Property Flashcards
1, Parties identities, 2. Words, indicating parties intent to buy or sell, 3. Adequate description of property and 4. Purchase price.
Essential Terms
- Parties identifies, 2. Words, indicating intent to sell or buy, 3. Adequate description of property 4. Purchase price.
Warranty
Seller’s promise to deliver marketable title at the closing.
Equitable conversion
Buyer is equitable owner of property during executory period before closing.
Equitable conversion: Seller
gets the equitable right to be paid the purchase price.
Majority: Buyer bears
Risk of loss during the executory period. if the property is damages; the buyer must complete the purchase and pay full price at closing.
CL
Caveat emptor. Let the buyer be aware
Modern: Disclosing material defects
requires seller of residential property to disclose known any material defects that buyer cannot reasonably discover.
Deed
The most common transfer.
Deliver and accept the deed.
Words, actions that demonstrate a present intent to immediately transfer the property.
Ex. Physically hands it, or relinquishing control.
Deed- The 3rd party receives the deed
Grantor has relinquished control of the deed to make an immediate transfer.
Delivery doesn’t occur:
Grantor still retains control over the deed.
Grantor reserves right to retrieve the deed from the 3rd party.
Death Escrow:
Oral death conditions usually invalid as an attempt to circumvent the requirements for a will.
Doctrine of Merger
Sales contract merges into the deed upon delivery.
Any contractual guarantees about title disappears. + Buyer’s remedies for title problems are limited to the covenants of title contained in deed.
Recording
Filing a property in the public record office. It does not make a deed valid between grantor and grantee. Once transferred, deed is valid regardless of recording it.
Recording
puts 3rd parties on notice of the relevant property interest.
First in Time Rule
a Given property interest has priority over those that arise later.
Bona Fide Purchasers for value
Innocent purchasers who buy property without sufficient notice of preexisting interest.
Race statutes
a recorded interest prevails over any interest recorded later. Extinct.
Notice Statutes
A bona fide purchaser prevails against any prior interest of which he lacked notice, regardless of when or whether the BFP records.
Race notice Statute
a bona fide purchaser prevails against any prior interest of which he lacked notice, but only if the bona fide purchaser records first.
Legal theories about the nature of mortgage
Lien theory, title theory
Lien theory
mortgage gives mortgagee a security interest in the property with no change in title.
Title theory
mortgage gives the mortgagee title to the property until the debt is paid.
unless mortgage agreement provides otherwise,
the mortgagor (beggar) is free to sell the property.
the sale of the house does neither automatically
remove the mortgage, nor satisfy the underlying debt.
Due on sale clause:
if the mortgagor beggar sells the mortgaged property, the mortgagee (bank) may declare the entire underlying debt to the immediately due and payable.
Mortgage: seller defaults:
the bank can take the property from the one who purchased the property. Foreclosure: taking the house from the buyer even if the buyer did not assume the debt.
If the seller has defaults on debts, and the buyer did not assume the debts,
the seller is the only person responsible for deficiency.
If the seller has defaults with remaining debts, and the buyer subject to mortgage & agreed to assume the underlying debts upon purchase,
The buyer is personally, and primarily liable for the debt.
The seller is secondarily liable on the debt unless released.
Foreclosure
The mortgagee may seize and sell the property if the mortgagor defaults.
Equity of redemption
Mortgagor’s (beggar) in Common law, equitable right to avoid foreclosure by paying remaining mortgage debt before the foreclosing sale.
Statutory Redemption
Entitles mortgagor (beggar) to purchase property from foreclosure buyer specified period of time. e.g., auction.
Foreclosed sale is distributed to
lien holder priority order.
Purchase money mortgage
provides money to buy the property.
PMM is priorized to any preexisting liens.
Future advance mortgages
The lender (beggar) makes an initial lump sum payment followed by periodic disbursements.
If the future advance lender is required to make the periodic disbursement,
all disbursements 1,2,3,4,,, has the same priority as the initial distribution.
If the disbursement is optional, then, the priority….
the Priority depends on the initial notice of the second mortgage.
If there is no notice,
priority is to the entire loan.
If notice about the 2nd mortgage,
All the other disbursements are junior to the second mortgage.
- Cost of foreclosure and sale: court cost, lawyer cost;
- mortgage being foreclosed;
- all junior liens and mortgages in priority order and
- Beggar if anything left.
Mortgagor can sue the mortgagee for deficiency.
liens left.
Liens senior to the foreclosing mortgage
unaffected by the foreclosure.
Liens junior junior lienholder is joined or properly notified then
The foreclosure extinguishes the junior lien. the foreclosure does not automatically eliminate the underlying junior debt.
If the junior lienholder is not joined, not noticed;
The junior lien survives and will encumber the property after the foreclosure sale.
Defeasible Estates
Fee simple determinable, Fee simple subject to a condition subsequent.
Fee simple determinable can
- Immediate right of possession; 2. No definite ending date, 3. Is defeasible; because it can be cut short by another estate.
If the condition occurs in Fee Simple Determinable,
Fee simple will end automatically; and property will return, revert to grantor. The future interest: is the banker’s interest of possibility of reverter.
Fee simple determinable
“so long as no one smokes on the property”; once smoking, fee simple determinable ends, and the property revert to the banker in fee simple.
Fee simple subject to a condition subsequent:
Doesn’t end automatically when condition occurs. Grantor must take step of reentering the property and retaking possession; Banker has right of entry.
Right of reentry
Someone smokes: & Grantor wanted to reclaim the land; then, must affirmatively enter the land and retake possession.
Life estate
determinable.
Remainder
future interest that typically follows the life estate.
Fee simple subject to a condition subsequent: Conditional language
But if, on condition that, unless, provided that
Life Tenant (farmer) has a duty to
preserve property by avoiding several types of waste.
Duty to avoid permissible waste
life tenant to take reasonable steps to maintain the premises. (EX. Tax)–> if farmer did not pay, the daughter can pay, and daughter can be reimbursed from the life tenant.
Life tenant’s obligation
limited to amount of income that could be derived from the land whether that is property’s rental value or value of other resources.
Life tenant must avoid voluntary waste;
Life tenant must not alter the property in ways that materially decreases its value.
Life Tenant may not engage in
ameliorative waste; which constists of altering the property in ways that change its character, even if those changes increase the propery’s value.
The farmer, LT, cannot change it into residential subdivision, even if it will increase the value of the land.
because it changes the character of property and can create the ameliorative waste.
Remainder:
may not cut the life estate short; becomes possessory only on natural conclusion of the preceding life estate (death). immediately upon termination of the preceding estate.
Executory interest
can cut off a fee simple estate. can become possessory after some gap in time between it and the prior estate.
Fee simple subject to an executory limitation
defeasible interest
Transferability of future interests
gift, sale, will, intestate distribution.
TiC
50%, 30%, 20%… Cotenant’s interest don’t have to be equal; each holds undivided interest.
TiC
Each cotenant is entitled to possess the entire property simultaneously. Each may not exclude each other from the property; each may transfer his share without consulting the others.
TiC Son can sell
his 20% to a complete stranger; a Stranger becomes cotenant with Son A and B.
TIC Son B 30% can lease
to lessee who would have the same right of possession during the leasehold; the lessee’s right the same as Son A and Son C.
Most states, TiC presume
conveyance to multiple grantees creates a TiC unless the words specify otherwise.
Joint Tenancy with the right of survivorship 4 unities:
Possession, Interest, Time, and Title. (PITT).
Unity of Time
Requires that JT interest must vest simultaneously
Unity of Title
requires the JT must drive their ownership from the same deed or other instrument.
Unity of Interest
Requires that joint tenants must hold the property in equal shares.
Unity of Possession
requires that each joint tenant must have the right to use the entire property.
Most states: require clear language to create a joint tenancy
Jointly with a right of survivorship
Courts infer JT from words such as
share and share alike; especially if the 4 unities are present.
Right of survivorship
if one joint tenant dies, then, his share ceases to exist and the shares of the remaining joint tenants increase proportionately.
Right of survivorship: if Son A sells to James Choi (1/3): the sale cause :
Severance.
Severence
One joint tenants interest drops out and is no longer subject to survivorship.
Severed interest (1/3 of James Choi) becomes held as a TiC, while
the remaining interest continue in joint tenancy.
so if Son B dies, Son C gets
2/3. Because of Son B’s death.
The most common method of severance
Sale or other conveyance of one joint tenant’s share.
Minority Jurisdictions;
if joint tenant leases his interest
What if Son A mortgaged his interest?- Lien theory states;
A mortgage creates a lien against the property but doesn’t transfer ownership.
Most states: mortgage does not sever the joint tenancy.
Title Theory States
Mortgage transfers title to the mortgagee (bank) until the debt is paid. In this case; a mortgage severs the joint tenancy because it destroys the unity of title.
Equitable conversion
severs the joint tenancy. because it destroys the unity of title (not C, as C sold it to Z. Z has conferred equitable ownership of C’s share.
Sale contract of C –> Z brings about severance
even before the sale is finalized.
What if A executes the will? If A dies,
A’s interest vanishes upon A’s death; Will left nothing; but B (1/2), and C (1/2).
Carrying costs
Expenses that affect the entire property; cotenants are responsible for carrying costs in proportion to their ownership %.
Partition;
judicial proceeding in which the court will end the cotenancy and divide the property among the cotenants.
Partition in kind
Property is physically divided in proportion to each cotenant’s interest.
If physical partition is not available; (house or undivivable.)
Property is sold and the proceeds divided in proportion to each cotenant’s interest.
Tenancy for years
lasts for a specified time, which could be more or less than a full year.
Periodic Tenancy:
lasts for a specified time period with automatic renewal for same period unless terminated; notice must usually equal one lease period.
Tenancy at will
last for an unspecified period and can be terminated by either party at any time.
Holdover tenants
stays after the lease terminates
if holdover tenants pays the rents & the Landlord accepts it;
creates periodic tenancy. Period equals to frequency of rent payments.
Tenant’s duties
- Pay rent, 2. Avoid waste, 3. Refrain from abandoning the premises.
LL’s duties
- deliver the premises 2. Honor the implied warrant of quiet enjoyment.
Legal possession:
no 3rd party has rights in the property sufficient to evict the tenant.
- Neither the LL nor someone holding through the LL has possession when the lease begins.
- exclusive right to possess the property.
Actual possession
The property is free from any holdover tenants or other wrongful occupiers when the lease begins.
Optometrist was a trespasser with no legal right of possession.
if the applicable law only requires legal possession, then, the dentist (2.1.-) can sue optometris (ended 1.1) for trespass; but she has no claim against the ll…. The LL failed to deliver the actual possession.
If the law requires actual possession;
LL had a duty to remove optometrist before dentist took possession; then, 1. Dentist can sue optometrist for trespass & sud LL for damages.
Warranty of quiet enjoyment
neither LL nor anyone with superior title will disturb tenant’s possession.
Constructive Eviction
if the LL creates or fails to resolve a probelm, or breaches some duty to tenants, so as to substantially deprive tenant of the sue and enjoyment of the property.
First, in Constructive Eviction;
the tenant should notify LL of problem and provides opportunity to cure.
If LL fails to cure; then,
tenant can vacate, terminate lease, and seek damages.
Some states;
tenant to stay on the premises and stop paying the rent until problem is fixed.
E.g., Dentist and optometrists disagree who removes the garbage. The dentist just left leaving the keys to the landlord What are Ob & Rights? Dentist had to prove LL had a duty to remove garbge + would have had to prove other elements of constructive eviction were met;
Dentist would justifiably vacate the premises and could have properly terminated the lease.
LL would have argued that dentist improperly abandoned the premises
Abandonment;
- 1. LL may accep the T’s surrender of the premises and terminate the lease.
Acceptance of tenant’s surrender:
- Express agreement, 2. Releaseing the premises to a new tenant at the same or a higher rate, 3. Substantially reconfiguring the premises so as to change their character.
- LL may release the premises on the abandoning tenant’s behalf
and then may recover the difference between the new tenant and that owed by the abandoning tenant.
- LL may allow the premises
to remain vacant and sue the tenant for rent as it becomes due.
CL: LL faced with an abandoning tenant
has no duty to mitigate damages.
Doctrine of Retaliatory Eviction
prevents a LL from evicting or otherwise acting against a tenant in retaliation for the tenant’s protected activity.
Protected Activity:
complaining about defects, asserting that LL failed to keep the premises in a habitable condition.
Condemnation does not breach
Covenant of Quiet Enjoyment.
Condemination;
entire property lease is terminated
If only a part of the Condemnation:
lease continues; on the part of the property; and tenant must still pay rent. Tenant can be entitled to a reduction ;or abatement to reflect diminished value of property.
Who gets $ upon condemnation
depends on Lease. If absent, tenant may be entitled to share of condemnation award in proportion to value of leasehold interest as compared to value of the property taken.
Assignment
occurs when a tenant, as assignor, assigns his entire remaining leashold interest to an assignee.
Privity of K between LL and Assignor extinguishes when
LL novation–> substitution to Assigneee
Privity of K
All covenants alive
Privity of estate: (David Schimmer is occupying)
Landlord and Assignee are liable to one another for any lease covenants that run with the land.
-1. Original parties intend it to do so; and;
-2. Touches and concersn the land: if it burdens or restricts the use or the enjoyment of th eland.
Covenant runs with the land
if the covenant makes the leasehold more valuable.
Because butcher, assignee has only privity of estate,
- the jeweler (assignor) is a party in all covenants of lease,
- the butcher (assignee) is a party with the covenants that run with the land.
- So, who is liable to pay the rent?
Pay rent: the obligation runs with the land.
Both the assignee, and the assignor but the assignee (butcher) is primarily liable, and the assignor (jeweler) is secondarily liable. LL can collect either one.
Fixing heating: (lease includes ll cov)
Covenant run with the land:
- Butcher (assignee) is affected to use and enjoy .
Under the privity of estate: the butcher is entitled to the benefit of the covenant. And she may require the repair of the heating system.
20% discount on the lamb meat: (written in the lease)
it does not touch and concern the land; it does not relate to anyone’s use or enjoyment of the premises. it is personal between the jeweler and the landlord. Butcher (assignee) is not privity of contract with the landlord; covenant that is all but not rusn with the land, only Tenant
Sublease
the prime tenant still holds the leasehold interest; sublease is separate from the prime lease.
Privity of K & privity of estate:
The prime tenant and subtenant ar all liable for all covenant int eh sublease, but not liable for thoose in prime lease.
Pay rent: sublease:
Prime tenant is liable for LL.
Subtenant is Liable for Jeweler. Butcher is not liable for LL because there is no privity. This lack of privity makes Butcher : she cannot enforce the LL to fix the heating. the Butcher can still ask jewelr first assuming the prime lease requires the jewelr to make such repairs.
20% discount: sublease
Butcher is not liable because there is no privity.
Easement
A property interest giving someone a limited right to use someone else’s land for a specified purpose.
Dominent tenement
the farmer’s land that is benefited by easement.
Servient Tenement
the Plumer’s land that is burdened by easement.
Easement
runs with the land. It binds on all successive owners of the servient tenement who take with notice of the easement.
Easement formed;
express grant (writing), express reservation, (if grantor conveys the land and retains an easement ofr himself).
Prescriptive easement: e.g.,
for 10 years the farmer openly drove the land, to reach the highway, without the plumer’s permission. SoL was 8 years then, Creates prescriptive easement.
Prescriptive easement elements
- openly, 2. without permission, 3. Continuously for entire time required by statutes.
Open
visible, or notorious, use would be apparent upon a rasonable inspection of property.
Continuous
if AP regularly uses the property as a reasonable owner might. SoL was 8 years for trespass (here, 10).
Lack permission
The farmer lacked plumber’s permission.
Prescriptive easement: needs not be exclusive use to
confer.
Existing prior use IF
1) 2 parcels are severed from Common Ownership.
2) At the time, there was an apparent, continual use of one parcel for the benefit of the other; such the use might be expected to continue after severance.
3) Existing use is important or necessary to the use of the benfitted parcel.
Existing prior use: Necessary or important:
most courts it means, difficult or expansive to change the existing use.
Some courts existing use must be reasonably necessary or conveient for use of the benefitted parcel.
Necessity:
Easement is absolutely required for the use of the dominant parcel. Strict necessity. much higher need than easement of the implied, existing use. The Farmer has no access to a public road without the easement.
Conveying an easement without specifying it precise location or dimensions; can be fixed when
1) use, 2) consent, 3) acquiescence. Then, it cannot be changed unilaterally by either party.
if the farmer just said, “you can use it.” but did not identify where;
the farmer used: for five years: still, farmer cannot change unilaterally by either party.
Easement terminates
1) expires, 2) Estopped, 3) government condemns.
Merger
what if the plumber grants the easement and sold it to the farmer.
the easement expires. One person owns both the servient and dominant tenement. if the farmer sells to someone else in the future the easement will not be revived.
Abandonment
the holder by words or by conducts intendds to give up all rights in the easement. (no use + no intent)
requires no use + evidence of intent to give up the easement.
Deed states
The parties their successor and their assigns agree there will be no shooting on the hunters’ remaining property after 8 pm.
Restrictive Covenant:
agreement to sue to limit the use of one tract of land for the benefit of another tract.
Servient tenement: Burdened by the agreement
The hunter’s land
Dominant tenement: benefited by the agreement
the teachers land because it has reduced noise.
Restrictive covenants
- Real Covenants (money damages), 2. Equitable servitudes (injunctions or sp).
Restrictive Covenant is enforceable by or against the successors (purchasers of the land)
- In writing, 2. Intent, 3. T&C, 4. notice.
Here, deed restricts the farmer not to shoot after 8 pm.
- deed is in writing, 2. Deed is intentional, 3. T&C: because use of the land benefits the nurse 4. Notice: farmer can search public records –>
so the nurse can enforce the farmer the covenant between the hunder and the teacher. It is not subject to RAP.
License - tickets to sports
Formed when property owner gives someone else permission to use land for specified purpose.
License is not
interest in land.
It does not need in writing.
It does not run with the land.
Revocable anytime.
Man’s revocation may be estopped if licensee expends money, property, or labor under licensing agreement.
F25. Revocation of licensing might also be restricted
if the licensee has acquired a license via contract. (tickets purchasers)
Controlling land use
1- 사: Restrictive covenants and licenses.
2- 공: Zoning laws gov.
Variance
Exemption from a zoning law.
Area variances
involve physical requirements
Use variances
allow uses that would otherwise be prohibited.
Most courts grant a variance only if it is
- Consistent with public interest OR
- Necessary to prevent hardship to the property owner.
not because it is convenients the deed restrictions XXXX.
Grantor and grantee cannot use a deed
to control zoning laws application.
Nonconforming use
when zoning law started, baker already using commercially.
Nonconforming use:
the gov may not immediately limit the use. It may allow it to some limit on continuing to use the current bakery.
EX. Nonconforming use
GV : Bakery can make small changes to the use; but may not undertake substantial expansion or other significant changes. So baker can continue to commerce but cannot expand.
Amortization
Requires the owner to gradually phase out nonconforming use over specific reasonable period of time.
Zoning law v. restrictive covenant:
the stricter of two limitations prevails.
Recording
usually, local county’s recording office.
Recorded Document
provides notice of relevant property interest. Any document reflecting interest in land can be recorded. Recording does not invalidate a valid transaction, or a forged document. Recorded documents are indexed to make them accessible.
Grantor grantee index
grantor and grantee names
Records search
enables someone identify all recorded interests in a tract or property by establishing the chain of grantors and grantees
Recording: First in Time Rule
a given property interest has priority over those that arise later.
Bona Fide Purchaser for Value
without notice of the prior interest.
Someone who got as a GIFT is not a BFPV.
Without the notice of a prior interest
Notice is evaluated at the time the purchasers interest arose. Not in some later time. BFP who acquired notice after his purchase, remains the BFP.
- Actual notice
when purchaser subjectively knows about the prior interest
- Record or constructive notice
when an interest is properly recorded in public records; where someone could find it with a reasonable search.
Inquiry notice
notice based on possession; when someone is aware of facts that would lead a reasonable person to investigate a prior interest. e.g., house, powerlines.
Quitclaim deed provides
Inquiry notice because a quitclaim provides no covenants of title and thus is somehow suspicious. (minority cts)
Race notice statute
BFP prevails against any prior intreset of which he lacked notice; but only if the bona fide purchaser records first. Here, the credit union lacked notice of the unrecorded mortgage (bank) ; but the bank (1st mortgagee) recorded first; the credit union is bona fide purchaser and the bank recorded first; the bank has priority.
Estoppel by Deed
Doctrine of After Acquired Title.
Doctrine of After Acquired Title
Applies if a grantor purports to convey property that he doesn’t own (grantor has no title) to a grantee who lacks notice of this problem.–> upon the grantor gets a title later on, the grantee now gets title.
In other words - Doctrine of after acquired title
the grantor is estopped from denying grantee’s title.
Traditionally, estoppel by deed applies only against a grantor
who conveyed the land through a warranty deed; which contains the covenants of title.–> The grantee must assert the same quality of title that the deed purported to convey.
Common grantor
The subsequent grantee (teacher) is required to search for all conveyances by the seller; if she does, she finds seller-DR deed, and she has record notice of building restrictions on the Western Tract.
Common grantor
The subsequent grantee (teacher) is not required to search for all conveyances by the seller; She would not be charged with notice of seller DR deed and would not have record notice.
Wild deeds
Deeds from a seller who is outside a later buyer’s chain of title and which generally don’t provide record notice.
Properly indexed recording system
Someone can trace a chain of title by looking up all successive grantors and grantees.
If the builder searches at County Recorder Grantor Grantee Index,
She can’t find the wild deed because both investor and developer are outside of the chain of the title.
The builder has no record notice;
BFP. Superior Claim.
Shelter rule
BFP’s grantee is protected from prior interest to the same extent as the BFP grantor, even if the grantee is NOT BFP.
Title insurance
protects the policyholder against defects in the legal title to the property.
Owner’s policy
insures the property’s owner against losses from title defects
Lender’s policy
protects a mortgage lender from title related losses.
Title insurance
personal to the insured; does not run with the land.
Each successive buyer or lender
should buy the policy if it wants coverage.
Title Insurance Policy
usually transfer to owners who succeed to the insured by operation of law as opposed to those who succeed by purchase.
EG policyholder sold the property to a buyer
buyer is not covered by title insurance.
EG policyholder died and left the property to her heir (title insurance)
heir covered by title insurance.
Owner’s policy
continues to protect owner against title related liabilities even after owner sells the land.
Both owner’s policy and lender’s policy
insureer defends and indemnifies the insured against covered title defects, paying either the cost of curing the title defect or reduction in market value; up to the policy limit.
Delivery and Acceptance of the deed
- Teacher must deliver the deed.
- The farmer must accept the deed (Giving $$$).
Delivery occurs
words or actions that demonstrate a present intent to immediately transfer the property.
Grantor must lose the control of the deed with intent to immediate transfer. e.g., physical hand off is the clearest example of delivery. eg., taking it from the teacher: accept.
If acceptance is not clear; the law presumes acceptance.
if the grantee is benefitted from transaction.
Grantor may not take back the deed.
Grantee is advised to record the deed.
Deed requires
The identifiable, existing grantee. E.G., Grantee; Farming INC XXXXX (사실 그런 회사가 없는 경우, 죽은 사람도 마찬가지)
Deed is effective to transfer title
regardless of any consideration paid. e.g., GIFT OK. No requirement a deed must refer to consideration paid by the grantee.
Recording: public office: just notice of someone’s title.
nothing to do with transfer of the deed.
Teacher orally says, “don’t record the deed before I die” to the farmer, and died: her will wrote, “everything to my sister.” Who owns the deed?
Farmer. Teacher delivered the deed with intent to transfer the property.
Teacher told her brother to give the deed to the farmer asap.
A week later, Teacher want her brother destroy the deed: doesn’t work. Farmer wins the sue.
No preconditions:
Delivery is complete when the 3rd party - brother- receive the deed.
Delivery
intent to relinquish the control fo the deed & make immediate transfer.
Right reserved
The grantor might expressly reserve the right to retrieve the deed from the 3rd party, so delivery doesn’t occur; because the grantor did not intent to immediately transfer the property.
“I go to Bahama. Pass this deed to the farmer.” “Will you do it asap?”
- No conditions on bro’s transmission of the deed.
- No rights reserved to take the deed back.
- Delivery was complete.
“Here’s the deed for the farmer. Would you give it to him when I die?” “Don’t return to me for any circumstances.”
Lawyer larry received: Death Escrow.
Teacher cannot get it back.
Delivery is complete.
Court finds teacher beyond her control of the deed.
Direct Delivery with Death Condition (Teacher gives the deed to the farmer and says, “I want yo to have the land after I died. Deed won’t be effective until then.”
Doesn’t work.
Teacher’s intent to transfer property upon her death
may use a will or a 3rd party death escrow. No direct giving deed, verbally conditioned on the grantor’s death.
Teacher locked the executed deed in her desk–> even if the farmer steals it, records it, and sells it to his daughter
Daughter has no interest because teacher never delivered the deed.
Forged deed
Someone other than the grantor executes the deed without the grantor’s authorization. VOID.
F25 Fraud in the execution
The grantor is tricked into thinking that she is signing sth other than a deed. VOID.
Fraud in the inducement
The grantor understands that she is signing a deed, but she is deceived into doing so by reliance on a misrepresentation of material fact. VOIDABLE.
Teacher says to the lawyer, “this is a deed for the farmer. Will you give him when I die? and says, “Please keep it handy, just in case I want it back.”
She did not intent to place deed beyond her control & She still reserved the right to retract the deed.
Doesn’t work.
No delivery
Deed poll
a deed that signed by the grantor but not by the grantee.
The farmer NOT signed the deed himself:
Even so, he is bound by the no fencing condition. (Deed poll).
Quitclaim deed
includs no covenants of title; it simply conveys whatever interest the grantor has in the property; if any; with no guarantees.
Special Warranty deed
typically includes all 6 covenants of title: deed only warrants against defects created by the grantor; not defects created by previous owners.
General Warranty deed
includes all 6 covenants, however, it warrants against defects created by anyone, including any previous owner.
Title covenants
Expressly written in a deed or incorporated by law.
State statute:
define a warranty deed to include certain covenants; whether they spell out in the document. The grantor and grantee can negotiate on what kind of deed they can provide.
6 covenants
Seison, The right to convey; the covenant against encumbrances, quiet enjoyment, warranty, further assurances.
Present covenants
Seison, right to convey, and covenant against encumbrances: breached only at the moment when seller conveys to the buyer;
Future covenants
Quiet enjoyment, warranty, and further assurances: can be breached after the conveyance.
