Flashcards in Land Conveyancing: The Purchase and Sale of Real Estate Deck (69):
Every conveyance of real estate consists of a two step process. Those steps are:
1 -- the land contract, which endures until step 2
2 -- the closing, where the deed becomes our operative document
What are the 4 requirements of a land contract?
Must be in writing
Must be signed by the party to be bound
Must describe the land
Must state some consideration
B enters into a k to purchase a farm. The contract recites that the farm in 100 acres. When B has a survey done, B learns that the farm in actually 98 acres. What is B's remedy?
Specific performance with a pro rate deduction in price.
The Doctrine of Part Performance is the one exception the . . . .
Statute of Frauds
If on your facts, you have two of the following three elements, the doctrine of part performance is satisfied and equity will decree specific performance of an oral contract for land.
B takes possession
B pays all or part of the price; AND/OR
B makes substantial improvements.
How do we remember the Doctrine of Part Perforamcne exception to the Statute of Frauds?
Two outta three aint bad
Once a land contract is signed, what doctrine do we apply to say that Buyer owns the land (subject to the condition that he pays the purchase price at closing)
Equity regards as done that which ought to be done.
What important result flows from the application of the Doctrine of Equitable Conversion to a land contract?
If in the interim between k and closing, Blackacre is destroyed through no fault of either party, Buyer bears the risk of loss UNLESS the k says otherwise.
What two promises are implied in every land contract?
Seller promises to provide marketable title at closing
Seller promises not to make any false statements of fact
What does marketable title mean?
Title free from reasonable doubt, free from lawsuit, and the threat of litigation.
Which three circumstances will render title unmarketable?
For adverse possession to render a title unmarketable, does the AP need to concern the entire title?
No. If even part of the title rests on AP, it is unmarketable. Seller must be able to provide good record title.
Marketable title means unencumbered ___ ______.
When will servitudes and mortgages against a title NOT render the title unmarketable?
When buyer has waived them.
Seller has the right to satisfy an outstanding mortgage or lien at the closing, with the proceeds of the sale. True or false.
If a seller satisfies an outstanding mortgage or lien at the closing, with the proceeds of the sale, can the buyer claim the title to be unmarketable? Explain
No. The buyer cannot claim the title is unmarketable because it is subject to a mortgage prior to closing SO LONG AS the parties understand that the closing will result in the mortgage being satisfied or discharged.
Title is deemed unmarketable when the parcel violates what type of ordinance?
The majority of states hold a seller liable for failure to disclose ____ material defects.
A seller is liable for material ___ and ____.
Lies and omissions.
If the k contains a general disclaimer of liability (e.g., sold as is OR with all faults), it will not relieve the seller from liability for . . .
Does a land contract contain an implied warranty or fitness or habitability?
What the common law norm for land contracts?
Caveat emptor (buyer beware)
What is the one important exception to the doctrine of caveat emptor for land contracts?
The implied warranty of fitness and workmanlike construction applies to the sale of a new home buy a builder-vendor.
Once closing occurs, which documents no longer matters? Which documents controls?
Land k no longer matters.
The deed now controls.
How does the deed pass legal title from seller to buyer?
It must LEAD.
How do we remember the requirements for a deed to pass legal title from seller to buyer?
Mr. Deeds LEADs
Must a deed be in writing?
Which party must sign the deed?
The deed need not recite ______, nor must _____ pass to make a deed valid.
What must be true of the description of the land?
Must be unambiguous. Does not need to be perfect.
The deed recites that O conveys "all of O's land," or "all of O's land is Essex County." Would such descriptions suffice? Explain.
Yes. Provides a good LEAD. We can research and know the meaning of all.
O conveys "some of my land is Essex County." Does such a description suffice? Explain
No. Even with research, we won't know the meaning of O's conveyance.
Does delivery of a deed require physical transfer of the deed itself?
If opting for physical delivery of the deed, can the grantor use the mail? An agent? A messenger?
What is the legal standard and sole test for delivery of a deed?
Present intent to be bound.
What defeats otherwise effective delivery of a deed?
If the recipient expressly rejects the deed.
As a surprise graduation gift, A's Aunt Gertrude executes a deed conveying BA to A. A responds, "I can't accept such a lavish gift." Blackacre belongs to . . . ? Explain.
Aunt Gertrude. Express rejection of a deed defeats delivery.
If a deed, absolute on its face, is transferred to grantee with an oral condition, what is true of that oral condition? Of the deed?
The oral condition drops out
Delivery of the deed is done.
O conveys a deed to BA that is absolute on its face, but says to grantee, "BA is yours only if you survive me." This oral condition is valid/void.
True or false: Delivery by escrow is insufficient to effectuate delivery of a deed.
Grantor may deliver an executed deed to an escrow agent with instructions that the deed be delivered to grantee once certain conditions are met. True or false.
If the grantor delivers an executed deed to an escrow agent with instructions that the deed be delivered to grantee once certain conditions are met, what happens once the conditions are met?
Title passes to grantee.
What is the advantage of delivering a deed via escrow agent?
If grantor dies or becomes incompetent or is otherwise unavailable before the express conditions are met, title still passes once those conditions are met by grantee.
What are the three types of deeds?
statutory special warrant
A quitclaim deed contains no _____.
Under a quitclaim deed, Grantor isn't even promising what?
That he has title to convey.
How do we remember what a quitclaim deed lacks?
Shaggy's "It Was't Me" --- no promises.
When does a quitclaim deed become operative to relieve seller of any liabilities?
How do we remember what a general warranty deed does?
Mother Theresa ("I inherit the sins of my father")
A general warranty deed warrants against . . .
All defects in title, including those due to grantor's predecessors.
The general warranty deed generally contains how many covenants?
The first three covenants contained in a general warranty deed are present covenants, meaning what?
They are breached, if ever, at the moment of delivery.
When does the statute of limitations for breach of a present covenant in a general warranty deed begin to run?
From the instant of delivery.
What are the 6 covenants contained in a general warranty deed?
Right to convey
The covenant of seisin promises what?
Grantor owns this Estate
The covenant of right to convey promises what?
Grantor has the power to transfer (sound mind, correct age, no restrictions on alienation)
The covenant against encumberances promises what?
No servitudes or mortgages on blackacre
The covenant of quiet enjoyment promises what?
Grantee won't be disturbed in possession by a 3rd party's lawful claim of title
The covenant of warranty promises what?
Grantor will defend grantee against lawful title claims brought by others
The covenant for further assurances promises what?
Grantor will do what is needed in the future to perfect the title.
Which three covenants are future covenents in a general warranty deed?
When, if ever, is a future covenant breached?
Once the grantee is in possession.
When does the SOL for a future covenant begin to run?
That future date on which the covenant is breached.
What two promises does the grantor of a statutory special warranty make?
He hasn't conveyed BA to anyone else
BA is free from encumbrances made by the grantor.
Under a statutory special warranty deed, for whom does the grantor make representations?
Under a statutory special warranty deed, for whom does the grantor NOT make any representations?
His predecessors in interest.
What mnemonic for the definition of marketable title?
Don't Screw Them
Free from Doubt, lawSuit, and Threat of litigation.
What mnemonic for land contract requirements?
We 'bout 'dat contract
Signed by the party to be Bound
Describes the land