Pr4 Flashcards
**LAND CONVEYANCING: THE PURCHASE AND SALE OF REAL ESTATE:
The Land K. must:
+ K controls until:
+CA:
[Written Listing Agt is NOT a Memo suff. to satisf. the SOF]
SOF: 1) WRITING 2) SIGNED by the party to be bound 3) DESCRIBES Land, 4) +states some CONSIDERATION /$
(Cf. Deed: needs no consid.)
**K controls only until CLOSING & then K “MERGES” into the Deed.
=> Discharges S of liability for expr.-implied warranties in the K re: Quality of TITLE.
CA: COVENANTS in the DEED itself.
[Land K: Wrong PARCEL size]
B can get Sp. Perf. w/
pro-RATA REDUCTION in purchase $$. [=abatement]
• QUANTITY defect must be “MAT.”
• Abatement AMOUNT must be appropriate & not EXCESSIVELY DIFFERENT from the original agt.
[
Land K: Part Perf. exception to SOF: +CA:
Cf. GRATUITOUS promise:
]
EQUITY (sp. perf.) will ENFORCE an otherw. INvalid ORAL K! the sale of LAND if: (Maj.) B does min. 2/3 things:
1) PAYS (part of) the purchase price
2) takes POSSESSION
3) makes SUBST. IMPROV. 2Pr
[=evid. K. exists. CA: Periodic pay =could be RENT!
Cf. If GRATUITOUS: If P DET. REL. =>only gets his $ back]
Who bears the
**RISK of LOSS ?:
[+Death]
MAJ jx.=DOCTRINE OF EQUIT. CONVERSION: By signing the K., B gets equitable TITLE! [=before closing!] =>B is equit. owner who bears RISK OF LOSS [by DESTRUCTION]. [+DEATH of either party: does NOT change K. rights =>Get Specific Perf.]
Warranties by SELLER of REAL PROPERTY … +CAx2:
No IWH /FITness (caveat emptor).
CA1: BUILDER VENDOR:
Yes IW +for WORKMANLIKE construction.
CA2: Two IMPLIED promises by S in EVERY (!) Land K.:
1)*MARKETABLE TITLE@CLOSING
2) MADE NO FALSE STATEM. of MATERIAL fact.
[not conceal defects]
**MARKETABLE TITLE promises that: …+CA:
{1/2” ENCROACHMENT on Airspace:
DoesNOT render title UNmarketable b/c NOT SUBSTANTIAL ENCROACHMENT}
@CLOSING=Gee will be free from signif. THREAT of LIT. CA: UNmarketable if: 1) TITLE ACQUIRED by AP b/c exposes G'ee 2 lawsuit. 2) ENCUMBRANCES: Covenants & MTGs... any RESTRICTIONS. CA1: S can CURE title DEFECTS @CLOSING CA2: B WAIVED defects CA3: Zoning Ordinances
MAKE NO FALSE STATEM. of mat. fact. +CCA:
Maj. jx: S is also LIABLE for failing to DISCLOSE /for CONCEALING latent MAT. DEFECTS (by lie or omission). Note: gen. DISCLAIMER: [“as is"] is NO excuse.
Closing: LIST:
a) How does S CONVEY LEGAL title to B ? 1) **VALID EXECUTION: 2) **DELIVERY: b) 3 Types of DEEDS & COVENANTS for title: 1) QUITCLAIM 2) GEN. WARRANTY Deed 3) SPECIAL WARRANTY D c) Merger d) Equit. conversion.
How does S convey LEGAL title to B ? +CA:
CONSIDERATION?
JT FORGES signature: =>?
[Deed only refers to an unrecorded Survey]
[Note: If conflict, Pr description of Monuments prevails over Distances]
By 1) DELIVERY of a
2) **VALIDLY executed DEED, i.e.:
a) WRITING SIGNED by G’or
b) adeq. DESCRIBING the LAND
[=reas. certainty /unambig. Phys. descr.!]
c) Naming Buyer & Seller
CA: NO CONSID. is REQ’D to render the Deed valid (=> delivery irrevoc. [no SOF b/c no K. issue]).
**CA: FORGED signature (=VOIDS deed & severs fraudulent JT’s share only).
[G'ee re-delivers deed to G'or] **DELIVERY requires that ...+CA: + • RECORDING: ... • DELIVERY BY ESCROW: • ORAL CONDITIONS: [Q of fact: Delivery to an agent OK. /WORDS RELINQUISH control, even if ACTUAL right to possess. is POSTPONED or G'or keeps PHYSICAL deed.
• G’or manifests INTENT that Title PASSES IMMEDIATELY.
**Delivery NOT CANCELABLE once ACCEPTED [=gen. implied!]
*CA: DEAD canNOT ACCEPT=>VOID
[• RECORDING: PRESUMES ACC.&DELIV, even G’ee is UNaware. CA: G’ee REJECTS
•ESCROW: Once imposed cond. met: title AUTOM. passes 2G’ee.
•ORAL COND.: w/ FACIALLY Valid Transfer: DROP OUT (+inadmiss.) => Delivery complete.]
QUITCLAIM:
contains NO COVENANTS, not even that the G’or has valid title.
[Cannot attack w/ Breach of K (based on implicit promise to provide marketable title at CLOSING) b/c then K MERGES once Deed is accepted]
GENERAL WARRANTY Deed warrants :
[+Remedy]:
against ALL TITLE DEFECTS. [Remedy: (even non-BFP) P gets Purchase price +INCIDENTAL DMG]: includes: 3 PRESENT Covenants & 3 FUTURE Covenants
3 PRESENT Covenants …:
[DoNOT run w/ the land,
i.e. breached at time of convey. =>ENFORCEABLE only against the IMMEDIATE G’or & SOL runs from DELIVERY !]
1) SEISIN =G’or Exclusively OWNS the Pr he CLAIMS to CONVEY
2) G’or has the POWER/RIGHT to CONVEY:
[G’or is not a minor /incapacitated].
3) NO ENCUMBRANCES (servitude, lien, …)
[3P has lawful claim of title against Gee]
3 FUTURE Covenants …:
[run w/ the land!
=>ENFORCEABLE against ANY G’or & SOL runs from BREACH]
1) RIGHT to QUIET ENJOYM. breached if G’ee is ousted from POSSESS. of (even part) of the land.
2) =WARRANTY: G’or will DEFEND TITLE against future 3P claims [& pay 4 it]
3) FURTHER ASSURANCES: G’or will ASSIST to PERFECT Title, if necessary.
SPECIAL WARRANTY Deed
is STATUTORY in many jx.
G’or ONLY PROMISES that he:
- has not CONVEYED Pr to ANOTHER
& - has not CREATED any ENCUMBRANCES to the Pr.
THE RECORDING SYSTEM
The Recording ACT protects: +CA:
[A person who takes Pr in satisfaction of a prior debt is a “purchaser.”
A BFP who buys FROM a DONEE is still a BFP.]
BFPs & Mortgagees.
**BFP = 4VALUE + is W/O NOTICE @ CONVEYANCE. CUTS OFF prior interests.
1) **VALUE. CA: Donee/Heir/Devisee/ jdgmt Lienor/ NOM. value [$1] (UNprotected by recording stat. CCA: “SHELTER rule” if you take from a BFP).
2) **Notice: A/I/R
[CA: G’ee of a FORGED Deed (in chain)]
**Notice: A/I/R
1) ACTUAL: Knowledge.
2) INQUIRY: Whatever a Pr INSPECTION WOULD have DISCLOSED.
[whether or not B looked, parcel appears part of the neighborhood]
3) RECORD: Restriction in CHAIN OF TITLE [e.g., searching G’or/G’ee index]
**Recording Statutes:
[G’or loses title to AP,
then conveys to BFP
=>AP’s title is not defeated by BFP b/c G’or had nothing to convey]
1) NOTICE JX.:
Subseq. BFP wins over prior G’ee who fails to record 2) Race-Notice:
BFP must record first to win
3) Pure RACE: Notice irrelevant
Subseq. BFP wins over prior G’ee if he records first
**CHAIN of TITLE Problems.
1) ESTOPPEL BY DEED: …
2) SHELTER RULE: …
3) WILD DEEDS: …
+CA:
1) ESTOPPEL BY DEED: If G’or conveys Pr by Warranty deed before he owns it, ownership autom. passes to Gee once G’or later acquires it.
CA: Subseq. BFP trumps G’ee.
2) SHELTER RULE: Even non-BFP T’ee acquires whatever rights T’or had. =>NON-BFP taking from a BFP prevails over prior Gee!
3) WILD DEEDS: G’or’s Deed not in direct chain of title =>NO RECORD N
=>BFPs always wins (N & R-N jx)
