Disputes About Ownership in Land Flashcards
Adverse Posession - General
Rule - doctrine of adverse possession allows a person in unlawful possession to acquire good title to a piece of property.
Misc Notes
- Until person acquires good title, that person is a trespasser
- When person acquires title through AP, new title relates back to date of person’s entry onto the property
- Property owned by government cannot be AP
Elements:
- Continuous for statutory period
- Open and Notorious
- Hostile and
- Exclusive
Adverse Possession - Continuous
Rule - possession must be continuous and uninterrupted for a specific period.
Trigger - time begins when AP’er enters the land
Use - continuous is not literal; seasonal or infrequent use may suffice if the use is consistent with the type of property being possessed
Tacking - AP’er may tack on her predecessor’s time on the property so long as current AP’er is in privity with the prior AP’er (e.g., prior AP’er selling interest to current AP’er )
Disabilities - if true owner was insane, infant, or imprisonedat time trespasser entered property, then SoL will not run
Interruptions - true owner can innterrupt the AP’er by ejecting the AP’er
OHIO - 21 years; if titled owner has a disability then period is 10 years after disability removied
Adverse Possession - Open + Notorious
Rule - adverse possessor’s use must be open and notorious such that it would put a reasonable true owner on noticeof the adverse use.
Adverse Possession - Hostile
Rule - adverse possessor’s possession must be adverse to the owner’s interest.
Majority - does not inquire into AP’ers state of mind
Minority - does inquire into AP’er state of mind; bad or good faith
Good Faith - AP’er must think the land is unowned or that she is rightful owner and possession is based on mistake
Bad Faith - AP’er must think land is owned and possession is based on aggressive trespass.
OHIO - only considered objective intent of claimant; must prove by clear and convincing evidence that possessed for 21 years and treated it as his own; no requirement to pay taxes but is a good indicator
Adverse Possession - Exclusive
Rule - adverse possessor cannot share possession with the true owner
Note - two people may acquire title by adverse possession and become tenant in common
Adverse Possession - Scope of Possession
Rule - traces the legal boundaries of the property and includes subsurface rights
Exception - constructive adverse possession - adverse possessor enters under color of title from an invalid instrument and occupies a portion of the property described in the instrument (actual possession of occupied land and constructive possession of the remainder)
Note: easements can also beacquired by adverse possession
Land Sale K - SoF
General - land sale contracts are subject to the statute of frauds and requires that the agreement 1) is in writing, 2) is signed by the party to be charged, and 3) includes the essential terms.
Essential terms - 1) parties, 2) description of the property, 3) price and payment information
Exceptions - 1) Part Performance & 2) Detrimental Reliance
- Part Performance - partial performance by either seller or buyer is treated as though a contract exists where such performance includes i) payment of all or part of the purchase price, ii) possession by the purchaser, or iii) improvements by the purchaser
Note - most jurisdictions require 2 of the 3 part performance indicators
- Detrimental Reliance - where party reasonably relied on the agreement and would suffer hardship if the contract were not enforced.
Land Sale K - Marketable Title
Rule - land sale contract includes an implied covenant of marketable title where title is free from an unreasonable risk of litigation.
Examples of Unmarketable - adverse possession title that has not been quieted, mortgage, covenant, easement, violation of a zoning ordinance
Cure - defect in title must be cured before closing
Standard of Review - judging whether title is unmarketable is done by a reasonble standard
Remedy - if marketable title undeliverable, then buyer may rescind the contract
OHIO - marketable title act - root of title goes back 40 years
Land Sale K - TIme is of the Essence
General - time is not of the essence and failure to meet closing date does not create grounds for voiding k unless
- stated in k
- circumstances indicate time was of the essence
OHIO - cases at law = time of the essence, cases in equity =/ time of the essence
Land Sale K - Implied Warrant of Fitness
Rule - warranty of fitness or warranty of quality, workmanlike construction is implied in a land sale contract for the purchase of a newly constructed residence.
Majority - both initial and subsequent purchasers may recover damages
Minority - only original buyer can enforce warranty
Time - suit for breach must be brought within a reasonable time after discovery of the defect
Land Sale K - Disclosure of Defects
Rule - seller has a duty to dosclose to buyer all known physical material defects.
Material - substnatially affect the value of the residence, impact the health or safety of a resident, or desirabilityof the residence.
Remedy - buyer may rescind or seek damages
Land Sale K - Merger
Rule - doctrine of merger states that obligations under the contract (e.g., duty to deliver marketable titled) are merged into the deed and therefore can’t be enforced unless the obligation is also in the deed.
Land Sale K - Tender of Performance
Rule - when one party repudiates the contract, the non-repudiating party is excused from performing. Seller inability to produce a marketable title does not automatically create breach but buyer must give seller sufficient time to cure the title defect.
Land Sale K - Remedies
Seller Remedies on Breach by Buyer
- Damages - difference between k price and market price
- Recission - seller can sell property to someone else
- Specific Performance
Buyer’s Remedies on Breach by Seller
- Damages - difference between k price and market value on date of breach (unless seller breached in good faith, then may only recover out of pocket expenses)
- Recission - return payments to buyer and cancel the contract
- Specific Performance
Land Sale K - Equitable Conversion and Risk of Loss
Majority Rule - buyer holds equitable title during period between the execution of the contract and the closing and delivery of the deed
I.e. - buyer responsible for damae to property that happens during this period; seller, as holder of legal title, has right to possess the property
Minority Rule - risk of loss on the seller until the closing and delivery of deed.
Land Sale K - Mortg. - Basics
Note - borrow promise ro repay loan/debt
Mortgage - instrument that provides security to the note
Mortgager - borrower
Mortgagee - lender
Types of Mortgages:
- Purchase Money Mortgage - loan for purpose of purchasing property
- Future Advance Mortgage - line of credit used for home equity, construction, business, etc. (second mortgage)
Land Sale K - Mortg. - Lien v Title States
Lien States - Majority - mortgage is lien that does not sever a joint tenancy
Title States - Minority - mortgage does sever joint tenancy and converts it to tenancy in commo
Land Sale K - Mortg. - Alternatives (Equitable Mortg.)
- Deed of Trust - trustee holds title for benefit of the lender, if borrower fails to pay note then trustee to sell the land to repay the note.
- Installment Land Contract - seller retains title until buyer makes final payment on an installment plan
Majority - if buyer breaches and misses a payment, the seller keeps installments made and property
Minority - mix bag of: i) seller has to foreclose, ii) buyer has equitable right of redemption, iii) seller may retain ownership but requires restitution of what’s been paid
- Absolute Deed - mortgagor transfers deed to the property instead of conveying a security interest in exchange for loan.
If borrower alleges “mortgage disguised as a sale” then must prove a mortgage-like agreement by clear and convincing evidence.
- Conditional Sale & Repurchase - owner sells property to lender who leases property back to owner in exchange for loan with option to repurchase at end.
