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121 Cards in this Set
- Front
- Back
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What is a Fee simple absolute?
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A FSA is the largest estate recognized by law. It can be sold,divided, devised, or inherited and has an indefinite or potentially infite duration. Today, a fee simple is presumed in the absence of express contrary intent.
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What is a Fee simple determinable?
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A FSD terminates upon the happening of a stated event and automatically reverts to the grantor. It is created by durational language, such as "for so long as" "while" during" or "until." Grantor retains possibiity of reverter.
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What is, and when does one have a possibiity of reverter?
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A grantor will automatically have possibility of reverter when she conveys a fee simple determinable. This reversionary future interest is transfereable, descendible, and devisable.
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What is a fee simple subject to a condition subsequent?
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A fee simple subject to a condition subsequent is an estate in which the grantor reserves the right to terminate the estate upon the happening of a stated event. Grantor has a right of termination (right of entry). Most states agree that the right is devisable. All states -- descendible.
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What is a fee simple subject to an executory interest?
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If a fee simple estate terminates upon the happening of a stated event (b/c it is determinable or subject to a condition subsequent) and then passes to a thrid party rther than reverting to the grantor or giving the grantor a right to terminate, the third party has an executory interest.
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What is a fee tail?
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The fee tail is an estate where inheriability is limited to lineal heirs. It is created by the word " To B and the heirs of his body." (eliminated in most jxd - fee simple presumed.)
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What is a life estate?
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A life estate is one measured by the life or lives of one or more persons.
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What is a life estate pur autre vie?
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A life estate "pur autre vie" is measured by a life other tha the grantee's. A life estate pur autre vie also results when the life tenant convenys his ife estate to another.
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what is the "doctrine of waste" under the rights and duties of a life tenant?
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While life tenant is entitled to an ordinary uses and profits of the land, but cannot do anything that injures the interests of a remainderman or a reversioner. A future interest holder may sue for damages or to enjoin such acts.
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What is the open mines doctrine, or "affirmative Waste of natural resources?"
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Exploitation of natural resources by a life tenant is generally limited to situations when: 1. necessary for repair or maintenance of the land; 2. land is suitable only for such use. or 3. it is expressly or impliedly permitted by the grantor. Under the open mines doctrine, if mining was done on the land prior to the life estate, the life tenant can continue mining--but is ltd to mines already open.
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What is permissive waste?
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Permissive waste occurs when a life tentant fails to protect or preserve the land. A life tenant is obligated to: 1. preserve the land and structures in a reasonable state of repair; 2. pay interrest on mortgages (not principal) 3. pay ordinary taxes on the land and 4. pay special assessments for public improvements of short duration.
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What is ameliorative waste?
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Ameliorative waste is a change that benefits the property economically. This waste was actionable at common law, but now a life tenant may alter or demolish existing buildings if :1. The mkt value of te future interests is not diminished. and either:
2. remainderman does not object or 3. A substantial and permanent change in the neighborhood conditions has deprived the property in its current form of reasonable productivity or usefulness. |
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What happens when a life tentant renounces her life estate?
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If a life tenant who receives the estate by will or intestacy renounces his interest, the future interest following the life estate is generally accelerated so that it becomes immediately possessory.
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Are reversionary interests subject to the Rule against perpetuities?
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All reversionary interet are vested and thus not subject to the RAP.
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What is a remainder?
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A remainder is a future interest ina a 3rd person that can become possessory on the natural expiration of the preceding estate. It cannot divest a prior estate, and it cannot follow a time gap after the preceding estate. A remainder must be expressly created in the instrument creating the possessory estate. ** never follows a fee simple.
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What is an indefeasibly vested remainder?
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A vested remainder is one created in an existing and ascertained person, and not subject to a condition precedent. The remainderman has a rght to immediate possession upon normal termination of the preceding estate. An indefeasibly vested remainder is a vested remainder that is not subject to divestment or diminution.
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What is a Vested remainder subject to open? (VRSTO)
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A VRSTO is a vested remainder created in a class of persons (eg children) that is certain to become possessory, but is subject to diminution by the birth of additional persons who will share in the remainder as a class.
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What is a vested remainder subject to a total divestment (condition subsequent)?
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A vested remainder subject to total divestment is subject to a condition subsequent. "To be for life, then to C and his heirs, but if C dies unmarried, then to D and his heirs."
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What is a contingent remainder?
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A contingent remainder is a remainder that is created in an unborn or unascertained person, or subject to a condition precedent.
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What is an executory interest?
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An executory interest is a future interest in third parties that either divest a transferee's preceding freehold estate (shifting interest) or follow a gap in possession or cut short a grantor's estate (springing interest).
Executory interests are not vested and are subject to the RAP. Executory interests are not destructible. |
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What future interests are reachable by creditors?
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ANy future interest that is transferable is subject to involuntary transfer (reachable by creditors).
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What is the rule of convenience?
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Under the rule of convenience, in the absence of express contrary intent, a class closes when some member of the class can call for distribution (vested remainder subject to open, class gifts)
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What is a class gift?
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A "class" is a group of persons having a common characteristic. The share of each member is determined by the number of persons in the class. A class gift of a remainder may be vested subject to open or contingent (where all group members are unascertained)
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IS survivorship required for a member of a class to receive a class gift neccessary?
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Survivorship of a class member to the time of closing is not necessary to share in a future gift-unless survival is an express condition. Ther can be an implied survivorship condition with words like (heirs, issue etc)
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What is the rule against perpetuities?
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No interest in property is valid unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest. Interests not vesting w/in 21 years of a life in being are void.
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When does the perpetuities period begin to run?
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1. interests granted by will-at testator's death
2. Interests granted by deed -- at date of delivery 3. irrevocable trusts-creation 4. revocable trusts-date the trust becomes revocable. |
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When does an interest vest for the RAP?
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An interest vests when it becomes possessory or an indefeasibly vested remainder or a vested remainder subject to total divestment.
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What interests are exempt from the RAP?
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vested interests (except vested remainders subject to open): reversions, possiblities of reverter, and rights of entry
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What are the statutory reforms to RAP in Ohio?
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Ohio applies the 90 year wait and see rule, as well as the doctrine of Cy pres.
If the interest vests or fails within the 90 year period, the interest is good. If it does not, it is void. |
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What is the rule against restraints on alienation?
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Generally, any restriction on the trasferability of a legal (not equitable) interest is void.
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What is a joint tenancy?
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A joint tenancy is is an estate in land held concurrently by 2 or more persons, with right of survivorshiop. The common law requires four unities-time, title, interest, and possession to create a joint tenancy.
That is, the joint tenants must take identical interests, at the same time, by the same instrument, with the same right to possession. |
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What is the presumed concurrent estate?
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A conveyance to two or more persons is presumed to be a tenancy in common (no right of survivorship, different intersts permitted)
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How is the right of survivorship severed in a joint tenancy, creating a tenancy in common?
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1. Inter vivos conveyance (destroys transferor's JT)
2.agreement of joint tenants 3. murder of one co-tenant by another 4. simultaneous deaths of co-tenants 5. by partition |
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What are the rights and duties of co-tentants?
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1. Possession: each co-tenant has the right to possess all portions of the property, but no exclusive possession of any part. 2. A co-tenant in possession has the right to retain profits from her use of the property 3. ..Can encumber her interest, but not the interests of another co-tenant4. right to judicial partition in kind or by sale 5. contribution for repairs and taxes/mortgages 6. duty of fair dealing
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What is a tenancy for years?
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A tenancy for years continues for a fixed period of time, and usually created by written lease. Tenancy for years ends automaticaly at its term. date.
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How else is a tenancy for years terminated, other than by date of expiration?
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A tenancy for years can be terminated by right of entry (if reserved by landlord) for breach of lease covenants, such as non-payment of rent. Can also be terminated by surrender if tenant surrenders and LL accepts.
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What is a periodic tenancy?
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A periodic tenancy continues for successive periods until terminated by proper notice by either party.
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How may a periodic tenancy be created?
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1. Express Agreement
2. Implication or 3. Operation of law |
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what is a tenancy at will?
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A tenancy at will is terminable at the will of either the landlord or tenant. Generally, a tenancy at will must be created by an express agreement that the lease can be terminated at any time. Otherwise, will be treated as a periodic tenancy if rent is periodically paid.
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What is a tenancy at sufferance?
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A tenancy at sufferance arises when a tenant wrongfully remains in possession after the expiration of a lawful tenancy, and lasts until the LL takes steps to evict tenant
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What is the hold-over doctrine?
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If a tenant continues in possession after his right to possession has ended, the LL may: evict him or bind him to a new periodic tenancy. Terms of expired tenancy control, but if the LL gives notice of rent increase before prior lease expires, the tenant, by holding over is held to have acquiesced to the new terms.
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What are the duties of the tenant?
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1. Duty to repair
2. Duty to not use the premises for illegal purpose 3. Duty to pay rent |
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What is a LL's remedy for a Tenant's failure to pay rent?
What is a LL's remedy for tenant abandonment of leased property? |
1: 1. Eviction or
2. Sue for rent 2: 1. Do nothing or reposses * modern view of duty to mitigate damages and attempt to relet the premises |
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What is the general rule for LL's duty to repair or maintain premises?
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Generally, a LL has no duty to maintain or repair leased premises, absent modification by the lease, statute or the implied warranty of habitability.
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How is tenant's quiet enjoyment and possession of premises beached by the LL?
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1. Acutal eviction-occurs when LL excluded tenant from the entrie leased premises (terminates oblig. to pay rent)
2. Partial eviction-occurs when tenat is physically excluded from only part of the leased premises. (done by LL - term. oblig. to pay rent; paramount titleholder-apportionment of rent 3.Constructive eviction-occurs when LL does something that renders the property uninhabitable; if tenant vacates within a reasonable time, tenant may term. lease and seek damages. |
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What is the implied warranty of habitability?
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(res. leases; non-waivable) The LL's duty is tied to standards of local housing codes. In the event of a breach, the tenant may : 1.terminate lease
2. make repairs & deduct costs from rent pmt 3. abate the rent to an amt = to fair rental value in view of the defects or 4. remain in possession, pay full rent, and sue for damages |
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What is a retaliatory eviction?
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A LL may not terminate a leae or otherwise penalize a tenant in retaliation for the tenant's exercise of her legal rights, indlucing reporting housing or building code violations. Presumed retaliatory if w/in (90? or 180 days of complaint) presumption may be rebutted by shoing nonretaliatory reason for action.
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1. What is an assignment of a lease?
2. What is a sublease? |
1. complete transfer of the entire remaining term of a lease
2. A transfer of a portion of the remaining term of lease, where tenant retains a portion of the remaining term. |
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What are the consequences of assigning a lease?
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n assignee stands in the shoes of the original tenant in a direct relationship with the LL--they are in privity of estate, and each is liable to the other on all covenants that "run with the land"
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What convenants "run with the land?"
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A covenant runs with the land of the oringial parties to the lease so intend and if the covenant "touches and concerns" the land (burden LL, benefits tenant (and vice versa) wrt their interests in the property.**rent covenant runs with the land.
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What are the consequences of being a sublessee?
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(no privity w/ LL)A sublessee is the tenant of the original lessee and usually pays rent to the original lessee who then pays the LL. A sublessee is not personally liable to the LL for rent or perfomrance of any of the covenants in the main lease unless the sublessee expressly assumes the covenant
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How are covenants against assignment or sublease treated?
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Lease covenants restricting assignment and sublease are strictly construed against the LL; a covenant prohibiting assingment does not prohibit subleasing and vice versa.
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1. Can a covenant against assignment be wiaved?
2. What happens if a tenant transfers in violation of lease? |
1. Yes. A valid covenant against assignment is considered waived if the LL was aware of the assignment and did not object.
2. The transfer is not void; L may terminate the lease or sue for damages |
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What is the rule for condemnation of leaseholds (eminent domain rule).
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If the entire leasehold is taken by eminent domain, the tenant's liability for rent is extinguished. The lessee is entitled to compensation. HOwever, if the taking is temporary or partial, the tenant is not discharged from the rent obligation, but is entitled to compensation (share of condemnation award)
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When does a LL have a duty to make a premises safe?
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1. Latent defect-at time of lease, the LL knows of a dangerous condition that the tenant could not discover by reasonable inspection, LL must disclose it.
2. Public use-LL is liable for injuries to members of the public if, at the time of the lease, he knows or should know of a dangerous condition, has reason to believe the tenant may admit the public before repairing, and he fails to repair. 4. Negligent repair 5. Furnished short term residence -- liable for any defect in premises 6. General duty of reasonable care (modern view |
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What duty of care does the tenant owe to 3rd persons?
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See torts. landowner/ occupier rules.
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What is a fixture?
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A fixture is a chattel that has been so affixed to land that it has ceased being personal property and has become part of the realty. A fixture passes with the ownership of the land. Test for fixture:
1. Objective intention of the annexing (attaching) party 2. nature of the article 3. manner of attachment 4. damage caused by removal 5. adaptation of the item to the use of realty. *LL tenant relationship-tenant lacks intent to improve the property permanently, and may remove annexed chattels, but must repair damages caused by removal. |
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What is an easement?
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An easement holder hs the right to use another's tract of land for a special purpose, but has not right to possess or enjoy that land. An easement is presumed to be of perpetual duration unless the grant specifically limits the interest.
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What is an affirmative easement?
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An affirmative easement is one where the holder is entitled to make affimative use of the servient tenement.
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What is a negative easement?
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A negative easements entitle the holder to compel the possessor of the servient tenement to refrain from engaging in an acctivity on the servient state (building a structure in excess of 3 stories etc) and are generally confined to easements for 1. light 2. air 3. support 4. flow of an artificial stream (anything else usually a restrictive covenant)
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What is an easement appurtenant?
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An easement appurtenant benefits the holder in his physical use or enjoyment of another tract of land. There must be two tracts: the dominant tenement (benefited by easement) and servient ten. (burdened). An easement appurtenant passes with the transfer of the benefited land, regardless of whether it is mentioned in the conveyance. The burden passes w/ the servient estate, unless the new owner is a bona fid purchaser w/ no actual or constructive notice of the easement.
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What is an easement in gross?
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The holder of an easement in gross acquires a right to use the servient tenement independent of his possession of another tract of land-the easement benefits the holder rather than another parcel. An easement in gross for the holder's personal pleasure (eg swim in A's pond) is not transferable. But one that serves an economic or commercial interest is transferable.
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How are easements created?
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1. express grant (must be in writing unless < 1 year. Must comply w/deed requirements.
2. Express reservation-happens where grantor conveys title to the land, but reserves the right to continue to use the tract for special purpose. 3. Implication -- exception to the SOF 4. precription-Acquiring an easement by presecription is analogous to acuiring property by advers possession. |
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When may an easement be implied?
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An easement may be implied if:
1. Prior to the division of a single tract 2. Apparent and continuous use exists on the servient part 3. That is reasonably necessary for the ejoyment of the dominant part, and 4. The court determines that the parties intended the use to continue after division of the land. B. Easement by necessity - an esement by necessity arises when a landowner sells a portion of his tract and by this division deprives one lot of access to a public road or utility line. The owner of the servient parcel has the right to locate the easement, as long as the location is reasonably convenient. An easement by necessity terminates when the necessity terminates. |
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How does one acquire an easement by prescription?
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Acquiring an easement by prescription is analogous to acquiring property by adverse possession. To acquire a prescriptive easement, the use must be:
1. Open and notorious 2. adverse 3. Continuous and uninterrupted 4. For the statutory period. *generally cannot be acquired in public land. |
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How may a servient estate be used? Who makes repair of an easement?
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1. The servient owner generally may use her land in any way she wishsed so long as her conduct does not interfere w/ perfromance of the easement.
2. Easement holder make repairs if he is the sole user. If used by both parties, then the court will apportion costs. |
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How may an easement be terminated?
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1. Stated conditions
2. Unity of ownership-same person acquires ownership of the easement and servient estate. 3. Release-terminated by deed of release from the owner of the easement to the owner of the servient tenement. 4. Abandonment-physical action by holder demonstrating intent to abandon permanently. 5. Estoppel 6. prescription 7. Necessity 8. Condemnation and destruction |
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What is a license?
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A licenses privilegs a holder to go upon the land of another. But unlike an easement, a license is not an interest in land, it is merely a privilege, revocable at the will of the licensor. A license is person to the licensee and thus, inalienable. Any attempt to transfer a license results in revocation by operation of law. Failed attempt to create an easement results in a license. (oral creation of an easement for > 1 year)
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When does a license become irrevocable?
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A license becomes irrevocable:
1. Estoppel - if a licensee invests substantial amts of money or labor in reliance on the license, the licensor is estopped to revoke, and the license becomes an easement by estoppel, until the holder receives benefit enough to reimburse. 2. License couple with an interest |
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What is a real covenant?
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A real covenant, normally found in a deed, is a written promise to do somehting on the land (maintain a fence) or a promise not to do something on the land). Real covenants run w/ the land at law, which means subsequent owners may nforce or be burdened by the covenant.
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When does the burden of a real covenant run with the land?
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If the following are met, any successor in interest to the burdened estate will be bound by the covenant as if she expressly agreed to it:
1. Intent for sucessors in interest to the covenantor be bound by covenant 2. Notice-subsequent purchaser for value must have had actual, inquiry, or record notice of the arrangement at the time of purchase 3. Horizontal privity - at the time the promisor entered into the covenant w/ the promisee, the 2 must have shared some interest in the land independent of the covenant 4. vertical privityTo be bound, the successor in interest to the covenanting party must hold the entire durational interest held by the covenantor at the time he made the covenant 5. Touch and concern - must either restrict the holder of the servient estate of his use of the burdened parcel, or require the holder of the servient estate to do something increasin his obligations in connection w/ his enjoyment of the land. |
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What are the requirements for the benefit of a restrictive covenant to run with the land?
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If met, the promisee's successor in interest may enforce the covenant
1. Intent-covenanting parties must have intended that the successors in interest to the covenantee be bound by the terms of the covenant. 2. Vertical privityThe benefits of a covenant run to any succeeding possessory estate 3. The benefit of a covenant touches and concerns the land if the promised performance benefits the covenantee and her successors in their use and enjoyment of the benefited land. |
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What is the remedy for breach of a real covenant?
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A breach of a real covenant is remedied by an award of money damages, collectible from the D's general assets. If an injunction is sought, the promise must be enforced as an equitable servitude, rather than a real covenant.
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How may a covenant be terminated?
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As with all other nonpossessory interests, a covenant may be terminated by: 1. a written release 2. the merger of the benefited and burdened esttes, or 3. the condemnation of the burdened property.
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What is required for adverse possession?
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If an owner of real property does not, within the statutory period, take action to eject a possessor who claims adversely to the owner, the title vests in the possessor.
To establish title by adverse possession, the possessor must show 1. an actual entry giving exclusive possession that is 2. open and notorious, 3. adverse and under a claim of right and 4. continuous throughout the statutory period. |
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what is the effect of a landowner's disability on adverse possession?
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the statute of limitations does not begin to run if the true owner was under some disability to sue when the COA first accrued (minority, imprisonment, insanity)
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When does the statutory period for adverse possession begin to run against a holder of a future interest ?
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When the interest becomes possessory.
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What if required for a contract for the sale of land?
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A K must be in writing and contain the signature of the party to be charged and the essential terms (description of the land, parties to the K, price and manner of payment, etc). Part performance- ie, possession/substantial improvements, pmt of purchase price-- 2 of the above) can take the contract out of the statute of frauds.
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What is the doctrine of equitable conversion?
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Under the doctrine of equitable conversion, once a K is signed, equity regards the buyer as the owner of the real property. The seller's interest is considered personal property. The bare legal title that remains in the seller is considered to be held in trust for the buyer. the right to possession follows the bare legal title, however; thus the seller is entitled to possession until closing.
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What happens if a property is destroyed before closing?
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If a property is destroyed before closing, the majority rule places the risk on the buyer.
Additionally, if the seller has insurance on the property, and collects insurance proceeds on the property prior to closing, allowing him to keep the proceeds and the full purchase price would result in unjust enrichment. Generally, courts require the seller to give the buyer credit against the purchase price in the amount of the insurance proceeds. |
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What happens if a party to a land sale K dies before the K is completed?
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Under the doctrine of equitable conversion, if a party to a land sale contract dies before the contract is completed, the seller's interest passes as personal property and the buyer's interest passes as real property. Thus, if the seller dies, bare legal title passes to his heir or devisees, but they must give up the title to the buyer at clsoing. If the buyer dies, his heirs or devisees can demand converyance of the land at closing.
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What is the requirement of Marketable title?
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Every contract contains an implied warranty that the seller will provide marketable title (title reasonably free from doubt) at closing. It need not be perfect title, but it must be free of questions that present an unreasoanble risk of litigation.
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what are some specific instances of unmarketable title?
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1. Defects in the record chain of title (ie, variation in land description in deeds, defectively executed deed, evidence that a prior grantor lacked capacity to convey)
2. Adverse possession - title acquired by .. 3. Future interests held by unborn or unascertained parties. 4. Encumbrances - mortagages, liens, restricctive covenants, easements, and significant encroachments 5. existing violation fo zoning ordinance |
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At what time does the seller have to furnish marketable title?
What is the remedy if title is not mktable? |
1. If the seller has agreed to furnish title at the date of closing, the buyer cannot rescind piror to that date on grounds that the seller's title is not marketable.
2. The buyer must notify the seller that his title is unmarketable and give him reasonable time to cure the defects. If not cured, the buyer's remedies include rescission, damages, specific performance with abatement and a quiet title search. If closing occurs, the K and deed merge, nad the seller's liability on the implied K'al warranty ends. |
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Is a closing date absolutely binding?
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Courts presume that time is not of the essence in real estate K's. Thus, the closing date is not absolutely binding, and a party late in tendering her own performance can enforce the K if she tenderes w/in a reasonable time after the closing date. However, time is of the essence if: the K states, the circumstances indicate that was the parties' intent, or one party gives the other notice that time is of the essence.
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When is a party's tender of performance under a land sale K excused?
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A party need not tender performance if the other party has repudiated the K or it is impossible for the other party to perform (ie,unmarketable title that cannot be cured)
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What are the remedies for breach of a land sale k?
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The non breaching party is entitled to damages, or specific performance. If a buyer wishes to proceed despite unmarketable title, she can usually get specific performance w/ an abatement of the purchase price. A seller may be entitled to the buyer's "earnest money" if the buyer defaults in performance, as liquidated damages (if reasonable in light of the seller's anticipated and actual damages.
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Do contracts of sale and deeds of real property carry an implied warranty of quality or fitness for purpose?
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Not generally. However, a majority of courts recognize a warranty of fitness or quality in the sale of a new house.
The Warranty implied is that the new house is designed and constructed in a reasonably workmanlike manner and suitable for human habitation. |
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When is a builder liable for negligence?
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A person may sue a builder for negligence in performing a building contract. Some courts permit the ultimate vendee to sue the builder despite lack of privity
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For what defects in a property may a seller of an existing building be liable for ?
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The seller of existing buildings may be liable to the purchaser for defects such as leaky roof, flooding basement, or termite infestation based on fraud, active concealment or failure to disclose the latent defect. A general disclaimer of liability in the K will not overcome these claims. However, a disclaimer that is specific to the defect is likely to be upheld.
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When does a real estate broker earn his commission?
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Traditionally, a real estate broker earned a commission when they produced a buyer who was ready, willing and able to purchase. However, a commision is now only awarded if the sale actually closes or if it fails to close b/c of the fault of the sller.
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What are the requirements for formation of a deed?
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A deed must be in writing, evidencing an intent to transfer realty, signed by the grantor, and must reasonably identify the parties and land.
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What happens when a deed is defective?
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A void deed will be set aside by the court even if the property has passed to a bona fide purchaser, but a voidable deed will be set aside only if the property has not passed to a bona fide purchaser. Void deeds include those that are forged, never delivered or obtained by fraud in the factum. (grantor deceived and did not realize that she was executing a deed.) Voidable deeds include those executed by minors or incapacitated persons, and thse obtained through fraud in the inducement, duress, undue influence, mistake, and breach of fiduciary duty.
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What is a fraudulent conveyance, and what is the result of a fraudulent conveyance?
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Even when a deed complies with the required formalities, it may be set aside by the grantor's creditors Under the Uniform Fraudulent Conveyances act (adopted by most states) if it was made:1. with the actual intent to hinder, delay, or defraud any creditor of the grantor, or 2. without receiving a reasonably equivalent value in exchange for the transfer, and the debtor was insolvent or became insolvent as a result of the transfer. However, the deed will not be set aside as against any grantee who took in good faith and paid reasonably equivalent value.
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When does a real estate broker earn his commission?
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Traditionally, a real estate broker earned a commission when they produced a buyer who was ready, willing and able to purchase. However, a commision is now only awarded if the sale actually closes or if it fails to close b/c of the fault of the sller.
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What are the requirments for formation of a deed?
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A deed must be in writing, signed by the grantor, and must reasoanbly identify the parties and lad.
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What happens when a deed is defective?
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A void deed will be set aside by the court even if the property has passed to a bona fide purchaser, but a voidable deed will be set aside only if the property has not passed to a bona fide purchaser. Void deeds include those that are forged, never delivered or obtained by fruad in the factum. (grantor deceived and did not ealize that she was executing a deed.) Voidable deeds include those executed by minors or incapacitated persons, and thse obtained through fraud in the inducement, duress, undue influence, mistake, and breach of fiduciary duty.
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What is a fraudulent conveyance, and what is the result of a fraudulent conveyance?
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Even when a deed complies with the required formaliites, it may be set aside by the grantor's creditors if it was made:1. with the actual intent to hinder, delay, or defraud any creditor of the grantor, or 2. without receiving a reasonably equivalent value in exchange for the transfer, and the debtro was insolvent or became insolvent as a result of the transfer. However, the deed will not be set aside as against anygrantee who took in good faith and paid reaosnably equivalent value.
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What is the order of priority for conflicting or inconsistent descriptions?
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1. Natural monuments; artifiical monuments; courses (angles); distances; name; and quantity.
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When will a deed be reformed?
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A deed will be reformed if it does not represent the parties' agreement b/c of : 1. mutual mistake 2. scrivener's error or 3. a unilateral mistake caused by misrepresentation or other inequitable conduct.
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What happens when a deed is made to a dead person?
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A deed to a dead person is void and coveys no title. The fact that the grantor was unaware of the grantee's death is irrelevant. Title remains in the grantor.
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What is delivery and how is it satisfied?
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Delivery refers to the grantor's intention to make a deed presently effective even if possession is postponed. Delivery may be satisfied by manual delivery, notarized acknowledgment by the grantor, recording, or anything else showing the grantor's intent to deliver. Parol evidence is admissible on the issue of intent to deliver, but not to show that delivery was conditional.
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What happens to title upon delivery?
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Title passes upon deliver. It cannot be canceled or taken back. To return title to grantor, a new deed must be drawn up and delivered to the grantor.
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What happens when a grantor retains control or interest?
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This indicates lack of intent to pass title. Thus, if a grantor executes a deed but does not deliver it during his lifetime, no title passes. Failure to record a delivered deed does not affect the passage of title even if the parties believe that the deed is ineffective until recording.
* A properly executed and delivered deed that provides that title will not pass until the grantor's death is valid and creates a future interest in the grantee. 2. If a deed is absolute on its face but delivered w/ an oral condition, the condition is disregarded and the delivery is absolute. |
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When is delivery to a third party a valid delivery of a deed (with no conditions)?
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If the grantor gives a deed to a third party with instructions to give it to the grantee there is a valid delivery. This is a true escrow situation--true conditional delivery. If the grantor fails to give instructions, the determination of the validity of the delivery will depend on the grantor's intent and on whether the third party could be considered the grantor's agent. If the third party is found to be the grantor's agent, the grantor will have retained the power to recall the deed, and no valid delivery has occurred.
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When is a transfer to a third party with conditions a valid delivery?
When can the grantor revoke? |
A valid conditional delivery occurs when a grantor gives a deed to a third party with instructions to give it to the grantee when certain conditions occur (eg, if grantee pays the purchase price bbefore a certain date. Parol evidence is admissible to show that delivery is conditional.
2. A grantor can revoke only if :1. the condition has not yet occurred and 2. There is no enforceable written contract to convey. |
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What happns if a grantee breaches escrow conditions?
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If a grantee wrongfully acquires the deed from the escrow holder prior to performance of the condition, title does not pass and the grantee cannot give good title to a subsequent purchaser.
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What is acceptance?
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Acceptance by the grantee is required in order to complete a conveyance. Most states presume acceptance. Acceptance relates back to the date the deed was delivered into escrow,unless this would defeat the right of intervening third parties.
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What is dedication?
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Land may be transferred to a public body (eg. city, county) by dedication. An offer may be made by written or oral statement, submission of a map or plat showing the dedication, or opening the land for public use. To e effective, a dedication must be accepted, which may be done by formal resolution, approval of map or plat, or actual assumption of maintenance or improvements.
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What are the usual covenants contained in a general warranty deed?
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1. Covenant of seisin
2. Covenant of rights to convey 3. Covenant against encumbrances 4. Covenant for quiet enjoyment 5. Covenant of warranty 6. Covenant for further assurances |
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What happens upon breach of the covenants?
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See page 50 of conviser.
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What is the requirement for successors of the original promissee and promisor to enforce an equitable servitude?
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For successors of the original promisee and promisor to enforce an equitable servitude, the coventanting parties must have intended that the servitude be enforceable by and against assignees. Additionally, the servitude must "touch and concern the land". Finally, for the burden to run, a subsequent purchaser of land burdened by a covenant must have had actual or constructive notice of the covenant when she acquired the land. (Benefit requires only intent and touch and concern).
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What equitable defenses are available against enforcement of an equitable servitude?
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1. Unclean Hands
2. Estoppel 3. Acquiescence |
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What is the Boundary Line Agreement doctrine?
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Where a boundary line is fixed by agreement of the adjoining landowners, but later turns out not to be the true line, most courts will fix ownership as per the agreed line provided it is shown that 1. There was uncertainty as to the true line and the agreed line was established (agreed upon), and 3. there has been a lengthy acquiescence to the agreed line by the adjoining owners/successors. Original uncertainty must be established, otherwise, in a court's view, a parol transfer of land would result.
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When may adverse possession by different individuals be "tacked"?`
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There need not be continuous possession by the same person for title to pass by adverse possession. An adverse possessor can take advantage of the period of adverse possession by her predecessor, as long as she is in privity (took land by descent, devise, or deed purporting to convey title) with the previous adverse possessor.
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When will a seller of a property be held liable for failure to disclose defects in a sold property?
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A majority of state now hold sellers liable for failure to disclose defects if :
1. The seller knows or has reason to know of the defect 2. The defect is not obvious or apparent and the seller realizes that the buyer is unlikely to discover it by ordinary inspection and; 3. The defect is serious and would probably cause the buyer to reconsider the purchase if it were known. |
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When will a court imply a negative reciprocal servitude?
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In the case of a residential neighborhood, most courts will imply “reciprocal negative servitudes” on lots that do not contain the written promise in their deeds if 1. a developer has a common scheme calling for the development of all of the lots in the same character and 2. the owners of the lots and their successors have notice of the covenants. The common scheme must exist at the time the developer sells the first burdened lot. The notice may be actual, record, or inquiry. The owner or successor has actual notice if he actually knows about the covenant. If the covenant is in the owner or successor’s deed or chain of title, he has record notice by operation of law. Inquiry notice is notice that the owner or successor would have b/c of the visible character of the subdivision.
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What is a covenant?
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A covenant is a promise to do or not do something on the land. Covenants may be characterized as either real covenants or equitable servitudes. If a party is suing for money damages for breach of a covenant, he must show that the covenant qualifies as a real covenant. If a party is seeking an injunction, he or she must show that the covenant qualifies as an equitable servitude, which is enforceable in equity.
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When is a conditional delivery of a deed to a third party in a donative transaction valid?
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When the conditions are unrelated to the grantor's death, the delivery of a deed with conditions for delivery to the grantee to a third party is irrevocable, even without a valid contract to convey. Courts have held that such a delivery creates a "springing future interest in the grantee", and such a finding makes the delivery irrevocable.
When the condition is the grantor's death,"", most courts hold that the grantor cannot get her deed back because her intent was to presently convey a future interest to the grantee (remainder w/ life estate in grantor). This means that the gift is inter vivos and not in conflict with the statute of wills. * Must show that the grantor's intent that the deed be operative immediately to convey a future interest. |
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Review pages 84 0 85
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84-86
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Pages87 - 94
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87 - 94
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