Term
| Doctrine of Equitable Conversion |
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Definition
Once a contract is signed, equity regards the buyer as the owner of the real property
Seller has rights to proceeds as personal property; Bare legal title is held in trust for buyer
Risk of loss is on buyer (seller must share insurance)
Seller dies buyer can enforce
Buyer dies, his heirs can demand conveyance |
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Term
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Definition
An implied covenant in every land sale contract
Marketable title = reasonably free from doubt / risk of litigation AT CLOSING
Defects in record examples: variation in land description; bad execution; adverse possession; and zoning violations
Mortgages, liens, and restrictive covenants are significant encumbrances
An easement that is visible, known, or beneficial is okay |
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Term
| Remedy if title is not marketable |
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Definition
Buyer must notify seller and give him reasonable time to cure defects
Failure to cure =
1. Rescission, damages, specific performance with abatement, and/or quiet title suit |
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Term
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Definition
At closing contract for sale and deed merge
Merge means seller's liability for implied contractual covenant ends |
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Term
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Definition
REASONABLE TIME
Essence if:
1. Contract states
2. Circumstances indicate intent
3. Notice
Obligations are concurrent conditions. If neither party tenders there is no breach
Tender excused when other party has repudiated or impossibility |
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Term
| Seller's Liabilities for Defective Product |
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Definition
Warranty of fitness or quality (new construction only)
Negligence of builder
Sale of land or building + existing defects
1. Misrepresentation of fraud
2. Active concealment
3. Failure to disclose
Disclaimers must be specific, general disclaimers are ineffective |
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Term
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Definition
Must be:
1. In writing
2. Signed by grantor
3. Reasonably identify parties (grantee can be left blank) |
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Term
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Definition
SET ASIDE, even against a BFP
Examples: Forgery, fraud in factum (what was signed), no delivery |
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Term
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Definition
Intent to hinder and/or
No consideration |
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Term
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Definition
| Land descriptions must provide a good lead for identifying property |
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Term
| Rules of Deed Description Construction |
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Definition
1. Natural monuments
2. Artificial monuments
3. Courses
4. Distances
5. Names
6. Quantity |
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Term
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Definition
Presumption: title to land passes to the center of a right of way or water boundary
Variable boundary: slow change in course of river operates to change legal boundary |
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Term
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Definition
| deposit of soil on land belongs to abutting owner |
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Term
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Definition
| Sudden change in waterway does not change ownership |
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Term
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Definition
A deed is not effective unless if it has been delivered and accepted (most states presume acceptance)
Delivery = intention t make a deed presently, even if possession is delayed
Parol evidence can show delivery, but not that delivery was conditional
Title passes on delivery
Retention of control shows lack of control or grantor interest |
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Term
| Transfer to 3rd Party with conditions |
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Definition
A valid conditional delivery occurs when a grantor gives a deed to a third party with instructions to give to grantee on condition
Grantor can recover if: condition has not occured or no enforceable contract
Relation back: title ma relate back to when grantor gave notice to 3rd party |
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Term
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Definition
Covenants
Seisin
Right to convey
encumbrances
Future
quiet enjoyment
warranty
future assurances |
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Term
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Definition
| covenant owns estate. title and possession |
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Term
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Definition
| covenant authority to make grant |
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Term
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Definition
| covenants existence of physical encumbrances or encumbrances of title |
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Term
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Definition
| covenant not no be disturbed by 3rd party's lawful claim of title |
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Term
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Definition
| Defend against reasonable claims of title by third party and compensate grantee for loss |
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Term
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Definition
| Perform acts reasonably necessary to perfect title |
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Term
| Breach of warranty deed covenants |
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Definition
Breached at conveyance: seisin, right to convey, encumbrances
quiet enjoyment, warranty, and further assurances are future covenants
Future covenants run with grantees estate |
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Term
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Definition
1. Grantor has not conveyed same estate or interest to anyone other than grantee
2. Estate is free from encumbrances made by grantor |
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Term
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Definition
Grantor releases whatever interest grantor has in property;
No covenants of title are included or implied |
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Term
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Definition
1. Grantor purports to convey title that is not his
2. Grantor subsequently gets title
3. Estate will automatically inure to grantee
4. Grantee can accept title or sue for damages |
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Term
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Definition
Race- first to record
Notice- protects subsequent bona fide purchaser for value
Race Notice- Bona fide purchaser who records first
Statutes protect purchasers and mortgagees |
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Term
| Record Notice / Chain of Title |
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Definition
Record notice only if if deed is in chain of title
Chain of title = a searcher could reasonably find it
No one has a legal duty to do a title search but law will impose constructive legal notice |
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Term
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Definition
A recorded deed that is not connected to chain of title
No constructive notice because a subsequent purchaser could not feasibly find it |
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Term
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Definition
Deprive of all economically viable use of land is taking
Nearly all, very little economic value use balancing test
Test: 1. social goals of regulation 2. Diminution in value of property 3. reasonable expectations for use of property |
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Term
| Unconstitutional Exactions |
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Definition
Give land for public use in exchange for land use approval
Government must prove:
1. rationally connected to an additional burden project will put on public facilities (ESSENTIAL NEXUS)
2. Dedication is reasonably related in nature and extent to proposed development (rough proportionality) |
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Term
| Deeds record before grantor obtained title |
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Definition
Issue: deed is received from a grantor who had no title when conveyed but who afterwards obtains title imparts constructive notice to subsequent purchasers
Most courts will say BFP prevails because it is not in chain of title |
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Term
| Deed in chain referring to instrument outside of chain |
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Definition
| Reference to another instrument in a recorded document that is in the chain of title may impart constructive notice of the instrument referred to- even if it is unrecorded or not itself in chain of title |
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Term
| Restrictive covenants deed from common grantor |
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Definition
| Courts are split on whether deeds to adjacent lots or lots in a subdivision executed by the same grantor and containing restrictions and easements involving the subject lot, are within the chain of title of the subject lot. The better view is that they are not |
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Term
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Definition
Under certain circumstances a purchaser is required to make reasonable inquiries and is charged with knowledge of whatever the inquiry would have revealed.
The mere fact that a quitclaim deed was used does not create inquiry notice |
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Term
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Definition
Tract index jurisdiction: searcher looks at the page indexed by block or lot describing the property and any instruments affecting it.
Grantor/grantee index: searcher establishes a chain of title by searching back in time in the grantee-grantor index. From that point, he then searches forward in time in the grantor-grantee index to see if any grantor conveyed an interest to someone outside of the backward chain. |
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Term
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Definition
Recordation gives prospective subsequent grantees constructive notice of the existence and content of the recorded instruments.
It also raises a presumption of valid delivery and authenticity.
Does not validate an invalid deed or protect against interests arising by operation of law. |
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Term
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Definition
An instrument is considered recorded when filed with the recorder's office, regardless of whether it is thereafter properly indexed.
A subsequent purchaser is charged with notice of a misindexed instrument but has a cause of action against recorder's office. |
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Term
| Recording an unacknowledged instrument |
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Definition
An unacknowledged instrument is not entitled to recordation, it does not give constructive notice.
Subsequent must have actual notice of deed to be bound by it. |
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