Conveyancing Flashcards
2 Step Process for Conveyancing
- Contract of Sale
- At closig comes the conveyance
Contract Sale and the Escrow Period
- 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
Contract Law Principles During the Escrow Period
- Statute of Frauds
- Doctrine of Part Performance
- Risk of Loss - Doctrine of Equitable Conversion
- Death of a Party before close of Escrow
- Marketable Title
- Time of Performance
- Remedies for Breach of Contract for Sale of Real Property
- Defects on the Property at Date of Closing
Statute of Frauds for the Contract of Sale
Any interest in real property must be in signed writing, signed by the party to be sued. Must include:
- Description of property
- Names of the Parties; and
- Price
Doctrine of Part Performance for the Contract of Sale
This is an exception to the statute of fradus that can be established by satisfying 2 requirements:
- The oral contract must be certain and clear; and
- The act of partial performance must clearly prove the existence of the contract
Risk of Loss - Doctrine of Equitable Conversion for Contract of Sale
- 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
Death of a Party Before Close of Escrow
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
Marketable Title and Escrow
Every land sale contract contains an implied covenant that the sell will deliver marketable title at the close of the escrow period
Definition of Marketable Title
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)
To satisy marketable title, the Seller must provide the Buyer with:
3 things:
- Proof of Title
- Title Free of Encumberances
- Valid Legal Title as of Date of Closing
Proof of Title
Provides buyer with tangible evidence of title
Title Free of Encumberances
Title must be free of:
- Easements
- Restrictive Covenants
- Mortgages
- Options
- etc
Other than those previously disclosed to the buyer***
If the buyer determines that the seller’s title is not marketable…
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
Buyer’s Remedies for Seller’s Failure to Deliver Marketable Title
- Recission
- Damages
- 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.
Time of Performance for Contract of Sale
- 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:
- The contract says otherwise; or
- 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