Competing Claimants Flashcards
What are the 3 major components of Adverse Possession?
Physical - actually, openly, notoriously and exclusively occupying land
Mental - Occupying land with a hostile intent
Time - has to be on land continuously for stat. period (common law - 20 years)
What is tacking?
Tacking allows an adverse possessor to satisfy a statutory requirement by adding his time in possession to that of his predecessor (must be privity - a transfer from one adverse possessor to another.
What does the adverse possessor get?
Generally - portion of land she actually occupied.
Exception - if you occupy a significant part of the land described in the deed, you take the entire property described in the deed. (Color of title)
N.B - Adverse possessor can only take what the current owner has
Disability
An issue with the record owner can suspend or toll the running of the statute of limits. *minority status TX, insanity TX and imprisonment. Disability can toll the running of statute of limits ONLY if disability exists in the record owner when adverse possession begins.
Statute of Frauds
Requires a writing for transfer of interest in real property. Terms needed - description of property, description of parties, price, and any conditions
Exceptions to statute of frauds
Doctrine of part performance - may be used to enforce an otherwise invalid oral contract of sale, provided part performance (payment of all/part of purchase price, taking of possession, and making substantial improvements. (TX requires all 3)
Rules on Equitable conversion
Majority - Buyer bears the risk of loss upon formation of the K
Minority uniform vendor and purchaser risk act(TX) - Risk of loss placed with seller, unless legal title/possession has passed to the buyer
Marketable title
- All Ks for sale of real property include implied promise to convey marketable title. Doesn’t mean perfect title, just reasonably free from doubt in both law and fact.
- Remember - obligation to provide marketable title arises only at the time of the closing of the deal.
- can use proceeds of the sale to remove a cloud on title and make it marketable
Duty to Disclose Defects
seller of a residential home has duty to disclose to buyer - material latent defects know to the seller, but not readily observable or known to the buyer
- Only applies to commercial builders/developers of new residential homes
- TX: in writing, applies only to sellers, not real estate agents, and applies to the sale of new or used homes
Implied warranty of quality
Applies to contractors and commercial sellers of real property.
- Covers significant latent defects caused by the D’s poor workmanship
- TX - applies to both first and subsequent purchasers, and NO DISCLAIMER ALLOWED
Merger doctrine
- at closing, land sale K merges into the deed, and seller loses the ability, in general, to sue on the K
- after closing, buyer must sue on covenants contained in the deed
Quitclaim Deed
Contains no covenants. Buyer can’t sue on it. Take it as is
Warranty Deed
Buyer can sue on one or more covenants of title contained in the deed
General warranty deed
Contains all 6 covenants of title, and covers all of the period prior to seller conveying to the buyer.
Special warranty deed
May contain some of the covenants, usually is limited to the period of the grantor’s ownership
Covenants of Title: Present Covenants
- Seisin - promise by grantor that they own the property
- Right to convey
- Covenant against encumbrances
(n. b. - present covenants do not run with land - can only be breached at the time of closing. Suit can be brought later on, but breach occurs at closing)
Covenants of Title: Future Covenants
- Quiet enjoyment
- Warranty
- Future assurances
Runs with land, breach can be at the time of closing or afterwards - SOL begins to run when the grantee is evicted by someone w/paramount title
Death during the Executory Period
- If seller dies after execution of the K but before closing - legal title passes to heirs; MUST honor sales agreement
- If buyer dies after execution of K but before closing - Right to close passes to his heirs/devisees
3 Requirements of a valid conveyance of real property by deed
- Deed sufficient to satisfy Statute of Frauds
- Delivery of the Deed
- Deed must be accepted by the buyer
How does a deed satisfy the Statute of Frauds?
- Identify the parties
- Words indicating an intent to make a present transfer of the property
- Sufficient description of the property
- Must have grantor’s signature
Recording Statutes
- Race Statute
- Notice statute
- Race-notice statute
Notice Statute
TX. Subsequent purchaser prevails if he pays valuable consideration and takes without notice of prior interest.
(both mortgagee and judgment creditor is considered to have paid value)
Types of notice
- Actual notice - what you actually know
- Constructive notice - comes through recording act. As soon as you properly record a deed - constructive notice to world that property is yours
- Inquiry notice - exists if appearance of land is such that claimant should have asked more Qs about title to the property
Race-Notice Statute
Subsequent purchaser prevails against a prior interest only if the subsequent purchaser:
- pays valuable consideration
- takes his interest w/o notice of prior interest
- records before the prior interest
