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T&D.Edits.Real Property > Competing Claims > Flashcards

Competing Claims Flashcards

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1
Q

What is adverse possession?

A

A legally sanctioned method of taking title to land by a hostile continuous possession of another’s land.

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2
Q

What are the ways someone can establish a claim to property?

A
  1. Adverse possession
  2. Land sale contract
  3. Conveyance
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3
Q

What are the elements of adverse possession?

A
  1. Plaintiff’s possession of the land is physical and obvious
  2. The possession is against owner’s interest
  3. The possession occurs for the statutory period
    * More Info:* Elements of AP
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4
Q

What is the physical element of adverse possession?

A

An adverse possessor must actually, openly, notoriously, and exclusively occupy the land. The adverse possessor’s use of the land would reasonably put the true owner on notice.

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5
Q

What is the additional element of adverse possession that exists in a minority jurisdiction?

A

An adverse possessor must have paid taxes on the land.

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6
Q

What is the mental element of adverse possession?

A

The possessor must have an intent to possess the land contrary to the owner’s interest.

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7
Q

What is fatal to adverse possession?

A

An adverse possessor receiving permission to possess from the owner before the end of the statutory holding period.

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8
Q

When can co-tenants adversely possess against another?

A

If one of the co-tenants ousts another for the statutory period.

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9
Q

Will a mistaken encroachment satisfy the intent needed for adverse possession?

Majority v. Minority position?

A

Majority: A mistake is sufficient.

Minority: Possessor must show they would have intentionally encroached even if they had known of their hostile use.

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10
Q

What is the time component of adverse possession?

A

A possessor has to hold the property continuously for the entire statutory period.

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11
Q

What is the default time period for adverse possession if there is not a statute?

A

20 years

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12
Q

What does holding a property continuously mean for adverse possession?

A

The property must be held when is it normally occupied.

Example: A beach home normally used exclusively in the summer would only have to be occupied during the summer.

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13
Q

What is tacking?

A

It combines two adverse possession periods to meet the statutory period requirement.

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14
Q

When does tacking occur?

A

When there has been a transfer of interest in property from one adverse possessor to another.

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15
Q

What does the adverse possessor obtain if they are successful in their claim?

A

Gets the land interest they actually possessed. The scope of their claim is limited to their use of the property.

More Info: AP

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16
Q

What can an adverse possessor obtain if they possess through color of title?

A

If a possessor entered under color of title and occupies a significant portion of what is described in the deed, then the possessor is entitled to everything described in the title.

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17
Q

What is color of title?

A

When someone believes their title is valid, but it is not because of a flaw in the deed.

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18
Q

What land rights does an adverse possessor get?

A

Whatever rights the owner has that he took them from. If the landowner only had a life estate then the possessor only receives the life estate. Any encumbrances on the land remain.

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19
Q

What is a disability’s effect on to the statute of limitations for adverse possession?

A

It tolls the running of the statute of limitations for adverse possession.

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20
Q

When will a disability toll the running of a statute of limitations for adverse possession?

A

When the disability exists at the start of the adverse possession. A disability occurs when the owner is:

  1. An infant
  2. Mentally incompetent

or

  1. A prisoner.
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21
Q

Up until the time the adverse possession period has run, what right does the true owner maintain?

A

The owner can have the adverse possessor ejected off the land and sue for damages.

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22
Q

If an adverse possessor is successful, when did their legal possession begin?

A

The date of the entry onto the land. The true owner can no longer sue for any damages because the possessor had a right to the land from the beginning.

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23
Q

Once the adverse possession period has run, the adverse possessor becomes what?

A

The true owner of the land

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24
Q

What are the statute of frauds requirements for land transfers?

A
  1. A writing for a transfer of an interest in real property
  2. The writing must be signed by the party to be held against the contract

And

  1. The essential terms of the deal must be detailed:
    a. A description of the property
    b. A description of the parties
    c. The price
    d. Any conditions of price or payment if agreed on.
    * More Info:* Statute of Frauds
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25
When does **ownership of the land transfer** between the parties in a **land sale contract**?
When the deed to the property is exchanged at the date of closing.
26
What is the doctrine of **equitable conversion**?
When a land sale contract is formed there is a bifurcation of title. Equitable title passes to the buyer and legal title remains with seller until it passes to the buyer at closing. *More Info:* [Doctrine of Equitable Conversion](https://en.wikipedia.org/wiki/Equitable_conversion)
27
Under the **majority** approach, **risk** **of loss** follows which **title**?
Equitable title: the holder of the equitable title risks any loss between the signing of the contract and closing. If anything happens before closing they still must go through with the closing.
28
Who has **equitable** **title before closing**?
The buyer
29
Under the **Uniform Vendor and Purchaser Risk Act** minority rule, the **risk of loss** follows which **title**?
The risk of loss remains with the seller until there is a transfer of: 1. Possession Or 2. Legal title
30
What is the **covenant** of **marketable** **title**?
A promise by the seller to deliver title to the property that is free from defects. *More Info:* [Covenant of Marketable Title](https://en.wikipedia.org/wiki/Marketable_title)
31
What types of **marketable title defects** generally occur?
1. Unpaid mortgage or lien 2. Covenants and easements which restrict the use of the land 3. Title acquired by adverse possession (needs a judicial decree declaring they are owner) **​**4. An existing zoning or ordinance violation of the property.
32
How can a **covenant of marketable title** be **contracted** for?
It is implied, unless the contract says otherwise.
33
When does the **seller** have to have **marketable** **title**?
On the date of closing.
34
What happens if the seller has a **defective title** at **date** **of closing**?
Can make arrangements on the date of closing to earmark part of the purchase price to remedy the defect and make the title marketable.
35
At the **date of closing**, what happens to the **land-sale contract**?
It merges into the deed.
36
What is the **merger doctrine**?
On the date of closing, the land-sale contract merges into the deed?
37
**When** is the only time a buyer can **claim** a **defect in marketable title** under the land-sale contract?
Only on the date of closing. Raising the claim later is too late because it becomes the deed and raising it earlier is too early because the claim does not manifest until closing.
38
If the buyer finds a **defect** in the **title after** the date of **closing**, what are their **options**?
They can only sue on a warranty deed.
39
What is a **quitclaim deed**?
The purchaser is taking the property as is. A purchaser cannot sue on a quitclaim deed. *More Info:* [Quitclaim Deed](https://www.legalzoom.com/articles/what-is-a-quitclaim-deed)
40
What is a **warranty deed**?
A warranty deed contains the covenants of title. *More Info:* [Warranty Deed](http://www.investopedia.com/terms/w/warranty-deed.asp)
41
What is a **general warranty deed**?
A general warranty deed contains the covenants of title for all owners of the property in the past.
42
What is a **special warranty deed**?
The warranty only contains the covenants of title for the period of the seller's ownership of the land.
43
What are the **present covenants** of **title**?
1. Seisin 2. Right to convey 3. Against encumbrances
44
What are the **future** **covenants** of **title**?
1. Quiet enjoyment 2. Warranty 3. Further assurances
45
What is the **covenant** of **seisin**?
Covenant that the grantor owns the property.
46
What is the **covenant** of the **right to convey**?
A promise that the grantor can legally convey the property.
47
What is the **covenant** **against** **encumbrances**?
The owner promises there are no encumbrances on the property (liens, easements, etc.).
48
What is the **covenant** of **quiet enjoyment**?
A promise by the grantor that a third party will not assert a claim to the land.
49
What is the **covenant** of **warranty**?
If a third party asserts a claim to the land, the grantor will indemnify the grantee.
50
What is the **covenant** of **further assurances**?
The grantor will do anything reasonably necessary to perfect the grantee's title.
51
**When** must a **breach** of a **present covenant** occur?
Only can be breached at the time of closing.
52
**When** must a **breach** of a **future covenant** occur?
Can occur at the closing or afterwards.
53
What is **seller's duty of care** to **buyer**?
The seller needs to disclose material latent defects, meaning defects known to the seller but not readily observable or known to the buyer.
54
If a **landlord assigns** his interest, **who** **does** the **tenant pay rent** to?
The original landlord until the tenant receives actual notice of the change.
55
What are the only ways a **tenancy** by the **entirety** can be **severed**?
1. Divorce or 2. If the couple both agree to sell their interest.
56
Where one **co-tenant** is in **sole possession** of the co-tenancy property, what are the **other tenants liable** for?
Pro-rata share of taxes and insurance (Minus) The value of any benefit the sole tenant derived from the property
57
If a **member** of a **joint tenancy** has a **lien** on their share of the property, what happens to their **property interest at death**?
The lien disappears when the joint tenants recover the interest through the right of survivorship.
58
What has to be **completed** in **selling** a **joint tenancy** interest for the joint tenancy to **terminate**?
Equitable title must pass for the joint tenancy to terminate. Legal title does not have to pass.
59
When there is a **life tenant** and a **remainderman**, who is responsible for paying mortgage **principal** and **interest**?
Remainderman = principal Life tenant = mortgage interest
60
What are the **elements** for a valid **conveyance** of real **property** by **deed**?
1. Deed is sufficient to satisfy the statute of frauds 2. Deed is delivered 3. Deed is accepted by the buyer
61
What are the four **requirements** of a valid **deed writing**?
1. The deed sufficiently identifies the parties 2. Words indicate an intent to transfer 3. A sufficient description of the property 4. Grantor's signature
62
What does **not need** to be **included** in a **valid deed writing**?
1. Signature of grantee 2. Consideration 3. Notarization 4. Does not have to be recorded
63
When does the **delivery** of a **deed** **exists**?
The grantor presently intends for the property to transfer to the grantee.
64
What are the **ways** a **deed** can be **delivered**?
1. Grantor may give the deed to the grantee 2. Grantor may retain the deed 3. Grantor may give the deed to third party and let them carry out conveyance
65
If a grantor **physically** **gives** a **deed** to the **grantee**, is there a **delivery**?
There is a rebuttable presumption that the grantor presently intends that the property transfer to the grantee. Can be rebutted by extrinsic evidence that shows that under no circumstances did they intend the transfer.
66
If the **grantor** **retains** the **deed** after writing the deed, is there a **delivery**?
There is a rebuttable presumption that the grantor presently intends not to transfer the property to the grantee. Can be rebutted by extrinsic evidence that shows that the grantor intended to transfer.
67
What happens if the **grantee refuses** to accept the **conveyance** of property?
There will be no valid conveyance of property.
68
If the **grantor** gives the **deed** to a **third party** after deeding property to another, is there **delivery**?
When the grantee gets the deed from the third party the delivery date relates back to when deed was first given to the third party.
69
What is the effect of a **grantor** handing the **deed** to the **third party** and placing **conditions** on the **delivery**?
Generally, one condition will not defeat the relation back doctrine. If \> 1 condition is placed on delivery, then the relation back doctrine will be defeated and delivery date will be when the grantee received the deed from the third party.
70
What is the **relation-back doctrine**?
When a deed is given to the third party that tells them to give it to the grantee, when the grantee gets the deed from the third party the delivery date relates back to when deed was first given to the third party
71
What is created when a **grantor** instructs a **third party** to give a **deed** to **grantee** when the **grantor** **dies**?
Interpreted as giving the grantor a life estate and conveying a remainder to the grantee. It is interpreted as a present delivery prior to death.
72
What are the **exceptions** to the **relation-back doctrine**?
1. There are multiple conditions on delivery by third party Or 2. If the grantor expressly retains the right to reclaim the deed from the third party:
73
How can a **deed** be **accepted** by a **buyer**?
If the transfer of property to the grantee is beneficial, then acceptance is presumed.
74
If a homebuyer **signed a purchase and sale agreement** and then **dies**, what is the legal **status** of the **land sale**?
The right to receive land under an enforceable contract passes to the deceased's heirs.
75
There is a strong **presumption** that **first** **person to record** a property **interest** is what?
The first person with a right to the property.
76
Whose **interest** is **superior** in a **race** recording statute?
The person who records first wins. *More Info:* [Race Recording Statute](http://www.dummies.com/how-to/content/distinguishing-the-three-types-of-recording-statut.html)
77
Whose **interest** is **superior** in a **notice** recording statute?
A bona fide purchaser. *More Info:* [Notice Recording Statute](https://www.law.cornell.edu/wex/notice_statute)
78
Whose **interest** is **superior** in a **race-notice** recording statute?
The first bona fide purchaser to record. *More Info:* [Race-Notice Statute](http://nationalparalegal.edu/public_documents/courseware_asp_files/realProperty/RecordingSystem/NoticeandRace.asp)
79
Who is a **bona fide purchaser**?
1. A property purchaser who takes without notice of any other claims And 2. Pays value. * More Info:* [Bona Fide Purchaser](http://www.nolo.com/dictionary/bona-fide-purchaser-term.html)
80
What are the **types** of **notice**?
1. Actual notice 2. Constructive notice 3. Inquiry notice * More Info:* [Types of Notice](https://en.wikipedia.org/wiki/Recording_(real_estate))
81
What is **actual notice**?
When a person has actual knowledge of a competing claim.
82
What is **constructive notice**?
Notice is implied to all persons when a property interest is properly recorded.
83
What is **inquiry notice**?
A person knows enough facts to reasonably prompt an inquiry into the status of a property.
84
What are the **methods** for **recording conveyances**?
1. Tract index: minority 2. Grantor/Grantee Index: majority
85
What is the **recording process** of a **tract index**?
Records for each parcel within the county have a chronological listing of each conveyance of the property.
86
What is the **recording process** of the **grantor/grantee index**?
There are 2 sets of books. **Grantor Books:** show all conveyances under the grantor's name. **Grantee Books:** shows all conveyance under the grantee's name. Step 1. In the grantee books find when the grantor received the property Step 2. In the grantor books to see if grantor transferred property between receiving and now selling it Step 3. Go to grantor books and find the grantor to the grantor.
87
In a recording statute analysis, **when** is **notice** **measured**?
At the date of conveyance to the purchaser.
88
What is a **wild deed**?
A deed recorded outside of the chain of title. *More Info:* [Wild Deed](http://www.tbrnet.org/blog/2015/02/27/what-is-a-wild-deed/)
89
What is **estoppel by deed**? Minority v. Majority?
Applies when a grantor transfers title to property that they do not currently own; however, subsequently, they acquire the title to. **Minority**: The title automatically passes to previous grantee **Majority**: The previous grantee must go to court and assert a claim to the title.
90
What is the **shelter rule**?
If a grantor has a good claim, then future purchasers can shelter under their good title if there are competing claims.
91
Are **bona fide purchasers** persons who **inherit by will**?
No, they have to pay value.

T&D.Edits.Real Property (5 decks)

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