DEED A written instrument, which has been signed and delivered, by which one individual, the grantor, conveys title to real property to another individu-al, the grantee; a conveyance of
Trang 1A declaration against interest is another type
of statement received into evidence even though
it is being repeated by someone who heard it out of court It is any comment that admits something harmful to the rights of the person who made the statement For example, a driver says to his or her passenger just before the car misses a curve and ends up in a ditch,“I know the brakes are bad, but don’t worry.” Later when suing to recover compensation for injuries, the passenger can testify that he or she heard the driver make a declaration against his or her interest even though that testimony is hearsay
Customs law requires all persons entering the United States to provide officers with a list
of merchandise they are bringing into the country This list is also called a declaration
Real property laws in various states require the filing of statements to disclose plans that establish certain rights in particular buildings or parcels For example, a homeowners’ association formed by neighbors to maintain a recreation center owned by all of them together may file a declaration of covenants A builder may be required to file a declaration of condominium before beginning to sell new units
As a preliminary step before becoming naturalized U.S citizens, ALIENS must file a declaration of intention that states that they are honestly trying to become citizens and that they formally renounce all allegiance to any
other nation where they were ever citizens or subjects
formal announcement on July 4, 1776, by which the Continental CONGRESS OF THE UNITED STATESof America proclaimed the independence
of the people of the colonies from the rule of Great Britain It explained the reasons for their assertion of political autonomy and announced
to the world that the United States was a free and independent nation
INTERNATIONAL LAW recognized that nations may formally and publicly proclaim a condition
of armed conflict by a declaration of war, which
in effect forbids all persons to aid or assist the enemy In the United States, the Congress has the authority to declare war, and a declaration fixes a beginning date for the war
A declaration of a dividend is an act of a corporation in setting aside a portion of net or surplus income for proportional distribution as
a dividend to those who hold shares of stock
DECLARATION OF INDEPENDENCE Since its creation in 1776, the DECLARATION OF INDEPENDENCE has been considered the single most important expression of the ideals of U.S democracy As a statement of the fundamental principles of the United States, the Declaration
is an enduring reminder of the country’s commitment to popular government and equal rights for all
The Declaration of Independence is a product of the early days of the Revolutionary War On July 2, 1776, the Second Continental Congress—the legislature of the American colonies—voted for independence from Great Britain It then appointed a committee of five— John Adams, BENJAMIN FRANKLIN, THOMAS JEFFER-SON,ROGER SHERMAN, and Robert R Livingston—
to draft a formal statement of independence designed to influence public opinion at home and abroad Because of his reputation as an eloquent and forceful writer, Jefferson was assigned the task of creating the document, and the final product is almost entirely his own work The Congress did not approve all of Jefferson’s original draft, however, rejecting most notably his denunciation of the slave trade Delegates from South Carolina and Georgia were not yet ready to extend the notion ofINALIENABLE rights
to African Americans
On December 8,
1941, President
Franklin Delano
Roosevelt signs the
Congressional
Declaration of War
on Japan.
NATIONAL ARCHIVES
AND RECORDS
ADMINISTRATION
388 DECLARATION OF INDEPENDENCE
Trang 2On July 4, 1776, the day of birth for the new
country, theCONTINENTAL CONGRESSapproved the
Declaration of Independence on behalf of the
people living in the American colonies The
Declaration served a number of purposes for
the newly formed United States With regard to
the power politics of the day, it functioned as a
propaganda statement intended to build
sup-port for American independence abroad,
par-ticularly in France, from which the Americans
hoped to have support in their struggle for
independence Similarly, it served as a clear
message of intention to the British Even more
important for the later Republic of the United
States, it functioned as a statement of
govern-mental ideals
In keeping with its immediate diplomatic
purposes, most of the Declaration consists of
a list of 30 grievances against acts of the British
monarch George III Many of these were
traditional and legitimate grievances under
British CONSTITUTIONAL LAW The Declaration
firmly announces that British actions had
established “an absolute Tyranny over these
States.” Britain’s acts of despotism, according to
the Declaration’s list, included TAXATION of
Americans without representation in
Parlia-ment; imposition of standing armies on
Ameri-can communities; establishment of the military
above the civil power; obstruction of the right
to trial by jury; interference with the operation
of colonial legislatures; and cutting off of trade
with the rest of the world The Declaration ends
with the decisive resolution that“these United
Colonies are, and of Right ought to be Free and
Independent States; that they are Absolved from
all Allegiance to the British Crown, and that all
political connection between them and the
State of Great Britain, is and ought to be totally
dissolved.”
The first sentences of the document and
their statement of political ideals have remained
the Declaration’s most memorable and
influen-tial section Among these sentences are the
following:
We hold these truths to be self-evident, that
all men are created equal, that they are
endowed by their Creator with certain
inalienable Rights, that among these are Life,
Liberty and the pursuit of Happiness.—That
to secure these rights, Governments are
instituted among Men, deriving their just
powers from the consent of the governed,—
That whenever any Form of Government
becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government
Ever since their creation, these ideas have guided the development of U.S government, including the creation of the U.S Constitution
in 1787 The concepts of equal and inalienable rights for all, limited government, popular consent, and freedom to rebel have had a lasting effect on U.S law and politics Scholars have long debated the relative importance of the different sources Jefferson used for his ideas in the Declaration Most agree that the natural rights philosophy of English philosopher JOHN LOCKEgreatly influenced Jefferson’s composition
of the Declaration In particular, Locke ad-vanced the ideas that a just government derives its legitimacy and power from the consent of the governed, that people possess inalienable rights
The Declaration of Independence was signed July 4, 1776 This work, assembled
by John Binns in
1819, surrounds a facisimile of the document’s text with portraits of George Washington, John Hancock, and Thomas Jefferson, along with the seals of the 13 original states LIBRARY OF CONGRESS DECLARATION OF INDEPENDENCE 389
Trang 3that no legitimate government may take away, and that the people have the right and duty to overthrow a government that violates their rights Jefferson also paralleled Locke in his identification of three major rights—the rights
to “Life, Liberty and the pursuit of Happi-ness”—though the last of his three is a change from Locke’s right to “property.”
Jefferson himself minimized the Declara-tion’s contribution to political philosophy In
a letter that he wrote in 1825, 50 years after the Declaration was signed, he described the document as “an appeal to the tribunal of the world.” Its object, he wrote, was
[n]ot to find out new principles or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent, and to justify ourselves in the independent stand we are compelled to take Neither aiming at originality of principle or senti-ment, nor yet copied from any particular and previous writing, it was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion
Although the Declaration of Independence stands with the Constitution as a founding document of the United States of America, its position in U.S law is much less certain than that of the Constitution The Declaration has been recognized as the founding act of law establishing the United States as a sovereign and independent nation, and Congress has placed
it at the beginning of the U.S Code, under the heading“The Organic Laws of the United States
of America.” The Supreme Court, however, has generally not considered it a part of theORGANIC LAWof the country For example, although the Declaration mentions a right to rebellion, this right, particularly with regard to violent rebel-lion, has not been recognized by the Supreme Court and other branches of the federal govern-ment The most notable failure to uphold this right occurred when the Union put down the rebellion by the Southern CONFEDERACY in the Civil War
Despite its SECONDARY AUTHORITY, many later reform movements have quoted the Declara-tion in support of their cause, including move-ments for universal SUFFRAGE, ABOLITION of
SLAVERY, women’s rights, and CIVIL RIGHTS for African Americans Many have argued that this
document influenced the passage and wording
of such important developments in U.S law and government as the Thirteenth and Fourteenth Amendments, which banned slavery and sought
to make African Americans equal citizens In this way, the Declaration of Independence remains the most outstanding example of the spirit, as opposed to the letter, of U.S law
FURTHER READINGS Cunningham, Noble E., Jr 2009 In Pursuit of Reason: The Life of Thomas Jefferson New York: Barnes & Noble Gerber, Scott Douglas, ed 2002 The Declaration of Independence: Origins and Impact Washington, D.C.:
CQ Press.
Levy, Michael B 1988 Political Thought in America: An Anthology 2d ed Florence, KY: Brooks Cole Machan, Tibor R., ed 2001 Individual Rights Reconsidered: Are the Truths of the U.S Declaration of Independence Lasting? Stanford, Calif.: Hoover Institution.
Murray, Charles 1988 In Pursuit of Happiness and Good Government New York: Simon & Schuster.
CROSS REFERENCES
“Declaration of Independence” (Appendix, Primary Docu-ment); Fourteenth Amendment; Thirteenth Amendment.
DECLARATION OF TRUST
An assertion by a property owner that he or she holds the property or estate for the benefit of another person, or for particular designated objectives The term also signifies the deed or other instrument that contains the statement—which may be either written or oral, depending upon the applicable state law
DECLARATORY JUDGMENT Statutory remedy for the determination of a justiciable controversy where the plaintiff is in doubt
as to his or her legal rights A binding adjudication
of the rights and status of litigants even though
no consequential relief is awarded
Individuals may seek a DECLARATORY JUDG-MENT after a legal controversy has arisen but before any damages have occurred or any laws have been violated A declaratory judgment differs from other judicial rulings in that it does not require that any action be taken Instead, the judge, after analyzing the controversy, simply issues an opinion declaring the rights
of each of the parties involved A declaratory judgment may only be granted in JUSTICIABLE
controversies—that is, in actual, rather than hypothetical, controversies that fall within a court’s jurisdiction
390 DECLARATION OF TRUST
Trang 4A declaratory judgment, sometimes called
declaratory relief, is CONCLUSIVE and legally
binding as to the present and future rights of
the parties involved The parties involved in
a declaratory judgment may not later seek
another court resolution of the same legal issue
unless they appeal the judgment
Declaratory judgments are often sought in
situations involving contracts, deeds, leases,
andwills An insurance company, for example,
might seek a declaratory judgment as to whether
a policy applies to a certain person or event
Declaratory judgments also commonly involve
individuals or parties who seek to determine
their rights under specific regulatory or criminal
laws
Declaratory judgments are considered a type
of preventive justice because, by informing
parties of their rights, they help them to avoid
violating specific laws or the terms of a contract
In 1934 Congress enacted the Declaratory
Judgment Act (28 U.S.C.A § 2201 et seq.),
which allows for declaratory judgments
con-cerning issues of federal law At the state level,
the National Conference of Commissioners on
Uniform State Laws passed the Uniform
Declaratory Judgments Act (12 U.L.A 109) in
1922 Between 1922 and 1993, this act was
adopted in 41 states, the Virgin Islands, and the
Commonwealth of Puerto Rico Most other
states have varying laws that provide for
declaratory judgments Most declaratory
judg-ment laws grant judges discretion to decide
whether or not to issue a declaratory judgment
FURTHER READINGS
Actions ” Ohio Northern Univ Law Review 13.
National Conference of Commissioners on Uniform State
Laws 1922 Uniform Declaratory Judgments Act
Avail-able online at http://www.law.upenn.edu/bll/archives/
ulc/fnact99/1920_69/udja22.pdf; website home page:
http://www.law.upenn.edu(accessed September 1, 2009).
“Rule 57 Declaratory Judgments.” Federal Rules of Civil
Procedure Legal Information Institute, Cornell Univ.
Law School Available online at http://www.law.cornell.
edu/rules/frcp/Rule57.htm; website home page: http://
www.law.cornell.edu (accessed September 1, 2009).
DECREE
A judgment of a court that announces the legal
consequences of the facts found in a case and
orders that the court’s decision be carried out A
decree in equity is a sentence or order of the court,
pronounced on hearing and understanding all the
points in issue, and determining the rights of all the parties to the suit, according to equity and good conscience It is a declaration of the court announcing the legal consequences of the facts found With the procedural merger of law and equity in the federal and most state courts under the Rules of Civil Procedure, the term judgment has generally replaced decree
A DIVORCE decree sets out the conclusions
of the court relating to the facts asserted as grounds for the divorce, and it subsequently dissolves the marriage Decree is sometimes used interchangeably with determination and order
DEDICATION
In copyright law the first publication of a work that does not comply with the requirements relating to copyright notice and which therefore permits anyone to legally republish it The gift
of land—or an easement, that is, a right of use
of the property of another—by the owner to the government for public use, and accepted for such use by or on behalf of the public
The owner of the land does not retain any rights that are inconsistent with the complete exercise and enjoyment of the public uses to which the property has been committed
A dedication is express where the gift is formally declared, but it can also be implied by
OPERATION OF LAWfrom the owner’s actions and the facts and circumstances of the case
A dedication may be made under COMMON LAWor pursuant to the requirements of statute
A common-law dedication is not subject to the
STATUTE OF FRAUDS, anENGLISH LAWadopted in the United States, which provides that certain agreements must be in writing Therefore, a common-law dedication does not have to be expressed in writing to be effective; it is based
on ESTOPPEL If the landowner indicates that his or her land is to be used for a public purpose and public use then occurs, the landowner is estopped, or prevented, from refuting the existence of the public right
An express common-law dedication is one in which the intent is explicitly indicated—such as
by ordinary deeds or recorded plats, which are maps showing the locations and boundaries of individual land parcels subdivided into lots—
but the execution of the dedication has not been in accordance with law or certification of
DEDICATION 391
Trang 5it has been defective so as not to constitute a statutory dedication
A statutory dedication is necessarily express, because it is executed pursuant to, and in conformity with, the provisions of a statute regulating the subject It cannot be implied from the circumstances of the case
A dedication can result from the contrary exclusive use of land by the public pursuant to
a claim of right with the knowledge, actual or attributed, and the acceptance of the owner This method is known as dedication by adverse user
DEDUCTIBLE That which may be taken away or subtracted In taxation, an item that may be subtracted from gross income or adjusted gross income in determining taxable income (e.g., interest expenses, charitable contributions, certain taxes)
The portion of an insured loss to be borne by the insured before he or she is entitled to recovery from the insurer
Automotive insurance policies frequently in-clude a deductible, such as $250 or $500, which the insured must pay before receiving reimbursement under the policy Usually, the insured motorist chooses among several levels of deductible, with the policy payment being somewhat lower when the insured chooses a higher deductible Many types of insurance policies include a deductible amount
DEDUCTION That which is deducted; the part taken away;
abatement; as in deductions from gross income in arriving at net income for tax purposes
In civil law, a portion or thing that an heir has
a right to take from the mass of the succession before any partition takes place
A contribution to a charity can be used as a deduction to reduce income for INCOME TAX
purposes if the taxpayer meets the requirements imposed by law
DEED
A written instrument, which has been signed and delivered, by which one individual, the grantor, conveys title to real property to another
individu-al, the grantee; a conveyance of land, tenements,
or hereditaments, from one individual to another
At COMMON LAW, a deed was an instrument under seal that contained a covenant or contract
delivered by the individual who was to be bound
by it to the party to whom it was granted It is no longer required that such an instrument be sealed Transfer of Land
Land can only be transferred from one individual
to another in the legally prescribed manner Historically speaking, a written deed is the instru-ment used to convey ownership of real property
A deed is labeled an instrument of convey-ance Under Spanish law, which was in effect
at an early date in areas of the western United States, a written deed was not necessary to convey title to land A verbal grant was sufficient
to complete the transaction, provided that it was accompanied by a transfer of possession Verbal grants of land in Texas have, therefore, been given recognition in U.S courts
A deed must describe with reasonable certainty the land that is being conveyed The conveyance must include operative words of grant; however, technical terms do not need to be used The
GRANTORmust be adequately identified by the con-veyance, although it is not required that the grantor’s name be specifically mentioned State laws sometimes require that the deed indicate the resi-dence of the grantor by town, city, county, and state
In order for title to property to pass, a deed must specify theGRANTEEwith sufficient certainty
to distinguish that individual from the rest of the world Some statutes mandate that the deed list the grantee’s residence by town, city, county, and state Execution
In order for a deed to be properly executed, certain acts must be performed to create a valid conveyance Ordinarily, an essential element of execution is the signature of the grantor in the proper place It is not necessary, however, that the grantee sign the deed in order for it to take effect
as a conveyance Generally state statutes require that the deed be signed in the presence of witnesses, attesting to the grantor’s request Delivery
Proper delivery of a deed from the grantor
to the grantee is an essential element of its effectiveness In addition, the grantor must make some statement or perform some act that implies his or her intention to transfer title
It is insufficient for a grantor to have the mere intention to transfer title, in the absence of further conduct that consummates the purpose
392 DEDUCTIBLE
Trang 6GRANT DEED
RECORDING REQUESTED BY
_
AND WHEN RECORDED MAIL THIS DEED AND,
UNLESS OTHERWISE SHOWN BELOW, MAIL
TAX STATEMENT TO:
NAME
STREET
ADDRESS _
CITY, STATE &
ZIP CODE
TITLE ORDER NO _ ESCROW NO
SPACE ABOVE THIS LINE FOR RECORDER’S USE DOCUMENTARY TRANSFER TAX $ _
computed on full value of property conveyed, or
computed on full value less liens and encumbrances remaining at time of sale.
Signature of Declarant or Agent Determining Tax Firm Name
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is acknowledged, I (We),
_
grant to
all that real property situated in the City of (or in an unincorporated area of)
County, _ described as follows (insert legal description):
_
_
_
_
_
_
Accessor’s parcel No _
Executed on _, at
On before me, _
personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/
her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument I certify under PENALTY OF PERJURY
under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
_
MAIL TAX
STATEMENTS TO: _
CAPACITY CLAIMED BY SIGNER(S)
INDIVIDUAL(S)
CORPORATE _
OFFICER(S)
(TITLES)
PARTNER(S) LIMITED GENERAL
ATTORNEY IN FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER _
SIGNER IS REPRESENTING:
Name of Person(s) or Executive(s)
RIGHT THUMBPRINT (Optional)
(NAME OF GRANTOR(S))
(NAME OF GRANTEE(S))
(CITY AND STATE)
(NAME/TITLE i.e “JANE DOE, NOTARY PUBLIC”)
SBR98
A sample grant deed ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PERMISSION OF GALE,
A PART OF CENGAGE LEARNING.
DEED 393
Trang 7There is no particular prescribed act, method, or ceremony required for delivery, and it is unnecessary that express words be employed or used in a specified manner The deed need not be physically delivered to the grantee It is sufficient to mail it to the grantee
Delivery of the deed by the attorney who has written the instrument for the grantor is also adequate Unless otherwise provided by statute,
a deed becomes effective upon its delivery date
The mere fact that the grantee has physical possession of the deed does not constitute delivery unless it was so intended by the grantor
Acceptance
A deed must be accepted by the grantee in order for proper transfer of title to land to be accomplished There are no fixed principles regarding what acts are sufficient to effect acceptance, since the issue is largely dependent upon the party’s intent
Acceptance of a deed need not be made by express words or in writing, absent a contrary statutory provision A deed is ordinarily accepted when the grantee retains it or obtains a mortgage
on the property at issue
Recording Legal policy mandates that a deed to real property be a matter of public record; therefore, subsequent to delivery and acceptance, a deed must be properly recorded
The recording process begins when the deed
is presented to the clerk’s or recorder’s office in the county where the property is located The entire instrument is duplicated, ordinarily by photocopying The copy is inserted into the current book of official records, which consists exclusively of copies of documents that are maintained and labeled in numerical order
A properly recorded deed provides con-structive notice of its contents, which means that all parties concerned are considered to have notice of the deed whether or not they actually saw it A majority of jurisdictions place the burden upon home buyers to investigate any suspicious facts concerning the property of which they have actual or constructive notice
If, for example, there is a reference to the property for sale in the records to other deeds, the purchaser might be required to determine
whether such instruments give rights in the property to other individuals
A map referred to in a recorded deed that describes the property conveyed becomes part
of the document for identification purposes The original copy of a deed is returned to the owner once it has been duplicated, recorded, and filed in the office of the recorder
A records or clerk’s office maintains a set of indexes, in addition to official records, in which information about each deed is recorded, so that upon a search for a document such information can be disclosed A majority of states have a GRANTOR-GRANTEE INDEX, a set of volumes containing a reference to all docu-ments recorded alphabetically according to the grantor’s name The index lists the name of the grantor first, followed by the name of the grantee, then ordinarily a description of the instrument and sometimes of the property, and ultimately a reference to the volume and page number in the official record where the document has been copied A grantee-grantor index has the identical information, but it is listed alphabetically according to the grantees’ names A tract index arranges all of the entries based upon the location of the property Indexes are frequently classified according
to time periods Therefore separate sets of indexes covering various periods of time may
be available
A significant problem can result in the event that a deed cannot be located through the indexes This situation could result from a mistake in the recording process, such as indexing the deed under the wrong name In a number of states, the courts will hold that such
a deed was never recorded inasmuch as it was not indexed in such a manner as to provide notice to someone properly conducting a check
on the title In these jurisdictions, all grantees have the duty to return to the recorder’s office after filing to protect themselves by checking on the indexing of their deeds A purchaser who lives in a state with such laws should protect himself or herself either by consulting an attorney or returning to the recorder’s office
to ascertain that the deed is properly recorded and indexed Other state statutes provide that
a document is considered recorded when it
is deposited in the proper office even if it is improperly recorded such that it cannot be located In these states, there are no practical
394 DEED
Trang 8steps for subsequent buyers to take to
circum-vent this problem
Types of Deeds
Three basic types of deeds commonly used are
the grant deed, the QUITCLAIM DEED, and the
WARRANTY DEED
Grant Deed By use of a grant deed, the conveyor
says, “I grant (convey, bargain, or sell) the
property to you.” In a number of jurisdictions
a representation that the conveyor actually
owns the property he or she is transferring is
implied from such language
Quitclaim Deed A quitclaim deed is intended
to pass any title, interest, or claim that the grantor
has in the property but makes no representation
that such title is valid In effect, this type of
deed states that if the grantor actually owns the
premises described or any interest therein, it is
to be conveyed to the grantee For this type of
deed, some state statutes require a warranty by
the grantor, stating that neither the grantor
nor anyone associated with him or her has
encumbered the property, and that the grantor
will defend the title against any defects that arise
under and through him or her, but as to no
others
Warranty Deed In a warranty deed the grantor
inserts covenants for title, promising that
such title is good and clear The customary
covenants of title include warranty of seisin,
QUIET ENJOYMENT, the right to convey, freedom
from encumbrances, and a defense of the title
as to all claims
Validity
If a deed is to have any validity, it must be
made voluntarily The test of the capacity of an
individual to execute a valid deed is based upon
that person’s ability to comprehend the
con-sequences of his or her act If a deed is not made
through the conscious act of the grantor, it can
be set aside in court Relevant factors for the
determination of whether a particular
individu-al is capable of executing a vindividu-alid deed are his
or her age, and mental and physical condition
Extreme physical weakness resulting from old
age or disease is a proper element for
consider-ation in establishing capacity Mental capacity,
however, is the most important factor If an
individual is deemed to be mentally capable of
disposing of his or her own property, the deed
is ordinarily valid and would withstand objec-tions made to it
If fraud is committed by either the grantor
or grantee, a deed can be declared invalid For example, a deed that is a FORGERYis completely ineffective
The exercise of UNDUE INFLUENCE also ordi-narily serves to invalidate a deed The test of whether such influence has been exerted turns upon the issue of whether the grantor executed the deed voluntarily Undue influence is wrong-ful and serves to confuse the judgment and to control the will of the grantor Ordinary influence
is insufficient to invalidate a deed Deeds between parties who share a confidential relationship are frequently examined by the courts for undue influence For example, the courts might place a deed under close scrutiny if the grantor’s attorney
or physician is named grantee In addition, if the grantor is a drunkard or usesDRUGS AND NARCOTICS
to excess, such would be circumstances for consideration when a court determines whether undue influence was exercised upon the grantor
Defects
In a number of jurisdictions, an individual selling
a house is required to disclose any material defect known to him or her but not to the purchaser
A failure to disclose gives the buyer the right to cancel the deed, sue for damages, and in some instances, recover for personal injuries incurred
as a result of such defect
FURTHER READINGS Jacobus, Charles J 2009 Real Estate Principles Florence, Ky.:
South-Western.
Ring, Alfred A., and Jerome Dasso 1989 Real Estate Principles and Practices 11th ed Upper Saddle River, N.J.: Prentice-Hall.
Unger, Maurice A., and George Karvel 1991 Real Estate:
Principles and Practices Florence, Ky.: South-Western.
CROSS REFERENCES Quitclaim Deed; Records; Recording of Land Titles.
DEED OF TRUST
A document that embodies the agreement between
a lender and a borrower to transfer an interest
in the borrower’s land to a neutral third party,
a trustee, to secure the payment of a debt by the borrower
A deed of trust, also called aTRUST DEEDor
a Potomac Mortgage, is used in some states in place of a mortgage, a transfer of interest in land
DEED OF TRUST 395
Trang 9A sample deed of trust.
GENERAL FORM
Deed of trust made on (date), between _, of _ (address), referred to as trustor,
, of
_ (address),
referred to as trustee, and _, of
(address), referred to as beneficiary.
Trustor, in consideration of the indebtedness recited below, irrevocably grants, bargains, sells, assigns, and conveys to trustee in trust, with power of sale, the property in _
(location and address) described as _ (description of property),
together with all the tenements, hereditaments, and appurtenances now or hereafter belonging or in any wise appertaining To have and to hold the same, with the appurtenances, unto trustee.
For the purpose of securing performance of each agreement of trustor and of securing payment of the sum of (amount) ($ ) with interest thereon according to the terms of a _ (Note or Bond), dated _ (month & day), _ (year) payable to beneficiary or order and made or executed by trustor, the final payment of principal and interest, if not paid sooner,
to be due and payable on _ (month & day), (year) at the office of _, at _ (address), or at such other place as beneficiary may designate in writing delivered or mailed to trustor The terms of the _ (Note or Bond) are incorporated by reference.
Trustor covenants and agrees as follows:
1 PAYMENT OF INDEBTEDNESS 1.1 Trustor shall pay the indebtedness, as provided above Trustor reserves the right and privilege to prepay at any time, without premium
or fee, the entire indebtedness or any part of it not less than the amount of one installment, or _ (amount)
($ _), whichever is less Any prepayment made on other than an installment due date will not be credited until the next following installment due date.
2 OWNERSHIP OF PROPERTY 2.1 Trustor is lawfully seized (in possession) of _
_ (description of estate)
and, except as otherwise stated, the premises are free from any encumbrances Trustor hereby warrants the usual covenants to the same
extent as a statutory _ (warranty) deed under the laws of _ (state),
and all covenants herein made, and trustor will defend against any breach of any such covenant.
3 CONTINUED EFFECTIVENESS 3.1 The provisions of this instrument shall remain in full force and effect during any postponement or extension of the time of payment of the indebtedness or any part of it.
4 TAXES AND ASSESSMENTS 4.1 Trustor shall pay all taxes, assessments, water rates, and other governmental or municipal charges, fines, or impositions; and, in default thereof, beneficiary may pay the same.
5 WASTE; REPAIR OR REMOVAL OF STRUCTURES 5.1 Trustor shall not commit waste or authorize the repair or the removal of any structures on the premises, and shall not do or permit any act that may lawfully result in the creation of a lien or claim on the land or the improvements of equal or prior rank to the claim of this trust deed without prior written consent of beneficiary; but shall maintain the property in as good condition as at present, reasonable wear and tear excepted On any failure to so maintain, beneficiary, at its option, may cause reasonable maintenance work to be performed at trustor's cost.
6 INSURANCE 6.1 Trustor shall maintain continuously hazard insurance of such type or types and amounts as beneficiary may from time to time require
on the improvements now or hereafter on the premises, and shall pay promptly when due any premiums for such insurance All insurance
DEED OF TRUST
[continued]
396 DEED OF TRUST
Trang 10shall be carried with companies approved by beneficiary, and the policies and renewals shall be held by beneficiary and provide that loss
be payable solely and in form acceptable to beneficiary In event of loss, trustor shall give immediate notice by mail to beneficiary, who
may make proof of loss if not made promptly by trustor, and each insurance company concerned is hereby authorized and directed to
make payment of the loss directly to beneficiary, rather than to trustor and beneficiary jointly The insurance proceeds, or any part of them,
may be applied by beneficiary, at its option, either to the reduction of the indebtedness hereby secured or to the restoration or repair of the
property damaged In the event of a conveyance to beneficiary, or other transfer of title to the premises in extinguishment of the
indebtedness secured hereby, all right, title, and interest of trustor in and to any insurance policies then in force shall pass to the purchaser
or grantee.
7 BENEFICIARY PAYMENT IN EVENT OF DEFAULT
7.1 If trustor defaults in any of the covenants or agreements contained in this trust deed, or in the (Note or Bond)
secured by it, then beneficiary, at its option, may perform the same All expenditures made by beneficiary in so doing shall draw interest at
the rate provided for in the principal indebtedness, and shall be repayable by trustor to beneficiary, and, together with interest and costs
accruing thereon, shall be secured by this trust deed.
8 SUPPLEMENTAL NOTES
8.1 On beneficiary's request, trustor shall execute and deliver a supplemental note or notes for the sum or sums advanced by beneficiary
for the alteration, modernization, improvement, maintenance, or repair of such premises, for taxes or assessments against the same, and
for any other purpose authorized under this trust deed The note or notes shall be secured by this trust deed with equal priority and as
fully as if the advance evidenced thereby were included in the (Note or Bond) first described above The supplemental
note or notes shall bear interest at the rate provided for in the principal indebtedness and shall be payable in approximately equal
(monthly) payments for such period as may be agreed on by trustor and beneficiary On the failure to agree on the
maturity, the whole of the sum or sums so advanced shall be due and payable _ days after beneficiary's demand In no event,
shall the maturity extend beyond the ultimate maturity of the (Note or Bond) first described above.
9 RIGHT OF BENEFICIARY TO APPEAR
9.1 Beneficiary may appear in and defend any action or proceeding purporting to affect the security of this trust deed, and trustor shall
pay all costs and expenses, including the costs of evidence of title and reasonable attorney fees, in any such action or proceeding in which
beneficiary may appear.
10 WAIVER OF NOTICE
10.1 Trustor waives notice of the exercise of any option granted to beneficiary in this trust deed or in such _ (Note or Bond).
11 CONDEMNATION
11.1 Any award of compensation or damages in connection with any condemnation for public use of or injury to the premises or any part
of them is hereby assigned and shall be paid to beneficiary, who may apply or release such moneys received in the same manner and with
the same effect as provided above for the disposition of fire or other insurance proceeds.
12 NONWAIVER OF RIGHTS
12.1 Beneficiary's accepting payment of any sum secured by this trust deed after its due date shall not constitute a waiver of its right either
to require prompt payment when due of all other sums so secured or to declare default for failure so to pay.
13 RIGHTS OF TRUSTEE
13.1 At any time or from time to time, without liability therefor and without notice, on beneficiary's written request and presentation of this
trust deed and such _ (Note or Bond) for Endorsement, and without affecting the personal liability of any person for payment
of the indebtedness secured by this trust deed, trustee may: reconvey all or any part of the premises; consent to the making of any map or
plat thereof; join in granting any easement thereon; or join in any extension agreement or any agreement subordinating this trust deed to
subsequent liens or charges
14 RECONVEYANCE
14.1 On beneficiary's written request stating that all sums secured by this trust deed have been paid, and on surrender of this trust deed
and such (Note or Bond) to trustee for cancellation and retention, and on payment of trustee's fees, trustee
shall reconvey, without warranty, the property then held under this trust deed The recitals in any reconveyance accepted under this trust
deed of any matters or facts shall be conclusive proof of their truthfulness The grantee in such reconveyance may be described as "the
person or persons legally entitled thereto."
15 RENTS, ISSUES, AND PROFITS
15.1 As additional security, trustor hereby gives to and confers on beneficiary the right, power, and authority during the continuance of the
interests created by this trust deed to collect the rents, issues, and profits of the premises, reserving to trustor the right, prior to any
DEED OF TRUST
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A sample deed of trust (continued) DEED OF TRUST 397