Chapter 93
ATTY. GEN. OPINIONS: Records involving
title to real property registered under the Torrens system, (1972) Vol 35, p 1032
93.020
NOTES OF DECISIONS
Constructive
trust is trust arising by operation of law and therefore is not prevented from
arising by need to rely on oral agreement to prove existence of trust. Person
v. Pagnotta, 273 Or 420, 541 P2d 483 (1975)
Statute
of Frauds makes oral trust void at election of trustee rather than making it
nullity. Smiley v. King, 278 Or 555, 564 P2d 1348 (1977)
93.040
NOTES OF DECISIONS
Inclusion
in instrument conveying fee title of notice recommending buyer check with
planning department does not limit seller liability to buyer for violation of
ORS 92.018. DK Investment Co. v. Inter-Pacific Development Co., 195 Or App 256,
97 P3d 675 (2004)
93.120
NOTES OF DECISIONS
This
section was not designed to inhibit inquiry into the grantor’s intent where he
has used ambiguous language in his deed. Cappelli v.
Justice, 262 Or 120, 496 P2d 209 (1972)
93.140
NOTES OF DECISIONS
Where
vendor builds new houses for purpose of sale to general public, sale carries
with it warranty that house is constructed in reasonably workmanlike manner and
is fit for habitation; overruling Steibner v.
Palumbo, 219 Or 479, 347 P2d 978 (1959). Yepsen v.
Burgess, 269 Or 635, 525 P2d 1019 (1974)
LAW REVIEW CITATIONS: 11 WLJ 125,
129-133 (1974)
93.180
NOTES OF DECISIONS
Where
plaintiff alleged she was tenant in common with decedent of orchard property
based on number of events alleged to have occurred during decedent’s lifetime,
plaintiff alleged only catalog of primary facts and not ultimate facts of legal
theory that would substantiate tenancy in common under this section, and this
section alone could not create title where none existed before. Hurlbutt v. Hurlbutt, 36 Or App
721, 585 P2d 724 (1978), Sup Ct review denied
Where
transfer of stock was made to “joint tenants,” designation was not sufficient
to establish right of survivorship in absence of express declaration. Sautter v. Coffey, 283 Or 303, 584 P2d 245 (1978)
93.210
NOTES OF DECISIONS
Ability
of trustee to convey valid title free from threat of later challenge by
undisclosed trust beneficiaries does not mean that title to property was held
by trustee in personal capacity. Erskine v. Elliott, 140 Or App 500, 916 P2d
319 (1996)
93.310
NOTES OF DECISIONS
When
a conveyance describes property as bordering on a street, absent an express
provision in the conveyance to the contrary, such a conveyance includes the fee
to the street. Fossi v. Myers, 271 Or 611, 533 P2d
337 (1975)
Bank
of waterway is “monument” for purposes of reconciling inconsistency between
boundaries or monuments and measurement of lines, angles or surfaces. Belmont
v. Umpqua Sand and Gravel, 273 Or 581, 542 P2d 884 (1975); Denison v. Hodge,
196 Or App 248, 100 P3d 1144 (2004), Sup Ct review denied
Where
there are irreconcilable descriptions in an instrument of conveyance, the court
must choose that description which best comports with the intention of the
parties considering all the circumstances attending the conveyance. McCoshum v. Hoselton, 273 Or 778,
543 P2d 657 (1975)
This
section does not effect a transfer of tidelands along
the Columbia River which belongs to the state rather than the upland owner due
to the failure of the original grantee to purchase the tidelands under the
proper statutory procedure, distinguishing McAdam
v. Smith, 221 Or 48, 350 P2d 689 (1960). State Land Bd. v. Heuker,
25 Or App 137, 548 P2d 1323 (1976)
Where
original deed in chain of title contained “impossible particular” which
described nonexistent point of intersection between rimrock
and river, and intent of parties to original deed could not be ascertained,
disputed property was left unconveyed. Tab Enterprises
v. Heare, 37 Or App 879, 588 P2d 671 (1978)
93.600
NOTES OF DECISIONS
Description
requirement does not displace description requirement applicable to
construction liens under ORS 87.035. Bell Hardware v. Ed Szoyka
Woodworking Co., 129 Or App 332, 879 P2d 208 (1994), Sup Ct review denied
93.610 to 93.800
ATTY. GEN. OPINIONS: Recording location,
type and degree of hazard of material buried in hazardous waste disposal site,
(1979) Vol 40, p 188
93.610
ATTY. GEN. OPINIONS: Filing for record
of financing statement, (1974) Vol 36, p 777
93.630
ATTY. GEN. OPINIONS: Filing for record
of financing statement, (1974) Vol 36, p 777
93.635
ATTY. GEN. OPINIONS: Contents of
recorded memorandum, (1975) Vol 37, p 996
93.640
NOTES OF DECISIONS
Where
mortgagee had no actual notice of unrecorded earnest money agreement, use of
bargain and sale deed rather than warranty deed to create mortgage did not deny
him status of “subsequent purchaser in good faith” as matter of law. Armstrong
v. Lovelace, 285 Or 313, 590 P2d 1231 (1979)
Where
purchaser of property who recorded his conveyance brought quiet title suit
against prior purchaser of same property whose conveyance had not been recorded
under this section, subsequent purchaser had burden of proving that subsequent
purchase was in good faith and for valuable consideration. Nelson v. Hughes,
290 Or 653, 625 P2d 643 (1981)
Where
dissolution decree is issued in county where real property is located,
subsequent purchasers of property have constructive notice of interest granted
by decree notwithstanding that interest has not been registered. Partlow v. Clark, 295 Or 778, 671 P2d 103 (1983)
Although
party cannot be subsequent purchaser in good faith under this section if it has
actual or imputed knowledge of prior unrecorded interest at time of its
purchase, that prior interest must be valid under Statute of Frauds to be
protected. FDIC v. Davis, 82 Or App 8, 727 P2d 133 (1986)
Because
plaintiff had actual notice of prior assignment to defendant, plaintiff’s recording
of assignment earlier than defendant’s is irrelevant since plaintiff failed to
allege that plaintiff obtained any interest under unrecorded assignments.
Calhoun v. Higgins, 103 Or App 414, 797 P2d 404 (1990)
Lien
claim and foreclosure judgment do not convey, create or memorialize ownership
interest in subject property. HGC Limited v. Cascade Pension Trust, 174 Or App
464, 26 P3d 842 (2001)
93.643
NOTES OF DECISIONS
Dissolution
court acted beyond authority in modifying property division in dissolution
decree and modification did not give constructive notice to state and bank of
wife’s interest in residence. Spady v. Graves, 307 Or
483, 770 P2d 53 (1989)
93.645
NOTES OF DECISIONS
Judgment
lien against vendor in land sale contract remains viable until it is
extinguished by conveyance, but vendee has priority over judgment creditor and
may safely make payments to vendor, unless judgment creditor has served vendee
with notice of garnishment in execution of judgment or has caused vendor’s
interest to be sold on execution. Wyllie v. Van Ruden,
76 Or App 598, 711 P2d 137 (1985)
“Seller”
means person selling land under recorded land sale contract. Waite v. Dempsey,
203 Or App 136, 125 P3d 788 (2005)
LAW REVIEW CITATIONS: 55 OLR 227-237
(1976)
93.650
ATTY. GEN. OPINIONS: Records involving
title to real property registered under the Torrens system, (1972) Vol 35, p 1032
93.670
NOTES OF DECISIONS
Instrument
conveying interest in proceeds of property sale is not recordable as instrument
conveying interest in property. Citizens Valley Bank v. Prahl,
11 Or App 97, 502 P2d 284 (1972)
93.680
NOTES OF DECISIONS
Dissolution
decree is effective to transfer real property interest, therefore failure to
record dissolution decree in deed records does not render decree void as to
bona fide purchasers for value. Partlow v. Clark, 295
Or 778, 671 P2d 103 (1983)
93.730
NOTES OF DECISIONS
Dissolution
decree entered only in court file or circuit court journal is constructive
notice as to real property in the same county; overruling to extent of
inconsistency, Temple v. Osburn, 55 Or 506, 106 P2d
16 (1910). Partlow v. Clark, 295 Or 778, 671 P2d 103
(1983)
93.740
NOTES OF DECISIONS
Filing
of complaint in dissolution action or other civil action that involves title
to, interest in or lien upon real property creates lis pendens in county of filing if complaint
identifies parties, object of action and property involved. Hoyt v. American
Traders, Inc., 301 Or 599, 725 P2d 336 (1986)
Claim
before administrative agency does not permit filing of lis pendens notice because claim filed
outside court system does not qualify as “suit.” Doughty v. Birkholtz,
156 Or App 89, 964 P2d 1108 (1998)
Claim
before Construction Contractors Board does not permit filing of lis pendens
notice because regulatory power of board does not include power to determine
interest in real property. Doughty v. Birkholtz, 156
Or App 89, 964 P2d 1108 (1998)
93.850
NOTES OF DECISIONS
This
section does not preclude implication of a warranty of habitability in the sale
of new dwelling houses where the seller is a builder-vendor; overruling Steibner v. Palumbo, 219 Or 479, 347 P2d 978 (1959). Yepsen v. Burgess, 269 Or 635, 525 P2d 1019 (1974)
Warranty
against encumbrances includes warranty against nonexcluded
encumbrances that were known to grantee at time of conveyance. Leach v. Gunnarson, 290 Or 31, 619 P2d 263 (1980)
It
was not error for trial court to decide that prescriptive easement for driveway
was encumbrance within meaning of this section and to grant summary judgment
where defendant did not present evidence from which reasonable person could
conclude that easement came with an exception to general rule that warranty
deed warrants against all encumbrances unless expressly set forth in deed.
Brown v. Baker, 67 Or App 283, 677 P2d 741 (1984)
Warranty
that grantor is seized of estate and has right to convey has no common law or
other exception for adverse possession. Wright v. Hinnekamp,
69 Or App 591, 687 P2d 163 (1984)
Under
statutory warranty deed, grantor is not liable to grantee for costs and
attorney fees incurred by grantee in defending unsuccessful claim for adverse
possession. Chaney v. Haeder, 90 Or App 321, 752 P2d
854 (1988)
Where
defendants simply conveyed “lot 16” without making any covenant about where lot
was on ground defendants did not breach covenant of title when they conveyed
property that contained house that trespassed onto neighboring lot, but
defendants did breach covenant against encumbrances and had to indemnify
purchasers for damages purchasers paid for trespass. Bryant v. Moritz, 97 Or
App 481, 776 P2d 1299 (1989), Sup Ct review denied
Where
there was no evidence defendants’ sellers had made any covenants in deed by
which sellers conveyed property to defendants, sellers had no obligation to
indemnify defendants for what they had to indemnify plaintiffs for trespass.
Bryant v. Moritz, 97 Or App 481, 776 P2d 1299 (1989), Sup Ct review denied
93.905 to 93.945
LAW REVIEW CITATIONS: 22 WLR 379 (1986)
93.915
NOTES OF DECISIONS
Notice
of default sent to person holding power of attorney for purchaser was
sufficient. Ho v. Presbyterian Church of Laurelhurst, 116 Or App 115, 840 P2d
1340 (1992), Sup Ct review denied
Where
required information not stated directly in notice could be readily determined
from information given, notice was sufficient. Ho v. Presbyterian Church of
Laurelhurst, 116 Or App 115, 840 P2d 1340 (1982), Sup Ct review denied;
Carroll v. Newcomb, 132 Or App 526, 888 P2d 1062 (1995)