Real Property Flashcards
In Virginia, does the rule in Shelley’s case apply?
No, this rule has been abolished
The rule in shelley’s case provides that
Adverse Possession
What are the Elements of Adverse Possession?
Possession is: Hostile, Actual, Exclusive, Under a Claim of Right, Open and Notorious, Continuous, and Uninterrupted for the period prescribed by the statute (15 years in VA)
Easement
Easement by Express Grant
An express easement may be created by a valid conveyance that complies with the formal requisites of a deed
Easement by Implication
Easement by Prescription
If a party attempts to create an easement orally, what is the result/effect?
The result is the creation of a license
While a license is normally a revocable privilege, it becomes irrevocable if the grantee invests substantial amounts of money or labor in detrimental reliance on the oral agreement, and then the grantor is estopped (i.e., consent, acquiescence etc.,) from revoking it
Detrimental reliance on consent, acquiescence, etc.
When there is detrimental reliance and a license becomes irrevocable, what easement is created?
Equitable Easement also called “Easement by Estoppel”
Enforcement of an Easement
To enforce an easement, courts look at the scope and the intended beneficiaries of the interest to determine the reasonable intent of the original parties
What happens if the easement holder exceeds the scope of the easement?
The easement is surcharged; i.e., can obtain an injunction against the excess use and damages for any harm to the land
Permanent Injunction
Merits of granting an injunction and likelihood of success in suing to enjoin/obtain an injunction
To obtain a permanent injunction, plaintiff must show that: (i) he has been harmed; (ii) there is no adequate legal remedy (i.e., money damages); (iii) an injunction is practicable, feasible, and effective; (iv) the balance of the hardships are in his favor; and (v) defendant has no equitable defenses
Appurtenant Easement
An easement is appurtenant when it benefits the holder in her physical use or enjoyment of another tract
Thus, for an easement to be appurtenant, there must be two tracts: the Dominant tenement (the estate benefitted by the easement), and the servient tenement (the estate subject to the easement right)
What is the effect of transferring a servient parcel?
The new owner takes it subject to the burden of the easement, unless he is a bona fide purchaser with no notice of the easement
What notice jurisdiction does Virginia recognize?
VA is a Race-Notice Jurisdiction
Under VA race-notice statute, a subsequent bona fide purchaser prevails over the prior grantee who failed to record, if the subsequent purchaser had no actual or constructive notice at the time of the conveyance, and the subsequent grantee records first
How does a person attain status as a Bona Fide Purchaser?
A person MUST: (1) be a purchaser, (2) take without notice, and (3) pay valuable consideration
In VA, what ways can put a person that acquires servient land on notice of an easement?
(i) Actual Knowledge, or (ii) notice from a document creating the easement is recorded in public records
VA is not an inquiry jurisdiction (notice from the visible appearance of the easement on the land) where a purchaser is required to make reasonable inquiries into the land/easement
Notice from visible appearance would be another way to put a person on notice but not in VA
Fixture
A chattel that has been so affixed to land that it has ceased being personal property and has become part of the realty
Annexation
An agreement between the landlord and tenant is controlling on whether the chattel annexed to the premises was intended to become a fixture
Where the lease is silent, a tenant may remove a chattel that he has attached to the premises as long as the removal does not cause substantial damage to the premises or the virtual destruction of the chattel
Removal generally must occur before the end of the lease term or it becomes the property of the landlord
Tenant is responsible for repairing any damage caused by the removal
Inter Vivos Gift
Priority
Doctrine of “After-Acquired Title” or Estoppel by Deed
When a party becomes an owner in tenancy in common, the lien created by the deed of trust attaches to his interest in the property
I.e., entitlement to balance of sale proceeds
Priority
Part Performance
Life Estate
Fee Simple Determinable
Vested Remainders
Vested Remainder Subject to Total Divestment
Deed of Trust
Fee Simple Determinable
Marketable Title
Priority of Liens
Child Support Judgment
In VA, property held by the entirety is liable for the joint debts of both spouses, but the property is immune from the claims of creditors against either spouse alone
An effort on the part of one spouse, acting alone, to create a lien against entirety property creates no lien at all
Upon divorce, property held in tenancy by the entirety becomes tenancy in common
The issue was whether the lien of the child support judgment, on the home/property, docketed after the couple’s divorce has priority over a recorded deed of trust executed soley by one spouse prior to the divorce. After acquired title issue also applied to this fact pattern
Distribution of Proceeds (according to priority order)
Deficiency
Partition Sale
Permanent Injunction
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
Conceptual connection to specific performance and risk of loss
Risk of Loss
If the property is destroyed without fault of either party before the date of closing, becasue the buyer is deemed the owner of the property, the risk of loss is on the buyer
Thus, the buyer must pay the contract price despite a loss due to fire or other casualty, unless the contract provides otherwise
Specific Performance
Statute of Frauds
Specific Performance in Absence of Land Contract in Writing
A court may give specific performance of a contract despite the absence of a writing if there has been acts of part performance
In most states, two of the following are required for part performance
If acts done by a party in reliance on the contract would result in hardship to such to an extent that it would be fraud on that party were the contract not specifically enforced, the other party may be estopped from asserting Statute of Frauds as a defense
When property is conveyed to spouses, Virginia law presumes against a tenancy by the entirety unless?
crossover with Wills
(1) All required common-law unities exist (time, title, interest, marriage and possession); AND (2) the instrument uses (i) the language designating the spouses as “tenancy by the entireties” or “tenants by the entirety” OR (ii) expressly stating the expression “with survivorship” or similar language in the instrument
Although the presumption is against finding a tenancy by the entirety, coupled with common law unities and language of a right of survivorship, a tenancy by the entirety is created
In the context of Tenancy by the Entirety, the right of suvivorship means?
Upon the death of either spouse, the whole estate by the entireties remains in the surviving spouse
Rights with survivorship is non-probate assets
**
What are the Common-Law Unities in a tenancy by the entireties?
Suretyship Provision of the Statute of Frauds
crossover with contracts
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
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
crossover with SOF contracts
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
Is the contracts Parol Evidence Rule applicable to Deeds?
Crossover with Contracts
Yes, Evidence in relation to a deed is subject to the parol evidence rule, which applies to written instruments, including deeds
Parol Evidence General Rule & Relation to Deeds
Parol evidence is inadmissble 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
Doctrine of Merger
The land sale contract merges with the deed at closing, and the seller is no longer liable for breach of contract provisions pertaining to title
However, contract terms collateral to title does not merge into the deed (In VA, 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).
Example:
Collateral Rule as to Doctrine of Merger
Not all agreements between the parties regarding the purchase and sale of 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
Provisions in the contract for sale which are collateral to the passage of title and not covered by the deed are not merged into the deed and survive its extinction (under merger, provisions in a contract for sale are extinguished and merged into deed).
Does a Condo Owner have Standing to sue for claims related to common elements and limited common elements?
No, under VA code, only the Condominium Unit Owner’s Association has standing
Example:
General Warranty Deed vs. English Covenants of Title
General Warranty Deed: Grantor covenants against title defects that either he or his predecessors created
English Covenants of Title: Includes Seisin, the right to convey, quiet possession, further assurances, and no encumbrances
Covenant of Seisin
A covenant that the grantor has the interest that he purported to convey
Covenant of Right to Convey
Covenant that assures that the grantor has the right, power and authority to convey the property
Covenant of Quiet Possession
Covenant that the grantee can peaceably and quietly hold and possess the property without demand or claim to the property from a third party
Covenant of Further Assurances
Covenant to execute deeds or otherwise take action to perfect title if necessary
Covenant against Encumbrances
Covenant that assures that there are no encumbrances against the title or interest in the property
Breach of Covenants
A deed may validly convey real property by inter vivos so long as there is ____
Elements/Requirements
- Donative Intent
- Delivery
- Acceptance
Requirements of a Deed
Crossover and tie into Inter Vivos Gift through a Deed
The deed must:
1. Be in writing
2. Signed by the grantor
3. Reasonably Identifies the parties (parties’ names need only be reasonably identifiable)
4. Reasonably Identifies the land
Both Inter Vivos Gift of RP elements plus Deed Elements/Requirements Must be met
The grantee becomes bound by the terms of the deed by his ____ of a deed delivered by the grantor, even if the deed is signed only by ____
Acceptance; The Grantor
Delivery of Deed can occur by various methods including
Acceptance of the deed by the Grantee can be ____ since the conveyance is presumed to be ____
Implied; Beneficial
