CONVEYANCING

Question 1

Statute of Frauds (2)

Answer 1

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

2. signed by one sued

Question 2

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

Answer 2

1. oral K CLEAR and CERTAIN

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

Question 3

Part Performance Proof (2)

Answer 3

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

Question 4

Equitable Conversion (risk of loss)

Answer 4

@ 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

Question 5

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

Answer 5

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

Question 6

What is marketable title?

Answer 6

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

Question 7

Marketable title (definition)

Answer 7

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

Question 8

Marketable Title (seller MUST provide 3 things)

Answer 8

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

Question 9

IF Title NOT MARKETABLE…(2)

Answer 9

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

Question 10

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

Answer 10

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

Question 11

Time of Performance (when)

Answer 11

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

Question 12

“Time is of the Essence”

Answer 12

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

*if violated- TOTAL BREACH

Question 13

Breach of K remedies for REAL PROPERTY SALE (3)

Answer 13

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

Question 14

Defects on property on CLOSING DATE (disclosure)

Answer 14

CL: “Caveat Emptor”
-exception: ACTIVE CONCEALMENT

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

Question 15

Implied Warranty of Fitness (or Merchantability)

Answer 15

-applies to Builder- Seller, Developer

Question 16

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

Answer 16

1. commercial property
2. agricultural land
3. unimproved land

Question 17

Merger of DEED and CONTRACT

Answer 17

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

Question 18

Deed Requirements (EXECUTION) (3)

Answer 18

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)

Question 19

Deed Requirements (DELIVERY) (2)

Answer 19

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

Question 20

Conditional Delivery (2)

Answer 20

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

Question 21

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

Answer 21

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

Question 22

“Plurality Rule” (oral conditions)

Answer 22

ex. Xena to Hercules but you gotta vaporize Gabriella

IGNORE oral condition and consider delivery complete

Question 23

Acceptance of Deed (2)

Answer 23

1. only valid if accepted

2. IMPLIED unless facts show otherwise

Question 24

Deed Formalities

Answer 24

1. execution
2. delivery

*consideration not needed

Question 25

Quitclaim Deed

Answer 25

G’or makes no promises regarding title

Question 26

General Warranty includes 6 TRADITIONAL COVENANTS FOR TITLE

Answer 26

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

Question 27

Present Covenants (3) and traits

Answer 27

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

Question 28

Future Covenants (3) and traits

Answer 28

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

Question 29

Breach of Covenant of title (warranty)

Answer 29

amount of purchase price received by WARRANTOR plus INCIDENTAL damages

Question 30

Estoppel by Deed

Answer 30

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

Question 31

Estoppel by Deed (subseq sale to BFP)

Answer 31

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

Question 32

Ademption

Answer 32

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

Question 33

Exoneration

Answer 33

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

Question 34

Lapse and Anti-Lapse

Answer 34

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

Question 35

Trust (5)

Answer 35

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

Question 36

Trust (creation) (2)

Answer 36

1. inter vivos by DEED

2. will

Question 37

Trustee (3)

Answer 37

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

-if dies can appoint substitute

Question 38

Trusts and RAP

Answer 38

RAP APPLICABLE and in the same manner as deeds

EXCEPTION: “charity to charity trusts”

Question 39

Charitable Trust

Answer 39

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

Question 40

“Cy Pres” (charitable trusts)

Answer 40

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

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