Conveyances Flashcards
Acts of Part Performance
In Tx, all three requirements (possession, improvements, and payment) must be shown to exist at the same time
Doctrine of Equitable Conversion - ROL
Tx had adopted the Uniform Vendor and Purchaser Act which places the ROL on the seller unless the buyer has title or possession at time of loss
Title Acquired by AP
Tx courts view title acquired by AP as generally not marketable or merchantable b/c its existence cannot be determined through a title search
However, title acquired by AP may be perfected into record title either by proper releases and deeds from all adverse claimants or by a j/m quieting title in the AP from a court of competent jurisdiction
Remedies for Breach of Sales K - Liquidated Damages
Remedies for Breach of Sales K - Liquidated Damages
Seller’s Liability for Defective Property
A seller of a single-unit residential property must provide the purchaser w/ written notice disclosing the seller’s knowledge of the condition of the property, by no later than the effective date of K.
If the K is entered into w/o this notice, the buyer may terminate the K w/in 7 days after receiving it
This disclosure creates neither a warranty nor a substitute for the purchaser’s inspection
Notice is not required in certain transactions, such as transfers:
- pursuant to a court order or divorce decree
- b/w co-owners or immediate family
- to or from a gov’t entity
- as part of a foreclosure sale
Real Estate Brokers
Under Tx’s Real Estate License Act, a broker cannot recover a real estate commission unless the promise or agreement for payment is memorialized in writing and signed by the party to be charged
Licensed real estate brokers are expected to know about RELA’s SoF, and so doctrines such as promissory estoppel and quantum meruit provide no exceptions to this requirement
Formalities of Deeds
In Tx, the Statute of Conveyances also requires that a deed be in writing
A deed need not be dated, and unless it provides its own effective date, it is effective from the date of delivery
Defective Deeds
In Tx, a deed obtained by fraud is voidable as b/w the parties. However, the deed is valid and represents prima facie E of title until there has been a successful suit to set it aside
Actionable fraud justifying cancellation of a deed consists of either:
(i) knowingly or recklessly made false representation of a material fact; or
(ii) a promise to perform an act in the future, if the promise is material and made w/ the present intention not to perform
A forged deed is void and passes no title, not even to a BFP
Boundary Cases
Tx recognizes the CL rule that, absent an express reservation to the contrary, a conveyance of land abutting a street, public highway, or RR right of way also passes title to the center of the road or right of way if the appurtenant strip exists in fact at the time of the conveyance
This rule applies even if the description of the land in the deed or field notes terminates at the edge of the street, public highway, or RR right of way
This rule does not apply if:
(i) grantor owns land abutting both sides of the strip, or
(ii) the strip is larger and more valuable than the conveyed tract
Transfer on Death Deed
An owner may use a transfer on death deed to designate a transferee to receive title to property on the owner’s death w/o the necessity of probate
Transfer on death deed does not affect the transferor owner’s rights, and the owner retains the power to transfer or encumber the property or revoke the deed
No delivery of this deed is required; however, the deed must be recorded
Covenant for Further Assurances
This covenant is rarely, if ever, mentioned in Tx. It is generally viewed to have been subsumed into the covenant or warranty. The doctrine of after-acquired title serves the same purpose
No Implied Warranties or Covenants
The only covenants implied by statute in Tx are the covenants of no prior conveyances and the covenant against encumbrances. These covenants are implied whenever the words “grant” or “convey” are used in any conveyance by which an estate of inheritance or fee simple is transferred
Covenant Against Encumbrances
Encumbrances = taxes, assessments, and all liens on real property
Physical encumbrances have not been viewed as constituting an encumbrance unless they effect injury and damage. They are not viewed as encumbrances b/c they do not carry a pecuniary obligation on the party of the covenantee and are presumably considered by the purchaser in determining the price to be paid
Disturbance of Possession
In Tx, called an eviction of the grantee
Simply means an interference w/ the grantee’s possession or enjoyment of the property. Does not necessarily mean a physical removal from the property
Damages and Remote Grantees
Tx permits the recovery to the extent of the consideration received by the ∆-covenator
Statutory Special Warranty Deed
In Tx, there is no such thing as a statutory special warranty deed. While there is a statutory form for special warranty deeds, it carries no particular meaning.
A special warranty deed differs from a general warranty deed only in the scope of the warranty given by the grantor. The warranty is simply limited to those claiming by, through, or under the grantor, but not otherwise.
Quitclaim Deeds
Use of the term “deed” in a quitclaim deed can be misleading. A deed = a conveyance of real property, whereas a quitclaim is a transfer of whatever interest the grantor has
In Tx, unlike in a majority of states, quitclaim deeds place a grantee on inquiry notice
Identifying Quitclaim Deeds in Tx
Whether an instrument is a quitclaim deed is determined by what it claims to accomplish on its face. An instrument is NOT a quitclaim deed if it purports to convey the property described, rather than merely the grantor’s rights.
Courts consider the language of the instrument as a whole
Estoppel by Deed - Applies to Warranty Deeds
Also referred to in Tx as the doctrine of after-acquired title. In Tx, a covenant of warranty is not necessary to support the doctrine
Requirements for Recordation - Grantor Must Acknowledge the Deed
In Tx, a deed is entitled to be recorded if acknowledged before a person authorized to take acknowledgments or oaths but also if acknowledged in the presence of two or more credible Ws
*Where should deed be filed?
county clerk wherever land is located
*Notice Statutes
Tx’s recording act scheme is a PURE NOTICE system
Who is Protected by Recording Acts? J/m Creditors
In Tx, j/m creditors are a class of protected junior title holders only for cases falling w/in the ambit of the recording statute
J/m creditors are not considered to be innocent purchasers for value
Under the recording statute, j/m creditors take precedence over a prior unrecorded deed or deed of trust executed by the j/m debtor unless the j/m creditor has notice of the unrecorded instrument at or before the time the lien was fixed on the land
The rights of a j/m creditor are fixed at the time the abstract of j/m is recorded
Marketable Title Acts
Tx has no search cut-off date
*Inquiry Notice
While quitclaim deeds are valid in Tx, they put the grantee on inquiry notice of any doubts as to the grantor’s interest
Thus, the purchaser of a quitclaim deed will not qualify as a BFP under the recording act
*Warranties in a Trustee’s Deed
There are no warranties in a trustee deed, unlike a general warranty deed.
Risk you have to be willing to take when buying the property.
*What are the requirements for (a) valid and (b) recordable deed?
Valid: In Texas, deed must be signed by the party against whom enforcement is sought (no forgery) and also must state that price for the property and give a reasonable description of the tract to be conveyed. Must then be delivered or constructively delivered.
Recordable: In addition, the deed must either be notarized or signed by two witnesses. In order to be recordable, the deed must meet the latter requirements.
