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DA Real Property > Real Property > Flashcards

Real Property Flashcards

1
Q

Tenants in Common

A

Where two or more co-owners have an equal right to possess property (unity of possession) but do not have a right of survivorship with respect to the property interest held by another co-owner.

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2
Q

Rights of Co-Tenants in Common

A

Each co-tenant holds an undivided interest with unrestricted rights to possess the whole property, regardless of the size of the co-tenant’s interest.

Each tenant can unilaterally transfer, devise, mortgage, or lease his interest to a third party, without effecting the interest of the other.

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3
Q

Joint Tenancy

A

Joint tenants have rights of survivorship. Express language of survivorship must be used.

If a joint tenancy with the right of survivorship is created, the deceased joint tenant’s share will automatically transfer to the surviving joint tenant.

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4
Q

Tenancy be the Entirety

A

Reserved for married people who hold joint title to property with rights of survivorship.

Creditors of one spouse cannot reach property held by spouses as tenants by the entirety unless they are a creditor for both spouses

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5
Q

Tenancy by the entirety - Effect of Divorce

A

After divorce is granted, the property is no longer held as tenants by the entirety, and is instead held by the parties as tenants in common.

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6
Q

Type of tenancy subject to a partition suit

A

Tenants in Common

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7
Q

Three types of recording statutes

A

Race, Race-Notice, and Notice statutes

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8
Q

VA has a ______ recording statute

A

Notice Statute.

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9
Q

Notice Recording Statute

A

Under a Notice statute a bona fide purchaser (BFP) that takes without notice will prevail over a prior property interest holder. Notice can occur in three ways (including record notice):
1. Actual notice
2. Constructive notice
3. Records notice

NOTE - VA Supreme Court has found no error in a trial court’s conclusion that VA recording act makes VA a Race-Notice Statute

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10
Q

Race-Notice Statute

A

The subsequent purchaser must take without notice AND must record their interest first

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11
Q

Deed of Gift - Requirements to be valid

A

A deed may validly convey real property by inter vivos gift so lon as there is:
1. Donative intent,
2. Deliver, and
3. Acceptance

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12
Q

Deed of Gift - Deed must be

A
  1. In writing,
  2. signed by the grantor, and
  3. reasonably identify both the party and the land.
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13
Q

Deed of gift - When does ownership pass?

A

If the deed is valid → passes immediately

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14
Q

Effect of failing to record a deed

A

Does not invalidate the deed, so long as there is sufficient corroborative evidence of the delivery of the unrecorded deed from grantor to grantee.

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15
Q

Partition Suit (generally)

A

Forces the court to divide land into separate real estate in cases of joint ownership

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16
Q

Partition Suit - Two Types

A

Partition in kind and Partition in sale

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17
Q

Partition in Kind

A

Dividing the property “In Kind” is to divide the real property and the improvements equally between tenants in common.

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18
Q

Partition in kind is not possible where

A

where part of the property has a residence on it and the other half does not.

The law does not contemplate dividing a home in half because that would be impractical.

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19
Q

Does a tenant in common or joint tenant get any credit for improvements placed on the land at his own expense in the event of a partition?

A

Yes. A tenant in common or a joint tenant who places improvements upon common property at his own expense is entitled to compensation in the event of partition.

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20
Q

Distribution of funds from a Partition Suit Sale (generally)

A

Usually, each party receives ½. But sometimes there are additional distributions that must be made.

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21
Q

Distribution of funds from a Partition Suit Sale where there is a loan on the property and improvements by a party.

A
  1. The loan will be deducted from the tenant who took the loan out
  2. Then any additional compensation for improvements will be reduced from the share of the tenant who did not make the contributions
  3. Then the remaining amount would be split equally.
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22
Q

Adverse Possession

A

Possessor must prove his possession was:
1. Actual and visible,
2. Exclusive,
3. Continuous,
4. And hostile to the ownership rights,
5. For a period of 15 years.

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23
Q

Adverse Possession - Possession with consent of the actual owner

A

Where an actual owner gives consent to another it may create a license, but it does not create a hostile possession.

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24
Q

License of use of property may be granted _____ and is freely _______.

A

License of use of property may be granted orally and is freely revocable.

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25
Q

Oral Agreements to sell real estate

A

Generally, an oral agreement to sell real estate would not be enforceable because it violates the Statute of Frauds.

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26
Q

Written Memorandum Exception to Oral Agreements for Sale of Real Estate

A

Where one party writes a written memo outlining the terms of the contract, it takes the oral k outside the statute of frauds and makes it enforceable.

Written memo - must identify the subject matter of the k, be sufficient to indicate a k had been made, include the essential terms of the k, and be signed by the party to be charged.

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27
Q

Doctrine of Merger

A

Provisions in a k for the sale of property are extinguished and merged into the deed.

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28
Q

Exception to Doctrine of Merger

A

Provisions which are collateral to the passage of title and are not covered by the deed are NOT merged into the deed and survive its execution.

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29
Q

Collateral Agreements regarding the sale of property survive merger if

A
  1. they are distinct agreements made in connection with the sale of property,
  2. They do not affect title to the property.
  3. They are not addressed in the deed, and
  4. They do not conflict with the deed.

If all 4 elements are met, it is a collateral agreement, not merged into the deed, and it survives the execution of the deed.

30
Q

In VA, merger is..

A

Of narrow scope and disfavored.

31
Q

Fraud

A

To establish fraud, P must prove a false representation of material fact was knowingly made by D, with the intent to mislead and be relied upon be P to his detriment.

32
Q

Fraud issue - reliance may not be justified when…

A

A potential buyer undertakes investigation regarding a matter at issue because the buyer is charged with knowledge that the investigation revealed OR investigation should have revealed had it been pursued dilligently.

AKA Constructive knowledge kills the fraud argument

33
Q

Misrepresentation

A

Where the seller conceals a material fact

34
Q

Mutual Mistake

A

Court may give relief where there has been an innocent omission or insertion of a material stipulation, contrary to the intention of both parties.

35
Q

Mutual Mistake Exception - Inadvertent Oversight

A

Where there is an inadvertent oversight based on mutual mistake, the court will enforce the terms of sale of K or prior doc.

36
Q

Parole Evidence Rule

A

Parole evidence (oral) is inadmissible to vary or contradict a complete 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

37
Q

Mistake of Fact

A

A contract may be reformed or rescinded in equity on the grounds of mutual mistake, but a unilateral mistake of fact will not invalidate the k.

38
Q

Zoning Ordinace

A

A lawfully adopted zoning ordinance is not considered an encumbrance, tenant, or lien on the land.

39
Q

Standing

A

Who can sue

40
Q

Standing in condo association issues

A

Decisions regarding the use of common areas are left to the condo owners’ association

Although a condo unit owner may be inconvenienced by the presence of an encroachment of a common area, they will not have standing to sue.
—– only condo association can sue.

41
Q

Statute of Frauds - Suretyship

A

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.

42
Q

Suretyship - Collateral Undertaking applies when..

A

The promisor is merely a surety or guarantor, receives no direct benefit, and is liable only if the debtor defaults.

43
Q

A grantee who assumes an existing mortgage ___________ a surety.

A

A grantee who assumes an existing mortgage is not a surety.

44
Q

English Covenants of title (rule)

A

English covenants of title - an expression that the deed is conveyed in fee simple, without any encumbrances or tenancies, or liens on the property.

45
Q

English Covenants of Title include:

A
  1. Sesin
  2. Covenant of the right to convey
  3. Covenant of Quiet possession
  4. Covenant of further assurances
  5. Covenant of no encumbrances
46
Q

Sesin

A

Grantor has the interest he is purported to convey

47
Q

Covenant of the right to convey

A

Assures that the grantor has the right, power, and authority to convey the property

48
Q

Covenant of quiet possession

A

Grantee can peaceably and quietly hold and possess the property without demand or claim to a third party

49
Q

Covenant of further assurances

A

Covenant to execute deeds or otherwise take action to perfect title if necessary

50
Q

Covenant of no encumbrances

A

A promise that grantee will hold and enjoy the land free from interuption, claim or demand from anyone AND

that grantor would indemnify and save grantees harmless thereon against any and every charge or encumbrance

51
Q

Encumbrance

A

Includes the existence of physical intrusions or encroachments or superior title to interest in the land held by another party

52
Q

The covenants protect against defects in ________, NOT defects in ___________.

A

The covenants protect against defects in title, NOT defects in the condition of property

53
Q

Third party interest in property constitutes a breach of

A

the covenants of sesin, right to convey, and quiet possession.

54
Q

A judgment lien docketed prior to closing for the sale of property is a breach of

A

the covenant of no encumbrances

Grantor will not be liable to grantee unless grantee satisfies the lien himself or suffers damages as a result of the lien being enforced.

55
Q

Judgment liens - When is it a breach of no encumbrances

A

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 creditor’s enforcement of the lien.

56
Q

General warranties (Real Property)

A

Grantor covenants that he, his heirs, and personal representatives, will forever warrant and defend such property unto the grantee, his heirs, and personal representatives, and assigns, against the claims and demands of all persons whomsoever.

57
Q

Effect of Grantor placing a cloud of title on the property

A

When the grantor/seller places a cloud of title on the property to the buyer, the grantor/seller may be found liable to the buyer

58
Q

Express Warranty of Workmanship

A

Pertains to the physical condition of the property and is unrelated to tile.

Because the contract term at issue does not concern the validity or nature of title, the provision survives closing, despite express statement in the contract otherwise.

59
Q

Breach of Express warranty fails where

A

Where a contract states that an item will be “in good working order at closing” and the buyer inspects the property and does not raise an issue as to the condition of the item at that time, the buyer will lose his claim for breach of warranty.

60
Q

Expressed Easement

A

A valid express easement is one that is in writing and grants the grantee access to the grantor’s property.

61
Q

Transfer of Subservient tenement

A

When the subservient tenement is transferred, the new owner take “subject to the easement” unless the new owner is a BFP for value with no notice of the easement.

62
Q

Notice can be established through three types of notice

A

Actual notice
Record Notice
Constructive/inquiry notice

63
Q

Actual notice (easement)

A

Established where they actually know of the easement

64
Q

Record Notice (easement)

A

Established if the easement is recorded.

65
Q

Constructive / Inquiry Notice (easement)

A

Established where the location of the easement puts the purchaser on notice of the potential interest or use.

66
Q

Easement by implication

A

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 a way exists and that the grantee acquires the benefit of it.

Note - Nothing in the VA case law permits the grantee to allow others to use the boundary round on the grantor’s property

67
Q

Specific Performance

A

An equitable remedy typically employed to enforce a contract for unique property as land

68
Q

Breach of Contract for the Sale of property remedy where property has been transferred to a third party

A

Specific Performance is impossible.

Instead, damages for the difference between the amount she contracted for and the presumed fair market value of what the highest amount buyers were willing to pay.

69
Q

Where specific performance is not available, P must show…

A

That she actually suffered damages.

No damages will be given where P does not pay for the real estate.

70
Q

Restitution Damages (definition)

A

Restitution damages seeks to restore to a party the benefit conferred on the other party.

When a D is unjustly enriched by P, restitution generally allows P to recover the “benefit conferred by P upon the D (instead of the harm suffered.”

71
Q

Restitution Damages (calculation)

A

Measured by either the reasonable value of D obtaining the benefit from another source, or the increase in value of property owned by D.

DA Real Property (1 decks)

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