CONVEYANCING Flashcards
Statute of Frauds (2)
- writing (desc of prop, parties, price)
2. signed by one sued
Part Performance (exception to S of F)(2)
- oral K CLEAR and CERTAIN
2. the acts of part perf must CLEARLY prove existence of K
Part Performance Proof (2)
buyer took possession and then further action (in part perf of K) that clearly prove existence AND EITHER:
- paid full or close to full purchase price
- buyer built improvements on prop
Equitable Conversion (risk of loss)
@ 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
Equitable Conversion (death of seller, death of buyer, before closing)
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
What is marketable title?
implied covenant that the SELLER will deliver marketable title to BUYER at close (free from encumbrances)
Marketable title (definition)
title that a REASONABLY PRUDENT BUYER would accept (minor defects ignored)
Marketable Title (seller MUST provide 3 things)
- proof of title (tangible ev)
- title free of encumbrances (no easements, mortgages, restrictive covenants, options etc)
- valid legal title on day of closing
IF Title NOT MARKETABLE…(2)
- buyer must notify seller
AND - reasonable time to cure
Failure to deliver Marketable Title (buyer remedy) (3)
- rescission
- sue for damages
- specific performance - coupled with a reduction in purchase price to reflect defects in sellers title
Time of Performance (when)
K will specify date for closing, then REAS TIME TO (up to 2 months)
“Time is of the Essence”
not of the essence unless K says otherwise or clear intent of both parties
*if violated- TOTAL BREACH
Breach of K remedies for REAL PROPERTY SALE (3)
DAMAGES
- difference btwn (K price)- (value on breach date)
- Liquidated damages- reasonable not exceeding 10%
SPECIFIC PERFORMANCE
-available for both bc land is UNIQUE
Defects on property on CLOSING DATE (disclosure)
CL: “Caveat Emptor”
-exception: ACTIVE CONCEALMENT
MOD/MAJ TREND: duty to disclose those KNOWN to seller and NOT OBVIOUS to buyer
Implied Warranty of Fitness (or Merchantability)
-applies to Builder- Seller, Developer
“caveat emptor” continues to apply to: (3)
- commercial property
- agricultural land
- unimproved land
Merger of DEED and CONTRACT
K provisions extinguished UNLESS:
1. K specifies they survive closing
OR
2. they’re included in the deed itself
Deed Requirements (EXECUTION) (3)
- writing
- signed by seller (buyers doesn’t matter)
- descr land with SUFFICIENT ACCURACY
(metes and bounds control over acreage or any other)
Deed Requirements (DELIVERY) (2)
- whether grantor had necessary intent to pass title (no physical transfer of deed required)
- recording (raises a presumption)
* grantor dies with deed still in possession, presumption of NO DELIVERY
Conditional Delivery (2)
- delivery of future interest - YES
(ex. to A but not until i die) - condition of G’ee payment of purchase price
Conditional Delivery (G’ee payment of purchase price) (3)
- delivery of deed to 3rd p in escrow
- instructs escrow agent to deliver deed to g’ee when condition satisfied (oral instructions are sufficient for bar exam)
- once g’or delivers, can’t get back - ONCE G’EE SATIFIES GETS PROPERTY
“Plurality Rule” (oral conditions)
ex. Xena to Hercules but you gotta vaporize Gabriella
IGNORE oral condition and consider delivery complete
Acceptance of Deed (2)
- only valid if accepted
2. IMPLIED unless facts show otherwise
Deed Formalities
- execution
- delivery
*consideration not needed
Quitclaim Deed
G’or makes no promises regarding title
General Warranty includes 6 TRADITIONAL COVENANTS FOR TITLE
- seisin
- right to convey
- against encumbrances
- quiet enjoyment
- warranty
- further assurances
Present Covenants (3) and traits
- SEISIN-title, possession, and validly convey both
- RIGHT TO CONVEY-title, possession, and validly convey both
- 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
Future Covenants (3) and traits
- QUIET ENJOYMENT-promise to protect against 3rd p claims to greater title
- WARRANTY-promise to protect against 3rd p claims to greater title
- 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
Breach of Covenant of title (warranty)
amount of purchase price received by WARRANTOR plus INCIDENTAL damages
Estoppel by Deed
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
Estoppel by Deed (subseq sale to BFP)
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
Ademption
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
Exoneration
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
Lapse and Anti-Lapse
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
Trust (5)
- writing
- by settlor
- transfer of title
- to trustee (hold and manage)
- beneficiaries
Trust (creation) (2)
- inter vivos by DEED
2. will
Trustee (3)
- legal title
- act in accordance with written instructions (if any)
- strict fiduciary
-if dies can appoint substitute
Trusts and RAP
RAP APPLICABLE and in the same manner as deeds
EXCEPTION: “charity to charity trusts”
Charitable Trust
EITHER:
1. established charities (red cross)
OR
2. large groups of persons (ex. victims of hurricane katrina)
“Cy Pres” (charitable trusts)
court may alter the trams of a charitable trust in order to further settlers intent
(“cy pres” meaning “as near as can be”)
