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36 Cards in this Set

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  • Back
Must Land K be in writing?
Yes, to satisfy SoF, UNLESS Part Performance Doctrine applies

Must have 2 of 3:

Possession
Payment of all or part of price
Substantial improvements
What if Land K describes parcel that's bigger than actual parcel to be conveyed?
B gets specific performance, with pro-rata reduction in purchase price
Who has ROL after Land K is signed?
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
What are S's 2 implied promises in Land K?
To have marketable title at closing, and that there are no false statements of material fact
When is title unmarketable?
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)
Does land K contain any implied warranties of fitness or habitability?
No. Caveat emptor (buyer beware)

Exception: implies warranty of fitness and workmanlike construction applies to sale of new home by buildor-vendee
What are damages if B breaches Land K, and can S keep down payment?
Damages = K price - FMV

S keeps down payment if it's reasonable, even if he finds another buyer
What is "lawful execution" of a deed?
In writing, signed by grantor. That's it - no consideration need be recited, and description of land need NOT be perfect, just unambiguous
What controls whether delivery has occured?
Grantor's present intent to be bound
Can delivery of deed be "cancelled"
No - must be re-deeded
Is physical delivery of deed required to complete delivery?
No
If deed delivered with oral condition, does oral condition become part of deed?
No, it drops out
What are covenants in quitclaim?
No covenants; not even that grantor has title to convey
What are covenants in warranty deed?
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)
What are covenants in statutory special warranty deed?
That grantor hasn't conveyed to anyone else, and that property is free from encumbraces
Is NY notice or race notice?
Race notice
But BFP purchase for FMV to be BFP?
No, just for substantial pecuniary consideration
What types of notice will prevent purchaser from being BFP?
AIR
What is estoppel by deed?
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
What is an equitable mortgage?
Mortgagor gives mortgagee deed to land instead of executing writing
Can holder of equitable mortgage sell land if mortgagor defaults?
No, must observe formalities of foreclosure
Who retains title and possesion - mortgagee or mortgagor?
Morgagor, until foreclosure
What if mortgagee transfers his interest, but doesn't tell the mortgagor, and the mortgagor makes payment to the original mortgagee?
Payment is effective
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?
Holder in due course - takes free of claims and personal defenses, is subject only to real defenses
What are personal defenses?
Lack of consideration, fraud in inducement, unconscionability, waiver and estopped
What are real defenses?
MAD FIFIIII

Material Alteration
Duress
Fraud in Factum
Incapacity
Illegalicy
Infancy
Insolvency
What are requirements for HDC status?
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
If debtor-mortgagor sells land, does properly recorded lien remain on land?
Yes, if mortgage was properly recorded, land remains "subject to" mortgage
What if bank has not recorded mortgage, and debtor-mortgagee transfers land?
Race-notice: land remains subject to mortgage if bank records mortgage before BFP

Notice: land is NOT subject to mortgage
Who is liable on mortgage that is
"assumed" by buyer?
BOTH original debtor and buyer are personally liable
Who is liable for mortgage when B takes property "subject to" mortgage?
Debtor remains personally liable, B is NOT personally liable but property may be foreclosed
Does assumption of a mortgage require a writing?
Yes
Does property remain subject to a senior mortgage even if the senior mortgagor is joined in the foreclosure proceeding?
Yes
Does buyer at foreclosure proceeding take land subject to senior mortgages?
Yes - senior mortagors can foreclose (but B not personally liable)
When does a mortgage get priority?
When it's recorded
What is a purchase money mortgage and what is its priority?
Loan that enables debtor to purchase land - has super priority as to the parcel that the mortgage financed