Final Flashcards
Adverse Possession (Statutory Definition) §16.021(1)
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.
Color of Title
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
Peaceable possession §16.021(3)
possession of RP that is continuous and is not interrupted by an adverse suit to recover the property
Title
a regular chain of transfers of real property from or under the sovereignty of the soil
Memorandum of title
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.
Muniment of title
Document that provides evidence of title (will, deed)
Recordation
The physical act of filing a muniment of title in the county records so that the public is on notice of its contents
Privity of estate
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.
Statute of Limitation periods
3 year, 5 year, 10 year, and two 25 year statutes
AP policy
- 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
Adverse Possession Elements
- Actual entry
- Distinct (exclusive)
- Visible (O&N)
- Hostile
- Continuous
- Without interruption
§ 16.024 (3-year)
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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
§ 16.025 (5-year)
- Must hold RP in peaceable and adverse possession
- Cultivate, use, or enjoy
- Pay taxes on property
- Claim under Duly registered deed
- NOT forged
§ 16.026 (10-year)
Actual entry, distinct (exclusive), visible (O&N), CUE (cultivate, use, or enjoy), hostile, continuous, W/O interruption
§ 16.028 (25-year)
Hold in good faith, under deed or instrument purporting to convey property that is recorded in county RP located
§ 16.027 (Disability 25-year)
Must bring suit, regardless of disability, not later than 25 years. AP must hold peaceable and cultivate, use, or enjoy.
Tacking
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.
Doctrine of Encroachment
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.
Boundary by acquiescence
an uncertainty or dispute over true boundary line and then an agreement to put fence on other’s property
Record Title
title instrument that has been placed in record that shows I have title to the land
Casual v. Designed fence
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
§ 16.022. Effect of Disability
(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
Constructive AP
- 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
What qualifies and does not qualify as a deed for 5 year S/L?
- 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
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
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
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.
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.
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)
- Is it an option K?
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
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
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
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
Are acceleration clauses implied?
No, this must be in writing.
Insurable title
lower standard than marketable title. Depends on the insurance company, they might insure land that has encumbrances.
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
Does a diminimus easement violate duty to deliver MT?
It might not
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.
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
Caveat emptor - buyer beware
Exceptions
- Seller can’t fraudulently, intentionally, or recklessly misrepresent the quantity or quality of premises
- Partial disclosure-can’t be used to create a false impression
- Cannot remain silent while concealing material defect. Pro tanto-reduction of rent or purchase price.