Real Property Flashcards
To obtain title to real property by adverse possession in Virginia, the party seeking title must prove this his possession was:
(1) actual and visible; (2) exclusive; (3) hostile to the owners rights; and (4) continuous for the statutory period of 15 years.
Where members of a condo association have misused common areas of the property in violation of association rules and to the detriment of other members, who has standing to sue?
Only the condominium unit owners’ association has standing to sue for claims related to common areas and limited common areas.
Where all the requirements of adverse possession are met except that the possessor actually had the owner’s permission to possess & use the real property, the possessor is presumed to have:
A revocable license
A license to use real property may be granted
orally, and is freely revocable. It will defeat a claim of title by adverse possession because the possession was not adverse or hostile to the rights of the owner.
Private nuisance requires
an action that unreasonably interferes with the use and enjoyment of plaintiff’s land in a way unique to the plaintiff
To obtain injunctive relief, a plaintiff not only has to prove the existence of a nuisance, but also
the inadequacy of a remedy at law
A non-breaching party may seek specific performance when
legal remedies (such as money damages) are inadequate.
Specific performance is always available for
land sale contracts because all land is considered unique.
For there to be a valid land sale contract, the _______ __ ______ must be satisfied.
statute of frauds
The statute of frauds requires
the purchase and sale of real property to be memorialized by a writing that is signed by the party to be charged.
The statute of frauds does not require that the writing be
formal. Instead, any writing satisfies the statute of frauds if it contains every essential term of the oral agreement that it memorializes.
The three essential terms of a land sale contract include:
(1) the name of the parties, (2) the price and manner of payment (if agreed upon), and (3) a description of the property sufficient to render it capable of identification.
The holder of an easement has the right to
use another’s tract of land for a special purpose (such as accessing a road) but has no right to possess that land.
An easement is appurtenant when it
benefits the holder in their physical use or enjoyment of another tract.
So, for an easement to be appurtenant, there must
be two tracts: a dominant tenement and a servient tenement.
The dominant tenement is the estate
benefited by the easement.
The servient tenement is the estate that is
burdened by the easement.
The benefit of an easement passes automatically
with the dominant estate, even if it is not mentioned in the deed.
An easement can be created by
express grant or reservation, implication, or prescription.
When the owner of a tract of land sells a part of the tract and by this division deprives one lot of access to a public road,
a right-of-way by absolute necessity is created by implied grant or reservation over the lot with access to the public road.
To create the easement by necessity, the plaintiff must prove that
at one time in the past the same person owned both the dominant and servient tenements .
An easement by necessity is not allowed when
there is available another means of ingress and egress to and from the claimant’s land, even though it may be less convenient and will involve some labor or expenses to repair and maintain.
Scope of Easements by Necessity
With easement by necessity, the extent of the necessity determines the scope of the easement and the court will look to the circumstances giving rise to such an easement.
Who do the recording acts protect?
Bona fide purchasers and mortgagees (i.e. creditors)
A bona fide purchaser is one who:
buys for value AND without notice that someone else got their first at the time of closing
VA’s Recording Statute
Virginia has a race-notice recording system. The statute reads like a notice statute but the Virginia Supreme Court has added the requirement (i.e. it has so determined) that to prevail the bona fide purchaser (BFP) must also win the race to record.
Under a race-notice recording system, the subsequent purchaser must be
a bona fide purchaser and must record their interest first (i.e. win the race to record).
Types of Notice
Actual notice - Prior to B’s closing B learns of A
NO INQUIRY NOTICE IN VIRGINIA - whether he examines Blackacre prior to closing or not, B is on inquiry notice of whatever an examination of Blackacre would have revealed
Record Notice - B is on record notice of A’s deed if at the time B takes, A’s deed was properly recorded within the chain of title
Doctrine of Merger AND collateral agreements
Under the doctrine of merger, provisions in a contract for sale are extinguished and merged into the deed.
Therefore, 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.
However, 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. Not all agreements between the parties regarding the purchase and sale of
the property are contained in the deed. Such agreements are considered collateral to the sale if they are distinct agreements
made in connection with the sale of the property, if they do not affect the title to the property, if they are not addressed in the deed, and if they do not conflict with the deed. See Woodson v. Smith, 128 Va. 652 (1920); Beck v. Smith, 260 Va. 452, 538
S.E.2d 312 (2000); Winn v. Aleda Construction, 227 Va. 304 (1984). If an agreement meets these criteria, it is a collateral agreement, is not merged into the deed, and survives the execution of the deed.
To establish fraud,
P must prove a false representation of a material fact made knowingly by D, with the intent to mislead and be relied upon by P to his detriment.
The element of misrepresentation can also be established by proving
a concealment of a material fact.
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.
A deed may validly convey real property by inter vivos gift so long as there is
[1] donative intent, [2] delivery, and [3]
acceptance.
The deed must
[1] be in writing, [2] signed by the grantor; and reasonably identifies [3] the parties and [4] the land.
With respect to the identification of the parties in the dep, the parties’ names need
only to be reasonably identifiable.
Delivery of the deed can occur
by various methods, including
manual delivery.
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. Acceptance on the part of the grantee can
be implied since the conveyance is presumed to be beneficial.
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. VA Code §11-2.
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.
Is a grantee who assumes an
existing mortgage a surety?
No. A grantee who assumes an
existing mortgage is not a surety. The grantee makes no promise to the mortgagee to pay the debt of another, but promises the grantor to pay the mortgagee the debt the grantee owes to the grantor. Thus, a valid deed containing an assumption clause,
when accepted by the grantee, is an enforceable agreement to assume the mortgage debt
The parol evidence rule applies to written instruments. Does it also apply to deeds?
Yes.
Parole evidence is inadmissible to
vary or contradict a complete and
unambiguous written instrument. 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.
A contract may be reformed or rescinded in equity on the ground of
mutual mistake. A unilateral mistake of fact, on the other hand, will not invalidate a contract.
With a general warranty deed, the grantor
covenants against title defects that either he or his predecessors created.
The English Covenants of Title include
seisin, the right to convey, quiet possession, further assurances, and no encumbrances.
Seisin is a covenant that
the grantor has the interest that he purported to convey.
Right to convey assures that
the grantor has the right, power and authority to convey the property.
Quiet possession covenants that
the grantee can peaceably and quietly hold and possess the property without demand or claim to the property from a third party.
Further assurances is a
covenant to execute deeds or otherwise take action to perfect title if necessary.
No encumbrances assures that there
are no encumbrances against title or interest in the property.
A general warranty deed and the English Covenants of Title guarantee against
defects in title, not defects in the condition of the property.
