real prop Flashcards
1
Q
Generally, a real covenant is
A
an agreement between parties to do or not do something on land (e.g., maintain a stone wall) that is enforceable by an action for money damages.
2
Q
the promising parties to a real covenant are bound under contract law, but their successors in interest are bound only if
A
the covenant runs with the land.
3
Q
A real covenant will only bind successors in interest if the following elements are met: (6)
A
(1) writing,
(2) intent to run,
(3) touch and concern,
(4) horizontal privity,
(5) vertical privity, and
(6) notice if the person to be bound was a purchaser.
4
Q
a grantor’s intent to transfer can be
A
presumed in some cases
5
Q
when the grantor keeps the deed, what must evidence an intent to make a present transfer of the property interest?
A
the grantors “outward and visible acts”
6
Q
where a grantor leaves the deed on a table in his residence, there is no ______________ of delivery
A
no presumption of delivery
7
Q
a note left with a deed, reading: “this lot NOW belongs to X” demonstrates
A
a clear intent to immediately transfer the property to X- rendering the deed delivered
8
Q
Under a land-sales contract, the seller can use the proceeds from the sale to eliminate a
A
mortgage obligation on the property.
9
Q
If the proceeds of the sale of the house exceed the amount of the outstanding mortgage, then a title defect will be
A
extinguished and the seller can deliver marketable title to the buyer upon closing.
10
Q
A purchase-money mortgage is granted to the seller or a third-party lender when
A
(1) the loan proceeds are used to acquire title to or construct improvements on the property and
(2) the mortgage is given as part of the same transaction in which title is acquired.
11
Q
any type of mortgage is an
A
encumbrance that may render title unmarketable—regardless of priority.
12
Q
A mortgage is subject to the same defenses (e.g., mistake, duress, fraud) as
A
the underlying obligation or debt secured by that mortgage.
13
Q
when mortgaged property is transferred to a donee, the donee is entitled to assert
A
the donor-mortgagor’s defenses against the mortgagee-lender.
14
Q
a purchaser who assumes an existing mortgage obligation as part of the purchase price
A
may not assert the donor-mortgagor’s defenses.*
15
Q
A joint tenancy is a type of concurrent estate in which each
A
cotenant has an undivided and equal interest in the property with the right of survivorship.
16
Q
The right of survivorship means that
A
a joint tenant’s interest disappears upon that tenant’s death and the remaining joint tenants’ interests automatically expand to absorb it.
17
Q
joint tenants cannot
A
devise their interests upon death.
18
Q
joint tenants are free to convey their interest to another
A
during life without the other tenants’ consent.
19
Q
transfer of a joint tenant’s interest during their lifetime will
A
sever the joint tenancy and convert it into a tenancy in common
20
Q
once the joint tenancy is severed, an a tenancy in common remains, each co tenant has
A
an equal right to possess the property without the right of survivorship.
21
Q
each tenant in common is free to
A
unilaterally transfer or devise his/her interest.
22
Q
A life estate is
A
a present possessory interest that terminates upon the death of an individual (the measuring life).
23
Q
A life estate is _________transferable
A
freely transferrable
24
Q
a life estate becomes “pur autre vie when
A
it is measured by the life of someone other than the current holder of the life estate (the life tenant).
25
The future interest that follows a life estate is either
a reversion (if held by the grantor) or a remainder (if created in a grantee).
26
a life tenant has the right to all
rents and income during the tenancy.
27
a life tenant also has a duty to pay
current charges that become due (e.g., property taxes, mortgage interest) unless the document creating the life estate provides otherwise.
(duty limited to amount of income that can be generated from the land)
28
The warranty of marketable title is
implied in all real estate contracts unless otherwise provided.
29
warranty of marketable title guarantees that
upon closing, the seller will convey the buyer title that is free from an unreasonable risk of litigation.
30
Whether the seller is aware of a substantial defect in title is irrelevant in determining
marketability of title
31
title must be marketable at the time of
closing—not at the time the contract is entered
32
A property that is free from encumbrances may nevertheless be unmarketable due to
a defect in the title itself—e.g., misnamed grantor or grantee, variance in property description between different deeds.
33
Marketable title does not mean that title must be free of any defect, but it should ensure
peaceable and quiet enjoyment of the property.
34
under the doctrine of tacking, an adverse possessor may
tack on the predecessor's time if there is privity between successive adverse possessors.
35
Privity between successive adverse possessors is satisfied if
the possessor takes by nonhostile means (e.g., by descent, devise, contract, deed).
36
For who bears the risk of loss, most states follow the logic of the doctrine of
equitable conversion and place the risk of loss on the buyer during the executory period
37
doctrine of equitable conversion places the risk of loss on the buyer during
the executory period
38
the executory period is the period between
the execution of the real-estate contract and closing.
39
under equitable conversion the risk of loss is on the buyer during the executory period regardless of whether
buyer takes possession of the property during that period.
40
minority of jurisdictions have adopted the
Uniform Vendor and Purchaser Risk Act.
41
Under the Uniform Vendor and Purchaser Risk Act, the risk of loss remains with
the seller until the buyer takes possession of or receives legal title to the property.
42
when the owner/seller has possession of the building subject to the contract at the time it was destroyed; the most important issue in awarding judgment is whether
the jurisdiction has adopted the UVPRA or applies equitable conversion doctrine
43
The type of deed that a seller must supply when the contract is silent on this issue has no impact on
which party bears the risk of loss during the executory period.
44
Absent contrary language, an implied covenant of marketable title is part of
every land-sales contract.
45
an implied covenant of marketable title
that title to the property is free from an unreasonable risk of litigation
46
an implied covenant of marketable title does not guarantee
that the property itself is free from damage or dictate which party held the risk of loss.
47
Buyers can acquire casualty insurance in every jurisdiction because
buyers have an equitable interest in the purchased building.
48
the fact that buyers have an insurable interest has no impact on
who bears the risk of loss during the executory period.
49
An equitable mortgage can be established when
a debtor gives an absolute deed to a lender with the intent to secure a loan
50
an absolute deed
a deed that is free of encumbrances and transfers unrestricted title to property
51
To establish the existence of an equitable mortgage, the debtor-grantor must prove by clear and convincing evidence that
the deed was intended as security for a loan—not as an outright transfer.
52
under an equitable mortgage, if a debtor defaults, the deed recipient, like any other lender, may then bring
foreclosure action
53
owner conveyed his lot to the investor outright by warranty deed with the intent to secure a $75,000 loan from the investor. The investor had agreed to reconvey the lot to the owner once the loan was paid in full.
transaction created an equitable mortgage—not an outright transfer of the lot.
Therefore, the investor cannot immediately evict the owner.
The lender must first follow any applicable foreclosure procedures.
54
The statute of frauds generally requires that a transfer of real property be
in writing to be enforceable
55
The Statute of Frauds relating to land sale contracts does not prevent the introduction of
oral evidence to explain or interpret a written deed—e.g., to show that the deed was subject to an agreement that the property serve as security for a loan.
56
A void deed is invalid at its
inception and conveys no title to the grantee
57
void deed is unenforceable even if
it is relied upon by a bona fide purchaser
58
a bona fide purchaser—i.e., one who
purchases a property interest without notice of another's prior interest in the property.
59
A deed need not be ___________ to be valid and convey _________ ________.
recorded;
good title
60
A warranty deed promises that
the grantor has title to the property and the right to transfer title without encumbrances.
61
a deed and the warranties therein are unenforceable if
the deed is forged
62
A future-advances mortgage (i.e., "line of credit") is a mortgage given by a debtor (mortgagor) in exchange for
the right to receive money from the lender (mortgagee) in the future.
63
Priority with regard to proceeds from a foreclosure sale depends on whether the advances are:
optional or obligatory
64
if advances are optional
the future-advances mortgage has priority with respect to amounts loaned before the future-advances mortgagee received notice of a subsequent mortgage
65
if advances are obligatory
the future-advances mortgage has priority with respect to amounts loaned before and after the future-advances mortgagee received notice of a subsequent mortgage.
66
The Rule Against Perpetuities (RAP) applies only to
contingent future interests—i.e., future interests that are held by unknown/unborn persons or subject to a condition precedent.
67
Under the common law, RAP renders a contingent future interest
void ab initio (i.e., from the beginning)
unless the interest must vest or fail within 21 years after the end of a relevant life in being when the interest was created.
68
In foreclosure proceedings, lien priority is generally determined by
the "first in time, first in right" rule.
Unless there is recording act, then it governs
69
Under the "first in time-first in right rule"
liens that arise first (senior liens) typically have priority over liens that subsequently arise (junior liens).
70
A race-notice act gives a subsequent purchaser priority over a prior conflicting interest if the purchaser
(1) took its interest without noticeof the prior interest and
(2) recorded first.
71
A purchaser must "______ ________" for the interest in real property to be protected by the recording act.
"pay value"
72
____________ are considered to have paid value and are therefore protected, but this protection does not always extend to judgment liens.
"mortgagees"
73
Mortgage documents are used to convey a lender (mortgagee
an interest in real property to secure repayment of a debt
74
Mortgage documents may contain a "due on sale" clause, which
allows the lender to demand full payment of the remaining mortgage debt if the debtor(mortgagor) transfers the mortgaged property without the lender's consent
75
if theres a "due on sale" clause, and the debtor does not pay, the lender can
can initiate foreclosure proceedings to recover any remaining debt.
76
Upon default on a loan obligation, a lender may elect to proceed against the debtor
personally or foreclose on the mortgage.
77
The applicable mortgage theory (lien or title) has no bearing on
the enforceability of a "due on sale" clause.
78
The applicable mortgage theory (lien or title) determines who (the mortgagor or the mortgagee) has
legal title to the mortgaged property.
79
Under the title theory, legal title is held by
the mortgagee until the mortgage debt has been fully paid.
80
An easement is the right held by one person to
make specific, nonpossessory use of another's land (i.e., the servient estate).
81
an easement can be acquired by
prescription through OCAN
82
OCAN—i.e., use that is:
1) Open and notorious – apparent or visible to a reasonable owner,
2) Continuous –uninterrupted for the statutory period,
3) Actual – use of the land,
4) Nonpermissive – hostile and adverse to the owner
83
An easement can also be expressly created by the parties
in a writing that satisfies the statute of frauds
84
Owners of an easement have the right and the duty to
maintain the easement unless otherwise agreed.
85
when the easement is shared, the owner who maintains or repairs the easement may
seek contribution from the other owners.
86
The owner of the servient estate also has an obligation to
contribute if he/she uses the easement.
87
Specific performance
court-ordered performance of a contractual obligation—is available only when money damages are inadequate.
88
Since land is considered unique and money damages are inadequate to compensate for the loss of unique property, this remedy is
generally available to buyers.
89
The doctrine of after-acquired title (i.e., estoppel by deed) applies when
a grantor conveys property to a grantee by warranty deed before the grantor has acquired title to that property.
90
Under doctrine of after-acquired title (i.e., estoppel by deed); Once the grantor receives title, this doctrine will cause it to
automatically transfer to the grantee.
91
Detrimental reliance (i.e., promissory estoppel) and part performance are both defenses to
the statute of frauds, which requires that a land-sales contract be
1) in writing,
2) signed by the party against whom enforcement is sought,
3) and contain all essential terms
92
The "first in time, first in right" rule generally applies when determining
priority of interests in real property—i.e., whether an interest is junior or senior to another interest.
93
"first in time, first in right" rule is subject to various exceptions, including
purchase-money mortgages (PMMs) and recording acts.
94
A PMM is a mortgage granted to the seller of real property if
the mortgage is given as part of the same transaction in which title is acquired
95
A PMM has priority over liens that arose
prior to the PMM regardless of whether the PMM was recorded.
96
But a PMM does not necessarily
have priority over subsequent liens; the recording act (or, if there is no recording act, the "first in time" rule) will control
97
Condemnation is the
taking of land for public use or because it is unfit for use.
98
The right of a tenant upon condemnation depends upon whether the condemnation is:
partial or complete
99
partial condemnation
where only a portion of the leased property is taken, so the tenant must continue to pay rent but is entitled to compensation for the portion that was taken
100
complete condemnation
where the entire leased property is taken, so the tenant is discharged from his/her rent obligation and is entitled to compensation for the taking.
101
Every lease (commercial and residential) contains an implied covenant of
quiet enjoyment, under which the landlord promises not to interfere with the tenant's possession of the leased premises.
102
implied covenant of quiet enjoyment is breached only when
the landlord prevents the tenant from possessing the leased premises.
103
A tenant's duty to pay rent is excused due to
constructive eviction
104
constructive eviction occurs when
the landlord breaches a duty to the tenant that substantially interferes with the tenant's use and enjoyment of the leasehold (e.g., failing to make repairs).
105
A partial eviction occurs when
a tenant is prevented from possessing or using a portion of the leased premises.
106
if a partial eviction occurs, The tenant is excused from paying rent for the entire premises if
the landlord was responsible for the partial eviction.
107
A mortgage is
an interest in real property given to a lender (mortgagee) to secure repayment of a debt.
108
The debtor (mortgagor) can freely transfer the mortgaged property to a grantee unless
the mortgage states otherwise.
109
After the conveyance, the mortgage remains attached to the property and the debtor remains
personally liable for the debt secured by the mortgage.
110
When a mortgage is conveyed, the grantee's obligations depend on whether the grantee:
1) took subject to the mortgage
2) assumed the mortgage
111
took subject to the mortgage
then the grantee does not agree to pay and is not personally liable for the debt
112
assumed the mortgage
then the grantee agrees to pay and becomes primarily liable for the debt, and the debtor becomes secondarily liable as a surety.
113
debtor is relieved of personal liability for the mortgage debt if
the lender releases or impairs the mortgaged property
114
In a majority of jurisdictions, the seller of a residence has a duty to disclose
all material physical defects that are known to the seller and cannot be reasonably discovered by the buyer.
115
If the seller fails to disclose all material physical defects known to them,
buyer may rescind the sale or seek damages
116
A defect is material if it:
1) substantially affects the value of the residence,
2) impacts the health or safety of a resident, or
3) affects the desirability of the residence to the buyer.
117
buyer must show that the defect was not
readily observable or known to her
118
Landlords have a duty to repair defects that pose a health hazard, but
sellers do not
119
Sellers need only disclose a material physical defect to
prevent liability for those defects
120
The implied warranty of habitability (or of fitness, suitability, quality, workmanlike construction, performance) is implied in a contract for the sale of
a newly constructed residence
121
A defeasible fee is
an ownership interest in real property that has the potential to last forever but can be cut short if a specified event or condition occurs.
122
a fee simple determinable (FSD),
type of defeasible fee
123
fee simple determinable (FSD), which is created with
durational language (e.g., "so long as," "during," "until").
124
The future interest that follows an FSD is either
a possibility of reverter; or an executory interest
125
a possibility of reverter
estate automatically reverts back to the grantor when the specified event occurs (presumed if not expressly stated)
126
executory interest
the estate automatically passes to a third party when the stated event occurs.
127
a possibility of reverter
freely alienable by the owner during life and upon death
128
FSD is freely
alienable, devisable, and descendible, it is always subject to the stated condition
129
A land-sales contract is executed when
the seller promises to deliver marketable title and the buyer promises to pay the purchase price.
130
promises must be performed on the closing date set forth in the contract if the parties set a strict closing deadline, which occurs when:
1) express language in the contract makes time of the essence,
2) the circumstances strongly suggest that the parties intended it to be or
3) one party gives the other party notice that time is of the essence.
131
when time is not of the essence
strict adherence to the closing date is not required in equity.
132
when time is not of the essence
performance is due upon closing or a reasonable time thereafter.
133
so long as performance can be rendered within a reasonable time after the closing date,
the delay does not provide grounds to rescind the contract and the other party must perform.*
134
a party that fails to render performance on the date set for closing in the real-estate contract will be
in breach and liable for incidental losses such as taxes, interest, etc.
135
Under the doctrine of equitable conversion, equitable title passes to the buyer upon entering the land-sales contract, but the seller retains
legal title during the pendency of the contract.
136
seller needs legal title to deliver
marketable title to the buyer at closing.
137
To be valid, a deed must:
1) be in writing and signed by the grantor
2) unambiguously identify the grantor and the grantee
3) unambiguously describe the land and
4) include words of transfer.
138
to clarify ambiguities in the deed
Extrinsic evidence can be admitted
139
if the extrinsic evidence is also unclear, then a court will not speculate as to the grantor's intent and the deed
will be deemed void (i.e., of no legal effect).
140
Real-estate contracts usually require the buyer to make a deposit of
a portion of the purchase price (i.e., an "earnest money" deposit).
141
A liquidated damages clause is often included, which allows the seller to
retain the buyer's deposit if the buyer breaches the contract and refuses to purchase the property.
142
liquidated damages clause is generally enforceable when
the amount of liquidated damages is reasonable—e.g., no more than 10 percent of the purchase price.
143
when evaluating reasonableness of a liquidated damages clause, courts may also consider:
1) sophistication of the buyer,
2) the nature of the transaction (commercial v. residential), and
3) whether the seller suffered an actual loss (if not, courts may refuse to enforce the clause).
144
A deposit for a reasonable amount may be retained in accordance with the liquidated damages clause—even if
the liquidated damages ($5,000) exceed actual damages ($4,000).
145
In a majority of jurisdictions, the nonpermissive requirement is met when
(1) the land is possessed without the owner's permission and
(2) the possessor objectively demonstrates an intent to claim the land as his/her own
—the possessor's subjective intent is irrelevant.
146
the exclusivity requirement focuses only on
the portion of the tract claimed by the adverse possessor—not the entire tract.
147
A court must balance the equities in determining
whether to issue an injunction.
148
A joint tenancy is a type of concurrent estate in which
two or more persons each own an undivided and equal interest in property with the right of survivorship
149
The right of survivorship means that a joint tenant's interest
disappears upon death and the remaining joint tenants' interests automatically expand proportionally to absorb it
150
joint tenant cannot
devise his/her interest at death.
151
When a foreclosure is conducted by a judicially supervised sale, the foreclosing mortgagee (here, the original owner):
1) must give notice to the holders of any junior interests in the property and
2) make them parties to the foreclosure action so that they can participate or send a representative
—otherwise, the junior-interest holder's interest will remain after the sale may, but need not, join others who have an interest in the property (e.g., a senior-mortgage holder) or are liable on the debt (e.g., a guarantor) as proper, but not necessary, parties
152
a valid foreclosure only eliminates interests in the foreclosed property that are
junior to the interest being foreclosed
153
The doctrine of merger provides that
all obligations contained within a land-sale contract merge into the deed once the deed is delivered to and accepted by the buyer.
154
Under doctrine of merger, Any obligations contained within the land-sale contract can be enforced thereafter only if
they are incorporated into the deed.
155
obligations that are collateral to and independent of the conveyance (e.g., the seller's obligation to remove his/her personal property prior to closing) are usually
not subject to the doctrine of merger.
156
certain transfers of residential real property are not subject to a due-on-sale clause—including
a transfer to the mortgagor's living trust
157
A right of first refusal (ROFR) is
a preemptive right that gives its holder the opportunity to acquire property from a seller before it is transferred to a third party.
158
right of first refusal provision is valid if
it complies with the statute of frauds, and its terms are reasonable
159
reasonableness of right of first refusal provision is determined by
balancing the utility of the purpose served by this restraint against the likely harm that would result from enforcing it.
160
though direct restraints on alienation are invalid, an
ROFR is a reasonable indirect restraint
161
An express easement arises when
it is affirmatively created by the parties in a writing that complies with the statute of frauds (e.g., a deed).
162
unless limited by the easement's express terms, the easement holder has the right to use the servient estate in any manner that is
reasonably necessary to use and enjoy the easement
163
An easement also anticipates
reasonable and natural development of the easement holder's land (i.e., the dominant estate).
164
easement holder may increase the manner, frequency, and intensity of the easement's use—so long as
that increase does not unreasonably damage or interfere with the use or enjoyment of the servient estate.
165
Even if the intent to bind successors in interest is not explicitly stated in the lease, it is generally presumed when the covenant
touches and concerns the land.
166
When a lease covenant does not run with the land, the original landlord
retains the right to enforce it.
167
RAP does not apply to a right of first refusal where
(1) granted in a lease to a current leasehold tenant or
(2) in most jurisdictions, created in a commercial transaction.
168
To finance the purchase of real property, a borrower typically executes two documents that serve as evidence of the debt:
Promissory note
Mortgage
169
Mortgage is recorded in the deed records to
provide notice of an outstanding debt attached to the real property.
170
A promissory note can be assigned to
another (an assignee) independent of the mortgage.
171
Once a note has been properly assigned, the mortgage
automatically transfers with the note
172
A negotiable promissory note can be assigned by
simply endorsing and delivering the note to the assignee
173
a nonnegotiable promissory note requires
a separate assignment document to transfer ownership.
174
a judgment obtained against the seller after the execution of the land-sale contract is not enforceable against the real property—even if
the claim arose before the contract was executed. (doctrine of equitable conversion)
175
A deed that names a nonexistent grantee is
void as to that nonexistent grantee.
176
if a nonexistent grantee was conveyed an interest in a tenancy in common, then the grantor would
retain the nonexistent cotenant's interest and have a tenancy in common with the other cotenant(s) named in the deed.
177
Only the ___________ signature is required to render a deed valid
grantors
178
If the seller cannot convey marketable title (e.g., due to a zoning violation), the buyer can
rescind the contract and refuse to close; or can choose to accept the land with defect and enforce the contract
179
if seller refuses to perform, the buyer can
1) rescind the contract and seek restitution
2) seek specific performance with an abatement of the purchase price* or
3) sue for damages.
180
if buyer seeks abatement of the purchase price, this is
a price adjustment to compensate for the defect.
181
Under the doctrine of subrogation, a third party (subrogee) who pays another's mortgage loan in full
becomes the owner of the loan and the mortgage securing that loan to the extent necessary to prevent unjust enrichment
182
Under the doctrine of subrogation subrogee may seek
reimbursement from the debtor (the former owner) or enforce the mortgage.
183
A common-interest community is
a real-estate development in which individually owned lots or units are burdened by a covenant that imposes an obligation to pay dues to an association.
184
association is typically governed by a board, which exercises the association's power to
manage common property, administer the covenants, and carry out functions set forth in the declaration or granted by statute.
185
board must act reasonably when
exercising its discretionary powers.
186
A common-interest community association does not automatically possess the right to
impose aesthetic restrictions on a homeowner's use of his/her property.
such power must be granted by statute or set forth in the declaration
187
In a land-sales contract, two essential terms are
price and subject matter.
188
Price is sufficiently certain and definite if
there is a practicable method for the court to determine what the price should be (e.g., fair market value).
189
subject matter is sufficiently certain and definite if
it enables the court to determine exactly what property is being sold.
190
A deed signed by the principal-grantor's agent with only the principal-grantor's name satisfies the signature requirement so long as
the agent had authority to sign on the principal-grantor's behalf.
an agent may execute a deed on the principal-grantor's behalf.
191
A fixture is tangible personal property attached to real property in such a manner that it is treated as
part of the real property when determining its ownership (e.g., the sculpture).
192
absent an agreement to the contrary, a fixture that the tenant has attached to the leased property may be removed if:
the leased property can be and is restored to its former condition and the removal and the restoration are made within a reasonable time.
193
A reasonable time for removal generally does not extend beyond
the termination of the lease.
194
A reasonable time for removal does extend beyond the termination of the lease when
1) the termination was not due to a breach by the tenant and
(2) the date of termination was not foreseeable by the tenant sufficiently far enough in advance to permit removal before the lease terminates.
195
To terminate a periodic tenancy, the landlord must
give the tenant notice of termination before the beginning of the intended last period of the periodic tenancy.
196
For a month-to-month tenancy, notice must be given
before the first day of the last month of the tenancy.
197
In the event that a seller breaches a contract to sell land, the buyer is entitled to
specific performance since the buyers remedy at law is considered inadequate due to the unique nature of land
198
while a check is not a typical land sale contract
it can satisfy the statute of frauds if the payee indorses the check as well, who is the party that enforcement is sought against; contains the parties names; states the property to be sold; and sets out the price
199
under virginia law, the defense of part performance is established by a showing that:
1) the parol agreement relied on is "certain and definite in its terms"
2) the acts proved in part performance "refer to, result from, or were made in pursuance of the agreement" and
3) the agreement was "so far executed that a refusal of full execution would operate a fraud upon the party, and place him in a situation which does not lie in compensation."
200
a nonbreaching party on a land sale contract, who performs his contractual obligation can argue for the contract to be removed from the statute of frauds under the defense of
part performance
201
the land that is subject to the easement is the
servient estate
202
the land benefited from an easement on a servient estate is the
dominate estate
203
typically an easement is created by
an express grant by the owner of the servient estate to the owner of the dominant estate
204
an easement may also be recognized if
the dominant estate is virtually useless (landlocked) without the benefit of an easement across servient estate (easement by necessity)
205
in order for an easement by necessity to be recognized
1) both the dominant and servient estates must have been under common ownership in the past
2) necessity must have arisen at the time that the property was severed and the two estates were created.
206
where access to a public road is circuitous and extremely difficult, its not impossible, meaning
its not landlocked
207
an express easement arises when
it is affirmateively created by the owner of the servient estate in writing that is in compliance with the statute of frauds
208
an easement may be either
appurtenant or in gross
209
an easement appurtenant benefits
the owner of the dominant estate in his use and enjoyment of his property
210
an easement in gross is
given to an individual to benefit them personally
211
an easement appurtenant passes to
a successor in interest of the dominant estate
212
an easement in gross does not
automatically pass to a successor in interest of the dominant estate
213
where there is uncertainty as to the type of easement granted by the owner of the servient estate,
an easement appurtenant is favored by law
214
Even if a court interprets the language of an easement as not prohibiting a subsequent expansion of the scope of an easement, the court will not
expand the easement to cover property that was not part of the dominant estate at the time that the easement was granted.
215
a joint tenancy exists when
two or more persons own property with the right of survivorship
216
under virginia law, if a right of survivorship is not expressly reserved in the grant
then the tenancy will be construed as a tenancy in common rather than a joint tenancy
217
in a tenancy in common, each tenant can
devise or freely transfer his interest to anyone, without affecting the interest of any other tenant in common
218
if a tenant in common transfers/sells her interest to a third party, the third party will take
subject to other tenants in common interest in the property
219
a remainder is
a 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 conveyance in which the remainder is created
220
a vested remainder is an interest that is
not subject to any conditions precedent and is created in an ascertainable grantee
221
in Virginia, all future interests, including vested remainders are
fully transferable inter vivos, devisable by will, and descendible by inheritance
222
while future interests including vested remainders are fully transferrable, until the future interest becomes possessory, purchasing party of interest will take title
subject to the the present possessory life estate
223
a fee simple determinable is
a present fee simple estate that is 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
224
the grantors retained future interest following a fee simple determinable is called
a possibility of reverter
225
a possibility of reverter arises automatically even if
the grantor does not specifically reserve it
226
where a party is wrongfully in possession of property at the time a party lawfully acquires title, to acquire possession, the party may need to
bring an action to eject the party unless they willingly vacate
227
Although the ownership of the property is deemed to automatically revert to the grantor upon the occurrence of the event, if the grantor must initiate legal action to regain possession of the property, Virginia requires the grantor to
commence the action within 10 years of the occurrence of the event
228
unless a grantor can convince or force a party to vacate the premises by closing, this would violate the covenant of marketable title, and the buyer could
rescind the contract to purchase the property, sue for breach of contract, or bring an action for specific performance with an abatement of the purchase price to reflect the unmarketable title
229
a vested remainder, as a real property interest, can be encumbered by
a deed of trust
230
pursuant to a deed of trust, which function as a mortgage in Virginia, a landowner delivers title to real property to a trustee as
security for the payment of an obligation that typically the landowner owes another person (e.g. a lender)
231
in a deed of trust, on the landowners default on his obligation, the other person can instruct the trustee to
sell the property and apply the sale proceeds to repay the obligation
232
prior to the trustees sale, the landowner may
regain title to the property by repaying the obligation
233
the landowner subject to the deed of trust may
sell the property that is subject to a deed of trust, and use the proceeds from the sale to repay the obligation and regain title to the property which landowner then transfers to the buyer of the property
234
"with general warranty" used in granting part of deed
constitute a covenant by grantor the he, his heirs and personal representatives, will forever warrant and defend the property unto grantee, his heirs, personal representatives and assigns, against the claims and demands of all persons, whomsoever
235
unlike a special warranty by a grantor that no defect of title occurred during his ownership of the property, when a grantor gives a general warranty, he is warranting that the defect did not occur during
his or any preceding ownership of the property
236
"with english covenants of title" in the granting of a deed means
the six covenants of title apply
237
virginia statutorily denominates the covenant of quiet enjoyment as the
covenant of quiet possession; and treats them as functional and legal equivalents
238
the three present covenants of title are
covenant of seisin
covenant of right to convey
covenant against encumbrances
239
the covenant of seisin warrants that
the grantor owns the land as it is described in the deed
240
the covenant of right to convey gaurantees that
the grantor has the right to transfer title
241
the covenant against encumbrances guarantees that
the deed contains no undisclosed encumbrances
242
breach of the present covenants occurs, if at all, at the time of
conveyance
243
In Virginia the three future covenants of title are
covenants of quiet possession
covenant of warranty
covenant of further assurances
244
covenant of quiet possession guarantees that
the grantees possession will not be interfered with a third party lawful claim for title
245
covenant of warranty guarantees that
grantor will defend against a third party's lawful claim for title
246
covenant of future assurances guarantees that
grantor will do whatever necessary to perfect title should it be defective
247
breach of future covenant of title occurs, if at all only upon
interference with possession by a third party
248
under the common law doctrine of merger, obligations contained in the contract of sale (such as sellers duty to deliver marketable title, or description of size or location of property) are
merged into the deed and cannot thereafter be enforced unless the deeds contains the obligation
249
doctrine of merger is generally not applicable to obligations that are
collateral to and independent of the conveyance itself
250
a tenant in common or a joint tenant generally has the right to
unilaterally partition the property
251
a tenant by the entirety does not have the right to
unilaterally partition the property
252
property can be partitioned either
voluntarily or involuntary
253
voluntary partition of property occurs by
co tenants agreeing in writing on the division of the land
254
involuntary partition of the property occurs by
court action
255
upon divorce of the owners of property held in tenancy by the entirety, the ownership is converted into
a tenancy in common
256
generally courts favor partition __________ of jointly owned property
in kind
257
in a partition in kind action, the court
divides the property into distinct physical portions
258
if physical division of the property is not practicable or fair, the court may order
a partition by sale and distribute the proceeds
259
generally, a co-tenant does not have the right to reimbursement for
improvements made to the property
260
upon partition of the property, a court may allocate the proceeds from the sale of the property to
compensate the co-tenant for the value of the improvement
261
common language used for a TODD
"at my death, I transfer and convey my interest in the described property to X, as my designated beneficiary, if X survives me."
262
Elective share:
1) 50% of the value of marital property portion of augmented estate.
2) If a legal spouse, they must file a notice of election within 6 months from admission of will to probate, or if none, from appointment of administrator.
3) Then must file the complaint to determine the elective share NLT 6 months after filing election.
4) Shares range from 3% of augmented estate for marriages of less than 1 year- 100% for marriages 15 years or more.
263
Augmented estate:
net probate estate, nonprobate transfers to third persons, nonprobate transfers to surviving spouse, surviving spouses property and nonprobate transfers to others.
264
The doctrine of adverse possession allows ownership to be granted to a person who
exercises exclusive physical possession of a piece of property for a certain amount of time.
265
Adverse possession: For possession to ripen into title, possession must be
continuous, open and notorious, actual, exclusive, and hostile.
266
Adverse possession: In Virginia, possession must be
continuous and uninterrupted for a period of 15 years.
267
Adverse possession: Seasonal or infrequent use may be sufficiently continuous if
it is consistent with the type of property that is being possessed.
268
Adverse possession: possession must be open and notorious, such that
a reasonable true owner would become aware of the claim.
269
to be considered "hostile" the adverse possessor must possess the land
1) without the owner’s permission and
2) with the intent to claim the land as his own against the claims of others
270
In Virginia, if possession is by a family member, then the presumption is that
the family member was on the land with permission, and therefore not hostile.
271
In order for possession to be exclusive, it cannot be
shared with the true owner, although two or more people can join together to create a tenancy in common by adverse possession.
272
b/c of family member presumption with adverse possession, unless he can overcome presumption, he cant satisfy the
hostile element required for successful adverse possession claim
273
An easement is
the right held by one person to make:
1) specific,
2) limited
3) use of land owned by another.
274
The land that is subject to the easement is
the servient estate
275
land benefited from an easement on a servient estate is
the dominant estate.
276
for an easement by necessity to be created:
The property must be virtually useless without the benefit of the easement
277
Generally, easements by necessity arise when
property is divided and as a result a portion becomes landlocked and cannot be accessed without use of an easement.
278
In Virginia, easements by prescription can be obtained by
continuous, actual, open, and hostile use for a period of 20 years.
279
for easement by prescription, the use
need not be exclusive
280
the scope of an easement by prescription is limited to
the nature and extent of the adverse use.
281
regarding a contract for the sale of a real property interest, promises contained in such a contract are merged
with deed
282
283
Virginia narrowly circumscribes the doctrine of merger, limiting it to
obligations in a real estate contract that relate to title or are addressed in the deed.
284
A closing statement, which is signed by both parties, is not
a deed
285
A closing statement merely reflects the parties' prior agreement by
assigning dollar values to the terms in the contract.
286
a closing statement is not a deed, but a document of lesser
importance than either a deed or a contract.
287
Reformation is
1) the modification of a document that has legal effect, such as a contract or a deed,
2) by a court
3) upon petition by a party.
288
Reformation of a writing for mistake is available if:
(i) there was a prior agreement between the parties;
(ii) there was an agreement by the parties to put that prior agreement into writing; and
(iii) as a result of a mistake, there is a difference between the prior agreement and the writing.
289
A party's failure to notice a mistake
will not preclude reformation of the instrument.
290
A deed that has been delivered is effective to
transfer ownership of real property, even though the deed is not recorded.
291
To transfer ownership of real property, the grantor must, at the time of transfer, intend to make
a present transfer of a property interest to the grantee.
292
Typically, the intent to make a present transfer of a property interest to the grantee is manifested by
delivery of the deed.
293
Delivery of deed may be completed by
physically handing or mailing the deed to the grantee or the grantee’s agent.
294
the recording of a deed by the grantor or someone at his direction may indicate
an intent to make a present transfer of a property interest to the grantee
295
While the recording of a deed by the grantor or someone at his direction may indicate an intent to make a present transfer of a property interest to the grantee
there is no requirement that a deed must be recorded for ownership of the property to pass to the grantee.
296
The words “with English covenants of title” in the granting of a deed is deemed to include the following covenants of title:
(i) covenant of seisin,
(ii) covenant of the right to convey,
(iii) covenant of "free from all encumbrances,"
(iv) covenant of "no act to encumber,"
(v) covenant of further assurances, and
(vi) covenant of quiet possession (i.e., covenant of quiet enjoyment).
297
The covenant of seisin warrants
warrants that the grantor owns the land as it is described in the deed.
298
The covenant of the right to convey guarantees
that the grantor has the right to transfer title.
299
The covenant of "free from all encumbrances" guarantees that
the deed contains no undisclosed encumbrances.
300
The covenant of "no act to encumber" more narrowly guarantees that
the grantor has taken no act that results in the encumbrance of the property.
301
In Virginia, an encumbrance is
a claim or liability that is attached to property that may lessen its value, such as a lien or mortgage.
302
Because a zoning restriction is not a claim or liability attached to property, it does not constitute
an encumbrance
303
The covenant for further assurances guarantees that
the grantor will do whatever is necessary to perfect title should it turn out to be defective.
304
The covenant of quiet possession guarantees that
the grantee’s possession will not be interfered with by a third party’s lawful claim for title.
305
Unlike a zoning restriction, a judgment lien is
an encumbrance.
306
Grantee's constructive or actual knowledge of encumbrance does not constitute a defense to
grantor's breach of covenant free from encumbrances or the covenant of "no act to encumber," if applicable.
307
when the words “with general warranty” are used in the granting part of any deed, these words are deemed to create
a covenant by the grantor that she, her heirs, and her personal representatives will forever warrant and defend such property unto the grantee, his heirs, and his personal representatives and assigns against the claims and demands of all persons whomsoever.
308
A tenant in common or a joint tenant generally has the right to unilaterally partition the property, but
a tenant by the entirety does not have the right to unilaterally partition the property
309
Property can be partitioned either
voluntarily (if the co-tenants agree in writing on the division of land) or involuntarily (by court action).
310
divorce automatically severed their ownership of the home as tenants by the entirety with the right of survivorship and converted their tenancy into
a tenancy in common.
311
While there is a preference for a partition in kind (i.e., a physical division of the property), such an action is generally not possible where
the property to be partitioned is a home.
312
Tenancy by the entirety is
a joint tenancy between married persons with a right of survivorship.
313
The same rules for joint tenancy apply to
tenancy by the entirety.
314
The tenancy by the entirety must be created (4 unities +)
(i) with each joint tenant having the equal right to possess or use the property,
(ii) with each interest equal to the others,
(iii) at the same time,
(iv) in the same instrument, and
(v) when the joint tenants are married.
315
tenancy by the entirety, Neither party can alienate or encumber the property
without the consent of the other.
316
Joint tenants who own real property generally have the right to partition the property, but tenants by the entirety
do not have a right to unilateral partition.
317
Divorce severs
a tenancy by the entirety
318
Without the right of survivorship, each tenant can
devise or freely transfer his interest to anyone.
319
Each co-tenant holds
an undivided interest with unrestricted rights to possess the whole property, regardless of the size of the interest.
320
Under the applicable Virginia statute, which is a codification of the equitable doctrine of estoppel by deed, a grantor who conveys an interest to land before actually owning it is estopped from
later denying the effectiveness of the deed.
321
under estoppel by deed when the grantor does acquire ownership of the land, the after-acquired title is
transferred automatically to the prior grantee.
322
Each co-tenant holds
an undivided interest with unrestricted rights to possess the whole property, regardless of the size of the interest.
323
An absolute divorce extinguishes the rights of each spouse in
the other’s real or personal property.
324
upon divorce property held as joint tenants or tenants by the entirety is converted into a
tenancy in common
325
because there is no right of survivorship in a tenancy in common,
each tenant can unilaterally devise, encumber, or transfer his or her interest to anyone, without affecting the other co-tenant’s interest
326
Marketable title is a title
free from defects, i.e. free from an unreasonable risk of litigation.
327
Defects in title rendering title unmarketable include:
(i) title acquired by adverse possession that has not yet been quieted;
(ii) future interests wherein the holders of such interests have not agreed to the transfer;
(iii) private encumbrance (e.g., mortgage, covenant, option, or easement);
(iv) violation of a zoning ordinance; or
(v) significant physical defect.
328
An easement is
the right held by one person to make specific, limited use of land owned by another.
329
An easement appurtenant is
transferred with the land to which it relates.
330
Easements are presumed to be
appurtenant (i.e., tied to the land) unless there are clear facts to the contrary.
331
An easement is in gross if
it was granted to benefit a particular person (as opposed to the land).
332
Traditionally, an easement in gross could not be transferred, but most courts now look to the intent of the parties to determine whether
the parties intended only the holder of the easement in gross to enjoy the right, in which case it is not transferable, or whether the parties intended the holder to be able to transfer it.
333
In Virginia, if the original purpose for which an easement is created no longer exists
then the easement will be terminated
334
A license is
a non-possessory right to enter another’s land for some delineated purpose; such as to use a pool.
335
Traditionally, a license
could not be transferred by the licensee, and the attempt to do so resulted in the loss of the license.
336
A unity of person is only required for
tenancies in the entirety
337
A joint tenancy must be created
(i) with each tenant having the equal right to possess or use the property (unity of possession),
(ii) each tenant having an equal interest in the property (unity of interest),
(iii) at the same time (unity of time), (iv) and in the same instrument.
338
each joint tenant’s interest must be created by
the same instrument
339
each joint tenants interest must be created at
the same time
340
a joint tenancy must be created with each joint tenant having
an equal right to possess or use the property
341
An action for ejectment generally must be brought within
15 years of the accrual of the right to bring this action
342
An action for ejectment generally must be brought within 15 years of the accrual of the right to bring this action, but if a person entitled to bring an action is an infant at the time the cause accrues, the period of limitations
does not start to run until the disability is removed
343
in an action to recover land, the action must be brought within
25 years from when the cause of action first accrued
344
the statute of limitations for bringing an ejectment action against an adverse possessor is
15 years
345
an action to recover land is subject to maximum limit of
25 years from when the cause of action first accrued
346
An unlawful detainer action is an action at law by which
the owner of real property can regain possession from a person who is in wrongful possession of the property
347
The most common use of an unlawful detainer action is
by landlords seeking to evict a tenant
348
ejectment is a legal claim to
try title to land and to establish that the movant is the holder of title to the land
349
If the landlord brought an action for ejectment and won, the remedy would be
a writ of possession from the court directing the sheriff to deliver possession to the plaintiff
350
distress is an in rem law claim by a landlord for
recovery of rent by proceeding against the tenant’s tangible personal property
351
Easements can be obtained by prescription, there must be
continuous, actual, open, and hostile use for a specific period (20 years in Virginia); doesnt need to be exclusive, unlike adverse possession
352
there must be continuous use to obtain an easement by
prescription
353
use must be hostile to obtain an
easement by prescription
354
the use to obtain an easement by prescription must be
open
355
Each unit owner of a condominium also owns the common areas of the building together with the other unit owners as
tenants in common
356
In Virginia, the common elements of a condominium include
all parts of the condominium other than the living units
357
only the owners’ association has standing to sue for
claims or actions related to the common elements of the condominium;
The individual owners of the units do not have standing to bring such claims.
358
Under the doctrine of adverse possession, ownership of real property is transferred to a person who
exercises exclusive physical possession of that property for a certain amount of time
359
In order to establish title by adverse possession, the possession must be
continuous, actual, open and notorious, hostile, and exclusive
360
Virginia requires possession to be
continuous and uninterrupted for 15 years.
361
A license is a right to enter another’s land for some delineated purpose and can be created without
consideration or a writing.
362
A license is freely revocable unless
it is coupled with an interest or detrimentally relied upon, in which case the license is irrevocable and amounts to an equitable easement
363
Detrimental reliance requires the licensee to
expend money in reasonable reliance on the license
364
To transfer a real property interest, the grantor must demonstrate
the intent to make a present transfer of the interest (e.g., delivery of the deed) and the grantee must accept the interest.
In addition, pursuant to the Statute of Frauds, the transfer of a real property interest must be evidenced by a writing (e.g., a valid deed).
365
An easement is
the right held by one person to make specific, limited use of land owned by another.
366
The land that is subject to the easement is
the servient estate
367
the land that benefits from an easement on a servient estate is
the dominant estate
368
An affirmative easement gives another the right to use the land for
a specific purpose.
369
If a written easement is granted but not recorded against the servient estate, then the easement is
not enforceable against a bona fide purchaser (i.e., a purchaser with no notice of the easement).
The easement is not actually terminated, but rather becomes unenforceable.
370
When the words “with general warranty” are used in the granting part of any deed, these words are deemed to create
a covenant by the grantor that she, her heirs, and her personal representatives will forever warrant and defend such property unto the grantee, his heirs, and his personal representatives & assigns against the claims and demands of all persons whomsoever
371
By delivering a General Warranty deed, Bob has warranted that he will
defend all claims against the property.
372
The words “with English covenants of title” in the granting of a deed mean that
the six covenants of title are included in the deed, including the covenant against encumbrances
373
covenant against encumbrances
1) a “present” covenant
2) guarantees that the deed contains no undisclosed encumbrances
3) Breach of a present covenant occurs at the time of conveyance.
374
A land sale contract is subject to the Statute of Frauds, and thus, must
(i) be in writing,
(ii) be signed by the party to be charged, and
(iii) contain all essential terms.
375
essential terms of a land sale contract SOF requirement
names of parties/ price/ property description
376
Once a duty to perform exists, nonperformance is
a breach unless the duty is otherwise discharged.
377
Absent contrary language, a seller of real property is required to deliver marketable title at closing as
an implied part of performance
378
Marketable title is a title that is
free from an unreasonable risk of litigation.
379
The party who commits a material breach of his contract obligations cannot sue for contract damages but would ordinarily be entitled to
the fair value of any benefit conferred on the non-breaching party
380
A material breach occurs when
the non-breaching party does not receive the substantial benefit of his bargain.
381
Seller was not willing to provide a marketable title or any remedy for its being unmarketable. Therefore, Seller
breached his duty to deliver marketable title at closing.
382
In Virginia, the risk of loss between execution of the land sale contract and the closing date is
placed on the buyer
383
because he breached the contract with Purchaser, Seller cannot sue for damages, including
specific performance
384
a land sale contract generally must meet the requirements of
the Statute of Frauds
385
under the doctrine of part performance, either party may seek specific performance when the acts of performance constitute
persuasive evidence of the existence of a contract
386
In Virginia, specific performance may be allowed under the doctrine of part performance by showing that
(i) the parol evidence agreement has certain and definite terms,
(ii) the part performance was made pursuant to the agreement, and
(iii) the agreement has been executed in a way that requires full execution to prevent a fraud upon the party that has partially performed.
387
When Seller refused to transfer the property to Purchaser, he
breached the contract
388
When damages are an inadequate remedy, the non-breaching party may pursue
the equitable remedy of specific performance
389
In Virginia, a party seeking specific performance must demonstrate that
1) there is no adequate remedy at law and
2) that the terms of the contract sought to be enforced are sufficiently definite.
390
A buyer is entitled to specific performance for a seller’s breach of a contract to sell real property because
the buyer’s remedy at law is considered inadequate due to the unique nature of real property.
391
In order to grant specific performance of a contract to sell real estate, the court must conclude generally that the contract is
1) both valid and enforceable [not subject to legitimate defenses],
2) that both parties have obligations to perform under the contract, and
3) that there is no adequate remedy at law.
392
Because real estate is considered to be unique, it is often the subject of
specific performance claims.
393
Virginia’s Statute of Frauds, Va. Code §11-2[6] requires any contract for the sale of real estate to be
in writing
394
There is an exception to the requirement of a writing where
the party seeking specific performance has partially performed.
395
the court should grant specific performance, based on
[1] the terms of the oral agreement being certain and definite;
[2] the acts proved in part performance must refer to, result from or be made in pursuance of the agreement; and
[3] refusal to order specific performance would operate as a fraud on the buyer.
396
The doctrine of equitable conversion exists in Virginia, not as a rule of law, but as a discretionary doctrine to be applied when
equity considers a thing to be done which ought to have been done.
It is a legal fiction based on the presumed intention of the parties.
397
where a valid contract for the sale of land exists, the doctrine of equitable conversion would
allow the court to specifically enforce the sale.
398
application of the doctrine of equitable conversion is limited to cases where the enforcement of the contract is
1) in accord with the intention of the parties,
2) free from fraud, and
3) where enforcement will not produce inequitable results.
399
The doctrine of equitable conversion will not be applied in a case where to do so would result in
hardship or injustice forced upon one party, through a change in circumstances not contemplated by the parties at the time of the contract.
400
Specific performance will not be decreed where a contract is
1) founded in fraud, or
2) where a subsequent change of circumstances has defeated the purpose of the contract
401
When the servient tenement is transferred, the new owner takes subject to the easement unless
the new owner is a bona fide purchaser for value with no notice of the easement
402
if an easement is not recorded, the purchaser doesnt have
record notice
403
physical location of an easement can put the purchaser on
constructive notice
404
Pursuant to the General Warranty, the grantor covenants that
he, his heirs and personal representatives will forever warrant and defend such property unto the grantee, his heirs, personal representatives and assigns, against the claims and demands of all persons whomsoever.
405
only the condominium unit owners’ association had standing to sue for claims related to
common elements and limited common elements.
406
Supreme Court of Virginia has held that "where a grantor conveys land by deed describing it as bounded by a road or street, the fee of which is vested in the grantor, he implies that
such way exists and that the grantee acquires the benefit of it;
Nothing in the Virginia case law, however, permits the grantee to allow others to use the boundary road on the grantor's property
407
Ordinarily, a written memorandum would take an oral agreement outside the statute of frauds—and allow it to be enforceable—if the written memorandum
1) identifies the subject of the contract,
2) is sufficient to indicate a contract has been made, and
3) includes the essential terms of such contract, as well as
4) be signed by the party to be charged.
408
Specific performance is an equitable remedy typically employed to
enforce a contract for unique property, such as land.
409
a tenant in common or joint tenant “who places improvements upon common property at his own expense is entitled to
compensation in the event of partition
410
a determinable fee
conveyance was denominated with the durational limit "so long as
411
With a general warranty deed, the grantor covenants against
title defects that either he or his predecessors created.
412
A general warranty deed and the English Covenants of Title guarantee against
defects in title, not defects in the condition of the property.
413
Under the merger doctrine, a previous contract is
extinguished by an instrument of higher dignity – the deed.
414
The doctrine of merger only applies to
the subject matter specifically covered by the deed;
It does not apply to provisions that are collateral to the passage of title.
415
The merger doctrine is of
narrow scope and disfavored
416
failure to record the deed does not
invalidate it.
417
a lawfully adopted zoning ordinance is not an
“encumbrance,” tenancy, or lien on the land
418
In other words, the language “English covenants of title” simply mean that
the deed is conveyed in fee simple, without any encumbrances of tenancies, or liens on the property
419
The English covenants of title include
1) seisin
2) right to convey
3) quiet possession
4) free from encumbrances
5) further assurances
6) no act to encumber
420
The covenant of quiet possession free from encumbrance simply constitutes a promise that
a grantee will hold and enjoy the land free from any interruption, claim or demand by anybody, and that grantor would indemnify and save grantees harmless against any and every charge or encumbrance.
421
An encumbrance has been defined as including
the existence of physical intrusions or encroachments or superior title or interest in the land held by another party.
Lawful zoning ordinances are not encumbrances.
422
with regard to judgment liens, it is generally recognized that so long as the judgment is unenforced
no actual damages are incurred by the buyer unless he discharges the lien or suffers damages as a result of the judgment creditor’s enforcement of the lien.
423
the covenant free from all encumbrances would include
any right to, or interest in, the land, to the diminution of the value of the land. An outstanding right in anyone other than the grantee usually is an encumbrance.
424
Whether a property's title is or is not encumbered is not a matter of
agreement of the parties.
425
A deed may validly convey real property by inter vivos gift so long as there is
[1] donative intent, [2] delivery, and [3] acceptance.
426
The deed must
[1] be in writing, [2] signed by the grantor; and reasonably identifies [3] the parties and [4] the land.
427
With respect to the identification of the parties, the parties’ names need only to be
reasonably identifiable
428
Delivery can occur by various methods, including
manual deliver
429
The grantee becomes bound by the terms of the deed by
his acceptance of a deed delivered by the grantor, even though a deed is signed only by the grantor.
430
Acceptance on the part of the grantee can be implied since
the conveyance is presumed to be beneficial.
431
The suretyship provision of the Statute of Frauds provides that
no action concerning an agreement shall be brought against any person upon a promise to answer for the debt, default, or misdoings of another, unless that agreement is in writing and signed by the party to be charged or his agent.
432
A collateral undertaking applies when the promisor is
merely a surety or guarantor, receives no direct benefit, and is liable only if the debtor defaults.
433
A grantee who assumes an existing mortgage is not
a surety
434
The grantee makes no promise to the mortgagee to pay the debt of another, but promises the grantor to
to pay the mortgagee the debt the grantee owes to the grantor.
435
a valid deed containing an assumption clause, when accepted by the grantee, is
an enforceable agreement to assume the mortgage debt
436
Parole evidence is inadmissible to vary or contradict a
complete and unambiguous written instrument.
437
Where the language of a deed is explicit, the intention is clear, and the result is not repugnant, the court should
look no further than the four corners of the instrument.
438
A unilateral mistake of fact will
not invalidate a contract
438
A contract may be reformed or rescinded in equity on the ground of
mutual mistake
439
On its face, Virginia’s recording statute reads as
a notice statute
440
the Virginia Supreme Court has found no error in the trial court’s conclusion that Virginia’s recording act makes Virginia a
race-notice jurisdiction
441
Under a notice statute analysis
a subsequent bona fide purchaser that takes without notice will prevail over a prior property interest holder.
442
Notice can occur in three ways, including
record notice
443
Under a race-notice analysis, the subsequent purchaser must
take without notice, and must record their interest first.
444
Under the doctrine of merger, provisions in a contract for sale are
extinguished and merged into the deed.
445
under merger doctrine, 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 contract itself
446
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
447
Not all agreements between the parties regarding the purchase and sale of the property are
contained in the deed.
448
agreements not contained in the deed, are considered collateral to the sale, and survive execution of the deed, if
1) they are distinct agreements made in connection with the sale of the property
2) do not affect title to the property
3) not addressed in the deed
4) do not conflict with the deed
449
To establish fraud, must prove
a false representation of a material fact made knowingly, with the intent to mislead and be relied upon by party to his detriment.
450
The element of misrepresentation can also be established by proving
a concealment of a material fact
451
Reliance may not be justified, however, when
a potential buyer undertakes investigation regarding a matter at issue because the buyer is charged with knowledge that the investigation reveals or knowledge that would have been revealed had the investigation been pursued diligently.
452
A purchaser need only purchase without notice of the prior interest to prevail under
a notice statute.
453
A race-notice statute requires a subsequent purchaser to take the interest
without notice of a prior conflicting interest and be the first to record.
454
Delivery of deed may be completed by
physically handing or mailing the deed to the grantee or the grantee’s agent
455
Intent can be implied from the words and conduct of the grantor, such as when
the grantor drafts and records a deed.
456
when the grantor keeps the deed, intent to transfer is
not presumed;
Instead, parol evidence is admissible to establish whether the grantor had the intent to make a present transfer of the property interest.
457
