Tenancy by the Entirety Flashcards
Who holds a tenancy by the entirety?
The marriage
Is Tby the E devisable or alienable by either spouse?
No
Can lenders enforce J against TbytheE?
No
What kinds of debts can TbytheE satisfy?
Only debts of both spouses
Can a creditor enforce J against only one spouse in property held by TbytheE?
No
Suppose H enters into lien K and gives creditor security interest in property held by Tbythe E. Can the creditor get possession of 1/2 interest that other spouse acquires after divorce?
No
Lien Ks between one spouse and a creditor with security interest in TbytheE is between?
Only the parties to the K, not the other spouse
Priority:
- Child support orders
- Judgments, including those owed to bank
Child support orders > Judgments, including those owed to bank
Can creditor seek deed of trust against wife who wasn’t party to the lien K?
No
What does “first in time, first in right” mean?
Typically, first creditor to attach lien to property will have priority over later liens
Which implied duties at closing of sale of RE?
Implied duty to present marketable title at closing
What does marketable title mean?
Title must be free from doubt that presents unreas risk of litigation (e.g. lien)
Can buyer waive implied duty to present marketable title?
Yes
If title isn’t marketable, can seller still sue for SP or damages?
No, unless K says otherwise
Doctrine of equitable conversion
Once K is signed + both parties entitled to SP, buyer owns the property
Who has risk of loss?
If destroyed without fault of either party before closing, buyer has risk of loss.
What does it mean if B has risk of loss?
Has to pay K price despite loss (e.g. due to fire or other casualties)
What if K specifically says S will provide building in present condition?
Risk of loss on seller. Prevents application of doctrine of equitable conversion.
If risk of loss on seller, what does seller need to do if there’s losS?
Pay for repairs and deliver property in condition it was contracted in
Doctrine of equitable conversion exceptions
Evidence of intent to the contrary e.g. in K
Fraud
Where enforcement would lead to inequitable outcomes /hardship/injustice
Giving property inter vivos
Donative intent
Acceptive
Delivery
What must the deed have?
Writing
Signed by grantor
Identify land and parties involved
Regarding ID of the parties, what is required?
Reasonably identifying the parties
Does deed need to be signed by the grantee?
No. Grantee bound by acceptance.
Is recording deed necessary for proper transfer?
No
Seller typically retains right to possession until
Closing
Courts are unlikely to order SP unless evidence of
Fraud or where K’s purpose is unattainable (e.g. where significant change occurs that defeats K’s purpose and makes it inequitable)
Three types of deeds
General warranty deed
Special warranty deed
Quitclaim deed
General warranty deed - which 6 covenants?
3 present:
1. Right to the property (seisin)
2. Right to convey the property
3. No encumbrances
3 future:
4. Covenant for quiet enjoyment
5. Covenant of further assurances
6. Covenant of warranty
What does covenant for quiet enjoyment mean?
Grantee won’t be disturbed by 3P’s lawful claim to title
Further assurances
Grantor will do whatever reasonable to perfect title
Warranty
Grantor will defend against claim to title
When can present covenants be breached?
Only at time of conveyance
Does zoning regulation count as an encumbrance?
No
General warranty - only against:
title defects, not defects in actual property
When do damages arise from breach of covenant against encumbrances?
When buyer actually incurs damages (e.g. buyer discharges the lien/experiences harm)
Difference between general warranty and special warranty
Special warranty means yes, no title defects personally created, but no guarantees about prior titleholders.
I.e. just warrants that S has not breached covenants during his period of ownership (i.e. hasn’t previously conveyed the property and no encumbrances from seller)
Quitclaim deed
As is; no right to sue for encumbrances or defects in title
Partition
Statutory action to separate ownership interests
Is partition appropriation if A is trying to establish sole title to property when neither A nor B are joint tenants or coparceners (i.e. joint inheritors)
No
Land sale K SOF requirements
- In writing
- Signed by party to be charged
- Names of parties
- Description of property
- Price of payment if agreed
Part performance exception to RE sale SOF
2/3 below:
- substantial payment made
- substantial improvements made
- B already has possession
If B finds that title is marketable, does B need to give S reasonable opporutnity to fix?
Yes
If title not marketable, does it matter if SOL has already run on prior land contract?
No - still not marketable, as long as land contract is recorded, unreleased.
If title not marketable, can S sue for SP or damages?
No
What counts as collateral terms to title that are not merged with deed?
Provisions about physical condition of property
e.g. express warranty of workmanship
Does express warranty of workmanship survive closing?
Yes
If mutual mistake, court likely to:
enforce contract in line with what parties actually intended
Who has right to seek partition?
Joint tenants or tenants in common
Partition - in-kind partition or sale preferred?
In-kind partition
When is sale of partitioned land sometimes ordered?
E.g. divorce and parties can’t agree on disposition of marital property
Who is responsible for RE taxes?
Seller
Who is responsible for lien on property being sold?
The seller
What happens when lien holder seeks enforcement of lien?
Gets equitable action in Circuit Court.
Court will order sale of property to satisfy lien.
Surety SOF exception
Assuming mortgage (coz you’re not paying someone else’s debt directly)
Condo Unit Owners Association - who has standing to sue for claims re to the condo elements and limited condo elements?
Only the association
Condo elements:
areas shared by all condo owners (e.g. swimming pool)
Limited condo elements:
For enjoyment of just one or more unit owners (e.g. balcony/parking space)
Adverse possession (5)
- Actual possession
- Hostile
- Continuous (15 years of more)
- Open and notorious
- Visible to Owner
& Exclusive
Is easement collateral to deed or merged with deed?
Collateral
Constructed easement
Created by court because someone relied on promise of another = consideration for an easement
May need equitable remedy e.g. injunction
Easement appurtenant
Easement that benefits holder (need more dominant and servient tenements)
Does easement appurtenant pass to subsequent owners if not mentioned in deed?
Yes
How to create an easement (4)
- express
- implied
- reservation
- prescription
Implied easement
When it’s necessary e.g. to get to open road
How to prove implied easement?
- Same person used to own both pieces of land
- no access otherwise to and from land (if there is access but just more expensive/less convenient, then no easement)
Is new owner bound by servient easements that already exist?
Yes
Exceptions to rule about new owners being bound to already existing servient easements?
BF purchaser for value with no notice of easement
BF Purchaser with no notice.
Types of notice?
Actual, constructive
Constructive - should have known from inspection of public land records
NO inquiry notice in VA (i.e. should have known from inspecting the land)
If implied easement exists through someone else’s property, typically who can use that easement?
Just the grantee
Indefeasibly vested remainer?
ascertainable person
Not subject to being divested, defeated, or diminished in size
Are vested remainders transferable during life?
Yes
Are vested remainders divisible by will?
Yes
Are vested remainders descendible by inheritance?
Yes
Fee simple determinable
Ends as soon as stated event happens. Reverts to grantor.
“So long as” “while” “during” “until”
Grantor’s interest if gives fee simple determinable
Possibility of reverter
can possibility of reverter be transferred inter vivo/by will/intestate?
Yes
what is a deed of trust?
Security interest in land
Is there right of survivorship if not expressly specified?
No
