Topic 9.2: Methods of Transferring Real Property

Learning Objectives

After successfully completing this topic, you will be able to
• list the two ways property is transferred voluntarily,
• list the five ways property is transferred involuntarily, and
• describe the legalities of escheat, eminent domain, and adverse possession.

Alienation

A transfer of ownership rights is called alienation. There are many ways that title to property is transferred. Sometimes it’s a voluntary transfer, but sometimes the transfer is involuntary, made without the consent of the owner.

Voluntary Alienation

Property ownership can be transferred with the consent of the owner by a deed, or a will.

Deed

When an owner sells or gifts a property, the normal method of transferring title is by a deed. A deed is a written document that transfers title to another person. It can be used for a fee simple estate or a limited estate such as the air rights.

Will

A person who dies with a will is said to have died testate.

A last will and testament, called a will, is made by a person that directs how title to property is to be distributed after the testator’s death. The person who dies with a will is said to have died testate. A person who dies without a will dies intestate. Real property interests are a devise. The estate of a person who died testate is handled by an executor.

Involuntary Alienation

Involuntary alienation is normally the result of government or court action, and is not done with the agreement of the owner.

There are several ways an owner may lose title to real property involuntarily
• descent,
• escheat,
• adverse possession,
• eminent domain, and
• court judgment.

Descent

When a person dies intestate, Florida probate law controls how the property is to be distributed to the heirs. A formal administration is the most common type of probate, and must be used when the decedent has been dead less than two years and the assets of the estate are greater than $75,000.

Spouse’s Share of Intestate Estate.  The surviving spouse will receive the entire estate if there is no surviving descendant of the decedent, or if the decedent is survived by one or more descendants, all of whom are also descendants of the surviving spouse, and the surviving spouse has no other descendant. (See Example 1 below.)

The surviving spouse receives one-half of the estate
• if there are one or more surviving descendants of the decedent who are not lineal descendants of the surviving spouse; or
• if there are one or more surviving descendants of the decedent, all of whom are also descendants of the surviving spouse, and the surviving spouse has one or more descendants who are not descendants of the decedent. The descendants receive the other one-half. (See Example 2 below.)

Example 1—Sam and Susan were married and had three children. There are no other descendants. If Sam dies intestate, Susan gets the entire estate.
Example 2—Sam and Susan were married. Sam had two children by another marriage. If Sam dies intestate, Susan gets ½ of the estate and the children get the other ½.

Escheat

When an unmarried person dies intestate without being survived by any relative, the property escheats to the state. The state will sell the property with the proceeds being deposited into the State School Fund.

Adverse Possession

It is possible, but not common, for a person to gain title to property by openly moving on to the property under a claim of title based on a recorded written instrument or a judgment. The possession must be hostile to other parties, including the owner of record. The occupant must pay property taxes for seven years. Property is deemed to be possessed if it
• has been cultivated or improved,
• is protected by a substantial enclosure,
• has been used for supply of timber for fuel or fencing or the ordinary use of the occupant, or if it
• has been occupied for at least seven years without interruption.
If the owner of record does not act to evict the occupant before seven years has expired, the occupant may get a court judgment granting title through adverse possession.

Eminent Domain

Without the power of eminent domain, it would not be possible to build highways and railroads.

Eminent domain is the power of the government to take private property for public use by paying the owner a fair price. If the owner agrees to an offer made by the government, then a normal transaction will take place and the owner will give a deed to the state. But if the owner objects to the transfer, or to the amount offered by the state, the state will file suit for condemnation. A judge will decide what amount must be paid. The state may also assign its rights of eminent domain to a railroad or to a utility company.