the
mortgage, this is always preferable to relying on the statute.

2. HEIRS

Florida Statute 95.22 perfects a conveyance by persons purporting in the deed to be all
the heirs of a decedent conveying the entire interest of the decedent after seven (7) years
from the record of the conveyance against other possible heirs or devisees whose names
did not appear of record under the will of the decedent or in proceedings in an
administration of the estate.

Note that the statute does not apply to persons whose names appear of record in estate
proceedings.

                           SEE TITLE STANDARD 5.15:

       WHERE A DEED WHICH CONTAINS A RECITAL THAT THE
       GRANTORS ARE THE SOLE AND ONLY HEIRS OF A NAMED
       DECEDENT, HAS BEEN OF RECORD FOR MORE THAN SEVEN
       YEARS, SUCH RECITAL MAY BE ACCEPTED AS SUFFICIENT TO
       ESTABLISH THE TRUTH OF THE RECITAL IN THE ABSENCE OF
       EVIDENCE OR INFORMATION TO THE CONTRARY.

3. NAME VARIANCES IN CORPORATE CONVEYANCES

Florida Statutes 694.12 provides that in case of the misnomer of a corporation in a deed
or mortgage or written contract by omitting or adding a word or misspelling any part of
the name of said corporation, if there is enough expressed to show that there is such an
artificial being and to distinguished it from all others, the corporation name is sufficient.

                           SEE TITLE STANDARD 10.6:

       CORPORATIONS ARE SATISFACTORILY IDENTIFIED
       ALTHOUGH THEIR NAMES ARE INCORRECTLY SET OUT OR
       VARIANCES EXIST FROM INSTRUMENT TO INSTRUMENT DUE
       TO THE OMISSION, ADDITION OR MISSPELLING OF ANY PART
       OF THE CORPORATE NAME IF THE IDENTITY OF THE
       CORPORATION PLAINLY APPEARS FROM THE CONTENTS OF
       THE INSTRUMENT. AFFIDAVITS AND RECITALS OF IDENTITY
       MAY BE USED AND RELIED UPON TO OBVIATE VARIANCES
       TOO SUBSTANTIAL OR TOO SIGNIFICANT TO BE IGNORED.

4. DISSOLVED FOREIGN CORPORATIONS:

Florida Statute 692.03 purports to validate conveyances by surviving directors or trustees
of dissolved foreign corporations which have been of record for at least seven (7) years.

The Company is willing to insure against the adverse matters discussed at paragraphs 1,
2, 3, 4 and 6. The form of the coverage will vary, so contact the underwriting office for
your area of the state. Until Marketable Record Title Act would have extinguished the
matter, the matter must be reflected in Schedule B and insured against.

5. LIMITATIONS ON CONTRACTS OF RECORD:
There are several statutes which bar the enforcement of old contracts.

Florida Statutes 95.35 bars the enforcement of a contract made before July 1, 1972 in
which the final maturity of the obligation is not ascertainable from the record of the
contract and there is no deed to or judgment in favor of the purchaser of record and the
purchaser is not in possession.

Present Florida Statute 95.11 is a general statute of limitations covering written contracts
or other obligations which contain a definite maturity date. This section bars enforcement
of a written contract five (5) years after maturity. However, we should be careful in
applying this statute because there may be cases where it does not apply. Thus, the statute
of limitations may not run if the person against whom the right of action exists is absent
from the state, is incompetent or conceals himself to avoid service of process or makes a
part payment. See Florida Statute 95.05.

In general, if we know of the existence of a recent purchase contract whether recorded or
not, we should inquire as to the status of the vendee and obtain a release or quit-claim
from the vendee rather than rely on the statutes of limitation. Remember that the contact
vendee may also be in possession. The vendee may have obtained an equitable interest in
the property which must be terminated. Further, do not rely on representations made
solely by the vendor that the contract has been terminated.

6. DEFECTS IN ACKNOWLEDGMENT:

There are several statutes which deal with defects in acknowledgments, lack of seals or
witnesses.

       Florida Statutes 95.231 provides that such defects are cured five (5) years
       after the recording of the deed in the absence of fraud, adverse possession
       or pending litigation.

       A better statute to rely on is Florida Statute 694.08 which provides that
       defects in acknowledgments are cured where the deed has been on record
       for seven (7) years and there has been a subsequent conveyance and no
       apparent fraud, adverse possession or pending litigation.

       Florida Statute 695.05 provides that corporate conveyances or mortgages
       which are acknowledged by an officer or stockholder or other person
       interested in the corporation shall not be invalid. This statute is an
       exception to the rule than an instrument may not be notarized by a party in
       interest such as a grantor or grantee. There do not, however, appear to be
       many cases upholding this statute.

       Florida Statute 695.06 provides that an ACKNOWLEDGMENT is not
       defective if it was not taken in the place as stated in the venue of the
       ACKNOWLEDGMENT.
7. DEEDS ON RECORD FOR 20 YEARS:

Florida Statute 95.231(2) provides that after twenty (20) years from the recording of a
deed no claim may be asserted against the takers under the deed. We are reluctant to rely
on this statute since there have been cases which limit its application. There are many
situations where the statute will not apply.

There is one instance, however, where we can rely on this statute and that is where a tax
deed has been of record for twenty (20) years.

                          SEE TITLE STANDARD 15.1:

       A TITLE BASED UPON A TAX DEED ISSUED BY THE CLERK OF
       THE CIRCUIT COURT IS MARKETABLE IF IT AFFIRMATIVELY
       APPEARS THAT: (1) THE TAX DEED HAS BEEN OF RECORD FOR
       MORE THAN 20 YEARS: (2) THE TAXES HAVE BEEN PAID BY
       THE TAX DEED GRANTEE, OR SUCCESSORS, FOR THAT PERIOD
       OF TIME: (3) SUBSEQUENT TO THE TAX DEED THERE HAS BEEN
       NO ADVERSE CLAIM ASSERTED OF RECORD AND NO
       POSSESSION ADVERSE TO THE TAX DEED GRANTEE, OR
       SUCCESSORS: (4) THE TAXES FOR WHICH THE TAX DEED WAS
       ISSUED HAD NOT BEEN PAID BEFORE THE EXECUTION OR
       ISSUANCE OF THE TAX DEED.

				
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