Property Tested topics Flashcards
Joint Tenancy
A tenancy where two or more persons own property w the right of survivorship
Under VA law, if a right of survivorship is not expressly reserved in a grant, then tenancy will be construed as a
tenancy in common rather than a joint tenancy
Is a joint tenancy alienable/divisible?
Alienable but not divisible
Is a Tenancy in Common Alienable?
Yes, Each tenant can devise or freely transfer his interest to anyone w/o affecting the interest of any other tenant in common
Joint tenancy must be created with each tenant having__
i_ equal right to possess or use property
ii) each tenant having equal interest in property
iii) at same time
iv) and in same instrument
Tenancy by Entirety
Tenancy between two married persons.
Neither pparty can alienate or encumber property w/o consent of the other
Tenancy by Entirety Upon Divorce
converted to a tenancy in common
To transfer a real property interest, grantor must
demonstrate the intent to make a present transfer of the interest (ex, delivery of deed) and grantee must accept the interest
Can title pass w/o recording?
In VA, title may pass w/o recording, so a deed need not be recorded to be valid and convey good title
Upon divorce, tenancy by entirety/joint tenancy is converted to
tenancy in common w/ no right of survivorship
Remainder
future interest created in a grantee that is capable of becoming presently possessory upon the natural expiration of a prior possessory estate that is created in the same conveyence in which the remainder is created
Vested remainder
a remainder that is not subject to any conditions precedent and is created in an ascertainable grantee
Are future interests transferrable/devisable/descendible?
In VA, all future interests, including vested remainders, are fully transferable inter vivos, devisable by will and descendible by inheritance
Deed of Trust
Landowner delivers title to real property to a trustee as security for the payment of an obligation that typically the landowner owes another person (Eg, lender)
Functions as a mortgage in VA
Can a vested remainder be encumbered by a deed of trust?
Yes
Defaulting on Deed of Trust
On the landowner’s default on his obligation, the other person can instruct the trustee to sell the property and apply the sale proceeds to repay the obligation
Prior to the trustee’s sale, landowner may regain title to the property by
repaying the obligation
Landowner may sell the property that is subject to a deed of trust
In that case, landowner may use proceeds from that sale to repay the obligation and thereby regain title to the property which landowner then transfers to the buyer of the property
Fee Simple Determinable
A present fee simple estate limited by specific durational language, such that it terminates automatically upon the happening of a stated event and full ownership of the property is returned to the grantor
Grantor’s retained future interest is called a
possibility of reverter…which arises automatically even if the grantor does not specifically reserve it
Recording Statutes/Recording Easements in VA
Facially, Va’s recording statute reads as a notice statute
However, in VA, the SC has found no error in trial ct’s conclusion that VA’s recording act makes VA a ___ jx
race notice jx
Notice Statute
Subsequent bona fide purchaser who takes w/o notice will prevail over a prior property interest holder
Under a race notice statute, subsequent purchaser must take
w/o notice and record their interest first
Doctrine of Merger
Under doctrine of merger, provisions in a K for sale are extinguished and merged into the deed
Merger: if a buyer has a claim against a seller, then the basis of the claim must be based on
the covenants in the deed, if any, and not on the K itself
Merger: Exception
provisions which are collateral to the passage of title and not covered by the deed are not merged into the deed and survive its execution
Collateral agreements
distinct agreements made in connection w the sale of the property that do not affect the title to the property, if they are not addressed in the deed and if they do not conflict w the deed
Fraud/Intentional Misrepresentation
1) false representation of material fact
2) w intent to mislead
3) relied upon by P
Curing Misrepresentation
can be cured and K is no longer voidable by adversely affected party if circumstances change in such a way that misrep becomes true before adversely affected party avoids the K
Who can partition property?
Tenant in common or joint tenant has right to unilaterally partition property but a tenant by entirety does not have this right
Partition in Kind Proceeding
Ct divides jointly owned property into distinct physical portions…
If physical division is not practicable or fair, ct may order a partition by sale an distribute proceeds
Does a Co-tenant have the right to reimbursement for improvements made to property?
generally, co-tenant does not have right to reimbursement for improvements made to property….
However, upon partition of the property, a ct may allocate proceeds from the sale of the property to compensate the co-tenant for value of improvements
Bailment defintion
Bailor’s delivery of her personal property to another person (bailee) to possess for a period of time….NO TRANSFER OF TITLE
Bailment elements
Bailee must
1) INTENT+POSSESSION—physically possess property w intent to exercise control over it
2) CONSENT—consent to bailment
3) Be AWARE aarticle exists
Bailee standard of Care
varies based on reason for bailment
Standard of Care When bailment is solely for benefit of bailor
duty of slight diligence…bailee liable for gross negligence
Standard of care in a bailment when bailor and bailee receive an Equal Benefit
ordinary care
Bailee benefit
upmost care… liable for slight negligence
Detinue
An action to recover actual property
Person wrongfully deprived of personal property may file action for detinue, trespass, trover
Bailment Theories of recovery
1) negligence
2) Breach of K
3) conversion
(unathorized act over property of another of such nature as is inconsistent w right of owner…usining property in manner inconsistent w bailment)
4) Strict Liability
strictly liable if bailee uses property for a different purpose other than agreed to
5) Damages
Holder in Ordinary Course
Generally, a seller can only convey property he has title over
However, under UCC as adopted by VA, entrusting goods to a merchant who deals in goods of the kind has power to transfer all rights of the entruster to a buyer in the ordinary course of business
Buyer in ordinary course of business
person who buys in good faith and w/o knowledge that the sale to him is in violation of the ownership rights of a 3rd party in the goods
Limiting Liability on Bailment
A bailee may limit its liability as long as bailor knows or should know of limitation and EXPRESSLY CONSENTS TO IT
Is a Limitation placed on a claim check valid?
claim check is not a K btwn parties. Therefore, any limitation placed on a claim check is not valid unless it can be proven that bailor knew or should have known of limitation
Constructive/Quasi Bailment
Differs from true bailment in that the chattel has not been delivered by or w permission of its owner to the bailee
Liable only for gross negligence
Marketable Title
title free from defects … ie free from an unreasonable risk of llitigation
Defects in title rendering it unmarketable include
i) title acquired by adverse possession not yet been quieted
2) future interests wherein holders of such interests have not agreed to the transfer
3) private encumberance (mortgage, easement, covenant, option)
4) violation of zoning ordinance
5) significant physical defect
Title obtained by fraud is
voidable, not void, and cannot be challenged if property is in hands of bona fide purchaser
Subsequent mortgagee/purchaser who takes without notice
has priority over earlier transferee
6 English Covenants of title
1) covenant seisin
2) covenant right to convey
3) Covenant of free from all encumberances
4) covenant no act to encumber
5) covenant for further assurances
6) Covenant of Quiet Possession
Covenant of Seisin
grantor has right to property described in deed
covenant right to convey
grantor has right to transfer title
Covenant of Free From all encumberances
deed contains no undisclosed encumberances
covenant no act to encumber
grantor has taken no act that results in encumberance of the property
Covenant for Further assurances
grantor will do whatever necessary to perfect title should it turn out to be defective
Covenant of Quiet possession
grantee’s possession will not be interfered w by a 3rd party’s lawful claim for title
Easement
right held by one person (dominant estate) to make specific, limited use of land owned by another (servient estate)
Easement by necessity
property must be virtually useless w/o benefit of easement for an easement by necessity to be created…
Usually arise when property is divided and portion becomes landlocked and cannot be accessed w/o use of an easmeent
Easment by Prescription
In VA, easements by prescription can be obtained by continnuous, actual, open and hostile use for a period of 20n yrs
The use need not be exclusive and scope of an easement by prescription is limited to the nature and extent of the adverse use
What happens when servient estate transfers interest and easement is on interest
New owner is bound by easement unless they took property for value in good faith w/o knowledge of easement
Damages for Breach of Land K
Non breaching party is entitle to any amount representing difference between the purchase price agreed to and market value of property
Vested remainder
absolute right to title to certain property after an earlier interest terminates
Easement by prescription
Actual, open and notorious, hostile and continuous for stat period of 20 yrs
Is a joint tenancy devisable?
No
