Voluntary Transfers

Question 1

T/F: Lawyers are usually involved in COMMERCIAL property sales.

Answer 1

True

Question 2

T/F: Lawyers are usually involved in RESIDENTIAL property sales.

Answer 2

False

Question 3

How does the Statute of Frauds affect voluntary transfers?

Answer 3

Requires a writing for transactions involving real property

You can not maintain an action to enforce the sale of a property if there is no writing

Doesn’t make oral contracts illegal or void - but to enforce, you need writing

Doesn’t have to be formal, can be an offer/acceptance stapled together, or a memo/check/escrow account

The law wants people to be allowed to contract so sometimes the requirements aren’t too high

Question 4

What is the standard if a person wants to back out of a deal due to uncertain (unmarketable) title?

Answer 4

It must be reasonable

Question 5

T/F: Marketable title is guaranteed or assumed as part of a sales contract?

Answer 5

True

Doesn’t go with the title itself - rather, it’s part (or presumed in) the sales contract

Question 6

T/F: Specific performance is the most common remedy available to a party when a sales contract is breached

Answer 6

False

Damages is the most common, but in situations where damages are not satisfactory due to the circumstances, specific performance might be a better solution

Question 7

Centex Homes Corp v. Boag:
Boag entered into contract to buy a condo in a complex that has 3600 units. Deposited 10% of purchase price then found out they were being transferred for work. Centex sued for specific performance.

How did the Court respond?

Answer 7

We really want situations in which the seller will genuinely suffer if the sale doesn’t go through, and in which traditional damages wouldn’t suffice in over order specific performance.

Shows that times have changed, courts are less likely to require specific performance in these types of cases.

Question 8

What are “In Praesenti” covenants of title?

Answer 8

Promises that the seller is making that nothing will show up to interfere with the transfer of the deed

We were taught 3:
(1) Seisin: Warranty to defend the buyer, buyer is promised that they have possession of the property

(2) Right to convey: Seller promises that they have the right to sell the property

(3) Against Encumbrances: Seller guarantees no 3rd parties, liens, or other things will come forward

Question 9

What are the 3 “In Futuro” covenants of title we were taught in class?

Answer 9

(1) Warranty: Promise by seller to defend the buyer against claims that may come forward

(2) Quiet Enjoyment: Promise that no one will come forward later claiming the property

(3) Future Assurances: Promise by seller that they will execute the documents to protect title

Question 10

Brown v. Lober:
Lobers bought a 80 acre tract of land. Some years later, they learned they only owned a 1/3rd interest in the sub surface coal mines. They sued the deceased seller’s estate on “siesen” and “quiet enjoyment” claims.

What was the problem with the these claims?

Answer 10

The statute of limitations had run on the “Siesen” claim

No one has come forward disturbing them, so not really any conflict to resolve. (no one interfering with quiet enjoyment)

Question 11

The form you fill out saying your property will transfer to someone else when you die. (non-probate)

Answer 11

Transfer on Death Deed

Question 12

What is a warranty deed’s affect on a title challenge?

Answer 12

If something about the title changes, the seller is supposed to cover the buyer’s losses

Question 13

What guarantees come with a Quitclaim deed?

Answer 13

None

Question 14

Leasing Enterprises v. Livingston:
LE went after property (that was used as collateral) owned by Livingston and his mother. Livingston had transferred ownership of property solely to his mother via quitclaim deed. The state has a rule requiring 2 witnesses on a quitclaim deed, but they only had 1.

How did the court treat the deed?

Answer 14

The quitclaim could not technically be recorded, Livingston therefore has superior title, and the property can be used against him as collateral.

Court says this was probably a fraudulent conveyance by Livingston anyways

Question 15

To be valid, what should a deed include?

Answer 15

Names of sellers and buyers

Language indicating the plans to sell (consideration indicated)

Description of the property (more than a street address - legal description)

Delivery of the deed

Question 16

What makes a deed operative in a transfer of title as laid out in the Capozzella case?

Answer 16

The grantors intent

If there was intent to deliver (pass title)

Question 17

Womack v. Stegner:
One brother intended to give his property to the other. Name wasn’t filled in on the deed when he died - just testimony saying he said to the other brother “fill you name in”.

What did the court say about the “power to fill in”?

Answer 17

Irrevocable because people saw and heard of it (witnesses)

“Bumbling” or “sloppiness” is not considered fraudulent - the courts will almost always tolerate honest mistakes

Question 18

According to Papke, the “Supreme and Paramount Ownership of Property” is described as?

Answer 18

Title

Question 19

While title to a property passes with the sale, the deed indicates…?

Answer 19

That the property has been transferred