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132 Cards in this Set
- Front
- Back
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Deed Def:
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The instrument by which real property transfers inter vivos
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Elements of a Valid Deed
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1. A writing
2. ID of the transferor & transferee 3. Words of unconditional transfer 4. Description of the property 5. Signed or subscribed by the grantor 6. Legal delivery 7. Acceptance (usually presumed) |
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Legal Delivery
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1. Actual
2. Constructive 3. Symbolic |
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3 Types of Legal Descriptions
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1. Survey
2. Metes & Bounds 3. Subdivision Map |
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Acceptance of a Deed
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Usually Presumed
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What is not required for a valid Deed?
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1. Notarization / reguired for recording though
2. Transfer Tax / required for recording though 3. Recording |
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CL Recording Law in the absence of a recording act
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First in time, first in right
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Mortgage Def:
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1. Security (collateral) for the performance of an obligation
2. An encumberance against mortgagor's interest in the property described in the mortgage. 3. You can have a mortgagor that is not a promisor on the Note. |
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When is a mortgage enforceable?
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In the event of a default on the obligation that it is tied to.
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Promissory Note
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Evidence of a loan. Type of contract
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Deed of Trust
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1. Mortgage Substitute
2. Security for the performance of an obligation 3. Courts look at DoT as the functional equivalent of a Mortgage |
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Parties to a Deed of Trust
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1. Trustor
2. Beneficiary - Creditor 3. Trustee - can also be a beneficiary in some states 4. MERS 5. 2, 3 or 4 parties |
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Deed of Trust; The Trustee
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1. Trustee is given naked title
2. Trustee can only act in the event of a default 3. Trustee can exercise the power of sale |
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Deficiency Judgements in CA
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1. Banks cannot recover a deficiency judgment becuase of anti deficiency statuts
2. If CL controlled, the lender could persue a deficiency judgmenet under the principals of contract |
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CA Deficiency Judgment Statutes
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Sec. 580b - Purchase money statute
Sec. 580d - Non-judicial statute |
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Deed Poll
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Inter vivos instrument of transfer that is set up for the deed to be signed only by the transferor
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Deed Types
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1. Quitclaim Deed
2. General Warranty Deed 3. Special Warranty Deed |
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General Warranty Deed
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Warrants against all defects that arose before or after the grantor obtained title
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Special Warranty Deed
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Warrants against all defects that arose after the grantor obtained title
*** Warranties on this type of deed can be customized |
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Quitclaim Deed
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1. Transfers the grantor's interest in the property without any warranty against defects.
2. MUST NOT have the word "grant" in the deed |
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CL rights of remote Grantees
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Causes of action weren't transferable under the CL. A breach is a cause (chose) of action, so remote grantee could not enforce a present covenant against a remote grantor.
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Modern rights of remote Grantees
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the cause of action is transfered by deed.
*** For damages, the remote grantee cannot get more than the original grantee could have gotten from the grantor plus interest. |
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Physical delivery
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when a doc is placed in the hands of another
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Legal delivery
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actual or constructive delivery
* An intent by the grantor to divest himself of the conveyed interest |
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Is a seal required?
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1. Most states have abolished
2. Those that haven't liberally construct what is a seal |
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Government Survey
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36 square mile blocks called townships
1 sq mile is a section |
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Metes & Bounds
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starts at an identifiable point.
uses distances and directions |
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Subdivision Map
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parcels within tracts of land
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Escrow Closing
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Escrow agent distributes funds and documents when all conditions of the K have been met
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Table Closing
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buyer and seller meet under the supervision of an attorney
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present transfer of a future interes
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look at: intent to relinquish all dominion and control
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Specific Performance
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1. Equitable remedy
2. Requires breaching party to perform K 3. Granted IF monetary damages would be inadequate. 4. Pol: land is unique |
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Damages
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difference between the K price and the FMV on the date of the breach
*benefit of the bargain |
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Rescission
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1. Restores the parties to thier original possitions
2. Innocent party may rescind |
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Sale of Property is really a sale of "title"
What are the assurances of the quality of title? |
1. Title covenants
2. Title opinion based on search of public record 3. Title insurance |
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Title Covenants
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1. Express promises by the grantor about the state of the title
2. Rights depend on type of deed recieved and scope of promises contained in that deed |
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Six Standard Deed Covenants
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1. Seisin - promise that grantor owns the estate
2. Right to convey 3. Cov against encumberances 4. Cov of warranty - grantor will defend 5. Cov of quiet enjoyment - not ddisturbed by holer of superior title 6. Cov of further assurances - future steps to cure |
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Title Insurance
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Title Co issues a policy to insure the grantee's title
Conract of indemnity |
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CL doctrine of merger
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promises parties made in K ended at the closing unless they were restated in the deed.
2. Once grantee accepted deed, all prior promises were extinguished and the K was "merged" into the deed |
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Present Covenants
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1. Seisin
2. Right to convey 3. Against encumrances *Breached at the moment of delivery |
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Future Covenants
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1. warranty
2. quiet enjoyment 3. further assistance * Breached after the closing |
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Title covenants = *other names
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deed covenants
deed warranties |
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Title Opinions are based on:
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1. Search of public records
2. Examination of the content of the documents located as a result of the search. |
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How is a future covenant breached?
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When the granted is actually or constructively evicted by someone holding superior title
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Title Policy exception
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problem that concerns a particular parcel, which the title co discovers by searching public land records
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Title Insurance: ALTA Policy Sections
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1. Cover Page
2. Schedule A 3. Exclusions and exceptions 4. Conditions and stipulations |
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Title Policy exclusion
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a potential risk the company is unwilling to cover in ANY policy
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Title Policy Obligations
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1. Duty to defend
*pay atty fees and costs to protect owner's title 2. Duty to indemnify *compenstate owner in the case of a loss |
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Ambiguities in a title policy?
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generally interpreted in favor of the insured party
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Residential Property Def
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1. SFR
2. Condos 3. Townhomes |
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Commercial Property
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Factories, vacant land, office bldgs, etc...
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3 Steps of a real property transactions
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1. Purchase K
2. Closing 3. Title Protection |
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The Closing
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1. K is fully performed
2. Buyer pays PP 3. Seller transfers title 4. Lender advances funds |
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Purchase K sets forth:
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1. Price
2. Method of payment 3. Time of performance 4. Conditions 5. Other terms |
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During Purchase Contract State, What happens?
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1. Seller's title is examined
2. condition of property is evaluated 3. Buyer obtains financing 4. Escrow opened to consumate transaction 5. Documents are prepared |
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What documents are prepared during Purchase K stage?
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1. Deed
2. Mortgage 3. Promissory Note 4. Escrow Instructions |
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Statute of Frauds requirements
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1. Writing
2. Essential terms 3. Signature by party to be bound |
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result of failure to comply with SOF?
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K is not void. It prevents K from being enforced
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Essential Terms of SOF
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1. ID of parties
2. Price 3. Property description 4. Time frame |
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Writing def:
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anything upon which there are printed/typed written words
i.e. a negotiable piece of paper |
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Signature requirement of SOF
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signed or subscribed by party to be bound
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What if no signature on purchase K (SOF)?
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1. part performance may establish that party was bound
2. conduct of promise may be evidence the party was bound 3. party to be bound = Defendant (usually) |
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Signature Def
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affixing one's signature or legal mark anywhere on the document, to a writing with the intent to be bound thereby
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Subscription Def
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affixing one's signature to the end of the document with the intent to be bound thereby
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SOF exceptions
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Part performance
Equitable estoppel |
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Part performance (SOF). When can oral K be enforced?
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If buyer:
1. takes possession 2. pays part of PP 3. makes improvements to PIQ 4. Majority: possession AND pay or improve 5. Minority: Payment AND poss or improv |
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Equitable Estoppel
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K can be enforced if:
1. One party acted in reasonable reliance on another's oral promise 2. To his detriment 3. Serious injury would result if enforcement refused *courts usually apply if buyer sold previous home |
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Marketable Title Def
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A title reasonably free from doubt as to its validity
*buyer can buy w/o fear of litigation *If buyer would pay FMV, the title is said to be marketable *parties can defin what is marketable (freedom of K's) |
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Freedom of K's doctrine approach to marketable title
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1. Look for express provisions defind marketable title
2. If none, seller is DEEMED to have agreed to deliver a quality of title that is marketable as a matter of law |
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K promise of marketable title
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EVERY K for the sale of real property includes an express or implied promise that the seller will deliver marketable title to the buyer
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Title is unmarketable if:
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1. sellers property interest is less than the one she purports to sell
2. Seller's title is subject to an encumberance 3. Reasonable doubt as to 1 or 2 |
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Encumberance Def
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Claim or liability that is attached to the property or some other right that my lessen the propety's value.
*Encumberance cannot defeat transfer, but remains with property after transfer |
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Adverse possession: Is title marketable?
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Some JDX: unperfected title is marketable
Other JDX: not marketable |
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Disclosure - CL
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1. Seller has no duty to disclose defects
2. Caveat Emptor 3. Seller only liable if affirmatively misrepresented condition or actively conceals defes; OR 3. Owed FD to buyer |
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Doctrine of Misrepresentation
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1. Seller doesn't initially have a duty to speak, BUT
2. If buyer asks, seller has duty to be truthful 3. Misrep occurs if seller does not speak truthfully |
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Duty to disclose arises:
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1. if buyer asks a question as to condition of property
2. Seller voluntarity discloses |
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WHAT does seller have an affirmative duty to disclose?
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Defects which:
1. materially affect the value of the property 2. Are not known to buyer or readily discoverable by buyer * If seller does not disclose, seller may be charged with tort of concealment |
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Equitable Conversion Doctrine
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1. During executory period, if property is damaged or destroyed, the ECD dictates who bears the loss
2. Risk is on buyer 3. Buyer is obligated to pay PP even if property is destroyed |
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Uniform Vendor and Purchase Act
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Negates Equitable Conversion Doctrine
1. Seller retains risk of loss |
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Why do states adopt recording acts?
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To protect the current owner from losing title to a later buyer
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Are unrecorded deeds valid?
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Yes.
Recordation is important to protect the granstee from title claims made by 3d parties |
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Mother Hubbard Clause
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describing property in general language
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Bonafide Purchase doctrine
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A protected, subsequent purchaser that may adversely affect or terminate a prior interest by meeting the requirements of the act
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Recording Act: Race
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Purchaser that records first has priority
EVEN IF HE KNOWS ABOUT THE OTHER INTEREST Priority given to whoever wins the race |
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Why do states adopt recording acts?
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To protect the current owner from losing title to a later buyer
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Are unrecorded deeds valid?
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Yes.
Recordation is important to protect the granstee from title claims made by 3d parties |
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Mother Hubbard Clause
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describing property in general language
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Bonafide Purchase doctrine
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A protected, subsequent purchaser that may adversely affect or terminate a prior interest by meeting the requirements of the act
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Recording Act: Race
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Purchaser that records first has priority
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Recording Acts: Notice
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the subsequent bona fide purchaser has priority
IF HE TAKES WITHOUT NOTICE (recording not required to gain priority) |
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Recording Acts: Race-Notice
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The subsequent bona fide purchase who records first has priority
BOTH records first AND without notice |
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Effective recording
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1. Must be acknowledged for recordation
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Constructive Notice / Recordign
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document must be properly (duly) recorded to impart constructive notice
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Wild Instrument
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Any transaction that cannot be found using the required search methd
*outside the chain |
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Notice
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1. Actual Notice
2. Record Notice / constructive notice - discoverable by standard search 3. Inquiry Notice / constructive notice - could have been obtained by investigation suspicious circs |
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Zimmer Rule
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race-notice statute protects a subsequent purchaser who:
1. purchases without notice; 2. records first; and 3. all deeds in their chain of title are recorded. |
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Chain of title / deed analysis steps re: recording
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1. was recording done properly / defective?
2. was it recording before compeing deed? 3. Move through deeds, one at a time |
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Chain of title / deed analysis steps re: transfers
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1. was B a bona fide purchaser?
2. who recorded first? 3. Did B give value? 4. Was B subsequent purchaser? 5. Who recorded first? 6. Move through chain, one transfer at a time |
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Incorrect indexing?
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still provides constructive notice
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Who are protected subsequent purchasers?
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1. Grantees
2. Mortgagees 3. Deed of Trust 4. Beneficiaries Maybe: lessees, vendees, optionees |
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Who is NOT protected as a subsequent purchaser?
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1. Judgement creditors (Majority)
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Major functions of recording system
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1. Aid in determinatino of ownership
2. Aid in the preservation of documents 3. Aid in speedy transfers 4. Protect purchasers for value and certain lien creditors against prior, unrecorded interests |
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Chain of title def:
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history of ownership backward through time
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Estoppel by deed
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1. a grantor who has conveyed property to a grantee cannot later deny that he had title when he receives title from the true owner
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What are the constitutional limits on eminent domain?
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5th Am
*private property rights shall not be taken without just compensation |
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Public Use; Broad & Narrow defs
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Narrow: literally, only govt. owned
Broad: some puclic benefit regardless of who uses the land *Midkiff test: rationally related to a conceivable public use |
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Requirements for Eminent Domain
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1. For public use
2. Payment of "just compensation" |
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Just Compensation
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1. usually FMV of the thing taken
2. |
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Fair Market Value
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The price a willing seller would accept and a willing buyer would pay for a particular property on the open market
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Severance damages / Eminent Domain if a portion of the land is condemed
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owner is entitled to compensation for the severance damage to the remaining land
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Eminent Domain - Condemnation of appurtenant easments
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damages calculated using diminution in value of property that had the easement
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Regulatory Taking Def
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Government action land use reg. is too burdensome & is tantamount to a taking
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Regulatory Taking Factors
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1. Economic impact of the regulation on the owner
2. interferance with owner's reasonable investment-backed expectations 3. The character of govt. action |
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Regulatory Taking Tests
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Taking will be found if govt:
1. authorizes a permanent physical occupation 2. adopts a reg that causes the loss of all economically beneficial or productive use of land (unless justified by nuisance law) 3. Demands an exaction that has NO essential nexus to a legitimate state interest, or lacks rough proportionality to the impacts of the particular project |
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4 Temporary invasion / regulatory taking tests
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1. diminution of value
2. reciprocity of advantage 3. investment based expectations 4. essential nexxus |
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Nuisance Recovery Rule
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When a nuisance is of such a permanent nature that a single recovery can be had, there can be only one recovery
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Private Nuisance
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any wrongful act that interferes with the lawful use or enjoyment owned by an individual, a few person
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Public Nuisance
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any act that unlawfully hinders persons in the enjoyment of a common right, and causes those persons to suffer special injury different from that sustaineed by the general public
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Zoning Def
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regulation of use of land by govt. action
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Zoning Authority
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State's police power
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Proper use of police powers
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promote:
1. health 2. safety 3. welfare 4. morals of the community |
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Spot zoning
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1. singles out small parcel of land for different treatment
2. Primarily for the benefit of the private owner 3. in a matter inconsistent with the general plan for the community *Per Se Invalid |
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Variance Elements
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1. Undue hardship to affected property owner if variance is not allowed
2. Hardship was not created by the property owner 3. No undue hardship to neighboring properties if the variance is allowed |
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Conditional Use Zoning
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1. Permissive in nature
2. Hardship not a factor 3. Different / not forbiden use |
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Easement
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non possessory right to use the land of another person
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Covenants
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Private land use restrictions
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Easement implied by prior use elements
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1. severance of title to land held in common ownership
2. Existing, apparant and continuous use of one parcel for the benefit of another 3. Reasonable necessity of that use |
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Implied Easement by necessity
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1. severance of title of common ownership, and
2. strict necessity for the easement at the time of severance of the common ownership |
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Easement by prescription
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acquired by open, notorious, continuous, and adverse use.
*The owner of the servient property must have actual knowledge of its use |
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Easement by prescription Elements
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1. Exclusive use
2. open use 3. hostile use 4. continuous use |
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Easement by estoppel elements
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1. landowner allows anothe to use his land, creating a license
2. licensee relies in good faith on the license, usually by making physical improvments or incurring significant costs 3. licensor knows or reasonably should expect reliance will occur |
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Scope of easments
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measured by the parties' intent as expressed by words used, broadened by changes in manner, frequency and intenstity of intended use due to technological advances and don't reasonably burden servient estate
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