Final Flashcards
1
Q
Adverse Possession (Statutory Definition) §16.021(1)
A
Actual and visible appropriation of real property, commenced and continued under a claim of right, that is inconsistent with and is hostile to the claim of another person.
2
Q
Color of Title
A
a consecutive chain of transfers to the person in possession that is not regular because of a muniment that is not properly recorded or is only in writing or because of a similar defect that does not want of intrinsic fairness or honesty
3
Q
Peaceable possession §16.021(3)
A
possession of RP that is continuous and is not interrupted by an adverse suit to recover the property
4
Q
Title
A
a regular chain of transfers of real property from or under the sovereignty of the soil
5
Q
Memorandum of title
A
A written document reflecting a transfer of title. A will meets the requirement as does a tax deed issued by the sheriff at a tax sale.
6
Q
Muniment of title
A
Document that provides evidence of title (will, deed)
7
Q
Recordation
A
The physical act of filing a muniment of title in the county records so that the public is on notice of its contents
8
Q
Privity of estate
A
Each predecessor has the same type of possession and/or use required by the statute, no interruption in possession occurs when one possessor leaves and another enters, and transfer between the possessors is voluntary (by agreement, gift, will or inheritance). A quitclaim between the possessors suffices.
9
Q
Statute of Limitation periods
A
3 year, 5 year, 10 year, and two 25 year statutes
10
Q
AP policy
A
- Objectively focused: clear up land titles
- Certainty of who owns the land
- Subjectively focused: Reward AP’rs - those who use the land productively
- Subjectively focused: Punish O’s who sleep on their rights
11
Q
Adverse Possession Elements
A
- Actual entry
- Distinct (exclusive)
- Visible (O&N)
- Hostile
- Continuous
- Without interruption
12
Q
§ 16.024 (3-year)
A
-
Claim under title or color of title
- Color of title—docs that transferred title may not be recorded but it was not procured through fraud
- Must be able to show a chain all the way back to the sovereign
- Deed, will, judgment, court order (written evidence)
- Does not require payment of taxes
13
Q
§ 16.025 (5-year)
A
- Must hold RP in peaceable and adverse possession
- Cultivate, use, or enjoy
- Pay taxes on property
- Claim under Duly registered deed
- NOT forged
14
Q
§ 16.026 (10-year)
A
Actual entry, distinct (exclusive), visible (O&N), CUE (cultivate, use, or enjoy), hostile, continuous, W/O interruption
15
Q
§ 16.028 (25-year)
A
Hold in good faith, under deed or instrument purporting to convey property that is recorded in county RP located
16
Q
§ 16.027 (Disability 25-year)
A
Must bring suit, regardless of disability, not later than 25 years. AP must hold peaceable and cultivate, use, or enjoy.
17
Q
Tacking
A
Statute of limitations can be satisfied by multiple AP as long as there is no gap and continuity is maintained and the earlier possessors interest and claim were passed or transferred to the latter occupant by agreement, gift, device, or inheritance.
18
Q
Doctrine of Encroachment
A
defense by true O against AP. If amount of intrusion is diminimus then the true owner is excused from taking notice of it, and no claim of right. Reasonable diligent O would not know.
19
Q
Boundary by acquiescence
A
an uncertainty or dispute over true boundary line and then an agreement to put fence on other’s property
20
Q
Record Title
A
title instrument that has been placed in record that shows I have title to the land
21
Q
Casual v. Designed fence
A
Designed fence: enclosed on purpose to keep cattle in and let them graze to full extent.
Casual: If the fence existed before claimant took possession of the land and the claimant fails to demonstrate the purpose for which it was erected
Casual fence can be modified into a designed fence by changing the character of the fence
22
Q
§ 16.022. Effect of Disability
A
(a) Younger than 18, regardless of marriage; Unsound mind; and Serving in the US Armed Forces during time of war (doesn’t say has to be declared war)
(b) If true O is under disability at the time the title vests or AP commences, the time of the disability is not included in a limitations period
(c) when disability terminates, then it starts running. But 16.027 - 25 years (and 16.028) they can recover regardless of disability
23
Q
Constructive AP
A
- Anyone actually occupying the land
- When the deed describes land which is comprised of two tracts actually owned by two owners, actual entry onto only one of the tracts will not constructively extend to the other tract. Notice is the underlying principal
- Must be contiguous
24
Q
What qualifies and does not qualify as a deed for 5 year S/L?
A
- Not a quitclaim or forged deed,
- Tax deed, proper judgment (probably), probate court order (any court with probate jurisdiction)(ex. Heirship determination, order regarding homestead and inventory), invalid deed
- Reason: Notice
25
Statute of Frauds § 26.01
* Not enforceable unless:
* **In writing**
* **Signed by party charged with performance**
* section (a) applies to
* a **K for _sale_ of real estate**
* **_lease_ of real estate for longer than 1 year**
NOTE: real estate K is **NOT** a deed but deeds are covered by statute of conveyances
26
Essential terms for real estate K
* **Buyer and sellers** - parties have to be identified
* **Real property**
* Most Important - Can everyone properly identify the land?
* The writing must furnish within itself, or by reference to some other existing writing, the means or data by which the particular land to be conveyed may be identified with reasonable certainty
* Metes and bounds description;
* Reference Recorded Survey; or
* Platted/Subdivided land—lot #, block #, addition, city, county and state
* **Promise to buy/sell property**
NOTE: parol evidence not allowed to show essential terms
27
Part Performance
(Full) Part Performance (by B)
* Payment of **consideration** by B;
* S putting **B into possession**; AND
* B make **valuable and permanent improvements** with S's consent (or estoppel)
\*Very narrow exception. Must have all three elements. If only have consideration, B could have remedy at law to recover consideration.
28
Exception(s) to S/F
Part performance
Estoppel but it is not recognized in Texas. Need more than just Estoppel. Estoppel alone is not enough. Part Performance is the only exception in Texas.
29
When is time of the essence?
* When the K says
* both parties must perform when due
* When silent:
* Is it an option K?
* If sellers only remedy for buyers breach is liquidated damages (down payment, earnest money) then it is an option.
* If not an option:
* reasonable time to perform (one case 3-4 weeks was reasonable)
30
When the K is silent to buyers duty to apply for 3rd party financing?
buyer is obligated to in good faith attempt to get financing; not to get more than necessary
31
Encumbrance
* something that restricts or limits the use of the land. Exists on the land, devalues the land, but does not prevent title from passing
* Liens, ROFR, Option to purchase, Easement, Real Covenant, lease
32
Sellers duty to deliver marketable title
Yes, seller has duty when K is silent.
* Encumbrances violate duty
* Time barred encumbrances do not violate
* Marketable title means:
* title free from reasonable doubt as to matters of law and fact, such a title as a prudent man, advised of the facts and their legal significance, would willingly accept
33
Equitable title and limitation title (marketable or not and defintion)
Equitable title - no deed
Limitation title - AP (without it being adjudicated)
Equitable title, limitation title or one that exposes holder to reasonable probability of litigation with a chance of defeat = **not marketable**
Title clouded by outstanding contract, lien, or mortgage sufficient to form basis of litigation = **not marketable**
34
Are acceleration clauses implied?
No, this must be in writing.
35
Insurable title
lower standard than marketable title. Depends on the insurance company, they might insure land that has encumbrances.
36
Encumbrance buyer could not have known about?
Buyer had no actual notice, and no visible (no inquiry notice), court didn’t care about constructive notice
POSSIBLE EXAM!!
Buyer did not have actual notice of easement
Wasn’t in K
Buyer couldn’t see it with a visible inspection of land
Court did not look at constructive (record notice). This did not matter
How could Seller have protected himself?
Put in K that buyer has to look at record for encumbrances
37
Does a diminimus easement violate duty to deliver MT?
It might not
38
Buyer knew of encumbrance not listed
does not violate seller duty to deliver MT if buyer could have seen or actually did know.
Record notice is not enough. Need actual or inquiry notice.
39
Mitchell v. Zimmerman
Affirmation of what one doesn’t know or believes to be true is equally as unjustifiable as the affirmation of what is known to be false
40
Caveat emptor - buyer beware
Exceptions
1. Seller can’t fraudulently, intentionally, or recklessly misrepresent the quantity or quality of premises
2. Partial disclosure-can’t be used to create a false impression
3. Cannot remain silent while concealing material defect. Pro tanto-reduction of rent or purchase price.
41
When one party has superior knowledge?
Where on party to K has superior knowledge and seller makes false, fraudulent, or knowingly (wrecklessly or intentional) void K.
42
Deed
transfers legal title
43
Statute of Conveyances
* Must be in writing
* Signed
* Delivered by transferor; and
* Accepted by transferee
44
3 types of title
* Perfect record title
* No encumbrances, no exceptions to title
* Good and marketable title (implied)
* Insurable title
* Title that a company will take the risk of insuring
45
Things that make title unmarketable
* Limitation title (AP)
* Equitable title
* Clouded by: Lien, K , interest, covenant, mortgage
* Interest ex: easement
* Something that would expose a holder to litigation
* Title based on estoppel (Estoppel in pais)
* An assumption of fact
46
Liens on Real Property
S/L for liens on RP is 4 years
Cause of action accrues the maturity date of the last note BUT a mortgage might have an expressed accelerated provision that says if borrower misses a payment then lender can make all money due now and then S/L will begin to run then
47
As Is Condition
* B makes appraisal and accepts risk
* S made no express guarantee or warranty regarding value
* No fraud
* Totality of the Circumstances
* Was it separately negotiated?
* Was there separate consideration?
* B&S have arms length or relatively equal bargaining power?
48
**Risk of Loss** during executer period in RE K (right before closing)
* The risk of loss during the executor period is placed on the S
* CL Rule: Based on **Equitable Conversion of Title**—When K becomes specifically enforceable, equity treats the B as the owner and **B assumes the risk of loss once there has been equitable conversion of title**
* S bears the risk of loss when neither legal title nor possession have not been transferred; B bears the risk of loss if legal title/possession have been transferred
49
Specific Performance
* K is SP when all conditions precedent have been satisfied or waived
* Party seeking it must be ready, willing, and able to perform K
* To determine if SP is available you balance the hardships of P vs. hardships of D
* _Not performed if_:
* It would be inequitable to one party;
* If there is an available remedy at law—if $ damages will make them whole
* Clean Hands Doctrine not fulfilled
* K is not specifically enforceable
50
Essential Terms of Deeds
* Party descriptions
* Transfer of legal title
* Property description
51
Legally Sufficient Delivery of a deed
A person may make an inter vivos conveyance of an estate of freehold or inheritance that commences in the future, in the same manner as by a will.
Actual, manual deliver is not necessary, nor is it material that the delivery be by the grantor in person. It is the manifest intention of grantor to deliver
52
sufficiency of property description for a deed
Standard is the same for S/F and S/C (should be a higher standard, but its not in Texas)
53
Presumption of Delivery—When a deed is:
Signed; AND
Acknowledged; AND
Recorded
54
Types of Deeds?
Quitclaim—Q/C (not a deed)
3 Types of Deeds
Deed w/o warranties
Special Warranty Deed—SWD
General Warranty Deed—GWD
55
Quitclaim
Transfers any right, title, or interest that the grantor might have to grantee, if anything
Exam—will say something like Grantor releases right, title, and interest IF ANY
Transferee is not protected under Texas Protection Acts
Not a deed for 5 year S/L
56
Deed without warranties
Expressly says there are no warranties—“without express or implied warranties”
If no property transfers, grantor is not going to help grantee if it turns out that there was no property to transfer. Protected by the Recording Act (making a deed w/o warranty more desireable than quitclaim deed)
57
Special Warranty Deed (SWD)
“subject to reservations when the claim is by, through, or under grantor but not otherwise.” Same as general except this special language-covenant only applies to the specific grantor-must have been the one that messed up title, not a 3rd party.
58
General warranty deed (GWD)
“subject to reservation from conveyance and exceptions…warrant and forever defend against every person whomsoever lawfully claiming the same or any party theoreof.” Contains general warranty language=grantor must pay grantee if grantee wins in suit (damages if grantee found to have superior title)
59
Difference between GWD and SWD
GWD grantor will defend against EVERYONE (3rd parties up the chain of title) but SWD will only defend against someone claiming through grantor because of something he did (not someone up the chain). No warranty for things that happen down the chain after conveyance but still on the hook for either previous GWD or SWD.
60
5.023 implied covenants (unless expressly said otherwise, the use of "grant" or "convey")
1. Prior to execution of the conveyance the grantor has not conveyed the estate or any interest in the estate to a person other than the grantee; AND
2. That at the time of the execution of the conveyance the estate is free from encumbrances
61
Reservation (Deeds)
Grantor holds something for himself, created for first time in grantor (reserve any kind of encumbrance; it burdens the property)
* Creates a new interest in favor of grantor
* Might be an easement, lien, physical part of property, etc.
* Something new
* Ex: mineral rights
* CL & TX: cannot create reservation in favor of a 3rd party
62
Exception (Deed)
not a new interest, merely recognize that there is an existing interest in favor of someone else
* Usually in 3rd party but could be in the grantor
63
Three Present Covenants
* **_Seisin_**
* Grator is the Lawful Owner
* **_Good right to convey_**
* An **exception** would be a:
* **Trust**, trustee can only have seisin but no good right to convey;
* **Power of attorney**, no seisin but a good right to convey
* **_Against Encumbrances_**—CAE
* There can be exceptions
* Present covenants are read into every deed but a Q/C
64
Three Future Covenants
* General Warranty—**G/W**
* You won’t be disturbed, if you are, I’ll make it right
* Quiet Enjoyment—**Q/E**—interchangeable w/ G/W
* You will never be disturbed in your possession by someone who has better legal title than you
* Further Assurances—**F/A**
* If I have forgotten to sign a doc./get a notary/get an acknowledgment that I need, then I will do whatever it is I need to do to make it good—I will cooperate w/you
* Future Covenants Run with title of the land
65
Encumbrance Damages
* Diminution in value—how much it devalues the property
* FMV—value of lease w/encumbrance
* Cost of removal—used if it is relatively easy to remove the encumbrance
* If it is a lien, pay it off!
* Notes
* The upper limit on the total damages is the total value of the property
* Can’t be more than what was paid for
* Damages when there is a total failure = purchase money—the amount of consideration paid, with interest.
66
Title Insurance
Title Insurance does a **title search** for piece of prop at issue **for the Title Co.’s OWN BENEFIT** not for the benefit of prop buyer; decide whether they want to issue insurance or not
They will **defend the Insured’s title**
67
One Recovery Rule
Dispossessed grantee can recover the greater of:
* How much they paid; OR
* The greatest amount received by any warrantor (only applies to dispossessed—all others are indemnitors)
68
Limit to liability a GWD grantor?
* no one warrantor will have to pay more than they received
* Each person can sue their warrantor to get back money they paid for the property/Indemnity
* If I’m the dispossessed one I must join all of the warrantors up the chain of title or RISK the court releasing them
* JOIN ALL WARRANTORS IN YOUR SUIT OR ELSE YOU’RE FUCKED!
69
A conveys to B by GWD for $10k, then B conveys to C by GWD for $15k. Title fails. What are C’s remedies and against whom?
* _C can sue B_ for _future and presents_ covenants for _$15k_.
* _C can sue A_ for _future_ covenants of _Q/E and GW_ for _$10k._
* C can sue _both B and A_—C can get up to _15k_, but _A can only be sued for 10k_
* If doing join B or A to the other’s suit, then if one is judgment-proof then the court will hold that C has elected that judgment and won’t let them go after the other that wasn’t joined
* A present covenant is breached at the time of delivery (4 year SoL). If it has been more than 4 years since delivery, C sues B only under future covenants now.
70
A conveys to B by GWD for $10k, then B conveys to C by GWD for $5k. Title fails. What are C’s remedies and against whom?
* C can sue B for future or present covenants for $5k.
* C can sue A for future covenants of $10k or only $5k if he got $5k from B.
* B can sue A only if C recovers from B
71
A conveys to B by GWD for $10k, then B conveys to C by GWD for $5k. Title fails. Assume that C sues B and recovers $5,000. What further rights does C have against A? And, what rights might B have against A?
* C does not have any rights against A because of the one shot rule.
* C didn’t join A into the lawsuit against B
* If C sued A and B both, C recovered $5k from B—C can recover from A $5,000
* B can recover $5k from A, after paying C
72
A conveys to B by GWD for $10k, then B conveys to C by QC for $5k. Title fails. What are C’s remedies and against whom?
* C has no remedy against B because it was a QCD.
* C can sue A for $10k because A warranted to B and his successors because it was a GWD and future covenants run with the land. If it was a SWD we would need to know if title failed because of A.
* Must join A in your original lawsuit.
* B would get nothing because he didn’t suffer any damages
73
A conveys to B by GWD for $6k, then B conveys to C by GWD for $5k, then C conveys to D by QC for $2k. Title fails. What are D’s remedies and against whom?
* D has no remedies against C because it was a QCD.
* D can sue B for future covenants for $5k because it was a GWD. QE and GW were violated. D gets a windfall ($3k more than he paid) because he was dispossessed.
* D can sue A for $6k, assuming he didn’t receive $5k from B.
* If D sued B for the $5k he can only sue A for the remaining $1k. D can get the highest amount paid.
* C wasn’t damaged so he can’t recover against anyone.
* Only person allowed to recover would be B and he can recover the $5k he paid A (subrogation theory).
74
A conveys to B by GWD for $6k, then B conveys to C by SWD for $5k, then C conveys to D by QC for $2k. Title fails. What are D’s remedies and against whom?
* D has no remedies against C because it was a QCD
* D can sue B for future covenants but only if B made the title fail since it was a SWD
* D can only sue A for future covenants if B did nothing to make title fail
75
What types of recording acts are there and what does Texas follow?
* Notice
* Valuable consideration and without notice
* Record notice, actual notice, constructive notice, inquiry notice (usually stems from occupancy of premises)
* Pure Race Statute
* Protects first person who records regardless of knowledge, ie the person who wins the race to record
* Race Notice
* Good faith, valuable consideration, and first duly recorded
76
When is a supsequent purchaser (S/P) protected by the notice recording act?
* B must:
* Take **w/o notice, in good faith**, innocent
* **Actual** notice
* Person having personal information or knowledge
* **Constructive** notice—Law imposes
* **Record** notice: check the records
* **Inquiry** notice: based on the circumstances, arises if someone is living on the prop, gives someone reason to investigate
* Visible, open, exclusive, and unequivocal
* Give **valuable consideration**
* Must be a S/P or creditor
77
Properly Recorded Instrument (Recording Statute)
* Recorded in the proper county—where the land is located
* If RP located in \>1 county, best practice = record in both but proper if recorded in 1
* Notice to all persons of the existence of the instrument; AND
* Subject to inspection by the public
* Must be singed and acknowledged or sworn to by the grantor in the presence of 2 or more credible witnesses or before and certified by an authorized officer
78
Unrecorded Instrument
* A conveyance of RP is void as to a S/P for consideration w/o notice unless the deed is recorded
* The unrecorded deed is binding on a party to the deed and on subsequent purchaser’s who don’t pay valuable consideration or who have notice
* The person who has the unrecorded deed has the burden of proving that the S/P had notice
* \*\*If S/P of the world take free of prior unrecorded instruments, then congrats O, you haven’t breached warranty of title. BUT if S/P has to take land subject to encumbrances then O breached.
79
Shelter Rule
Purchase from a BFP w/ or w/o consideration takes good title, even though the S/P is not an innocent purchaser
80
Lien
a non-possessory interest in land; secures payment of a debt or performance of an obligation owed by the owner of that land
* Can be created by statute—mechanics, materialsman, landlord lien
* Remedies—different liens have different remedies
81
Mortgage
a lien against property that is granted to secure an obligation, such as a debt, that is extinguished upon payment or performance according to stipulated terms
* A conveyance of title to property given as security for payment of debt/performance of duty; the conveyance becomes void upon payment of debt
* Tx: Mortgage = lien
* Between 2 parties and have to go to court to settle
82
Deeds of Trust
mortgage with a non-judicial power of sale
* Key difference from a mortgage - you don’t have to go to court to sell land on foreclosure
* Between 3 parties
83
Promissory Note
* Unconditional promise to repay loan, a negotiable instrument
* Evidence that there is a loan; it can be sold
* Promissory note is evidence, a mortgage is security of payment
84
Equity of Redemption
Before the forcelosure sale debtor must show: (DOUBLE CHECK THIS)
* Have some interest in the property being sold
* Ready, willing, and able to redeem the prop
85
Statutory Regulations for Deed of Trust (Sale)
* Be a public sale at auction
* Held between 10am and 4pm of the first Tuesday of a month
* Sale must take place at the county courthouse in the county in which the land is located or another location commissioner designates that is in a reasonable proximity
* Sale must begin at the time stated in the notice of sale or not later than 3 hours after that time
* Must give person foreclosing on 21 days notice; the day of the notice is not included in the computation but the day of sale is
* If the RP subject to D/T lien is the person’s place of residence you have to give the person written notice that they are in default and give them 20 days to “cure the default”
86
Are there warranties for RP sold in deed of trust sale?
Property is sold as is - no expressed or implied warranties; except as to title
87
Senior Lien Holder’s Duty
* Generally, Senior lien holders do not have to notify Junior lien holders
* When Senior Lien Holder acts to foreclose, ALL Junior’s rights are cut off
88
Profits
Right to go on the land and take something off the land (timber rights)
89
Easements
Non possessory interest in land that allows someone other than the TO to come on the land and use it
90
Easement in gross
* Not attached to land it
* For the benefit of a person (grantee)
91
Easement appurtenant
* Dominate tenement (benefited land)
* Servient tenement (burdened land)
* For the benefit of the land
92
Implied Easement by Necessity
* Unity of ownership
* Severance of that unity
* Necessity arises at the time of severance
Terminates when an easement is no longer necessary; defeasible
93
Implied Easement by Prior Use/Quasi Easement
* Unity of Title
* Severance of that unity
* An existing use that exists prior to the severance
* Use of the Q/E is apparent and permanent
* Use is continuous
* Use is necessary ot the enjoyment of the D/T
Necessity ending does not end easement
94
Easement by Estoppel
* Representation or promise
* Promisee has to reasonably believe the promise
* Detrimental reliance by promise
* Generally lasts as long as the nature of the emt. calls for
* Can have an emt by estoppel by silence—when person with the duty to talk doesn’t
95
Implied Reservation vs. Implied Grant
* I/R—need strict necessity no other way
* I/G—reasonable necessity, maybe another way out is inconvenient
* Difference= I/G -\> selling D/T; I/R -\> selling S/T
96
Easement by Prescription
* Open & Notorious
* Adverse to the S/T owner’s claim of right
* Exclusive
* Uninterrupted
* Continuous for a period of 10 years
97
Necessity needed
Reserve = strict
grant = reasonable
98
Easement by dedication
* Expressed = developer files plat map to show roads and parks and express dedicate for public
* Implied – files plat and forgets to express – those who buy lots = yes; pub = some say yes, some no
99
Termination of Easement
* **Express**: Defeasible; term of years, life
* **Release**: written
* **Abandonment**: more than mere nonuse (intentional)
* **Merger**: buy both DT and ST
* **Necessity ends**: for E/N
* **Prescription**: any easement, prevent use continuously for S/L
* **Estoppel**: DT tells ST he can build; promise, reasonable reliance, detriment
* **Eminent Domain**
* **Failure of purpose**: Purpose terminated (i.e. dock)
100
Misuse of easement
* Typically does not terminate easement but instead typically can receive $ judge or injunction
101
Real Covenant/Equitable Servitude
* Must be in writing
* Except common grantor with common scheme to restrict to single family use
* Touch and Concern
* Both ben&burd
* Relate to something in existence, if not, “assigns”
* Show intent to run (assigns)
* Notice
* Burden land = MUST
* HPE
* RC = yes; ES = sometimes
* Texas = no VPE
* Relationship needs to be L/T or grantor/grantee
RC = straight $
ES = injunction
