Real Property Flashcards
The Closing–Deeds: what is required for executing a valid deed?
To be valid, a deed must (i) be in writing, (ii) sufficiently describe the land, (iii) identify the grantor and grantee, (iv) evidence an intention to convey the land, and (v) be signed by the grantor.
The parties may be identified by name or by describing them in some other way. If the grantee’s name is left blank, some courts presume that the person taking delivery has authority to fill it in, and if he does so, the deed is valid.
Adverse Possession: What are the elements of adverse possession? (AEONAC)
To establish title by adverse possession, the possession must be (i) actual and exclusive, (ii) open and notorious, (iii) adverse/hostile under a claim of right, and (iv) continuous throughout the statutory period.
Exclusive possession means not sharing possession with the true owner or the general public. Possession is open and notorious when it is such as the usual owner would make of the land and is sufficient to put the true owner on notice of the possession. Possession is hostile when it it without the owner’s consent; it does not matter whether the possessor believes he is on his own land or knows he is trespassing. Continuous possession is possession that the average owner would make of the property.
The Recording System: What are the three types of recording acts and how do they work?
Under a pure race statute, notice of a prior conveyance by the grantor doesn’t matter. The first to record wins.
Under a notice statute, a subsequent BFP prevails over a prior grantee regardless of whether he records.
To be protected under a race-notice statute, the subsequent purchaser must not have any notice of the prior grant and must record first.
The Recording System: what is a bona fide purchaser (BFP)?
Simple: A BFP is a purchaser who takes for valuable consideration and without notice of a prior claim at the time of conveyance.
Advanced: To be a BFP, a grantee must: (i) be a purchaser, not one who received the property by gift, will, or inheritance; (ii) pay valuable consideration; and (iii) take without notice.
The Recording System: what are the three types of notice?
Actual Notice: what the purchaser actually knows.
Record Notice: notice that the law imputes to the purchaser if a prior deed was properly recorded in the grantee’s chain of title.
Inquiry Notice: notice of what the purchaser would have discovered by inquiring into the property.
Recording System: what type of statute is the following an example of:
“A conveyance of an estate in land shall not be valid against a subsequent purchaser for value unless the conveyance is first recorded”
Race Statute
Recording System: what type of statute is the following an example of:
“A conveyance of an interest in land, other than a lease for less than one year, shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded”
Notice Statute
Recording System: what type of statute is the following an example of:
“A conveyance of an interest in land, other than a lease for less than one year, shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded”
Notice Statute
Concurrent Estates: how is a joint tenancy created?
At common law, a conveyance to two or more persons at the same time, by the same instrument, of the same interests, giving them identical rights to possession of the property (the four unities) created a joint tenancy. Under modern law, a conveyance to two or more persons presumptively creates a tenancy in common; a joint tenancy results only when a right of survivorship is clearly expressed.
The distinguishing feature of a joint tenancy is the right of survivorship, i.e. when one joint tenant dies, the property is freed from here interest.
Concurrent Estates: When does a mortgage sever a joint tenancy?
In states that follow the lien theory, one joint tenant’s execution of a mortgage on her interest does not by itself cause a severance; however, the mortgagee risks losing its interest if the mortgagor dies prior to foreclosure.
In states that follow the title theory, a mortgage is regarded as a transfer of title, which destroys the unity of title and severs the joint tenancy.
Concurrent Estates: does sale of transfer of a joint tenants interest sever the joint tenancy?
In most states, a severance results when one joint tenant executes a valid contract to convey her interest to another. The transferee takes as a tenant in common.
What happens when a seller dies before closing but executed a contract to convey?
A contract to convey is enforceable in equity, and so if the seller dies before the closing, the purchaser is entitled to a deed and becomes a tenant in common with the original joint tenant.
What happens to a deceased seller’s interest in the proceeds of sale?
Under the doctrine of equitable conversion, once a contract is signed and each party is entitled to specific performance, equity regards the purchaser as the owner of the real property and the seller’s right to the sale proceeds as personal property.
Thus, if the seller dies, the takers of her real property must transfer title at closing, and the sale proceeds pass to the takers of her personal property.
The Recording System: What is the Shelter Rule?
Anyone who takes from a BFP will prevail against any interest the BFP would have prevailed against. The is true even where the transferee has actual knowledge of the prior unrecorded interest.
The Closing–Deeds: what covenants does a general warranty deed contain?
The three present covenants: (1) the covenant of seisin, (2) the covenant of the right to convey, (3) the covenant against encumbrances.
The three future covenants: (4) the covenant for quiet enjoyment, (5) the covenant of warranty, (6) the covenant for further assurances.
The Closing–Deeds: what is the covenant against encumbrances (included in a general warranty deed and special warranty deed)?
The covenant against encumbrances assures that there are neither visible encumbrances (easements, servitudes, etc.) nor invisible encumbrances (mortgages, etc.) against the title or interest conveyed. This is a present covenant, meaning that the covenant is breached, if ever, at the time the deed is delivered.
If a covenant for title can be enforced against the covenantor by a transferee of the covenantee, it is said to “run with the land.” Majority rule: present covenants do not run with the land and cannot be enforced by remote grantees. Minority rule: a remote grantee may sue on the covenant against encumbrances unless the grantee had notice of the encumbrance.
