Conveyancing Flashcards

1
Q

2 Step Process for Conveyancing

A
  1. Contract of Sale
  2. At closig comes the conveyance
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2
Q

Contract Sale and the Escrow Period

A
  • The contract of sale exists at the moment it is signed until the deed is transferred at closing.
  • This period is known as the escrow period and the contract laws apply
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3
Q

Contract Law Principles During the Escrow Period

A
  1. Statute of Frauds
  2. Doctrine of Part Performance
  3. Risk of Loss - Doctrine of Equitable Conversion
  4. Death of a Party before close of Escrow
  5. Marketable Title
  6. Time of Performance
  7. Remedies for Breach of Contract for Sale of Real Property
  8. Defects on the Property at Date of Closing
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4
Q

Statute of Frauds for the Contract of Sale

A

Any interest in real property must be in signed writing, signed by the party to be sued. Must include:

  1. Description of property
  2. Names of the Parties; and
  3. Price
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5
Q

Doctrine of Part Performance for the Contract of Sale

A

This is an exception to the statute of fradus that can be established by satisfying 2 requirements:

  1. The oral contract must be certain and clear; and
  2. The act of partial performance must clearly prove the existence of the contract
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6
Q

Risk of Loss - Doctrine of Equitable Conversion for Contract of Sale

A
  • Once the contract is signed, equity treats the property as the buyer’s land, and therefore, the buyer has the risk of loss
  • Because equity stands to enforce specific performance for a conveyance of land, equity treats the buyer as an owner of the property, even if the seller has remained in possession or control of the property
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7
Q

Death of a Party Before Close of Escrow

A

Because of the Doctrine of Equitable Conversion, if either party to the contract dies before closing, equity will still order specific performance of the property if necessary

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8
Q

Marketable Title and Escrow

A

Every land sale contract contains an implied covenant that the sell will deliver marketable title at the close of the escrow period

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9
Q

Definition of Marketable Title

A

Marketable title is title that a reasonably prudent buyer would accept, which means minor defects do not matter (since they do not pose a serious threat of litigation)

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10
Q

To satisy marketable title, the Seller must provide the Buyer with:

A

3 things:

  1. Proof of Title
  2. Title Free of Encumberances
  3. Valid Legal Title as of Date of Closing
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11
Q

Proof of Title

A

Provides buyer with tangible evidence of title

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12
Q

Title Free of Encumberances

A

Title must be free of:

  • Easements
  • Restrictive Covenants
  • Mortgages
  • Options
  • etc

Other than those previously disclosed to the buyer***

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13
Q

If the buyer determines that the seller’s title is not marketable…

A

then the buyer must notify the seller of any defect in the title and allow the seller a reasonable time to cure the defect - even if that means postponing the date of the closing

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14
Q

Buyer’s Remedies for Seller’s Failure to Deliver Marketable Title

A
  1. Recission
  2. Damages
  3. Specific Performance
    • which is reflected in a reduced purchase price that reflects the defect

If the buyer proceeds to close on the contract and accepts the deed without the problems with title being cured, then the buyer has no recourse against the seller based on the contract and may only base any action on the deed.

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15
Q

Time of Performance for Contract of Sale

A
  • Generally, the contract will specify the date of the closing. If a party fails to perform at time of closing, they will still have a reasonable time to render performance
  • Time is not of the essence for the land-sale K unless:
    1. The contract says otherwise; or
    2. the facts make clear that the parties intend that time is of the essence
  • If a Contract includes a time of essense clause and it is violated then the party who failed to perform is in total breach and therefore cannot enforce the contract
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16
Q

Rememdies for Breach of Contract For Sale of Real Property

A
  1. Damages
    • the measue of the damage is the difference between the contract price and the value of the property at the date of the breach
    • Liquidated damages clause says that the buyer forefeits his deposit if he breaches
      • These are enforceable if the amount is reasonable
        • Reasonable = 10% or less of contract sale price
  2. Specific Performance
    • this is an option to both buyer and seller
17
Q

Defects on the Property at the Date of Closing:

What if there are defects on the property that render the property unfit for ordinary purposes - can the buyer rescind?

A

Common Law - Caveat Emptor

  • Buyer could not recover from seller. Seller had no obligation to disclose defects from the buyer, but could not conceal any defects

Modern Trend - Majority Rule for Residential Sales

  • Impose a duty to disclose to a buyer serious defects that the seller knows of and are not obvious to the buyer.

Modener Rule - Implied Warranty of Fitness

  • In a majority of states today, the implied warranty of merchantability and fitness applies only to a residential building by a builder-seller. Common Law rule of Caveat Emptor applies in all situations
18
Q

Once the deed has been accepeted at closing…

A

Then the contract is extinguished

  • On closing the contract merges into the deed
19
Q

2 requirements for the deed to pass title

A
  1. Execution
  2. Delivery
20
Q

Execution of the Deed

A
  • Satisfy Statute of Frauds
  • The deed must describe the land with suffient accuracy in order to pass title
    • If the deed cannot identify the property that is being transferred, then the deed is void for vagueness and nothing gets transferred.
    • Parol evidence may be used to clarify
    • A land description by metes and bounds will description or any other more general description
21
Q

Delivery of the Deed

A
  • No physical transfer needed, intent to pass title is the only thing that matters
  • Recording the deed raises the presumption of delivery, even if the grantee has know idea of it
  • Once delivery occurs, title passes, so returning the deed has no effect
  • Parol evidence may be used to determine intent of grantor in delivery of the deed
  • If the grantor dies with the deed within her possession, then title is presumed to not pass. The burden switches to the grantee to show transfer
22
Q

Conditional Delivery Problems

A
  1. Delivery of a Future Interest
  2. Oral Conditions
  3. Delivery Conditioned on Grantee’s Payment of Purchase price
23
Q

Courts Will find Delivery of a conditional Future Interest valid if

A

The deed was physically transferred to the grantee already.

Ex: Deed physically transferred to X and it reads “to X but not until I die”

24
Q

Oral Conditions

A

Ignore the conditions and consider complete

25
Q

Delivery Conditioned on Grantee’s Payment of Purchase Price

A

This is generally valid, provided that:

  1. Grantor makes delivery of the deed to a 3rd party in escrow
  2. Grantor instructs escrow agent to deliver deed to grantee when the condition is satisfied (oral instructions are sufficient); and
  3. Once the grantor delivers the deed to the escrow agent, the grantor cannot get the deed back. As long as the grantee satisfies the condition, the grantee gets the property
26
Q

Acceptence of Delivery of the Deed

A
  • Delivery is only valid if accepted
  • Aceeptance will be implied unless facts show otherwise
  • Consideration not required
27
Q

Quitclaim Deeds

A

Grantor makes no promise regarding title

28
Q

Present covenenant

A
  • breached at moment the conveyance is made
  • personal to grantee and thus do not run with the land
29
Q

3 Present Covenants

A
  1. Covenant of Seisin and Covenent Right to Convey
    • These are interchangable
    • Seller’s promise that seller has title and possession and can validly convey both
  2. Covenant Against Encumberances
    • Seller promises there are no encumberances, other than those who have been previously disclosed to the buyer
30
Q

Future Covenents

A
  • Future covenents not breached immedietly when the conveyance is made, but rather at a later date when the grantee is disturbed in possession
  • Future covenents run with the land and thus can be enforced by subsequent holders
31
Q

3 Future Covenents

A
  1. Covenant of Warranty and Covenant of Quiet Enjoyment
    • these are interchangeable
    • represents the buyer’s promise that someone isnt going to come along later with paramount title
  2. Covenant of Further Assurances - the “Mop Up” Covenant
    • If seller omitted something required to pass valid title, seller promises to do whatever is necessary to pass title
      *
32
Q

Breach of a Covenant of Title

A

Where there is a breach of warranty, plaintiffs damages will be limited to the amount of the purchase price recieved by the warrantor plus incidental damages

33
Q

Estoppel by Deed Doctrine

A

courts say the grantor gave an implied covenant title will be conveyed to the grantee. Therefore the grantee can sue to compel the grantor to convey title.

A subsequent purchase by a BFP will cut off the grantee’s rights and the estoppel by deed.

34
Q

3 types of conveyance by Will Rules

A
  1. Ademption
  2. Exoneration
  3. Lapse and Anti-Lapse Statutes
35
Q

Ademption

A
  • If the Will purports to devise a parcel of land, but does not own that at the time of death, then the devise is adeemed.
  • The gift fails and will not be replaced
  • Does not apply to property in escrow, instead the devisee will recieive the proceeds from the sale of property
36
Q

Exoneration

A

At common law, if the devised property was subject to a mortgage or other lien, that lien had to be exonerated by the testator’s estate.

  • the devisee is entitled to have the lien paid off by the testator’s residuary and the property would pass to the devisee free of the lien

The modern rule abolishes this doctrine and the devisee will take the property subject to the mortgage

37
Q

Lapse and Anti-Lapse Statutes

A

If the beneficiary died before the testator, the gift lapses and thus is void. Anti-lapse statutes will prevent lapse and allow the gift to pass to the beneificaries estate