Acquisition of Property
What happens to trespassers?
They always lose
Time
Title
Interest
Possession
4 unities
What is needed for Due Diligence?
1) certified boundary survey
2) no encroachments or setbacks
3) compare survey to seller's deed and proposed buyer's deed/title work/purchase agreement/mortgage
4) home inspection and radon test
5) obtains an owner's policy of title insurance and abstract if available
6) get copy of seller's deed to see if its been recorded
2) record title (as discerned from public record)
3) marketable title
4) insurable title (title company pays to insure)
Types of title
Can only arise after closing and plaintiff has accepted the deed
Implied Warranty of Quality
Owner of land is in constructive possession of wild animals while they are on land
Rationale Soli
Created when no other form of concurrent ownership has been explicitly stated or when the grant specifics such tenancy with: 1) no right of survivorship, 2) need not share time/title/interest, and 3) can convey interest through deed/will/intestate
Tenancy in Common
Past performance that would indicate actions are pursuant to oral agreement
Estoppel that would show inducement, change of position in reliance of inducement and in equitable to deny existence of contract
Exceptions to Statute of Frauds
(must be in writing)
Mere existence does make title unmarketable, agreeing makes it marketable, but a violation would make it unmarketable if it cannot be fixed before closing unless "subject to all restrictions of transfer"
Private Restriction
3 Main Types of Deeds (and definitions)
1) special warranty
- only against grantees own conduct
2) general warranty
- all defects before and after grantee takes title
3) Quitclaim
- no warranties
Does hunting for sport trump hunting for business?
No, hunting for a living will beat hunting recreationally
4 unities + the secret 5th of marriage
right of survivorship, conveyance only if both parties agree, no right of partition
Tenancy by the Entirety
Elements of Marketable Title
1) reasonably prudent person2
2) sought advice of competent lawyer
3) willing to pay value
4) not worried about validity of title because you wont be subject to the hazard of litigation
Courts hold buyer from contract of sale, even though seller is in possession; and it is advisable for buyer to procure property insurance at time of execution
Risk of Loss
(define present covenant and the 3 types)
Broken at time of conveyance. SOL starts at the day of delivery.
Seisin: Grantors says I own and am conveying to you
Right to Convey: I have the right to convey it
Against Encumbrances: No encumbrances as of day of transfer
Elements from Pierson v. Post
1) mortally wound
2) not abandoning pursuit
3) intent to use it for one's own use
4) deprived of natural liberty
5) brought within control
cannot pass through will/intestate
Joint Tenancy
Seller's title must stand or fall as of the date
Time is of the essence
1) whether a reasonable person would attach significance to a defect in determining whether to buy
2) whether defects affect desirability to the buyer
Future covenants
(Define future covenant and 3 types)
Not breached until grantor or successor is 1) evicted, 2) buys paramount claim, or 3) otherwise damaged. SOL at eviction of covenant is broken
General warranty: defend against lawful claims and pays damages if you lose
Quiet Enjoyment: not be disturbed in possession and enjoyment by assertion of superior title
Further assurances: execute any further documents
Why is fashion not protected?
2) reduces price
When may severance may occur
1) creditor acts in lifetime
2) mutual agreement
3) death
4) partition
5) mortgage (in title theory state)
6) conveying interest to 3rd party
Mere existence does not render title unmarketable but a violation would if seller cannot correct before closing
Municipal Regulation
1) defects are reasonably discoverable
2) there is no fraud
- if there is fraud or concealment, it will not be upheld
As is clause
1) pecuniary charges (mortgage/lien/assessment)
2) estates interest is less than the fee
3) easements or servitude on land (rights of way/restrictive covenants/profits)