Property Flashcards
1
Q
3 Deed Types & their Descriptions
A
- After closing, the land sale cotract merges into the deed. Subsequently, any liability must arise out of the deed rather than the contract. Three kinds:
- General Warranty Deed: Provide the greatest amount of title protect. The grantor warrants title against all defects, even if the grantor did not cause the defects
- Quitclaim Deed: Provides the lease amount of title protection. Grantor makes no warranties as to the health of the title
- Special Warranty Deed (less common): Provide less title protection that the general warranty. Grantor warrants titles against defects caused by the grantor.
2
Q
6 implied covenants
What are they and which deeds to they apply to?
pReSeNt & Future FEW
A
- They apply to only warranty and special warranty deeds (not quitclaim deed).
pReSeNt
- Seisin: Deed describes the land in question & grantor is rightful owner
- Right to Convey: Grantor has right to convey
- No Encumbrances: no existing undisclosed easements, liens, or mortgages
Future FEW:
- Futher Assurances: Grantor promises to do what is reasonably necessary to cure future title problems
- Quiet Enjoyment: Grantor promises to defend against future challenges to grantee’s title
- Warranty: Grantor promises to defend against future developments that extend into the grantee’s property boundary
3
Q
Recording Statutes
Common Law v. 3 Statutes
A
- First in Time. First in Right. Under Common law, if a grantor transfers the same piece of property to multiple grantees, the first grantee to recieve the deed acquires rightful title. In the absense of a recording statute, common law control.
- However, every state has adopted a recording statute tat modifies the common law rule for competing claims to title.
-
3 tyles of recording statutes:
- Race: First grantee to record acquires title, regardless of notice.
- Notice: A subsequent purchaser acquires title if the purchase is made without notice of a prior unrecorded conveyance.
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Race-Notice: A subsequent purchaser acquires title if:
- The purchase is made without notice of a prior unrecorded conveyance and
- The subseqent purchaser records first.
4
Q
Notice [in terms of recording statutes]
A
- Actual notice: A subsequent Purchaser has actual notice when he has personal knowledge of a prior interest
-
Contructive/Record Notice: A subseqeunt purchaser has const. notice when the prior interest is recorded (validly recording a deed by publicly registering it automatically puts the entire public on notice)
- If a deed is not recorded properly, it is considered a wild deed. A wild deed is not sufficient to put subsequent purchased on constructive notice.
- Inquiry notice: A subsequent purchaser has inquiry notice when a reasonable investigation would have revealed th existence of prior claims (someone is clearly living on the property).
5
Q
The Shelter Rule
A
- A person who is transferred property from a BFP has the same recording statute protections as the BFP. – i.e. the transferee will take ‘shelter’ in the statute of the BFP transferor
- A BFP is person who pays valuable consideration (i.e. not an heir donee, devisee) for real property without notice of a prior interest.
6
Q
Adverse Possession
COAH
A
- Allows a trespasser in unlawful possession of land owned by another to acquire title to that land if their possession is: COAH
-
Continuous for the statutory period
- Seasonal or infrequent use will sufficient if the use is consistent with the type of property being possessed.
- Tacking: Adverse Possessor can tack on the time of possession of a prior adverse possessor to meet statutory period requirement if the adverse possessors are in privity with one another (voluntary agreed transfer during AP)
- Disabilities. The statutory period will not run against a true owner who had a disabilty at the time the AP begun
-
Open & Notorious
- AP must use the property as if they were a true owner (possession of property cannot be hidden from true owner)
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Actual & Exclusive
- AP cannot share possession of the property with the true owner
-
Hostile
- AP cannot have the true owner’s consent to possess or use the property
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Continuous for the statutory period
- Failure to Record an interest acquired by AP: the AP will prevail over a subsequent BFP who complies with the recording act because there is no document that the interest holder could record
7
Q
Implied Warranty of Fitness and Habitability
A
- Implied Warranty of Fitness applies to defects in new construction. It protects against latent defects (defects not discoverable from a reasonable inspection) and warrants that the new construction is safe and fit for human habitation
- Most jurisdictions allow both the initial and subsequent purchasers to recover damages. Other jurisdictions only allow the initial purchaser to enforce the warrant.y
8
Q
Implied Covenant of Martketable Title
A
- Applies to Land Sale Contracts
- Seller has a duty to convey marketable title to the buyer at closing.
- Marketable title is title that is free from an unreasonable risk of litigation.
-
Defects in title that render title unmarketable include:
- Title acquired by AP that have not yet been quieted (supported by judicial decree)
- Future interest holders that have not agreed to the transfer
- Private encumbrances
- Violation of a zoning ordinance; or
- significant physical defese (encroachment on land that is incuranle)
- Defect must be cured before closing - at which point the K and Deed merge and the deed controls
- If seller cannot deliver martketable title at closing the buyer can rescind the K without penalty
- Buyer may choose to waive the Marketable title but seller cannot cancel a land sale K for failure to deliver marketable title if buyer chooses to waive.
9
Q
Equitable Conversion
A
- Contract of Sale: Before a deed is delivered, the contract of sale is signed.
- Under equitable conversion, as soon as the contract is signed (but before closing), the buyer’s interest is in the real property and the seller’s interest is in personal property (money he will get from sale).
- Thus the risk of loss remains on the buyer under equitable conversion, even if the seller remains in possession and control of the land.
10
Q
Deed Validity
SF, I’D PIDAP
A
- To be valid, a deed must:
- Satisfy the Statute of Frauds (be in writing + signed by grantor)
- Identify the Parties (grantor & grantee)
- Describe the property sufficiently; and
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Present Intent to Deliver
* Delivery: satisdied when frantor demonstrators a present intent to pass title (physical transfer not required, can be oral). Cannot be revocable (“I will transfer you think in 3 week unless i change my mind”).- Delivery to an agent is valid (delivery to attorney w/ instructions to deliver to grantee)
-
Present Intent to Deliver
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Acceptance Presumed
* Acceptance: is generally presumed provided the transfer is for value.
-
Acceptance Presumed
11
Q
Fee Simple Subject to Condition Subseqent
A
- FFSCS: A fee simple subject to condition precedent (FSSCS) is created when the grantor retains the power to terminate the grantee’s estate upon the happening of a specific event.
- With a FSSCS, the grantee’s estate continues until the grantor exercises his right of entry/power of termination by suing or making re-entry.
- The following words are usually held to create conditions subsequent: “upon condition that”, provided that, but if.
12
Q
Fee Simple Determinable
A
- FSD: A fee simple determinable automatically terminates on the happening of a stated event and reverts to the grantor.
- Duration adverbial language (for so long as, while, during, until) usually creates an FSD.
13
Q
Ambiguity in Estate Terms
A
The generally policy of courts it to avoid forfeiture of estates and thus, where terms are ambiguous, there is a presumption in favor of FSSCS (if applicable)
Example: O conveys Blackacre to School “if school uses Blackacre only to teach children aged 5 to 13”. The word “if” and the lack of express possibility of reverter language suggests and FSSCS.
14
Q
Term of Years Lease
A
- A trm for years lease specifies both a beginning and an end date
15
Q
Periodic Tenancy
A
- No fixed End Date (month-to-month = periodic tenancy)
- Repeats until one party gives valid notice to the other
- Valid notice equal to he rent payment term is required to terminate.
- It can be created by an express agreement, implication (lease contains no end date) or operation of law (oral lease violates SOD because term is more than 1 year)
