REAL PROPERTY Flashcards
(57 cards)
Requirements of a Land Sale Contract
1) Writing;
2) signed by the party to be charged; AND
3) contain essential terms (ID the parties and description of the land).
Exception to the SoF for Land Sale Contracts
If a claimant does two of the following a land sale contract will not need to be in writing:
1) takes possession;
2) makes payment in full of a substantial part of the price; OR
3) substantially improves the land.
Seller’s Duty to Disclose Defects
A seller of a home is only required to disclose latent defects that they know or have reason to know exist. A latent defect is one that is not obvious upon reasonable inspection.
Marketable Title
A seller must pass marketable title to the buyer at the time of closing. A marketable title is one free from defects.
What makes a title unmarketable?
(DEVA)
D: defects in the chain of title;
E: encumberances (mortgage or easement not in the K);
V: violation of a zoning ordinance;
A: Adverse possession.
Doctrine of Equitable Conversion
Once a land-sale contract is signed, title splits, and the buyer is vested with equitable title to the property. Thus, the buyer bears the risk of any loss (i.e., destruction of the property by natural forces).
Elements of valid deed
1) ID of both parties;
2) granting language;
3) description of the property; AND
4) signed by grantor.
Delivery of the Deed
A deed is considered delivered when the grantor manifests a present intent to pass title.
*delivery is presumed if the deed is in the grantee’s possession or is recorded.
Merger Doctrine
Under the merger doctrine, after closing the contract for the sale merges into the deed. Thus, the buyer may only sue on the terms in the deed.
A quitclaim deed
A quitclaim deed provides the grantee with whatever the grantor possesses at the time and contains no warranties.
General Warranty Deed
PRESENT Covenants
R: Right to convey;
S: Seisen;
N: No encumberances.
FEW (Future) Covenants
F: Further Assurances;
E: Quiet Enjoyment;
W: Warranty.
Notice Act
A subsequent purchaser, who provides valuable consideration and has no prior knowledge of prior conveyances shall have superior title.
Race Act
He who first records his deed has superior title.
Race-Notice
To prevail, the purchaser must not only be a BFP but have recorded their interest in the property first.
Methods of Notice
(AIR)
A: Actual
I: Inquiry (reasonable inspection)
R: Record (looking through the land records).
Shelter Rule
A subsequent purchaser may take shelter under the title of a BFP who holds superior title.
Estoppel by Deed
If a grantor conveyed title to a grantee without having legal title by warranty deed, then later acquires title, the title will automatically go to the grantee unless the title is later conveyed to a BFP.
Adverse Possession
C: Continuous for the statutory period;
A: Adverse to the interests of the owner;
N: Notorious;
O: Open;
E: Exclusive.
Tacking
A subsequent adverse possessor may tack on the time of a prior adverse possessor.
If there is a disability (JIM) J: jail; I: insane; M: minor) the tolling will occur until the disability is lifted.
“Subject to the Mortgage”
When a transferee takes title to a property and agrees to be “subject to the mortgage,” the original mortgagor is liable on the mortgage.
“Assumes the mortgage”
When a transferee takes title and agrees to “assume the mortgage,” the original mortgagor and the transferee are liable on the mortgage.
Exception: if there is a novation, then only the new transferee is liable.
Are due-on-sale clauses enforceable?
YES, if the mortgagor transfer the mortgage without the mortgagee’s consent.
Lien Theory
Bank only possesses a lien on the property upon loaning.
Title Theory
The bank hold legal title until the debt is paid.
