Conveying Property You Don't Own

Conveying Property That You Do Not Own

This blog discusses conveying property in general as well as different scenarios when someone tries to convey more property than they own.

There are many ways to convey an interest in real property,  those ways are easily defined and explained through the use of various types of real property deeds.

Real property can be transferred for its entirety or a portion thereof.  Normally, real property is conveyed or transferred through a  deed.  For a conveyance to be effective, the grantor undoubtedly has to own the property the grantor conveys.  Nevertheless, there are circumstances when the grantor either attempts to convey land they do not own (due to fraud) or conveys more land than what the grantor actually owns by mistake.  These two scenarios are discussed below.

As a precursor, real property can be conveyed by deed or other instrument of transfer.  The person conveying the property is known as the grantor and the person receiving the property is the grantee.  The grantor may convey the entirety of the parcel without any reservations through a transfer otherwise known as a transfer in fee simple.  If the property transferred is less than fee simple, then this suggests that perhaps the grantor reserved some interest in the property either in the grantor or a third party.

Complications arise when the grantor conveys property the grantor does not own or conveys more than the grantor actually owns.  The former is ineffective to convey property.  Warden v. South Pasadena Realty & Imp. Co. (1918) 178 Cal. 440, 445.  By law, a conveyance of property that the grantor does not own is considered a “wild deed” and has no effect on the title of the person who holds real title to the subject property.

The result is different where a grantor conveys more than what the grantor owns.  If this is the case, the deed conveys only the property then owned by the grantor.  Warden v. South Pasadena Realty & Imp. Co. (1918) 178 Cal. 440, 445.  However, if the grantor later acquires rights to the over-included property, the grantee automatically becomes the owner of the excess property.  This is known as the doctrine of the after-acquired title.

The after-acquired title doctrine is codified into California Civil Code section 1106.  This section of the code holds that “where a person purports by proper instrument to grant real property in fee simple, and subsequently acquires any title, or claim of title thereto, the same passes by operation of law to the grantee, or his successors.”  See also Cecil v. Gray (1915) 170 Cal. 137, 139 (“If he did not then own that part of the section included in lots 7, 8, 9, and 10, his title, subsequently acquired, inured to the benefit of his grantees”).

However, the after acquired doctrine only applies if the over-included property was conveyed by grant deed and not a quitclaim deed.  This is because a quitclaim deed only operates to transfer such interest as the grantor had at the time of the conveyance.  Taylor v. Coachella Val. County Water Dist. (1952) 108 Cal.App.2d 743, 745.  The distinction between conveying property between grant deed versus a quitclaim deed is significant and will be discussed in future blogs.

Understanding the results of conveyances or deeds that purport to transfer more than Our real estate attorneys at Schorr Law have a great deal of experience with real estate matters and all types of real estate disputes. To inquire about a free 30-minute consultation, and to see if you qualify for one, contact us today!

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