The Land Transaction Flashcards
Contracts of sale:
- have price
- are in writing
- description of property
- buyer and seller sign
- provision for making deposit for prop
exceptions to SOF
- part performance
- estoppel
Marketable title
- implied condition in every K of sale
- title that is free from r’able doubt, but not free from every doubt.
- (1) If seller doesnt own real estate being sold, title not marketable and (2) title subject to leins, easements or other encumberances that restrict owners ability to use prop in any way they want is not marketable
abstract of title
condensed history of the property assembled by public records
Hickey v. Green
Facts
Price of lot was 15k, Hickeys wanted to move quickly wlot transfer so they gave Green check for $500 w blank made payable line & Hickey signed it. Wrote on back of check it was for deposit on lot on Massoya ave but did not specify which lot. Green says nvm we’re selling lot to someone else for 16k, Hickeys offer to pay this and Green refuses. Hickeys sue for specific performance bc they want the lot. Green argues SOF saying relief barred bc K for sale void since she didnt sign it, it wasnt made out to her and didnt specify the lot.
Hickey v. Green
Reasoning
Court concerned w whether the Hickeys sold their home (part performance), if their circumstances haven’t changed then it wasnt a reason to make a SOF exception but they did.
Hickey v. Green
Rule
R2d section 129 - K for transfer of land may be specifically enforced despite failure to comply w SOF if it is found the party seeking enforcement, in r’able reliance on the K, has so changed his position that injustice can be avoided only thru specific performance.
Lohmeyer v. Bower
Facts
Lohmeyer contracted to buy property from D. The deed that transferred w the land warranted that the prop was transferred free and clear of all encumbrances but subject to all restrictions and easements of record applying to the property. P had lawyer examine title and find 2 zoning violations existed: the house only 1 story and regulations required 2 and it was too close to neighbor. P informed D of violations and D offered to purchase and convey additional land behind house to correct violation but P refused and wanted K rescinded and demanded deposit. D countered demanding specific performance
Lohmeyer v. Bower
Holding
The zoning ordinances rendered the title unmarketable. Peatling v. Beard - marketable title in real estate was one free from r’able doubt and a title that carried w it potential for litigation was doubtful and unmarketable.
Lohmeyer v. Bower
Reasoning
The 2 violations exposed P to litigation which rendered title unmarketable and subject to rescission. The language of the warranty stating subj to all restrictions and easements of the record does not save transaction bc its not the land use restrictions that render the title unmarketable. Ds efforts to cure defects would have. materially changed the property forcing P to buy property dif than what he K’d for.
General warranty deed
warrants title against all defects before and after grantor took title
special warranty deed
contains warranties only against the grantors own acts but not the acts of others
(if defect mortgage granted on the executed by grantors predecessors in ownership, grantor not liable)
quitclaim deed
contains no warranty of any kind
conveys whatever title grantor has, if any, and if the grantee takes nothing by the deed, grantee cannot sue grantor
Problematic deeds
- a forged deed can never be legitimated by law - nothing is conveyed thru it
- if a deed obtained by fraudulent circumstances its voidable but not automatically
- BFP has good value if deed procured by fraud but not forgery
