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bar real property > Land Conveyancing: The purchase and sale of real estate > Flashcards

Land Conveyancing: The purchase and sale of real estate Flashcards

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1
Q

what needs to be in LAND K for SOF

A

land K MUST

1) be in writing
2) signed by the party to be charged (D)
3) must describe land and
4) state some consideration

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2
Q

what if the amount of land recited in the land K is more than the actual size of the parcle what is B’s remedy

A

specific performance with a pro rata reduction in price

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3
Q

when is specific performance allowed

A

when land is unique, usually always land since land is held to be unique.

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4
Q

what is the 1 x/c where sale of land does NOT need to be in writing for SOF

A

DOCTRINE OF PART PERFORMANCE

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5
Q

what are the 2 elements of 3 that must be met for part performance for x/c to SOF

A

1) Buyer takes possession
2) B makes substantial improvements
and/OR
3) Buyer pays all or part of the price

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6
Q

what does the land K give the buyer?

A

equitable ownership

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7
Q

who does the destruction of property lie with after the land K?

A

BUYER. once K singed, buyer owns the land, if b/w k and closing it is destroyed by either party BUYER bares risk of loss unless K says otherwise

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8
Q

in IL whose risk of loss of property does it belong to before closing?

A

IL by statute risk of loss remains with SELLER until closing

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9
Q

what is the doctrine of equitable conversion

A

equity regards at done which ought to be done

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10
Q

what are the 2 implied promises in every land K

A

1) seller promises to provide MARKETABLE TITLE at the TIME OF CLOSING
2) seller promises not to make any false statements of MATERIAL FACT

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11
Q

what is the std for marketable title

A

title FREE from reasonable doubt, free from law suits and threat of litigation

1) free from reasonable doubt
2) free from law suit or
3) free from threat of litigation

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12
Q

when does marketable title need to be given

A

AT THE CLOSING

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13
Q

can the lien be discharged of the sale of proceeds, which will make the land marketable title

A

YES can close with proceeds of sale

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14
Q

what are the 3 things that can make title unmarketable

A

1) adverse possession
2) encumbrances
3) zoning VIOLATIONS

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15
Q

what is the rule for adverse possession for unmarketable title

A

even if PART of the title rests on adverse possession, it is UNMARKETABLE.
- S must be able to provide good record title

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16
Q

what is rule for encumbrances for making title unmarketable

A

marketable title means unencumbered fee simple.

  • Thus, servitudes and mortgages render title unmarketable, UNLESS
  • B waives them
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17
Q

when does servitudes and mortgages not make title unmarketable

A

when B waives them

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18
Q

what is rule for zoning violations making title unmarketable

A

title is unmarketable when land VIOLATES a zoning ordinance.

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19
Q

is the mere presence of a zoning ordinance make title unmarketable?

A

NO needs to be an actual VIOLATION that renders it unmarketable

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20
Q

can a S be held liable even if they are silent on a false statement of material fact

A

YES. silence is not golden, can be what omitted

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21
Q

what is the majority rule for holding sellers liable for false statements of material fact

A

failing to disclose MATERIAL LATENT DEFECTS

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22
Q

what is a latent defect

A

one that could not be discovered under a reasonable inspection

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23
Q

can S be held liable for material lies and omissions of latent defects

A

Yes

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24
Q

what happens if a K contains a general disclaimer of liability (property sold as is, with all faults)

A

disclaimer WILL NOT excuse S from liability from fraud or failure to disclose

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25
Q

generally does a land K contain an implied warranties of fitness or habitability

A

NO

- cavet emptor: let the buyer beware

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26
Q

what is the x/c for where there is implied warranty of fitness in land K

A

WORKMANLIKE CONSTRUCTION which applies to SALE OF A NEW HOME by a builder-vendor

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27
Q

what document is controlling at the closing?

A

the DEED

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28
Q

what does the deed do at closing

A

passes legal title from S to B

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29
Q

how does a deed pass legal title from seller to buyer (LEAD

A

LEAD

1) Lawfully Executed And Delivered

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30
Q

what is the std for lawful execution of a deed

A

deed must be in writing signed by grantor

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31
Q

does the deed need to recite consideration

A

NO, nor must consideration pass to make a deed valid

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32
Q

what does the land requirement in lawful execution of a deed need to be?

A

description of land need not be perfect but must be UNAMBIGUOUS and provide a good lead

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33
Q

what type of things can delviery requirement fulfill

A

could be satisified when grantor physically or manually transfers deed to grantee

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34
Q

is it permissible to use mail, agent, or a messenger for delivery

A

YES

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35
Q

does delivery REQUIRE physical delivery

A

NO. does not require physical transfer of deed itself

36
Q

what is the LEGAL std for deliver of deed

A

solely PRESENT INTENT

Ask: did grantor have the PRESENT intent to be bound, irrespective of w/e or not the deed was handed over

37
Q

what defeats delivery

A

EXPRESS rejection of deed.

38
Q

what if a deed absolute on its face, is transferred to grantee with an ORAL condition

A

oral condition drops out, not provable and delivery achieved

39
Q

is delivery by escrow allowed

A

yes.

40
Q

what is the benefits of using delivery by escrow

A

if Grantor DIES or becomes incompetent or is otherwise unavailable before the express conditions are met
1) title still passes from escrow agent to grantee once conditions are met

41
Q

what are the 3 covenants for title types of deed

A

1) general warranty deed
2) special warranty deed
3) quitclaim deed

42
Q

what is the best deed to have

A

general warranty deed

43
Q

what is the worst deed to have for covenant

A

quitclaim deed

44
Q

what is a quitclaim deed

A

it contains NO COVENANTS. Grantor is not even promising that he has title to convey

45
Q

but what does a quitclaim still provide

A

grantor did implicitly promise in Land K to provide MARKETABLE TITLE AT CLOSING

  • any problems past closing and grantor is off hook.
  • So time is limited
46
Q

general warranty deed

A

warrants against ALL defects in title incluidng those by the grantors predecessors

47
Q

what are the 6 covenants that are in general warranty deed (3 present, 3 future)

A 
Present
1) covenant of seisin 
2) covenant of right to convey 
3) covenant against encumbrances 
Future
4) quiet enjoyment
5) covenant of warranty
6) covenant for further assurances
48
Q

what are the 3 present covenants usually in general warranty deed

A

1) covenant of seisin
2) covenant of right to convey
3) covenant against encumbrances

49
Q

what are the 3 future covenants usually in a general warranty deed

A

4) quiet enjoyment
5) covenant of warranty
6) covenant for further assurances

50
Q

when does a present covenant SOL begin to run

A

from instant of delivery

51
Q

when are present covenant breached if ever

A

AT TIME OF DELIVERY

52
Q

what is covenant of seisin

A

present warranty: grantor promises they own estate

53
Q

what is covenant of right to convey

A

present warranty: grantor has power to transfer

  • Grantor is not disabled, no temporary restraints on alienation
  • Ex: sound mind, right age, no restriction to transfer
54
Q

what is the covenant against encumbrances

A

present warranty: no servitude or mortgages on land

55
Q

when is a covenant of FUTURE ever breached if ever

A

until grantee is disturbed in possession

56
Q

when does SOL begin to run for FUTURE covenants

A

not until future date

57
Q

what is the covenant for quiet enjoyment

A

future covenant: grantee wont be disturbed by possession by 3rd party
- grantor wont convey to others

58
Q

what is the covenant of warranty

A

future covenant: grantor will defend grantee against LAWFUL title claims brought by others
-extra step will defend if someone is bringing lawful claim

59
Q

what is covenant of further assurances

A

future covenant: grantor will do what is needed in future to perfect title if it is imperfect

60
Q

what is a special warranty deed

A

only GRANTORS behalf

- grantor makes only on behalf of himself, makes no representations on behalf of others who predecessor in interest

61
Q

what are the 2 promises that grantor makes in special warranty deed

A

1) grantor promises that NOT CONVEYED land to anyone else besides grantee
AND
2) land is free of encumbrances made by grantor

62
Q

if there is no K for sale of lands under SOF and there has been earnest money paid can the S keep the earnest money

A

NO, b/c there was no enforceable agreement, there can BE NO “BREACH” of the agreement, for which the S would be entitled to damages

63
Q

what happens if the S dies before closing but after K

A

sale goes on anyways and the S’s heirs get the PERSONAL PROPERTY it is considered

64
Q

what happens if B dies before closing but after K

A

sale goes through and b heirs get the REAL PROPERTY it is considered

65
Q

for the sale of land does the seller need to hold title at the TIME she enters into the K.

A

NO!!! The sale of land does NOT require the seller to hold title at the time they enter into K.
- Only required to have marketable title at the date of CLOSING so can deliver to buyer.

66
Q

where there is an inconsistency in the description of the property in the deed, does physical description or quantity description rule

A

the physical description takes precedence over the quantity description, unless grounds for reformation.

67
Q

equitable converison: what happens if after the K and before the closing, the property is destroyed w/o fault of seller

A

BUYER has to buy it and pay the FULL CONTRACT PRICE

  • B is liable for full price
  • B should get insurance during this time period.
68
Q

if S cannot convey good and marketable title, does B have to buy it

A

NO, B does not have to buy a law suit.

69
Q

what must happen to re convey a deed to another wen they properly delivered it to yo

A

must need to convey the deed. not just cancel the deed

70
Q

does delivery of a deed be undone by cancelation?

A

NO must re convey the deed

71
Q

what is the x/c for where an easement does not make sellers title unmarketable

A

where easement is BENEFICIAL easement that was visible or KNOWN to the B does not constitute an encumbrance

72
Q

GR: does sale of LAND contain an implied warrant of habitability or fitness

A

NO cavet emptor

73
Q

x/c where implied warranty of fitness or habitiability applies

A

workman like construction applies to the sale of a new home by a builder-vedor
- IL can recover even if not first owner.

74
Q

does IL allow the later owner of a house to recover from the original builder for a latent defect despite lack of privily

A

yes

75
Q

is actual delivery needed for deed conveyance of land

A

NO. physical delivery is NOT required

76
Q

test for delivery of deed for conveyance

A

PRESENT INTENT

- Did grantor have the present intent to be bound, irrespective of w/e or not the deed was handed over

77
Q

what does the sale of land (both tenant) have in every sale K

A

implied warranty of quiet enjoyment: landlord or someone else will not interfere with right of land.
- breached by eviction (constructive too)

78
Q

are option to purchase by leasehold subject to RAP

A

NO

Gr: option to purchase land is subject to RAP but option to purchase by leasehold is not

79
Q

when are partial restraints on land ok

A

when such partial restraint for reasonable purpose are upheld.

80
Q

what is implied warranty in every land sale k

A

implied warranty of marketable title

- ONLY AT TIME OF CLOSING

81
Q

when must the seller have marketable title

A

AT THE TIME OF CLOSING

- inability to give record chain of title, generally renders title unmarketable.

82
Q

when are deeds voidable

A

if executed by minor, incapacitated person, or obtained by fraud inducement, duress, undue influence, or breach of fiduciary duty

83
Q

when is a voidable deed not good against

A

not good against BFP

84
Q

do general warranty deeds run with the land

A

Yes, general warranty deeds run with the land and can be enforced by ANY SUBSEQUENT PURCHASER

85
Q

Do future covenants contained in general warranty deed (quiet enjoyment, further assurances and general warrant) run to successive grantees?

A

YES. But the present covenants are breached at the time of conveyance

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