CONVEYANCING Flashcards

1
Q

Statute of Frauds (2)

A
  1. writing (desc of prop, parties, price)

2. signed by one sued

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2
Q

Part Performance (exception to S of F)(2)

A
  1. oral K CLEAR and CERTAIN

2. the acts of part perf must CLEARLY prove existence of K

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3
Q

Part Performance Proof (2)

A

buyer took possession and then further action (in part perf of K) that clearly prove existence AND EITHER:

  1. paid full or close to full purchase price
  2. buyer built improvements on prop
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4
Q

Equitable Conversion (risk of loss)

A

@ CL once K is signed, treats property as buyers and BUYER BEARS RISK (even if seller remained in possession and control of prop)

*RULE ONLY APPLIES IF SELLER NOT AT FAULY

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5
Q

Equitable Conversion (death of seller, death of buyer, before closing)

A

SELLER DIES:

 1. buyer closes with S estate and buyer pays 
 2. seller retains PERS PROP INT

BUYER DIES:

 1. seller closes with B estate and S gives title
 2. buyer retains REAL PROP INT
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6
Q

What is marketable title?

A

implied covenant that the SELLER will deliver marketable title to BUYER at close (free from encumbrances)

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7
Q

Marketable title (definition)

A

title that a REASONABLY PRUDENT BUYER would accept (minor defects ignored)

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8
Q

Marketable Title (seller MUST provide 3 things)

A
  1. proof of title (tangible ev)
  2. title free of encumbrances (no easements, mortgages, restrictive covenants, options etc)
  3. valid legal title on day of closing
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9
Q

IF Title NOT MARKETABLE…(2)

A
  1. buyer must notify seller
    AND
  2. reasonable time to cure
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10
Q

Failure to deliver Marketable Title (buyer remedy) (3)

A
  1. rescission
  2. sue for damages
  3. specific performance - coupled with a reduction in purchase price to reflect defects in sellers title
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11
Q

Time of Performance (when)

A

K will specify date for closing, then REAS TIME TO (up to 2 months)

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12
Q

“Time is of the Essence”

A

not of the essence unless K says otherwise or clear intent of both parties

*if violated- TOTAL BREACH

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13
Q

Breach of K remedies for REAL PROPERTY SALE (3)

A

DAMAGES

  1. difference btwn (K price)- (value on breach date)
  2. Liquidated damages- reasonable not exceeding 10%

SPECIFIC PERFORMANCE
-available for both bc land is UNIQUE

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14
Q

Defects on property on CLOSING DATE (disclosure)

A

CL: “Caveat Emptor”
-exception: ACTIVE CONCEALMENT

MOD/MAJ TREND: duty to disclose those KNOWN to seller and NOT OBVIOUS to buyer

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15
Q

Implied Warranty of Fitness (or Merchantability)

A

-applies to Builder- Seller, Developer

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16
Q

“caveat emptor” continues to apply to: (3)

A
  1. commercial property
  2. agricultural land
  3. unimproved land
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17
Q

Merger of DEED and CONTRACT

A

K provisions extinguished UNLESS:
1. K specifies they survive closing
OR
2. they’re included in the deed itself

18
Q

Deed Requirements (EXECUTION) (3)

A
  1. writing
  2. signed by seller (buyers doesn’t matter)
  3. descr land with SUFFICIENT ACCURACY
    (metes and bounds control over acreage or any other)
19
Q

Deed Requirements (DELIVERY) (2)

A
  1. whether grantor had necessary intent to pass title (no physical transfer of deed required)
  2. recording (raises a presumption)
    * grantor dies with deed still in possession, presumption of NO DELIVERY
20
Q

Conditional Delivery (2)

A
  1. delivery of future interest - YES
    (ex. to A but not until i die)
  2. condition of G’ee payment of purchase price
21
Q

Conditional Delivery (G’ee payment of purchase price) (3)

A
  1. delivery of deed to 3rd p in escrow
  2. instructs escrow agent to deliver deed to g’ee when condition satisfied (oral instructions are sufficient for bar exam)
  3. once g’or delivers, can’t get back - ONCE G’EE SATIFIES GETS PROPERTY
22
Q

“Plurality Rule” (oral conditions)

A

ex. Xena to Hercules but you gotta vaporize Gabriella

IGNORE oral condition and consider delivery complete

23
Q

Acceptance of Deed (2)

A
  1. only valid if accepted

2. IMPLIED unless facts show otherwise

24
Q

Deed Formalities

A
  1. execution
  2. delivery

*consideration not needed

25
Q

Quitclaim Deed

A

G’or makes no promises regarding title

26
Q

General Warranty includes 6 TRADITIONAL COVENANTS FOR TITLE

A
  1. seisin
  2. right to convey
  3. against encumbrances
  4. quiet enjoyment
  5. warranty
  6. further assurances
27
Q

Present Covenants (3) and traits

A
  1. SEISIN-title, possession, and validly convey both
  2. RIGHT TO CONVEY-title, possession, and validly convey both
  3. AGAINST ENCUMBRANCES- none other than those previously disclosed
  • breached at the moment of conveyance
  • can sue immediately
  • PERSONAL SO DO NOT RUN WITH THE LAND
28
Q

Future Covenants (3) and traits

A
  1. QUIET ENJOYMENT-promise to protect against 3rd p claims to greater title
  2. WARRANTY-promise to protect against 3rd p claims to greater title
  3. FURTHER ASSURANCES- if something omitted to pass valid, S promises to do whatever necessary to pass title to buyer
  • breached LATER at DISTURBED POSSESSION
  • DO RUN WITH LAND so enforceable by all SUBSEQUENT PURCHASERS
29
Q

Breach of Covenant of title (warranty)

A

amount of purchase price received by WARRANTOR plus INCIDENTAL damages

30
Q

Estoppel by Deed

A

Courts say that G’or gave an IMPLIED COVENANT that title will be conveyed to the G’ee, therefore H’ee can SUE TO COMPEL transfer

31
Q

Estoppel by Deed (subseq sale to BFP)

A

Sale to a BFP will cut off the rights of an earlier G’ee therefore cutting off the rights to rely on estoppel by deed doctrine

32
Q

Ademption

A

if will is to devise a SPECIFIC PARCEL of land but testator does not own at time of her death the gift is ADEEMED

-if subject to an exec K of sale (in escrow) –> devisee receives proceeds from the sale of the property

33
Q

Exoneration

A

CL: if subject to mortgage or other lien, lien had to be EXONERATED (absolved) and devisee entitled to exoneration from testators estate

MAJ: ABOLISHED, devisee takes subject to mortgage

34
Q

Lapse and Anti-Lapse

A

CL: if devisee died BEFORE testator, LAPSES and void

MODERN: most have adopted anti lapse, allows gift to go to certain relatives of predeceasing beneficiary

35
Q

Trust (5)

A
  1. writing
  2. by settlor
  3. transfer of title
  4. to trustee (hold and manage)
  5. beneficiaries
36
Q

Trust (creation) (2)

A
  1. inter vivos by DEED

2. will

37
Q

Trustee (3)

A
  1. legal title
  2. act in accordance with written instructions (if any)
  3. strict fiduciary

-if dies can appoint substitute

38
Q

Trusts and RAP

A

RAP APPLICABLE and in the same manner as deeds

EXCEPTION: “charity to charity trusts”

39
Q

Charitable Trust

A

EITHER:
1. established charities (red cross)
OR
2. large groups of persons (ex. victims of hurricane katrina)

40
Q

“Cy Pres” (charitable trusts)

A

court may alter the trams of a charitable trust in order to further settlers intent

(“cy pres” meaning “as near as can be”)