Land Conveyancing: The purchase and sale of real estate Flashcards
what needs to be in LAND K for SOF
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
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
specific performance with a pro rata reduction in price
when is specific performance allowed
when land is unique, usually always land since land is held to be unique.
what is the 1 x/c where sale of land does NOT need to be in writing for SOF
DOCTRINE OF PART PERFORMANCE
what are the 2 elements of 3 that must be met for part performance for x/c to SOF
1) Buyer takes possession
2) B makes substantial improvements
and/OR
3) Buyer pays all or part of the price
what does the land K give the buyer?
equitable ownership
who does the destruction of property lie with after the land K?
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
in IL whose risk of loss of property does it belong to before closing?
IL by statute risk of loss remains with SELLER until closing
what is the doctrine of equitable conversion
equity regards at done which ought to be done
what are the 2 implied promises in every land K
1) seller promises to provide MARKETABLE TITLE at the TIME OF CLOSING
2) seller promises not to make any false statements of MATERIAL FACT
what is the std for marketable title
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
when does marketable title need to be given
AT THE CLOSING
can the lien be discharged of the sale of proceeds, which will make the land marketable title
YES can close with proceeds of sale
what are the 3 things that can make title unmarketable
1) adverse possession
2) encumbrances
3) zoning VIOLATIONS
what is the rule for adverse possession for unmarketable title
even if PART of the title rests on adverse possession, it is UNMARKETABLE.
- S must be able to provide good record title
what is rule for encumbrances for making title unmarketable
marketable title means unencumbered fee simple.
- Thus, servitudes and mortgages render title unmarketable, UNLESS
- B waives them
when does servitudes and mortgages not make title unmarketable
when B waives them
what is rule for zoning violations making title unmarketable
title is unmarketable when land VIOLATES a zoning ordinance.
is the mere presence of a zoning ordinance make title unmarketable?
NO needs to be an actual VIOLATION that renders it unmarketable
can a S be held liable even if they are silent on a false statement of material fact
YES. silence is not golden, can be what omitted
what is the majority rule for holding sellers liable for false statements of material fact
failing to disclose MATERIAL LATENT DEFECTS
what is a latent defect
one that could not be discovered under a reasonable inspection
can S be held liable for material lies and omissions of latent defects
Yes
what happens if a K contains a general disclaimer of liability (property sold as is, with all faults)
disclaimer WILL NOT excuse S from liability from fraud or failure to disclose
generally does a land K contain an implied warranties of fitness or habitability
NO
- cavet emptor: let the buyer beware
what is the x/c for where there is implied warranty of fitness in land K
WORKMANLIKE CONSTRUCTION which applies to SALE OF A NEW HOME by a builder-vendor
what document is controlling at the closing?
the DEED
what does the deed do at closing
passes legal title from S to B
how does a deed pass legal title from seller to buyer (LEAD
LEAD
1) Lawfully Executed And Delivered
what is the std for lawful execution of a deed
deed must be in writing signed by grantor
does the deed need to recite consideration
NO, nor must consideration pass to make a deed valid
what does the land requirement in lawful execution of a deed need to be?
description of land need not be perfect but must be UNAMBIGUOUS and provide a good lead
what type of things can delviery requirement fulfill
could be satisified when grantor physically or manually transfers deed to grantee
is it permissible to use mail, agent, or a messenger for delivery
YES
does delivery REQUIRE physical delivery
NO. does not require physical transfer of deed itself
what is the LEGAL std for deliver of deed
solely PRESENT INTENT
Ask: did grantor have the PRESENT intent to be bound, irrespective of w/e or not the deed was handed over
what defeats delivery
EXPRESS rejection of deed.
what if a deed absolute on its face, is transferred to grantee with an ORAL condition
oral condition drops out, not provable and delivery achieved
is delivery by escrow allowed
yes.
what is the benefits of using delivery by escrow
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
what are the 3 covenants for title types of deed
1) general warranty deed
2) special warranty deed
3) quitclaim deed
what is the best deed to have
general warranty deed
what is the worst deed to have for covenant
quitclaim deed
what is a quitclaim deed
it contains NO COVENANTS. Grantor is not even promising that he has title to convey
but what does a quitclaim still provide
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
general warranty deed
warrants against ALL defects in title incluidng those by the grantors predecessors
what are the 6 covenants that are in general warranty deed (3 present, 3 future)
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
what are the 3 present covenants usually in general warranty deed
1) covenant of seisin
2) covenant of right to convey
3) covenant against encumbrances
what are the 3 future covenants usually in a general warranty deed
4) quiet enjoyment
5) covenant of warranty
6) covenant for further assurances
when does a present covenant SOL begin to run
from instant of delivery
when are present covenant breached if ever
AT TIME OF DELIVERY
what is covenant of seisin
present warranty: grantor promises they own estate
what is covenant of right to convey
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
what is the covenant against encumbrances
present warranty: no servitude or mortgages on land
when is a covenant of FUTURE ever breached if ever
until grantee is disturbed in possession
when does SOL begin to run for FUTURE covenants
not until future date
what is the covenant for quiet enjoyment
future covenant: grantee wont be disturbed by possession by 3rd party
- grantor wont convey to others
what is the covenant of warranty
future covenant: grantor will defend grantee against LAWFUL title claims brought by others
-extra step will defend if someone is bringing lawful claim
what is covenant of further assurances
future covenant: grantor will do what is needed in future to perfect title if it is imperfect
what is a special warranty deed
only GRANTORS behalf
- grantor makes only on behalf of himself, makes no representations on behalf of others who predecessor in interest
what are the 2 promises that grantor makes in special warranty deed
1) grantor promises that NOT CONVEYED land to anyone else besides grantee
AND
2) land is free of encumbrances made by grantor
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
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
what happens if the S dies before closing but after K
sale goes on anyways and the S’s heirs get the PERSONAL PROPERTY it is considered
what happens if B dies before closing but after K
sale goes through and b heirs get the REAL PROPERTY it is considered
for the sale of land does the seller need to hold title at the TIME she enters into the K.
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.
where there is an inconsistency in the description of the property in the deed, does physical description or quantity description rule
the physical description takes precedence over the quantity description, unless grounds for reformation.
equitable converison: what happens if after the K and before the closing, the property is destroyed w/o fault of seller
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.
if S cannot convey good and marketable title, does B have to buy it
NO, B does not have to buy a law suit.
what must happen to re convey a deed to another wen they properly delivered it to yo
must need to convey the deed. not just cancel the deed
does delivery of a deed be undone by cancelation?
NO must re convey the deed
what is the x/c for where an easement does not make sellers title unmarketable
where easement is BENEFICIAL easement that was visible or KNOWN to the B does not constitute an encumbrance
GR: does sale of LAND contain an implied warrant of habitability or fitness
NO cavet emptor
x/c where implied warranty of fitness or habitiability applies
workman like construction applies to the sale of a new home by a builder-vedor
- IL can recover even if not first owner.
does IL allow the later owner of a house to recover from the original builder for a latent defect despite lack of privily
yes
is actual delivery needed for deed conveyance of land
NO. physical delivery is NOT required
test for delivery of deed for conveyance
PRESENT INTENT
- Did grantor have the present intent to be bound, irrespective of w/e or not the deed was handed over
what does the sale of land (both tenant) have in every sale K
implied warranty of quiet enjoyment: landlord or someone else will not interfere with right of land.
- breached by eviction (constructive too)
are option to purchase by leasehold subject to RAP
NO
Gr: option to purchase land is subject to RAP but option to purchase by leasehold is not
when are partial restraints on land ok
when such partial restraint for reasonable purpose are upheld.
what is implied warranty in every land sale k
implied warranty of marketable title
- ONLY AT TIME OF CLOSING
when must the seller have marketable title
AT THE TIME OF CLOSING
- inability to give record chain of title, generally renders title unmarketable.
when are deeds voidable
if executed by minor, incapacitated person, or obtained by fraud inducement, duress, undue influence, or breach of fiduciary duty
when is a voidable deed not good against
not good against BFP
do general warranty deeds run with the land
Yes, general warranty deeds run with the land and can be enforced by ANY SUBSEQUENT PURCHASER
Do future covenants contained in general warranty deed (quiet enjoyment, further assurances and general warrant) run to successive grantees?
YES. But the present covenants are breached at the time of conveyance
