Conveyancing Flashcards
Contract for Sale of Real Property
Must have:
- Description of the property
- Name of the parties
- Price
Exception to SOF: THE DOCTRINE OF PART PERFORMANCE
2 Requirement must be satisfied to rely on this exception:
- The oral contract must be certain and clear
- The acts of partial performance must clearly prove up the existence of a contract
- To satisfy second requirement look for the Buyer to take possession of the property AND
1. Buyer paid full (or close to full) purchase price; or 2. Buyer built improvements on the property; or
3. Look to see that the Buyer took possession of the property and then took some further action (in partial performance of the K) that clearly proves up the existence of K.
Equitable Conversion
Once the contract is signed, equity treats the property as buyer’s land and buyer bears risk of loss.
Death of Party in Escrow Period
If either party to the contract dies before closing, equity will order specific performance of K if necessary.
Marketable Title
Title that a reasonably prudent buyer would accept, which means minor defects do not matter (since they do no present significant threat of litgation.
To Satisfy Implied Covenant of Marketable Title Seller Must Provide Buyer with 3 Things
- Proof of title
- Title free of encumbrances
- Valid legal title on day of closing
Circumstances that will render title unmarketable
- Adverse Possession: If even a portion of the title rests on adverse possession, it is unmarketable. S must be able to provide good record title.
- Encumbrances - Seller has up until closing to free of encumbrances
- Zoning violations = Title is unmarketable if the property violates a zoning ordinance.
Buyers Remedies for Failure to Delver Marketable TItle
- Rescission
- Damages
- Specific Performance
Remedy for Breach of K for Sale of Real Property
General Rule: Measure of damages is the difference between the K price and the value of the property as of the date of the breach.
Liquidated Damages
Will be enforced so long as the amount is reasonable, which means that it should not exceed 10% of the contract price.
Implied Warranty of Fitness
- Applies only to sale of new residential housing by builder-seller.
- Caveat Emptor - applies in all other situations
*** Georgia has not adopted this implied warranty of habitability in the case of the sale of new housing by builder-seller. But if builder seller conceals the defect, the builder will be liable.
Deed Formalities
Must
- Execution (in writing and describes the land)
- Delivery- Legal test is solely a question of whether the Grantor had the necessary INTENT to pass title -No physical transfer of deed is required
- Acceptance- implied unless facts show otherwise
Present and Future Covenants of General Warranty Deed
Present Covenants - (Personal to Grantee and do not run w/ the land)
- Covenant of seisen (who owns it);
- Covenant of Right to Convey;
- Covenant Against Encumbrances
Future - (Run w/ the land and can be enforced by subsequent purchasers)
- Covenant of Quiet Enjoyment;
- Covenant of Warranty;
- Covenant of Future Assurances (the “mopup”)
***GA- all 6 run with the land and therefore can be enforced by any subsequent purchaser
Estoppel by Deed Doctrine
- Under this doctrine, the courts say that the Grantor gave an implied covenant that title will be conveyed to the Grantee.
- Therefore that Grantee can sue to compel the transfer of the title from the Grantor
Effect of Subsequent Sale to BFP in using Estoppel by Deed Doctrine
-Sale to BFP will cut off the rights of an earlier grantee and therefore will cuot off that Grantee’s right to rely on the Estoppel by Deed doctrine
