CH 7 Remedies Flashcards
Damages are ______ to calculate in a real estate transaction.
hard
What are earnest money deposits?
Earnest money deposits are essentially a form of liquidated damages; so long as real damages would be difficult to calculate, a reasonable earnest money deposit is okay as liquidated damages provided there is no disparity of bargaining power, duress, fraud, illegality, etc.
What do earnest money deposits serve as?
They serve as an award for damages and a deterrent.
What should a party be, if they are seeking specific performance as a remedy?
The party seeking this remedy must be ready, willing, and able to perform.
Why would someone seek reformation as a remedy?
The language of the contract had an error or a mistake…typically this requires a mutual mistake.
What does mutual mistake mean in Arkansas?
Mutual mistake means both parties have proceeded to contract with a common factual misunderstanding.
What does the remedy of rescission do?
It puts the parties in the position that they were in before entering into the contract.
What is the remedy of recession typically based on?
Typically based on grounds like fraud, misrepresentation, or mutual mistake.
What is the remedy of a vendor’s lien?
An interest in property which is reserved by the seller of the property for security of the purchase price.
Does a vendor’s lien need to be express or implied?
It can be either!
Can the vendor’s lien be waived? If so, how?
yes it can be waived.
it could be waived by the vendor’s affirmative intention; the vendor’s reliance on a substituted, independent security; or by the vendor’s reliance on the personal responsibility of the vendee
What is the remedy of slander of title?
This is a cause of action which protects against wrongful filings/recordings/encumbrances on real property (it is similar to normal defamation, just for property)
Slander of title requires a showing of _____________ intent.
malicious
What is Lis Pendens?
A notice filed in the real estate records that says that there is an ongoing lawsuit regarding the property.
What is Lis Pendens designed to do?
It is destined to put a cloud on the owner’s title.
In Arkansas, a ____ __________ is only used for anything affecting title or lien on real property.
Lis Pendens
What must be filed before filing a Lis Pendens? Why?
A lawsuit should typically be filed before a Lis Pendens filing.
Otherwise there is a risk of facing a slander of title lawsuit.
