Conveyancing Flashcards
SOF Requirements for Land Sale Ks
Writing must be signed by the party to be charged and must contain all essential terms of the K, including: (i) description of the prop, (ii) identification of the parties to the K, (iii) price and manner of payment
Part Performance
A court may give specific performance of a K despite the absence of a writing if two of the following are met: 1) possession of the land by the purchaser, 2) substantial improvements made by the purchaser, or 3) payment of all or part of the purchase price by the purchaser
Equitable Conversion
Equity regards as done that which ought to be done; Buyer owns land once K is signed.
If the land is destroyed before closing, buyer bears risk of loss unless K states otherwise. If seller dies, bare legal title passes to takers of real property, who must give up the title to the buyer upon closing. If buyer dies, takers of real prop can demand a convetance of the land at the closing and takers of personal property must pay the purchase price
Implied Promises in Every Land K (2)
(1) Seller will provide marketable title; (2) Seller will not make false statements of material fact
Marketable Title
Title reasonably free from doubt; title that a reasonably prudent buyer would be willing to accept (no unreasonable risk of litigation). An unencumbered fee simple with good record title (no AP, no zoning violations, no signif encroachments, no easements/mortgages unless buyer has waived them)
Remedies for Breach of Sales K
Damages (diff between K price and market value of land on date of breach + incidentals); specific performance; return of buyer’s deposit if title is unmarketable and seller acted in GF
Seller’s Liability for Defects on Prop
No implied warranties of quality or fitness unless it’s a new house by the builder
Maj of states hold sellers liable for failing to disclose defects that the seller knows or should know about, that are not obvious, and that are serious and would cause the buyer to reconsider the purchase
As is clauses will not allow seller to avoid liability
Deed
Transfer of title to an interest in real property that is in writing and signed by the grantor, unambiguously identifies the land AND parties, and contains words of intent (no consideration necessary)
Void v. Voidable Deed
Void deed will be set aside by court even if prop has passed to a BFP; voidable deed will be set aside only if the property has not passed to a BFP
Delivery
Deed is not effective unless it is delivered; grantor’s present intent to be bound immediately regardless of whether the physical deed is handed over
Parol Evidence w/r/to delivery
Parol evidence is admissible to show grantor’s intent to delvier but NOT to show that delivery was conditional
Grantor Gives Deed to 3P
Conditional delivery permissible; Say O –> A naming B as grantee and instructs A to give it to B (this is a delviery)
Acceptance of a Deed
Usually presumed and usually relates back to the date of delivery of the deed in escrow unless it defeats the right of an intervening 3P; grantee can reject though
Quitclaim Deed
No promises (grantor still promises marketable title at closing though)
General Warranty Deed
Contains three present covenants (seisin, right to convey, against encumbrances) and three future covenants (quiet enjoyment, warranty, further assurances)
