Assorted DE Distinctions Flashcards
Fee Tail
A fee tail landowner has the right of possession until death, at which time the estate passes to the next closest lineal descendant, who also takes a fee tail, and so on down the line.
The tail can be eliminated at the election of the owner by transferring as a fee by a deed.
If the fee tail owner does not convey a fee simple by deed, at death the property passes to the closest lineal descendent.
Language - “O to A and the heirs of my body” or “to A and his lawful issue”
Rule Against Perpetuities
Delaware also has RAP for Trusts which is modified to be after 110 years from the later of
1. the date on which property is purchased or added to by the trust; or
2. the date the trust became irrevocable.
Such interest must be distributed to the named beneficiary as if the trust terminated.
(NO RAP to personal prop in trust, DE business trusts, or charitable trusts.)
Agricultural Land Sale Contracts
Every contract for the sale of agricultural lands which are subject to an agricultural lease shall include within its terms notice to the purchaser of the terms of the agricultural lease.
This provision is for the benefit of the purchaser.
The purchaser of reality takes subject to the rights of the tenant under the lease if the purchaser has notice of the lease, and the notice may be actual or constructive.
If disclosure is not made to the buyer, and may be so material to the transaction that it would permit setting aside of the sale.
Deed Requirements
Deed must:
a. Be in Writing
b. Identify the grantor/grantee
c. be signed by the grantor
d. identify and adequately describe the property, and
e. be delivered
Deed need not be notarized, sealed, or recorded to be valid as against the grantor.
General Warranty Deeds
Includes warranties of title for any defects or encumbrances caused by the previous owners
Special Warranty Deed
Default in DE
States the individual personally did not encumber the land and has proper title to the land. Provides warranties of Seison, Title, and Against Encumbrances
Quitclaim Deed
Conveys property but makes no assurances as to encumbrances or title
An acknowledgment is required for quitclaim deeds.
Recording Deeds
Need:
1. address of grantee;
2. tax parcel number; and
3. name and address of preparer of the deed
Lis Pendens
A pending lawsuit against the property.
When a claimant files a lawsuit, the claimant can record notice that he brought that lawsuit so the buyer will have a lien and will have notice which creates a security interest against that property.
To establish a lis pendens:
1. the claimant must file a lawsuit;
2. file a notice of pendency;
3. record that notice; and
4. follow procedures
If the claimant does the above, then that notice of pendency is valid for 3 years.
Delaware Recording Act
Race Notice
The person who records their ownership of a property first gets to keep it, but only if they didn’t know about any other claims on the property that weren’t recorded yet.
Adverse Possess
Statutory Period is 20 years
DE Guest Statute
a. a guest without payment; or
b. a trespasser unless the injury was caused by the intentional acts of the owner or the owner’s willful or wanton disregard of the rights of others.
Attractive Nuisance
- Applies to child trespassers.
- A landowner has the duty to prevent foreseeable harm to minors from attractive nuisance created by artificial conditions on the land.
DE Tenants by the entirety
-Presumed if silent and the owners are married.
-Upon divorce, the interest is a TIC
-If the tenant mortgages the property without knowledge or consent of the co-tenant, that mortgage will be held invalid
DE Co-Tenants Waste
a. TCs have a duty not to waste the property and also a duty a duty to contribute to repair and upkeep the property.
b. Waste claims may be brought in chancery court.
c. Permissive Waste:
1. is when an owner allows the land to deteriorate and/or lose value by failure to repair and maintain the property.
d. Relief
1. A party may file for partition to divide the property in family court (former spouse) and can also seek compensation for losses caused by the other party’s waste.
2. Family Court has jurisdiction over partician claims for either married parties or parties that are former spouses.
3. In DE, a TC or JT has the right to bring a partition claim.
a. prop can either be sold or literally chopped in half (partition in kind) (favored)
DE Transfers/Division of Interest
DE law provides that a tenant may transfer or transfer part of their interest to another to create a Joint Tenancy or Tenancy by the Entirety even though the 4 unities requirement for “same time” is absent.
DE Simultaneous Death Statue
For intestate succession in property, another must survive for more than 120 hours to receive a share in the estate.
DE HOAs and Other Associations and Committees
a. Such associations cannot make decisions that are arbitrary, capricious or unreasonable and there is no standard upon which decisions could be made in a fair, objective, reasoned, and non-arbitrary manner.
b. If the restrictions provide some standard, they may be enforced.
1. A standard that the improvements be in harmony with other improvements in the community could be enforced to prevent installation if the improvements on the other homes in the community presented a cohesive visual style.
c. Vague or over board standards may be enforced if the restrictions contain an enforceable standard and that standard is consistently and reasonably applied.
DE Deeds
The prior understandings of the parties are deemed to be merged into the deed, which instrument then reflects the sole agreement of the parties with respect to the subject matter thereof.
General warranty v special warranty DE
a. Special Warranty Deed is presumed in DE if no specific language in the deed specifically provides otherwise.
b. A special warranty deed includes a warranty from the grantor to the grantee against any defects in title or encumbrances caused by the grantor, but not from any other person.
c. The grantor specifically warrants that:
1. he has not previously sold this property to another; and
2. nor did the grantor create an encumbrance such as an easement or lien conferring rights to the property in another person that is not disclosed of record.
a. This is a limited warranty that (unlike a general warranty deed) gives the grantee no protection against conveyances or acts of 3rd parties, such as predecessor owners.
d. “grant to convey” language is interpreted as a special warranty deed.
DE Variance
Must petition the zoning board for a variance.
May be granted if the property owner can show that by no fault of his own, some property error resulted in breaching the zoning requirement
DE TIC
- DE presumes a tenancy in common if not said in the transfer and the receiving couple are not married.
- A tenant in exclusive possession does not need to pay rent to the co-tenants for his use of the property absent ouster.
- Generally, a co-tenant in possession cannot compel contribution for improvements from the out-of-possession co-tenants and must wait until partition to recover for the improvements.
a. but if the tenant in possession has been collecting rent and already has the money, they may deduct the cost of improvements from the rents and profits they are required to pay to the out-of-possession co-tenants.
