The Sales Contract Part II Flashcards
Define conveyance.
Conveyance is the transfer of legal title of property from one person to another, or the granting of an encumbrance such as a mortgage or a lien.
What are the three stages of conveyance?
Conveyance occurs in three stages: before contract, before completion and after completion.
Any legal instrument in writing which passes, affirms or confirms an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions sealed is known as a what?
This is the definition of a deed.
Name the four types of evidence of title.
The four kinds of evidence of title: abstract and opinion, certificate of title, title insurance and Torrens certificate.
The Statute of Frauds in Texas requires that all contracts affecting title to or interest in real estate be what?
In writing and signed by the parties. An oral agreement of sale is void and therefore unenforceable.
Explain part performance under the Statute of Frauds.
Part performance is proven when the purchaser pays the purchase price, has possession of the land, and makes improvements on the land, all with the permission of the seller.
What are the requirements for someone else to sign a contract in the first person’s place?
As long as the person is authorized to do so. This can occur through the power of attorney, corporate management structure, or by creating a contract granting a designated person such authorization.
Name three contracts where witnesses to signatures may be needed.
A contract which may require witnesses include, but are not limited to, wills, deeds, mortgages and sometimes marriage contracts.
Define breach of contract.
A breach of contract is a failure to perform according to the terms of the agreement. Also called default, a breach of contract gives the damaged party the right to take legal action.
When one party announces, in advance of the due date for performance, that he or she intends not to perform on his or her side of the bargain, this is called what?
Anticipatory Breach
Explain Renunciation breach of contract.
Renunciation occurs where a party refuses to perform his obligations under the contract. It may be either express or implied. A renunciation occurs when one party, by words or conduct, evinces an intention not to perform, or expressly declares that they will be unable to perform their obligations under the contract in some essential respect.
What are the three remedies covered in the Default paragraph of the TREC promulgated forms
Accept the earnest money as liquidated damages
Sue the defaulting party for specific performance
Sue the defaulting party for money damages
Define liquidated damages.
A predetermined amount of money stipulated in the contract to be the total amount of compensation the non-defaulting party should receive upon breach by the other party
An action brought in a court to compel a party to carry out the terms of a contract. A party would be made to perform his or her obligations under threat of contempt of court is known as what?
A suit for specific performance
Define Mediation as set forth in Sec. 154.023.
Mediation is a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement, or understanding among them.
List what a mediator does during mediation.
The mediator does:
Facilitate communication between the disputing parties,
Set ground rules for the process,
Remain impartial throughout the proceeding.
Conveyance
the transfer of legal title of property from one person to another, or the granting of an encumbrance such as a mortgage or a lien.
A typical conveyance transaction contains two major landmarks:
the exchange of contracts (whereby equitable title passes) and completion (whereby legal title passes).
Conveyance occurs in tree stages
before contract, before completion and after completion.
A deed is
Any legal instrument in writing which passes, affirms or confirms an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions sealed.
There are four kinds of evidence of title:
abstract and opinion, certificate of title, title insurance and Torrens certificate.
Typically associated with selling or buying a home or other property
the escrow agent will secure the property and examine documents to make sure that the terms of the sale are met on each end, serving both the buyer and seller in the transaction.
After the abstract is completed
the title company will issue a “Commitment of Title Insurance” to the lender and/or prospective buyer.
The Statute of Frauds in Texas requires
that all contracts affecting title to or interest in real estate be in writing and signed by the parties. An oral agreement of sale is void and therefore unenforceable.
The Texas Statute of Frauds
A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is
writing: and
signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him.
Subsection (1) of this section applies to:
a contract for the sale of real estate; (and)
a lease of real estate for a term longer than one year…
A defendant in a statute of frauds case who wishes to use the Statute as a defense must
raise it in a timely manner
In an action for specific performance
an agreement to convey land must satisfy the Statute of Frauds.
In a majority of jurisdictions, part performance is proven when
the purchaser pays the purchase price, has possession of the land, and makes improvements on the land, all with the permission of the seller
Can Someone Else Sign a Contract in the First Person’s Place?
In many instances, yes, as long as the person is authorized to do so. This can occur through the power of attorney, corporate management structure, or ironically yet most commonly, by creating a contract granting a designated person such authorization.
When is a Witness to a Signature Needed?
Some contracts require the presence of a witness or witnesses to verify that the document is authentic. A contract which may require witnesses include, but are not limited to, wills, deeds, mortgages and sometimes marriage contracts.
A breach of contract is
a failure to perform according to the terms of the agreement. Also called default, a breach of contract gives the damaged party the right to take legal action.
Default of a real estate contract is also called
“material breach of contract” or “breach of contract.” Contract law states that a material breach of contract is an irreparable break in a legally binding contract.
Actual breach
occurs where one party refuses to form his side of the bargain on the due date or performs incompletely.
Anticipatory breach
occurs where one party announces, in advance of the due date for performance, that he or she intends not to perform on his or her side of the bargain. The innocent party may sue for damages immediately when the breach is announced.
The non-defaulting party has legal recourse
Three of the remedies are covered in the Default paragraph of the TREC promulgated forms. Basically the choices are:
Accept the earnest money as liquidated damages
Sue the defaulting party for specific performance
Sue the defaulting party for money damages
Liquidated Damages
A predetermined amount of money stipulated in the contract to be the total amount of compensation the non-defaulting party should receive upon breach by the other party
Sec. 154.023. MEDIATION
Mediation is a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement, or understanding among them.
A mediator may not impose his own judgment on the issues for that of the parties.
Mediation
is the preferred alternative to litigation today and has proven to have a high success rate.
Mediator
facilitates negotiation between the parties and helps them arrive at a mutually agreeable solution. The mediator does not render any decision or impose any opinions in the case.
The mediator
Facilitates communication between the disputing parties,
Sets ground rules for the process,
Remains impartial throughout the proceeding.
Almost any real estate dispute can be settled
In Mediation
The advantages of mediation are:
It is fast,
It is low cost,
It is private,
It is often a win-win for the parties.
