Flashcards in Land Conveyancing: The purchase and sale of real estate Deck (85)
what needs to be in LAND K for SOF
land K MUST
1) be in writing
2) signed by the party to be charged (D)
3) must describe land and
4) state some consideration
what if the amount of land recited in the land K is more than the actual size of the parcle what is B's remedy
specific performance with a pro rata reduction in price
when is specific performance allowed
when land is unique, usually always land since land is held to be unique.
what is the 1 x/c where sale of land does NOT need to be in writing for SOF
DOCTRINE OF PART PERFORMANCE
what are the 2 elements of 3 that must be met for part performance for x/c to SOF
1) Buyer takes possession
2) B makes substantial improvements
3) Buyer pays all or part of the price
what does the land K give the buyer?
who does the destruction of property lie with after the land K?
BUYER. once K singed, buyer owns the land, if b/w k and closing it is destroyed by either party BUYER bares risk of loss unless K says otherwise
in IL whose risk of loss of property does it belong to before closing?
IL by statute risk of loss remains with SELLER until closing
what is the doctrine of equitable conversion
equity regards at done which ought to be done
what are the 2 implied promises in every land K
1) seller promises to provide MARKETABLE TITLE at the TIME OF CLOSING
2) seller promises not to make any false statements of MATERIAL FACT
what is the std for marketable title
title FREE from reasonable doubt, free from law suits and threat of litigation
1) free from reasonable doubt
2) free from law suit or
3) free from threat of litigation
when does marketable title need to be given
AT THE CLOSING
can the lien be discharged of the sale of proceeds, which will make the land marketable title
YES can close with proceeds of sale
what are the 3 things that can make title unmarketable
1) adverse possession
3) zoning VIOLATIONS
what is the rule for adverse possession for unmarketable title
even if PART of the title rests on adverse possession, it is UNMARKETABLE.
- S must be able to provide good record title
what is rule for encumbrances for making title unmarketable
marketable title means unencumbered fee simple.
- Thus, servitudes and mortgages render title unmarketable, UNLESS
- B waives them
when does servitudes and mortgages not make title unmarketable
when B waives them
what is rule for zoning violations making title unmarketable
title is unmarketable when land VIOLATES a zoning ordinance.
is the mere presence of a zoning ordinance make title unmarketable?
NO needs to be an actual VIOLATION that renders it unmarketable
can a S be held liable even if they are silent on a false statement of material fact
YES. silence is not golden, can be what omitted
what is the majority rule for holding sellers liable for false statements of material fact
failing to disclose MATERIAL LATENT DEFECTS
what is a latent defect
one that could not be discovered under a reasonable inspection
can S be held liable for material lies and omissions of latent defects
what happens if a K contains a general disclaimer of liability (property sold as is, with all faults)
disclaimer WILL NOT excuse S from liability from fraud or failure to disclose
generally does a land K contain an implied warranties of fitness or habitability
- cavet emptor: let the buyer beware
what is the x/c for where there is implied warranty of fitness in land K
WORKMANLIKE CONSTRUCTION which applies to SALE OF A NEW HOME by a builder-vendor
what document is controlling at the closing?
what does the deed do at closing
passes legal title from S to B
how does a deed pass legal title from seller to buyer (LEAD
1) Lawfully Executed And Delivered