Real Property Flashcards
Virginia is a ___ recording jurisdiction.
Race-notice - A subsequent purchaser must take without notice and be first to record their interest
VA’s recording statute reads as a notice statute, but the VSC found no error in the trial court’s conclusion that VA’s recording act makes Virginia a race-notice jx. [F22]
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. 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. [F22]
[J18] Collateral agreements don’t merge even where the parties have expressly agreed in the land sale contract that representations and warranties shall be merged into the deed. E.g. “the foregoing warranty shall be deemed merged into the deed at closing, and shall not survive” is not sufficient to make a warranty unrelated to title merge.
Adverse possession
Must prove 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. [J15]
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. [F17]
3 ways a tenancy by the entirety can be severed, which creates a tenancy in common:
- Death of one co-tenant
- Issuance of a divorce decree
- Execution by a joint creditor (e.g., foreclosure)
[F18]
How to partition a tenancy in common?
(1) division in kind (real property and improvement divided equally). Inquiry is practicability.
E.g., where part of the property had a residence on it, and part did not, partition in kind would be impossible.
(2) If not, sale and division of proceeds.
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.” (Current value of improvements) [F18]
A grant “to A and B as joint tenants and not tenants in common” creates what kind of interest in A and B?
A tenancy in common.
Such a grant must specify the right of survivorship. [F19]
The owner of a remainder can only transfer…
…the remainder. Not a fee simple in the underlying property. [F19]
“To Carl and his heirs so long as used for residential purposes only” creates…
A determinable fee in Carl and a possibility of reverted in the grantor.
When the condition is violated, title instantly reverts to the grantor in fee simple absolute. [F19]
“To John for life, then to Lucas.” creates…
A life interest in John and a vested remainder in Lucas (which ripens upon the death of John into a fee simple absolute). [F19]
If a grant demonstrates ___, then a purported tenancy by the entirety that fails for lack of marriage will create a…
the intent to create a survivorship interest.
…joint tenancy with the right of survivorship.
A formal delivery of a deed or gift is not essential where…
…the acts of the grantor or donor manifest an intent that as to him the transaction is complete.
If the donor has present donative intent, the donor may also reserve a right of possession (a gift in praesenti with a postponed right of enjoyment). This is not a will:
An instrument which is to operate in the lifetime of the donor, and to pass an interest in his property before his death, even though its absolute enjoyment by the donee is postponed till the death of the donor, or even if it is contingent upon the survivorship of the donee, is a deed, contract, or gift, and not a will.
With a general warranty deed, the grantor covenants against…
… title defects that either he or his predecessors created. [F20]
The English Covenants of Title
(1) seisin, (2) right to convey, (3) quiet possession, (4) further assurances, and (5) no encumbrances.
[F20]
Seisin
grantor has the interest that he purported to convey. [F20]
Right to convey
grantor has the right, power and authority to convey the property. [F20]
Quiet possession
grantee can peaceably and quietly hold and possess the property without demand or claim to the property from a third party. [F20]
Further assurances
a covenant to execute deeds or otherwise take action to perfect title if necessary. [F20]
encumbrance
a claim against an asset by an entity that is not the owner.
Common types: liens, easements, leases, mortgages, or restrictive covenants. [F20]
A general warranty deed and the English Covenants of Title guarantee against ___, not ___.
defects in title; defects in the condition of the property. [F20]
The owner of a tract of land can have a ___ in a ___ that allows the plaintiff to demand the owner of the servient tract refrain from specific uses of the land.
Negative easement; servient tract.
Can arise through representations and inducements to a purchaser of the property, such as representations that a conservation area would not be developed. [F20]
A deed may validly convey real property by inter vivos gift so long as there is…
[1] donative intent, [2] delivery, and [3] acceptance.
Acceptance can be implied.
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.
[J21]
Valid Deed
must be [1] in writing, [2] signed by the grantor; and reasonably identify [3] the parties and [4] the land. [J21]
The suretyship provision of the Statute of Frauds requires a writing for…
…a promise to answer for the debt, default, or misdoings of another.
A grantee who assumes an existing mortgage is not a surety. [J21]
Parole evidence is…
…inadmissible to vary or contradict a complete and unambiguous written instrument.
This includes deeds. [J21]
A contract may be ___ on the ground of ___ mistake.
reformed or rescinded in equity; mutual.
A unilateral mistake of fact, on the other hand, will not invalidate a contract. [J21]
