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MBE > MBE Real Property > Competing Claims > Flashcards

Competing Claims Flashcards

When two property claims compete, lawyers win! Learn the priority of property claims and the procedures needed to safeguard a claim. (83 cards)

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1
Q

Define

adverse possession

A

Method of acquiring title to another’s land by hostile continuous possession for a period of time.

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2
Q

Elements of adverse possession

A

Trespasser’s possession must be:

  1. Continuous for duration of statutory period (depends on jurisdiction);
  2. Hostile;
  3. Actual,
  4. Open & notorious;
  5. Exclusive
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3
Q

What is the default statutory period for adverse possession?

A

20 years

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4
Q

What is “continuous” possession?

A

Uninterrupted use of the property throughout the statutory period.

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5
Q

Does seasonal or infrequent use count as continuous possession?

A

Yes as long as it is consistent with the ordinary use of the property (ex. if property is a ski cabin or summer beach house).

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6
Q

Define

tacking

A

When a trespasser “tacks on” (adds on) a prior adverse possession period to meet the statutory requirement.

⚠️ Note: Privity between trespassers is required. The new trespasser must take by non-hostile means without gaps in possession.

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7
Q

When is tacking not allowed?

A

If the new trespasser has taken control of the property through hostile means (called “ouster”).

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8
Q

Does the SOL run if the rightful owner was disabled when the adverse possession started?

A

No, SOL will toll (pause) if rightful owner was disabled (minor, incarcerated, mentally incompetent, etc) when the adverse possession started.

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9
Q

What is “actual” possession?

A

Actual, physical possession of the property.

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10
Q

What is “open and notorious” possession?

A

Obvious and not hidden; the owner would know of it with reasonable inspection.

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11
Q

What does it mean for possession to be hostile?

A

Without the owner’s permission. Trespasser does not need to intend to adversely possess the property.

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12
Q

Can a trespasser adversely possess the land with the owner’s permission?

A

No, defeats hostility requirement

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13
Q

If a renter overstays their lease, is this considered “hostile” possession?

A

No, tenancy at sufferance exists, not adverse possession

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14
Q

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

A

Majority: Yes, mistake is sufficient

Minority: No, possessor must show they would have intentionally encroached even if they had known of their hostile use

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15
Q

Define

color of title

A

Title that appears valid, but actually isn’t because of some flaw in the deed (i.e. deed doesn’t contain all required elements)

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16
Q

What is the effect of adversely possessing the property under color of title?

A

If adverse possessor occupies a significant portion of the land in the deed, the possessor is entitled to the entire property

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17
Q

Can you adversely possess government land?

A

No

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18
Q

Can a co-tenant acquire title to the whole property through adverse possession?

A

Yes, but only if the co-tenant clearly and unequivocably ousts the others from the land for the statutory period

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19
Q

When will a restrictive covenant run with land acquired by adverse possession?

A

Only if adverse possessor’s use was consistent with the covenant

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20
Q

What are the 3 steps in a land transaction?

A
  1. Land contract;
  2. Closing;
  3. Deed transfer
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21
Q

Requirements for a land sale contract to satisfy the SOF

A
  1. In writing;
  2. Signed by the parties to be bound;
  3. Contain essential terms of the deal (description of the land, consideration to be paid, etc)
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22
Q

When does a land sale contract not need to satisfy the SOF?

A

If buyer does 2 of the following:

  1. Takes possession of the land;
  2. Makes physical improvements; and/or
  3. Pays significant part of the purchase price
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23
Q

Define

implied covenant of marketable title

A

title is free from defects and unreasonable risk of litigation

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24
Q

What defects render a title unmarketable?

A
  1. Encumberances;
    • Covenants
    • Easements
    • Mortgages
    • Liens
  2. Title acquired by adverse possession;
  3. ​Zoning violations;
  4. Incurable physical defects; and
  5. Future interests that have not consented to transfer
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25
Can the buyer **waive** defects that render a title unmarketable?
Yes
26
# Define duty to disclose
1. Seller has duty to disclose all **material latent defects**; and 2. Seller cannot **misrepresent** or **fraudulently conceal**
27
Do **disclaimers** limit the seller's liability for misrepresentation or fraudulent concealment? (e.g. "property sold as is")
No, disclaimers do not limit liability for misrepresentation or fraud
28
**Deadline** for seller to deliver marketable title
By the **date of closing**
29
What happens if the title is unmarketable **at the time 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
30
What can the buyer do if they **discover the title is unmarketable?**
Notify the seller **before the closing date** and give them a reasonable time to cure defects If seller doesn't cure, buyer can seek specific performance, damages, and an action to quiet title ## Footnote ⚠️ If buyer doesn't notify seller beforehand, deed controls b/c of the merger doctrine and seller is not liable
31
What is the implied warranty of **quality in construction**/good workmanship?
For **new** property, implied promise that structures will be constructed in a "good and workmanlike" mannner
32
What's the **doctrine of merger** and its effect?
Once the deed is transferred/conveyed to the buyer, the contract merges with the deed and the **deed** **controls**, not the contract. ## Footnote ⭐️ This means that whatever obligations the seller had under the contract are not enforceable unless they are **also contained in the deed**.
33
What is the **doctrine of equitable conversion**?
Doctrine that helps determine who bears the risk of loss. Once the buyer signs K to purchase land at a later date, but before closing: * Buyer has **equitable** title; and * Seller has **legal** title
34
Under the doctrine of equitable conversion, **who bears the risk of loss** if the property is destroyed prior to closing?
Holder of the equitable title (the **buyer**), regardless of whether buyer took possession yet
35
What's the **exception** to the doctrine of equitable conversion?
Buyer will not bear the risk of loss if loss is attributable to the **intentional or negligent acts** of the seller
36
What happens if the buyer bears the risk of loss and the seller has **insurance**?
Seller should give the buyer a **credit equal to the insurance proceeds** against the purchase price
37
What happens if the **seller dies** before closing?
Seller's interest is considered personal property & passes to seller's devisees
38
What happens if the **buyer dies** before closing?
Interest treated as real property & buyer's devisees can sue for transfer of property to themselves
39
# Define deed
Instrument that passes **legal title** to the land from the seller to the buyer
40
What is required for a deed to be effective?
1. In **writing** and signed by grantor; 2. **Describe** the parties and the land; 3. **Delivered** (i.e. seller must have present intent to transfer the interest)
41
What types of actions show **present intent to transfer the deed**?
1. **Physical delivery:** mailing or handing the deed to the person; or 2. Any other conduct or words that would **imply present intent to transfer** * ex. recording the deed, drafting the deed
42
If the grantor **keeps** the deed after writing it, has there been delivery?
No, rebuttable presumption that the grantor **did not** presently intend to transfer the property
43
Does giving the deed to the **grantee's agent** (e.g. attorney) count as valid delivery?
Yes
44
If the grantor **transfers** the deed to her **own agent** (e.g. attorney), and tells the attorney to deliver the deed in the *future*, does the **transfer** count as **delivery**?
**No,** delivery only occurs once the agent actually **delivers** the deed to the **grantee.**
45
# Define death escrow
Occurs when grantor instructs agent to deliver deed to grantee *upon grantor's death.* ## Footnote ⭐️ Only valid if grantor places deed **beyond his/her control**, i.e. retains zero control upon transfer to attorney. If grantor retains any power over the deed (e.g. asking it to be returned), then no valid death escrow has been created and no valid deed delivery.
46
# Define relation-back doctrine
If deed is given to **third party** and **third party subsequently delivers** deed to grantee, delivery date will be when deed was *first given to the third party*
47
What are the **exceptions** to the **relation-back doctrine**?
1. There are multiple conditions on delivery by third party; or 2. Grantor expressly retains the right to reclaim the deed from the third party
48
If a deed has been effectively delivered, can the grantor **rescind** it?
No
49
Is **acceptance** required for the deed transfer to be complete?
**Yes**, if grantee rejects the deed, no transfer has occured
50
If the grantee **accepts** the deed, but then **returns it** to the grantor, has ownership been transferred back to the grantor?
No, merely giving it back to the grantor does not change ownership - a **new deed** must be validly executed for ownership to revert back to the grantor
51
What are the 3 types of deeds?
1. General warranty; 2. Special warranty; and 3. Quitclaim
52
# Define quitclaim deed
Buyer takes the property "as-is," with no warranties, covenants, or promises
53
If the buyer has a **quitclaim** deed, can she sue the grantor if the grantor didn't actually have title or the title is not free and clear?
No, buyer takes the interest "as-is," without **any** warranties or assurances
54
# Define general warranty deed
Contains **6 present and future** **covenants of title** that cover the property's entire history Present: 1. Seisin; 2. Right to convey; and 3. Against encumbrances Future: 1. Quiet enjoyment; 2. Warranty; and 3. Further assurances
55
# Define special warranty deed
Contains the **same covenants of title** as a general warranty deed, but only for the **period of the seller's ownership** of the land. Does not contain any warranties for what happened before the grantor took ownership
56
When is the only time a present covenant can be breached?
At the time of delivery
57
What is the only time that a future convenant can be breached?
After delivery of the deed
58
# Define covenant of seisin
Grantor owns the property described in the deed
59
# Define covenant of the right to convey
Grantor has the right to convey title
60
# Define covenant against encumbrances
There are no encumbrances on the property (liens, easements, etc.)
61
# Define covenant of quiet enjoyment
Third party will not assert a claim for a title
62
# Define covenant of warranty
Grantor will defend against a third party's claim for title
63
# Define covenant of further assurances
Grantor will do anything reasonably necessary to perfect the grantee's title
64
# Define bona fide purchaser for value (BFP)
Buyer who: 1. Purchases property for **value**; 2. Without **notice** of any prior claims
65
What are the 3 **types** of **notice?**
1. Actual; 2. Record (also called constructive notice); and 3. Inquiry
66
# Define actual notice
**Actual**, personal knowledge of a competing claim
67
# Define record notice
Implied to all persons when a conveyance is **properly recorded** (i.e. if the conveyance was properly recorded, the buyer has record notice)
68
# Define inquiry notice
**Reasonable inspection** would have revealed the prior claim ## Footnote ⚠️ The buyer **doesn't need to actually inspect** to have inquiry notice. As long as the buyer *would have discovered* the claim if they had reasonably investigated, they will have inquiry notice
69
What are the types of **recording statutes**?
1. Notice\* 2. Race-notice\* 3. Race ## Footnote \* Most common
70
Who prevails in a **notice jurisdiction**?
**Subsequent** bona fide purchaser if earlier purchase was **not recorded** and and purchaser **did not know** of earlier purchase
71
Name the type of recording statute*: "No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof, unless it is recorded."*
Pure **notice** jurisdiction
72
Who prevails in a **race jurisdiction**?
**First** grantee to record (regardless of whether they are a BFP)
73
Name the type of jurisdiction: *"No conveyance or mortgage of an interest in land is valid against any subsequent purchaser whose conveyance is first recorded."*
Race jurisdiction
74
Who prevails in a **race-notice jurisdiction**?
**First BFP** to properly **record**
75
Name the type of statute: *“No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice who shall first record.”*
Race-notice
76
Are **mortgagees** considered BFP's and thus protected by recording acts?
Yes because they have paid value
77
Are grantees who were given the deed by **gift or will** protected by the recording statutes? (generally)
No, because they did not pay value. If they received the deed from a BFP, however, the Shelter Rule will apply and they will be protected. ## Footnote ⚠️ This is true even if the grantee **records** the deed. Since they did not pay value, they are not protected against prior claims (unless Shelter Rule applies)
78
# Define wild deed
Deed recorded *outside of the chain of title*; does not give notice to subsequent purchasers
79
# Define estoppel by deed
If a landowner transfers title without actually owning it, and then *subsequently* does acquire title, she will be estopped (barred) from denying the validity of the first conveyance
80
# Define Shelter Rule
If a buyer receives property from a BFP, they will also be protected as a BFP. ## Footnote ⭐️Enables devisees, heirs, or anyone else who isn't a BFP to gain the same protection as BFP has
81
# Define ademption
When the testator gives real property to a beneficiary, but no longer owns the property at their death, the devise is **adeemed**. The named beneficiary takes nothing. ## Footnote Ex. Max conveys his home to Ian in his will, but then sells the home to Carly. Max then dies. Ian gets nothing because the devise is adeemed. *More info:* [Ademption](https://www.law.cornell.edu/wex/ademption)
82
Can ademption occur with both a **specific devise** (real property) and a **general devise** (monetary gift)?
No, only with a specific devise
83
What is the effect of an **anti-ademption statute** on adeemed gifts?
The devisee is entitled to the **proceeds** from the sale of land

MBE Real Property (6 decks)

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