how to clear a title defect when a deed is recorded before a power of attorney

You only need to correct the deed before it is signed and recorded. There are two ways to do this: If you need to make a minor textual change (such as correcting a legal description or a spelling), the best choice is to open the document in word processing software and change the erroneous text.

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What if there is a defect in the title to my property?

Jun 02, 2015 · The first stop in the title process is doing the title search at the county recorder’s office. This office records all real estate transactions. The original title information will be housed here and will clearly show the true owner(s) of the property. If this does not show who the clear …

How do you clear a title after discovery?

The requirements essentially are: [1] the property is legally described; [2] the docket and page or recording number of the underlying encumbrance is recited in the recorded document; [3] the document contains language that releases the mortgage or deed of trust and revests in the …

What is a defect in a deed?

Dec 05, 2021 · In this article, we look at the most common title defects, and how to solve them. Every property has a potential for errors in title. Every property has a history of owners. That history is called an ownership chain, or more often, a title chain. When a link in the chain has a …

What happens if you don't record a deed?

Nov 05, 2019 · The first step is to examine the property records. Was the easement recorded in the county? Is the easement evident in the title commitment, notifying the buyer that the issue …

Which type of deed is used to clear up title defects?

What is reformation of a deed?

What document shows legal alienation of a property?

Which document is used to protect the buyer from title defects after closing?

What does rescind mean in real estate?

Is reformation a cause of action?

What does convey title mean?

What is an abstract of the title?

Who is responsible for knowing the condition of a title?

Which of the following is a title defect?

What does a defective title mean?

Which of the following is commonly accepted as the best evidence of marketable title?

What is full repayment of a loan secured by a recorded deed to secure debt?

A full repayment of a loan secured by a recorded deed to secure debt will itself operate to cancel the underlying encumbrance. Implicit in ARS§33-707 is that once creditor receives full satisfaction, it will record a sufficient release or satisfaction of mortgage or deed of release and reconveyance of the deed of trust.

How to determine intent of a deed?

The intent can be determined by the words in the instrument, by words in other instruments from a common grantor, by maps filed by the common grantor, by the actions of the grantor and grantee after the delivery of the deed, by the economic reasonableness of the transaction viewed from both perspectives with all reasonable interpretations of the words in the deed and from current testimony of the parties as to intent, so long as such testimony does not contradict either the actual language used or attempt to give lie to the conduct of the parties after the delivery of the deed.

How long does a lien for child support last?

Except for judgment liens for child support and spousal support, a judgment lien becomes dormant after five years. Under ARS§25-516, however, a lien for child support trumped by previously filed security agreements [deed of trust, mortgages, etc.] created by the property owner and previously recorded or filed.

How long does a lien stay on a property in Arizona?

A judgment lien in Arizona will remain attached to the debtor’s property (even if the property changes hands), except for homestead property if it is the debtor’s primary residence, for five years. ARS§33-964. The lien is automatic upon judgment, except for a judgment from small claims court. A simple affidavit of renewal can be completed and docketed the county recorder’s office to extend the judgment lien for another 5 years. ARS§12-1613. Except for judgment liens for child support and spousal support, a judgment lien becomes dormant after five years. Under ARS§25-516, however, a lien for child support trumped by previously filed security agreements [deed of trust, mortgages, etc.] created by the property owner and previously recorded or filed. The holder of a debt secured by real property may record a release of the lien on the real property which secures the debt, but immediately on the payment or satisfaction of the judgment, shall be discharged of record by the judgment creditor or the judgment creditor’s attorney by recording a satisfaction of judgment with the county recorder of the county in which the judgment is recorded. The judgment creditor or the judgment creditor’s attorney shall enter a notation of satisfaction on the docket of the clerk of the superior court of each county in which the judgment has been entered or docketed, and in a like manner enter a notation of satisfaction on the docket of the clerk of the United States district court. ARS§33-964 (c)

How to discharge a mortgage?

Methods include: discharge by the recording of a satisfaction of the mortgage removing the realty from the lien of the mortgage by recording a release; discharge by court order; and, in some limited cases, discharge by a filing by a third party, such as a title insurer, a court-appointed personal representative, or an affidavit executed by an attorney at law or attorney in fact.

What is a court order under 33-713?

2. Resolving Description Errors, Survey and Boundary Disputes.

Who should contact the lienholder?

In any event, the attorney should contact the lienholder shown in the public lien records, confirm the applicable payment amount (including interest), and make the applicable payment (and retain evidence of such payment). Thereafter, the lienholder is required by law to cancel the lien and recording the release of the cancelled lien with the clerk of the superior court with whom the lien was originally filed. See, e.g., ARS§42-18152. As a practical matter, the attorney should coordinate the lien release as between the two parties and not rely upon the lienor to do so.

What happens if you don't sign a corrected deed?

A quiet title requires bringing a lawsuit and obtaining a judgement from the court . Once the judgement is obtained and recorded, the title company can proceed with closing escrow.

What if you are unable to clear title problems?

What if you are unable to clear the title problems? You may need to look to alternative ways of selling your home, while fully disclosing the title defects.

How long do judgment liens last in California?

Judgement liens in California last ten years, and can be renewed and last even longer. A recorded Abstract of Judgment and judgement lien stay with the property even if the property is sold to another party. Some creditors have been known to wait several years until the debtor shows any assets before recording their Abstract of Judgment. For these and other reasons, during a title company or closing attorney’s underwriting process, the name of each party in the sale of the home is examined for potential judgement liens that would need to be paid.

What happens if a seller sells a property with a Lis Pendens?

If a seller sold a property with a lis pendens, the new owner becomes responsible for the lis pendens’ claim. This is why title searches are so important for buyers. Title searches by your title company verify that there are no legal filings against the property, or the seller.

What happens if you sell your home without title insurance?

If a home is sold without title insurance, or transferred with a quitclaim deed, the new owner could be in for trouble. A typical escrow transaction involves title insurance and either a grant deed or a warranty deed. Both of these deeds guarantee the person signing has not transferred the property and that they are the owner. However, a quitclaim deed makes no guarantees . What if all of the heirs of an estate have not signed the quitclaim deed? The new owner may end up being co-owners with a missing heir. The missing heir may even sell their ownership rights to another party years later. In either case, you could end up being an ownership partner with people you don’t even know.

What does a preliminary title report reveal?

During escrow, your preliminary title report will reveal all encumbrances discovered. It’s important to read your title report as it will tell you what encumbrances stay with the property after closing.

What is a void deed?

There are certain legal requirements for transferring title. Deeds that do not meet the legal requirements are called “void deeds”. In order for a property deed to be legally transferred, the following criteria must be met.

How to fix title defects?

Improper descriptions of the property in the deed can be fixed by asking a court to reform, or modify, the terms of the deed. Mortgages can be “cleared” by the owner obtaining a document known as a “release of mortgage,” and then recording that document with the land records office.

What is a defect in a deed?

A mistake in the description of the property in the deed: A deed must accurately describe the property’s boundaries. If the deed does not sufficiently identify a piece of property, or inaccurately describes a piece of property, there is a defect in the title.

What happens if the owner of a property is sued?

In the lawsuit, the owner will present evidence that their claim to the property is superior to that of a lienholder or holder or a mortgage or whomever else is claiming an interest. The judge will review the evidence and make a decision. If the owner is successful, the owner will receive an order, called a declaration, from the judge. The order will state that the owner is the lawful owner of the property. The owner should make sure this order is recorded, so others are put on notice of their ownership.

How can a mortgage be cleared?

Mortgages can be “cleared” by the owner obtaining a document known as a “release of mortgage,” and then recording that document with the land records office. Not all title defects can be easily cured, or remedied. When ownership of property is disputed, the person claiming ownership may have to file a lawsuit in court.

What are the different types of title defects?

The following types of title defects exist: A superior claim to ownership by another person or entity: A creditor, which is someone to whom an owner owes a money judgment, may have a superior claim to someone seeking to purchase a piece of property . A creditor protects their interest in the property by filing what is known as a lien in ...

What is a title search?

Individuals seeking to sell real property to others should conduct what is called a title search, before attempting to sell the property. A title search is typically conducted by a company known as a title company. When the employee of the title company conducts the search, that person will go to the county land recording office to review deeds ...

What does it mean to have a valid title?

The phrase to have “valid title” to property means that a person has the exclusive legal right to own and use a piece of property. For a title to be valid, that title must be free of defects. If a title is defective, a seller of the property may be required to “clear title,” or remedy title defects, before the seller completes the sale ...

How long does title insurance last?

As a general rule, title insurance lasts as long as the buyer and the buyer’s heirs hold the property.

Who is at fault for agreeing to an easement?

The seller may be at fault for agreeing to, but not disclosing, an easement.

What does an attorney do with easements?

An attorney experienced with easements will ask questions the buyer might not have anticipated.

What is title insurance?

Title insurance covers the policy holder against loss related to these various defects in title. Other examples of title defects include undisclosed restrictive covenants on the property, documents recorded with mistakes, and fraudulent or otherwise invalid transactions in the chain of title. A good title insurance policy protects ...

Can a title company argue against a claim?

To the buyer, a claim can appear straightforward. Yet the title company may have arguments against the claim, based in its interpretation of contract law. There is also the matter of who pays additional costs of addressing the easement. For example, the title company may send a survey company to the home to examine the easement.

Can you hire an attorney to help with an easement?

Once the surprised homeowners know whether they’re dealing with a recorded or unre corded easement, they can hire an attorney to advise them. Legal representation can be pivotal in bringing about a fair outcome. This is true even if the buyer never steps into court. To the buyer, a claim can appear straightforward.

What happens when a title holder fails to pay property tax?

When the title holder fails to make these payments, the governing authority will place a lien on the property in an effort to recoup the money owed.

What is title defect?

A title defect refers to any potential threat to a current owner’s full right or claim to sell a property. The property has a publicly-recorded issue, like a lien, mortgage or judgment that gives another party a claim to the property.

What happens when a homebuyer takes out a mortgage loan?

If a homebuyer takes out a mortgage loan to pay for their home, the lender has a lien on the property and may foreclose on the borrower if they fail to meet the terms of the loan. To protect their interest in the property, lenders require title insurance. A title search will reveal any defects affecting the property.

What does a title search reveal?

A title search will reveal any defects affecting the property. Many lenders will also require a borrower to pay for the property taxes as part of their escrow payments, so they don’t lose their lien priority to another entity like the county tax collector.

Why isn't my lien release recorded?

Some reasons a lien release may not be recorded include: Some title agents or attorneys may issue a new title insurance policy before checking that all documents listed in the title commitment have had the subsequent releases properly recorded with the county.

What is title in law?

Title is like a bundle of sticks that can be divided, tied up, and given away in a variety of ways to different parties. Each stick represents a type of right. These rights can include the right of possession, the right of control, the right of exclusion, the right of enjoyment and the right of disposition.

How to avoid title issues?

Many of these title issues can be avoided by adhering to a post-closing process that ensures all documents are properly recorded.

What to do if a grantor is not available to sign a deed?

If the original grantor is not available to sign a correction deed, an affidavit of correction or scrivener’s affidavit might be the best option.

Why is it important to record a correction in a deed?

Errors in a deed may create uncertainty about the title and cause problems when the current owner tries to transfer the property at a later point . Executing and recording a correction document is an easy way to prevent this.

What is corrective deed?

A corrective deed is commonly used for minor mistakes, sometimes referred to as non-material changes. Examples of those are typographical errors, such as misspelled or incomplete names, missing or wrong middle initials, and omission of marital status, spouse’s signature, or vesting information.

What is material error?

Procedures for resolving more substantive defects, sometimes called material errors, vary among states, especially when such a correction constitutes a change in the legal description or the addition or removal of a name.

Why is it important to keep records of a chain of title?

In conclusion, it is important that the records reflect the facts on the ground and contain accurate information in order to maintain a clear chain of title. Even a minor error or missing initial can call into doubt the identity of a title holder and warrant correction.

Can you amend a deed?

It is possible, however, to amend that record by adding a newly executed deed, usually called correct ion or correct ive deed, deed of correction, or deed of confirmation.

Do you need a quit claim deed?

Some states allow a corrective instrument to address these flaws, but others require a new deed of conveyance, often a quit claim deed, for material changes to a deed. Changes affecting the legal description of a property are often sensitive in nature.

How to resolve a title dispute?

First the property owner may send a demand letter. Should that prove ineffective the property owner may file a Quiet Title lawsuit – possibly combined with other lawsuit claims.

What happens if a defendant does not return a quit claim deed?

If this twenty day letter is sent and the Defendant does not return the signed Quit Claim Deed, then the Plaintiff is protected from an award of costs in favor of the defendant and the Court may award the Plaintiff in addition to ordinary costs, some or all of the Plaintiff’s attorney’s fees should a lawsuit be needed to resolve the issues.

What is a non consensual lien?

A.R.S. § 33-421 (a) provides as follows: "A non consensual lien, other than a lien recorded by a governmental entity or political subdivision or agency, a valid ly licensed utility or water delivery company, a mechanics liens claimant or an entity created under covenants, conditions, restrictions or declarations effecting real property shall not be recorded unless the lien is accompanied by an order or judgment from the court of competent jurisdiction author izing the filing of lien ."

What happens if a third party receives an interest in the property after the Lis Pendens has been

If a third party receives an interest in the real property after the Lis Pendens has been filed, that third party’s interest in the real property would be subject to the outcome of the Quiet Title lawsuit.

Why is a quiet title important?

Why is a Quiet Title useful? A Quiet Title lawsuit can be useful to a property owner in a number of different situations. It can be used to remove defects to the title that show up by way of recorded instruments such as mechanics liens, judgments and lis pendens. In addition, Quiet Title actions can be used to remove unrecorded claims as well.

What does a plaintiff need to prove in a lawsuit?

The Plaintiff, the person filing the lawsuit, will need to prove why he or she is entitled to clear title under A.R.S. § 12-1102. The Plaintiff’s complaint must be under oath, set forth the Plaintiff’s interest in the estate, describe the real property concerned and detail what claims the Defendant is making to the real property which are adverse to the Plaintiff’s interest.

What is quiet title?

In addition, Quiet Title actions can be used to remove unrecorded claims as well. These types of title problems include, but are not limited to, constructive trust claims and adverse possession claims. While a quiet title lawsuit can be an invaluable tool in eliminating title defect issues on real property, it is not without risk to the Plaintiff.

What is a quit claim deed?

Many title issues can be resolved by filing one of three common documents: • A quit claim deed removes an heir and clears up title among co-owners or spouses.

How long does a title company look for?

The title company will examine public records — often going back 50 years or more — to look for past deeds, wills, trusts, divorce decrees, bankruptcy filings, court judgments and tax records that may be defective or outstanding.

How long does it take for a lien to be resolved?

If the seller is not aware that a lien or other encumbrance is attached to the property, it can take days — or weeks — to resolve the problem.

What is mechanic's lien?

They are liens placed against a property that a general contractor — or anyone who provides services to improve the property — files before starting the work. It’s a way to ensure that they will get paid; the lien is supposed to be released when the job is done.

What is title insurance?

A title insurance policy will be your best protection against those and many other title problems that may become known after you close on your transaction. The cost for the policy is a one-time fee, and the policy will remain in effect for as long as you own the property.

Can bankruptcy cause a title issue?

Bankruptcies are another source for potential title issues. For example, a seller could have bought a house while single, and then married someone with a recent bankruptcy. The title company would need to be sure not only that the new spouse had signed off on the deed, but that the bankruptcy case had been discharged.

Can a co-owner be found if the owner can't be found?

The seller may have inherited the property from a trust and be unaware that one of the beneficiaries or co-owners now lives overseas and cannot be found. The co-owner’s signature would be necessary to transfer the title, and if the owner can’t be located the legal steps to remedy the problem could take months.

What Is A Defective Title?

• The phrase “to have valid title” to property means that a person has the exclusive legal right to own and use that piece of property. In order for a title to be considered valid, that title must be free of defects. If a title is considered to be defective, the seller of the property may be required to “clear title,” or remedy any and all title defe...

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