Real Property Flashcards
(29 cards)
Merger
f a buyer permits the closing to occur, the contract is said to merge with the deed and, in the absence of fraud, the seller is no longer liable on the implied covenant of marketable title and other promises in the contract. However, in Virginia, provisions which are collateral to the passage of title and not covered by the deed are not merged into the deed and survive its execution. Agreements are considered collateral to the sale if they are distinct agreements made in connection with the sale of the property, if they do not affect the property, if they are not addressed in the deed, and if they do not conflict with the deed.
Deed delivery
A deed is not effective to transfer an interest in real property unless it has been delivered. Delivery refers to the grantor’s intent; it is satisfied by words or conduct evidencing the grantor’s intention that the deed have some present operative effect, that is, that title pass immediately and irrevocably. If the grantor executes and delivers a deed but the deed is not recorded, title still passes.
Mutual mistake
A mutual mistake is generally a mistaken assumption shared by both parties. When both parties entering into a contract are mistaken about existing facts relating to the agreement, the contract may be voidable by the adversely affected party if: (1) the mistake concerns a basic assumption on which the contract is made; (2) the mistake has a material effect on the agreed-upon exchange; and (3) the party seeking avoidance did not assume the risk of the mistake.
English covenants of title
the right to convey, for quiet enjoyment, against encumbrances, and for further assurances, as well as that the grantor has done no act to encumber the property.
(1) “covenant of seisin,” where the grantor covenants that he has the estate he purports to convey and must have both title and posses-sion; (2) covenant of “right to convey,” where the grantor covenants that he has the power and authority to make the grant, and title alone will satisfy this covenant; (3) “covenant against encumbrances,” where the grantor covenants against the existence of visible (e.g., encroach-ments) or invisible (e.g., mortgage) encumbrances; (4) “covenant of quiet enjoyment,” where the grantor covenants that the grantee can peaceably and quietly enter upon and enjoy the land conveyed by the deed, and that the grantee will not be disturbed in possession by a third party’s lawful claim of title; (5) “covenant of warranty,” where the grantor agrees to defend against reasonable claims of title by a third party and to compensate the grantee for any loss sustained by the claim of superior title; and (6) “covenant for further assurances,” where the grantor covenants to perform acts reasonably necessary to perfect title conveyed.
Three of the covenants (seisin, right to convey, and against encumbrances) are breached, if at all, at the time of conveyance. Quiet enjoyment, warranty, and further assurances arefuture covenants and are breached only upon the disturbance of the grantee’s possession. The covenants on which Sam may prevail are: against encumbrances, quiet enjoyment, and warranty
Right to convey
The covenant of the right to convey is breached at the time of conveyance if the grantor is not the owner of the interest she purports to convey.
Right for quiet enjoyment
The covenant for quiet enjoyment is breached when the grantee is disturbed in her posses-sion or enjoyment of the property by a third party’s lawful claim of title.
covenant against further assurances
This covenant is a promise to perform whatever acts are reasonably necessary to perfect the title conveyed if it turns out to be imperfect.
Against encumbrances and no act to encumber
The covenant against encumbrances is breached if at the time of conveyance the property is encumbered.
Specific performance
A nonbreaching party may seek specific performance if a legal remedy is inadequate. Specific performance is always available for land sale contracts because land is considered to be unique.
marketable title
There is an implied contract in every land sale contract that at closing the seller will provide the buyer with a title that is marketable. Marketable title is title reasonably free from doubt. It need not be perfect title, but must be free from questions that might present an unreasonable risk of litigation. Generally, this means an unencumbered fee simple with good record title.
Remedy is title not marketable
If the buyer determines that seller’s title is unmarketable, they must notify the seller and give a reasonable time to cure the defects. If the seller fails to cure the defects, the buyer may rescind, sue for damages, or get specific performance. The seller, however, cannot sue successfully for damages or specific performance.
land contract w/o written exception
A court may give specific performance of a contract despite the absence of a writing if two of the following acts of part performance are present: (1) possession of the land by the purchaser; (2) making of substantial improvements; and/or (3) payment of all or part of the purchase price by the purchase
Joint tenancy with survivorship
when one co tenant dies, the property is freed form their interest and the survivor retains an undivided right in the property. The right of survivorship must be expressly specified. If just listed as joint tenants and not joint tenants with survivorship, it will be looked at as tenancy in common.
life estate
An estate for life is an estate that is not terminable at any fixed or computable period of time, but cannot last longer than the life or lives of one or more persons. The usual life estate is measured by the life of the grantee.
Remainder
A remainder is a future interest created in a transferee that is capable of taking in present possession and enjoyment upon the natural termination of the preceding estates created in the same disposition. Remainders always follow life estates. An indefeasibly vested remainder is one that can be created and held only by an ascertained person; must be certain to become possessory on termination of the prior estates; must not be subject to being defeated or divested; and must not be subject to being diminished in size. An indefeasibly vested remainder is transferable, descendible, and devisable.
Fee simple determinable
A fee simple determinable is an estate that automatically terminates on the happening of a stated event and goes back to the grantor. It is created by the use of durational language such as “for so long as,” “while,” “during,” or “until.” The interest that is left in a grantor who conveys an estate in fee simple determinable is a possibility of reverter. This future interest arises automatically in the grantor as a consequence of their conveying a fee simple determinabl
deed of trust
In the deed of trust typically used in Virginia, legal title to the property is conveyed to a trustee and the debtor retains the equitable right to repay the indebtedness secured by the trust and obtain the property upon full payment. The deed of trust expressly provides for an out-of-court sale by the trustee subject to certain statutory safeguards.
easement
An easement holder has the right to use another’s tract of land for a special purpose (e.g., to access a road), but has no right to possess that land. An easement is appurtenant when it benefits the holder in her physical use or enjoyment of another tract. Thus, for an easement to be appurtenant, there must be two tracts: the dominant tenement (the estate benefited by the easement—Mary’s), and the servient tenement (the estate subject to the easement right—Bill’s). An express easement may be created by a valid conveyance that complies with the formal requisites of a deed. An easement is presumed to be of perpetual duration unless the grantor limits the interest. If the grantor executes and delivers the deed, but fails to record it, title still passes. Consideration is not required to make a deed valid.
Race notice jurisdiction
a subsequent bona fide purchaser prevails over the prior grantee who failed to record if the subsequent purchaser had no actual or constructive notice at the time of the conveyance, and the subsequent grantee records first.
bona fide purchaser
. A person must: (1) be a purchaser, (2) take without notice, and (3) pay valuable consideration.
Notice can be from (1) actual knowledge, (2) notice from the visible appearance of the easement on the land, and (3) notice from the fact that the document creating the easement is recorded in the public records.
Virginia is not an inquiry jurisdiction where a purchaser such as Sam is required to make reasonable inquiries. He is not charged with knowledge of whatever the inquiry would have revealed, even if in fact he made none.
deed formalities
The Statute of Frauds requires that a deed be in writing and identify the land and the parties. A deed must be signed by the grantor. The grantee’s signature is not necessary.
delivery of deed
Delivery refers to the grantor’s intent; it is satisfied by words or conduct evidencing the grantor’s inten-tion that the deed have some present operative effect, meaning that title should pass immedi-ately and irrevocably, even though the right of possession may be postponed until some future time. Acceptance of a deed is presumed if the conveyance is beneficial to the grantee.
Parol evidence rule
the parties to a contract express their agreement in a writing with the intent that it embody the final expression of their bargain, the writing is an integration. Any other expressions, written or oral, made prior to or contemporaneous with the writing are inadmis-sible to vary the terms of the writing. Parol evidence may be admissible if the alleged parol evidence goes to the agreement’s validity (for example, the agreement was never formed or there was a condition precedent to its effectiveness) or to an obligation collateral to the written agreement (meaning, related to the subject matter but not part of the primary promise).
mutual mistake
A mutual mistake is generally a mistaken assumption shared by both parties. Thus, when both parties entering into a contract are mistaken about existing facts (not future happenings) relating to the agreement, the contract may be voidable by the adversely affected party if: (1) the mistake concerns a basic assumption on which the contract is made; (2) the mistake has a material effect on the agreed-upon exchange; and (3) the party seeking avoidance did not assume the risk of the mistake.
