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Property Ii Outline

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This is an extract of our Property Ii document, which we sell as part of our Property II Outlines collection written by the top tier of Thomas Jefferson School Of Law students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Property II Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:







Voluntary inter-vivos transfers of title interests in land Volutary - willing buyer and willing seller Inter-vivos - btwn. living people Interest - outright interest (deeds, K's), easements, covenants, must be in writing or subject to SOF Want to keep land alienable (transferable)


Land Transactions o Examine timeline to see where the issue falls and what remedy will be taken 1) Pre-K negotiations Offer, counter offers2) K signed
? 1st legally significant event
? Binding agreement subject to SOF
? Break of K if a party walks away?

3) Escrow Opens Period of time before deal is closed Neutral 3rd party between buyer and seller 4) Escrow Period
? Parties negotiate time - usually 30-90 days
? 3rd party collects money, deed, contract, all documents
? Building inspections, surveys, title search done by title company looks for easements, conditions, covenants, leans, loan arrangements, bank for buyer puts check in, seller puts the signed deed??

5) Close of Escrow 2nd legally significant event Transfer of title subject to SOF
$ goes to seller, deed to buyer K is closed 6) Post-Deed Claims
? Addt'l claims made against deed
? Claim and remedy are completely different depending on when the problem is found
? Before escrow closes = contract problem, different remedy
? After escrow = deed based claim, different remedy o Merger Doctrine
? K is closed when deed is delivered & escrow closes
? Sales K merges into deed once deed has been accepted
? K based claims can no longer be sued on once the deed has been transferred
? Marketable title - K based claim, must be done during escrow before deed accepted
? Once deed delivered, suit for title defects must be based on the type of deed, not K

Other claims that are independent of the contract (such as duty to disclose physical defects in the property) that can be brought after the K has merged into the deed
? * Be sure to I.D. right cause of action in the timeline CONTRACT OF SALE o Statute of Frauds
? 2 Requirements

* Agreement of transfer (K) must be in writing

* Transfer itself (deed) must be in writing*???

Leases over 1 yr. must be in writing - less can be oral Can be oral K - no oral deed - SOF issues mainly with K's Person who wants out of K will raise SOF

* Contest invalid K Party who wants K will claim exception to SOF to make K enforceable K must contain:

* Description of property

* Signature of parties to be bound (buyer & seller) o Don't know before the fact who the party to be bound is o When dispute arises - the person trying to get out of the K

* Price o If agreed upon or FMV (not in all jur.) Exceptions

* Part Performance o Acts + Irreparable Injury
? Party that wants K enforced will raise
? Trying to prove existence of K w/out writing
? Acts weird unless there was K
? Acts

* Paying $

* Major improvements to property

* Taking possession of property
? Irreparable Injury

* K not enforced - party irreparably injured

* Acts have changed party's position & can't change it back o Can't undo improvements or give $ back


Estoppel o Justifiable detrimental reliance
? Reliance

* Party acted in reliance of K (same acts as PP)
? Detrimental

* Gave up something can't get back (time, $)

* If K not enforced, can't recover
? Justifiable

* Party must show their acts were reasonable

* Look at the other party's actions

* Did the other party know what you were doing?

* Did they stop you?

* If they knew and did nothing, your actions are justifiable
? Unconscionable injury from denying enforcement of the oral K

after one party has been induced by the other seriously to change his position in reliance on the K o

Marketable Title
? *Seller's implied promise in the K that the title will be free from reasonable doubt at the close of escrow???


K based claim - during escrow, discovered during inspection or title search Free from reasonable doubt

* Title will not likely lead to litigation (small problems ok) Encumbrances

* Physical o Easement, covenant

* Financial o Gov't has tax lien, mortgage, deed of trust Want rescission

* Position before the K

* Restitution ($ back) If something is discovered:

* Alert seller or agent

* Tell seller -want it taken care of

* Seller can renegotiate price, take care of it, release from K, take it or leave it

* If seller cannot get rid of a physical easement, buyer has option to walk away

* Do not close escrow until taken resolved AP

* Buyer claims seller cannot deliver MT b/c record does not show the seller owns the property

* Seller claims to have gotten title by AP

Seller must prove to the satisfaction of the court that the seller actually got title by AP

Duty to Disclose Defects
? * Sellers are obligated by law to disclose known latent material defects?Physical defects

* Within house

* Area or neighborhood

* Noise o Subjective
? Seller knows buyer has particular problem w/noise
? Buyer works graveyard, seller knew needed quiet day o Objective
? Flight path
? Would an ordinarily reasonable person be bothered?
C/L Rule

* Benefits landlord/landowner

* If the subject never came up, the seller had no duty to disclose

* Seller cannot lie/misrepresent if buyer asks

* Seller did not have obligation to disclose Modern Rule (majority)

* Benefits tenant/buyer

* Seller does have a duty to disclose defects



Defect must be known to seller (or should have known) Must be latent

* Inspection should uncover obvious defects Must be material

* Significant, substantial, lot of $ to fix

Implied Warranty of Quality (IWQ)
? * The implied promise by the builder in the K that the residence is built to standards of workmen like quality???

Local standards/codes, customary standard for workmen

* Homes/residences

* Sale of new or remodeled property

* Construction defect Original buyers can always sue builder Can later purchasers?

* No - no privity of K Modern

* Yes - stand alone warranty, should affect any subsequent purchaser for a period of time Exceptions

* Must be brought to builder's attention w/in reasonable amount of time (CA - 10)

* Must be latent

* Burden of proof is on P to show that defects were cause by builder

oRemedies for Breach of Sales K Buyer forfeits the good faith deposit

oRemedies for Breach of Real Estate Sales K Specific Performance

* Equitable remedy

* Land is unique - $ is inadequate compensation Rescission

* Seller breaches, buyer may rescind, recover all payments made and depart

* Buyer breaches, seller may rescind and sell to another party Damages

* Benefit of the bargain

* Sometimes limited to out of pocket losses?


The Deed o Transfers property interest of the property from one party to another o Requirements
? Written document (never oral)
? Names (grantor, grantee)
? Description of property

* Street address

* Legal description in court recorders

* Problems arise when property is described diff. ways
? Words of grant (to know what's being transferred)
? Signature (grantor)
? Other

* Seal (no longer required) o Consideration (bargained for exchange) not required for transfer
? If consideration was paid, state in deed o Rebuttable presumption that there is a good faith/bonafide purchaser o Forgery
? Stolen/forged deed is void
? Even if 3rd party is innocent
? 3rd party will have a suit against whoever forged/stole o Fraud (Yes)
? Seller turned the deed over voluntary, but they did it b/c purchaser misrepresented
? Then transfer to innocent 3rd party, innocent party wins
? Seller and 3rd party are both innocent, but 3rd party is more innocent
? Seller introduced deed into the mix
? Seller still has a claim against middle-man o

Warranties of Title
? General Warranty Deed (GWD)

* Grantor warrants their own behavior as well as all the predecessors of the property in regard to title

* 6 promises, 3 present 3 futureSpecific Warranty Deed (SWD)

* Grantor guarantees their own behavior in regards to title

* 6 promises, 3 present 3 futureQuitclaim Deed

* No warranties of title

* Conveys whatever grantor owns (family, friend, divorces)Covenants (GWD & SWD)

* As soon as any covenant is breached, there is a cause of action

* SOL starts ticking

* Present covenant breach = SOL starts immediately when deed is delivered o C/L - cause of action not assignable o M/L - assignable as long as SOL hasn't run out (travels from one owner to another)

* Future covenant breach = SOL starts when the covenant is actually breached



Present Covenants o Seisin *
? Grantor's promise that they own the property and all that they tend to convey o Right to Convey
? Grantor's promise he has the right to convey the property
? If you're married - you own it, but can't convey it w/out spouse o Against Encumbrances *
? Grantor's promise property is free of undisclosed/unwaived encumbrances
? Buyer sees title search and signs off, encumbrances are disclosed


Future Covenants o Quiet Enjoyment *
? Grantor's promise the grantee will not be disturbed in possession or enjoyment by someone w/better title
? Someone else can claim they have a deed to the property, but they actually have to try to kick you out or sue you to claim this o General Warranty
? Grantor's promise that he will defend against lawful claims of superior title in the property (only if QE) o Further Assurances
? Grantor's promise to do whatever is reasonably necessary to clear up any problems about the title




Present or future o Present covenants o Breached, if ever, on the date the deed is delivered

* Future covenants o May or may not be breached at some time in the future

? * Acts showing the intent of the grantor to transfer an interest to the grantee now, rather than in the future
? Deed must be delivered in order to be effective
? ? of fact
? Gather all the facts that suggest the grantor had the requisite intent and make the argument for delivery
? Then gather all the facts that suggest the intent was lacking and make the counter argument.
? Grantor's intent (and thus the delivery) occurs at the point when all the contract conditions have been met and the purchase price has been paid (when escrow closes)
? If grantor dies before that point

* Intent cannot be formed after someone has died

* Apply the "doctrine of relation back" o Equitable doctrine that allows us to "backdate" an event if justice requires

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