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2025 Real Property > Competing Claims > Flashcards

Competing Claims Flashcards

1
Q

Define adverse possession

A

Method of acquiring title to another’s land by hostile continuous possession for a period of time

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2
Q

Elements of adverse possession

A

Continuous for statutory period; Hostile; Actual; Open & notorious; Exclusive

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3
Q

Default statutory period for adverse possession

A

20 years

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4
Q

What is ‘continuous’ possession?

A

Uninterrupted use of the property throughout the statutory period

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5
Q

Does seasonal or infrequent use count as continuous possession?

A

Yes, if consistent with the ordinary use of the property

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6
Q

Define tacking

A

When a trespasser adds a prior adverse possession period to meet the statutory requirement

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7
Q

When is tacking not allowed?

A

If the new trespasser has taken control of the property through hostile means

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8
Q

Does the SOL run if the rightful owner was disabled when the adverse possession started?

A

No, SOL will toll if rightful owner was disabled when the adverse possession started

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9
Q

What is ‘actual’ possession?

A

Actual, physical possession of the property

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10
Q

What is ‘open and notorious’ possession?

A

Obvious and not hidden; the owner would know of it with reasonable inspection

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11
Q

What does it mean for possession to be hostile?

A

Without the owner’s permission

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12
Q

Can a trespasser adversely possess the land with the owner’s permission?

A

No, defeats hostility requirement

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13
Q

If a renter overstays their lease, is this considered ‘hostile’ possession?

A

No, tenancy at sufferance exists, not adverse possession

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14
Q

Will a mistaken encroachment satisfy the intent needed for adverse possession?

A

Majority: Yes; Minority: No

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15
Q

Define color of title

A

Title that appears valid, but actually isn’t because of some flaw in the deed

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16
Q

Effect of adversely possessing the property under color of title

A

If adverse possessor occupies a significant portion of the land in the deed, the possessor is entitled to the entire property

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17
Q

Can you adversely possess government land?

A

No

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18
Q

Can a co-tenant acquire title to the whole property through adverse possession?

A

Yes, but only if the co-tenant clearly and unequivocably ousts the others from the land for the statutory period

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19
Q

When will a restrictive covenant run with land acquired by adverse possession?

A

Only if adverse possessor’s use was consistent with the covenant

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20
Q

Steps in a land transaction

A

Land contract; Closing; Deed transfer

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21
Q

Requirements for a land sale contract to satisfy the SOF

A

In writing; Signed by the parties to be bound; Contain essential terms

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22
Q

When does a land sale contract not need to satisfy the SOF?

A

If buyer does 2 of the following: Takes possession of the land; Makes physical improvements; Pays significant part of the purchase price

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23
Q

Define implied covenant of marketable title

A

Title is free from defects and unreasonable risk of litigation

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24
Q

What defects render a title unmarketable?

A

Encumberances; Covenants; Easements; Mortgages; Liens; Title acquired by adverse possession; Zoning violations; Incurable physical defects; Future interests that have not consented to transfer

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25
Can the buyer waive defects that render a title unmarketable?
Yes
26
Define duty to disclose
Seller has duty to disclose all material latent defects; and Seller cannot misrepresent or fraudulently conceal
27
Do disclaimers limit the seller’s liability for misrepresentation or fraudulent concealment?
No, disclaimers do not limit liability for misrepresentation or fraud
28
Deadline for seller to deliver marketable title
By the date of closing
29
What happens if the title is unmarketable at the time of closing?
Can make arrangements on the date of closing to earmark part of the purchase price to remedy the defect and make the title marketable
30
What can the buyer do if they discover the title is unmarketable?
Notify the seller before the closing date and give them a reasonable time to cure defects. If seller doesn’t cure, buyer can seek specific performance, damages, and an action to quiet title
31
What is the implied warranty of quality in construction/good workmanship?
For new property, implied promise that structures will be constructed in a 'good and workmanlike' manner
32
What’s the doctrine of merger and its effect?
Once the deed is transferred/conveyed to the buyer, the contract merges with the deed and the deed controls, not the contract
33
What is the doctrine of equitable conversion?
Doctrine that helps determine who bears the risk of loss. Once the buyer signs K to purchase land at a later date, but before closing: Buyer has equitable title; and Seller has legal title
34
Who bears the risk of loss if the property is destroyed prior to closing?
Holder of the equitable title (the buyer), regardless of whether buyer took possession yet
35
Exception to the doctrine of equitable conversion
Buyer will not bear the risk of loss if loss is attributable to the intentional or negligent acts of the seller
36
What happens if the buyer bears the risk of loss and the seller has insurance?
Seller should give the buyer a credit equal to the insurance proceeds against the purchase price
37
What happens if the seller dies before closing?
Seller’s interest is considered personal property & passes to seller’s devisees
38
What happens if the buyer dies before closing?
Interest treated as real property & buyer’s devisees can sue for transfer of property to themselves
39
Define deed
Instrument that passes legal title to the land from the seller to the buyer
40
What is required for a deed to be effective?
In writing and signed by grantor; Describe the parties and the land; Delivered
41
What types of actions show present intent to transfer the deed?
Physical delivery: mailing or handing the deed to the person; or Any other conduct or words that would imply present intent to transfer
42
If the grantor keeps the deed after writing it, has there been delivery?
No, rebuttable presumption that the grantor did not presently intend to transfer the property
43
Does giving the deed to the grantee’s agent count as valid delivery?
Yes
44
If the grantor transfers the deed to her own agent, and tells the agent to deliver the deed in the future, does the transfer count as delivery?
No, delivery only occurs once the agent actually delivers the deed to the grantee
45
Define death escrow
Occurs when grantor instructs agent to deliver deed to grantee upon grantor’s death
46
Define relation-back doctrine
If deed is given to third party and third party subsequently delivers deed to grantee, delivery date will be when deed was first given to the third party
47
Exceptions to the relation-back doctrine
There are multiple conditions on delivery by third party; or Grantor expressly retains the right to reclaim the deed from the third party
48
If a deed has been effectively delivered, can the grantor rescind it?
No
49
Is acceptance required for the deed transfer to be complete?
Yes, if grantee rejects the deed, no transfer has occurred
50
If the grantee accepts the deed, but then returns it to the grantor, has ownership been transferred back to the grantor?
No, merely giving it back to the grantor does not change ownership - a new deed must be validly executed for ownership to revert back to the grantor
51
What are the 3 types of deeds?
General warranty; Special warranty; and Quitclaim
52
Define quitclaim deed
Buyer takes the property 'as-is,' with no warranties, covenants, or promises
53
If the buyer has a quitclaim deed, can she sue the grantor if the grantor didn’t actually have title or the title is not free and clear?
No, buyer takes the interest 'as-is,' without any warranties or assurances
54
Define general warranty deed
Contains 6 present and future covenants of title that cover the property’s entire history
55
Define special warranty deed
Contains the same covenants of title as a general warranty deed, but only for the period of the seller’s ownership of the land
56
When is the only time a present covenant can be breached?
At the time of delivery
57
What is the only time that a future covenant can be breached?
After delivery of the deed
58
Define covenant of seisin
Grantor owns the property described in the deed
59
Define covenant of the right to convey
Grantor has the right to convey title
60
Define covenant against encumbrances
There are no encumbrances on the property
61
Define covenant of quiet enjoyment
Third party will not assert a claim for a title
62
Define covenant of warranty
Grantor will defend against a third party’s claim for title
63
Define covenant of further assurances
Grantor will do anything reasonably necessary to perfect the grantee’s title
64
Define bona fide purchaser for value (BFP)
Buyer who: Purchases property for value; Without notice of any prior claims
65
What are the 3 types of notice?
Actual; Record (also called constructive notice); and Inquiry
66
Define actual notice
Actual, personal knowledge of a competing claim
67
Define record notice
Implied to all persons when a conveyance is properly recorded
68
Define inquiry notice
Reasonable inspection would have revealed the prior claim
69
What are the types of recording statutes?
Notice; Race-notice; Race
70
Who prevails in a notice jurisdiction?
Subsequent bona fide purchaser if earlier purchase was not recorded and purchaser did not know of earlier purchase
71
Type of recording statute: 'No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof, unless it is recorded.'
Pure notice jurisdiction
72
Who prevails in a race jurisdiction?
First grantee to record
73
Type of jurisdiction: 'No conveyance or mortgage of an interest in land is valid against any subsequent purchaser whose conveyance is first recorded.'
Race jurisdiction
74
Who prevails in a race-notice jurisdiction?
First BFP to properly record
75
Type of statute: 'No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice who shall first record.'
Race-notice
76
Are mortgagees considered BFP’s and thus protected by recording acts?
Yes because they have paid value
77
Are grantees who were given the deed by gift or will protected by the recording statutes?
No, because they did not pay value. If they received the deed from a BFP, however, the Shelter Rule will apply and they will be protected
78
Define wild deed
Deed recorded outside of the chain of title; does not give notice to subsequent purchasers
79
Define estoppel by deed
If a landowner transfers title without actually owning it, and then subsequently does acquire title, she will be estopped from denying the validity of the first conveyance
80
Define Shelter Rule
If a buyer receives property from a BFP, they will also be protected as a BFP
81
Define ademption
When the testator gives real property to a beneficiary, but no longer owns the property at their death, the devise is adeemed. The named beneficiary takes nothing
82
Can ademption occur with both a specific devise and a general devise?
No, only with a specific devise
83
Effect of an anti-ademption statute on adeemed gifts
The devisee is entitled to the proceeds from the sale of land

2025 Real Property (8 decks)

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