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Bar Prep > Real Property > Flashcards

Real Property Flashcards

1
Q

Is Virginia a RACE-NOTICE or NOTICE statute jurisdiction?

A

RACE-NOTICE

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2
Q

What’s the effect of VA’s RACE-NOTICE statute?

A

Grantee who RECORDS FIRST prevails

Grantee must be a BFP

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3
Q

What is a BFP

A

Bona fide purchaser - means they PAID VALUE (must be of some pecuniary value) and have NO NOTICE OF PRIOR INSTRUMENT

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4
Q

What is doctrine of MERGER?

A

Says that title warranties made in a sales K are extinguished and MERGED INTO THE DEED.

Means SELLER NO LONGER LIABLE FOR BR/K provisions re to TITLE. Means that if a buyer has claim against seller, basis of claim must be based on the covenants in the deed and NOT on K itself.

Effectively, a deed is the FINAL EXPRESSION of the agreements between the parties as to every subject which it undertakes to deal with. Any conflicts between the deed and prior agreements are resolved by the DEED.

BUT, provisions that are COLLATERAL to the passage of title and not covered by the deed are NOT MERGED into deed and survive its execution

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5
Q

MERGER: Can merger apply to K provisions unrelated to title if the parties have expressly agreed in the land sale K that representations and warranties shall be merged into K?

A

No. Merger can only apply to provisions related to TITLE. Not terms that are COLLATERAL to title.

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6
Q

MERGER DOCTRINE: when are agreements considered COLLATERAL to the sale?

A

When they are 1. DISTINCT AGREEMENTS made in connection w/ the sale

  1. DO NOT AFFECT TITLE to the property,
  2. are NOT ADDRESSED in the DEED,
  3. do NOT CONFLICT w/ the deed
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7
Q

What are the required formalities for a valid DEED?

A
  1. in WRITING
  2. SIGNED BY GRANTOR
  3. REASONABLY IDENTIFY PARTIES AND LAND
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8
Q

When is a deed valid?

A
  1. FORMALITIES MET (in writing, signed by grantor, describes parties/land)
  2. DELIVERY
  3. ACCEPTANCE
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9
Q

What are the requirements for a deed conveying real property as INTER VIVOS GIFT?

A
  1. DONATIVE INTENT
  2. DELIVERY
  3. ACCEPTANCE
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10
Q

When constitutes DELIVERY of a deed?

A

Grantor’s INTENTION to make deed PRESENTLY effective (even if possession is postponed). Can be:

  1. Manual delivery
  2. Notarized acknowledgement by grantor and RECORDATION
  3. anything else showing grantor’s INTENT TO DELIVER
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11
Q

Does a deed need to be signed by grantee?

A

No, grantee becomes bound by terms of deed BY HIS ACCEPTANCE OF A DEED delivered by grantor (even if deed is only signed by grantor)

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12
Q

Does parol evidence rule apply to deeds?

A

Yes

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13
Q

What does parol evidence rule state?

A

That parol evidence is inadmissible to vary or contradict a complete and unambiguous written instrument.

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14
Q

Does failure to record a deed invalidate it?

A

NO, Once delivery occurs, title has passed

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15
Q

What does ENGLISH COVENANTS OF TITLE mean?

A

That deed is conveyed IN FEE SIMPLE, WITHOUT ENCUMBERANCES OF TENANCIES, or LIENS on property.

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16
Q

What are the ENGLISH COVENANTS OF TITLE?

A
  1. SEISIN
  2. RIGHT TO CONVEY
  3. QUIET ENJOYMENT
  4. FURTHER ASSURANCES
  5. no ENCUMBRANCES
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17
Q

What is the covenant of QUIET POSSESSION FREE FROM ENCUMBRANCES?

A

A promise that grantee will hold and enjoy the land free from any interruption, claim, or demand by anybody

and that grantor will INDEMNIFY and SAVE GRANTEES HARMLESS against any and every charge or encumbrance

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18
Q

What do encumbrances include?

A

the existence of PHYSICAL INTRUSTIONS or ENCROACHMENTS or

SUPERIOR TITLE OR INTEREST in the land held by another party

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19
Q

Are lawful zoning ordinances considered encumbrances?

A

No

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20
Q

Is grantor automatically liable to grantee when there’s an encumbrance (and there was CVT FREE FROM ENCUMBRANCES)?

A

Not until he suffers ACTUAL DAMAGES (pays off lien or creditor executes on lien)

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21
Q

What is a GENERAL WARRANTY DEED?

A

Grantor covenants against TITLE DEFECTS that either he or his predecessors created

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22
Q

What is SEISIN?

A

Grantor has the interest she purports to convey.

Must have both TITLE & POSSESSION at the time of grant.

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23
Q

What is the CVT of RIGHT TO CONVEY?

A

Assures grantor has the right, power and authority to convey the property

24
Q

What is the CVT of QUIET POSSESSION?

A

That G’ee can PEACABLY AND QUIETLY hold and possess property w/o demand or claim from 3rd party

25
Q

What is CVT of FURTHER ASSURANCES?

A

CVT to EXECUTE DEEDS or otherwise take action to PERFECT TITLE AS NECESSARY

26
Q

What is CVT of NO ENCUMBRANCES?

A

Assures there are no encumbrances against title or interest to property

27
Q

Does a gen’l warranty deed or English CVTs of Title guarantee against defects in the condition of the property?

A

NO, only as to title

28
Q

If deed grants title to joint tenants, what type of joint ownership is assumed (if deed only states “joint tenants” and nothing else)?

A

if deed doesn’t expressly state “right of survivorship,” Joint Tenants

29
Q

What is a REMAINDER?

A

A future interest IN A 3RD PERSON that can become possessory on the NATURAL EXPIRATION of the preceding estate

CANNOT be a gap between preceding estate

30
Q

How is remainder created?

A

must be EXPRESSLY CREATED in instrument creating preceding possessory interest

31
Q

What is an INDEFEASIBLY VESTED REMAINDER?

A

remainder created in EXISTING AND ASCERTAINED PERSON, and NOT SUBJECT TO CONDITION PRECEDENT.

Remainderman has right to immediate possession upon normal termination of preceding estate

NOT subject to DIVESTMENT OR DIMINUTION

32
Q

What is a LIFE ESTATE?

A

Estate MEASURED BY THE LIFE of one or more persons.

33
Q

What is a FEE SIMPLE ABSOLUTE?

A

Estate that can be sold, divided, devised, or inherited and has an indefinite or potentially INFINITE DURATION.

Fee simple is PRESUMED in the absence of contrary intent

34
Q

What is a DEFEASIBLE FEE estate?

A

Fee simple estates that CAN BE TERMINATED UPON A STATED EVENT.

35
Q

What are the types of DEFEASIBLE FEES?

A
  1. FEE SIMPLE DETERMINABLE (and Possibility of Reverter)

2. FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT (and Right of Entry)

36
Q

What is a FEE SIMPLE DETERMINABLE?

A

Terminates upon stated event and AUTOMATICALLY REVERTS to grantor.

Created by durational language like “for as long as,” “while,” “during,” or “until.”

37
Q

What is a FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT?

A

Estate in which grantor RESERVES THE RIGHT TO TERMINATE the estate upon an event.

38
Q

Are express warranties of GOOD WORKMANSHIP easily disclaimed (e.g., if land sale K tries to say it is merged into deed or is extinguished at closing)?

A

No (especially if the seller is the builder. Note that it CAN’T be merged into deed (not re title))

39
Q

What is a TENANCY BY THE ENTIRETY?

A

a MARITAL estate akin to joint tenancy.

40
Q

What are requirements for a PARTITION BY SALE?

A

Must hold as TENANTS IN COMMON

MAIN QUESTION: Determine whether property can be divided IN KIND (dividing the real property and improvement EQUALLY among the tenants in common)

Do parties disagree about what to do with property?

If property can’t be divided and parties can’t agree, partition by sale appropriate

41
Q

PARTITION BY SALE: Should a tenant in common or joint tenant get the value of the improvements they added if there’s partition sale?

A

Yes, if from their own funds

42
Q

Is a BFP for value who doesn’t have notice of a prior conveyance entitled to keep real property (when there’s a dispute)?

A

Yes, generally

43
Q

As to real estate, what’s a valid defense to a claim for specific performance?

A

That property was sold to BFP w/o notice and in good faith.

44
Q

Is specific performance available for land/real estate? Why?

A

Yes, b/c land is unique

Money damages not adequate remedy

45
Q

What are the requirements for a buyer to satisfy the STATUTE OF FRAUDS for a realty K?

A
  1. Agreement in WRITING w/ ENOUGH INFO TO PROVE AGREEMENT WAS MADE.

OR

  1. Can be satisfied by a showing of 2 of the following 3 factors:A. Buyer made PAYMENT for property (full or partial)B. B POSSESSED property, orC. B made SUBSTANTIAL IMPROVEMENTS to the property
46
Q

When grantor conveys land by deed describing it as bounded by a road or street and the grantor owns the road, does grantee have right to use the road?

A

Yes, grantee acquires benefit of road. But can’t invite others to use it.

47
Q

What are the elements for ADVERSE POSSESSION?

A

Possessor must show:

  1. ACTUAL and EXCLUSIVE POSSESSION that is
  2. OPEN and NOTORIOUS
  3. ADVERSE (hostile)
  4. CONTINUOUS throughout the statutory period

[O.C.E.A.N]

48
Q

What is the limitations period for ADVERSE POSSESSION?

A

15 Years

49
Q

Where all requirements of adverse possession are met except that possessor actually had the owner’s permission to possess and use the property, the possessor is presumed to have:

A

A revocable license

50
Q

When is a written memorandum sufficient to take an oral agreement out of the statute of frauds (and allow it to be enforceable)?

A

When the written memo:

  1. IDENTIFIES THE SUBJECT of the agreement
  2. is SUFFICIENT TO SHOW A K WAS MADE
  3. includes the ESSENTIAL TERMS of the K
  4. is SIGNED BY PARTY to be charged
51
Q

How can statute of frauds be satisfied as to real estate (when there’s not a written agreement)?

A

If the purchaser has done 2 of the following 3 items:

  1. paid some or all of the contract price,
  2. taken possession of the property, and/or
  3. made improvements on the property.
52
Q

When is an easement by necessity created?

A

When a landowner sells a tract or portion of his tract and this deprives one lot of access to a public road or utility.

When an extreme hardship would be created by lack of access to a property.

53
Q

What is doctrine of EQUITABLE CONVERSION?

A

Says that, once K is entered into, BUYER IS TREATED AS OWNER.

Thus, risk of loss is on BUYER.

54
Q

What duty is a seller under regarding title at closing?

A

Duty to provide MARKETABLE TITLE.

55
Q

Can partial performance take K out of S/F? What constitutes partial performance?

A

Yes.

  1. Acts in REFERENCE TO AND RESULTING FROM the agreement (taking possession or making improvements), OR
  2. Agreement SO FAR PERFORMED as to make a refusal to fully execute a fraud upon the performing party
56
Q

When will court grant SPECIFIC PERFORMANCE?

A

Court must conclude:

  1. K is VALID and ENFORCEABLE
  2. both parties have OBLIGATIONS TO PERFORM under the K
  3. NO ADEQUATE REMEDY AT LAW

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