W & M Rule Statements Flashcards
Tenants in Common
Two or more co-owners have an equal right to possess property (unity of possession) but do not have a right of survivorship with respect to the property interest held by another co-owner.
Upon a co-tenant’s death under a tenancy in common….
The deceased co-tenant’s share will go to their heirs, assignees, and descendants who will then become a tenant in common.
Tenants in common is the _____ standard for holding property with someone.
Lowest
What interest do co-tenants have?
Each co-tenant holds an undivided interest with unrestricted rights to possess the whole property, regardless of the size of the co-tenant’s interest.
What rights do each co-tenant have?
Each tenant can unilaterally transfer, devise, mortgage, or lease his interest to a third party, without affecting the interest of the other tenants in common.
Joint Tenancy
To be a joint tenant with the right of survivorship, express language must be used.
What happens to a deceased joint tenant’s share if a joint tenancy exists?
If a joint tenancy with the right of survivorship is created, the deceased joint tenant’s share will automatically transfer to the surviving joint tenant.
Tenancy by the Entirety
Reserved for married people, who hold joint title to property with rights of survivorship.
Under tenancy by the entirety, creditors for one spouse…
Creditors of one spouse cannot reach property held by spouses as tenants by the entirety unless they are a creditor for both spouses
Property rights after a divorce when a tenancy by entirety exists
After a divorce is granted, the property is no longer held as tenants by the entirety, and is instead held by the parties as tenants in common.
Ownership via tenants in common → subject to a partition suit.
Valid Deed
In order for a deed to be valid, it must:
(1) meet certain formalities;
(2) be delivered by the grantor; and
(3) be accepted by the grantee
Once delivery occurs…
title passes to the grantee
Formalities for a valid deed:
(1) In writing,
(2) Signed by the grantor,
(3) Reasonably identifies the party and the land
Will a failure to record the deed invalidate it?
No.
Deed of Gift
A deed may validly convey real property by inter vivos gift so long as there is:
(1) Donative intent,
(2) Delivery,
(3) And acceptance
***MUST ALSO ESTABLISH FORMALITIES OF A DEED
Delivery
Delivery can occur by various methods, including manual delivery
Acceptance
Grantee becomes bound by the terms of the deed by his acceptance of a deed delivered by grantor, even though the deed is signed only by the grantor.
Presumption of Acceptance
Acceptance on the part of the grantee can be implied since the conveyance is presumed to be beneficial.
General Warranty Deed
With a general warranty deed, the grantor covenants against title defects that either he or his predecessors created.
Notice Statute
Under a notice statute analysis, a subsequent bona fide purchaser that takes without notice will prevail over a prior property interest holder.
What are the 3 types of Notice?
Actual Notice
Constructive Notice
Record Notice
What is Actual Notice?
established where they actual know of the easement
What is Record Notice?
When a deed or easement is recorded, the subsequent buyer will be put on record notice.
What is Constructive/Inquiry Notice - for a subsequent buyer of property?
established where an inspection would reveal the purchaser of the potential interest or use by someone who actually owns the property other than the seller.
Race-Notice Statute
the subsequent purchaser must take without notice, and must records their interest first.
Adverse Possession
To establish title by adverse possession, the possessor must prove that his possession was:
(1) Actual and visible;
(2) Exclusive;
(3) Continuous;
(4) Hostile to the ownership rights;
(5) For a period of 15 years.
What is hostile to the ownership rights?
Possession without the consent of the actual owner
License
Consent by the actual owner for another individual to possess the owner’s land
A license may be granted…
orally (or in writing) and is freely revocable.
English Covenants of Title
(1) Seisin
(2) The right to convey
(3) Quiet possession
(4) Further assurances
(5) No encumbrances
Seisin
a covenant that the grantor has the interest that he purported to convey.
The right to convey
assures that the grantor has the right, power, and authority to convey the property.
Quiet possession
covenants that the grantee can peaceably and quietly hold and possess the property without demand or claim to the property from a third party.
Further assurance
covenant to execute deeds or otherwise take action to perfect title if necessary.
No encumbrances
assures that there are no encumbrances against title or interest in the property.
Is lawful zoning considered an encumbrance?
No
The covenants protect against…
defects in title; not defects in the condition of the property.
For example, buyer cannot sue the owner for a broken air conditioner → the deed and covenants do not provide a remedy for such a claim
Third party interest in property breach what covenants?
constitutes a breach of the covenants of seisin, right to convey, and quiet possession.
Judgment liens on property breach what covenants?
breach of the covenant of the property being free from encumbrances where there is a judgment lien that is docketed prior to closing for the sale of property
If the seller breaches the covenant of no encumbrances with regard to a judgment lien, seller will not be liable to the buyer UNLESS:
The buyer satisfies the lien himself; or suffers damages as a result of the lien being enforced.
An easement on property breaches what covenant?
breach of the covenant against encumbrances
When will P prevail based on a breach of the covenant against encumbrances in the deed?
when the seller should have disclosed an excepted the presence of an easement in the deed to buyer, but failed to do so.
Result → Seller is liable to buyer
Express Easement
A valid express easement is one that is in writing and grants the grantee access to use the grantor’s property.
For an express easement, when the servient tenement is transferred, the new owner takes the property……
subject to the easement, UNLESS: (1) the new owner is BFP for value; and (2) without notice of the easement.
Notice of an express easement can be established through
Actual notice is established where they actual know of the easement
Record notice is established if the easement be recorded
Constructive/inquiry notice is established where the location of the easement puts the purchaser on notice of the potential interest or use
Implied Easement
When 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 a way exists and the grantee acquires the benefit of it.
Such a description in the deed gives a right by the grantee to use the road.
Can a grantee allow others to use the implied easement?
Nothing in VA case law permits the grantee to allow others to use the boundary road on the grantors property.
The grantee cannot claim that others have an invitation to use the implied easement.
General Warranties under a General Warranty Deed
Grantor covenants that he, his heirs, and personal representatives will forever warrant and defend such property unto the grantee, his heirs, and personal representatives and assigns, against the claims and demands of all persons whomsoever.
If a general warranty deed is delivered and the grantor/seller places a cloud of title on the property to the buyer….
the grantor/seller may be found liable to the buyer
Express Warranty of Workmanship
An express warranty of workmanship provision pertains to physical condition of the property and is unrelated to title.
Where an express warranty in a contract does not concern the validity or nature of title….
the provision survives closing, despite express statement in the contract otherwise.
Waiver of Breach of Express Warranty Claim
Where a contract states that an item will be “in good working order at closing” and the buyer inspects the property and does not raise an issue as to the condition of the item at that time, the buyer will lose his claim for breach of warranty.
Doctrine of Merger - common law
Provisions in a contract for sale are extinguished and merged into the deed.
If a buyer has a claim against the seller, the basis of his claim must be based on covenants in the deed, if any, and NOT the contract for sale itself.
Exception to Doctrine of Merger
provisions which are collateral to the passage of title and not covered by the deed are NOT merged into the the deed and survive its execution.
Agreements are considered collateral to the sale if:
(1) They are distinct agreements made in connection with the sale of property,
(2) They do not affect the title to property,
(3) They are not addressed in the deed, AND
(4) They do not conflict with the deed.
If the 4 elements are met, it is a collateral agreement that will not be merged into the deed and will survive the execution.
Doctrine of merger does not apply to a ______ statement.
closing statement.
What is a closing statement?
A closing statement, which typically reflects the parties’ contractual agreement and places dollar values on agreed-to terms (i.e., share of real estate taxes) is not a deed.
In VA, the doctrine of merger is inapplicable to contract provisions….
unrelated to title even where the parties have expressly agreed to the land sale contract that representations and warranties shall be merged into the deed.
Fraud - Claim for Breach of Contract for the Sale of Property
To establish fraud, P must prove: (1) a false misrepresentation of material fact that was knowingly made by D,
(2) with intent to mislead and be relied upon by P to his detriment.
When may a buyer’s reliance not be justified for fraud?
Reliance may not be justified when a potential buyer undertakes investigation regarding a matter at issue because the buyer is charged with knowledge that the investigation reveals or knowledge that would have been revealed upon reasonable investigation.
A fraud argument fails when P hired a title company who…
should have discovered the existence of an easement but did not
Such search established constructive or imputed knowledge.
Oral Agreement for the Sale of Property
Generally, an oral agreement to sell real estate would not be enforceable because it violates the Statute of Frauds.
Written Memorandum Exception to the SOF writing requirement for the sale of property
where one party writes a written memorandum outlining the terms of the contract, it takes the oral contract outside of the statute of frauds and makes it enforceable
Essential Terms for the Written Memorandum Exception
must identify the subject of the contract, must be sufficient to indicate a contract has been made, and must include the essential terms of such a contract, as well as be signed by the party to be charge.
What is not considered an essential term of the contract for purposes of the written memorandum exception to the SOF?
Price
What does a written memorandum do?
it makes the oral contract enforceable, and a party may bring a claim for a breach of the oral contract
Misrepresentation - Claim for Breach of Contract for the Sale of Land
Where the seller concealed a material fact → misrepresentation
Doctrine of Mutual Mistake - Claim for Breach of Contract for the Sale of Land
A court may give relief where there has been an innocent omission or insertion of a material stipulation, contrary to the intention of both parties.
Where there is an inadvertent oversight based on mutual mistake, the court will enforce the terms of the sale of the contract (or prior document).
Parole Evidence Rule
Parole evidence (i.e., extrinsic evidence prior to the parties entering into a contract) is inadmissible to vary or contradict a complete and unambiguous
The court will not consider parole evidence regarding a deed where the language of the 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.
Mistake of Fact - in the event of a dispute
A contract may be reformed or rescinded in equity on the ground of mutual mistake.
A unilateral mistake of fact will not invalidate the contract.
Who has standing for a claim regarding common areas of a condo?
Only the condo unit owners’ association has standing to sue for claims related to common elements and limited common elements.
The rationale behind standing for a claim regarding common areas of a condo?
Decisions regarding use of common areas are left to the condominium owners’ association.
Although a condominium unit owner may be inconvenienced by the presence of an encroachment of a common area, they will not have standing to sue.
Statute of Frauds - Suretyship
The suretyship provisions of the statute of frauds provides that 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.
A 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/is not a surety
IS NOT
Why is a grantee who assumes an existing mortgage not a surety?
The grantee makes no promise to the mortgagee to pay the debts of another, but promises the grantor to pay the mortgagee the debt the grantee owes to the grantor.
If a valid deed contains an assumption clause, it is an…
enforceable agreement to assume the mortgage debt.
Specific Performance
Specific performance is an equitable remedy typically employed to enforce a contract for unique property as land.
What makes specific performance impossible?
When the property is transferred to a third party
When a grantor transfers property to a third party after entering into a contract with the first buyer….
Instead a claim of recovery for breach of contract is more likely.
***P will receive the difference between the amount she contracted for and the presumed fair market value of what the highest amount buyers were will to pay.
If the court ruled that specific performance was not available and breach of contract damages are the primary remedy, P must show:
how she was actually harmed economically for her to recover damages.
Restitution damages
damages incurred as a result of D’s breach.
When a D is unjustly enriched by the plaintiff, restitution generally allows the plaintiff to recover on the benefit conferred by the plaintiff upon the defendant (rather than on the harm suffered by the plaintiff)
How is the benefit conferred by the plaintiff upon the defendant measured?
by either the reasonable value of the defendant obtaining that benefit from another source or the increase in the defendant’s wealth from having received that benefit (e.g., the increase in value of property owned by the defendant).
Partition Suit
A partition suit forces the court to divide land into separate real estate in cases of joint ownership or the sale of land.
Partition in kind
actual division of land
When partition in kind is not possible:
Partition in kind not possible where party of the property has a residence on it and the other half does not.
The law does not contemplate dividing a home in half because that would be impractical.
Improvements by a tenant in common or joint tenant will or will not be awarded as part of the distribution in the event of partition?
Will be awarded for improvements the placed upon common property at his own expense is entitled to compensation in the event of partition.
Distribution of the funds from the partition suit:
Usually, each party receives ½. But sometimes there are additional distributions that must be made.
