Real Property

Question 2

Merger doctrine

Answer 2

Under the merger doctrine, a previous contract is extinguished by an instrument of higher dignity – the deed.

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.
(i) The doctrine of merger is inapplicable to contract provisions unrelated to title even where the parties have expressly agreed in the land sale contract that representations and warranties shall be merged into the deed.

The merger doctrine is of narrow scope and disfavored.

Under the merger doctrine, a closing statement does not extinguish a purchase contract.

Question 3

Validity of a deed

Answer 3

In order for a deed to be valid, it must: (1) meet certain formalities, (2) be delivered by the grantor, and (3) be accepted by the grantee.

Delivery can occur by various methods, including manual delivery.

Failure to record the deed does not invalidate it.

Once, delivery occurs, title passes to the grantee.

Question 4

General warranty deed

Answer 4

When the words “with general warranty” are used in the granting part of any deed, these words constitute a covenant by the grantor 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.

Consequently, 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.

Question 5

English covenants of title

Answer 5

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

The three present covenants of title are the covenant of seisin, the covenant of the right to convey, and the covenant against encumbrances.

The three future covenants of title are the covenants of quiet possession, warranty, and further assurances.

Question 6

Covenant of seisin

Answer 6

The covenant of seisin warrants that the grantor owns the land as it is described in the deed.

Question 7

Covenant of the right to convey

Answer 7

The covenant of the right to convey guarantees that the grantor has the right to transfer title.

Question 8

Covenant against encumbrances

Answer 8

The covenant against encumbrances guarantees that the deed contains no undisclosed encumbrances.

Question 9

Covenant of quiet possession

Answer 9

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.

Question 10

Covenant of warranty

Answer 10

The covenant of warranty guarantees that the grantor will defend against a third party’s lawful claim for title.

Question 11

Encumbrance

Answer 11

An encumbrance has been defined as including the existence of physical intrusion or encroachments or superior title or interest in the land held by another party.

Lawful zoning ordinances are not encumbrances.

Question 11

Covenant for further assurances

Answer 11

The covenant for further assurances guarantees that the grantor will do whatever is necessary to perfect title should it turn out to be defective.

Question 12

Timing of breach of a present covenant

Answer 12

Breach of the present covenants occurs, if at all, at the time of conveyance.

Question 13

Timing of breach of a future covenant

Answer 13

Breach of the future covenants occurs, if at all, only upon interference with possession by a third party.

Question 14

Damages for breach of English covenants

Answer 14

Lesser of purchase price or cost to perfect title (or to defend perfect title)

Question 15

Judgment liens

Answer 15

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.

Question 16

Life estate

Generally

Answer 16

A life estate is a conveyance of real property where a specified life-tenant is entitled to possession of the property during their lifetime, and upon the life-tenant’s death the property transfers outright to another party.

The person who takes the property after the life tenant’s death is known as the remainderman.

Question 17

Creating a life estate

Answer 17

No specific words are required to create a life estate. A life estate may be created by implication as well as by explicit language, provided the [document] shows the requisite intent.

A testator’s intention to convey such an estate must be plainly manifested in the will.

Extrinsic evidence may be considered only if the language of the will is ambiguous, that is, susceptible to more than one interpretation.

Question 18

Rights and duties of the life estate

Answer 18

The life tenant is responsible for ordinary expenses and taxes relating to the property during their lifetime and cannot commit waste.

A life tenant has the right of possession and to the full enjoyment and use of the land and all of the profits arising during his estate therein.

Question 19

Affirmative waste

Answer 19

When a person actively takes measures that degrade a property’s quality, value, or character, it’s regarded as voluntary or affirmative waste. An injunction to stay waste is the proper remedy.

Question 20

Joint tenancy

Answer 20

Under Virginia law, if a right of survivorship is not expressly reserved in a grant, then the tenancy will be construed as a tenancy in common rather than a joint tenancy.

Question 21

Mutual mistake

Answer 21

Under the doctrine of 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.

Question 22

Inter vivos gift of real property conveyed by deed

Answer 22

A deed may validly convey real property by inter vivos gift so long as there is:
(1) donative intent
(2) delivery, and
(a) Delivery can occur by various methods, including manual delivery.
(3) acceptance.
(a) 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.
(b) Acceptance on the part of the grantee can be implied since the conveyance is presumed to be beneficial.

The deed must:
(1) be in writing
(2) be signed by the grantor; and
reasonably identify (3) the parties and (4) the land.

The parties’ names need only to be reasonably identifiable.

Question 23

Suretyship provision of the Statute of Frauds

Answer 23

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.

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.

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.

Question 24

Partition

Answer 24

Partition in kind is favored

Improvements: 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 . . . .”

Question 25

Gift causa mortis

Answer 25

Requirements for a gift + made in contemplation of imminent death

Question 26

Gift intended to take effect at death

Answer 26

Must be in a will

Question 28

Actions to establish title and/or right of possession

Answer 28

o Declaratory Judgment
o Unlawful Detainer
o A Bill to Quiet Title
o Ejectment

Question 29

Declaratory Judgment

Answer 29

An action designed to permit one to have a judicial determination of his rights and/or responsibilities before he has suffered any injury or done a wrong to another.

Declaratory judgments must involve disputes at “the crossroads of a controversy,” meaning there must be more than just a disagreement. The dispute must be at the brink of the creation of a cause of action.

Va. Courts have held that the declaratory judgment remedy should not be used when alternative remedies are available.

Question 30

Unlawful Detainer

Answer 30

A law claim that tries solely right to possession of real estate, not who holds title.

The action is used typically to recover possession from either (1) a defendant who unlawfully gained possession, or (2) the defendant had lawful possession but lost that right (e.g., by defaulting on a lease).

Question 31

A Bill to Quiet Title

Answer 31

An equitable action employed to have the court determine title to property.

Such a suit does not require alleging possession and only inferentially determines possession by determining who has title.

When there is an adequate law remedy, then equitable actions are not generally available.

Question 32

Ejectment

Answer 32

An established action at law for trying title to land.

The plaintiff must recover on the strength of her own title, not on the lack of title in the defendant.

The action is not designed to resolve merely possession, though inferentially by resolving a party’s title, it does allow that party to exercise possession.

Question 33

Standing regarding common interest properties

Answer 33

Only the condominium unit owners’ association had standing to sue for claims related to common elements and limited common elements

Question 34

Adverse possession

Answer 34

Requires that possession was:
(1) actual and visible;
(2) exclusive;
(3) continuous; and
(4) hostile to the ownership rights of the owner for a period of 15 years

Question 35

Easement by implication

One type

Answer 35

The 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.”

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.