2013 North Dakota Century Code Title 47 Property Chapter 47-10 Real Property Transfers
Download as PDF
CHAPTER 47-10
REAL PROPERTY TRANSFERS
47-10-01. Method of transfer.
An estate in real property, other than an estate at will or for a term not exceeding one year,
can be transferred only by operation of law or by an instrument in writing, subscribed by the
party disposing of the same or by the party's agent thereunto authorized by writing. This does
not abridge the power of any court to compel the specific performance of any agreement for the
sale of real property in case of part performance thereof.
47-10-02. Sale of realty - Duty of seller.
An agreement to sell real property binds the seller to execute a conveyance in form
sufficient to pass the title to the property.
47-10-03. Agreement to give usual covenants on sale - Duty imposed.
An agreement on the part of a seller of real property to give the usual covenants binds the
seller to insert in the grant covenants of seizin, quiet enjoyment, further assurance, general
warranty, and against encumbrances.
47-10-04. Form of covenants.
The covenants mentioned in section 47-10-03 must be in substance as follows:
The party of the first part covenants with the party of the second part that the former now is
seized in fee simple of the property granted, that the latter shall enjoy the same without any
lawful disturbance, that the same is free from all encumbrances, that the party of the first
part and all persons acquiring any interest in the same through or for the party of the first
part on demand will execute and deliver to the party of the second part, at the expense of
the latter, any further assurance of the same that reasonably may be required, and that the
party of the first part will warrant to the party of the second part all the said property against
every person lawfully claiming the same.
47-10-05. Grants - Execution - Witnesses sufficient - Seal unnecessary.
The execution of a grant of an estate in real property to entitle the same to be recorded, if it
is not acknowledged, must be proved by a subscribing witness or as otherwise provided in
sections 47-19-23 and 47-19-24. The absence of the seal of any grantor or grantor's agent from
any grant of an estate made in real property shall not invalidate or in any manner impair the
same.
47-10-05.1. Presumption of corporate authority of officers - Application.
An officer of any foreign or domestic corporation, or a manager of any foreign or domestic
limited liability company, is presumed to have the power and authority to execute and
acknowledge, in its behalf, any instrument granting, conveying, or otherwise affecting any
interest in or lien upon any property of the corporation or limited liability company, including
contracts, mortgages, deeds, plats, replats, easements, rights of way, options, dedications,
restrictions, releases, and satisfactions. Any such instrument executed by an officer of the
corporation or limited liability company prior to July 1, 1983, and otherwise proper, is valid and
effective.
47-10-06. Form of grant.
A grant of an estate in real property may be made in substance as follows:
This grant made the ________ day of ______, in the year of ______, between A.B., of
______, of the first part, and C.D., of ______, of the second part, witnesseth: That the
party of the first part hereby grants to the party of the second part in consideration of
______ dollars, now received, all the real property situated in ______, and bounded
(or described) as follows:
_____________________________
Page No. 1
Witness the hand of the party of the first part.
A.B.
47-10-07. Deed - Execution - Post-office and street address of grantee a prerequisite.
Each deed executed in which real estate is described shall contain the post-office address,
and any known or existing street address if within the corporate boundaries of a city, of each
grantee named in such deed.
47-10-08. Grant conclusive against whom.
Every grant of an estate in real property is conclusive against the grantor and every one
subsequently claiming under the grantor, except a purchaser or encumbrancer who in good faith
and for a valuable consideration acquires a title or lien by an instrument that first is duly
recorded.
47-10-09. Grant valid pro tanto.
A grant made by the owner of an estate for life or years, purporting to transfer a greater
estate than the owner could transfer lawfully, does not work a forfeiture of the owner's estate but
passes to the grantee all the estate which the grantor could lawfully transfer.
47-10-10. Title to highway, street, alley, and public right of way - Vacation.
A transfer of land bounded by a highway, street, alley, or public right of way passes the title
of the person whose estate is transferred to the soil of the highway, street, alley, or public right
of way in front to the center thereof unless a different intent appears from the grant. Every
conveyance of real estate, which abuts upon a vacated highway, street, alley, or other public
right of way, shall be construed, unless a contrary intent appears, to include that part of such
highway, street, alley, or public right of way which attaches either by operation or presumption of
law, to such abutting real estate upon such vacation.
47-10-11. Easements - Pass by transfer of property to which attached.
A transfer of real property passes all easements attached thereto and creates in favor
thereof an easement to use other real property of the person whose estate is transferred in the
same manner and to the same extent as such property obviously and permanently was used by
the person whose estate is transferred, for the benefit thereof, at the time when the transfer was
agreed upon or completed.
47-10-12. Warranties - Lineal and collateral abolished - Exceptions.
Lineal and collateral warranties with all their incidents are abolished but the heirs and
devisees of any person who has made any covenant or agreement in reference to the title of, in,
or to any real property are answerable upon such covenant or agreement to the extent of the
land descended or devised to them in the cases and in the manner prescribed by law.
47-10-13. Grant presumes fee simple title.
A fee simple title is presumed to be intended to pass by a grant of real property unless it
appears from the grant that a lesser estate was intended.
47-10-14. Grant takes effect on performance of condition.
An instrument purporting to be a grant of real property to take effect upon a condition
precedent passes the estate upon the performance of the condition.
47-10-15. After-acquired title.
When a person purports by proper instrument to convey real property in fee simple and
subsequently acquires any title or claim of title to the real property, the real property passes by
operation of law to the person to whom the property was conveyed or that person's successor. A
quitclaim deed that includes the word "grant" in the words of conveyance, regardless of the
words used to describe the interest in the real property being conveyed by the grantor, passes
Page No. 2
after-acquired title. The use of a quitclaim deed, with or without the inclusion of after-acquired
title in the deed, does not create any defect in the title of a person that conveys real property.
This section applies to any conveyance regardless of when executed.
47-10-16. Reconveyance when estate defeated by nonperformance of condition
subsequent.
When a grant is made upon condition subsequent and subsequently is defeated by the
nonperformance of the condition, the person otherwise entitled to hold under the grant must
reconvey the property to the grantor or the grantor's successors by grant duly acknowledged for
record.
47-10-17. Encumbrances defined.
The term encumbrances includes taxes, assessments, and all liens upon real property.
47-10-18. Liability of grantor.
Whoever conveys real estate by deed or mortgage containing a covenant that it is free from
all encumbrances, when an encumbrance appears of record to exist thereon, whether known or
unknown to that person, shall be liable in an action of contract, to the grantee and the grantee's
heirs, executors, administrators, successors, grantees, or assigns for all damages sustained in
removing the same.
47-10-19. Covenants implied from use of word grant.
From the use of the word "grant" in any conveyance by which an estate of inheritance or fee
simple is to be passed, the following covenants, and none other, on the part of the grantor for
the grantor and the grantor's heirs to the grantee and the grantee's heirs and assigns, are
implied unless restrained by express terms contained in such conveyance:
1. That previous to the time of the execution of such conveyance, the grantor has not
conveyed the same estate, nor any right, title, or interest therein, to any person other
than the grantee; and
2. That such estate, at the time of the execution of such conveyance, is free from
encumbrances done, made, or suffered by the grantor, or any person claiming under
the grantor. Such covenants may be sued upon in the same manner as if they had
been inserted expressly in the conveyance.
47-10-20. Attornment - When unnecessary.
Grants of rents, reversions, or remainders are good and effectual without attornments of the
tenants, but no tenant, who before notice of the grant shall have paid rent to the grantor, must
suffer any damage thereby.
47-10-21. Reservation of coal limited to description.
Repealed by S.L. 1979, ch. 187, § 108.
47-10-22. Reservation without description ineffectual.
Repealed by S.L. 1979, ch. 187, § 108.
47-10-23. Transfer by grantor to the grantor and another in joint tenancy.
Any person, firm, corporation, or limited liability company owning a legal or equitable title to
or interest in any real property in the state of North Dakota may sell, transfer, and convey the
same as grantor to the grantor and any other person, firm, corporation, or limited liability
company, including the spouse of said grantor, in joint tenancy, with right of survivorship, without
the necessity of any transfer or conveyance to or through any third person.
Page No. 3
47-10-23.1. Nontestamentary transfer between spouses - Presumption.
A nontestamentary transfer of real property between spouses shall be presumed to be for a
consideration, and not a gift, unless otherwise stated in writing at the time of transfer. This
presumption is conclusive.
47-10-24. Description and definition of minerals in leases and conveyances.
All conveyances of mineral rights or royalties in real property in this state, excluding leases,
shall be construed to grant or convey to the grantee thereof all minerals of any nature
whatsoever except those minerals specifically excluded by name in the deed, grant, or
conveyance, and their compounds and byproducts, but shall not be construed to grant or
convey to the grantee any interest in any gravel, clay, or scoria unless specifically included by
name in the deed, grant, or conveyance.
No lease of mineral rights in this state shall be construed as passing any interest to any
minerals except those minerals specifically included and set forth by name in the lease. For the
purposes of this paragraph the naming of either a specific metalliferous element, or
nonmetalliferous element, and if so stated in lease, shall be deemed to include all of its
compounds and byproducts, and in the case of oil and gas, all associated hydrocarbons
produced in a liquid or gaseous form so named shall be deemed to be included in the mineral
named. The use of the words "all other minerals" or similar words of an all-inclusive nature in
any lease shall not be construed as leasing any minerals except those minerals specifically
named in the lease and their compounds and byproducts.
47-10-25. Meaning of minerals in deed, grant, or conveyance of title to real property.
In all deeds, grants, or conveyances of the title to the surface of real property executed on
or after July 1, 1983, in which all or any portion of the minerals are reserved or excepted and
thereby effectively precluded from being transferred with the surface, all minerals, of any nature
whatsoever, shall be construed to be reserved or excepted except those minerals specifically
excluded by name in the deed, grant, or conveyance and their compounds and byproducts.
Gravel, clay, and scoria shall be transferred with the surface estate unless specifically reserved
by name in the deed, grant, or conveyance.
47-10-26. Authority of trustee.
The trustee of a trust that holds title to real property is presumed to have the power to sell,
convey, and encumber the real property unless restrictions on that power appear in the records
of the county recorder.
47-10-27. Manufactured homes - Affixation to real property - Conveyance or
encumbrance as real property.
1. For purposes of this section, "manufactured home" means a manufactured home as
defined in section 41-09-02. Notwithstanding this definition, for purposes of 11 U.S.C.
1322(b)(2), a manufactured home is deemed real property. For purposes of this
section, a manufactured home is permanently affixed if the manufactured home is
anchored to real property by attachment to a permanent foundation; constructed in
accordance with applicable state and local building codes and manufacturer's
specifications as provided in title 24, Code of Federal Regulations, part 3285; and
connected to residential utilities, such as water, gas, electricity, or sewer or septic
service.
2. To convey or voluntarily encumber a manufactured home as real property, the
following conditions must be met:
a. The manufactured home must be permanently affixed to real property;
b. The ownership interests in the manufactured home and the real property to which
the manufactured home is or will be permanently affixed must be identical,
provided, however, that the owner of the manufactured home, if not the owner of
the real property, is in possession of the real property under the terms of a lease
Page No. 4
c.
d.
3.
a.
in recordable form that has a term that continues for at least twenty years after
the date of execution and the consent of the lessor of the real property;
The person having an ownership interest in the manufactured home shall execute
and record with the recorder of the county in which the real property is located an
affidavit of affixation as provided in subsection 3 and satisfies the other applicable
requirements of this section; and
Upon receipt of a recorded copy of the affidavit of affixation under subsection 5, a
person designated in the affidavit for filing with the department of transportation
shall file the recorded copy of the affidavit of affixation with the department of
transportation, except that:
(1) In a circumstance described in item 1 of subparagraph a of paragraph 4 of
subdivision a of subsection 3, the recorded copy of the affidavit of affixation
and the original manufacturer's certificate of origin, each as recorded in the
county in which the real property is located, must be filed with the
department of transportation under subsection 1 of section 39-05-35;
(2) In a circumstance described in item 1 of subparagraph b of paragraph 4 of
subdivision a of subsection 3, the recorded copy of the affidavit of affixation,
as recorded in the county in which the real property is located, and the
original certificate of title must be filed with the department of transportation
under subsection 2 of section 39-05-35; and
(3) In a circumstance described in item 2 of subparagraph a of paragraph 4 of
subdivision a of subsection 3, item 2 of subparagraph b of paragraph 4 of
subdivision a of subsection 3, or paragraph 6 of subdivision a of
subsection 3, the recorded copy of the affidavit of affixation, as recorded in
the county in which the real property is located, and an application for
confirmation of conversion must be filed with the department of
transportation under subsection 3 of section 39-05-35.
An affidavit of affixation must contain or be accompanied by:
(1) The name of the manufacturer, the make, the model name, the model year,
the dimensions, the manufacturer's serial number of the manufactured
home, and whether the manufactured home is new or used;
(2) (a) A statement that the party executing the affidavit is the owner of the
real property described in the affidavit; or
(b) If not the owner of the real property:
[1] A statement that the party executing the affidavit is in possession
of the real property under the terms of a lease in recordable form
that has a term that continues for at least twenty years after the
date of execution of the affidavit; and
[2] The consent of the lessor of the real property endorsed upon or
attached to the affidavit and acknowledged or proved in the
manner as to entitle a conveyance to be recorded;
(3) The street address and the legal description of the real property to which the
manufactured home is or will be permanently affixed;
(4) (a) If the manufactured home is not covered by a certificate of title, a
statement by the owner to that effect, and either:
[1] A statement by the owner of the manufactured home that the
manufactured home is covered by a manufacturer's certificate of
origin, the date the manufacturer's certificate of origin was
issued, the manufacturer's serial number, and a statement that
annexed to the affidavit of affixation is the original manufacturer's
certificate of origin for the manufactured home, duly endorsed to
the owner of the manufactured home, and that the owner of the
manufactured home will surrender the manufacturer's certificate
of origin to the department of transportation; or
[2] A statement that the owner of the manufactured home, after
diligent search and inquiry, is unable to produce the original
Page No. 5
4.
manufacturer's certificate of origin for the manufactured home
and that the owner of the manufactured home will apply to the
department of transportation for a confirmation of conversion of
the manufactured home; or
(b) If the manufactured home is covered by a certificate of title, either:
[1] A statement by the owner of the manufactured home that the
manufactured home is covered by a certificate of title, the date
the title was issued, the title number, and that the owner of the
manufactured home will surrender the title; or
[2] A statement that the owner of the manufactured home, after
diligent search and inquiry, is unable to produce the certificate of
title for the manufactured home and that the owner of the
manufactured home will apply to the department of transportation
for a confirmation of conversion of the manufactured home;
(5) A statement whether the manufactured home is subject to one or more
security interests or liens and:
(a) If the manufactured home is subject to one or more security interests
or liens, the name and address of each party holding a security
interest in or lien on the manufactured home, including each holder
shown on any certificate of title issued by the department of
transportation, the original principal amount secured by each security
interest or lien, and a statement that the security interest or lien will be
released; or
(b) A statement that each security interest in or lien on the manufactured
home, if any, has been released, together with due proof of each
release;
(6) If the manufactured home is not covered by a manufacturer's certificate of
origin or a certificate of title, a statement by the owner of the manufactured
home to that effect and that the owner of the manufactured home will apply
to the department of transportation for a confirmation of conversion of the
manufactured home;
(7) A statement that the manufactured home is or will be permanently affixed to
the real property;
(8) If the party executing the affidavit acquired the manufactured home before
the affixation of the manufactured home to the real property, that party shall
complete one of the statements required by subsection 2 of section
11-18-02.2; and
(9) The name and address of a person designated for filing the recorded copy
of the affidavit of affixation with the department of transportation to whom
the recorder shall return the recorded copy of the affidavit of affixation after
the affidavit has been duly recorded in the real property records as provided
in subsection 5.
b. An affidavit of affixation must be duly acknowledged or proved in like manner as
to entitle a conveyance to be recorded, and when so acknowledged or proved
and upon payment of the lawful recording fees, the recorder shall immediately
cause the affidavit of affixation and any attachments to the affidavit to be duly
recorded and indexed under chapter 47-19.
c. The affidavit of affixation must be accompanied by an applicable fee for recording
and issuing a recorded copy of the affidavit.
The act of permanently affixing a manufactured home to real property or the recording
of the affidavit of affixation does not impair the rights of a holder of a security interest in
or lien on a manufactured home perfected as provided in section 35-01-05.1, unless
and until the due filing with and acceptance by the department of transportation of an
application to surrender the title as provided in subsection 1 of section 39-05-35 and
the release of the security interest or lien as provided in section 39-05-16.1. Upon the
Page No. 6
5.
6.
7.
8.
9.
filing of a release, the security interest or lien perfected under section 35-01-05.1 is
terminated.
The affidavit of affixation must be presented for recording pursuant to chapter 47-19,
together with the fees provided by law. Upon receipt from the recorder of a copy of the
recorded affidavit of affixation by the person presenting the affidavit for recording, that
person shall deliver for filing to the department of transportation the copy of the
affidavit of affixation and the other documents as provided in subdivision d of
subsection 2.
A manufactured home is deemed to be real property when all of the following events
have occurred:
a. The home is permanently affixed to land as provided in subsection 1;
b. An affidavit of affixation conforming to the requirements of subsection 3 has been
recorded in the conveyance records in the office of the recorder in the county
where the manufactured home is permanently affixed;
c. A copy of the recorded affidavit of affixation has been delivered for filing to the
department of transportation as provided in subsection 5; and
d. The requirements of subsections 1 through 3 of section 39-05-35, as applicable,
have been satisfied.
Upon the satisfaction of the requirements of subsection 6, the manufactured home is
deemed to be real property; any mortgage, deed of trust, lien, or security interest
which can attach to land, buildings erected thereon, or fixtures affixed thereto attach
as of the date of its recording in the same manner as if the manufactured home were
built from ordinary building materials onsite. Title to the manufactured home must be
transferred by deed or other form of conveyance that is effective to transfer an interest
in real property, together with the land to which the structure has been affixed. The
manufactured home is deemed to be real property and is governed by the laws
applicable to real property.
Except as provided in subsections 3, 5, 6, and 7, an affidavit of affixation is not
necessary or effective to convey or encumber a manufactured home or to change the
character of the manufactured home to real property. A conveyance of land upon
which is located a manufactured home for which an affidavit of affixation has been
recorded does not effect a conveyance or encumbrance of any interest in the
manufactured home. A conveyance or encumbrance may only be made under the
provisions of chapter 39-05. An agreement by a party to the transaction whereby the
requirements of this subsection are waived is void as contrary to public policy.
Nothing in this section impairs any rights existing under law before July 1, 2009, of
anyone claiming an interest in a manufactured home.
Page No. 7
Disclaimer: These codes may not be the most recent version. North Dakota may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
