Contract of Sale Flashcards
What is the relationship between a contract and a deed?
A contract establishes certain rights/remedies; if not performed, there is breach of contract and buyer does not have to accept the deed/can sue for damages
What is the merger doctrine for a contract of sale?
If deed is delivered, all things are merged into the deed and buyer can only sue on certain covenants
What are the elements of a successful transfer?
Signed writing satisfying Statute of Frauds
(Including conveyance for delivery (O-> A))
Marketable Title
For recording, notarization
What are the SoF exceptions for a contract of sale?
Both parties admit that there is a contract (Hickey v. Green)
Reliance and part-performance
* Partial payment
* Partial payment + occupation
* Occupation, partial payment, and improvement
What is marketable title?
Title not subject to such reasonable doubt as would create a just apprehension of its validity in the mind of a reasonable person
What are the three kinds of proof of marketable title?
Marketable title (Most common; implicit in every sale of land contract)
* Disclaimed by a quitclaim deed
* Abstract of title can be included; a copy of every document that impacts title
Recorded title: What is proven by the recorder’s office
Owners policy of title insurance: Company will issue claim against being sued if someone else claims to hold title
What makes title unmarketable?
Right exists in 3rd party and diminishes land value but is consistent with transfer of fee by deed
Pecuniary charges (mortgages, liens, tax assessments, etc.)
Estates of interest in the land held by 3rd parties (leases, life estates, dower rights, etc.)
Easements or servitudes, restrictive covenants (Lochmeyer), profits
What are the three views on a seller’s duty to disclose?
Pure caveat emptor: There are no implied warranties
If seller remained silent and made no express warranties, then buyer takes possession with no recourse for defects
NO affirmative misrepresentation
Cannot conceal defects to mislead the buyer; constitutes misrepresentation (Virginia – livers and onions case)
Duty to disclose all known, or certain conditions of the house
What is the NY exception to pure caveat emptor?
There is a duty to disclose physical defects created by the seller, unknown to the buyer, and undiscoverable by the buyer
Why do buyers rely on title insurance, not deeds for financial coverage?
Warrantor is only liable for amount they received/sold for with no inflation/increase in value, grantee has to find the grantor
What is a general warranty deed?
Warrants against all defects in title, whether they arose before/after grantor took title
What is a special warranty deed?
Covenantor is only saying that they did nothing to breach the above covenants
What is a quitclaim deed?
Grantor is not making any promises or covenants, just transferring what they own
What are the three present covenants made in a GWD?
If breached, breached upon delivery of deed
Seisin: Grantor warrants that they own the estate and purports to convey
Right to convey: Grantor warrants right to convey the property
* It is possible for a person who has seisin to not have right to convey (e.g., trustee)
Against encumbrances: No encumbrances (e.g., mortgages, liens, easements, covenants) on the property
What are the three future covenants made in a GWD?
General warranty: Grantor will defend against lawful claims and compensate grantee for any loss that grantee may sustain by assertion of superior title
Quiet enjoyment: Grantee will not be disturbed in possession and enjoyment of the property by assertion of superior title
Further assurances: Grantor promises to execute any other documents required to perfect the title conveyed
