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36 Cards in this Set
- Front
- Back
Must Land K be in writing?
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Yes, to satisfy SoF, UNLESS Part Performance Doctrine applies
Must have 2 of 3: Possession Payment of all or part of price Substantial improvements |
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What if Land K describes parcel that's bigger than actual parcel to be conveyed?
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B gets specific performance, with pro-rata reduction in purchase price
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Who has ROL after Land K is signed?
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MBE: Buyer, under Doctrine of Equitable Conversion
NY: so long as B is w/out fault, ROL remains with seller until B has title or takes possesion |
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What are S's 2 implied promises in Land K?
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To have marketable title at closing, and that there are no false statements of material fact
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When is title unmarketable?
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Even part rests on AP, title is encumbered by servitudes or mortgages (unless B has waived), or property violates a zoning ordinance
(NB: S can pay off mortgage with sale proceeds, and if that's S's plan, B can't claim title is unmarketable) |
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Does land K contain any implied warranties of fitness or habitability?
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No. Caveat emptor (buyer beware)
Exception: implies warranty of fitness and workmanlike construction applies to sale of new home by buildor-vendee |
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What are damages if B breaches Land K, and can S keep down payment?
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Damages = K price - FMV
S keeps down payment if it's reasonable, even if he finds another buyer |
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What is "lawful execution" of a deed?
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In writing, signed by grantor. That's it - no consideration need be recited, and description of land need NOT be perfect, just unambiguous
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What controls whether delivery has occured?
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Grantor's present intent to be bound
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Can delivery of deed be "cancelled"
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No - must be re-deeded
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Is physical delivery of deed required to complete delivery?
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No
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If deed delivered with oral condition, does oral condition become part of deed?
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No, it drops out
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What are covenants in quitclaim?
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No covenants; not even that grantor has title to convey
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What are covenants in warranty deed?
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Promise that grantor owns estate
Promise that grantor has power to transfer Promise that there are no servitudes or mortgages on property Future covenants: Covenant of quiet enjoyment Covenant of warrantability (grantor will defend grantee if there's a suit) Covenant for further assurances (grantor will do what's needed in future to perfect title) |
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What are covenants in statutory special warranty deed?
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That grantor hasn't conveyed to anyone else, and that property is free from encumbraces
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Is NY notice or race notice?
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Race notice
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But BFP purchase for FMV to be BFP?
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No, just for substantial pecuniary consideration
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What types of notice will prevent purchaser from being BFP?
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AIR
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What is estoppel by deed?
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One who conveys realty in which he has no interest is estopped from denying the validity of that conveyance if he later acquires the title that he previously transferred
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What is an equitable mortgage?
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Mortgagor gives mortgagee deed to land instead of executing writing
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Can holder of equitable mortgage sell land if mortgagor defaults?
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No, must observe formalities of foreclosure
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Who retains title and possesion - mortgagee or mortgagor?
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Morgagor, until foreclosure
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What if mortgagee transfers his interest, but doesn't tell the mortgagor, and the mortgagor makes payment to the original mortgagee?
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Payment is effective
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If mortgagee transfers his interest for value, what does transferee become if he didn't have any notice of defect, and what defenses is he subject to?
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Holder in due course - takes free of claims and personal defenses, is subject only to real defenses
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What are personal defenses?
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Lack of consideration, fraud in inducement, unconscionability, waiver and estopped
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What are real defenses?
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MAD FIFIIII
Material Alteration Duress Fraud in Factum Incapacity Illegalicy Infancy Insolvency |
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What are requirements for HDC status?
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Note is negotiable and payble to mortgagee
Original note is indorsed by mortgagee Original note is delivered (no photocopies) Transferee takes in good faith w/out notice of illegalicy Transferee pays value - something more than nominal |
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If debtor-mortgagor sells land, does properly recorded lien remain on land?
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Yes, if mortgage was properly recorded, land remains "subject to" mortgage
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What if bank has not recorded mortgage, and debtor-mortgagee transfers land?
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Race-notice: land remains subject to mortgage if bank records mortgage before BFP
Notice: land is NOT subject to mortgage |
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Who is liable on mortgage that is
"assumed" by buyer? |
BOTH original debtor and buyer are personally liable
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Who is liable for mortgage when B takes property "subject to" mortgage?
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Debtor remains personally liable, B is NOT personally liable but property may be foreclosed
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Does assumption of a mortgage require a writing?
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Yes
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Does property remain subject to a senior mortgage even if the senior mortgagor is joined in the foreclosure proceeding?
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Yes
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Does buyer at foreclosure proceeding take land subject to senior mortgages?
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Yes - senior mortagors can foreclose (but B not personally liable)
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When does a mortgage get priority?
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When it's recorded
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What is a purchase money mortgage and what is its priority?
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Loan that enables debtor to purchase land - has super priority as to the parcel that the mortgage financed
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