Chapter 3. Titles and Conveyances
TITLE 25
Property
General Provisions
CHAPTER 3. TITLES AND CONVEYANCES
§ 301. Fines and common recoveries.
All fines and common recoveries levied and suffered within this State, in pursuance of or according to the common or statute laws of England, in the Superior Court of the county wherein the lands, tenements or hereditaments entailed lie shall be as good in law, to bar estates so entailed, as fines and common recoveries of lands, tenements or hereditaments levied, or suffered, in England are. Any heir at law or other person claiming any right in the lands, tenements or hereditaments may, either by appeal or writ of error, reverse such fines or recoveries for any errors in levying or suffering the fines or recoveries.
Code 1852, §§ 1639, 1640; Code 1915, § 3234; Code 1935, § 3697; 25 Del. C. 1953, § 301.;
§ 302. Bar of estate tail by deed.
A person having a legal or equitable estate or right in fee tail in possession, remainder or reversion, in any lands, tenements or hereditaments may alien the lands, tenements or hereditaments, in fee simple, or for other less estate, by deed, in the same manner and as effectually as if such estate or right were in fee simple. The deed of alienation in fee simple of any person, of any lands, tenements or hereditaments shall have the same effect and operation for barring all estate tail and other interests in the lands, tenements or hereditaments, as such persons being a party cognizor to a fine in due manner levied, or party vouchee to a common recovery with a double voucher in due manner suffered, of the lands, tenements or hereditaments. No deed shall avail within either of these provisions, unless it is duly acknowledged or proved according to law, or unless it would be a valid and lawful deed sufficient to pass the premises, if the maker were seized of the premises in fee simple.
Code 1852, § 1641; Code 1915, § 3235; Code 1935, § 3698; 25 Del. C. 1953, § 302.;
§ 303. Warranty by life tenant and collateral warranty.
A warranty made by a tenant for life shall not, by descending or coming to a person in remainder or reversion, bar or affect that tenant's title. A collateral warranty shall not in any case bar or affect a title not derived from the person making such warranty.
Code 1852, § 1642; Code 1915, § 3236; Code 1935, § 3699; 25 Del. C. 1953, § 303; 70 Del. Laws, c. 186, § 1.;
§ 304. Permanent leasehold estates as estates in fee simple.
Permanent leasehold estates, renewable forever, shall be considered to be estates in fee simple, and shall be subject to the same modes of alienation, power of devise, and rules of descent and distribution, and to all the incidents of an estate in fee, provided that the grantor of the leasehold or the person entitled to the estate, out of which the term issues, has first released to the grantee of the term or the person in possession of the leasehold all his right to the rent charged upon or growing out of the leasehold.
15 Del. Laws, c. 168; Code 1915, § 3237; Code 1935, § 3700; 25 Del. C. 1953, § 304; 70 Del. Laws, c. 186, § 1.;
§ 305. Deeds by foreign corporations; recording as evidence; ownership rights.
All deeds to lands in Delaware executed and delivered by corporations created by and existing under the laws of the states and territories of the United States of America, other than Delaware, or created by and existing under the laws of any foreign state or nation, are made valid and effective to convey the fee simple or other estate purported to be conveyed in such deeds, with the same force and effect as if the corporation grantor had been a corporation lawfully created by and existing under the laws of this State. Such deeds, when recorded, or any office copy thereof, shall be admitted as evidence in all courts of this State, and shall be valid and conclusive evidence, with the same force and effect as if such deeds had been properly executed, acknowledged and delivered by corporations created by and existing under the laws of this State. A foreign corporation owning lands in Delaware may exercise all rights and privileges of ownership to the same extent as if such corporation were a corporation lawfully created by and existing under the laws of this State.
26 Del. Laws, c. 253; Code 1915, § 3238; 38 Del. Laws, c. 174; Code 1935, § 3701; 25 Del. C. 1953, § 305.;
§ 306. Title and disposal of property by aliens.
All real and personal property situate in this State may be taken, acquired, held and disposed of by an alien in the same manner as by a citizen of this State.
26 Del. Laws, c. 251, § 1; Code 1915, § 3194; 32 Del. Laws, c. 188, § 1; 39 Del. Laws, c. 35, §§ 1, 2; Code 1935, § 3655; 25 Del. C. 1953, § 306.;
§ 307. Title derived through alien.
A good title to real and personal property situate in this State may be derived through, from or in succession to an alien in the same manner as through, from or in succession to a citizen of the State.
26 Del. Laws, c. 251, § 2; Code 1915, § 3195; 32 Del. Laws, c. 188, § 2; 39 Del. Laws, c. 35, §§ 1, 2; Code 1935, § 3656; 25 Del. C. 1953, § 307.;
§ 308. Validity of conveyances to or from aliens.
All conveyances to or from aliens of real or personal property situate in this State, at any time made, are validated, ratified and confirmed; and it is declared that the conveyances vested in the purchaser or purchasers the same estates and rights as they would have taken if the conveyance had been made between citizens of the State.
26 Del. Laws, c. 251, § 3; Code 1915, § 3196; 39 Del. Laws, c. 35, § 2; Code 1935, § 3657; 25 Del. C. 1953, § 308.;
§ 309. Conveyance of real estate between spouses.
(a) A married man may convey by deed, duly executed and acknowledged, real estate or any interest therein directly to his wife, and a married woman may convey by deed, duly executed and acknowledged, real estate or any interest therein directly to her husband, and every such conveyance of real estate or any interest therein, located in this State, made prior to or on or after December 21, 1965, shall be valid and effective in law and equity to convey the grantor's title and interest therein and thereto, whether both the grantor and grantee or either, respectively, shall have resided at the time of such conveyance within or without this State, and notwithstanding the wife or the husband, respectively, did not or does not join herein.
(b) This section shall be construed as authorizing a conveyance of an interest in real property:
(1) By either spouse, in any estate, tenancy or capacity other than tenancy by the entireties, without the joinder of the other spouse, to both spouses in any estate, tenancy or capacity;
(2) By either spouse, in any estate, tenancy or capacity other than tenancy by the entireties, without the joinder of the other spouse to the other spouse alone;
(3) By both spouses, in any estate, tenancy or capacity, to both spouses in any estate, tenancy or capacity; and
(4) By both spouses, in any estate, tenancy or capacity, to either spouse alone.
(c) All conveyance prior to June 29, 1998, and of a type described therein shall be deemed valid ab initio.
25 Del. C. 1953, § 309; 55 Del. Laws, c. 247; 68 Del. Laws, c. 318, § 1; 70 Del Laws, c. 186, § 1; 71 Del. Laws, c. 333, § 1.;
§ 310. Release of rights of curtesy or dower.
A married man may relinquish or release to his wife his right of curtesy in any real estate whereof his wife is seized of an estate of inheritance, and a married woman may relinquish or release to her husband her right of dower in any real estate whereof her husband is seized of an estate of inheritance, by deed duly executed and acknowledged, in the manner provided by law for deeds to be recorded, or by deed conveying such estate of inheritance in the real estate by the husband to the wife, or by the wife to the husband, wherein the husband's right of curtesy or the wife's right of dower is specifically relinquished or released and thereafter the real estate may be conveyed, encumbered, devised, or otherwise disposed of, and shall descend free and clear of any such right or estate of curtesy or dower, but the real estate may descend to the husband or wife, as the case may be, in case of the death of the wife or husband intestate, in accordance with law, notwithstanding such relinquishment or release.
25 Del. C. 1953, § 310; 55 Del. Laws, c. 247; 70 Del. Laws, c. 186, § 1.;
§ 311. Conveyance of real estate to create either joint tenancy with right of survivorship or tenancy in common with grantor.
Any conveyance of real estate made by the grantor to himself, herself or itself and another or others, either as joint tenants with right of survivorship or as tenants in common, shall, if otherwise valid, be as fully effective to vest either an estate in joint tenancy with right of survivorship or an estate as tenancy in common, as the case may be, in such real estate, in the grantees named, including the grantor, as if the same had been conveyed by the grantor therein to a third party and by such third party to said grantees.
25 Del. C. 1953, § 311; 58 Del. Laws, c. 269; 70 Del. Laws, c. 186, § 1.;
§ 312. Acquisition and conveyance of title to real estate by persons of the age of 18 years or older.
Any person of the age of 18 years or older who is not otherwise incompetent may contract to purchase, acquire, take, hold, sell, transfer, assign, lease, demise, encumber, or otherwise convey any estate, right, title or interest in real estate, may take title to and accept delivery of a deed, indenture, mortgage, lease, or other instrument of conveyance to any estate, right, title or interest in real estate and may execute, acknowledge and deliver a deed, indenture, mortgage, lease, or other instrument of conveyance for any interest, estate, right or title in real estate without the interference of a guardian, trustee or the like, and such deed, indenture, mortgage, lease or other instrument of conveyance for any interest, estate, right or title in real estate shall be valid and legally effective for all intents and purposes in law or in equity and shall bind that person, that person's heirs, executors and administrators.
25 Del. C. 1953, § 312; 58 Del. Laws, c. 439, § 3; 70 Del. Laws, c. 186, § 1.;
§ 313. Contract for sale of unimproved real estate; notice to buyer of public sewerage and water facilities.
Every contract for the sale of unimproved real estate located in the State shall have the following notice provision appear conspicuously therein:
"NOTICE TO BUYER: If the property being purchased hereunder is an unimproved parcel of land, buyer should consult with the appropriate public authorities to ascertain whether central sewerage and water facilities are available, or, if not, whether the property will be approved by appropriate public authorities for the installation of a well and private sewerage disposal system. If central sewerage and water facilities are not available, then this Contract is contingent upon: (1) a satisfactory site evaluation that will allow the installation of an approved on-site disposal system, in accordance with the regulations promulgated by the Department of Natural Resources & Environmental Control, that is acceptable to the buyer; (2) the availability of a water supply; and (3) the lot conforming with the local zoning ordinance; or this Contract shall become null and void and all deposits shall be returned to the buyer. The (buyer/sellers/authorized agent) ______ shall request the site evaluation on or before (date) ______. (Buyer/Seller) ______ shall pay all costs of complying with these provisions. The buyer and seller may modify these provisions or the buyer may waive these provisions of the Contract by attaching an addendum signed by the seller and the buyer."
65 Del. Laws, c. 306, § 1; 66 Del. Laws, c. 396, § 1.;
§ 314. Contract requirements for the sale of real estate involving seller financing.
(a) Every contract for the sale of improved or unimproved real estate under which the seller or sellers agree to provide any financing for the purchaser or purchasers shall include as an integral part of the contract a complete amortization schedule for all payments to be made under such financing agreement. Such amortization schedule shall:
(1) Include a per payment breakdown of principal and interest and a per payment computation of the unpaid principal balance remaining;
(2) Include a statement that the seller or sellers and purchaser or purchasers have read and understand the amortization schedule; and
(3) Be signed by the seller or sellers and purchaser or purchasers.
(b) Every contract for the sale of improved or unimproved real estate under which the seller or sellers agree to provide any financing for the purchaser or purchasers shall clearly state the principal amount of seller financing, exclusive of interest, which comprises the purchase price thereunder, and the amount of any interest to accrue under said seller financing shall not be included in the purchase price stated thereunder.
(c) No contract for the sale of improved or unimproved residential real estate under which the seller or sellers agree to provide any financing for the purchaser or purchasers, unless specifically permitted by preempting Federal law or regulation, shall remain executory for a period exceeding 6 months. The parties may renew the executory contract, by written agreement, for a period not exceeding more than an additional 6 months. The time between execution and final settlement of such a contract shall be no longer than those combined time periods. For purposes of this subsection "final settlement" shall mean a transaction wherein the seller conveys or sellers convey a deed to the residential real estate to the buyers in return for payment amounting to the purchase price, which may include a mortgage in the amount of any financing extended by the seller or sellers.
(d) Notwithstanding the provisions of subsection (c) of this section, the parties may agree, under the contract of sale to not engage in a final settlement until fulfillment of a condition of paying the last installment of the purchase price under a conditional sale, provided that the conditional sales agreement includes provisions indicating:
(1) The periodic rental value of the real estate, which is not to exceed 75% of the original periodic installment amount under the conditional sales agreement;
(2) In the event of buyer or buyers default for failure to pay, the buyer or buyers have a right to redeem the property by making full payment of the remaining contract amount within 120 days of the seller or sellers providing written notice of the default;
(3) If, after default, the buyer or buyers fail to redeem the property by full payment within 120 days, the contract converts by law to a landlord/tenant agreement, wherein rent shall be the rental value established in paragraph (d)(1) of this section above and which shall apply retroactive to the date of default;
(4) In the event of the agreement being converted to a landlord/tenant agreement after default, any amount paid by the buyer or buyers as a down payment on the conditional sales agreement shall be deemed a security deposit, with any amount exceeding that allowed by § 5514 of this title first being credited towards arrears in rent and any remainder excess paid to the tenant.
(e) Failure to comply with the requirements of either subsection (a), (b) or (c) of this section shall make the contract voidable at the option of either party to the contract prior to settlement.
(f) Failure to comply with the requirements of subsection (d) of this section shall make the contract voidable by the buyer or buyers under the conditional sales agreement at any time prior to the payment of the last installment under the agreement, unless in default for failure to pay under the agreement, under which circumstance the agreement shall be voidable by either party until such time as the conditional sales agreement is converted to a landlord/tenant agreement.
(g) In the event of a dissolution of an agreement under conditions stated in subsection (d) or (f) of this section, the Justice of the Peace Court shall have concurrent jurisdiction with the Court of Chancery to hear and adjudicate cases brought to enforce the rights of parties in the property, including, but not limited to, an action for an accounting.
68 Del. Laws, c. 227, § 1; 76 Del. Laws, c. 311, §§ 1-3.;
§ 315. Contracts for sale of agricultural lands.
Every contract for the sale of agricultural lands which are, either at the time of execution or at the time of settlement of said contract, subject to an agricultural lease shall include within its terms notice to the purchaser of the terms of said agricultural lease and the agricultural lease renewal provisions of Chapter 67 of this title.
69 Del. Laws, c. 211, § 1.;
§ 316. Display of flags.
No restriction shall be enforceable with respect to real property which prohibits or limits the ability of a property owner or tenant to display the flag of the United States of America provided such flag's measurement does not exceed 3 feet by 5 feet.
74 Del. Laws, c. 389, § 1.;
§ 317. Restriction on fee collection for community amenities by community developers and/or homeowner associations.
(a) A community developer, homeowner association, or other similar entity may not collect fees for an amenity that is not yet completed and available for residents' use in a community development.
(b) If fees for amenities are not differentiated on an itemized basis, no fee may be collected until all amenities are completed and available for use by residents in a community development.
(c) The Attorney General may enforce a violation of this section as a violation of consumer law under Chapter 25 of Title 6.
76 Del. Laws, c. 215, § 1; 77 Del. Laws, c. 284, § 1.;
§ 317A. Required disclosure of financial obligations in chain of title for new home sales [Effective Jan. 1, 2011]
(a) On or before the date that the contract of sale of a new home is delivered to the buyer, the seller shall deliver to the buyer:
(1) A copy of all documents in the chain of title that create any financial obligation for the buyer; and
(2) A written summary of all financial obligations created by documents in the chain of title.
(b) At the time the seller delivers the documents required by subsection (a) of this section, the seller shall obtain from the buyer a written acknowledgement that the buyer received those documents.
(c) The Attorney General may enforce a violation of this section as a violation of consumer law under Chapter 25 of Title 6.
(d) This section does not apply to transactions in which the seller has provided to the buyer either a public offering statement that includes the information required by § 81-403(a)(4) and (a)(16) of this title, or a resale certificate form, under Chapter 81 of this title, known as the Delaware Uniform Common Interest Ownership Act, or to a disposition that is exempt under § 81-401 of this title.
(e) The Delaware Real Estate Commission (DREC) shall modify or amend existing disclosure forms, or create forms as necessary, to ensure the timely and consistent delivery of financial information to the seller pursuant to subsection (a) of this section. The DREC shall have these forms modified, amended, or created by January 1, 2011.
77 Del. Laws, c. 283, § 1.;
§ 318. Restrictive covenants.
(a) As used in this section, "roof" or "roofs" means:
(1) A roof of a single family dwelling unit which is solely owned by a person, persons, trust or entity and which is not designated as a common element or common property in the governing documents of an association; and
(2) A roof of a townhouse dwelling unit, which for the purposes of this section means any single-family dwelling unit constructed with attached walls to another such unit on at least 1 side, which unit extends from the foundation to the roof, and has at least 2 sides which are unattached to any other building, and the repair of the roof for the townhouse dwelling unit is designated as the responsibility of the owner and not the association in the governing documents.
(b) No covenant, restriction, or condition contained in a deed, contract or other legal instrument which affects the transfer, sale or any other interest in real property that prohibits or unreasonably restricts the owner of the property from using a roof mounted system for obtaining solar energy on that owner's property shall be allowed in any deed contract or legal instrument recorded after January 1, 2010.
(c) This section shall not amend, nullify, or affect the enforceability of any covenant, restriction, or condition contained in a deed, declaration, contract or other legal instrument concerning land owned by a maintenance corporation or homeowner's association.
(d) This section shall not amend, nullify, or affect the enforceability of any conservation easement or historic preservation covenant.
(e) Any covenants, restrictions, or conditions contained in a deed or declaration, including a declaration under the Unit Property Act [§ 2201 et seq. of this title], for residential property which does not explicitly include a mechanism to amend the document, may hereafter be amended by a vote requiring the affirmative vote of 2/3 of the property owners. Covenants, restrictions, or conditions contained in a deed or declaration, including a declaration under the Unit Property Act [§ 2201 et seq. of this title], for residential property that prohibit or restrict the installation of rooftop or ground mounted solar systems may be amended to allow or promote installation of rooftop or ground mounted solar systems by an affirmative vote of 2/3 of the property owners.
(f) No covenant, restriction, or condition contained in a deed, contract, or other legal instrument which affects the transfer, sale, or any other interest in real property, which is zoned for residential use and the lot or lots are 1/2 of an acre or greater in size, that prohibits or unreasonably restricts the owner of the property from installing or using a ground mounted system for obtaining solar energy on that owner's property shall be allowed in any deed, contract or other legal instrument. A covenant, restriction, or condition which requires that fencing, landscaping, or other appropriate means be used to shield the system from view, so that it is not readily visible from adjacent streets shall be deemed to be a reasonable restriction.
77 Del. Laws, c. 144, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 454, §§ 1, 3.;
§ 319. Private transfer fee prohibition.
(a) Definitions. -- The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
(1) "Private transfer fee". --
a. "Private transfer fee" means a fee or charge payable upon the transfer of an estate or interest in real property, or payable for the right to make or accept a transfer of an estate or interest in real property, regardless of whether the fee or charge is a fixed amount or is determined as a percentage of the value of the property, the purchase price, or other consideration given for the transfer.
b. "Private transfer fee" does not include any of the following:
1. Any consideration payable by the transferee to the transferor for the estate or interest in real property being transferred or for a purchase money mortgage from the purchaser to the seller, or for payments from the transferee to transferor under a conditional sales agreement or installment sale.
2. Any commission or fee payable to the personal representative of an estate of a deceased person, a guardian, or trustee upon transfer of property.
3. Any commission or fee payable to an auctioneer or a licensed real estate broker upon the transfer of property under an agreement between the auctioneer or broker and the transferor or transferee.
4. Any commission or fee payable to a trustee in bankruptcy proceedings.
5. Any principal, interest, charges, fees, or other amounts payable by a borrower to a lender under a bona fide loan secured by a mortgage against real property, including but not limited to any fee payable to the lender for consenting to an assumption of the loan or a transfer of the real property subject to the mortgage, any fees or charges payable to the lender for estoppel letters or certificates, and any other consideration allowed by law and payable to the lender in connection with the loan or forgiveness of all or part of the loan. A payment by a transferor or transferee to a developer or builder or its assigns for a transfer of an estate or interest after the initial sale by the developer or builder is not a bona fide loan.
6. Any rent, reimbursement, charge, fee, or other amount payable by a tenant to a landlord under a rental agreement or lease, including but not limited to any fee payable to the landlord for consenting to an assignment, subletting, encumbrance, or transfer of the rental agreement or lease.
7. Any consideration payable to the holder of an option to purchase an estate or interest in real property or the holder of a right of first refusal or first offer to purchase an estate or interest in real property for waiving, releasing, or not exercising the option or right upon the transfer of the property to another person.
8. Any tax, fee, charge, assessment, fine, or other amount payable to or imposed by any governmental authority, a Sustainable Energy Utility under § 8059 of Title 29, or a public utility. or
9. Any fee, charge, assessment, fine, or other amount payable to the unit owners association of a common interest community or of a condominium for the benefit of the unit owners pursuant to a declaration, covenant, or law applicable to such association, including, but not limited to, permissible charges payable for resale certificates issued by the association or its authorized agent, or a start-up fee or capital contribution to the reserve fund providing such fund is not for the payment of financing arranged by the developer or builder.
(2) "Transfer" means the sale, gift, conveyance, assignment, devise by will, inheritance through intestate laws, or other transfer or release of an estate or interest in real property located in this State.
(3) "Transfer fee covenant" means a declaration or covenant purporting to affect real property which requires or purports to require the payment of a private transfer fee to the declarant or other person or entity specified in the covenant or declaration, or to their successors or assigns, upon a subsequent transfer of an estate or interest in the real property.
(b) Transfer fee covenant prohibition. -- A transfer fee covenant recorded in this State on or after July 27, 2010 or unrecorded shall not run with the title to real property and is not binding on or enforceable at law or in equity against any owner (legal or equitable), subsequent owner (legal or equitable), purchaser, or mortgagee of any estate or interest in real property as an equitable servitude, contract, or otherwise. Any lien purporting to secure the payment of a private transfer fee under a transfer fee covenant recorded in this State on or after July 27, 2010 is void and unenforceable. This section does not mean that a transfer fee covenant or lien arising from a transfer fee covenant recorded in this State before July 27, 2010 or unrecorded is presumed valid and enforceable.
(c) The Attorney General may charge the use of a transfer fee covenant in violation of this section as a violation of consumer law under § 2513 of Title 6 or this section may be enforced by private action.
77 Del. Laws, c. 448, § 1.;