TRANSFER BY VOLUNTARY ALIENATION & TRANSFER BY INVOLUNTARY ALIENATION
TRANSFER BY VOLUNTARY ALIENATION
Deeds 
/ Wills
Deeds
Parties. A deed is a legal instrument used by an owner, the grantor, to transfer title to real estate voluntarily to another party, the grantee.
A deed is used when a title is voluntarily transferred by the sale or gift from the property owner to another party. The property owner must be alive for this transfer. For example, if the owner sells the property, the transfer takes place with a deed. If the owner donates the property to a charity, the transfer takes place with a deed.
Delivery and acceptance. Execution of a valid deed in itself does not convey title. It is necessary for the deed to be delivered to and accepted by the grantee for title to pass. To be legally valid, delivery of the deed requires that the grantor
- be competent at the time of delivery
- intend to deliver the deed, beyond the act of making physical delivery
Validity of the grantee’s acceptance requires only that the grantee have physical possession of the deed or record the deed.
Once accepted, title passes to the grantee. The deed has fulfilled its legal purpose and it cannot be used again to transfer the property. If the grantee loses the deed, there is no effect on the grantee’s title to the estate. The grantor, for example, cannot reclaim the estate on the grounds that the grantee has lost the deed after it was delivered and accepted. Nor can the grantee return the property by returning the deed. To do so, the grantee would need to execute a new deed.
Voluntary transfers in Florida. The general procedure for transferring title in Florida consists of the following steps. Deeds are discussed later in this section.
- locate the current deed that includes the property’s legal description and the exact name of the current grantor
- prepare the new deed to include all required information
- sign and notarize the deed; the deed must be signed by the grantor, any spouse with homestead rights, and two witnesses; it must also be notarized
- file the deed with the county clerk in the county where the property is located; filing may include recording fees or documentary stamp taxes
Deeds are treated in greater detail later in this section.
Wills
Parties to a will. A will, or more properly, a last will and testament, is a legal instrument for the voluntary transfer of real and personal property after the owner’s death. It describes how the maker of the will, called the testator or devisor, wants the property distributed. A beneficiary of a will is called an heir or devisee. The property transferred by the will is the devise. “Devise,” “devisor,” and “devisee” refer more specifically to real property transfers, while “bequest” and “beneficiary” are sometimes limited to transfers of personal property.
A will takes effect only after the testator’s death. It is an amendatory instrument, meaning that it can be changed at any time during the maker’s lifetime.
Commonly, the testator names an executor, or personal representative, to oversee the settlement of the estate. If a minor is involved, the testator may identify a guardian to handle legal affairs on behalf of the minor.
Types of will. A will generally takes one of the following forms:
- witnessed
in writing and witnessed by two people
- holographic
in the testator’s handwriting, dated and signed
- approved
on pre-printed forms meeting the requirements of state law
- nuncupative
made orally, and written down by a witness; generally not valid for the transfer of real property
Validity. State law establishes requirements for a valid will. Florida law requires that:
- the testator be of legal age and mentally competent
- the will be signed
- the completion of the will be witnessed and signed by the witnesses
- the will be completed voluntarily, without duress or coercion
Probate. A court proceeding called probate generally settles a decedent’s estate, whether the person has died testate (having left a valid will) or intestate (having failed to do so). Real property may be exempted from probate if it is held in a land trust. Probate of real property occurs under jurisdiction of courts in the state where the property is located, regardless of where the deceased resided.
The probate court’s objectives are to:
- validate the will, if one exists
- identify and settle all claims and
outstanding debts against the estate - distribute the remainder of the estate to the rightful heirs If the will does not name an executor, the court will appoint an administrator to fulfill this role
The exhibit shows three possible channels of probate deliberation, depending on whether there is a will and heirs.
Testate proceeding. If the decedent died with a valid will, the court hears the claims of lienors and creditors and determines their validity. First in line are the superior liens: those for real estate taxes, assessment taxes, federal estate taxes, and state inheritance taxes. If the estate’s liquid assets are insufficient to pay all obligations, the court may order the sale of personal or real property to satisfy the obligations.
The court must also hear and satisfy legal life estate claims, including those for dower, curtesy, homestead, and elective share. These interests may prevail even if the will does not provide for them.
Once all claims have been satisfied, the balance of the estate’s assets passes to the rightful heirs free and clear of all liens and debts.
Intestate proceeding with heirs. If the decedent died without a valid will, the estate passes to lawful heirs according to the state’s laws of descent and distribution, or succession. Laws of descent stipulate who inherits and what share they receive, without regard to the desires of the heirs or the intentions of the deceased.
For example, John Astor dies intestate, leaving a wife and four children. Under Florida law, the surviving spouse receives the entire estate as long as all four children are descendants of both the decedent and the surviving spouse and there are no other children of either spouse.
Intestate proceeding with no heirs. If an intestate decedent has no heirs, the estate escheats, or reverts, to the state after all claims and debts have been validated and settled.
TRANSFER BY INVOLUNTARY ALIENATION
Laws of descent Escheat Foreclosure Eminent domain Adverse possession Estoppel
Involuntary alienation occurs when a title-holder dies without a valid will. It also occurs under other special circumstances. State law regulates all forms of involuntary alienation, whether such transfer occurs by the laws of descent, abandonment, foreclosure, eminent domain, adverse possession, or estoppel.
Laws of descent
The state’s statutes of descent and distribution identify heirs and the respective shares of the estate they will receive.
Escheat
In the absence of heirs, title transfers to the state by escheat. Property that has been abandoned for a statutory period may also escheat to the state.
Foreclosure
A property owner who fails to fulfill loan obligations or pay taxes may lose an estate through foreclosure.
Eminent domain
In many cases, public acquisition of property is a voluntary transaction between the government entity and the private owner. However, if the private party is unwilling to sell, the government may purchase the property anyway. The power to do this is called eminent domain.
Eminent domain allows a government entity to purchase a fee, leasehold, or easement interest in privately owned real property for the public good and for public use, regardless of the owner’s desire to sell or otherwise transfer any interest. In exchange for the interest, the government must pay the owner “just compensation.”
To acquire a property, the public entity initiates a condemnation suit. Transfer of title extinguishes all existing leases, liens, and other encumbrances on the property. Tenants affected by the condemnation sale may or may not receive compensation, depending on the terms of their agreement with the landlord.
Public entities that have the power of eminent domain include:
- all levels of government
- public districts (schools, etc.)
- public utilities
- public service corporations (power companies, etc.)
- public housing and redevelopment agencies
- other government agencies
To acquire a property, the public entity must first adopt a formal resolution to acquire the property, variously called a “resolution of necessity.” The resolution must be adopted at a formal hearing where the owner may voice an opinion. Once adopted, the government agency may commence a condemnation suit in court. Subsequently, the property is purchased and the title is transferred in exchange for just compensation. Transfer of title extinguishes all existing leases, liens, and other encumbrances on the property. Tenants affected by the condemnation sale may or may not receive compensation, depending on the terms of their agreement with the landlord.
In order to proceed with condemnation, the government agency must demonstrate that the project is necessary, the property is necessary for the project, and that the location offers the greatest public benefit with the least detriment.
As an eminent domain proceeding is generally an involuntary acquisition, the condemnation proceeding must accord with due process of law to ensure that it does not violate individual property rights. Further, the public entity must justify its use of eminent domain in court by demonstrating the validity of the intended public use and the resulting “public good” or “public purpose” ultimately served.
The issue of eminent domain versus individual property rights has recently come under scrutiny in light of a 2005 Supreme Court ruling that affirmed the rights of state and local governments to use the power of eminent domain for urban redevelopment and revitalization. The ruling allowed that private parties could undertake a project for profit without any public guarantee that the project would be satisfactorily completed. The ruling brought the issue of “public use” into question, as the use of the re-development could well be private and even a private for-profit enterprise. The winning argument was that the “public purpose” is served when redevelopment creates much needed jobs in a depressed urban area. As a result of this decision, many see the power of eminent domain and the definition of public good as being in conflict with the constitutional rights of private property ownership. New and different interpretations of the public’s right to pre-empt private property ownership by eminent domain may be expected.
Adverse possession
Florida laws allow a real property owner to lose legal title to an adverse possessor. An adverse possessor is someone who enters, occupies, and uses another’s property without the knowledge or consent of the owner, or with the knowledge of an owner who fails to take any action over a statutory period of time.
To claim legal title, the adverse possessor must:
- be able to show a claim of right or color of title as reason for the possession
- have notorious possession, which is possession without concealment
- maintain a consistent claim of hostile possession, which is a claim to ownership and possession regardless of the owner’s claims or consent
- occupy the property continuously for seven or more consecutive years without owner consent
- pay taxes
A claim of right is based on the adverse possessor’s occupying and maintaining the property as if he or she were the legal owner. Color of title results when a grantee has obtained defective title, or received title by defective means, but occupies the property as if he or she were the legal owner. A court may hold that a claim of right or a claim of colored title is a valid reason for the possession.
Notorious possession and hostile possession give constructive notice to the public, including the legal owner, that a party other than the legal owner is occupying and claiming to own the property. It is possible for such notice to prevail over notice by recordation as the dominant evidence of legal ownership, provided the possessor has occupied the property continuously for the statutory period of time.
In Florida, the possessor must have paid taxes over the entire period of possession to obtain title. However, if the possessor has paid rent of any kind, the claim of ownership might be refuted.
Avoiding adverse possession. An owner can avert the danger of involuntary alienation by adverse possession by periodically inspecting the property within statutory deadlines and evicting any trespassers found. The owner may also sue to quiet title, which would eliminate the threat of the adverse possessor’s claim to legal title.
Estoppel
Estoppel prevents a person from claiming a right or interest that is inconsistent with the person’s previous statements or acts. As a basis for involuntary alienation, the doctrine of estoppel can prevent an owner from re-claiming a property that was transferred under false pretenses. For example, an owner conveys a property with a defective title. The grantor is fully aware of the defect but makes no disclosure to the grantee. The grantor later cures the defect and then claims to be the rightful owner of the property on the basis of the effort and expense of clearing the title. Estoppel disallows the grantor’s claim because of the prior conveyance action. The grantee remains legal owner and benefits from the cleared title as well.
