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Generally
- Two steps:
- 1. The land contract, which endures until step 2
- 2. The closing, where the deed becomes our operative document
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The Land Contract
Statute of Frauds
- standard:
- writing
- signed by party to be bound
- describe Blackacre
- state some consideration
- When the amount of land recited in the land contract is more than the actual size of the parcel: remedy is specific performance w/ pro rata reduction in purchase price
- Exception to Statute of Frauds: THE DOCTRINE OF PART PERFORMANCE; if 2 of the followin g e obtain, then the doctrine is satisfied and equity will decree specific performance of an oral contract for the sale of land:
- 1. B takes possession;
- 2. B pays all or part of price; and/or
- 3. B makes substantial improvements
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The Land Contract
Problem of Risk of Loss
- Apply the doctrine of equitable conversion: equity regards done that which ought to be done
- Once the contract is signed, B owns the land, subject to closing.
- Important result: Destruction. If Blackacre is destroyed in interim of contract and closing, through no fault of either party, B bears the risk of loss unless the contract says otherwise
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The Land Contract
Implied Promises in Every Land Contract
- 1. Seller promises to provide marketable title at the closing, that is, title free from reasonable doubt. Free from lawsuits and threat of litigation.
- Three circumstances will render title unmarketable:
- a. Adverse possession - if even part of the title rests on adverse possession, it is unmarketable.
- b. Encumbrances - servitudes and mortgages will render title unmarketable, unless buyer has waived them
- *seller has the right to satisfy outstanding mortage or lien at the closing with the proceeds of the sale*
- c. Zoning violations
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The Land Contract
Seller Promises not to make any false statements of material fact
- seller liable for failing to disclose latent material defects
- seller liable for material lies and material omissions
- general disclaimer of liability won't relieve seller for fraud or failure to disclose ("as is" "with all faults")
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The Land Contract
Contains no implied warranties of fitness or habitability
- common law norm is caveat emptor
- Exception: implied warranty of fitness and workmanlike construction applies to the sale of a new home by a builder-vendor
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Closing
Generally
LEAD
- controlling document is the deed; th deed passes legal title fom Seller to Buyer
- LEAD: to be pass legal title it must be Lawfully Executed and Delivered
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Closing
Lawful Execution of a Deed
- in writing, signed by grantor
- deed need not recite consideration, nor must consideration pass to make a deed valid
- includes description of the land (does not have to be perfect); needs to be unambiguous with a good lead ("some" is not a good lead)
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Closing
Delivery Requirement
- satisfied when grantor physically/manually transfers deed to grantee
- can use mail, agent, or messenger
- *does not necessarily require transfer of the instrument itself*
- test is solely of present intent, that is, did grantor have a the present intent to be bound irrespective of whether or not the deed was handed over
- Recipient's express rejection of the deed defeats deliveryIf deed is absolute on face and transferred to grantee with an oral condition the oral condition drops out it is not provable and deliery is doneDelivery by escrow is fine
- Escrow is good b/c can still pass to grantee if grantor becomes incapacitated
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Closing
Types of Deed
- 1. Quitclaim
- 2. General Warranty
- 3. Statutory Special Warranty
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Closing
Types of Deed
Quitclaim
- Contains no covenantsdoesn't even promise to have title to convey
- worst deed
- BUT, grantor did implicitly promise to provide marketable title at the closing in the aldn contract - any probelms post-closing = grantor off the hook
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Closing
Types of Deed
General Warranty
- Best deed
- warrants against all defects in title, including those due to grantor's predecessors
- typically contains following six covenants; first three are present - time of delivery; SOL for breach of a present covenant begins to run from the instate of delivery
- 1. covenant of seisin: grantor promises he owns this estate
- 2. covenant of right to convey: grantor has the power to transfer - under no temporary restratints on alienation - no inferiority suffered by grantor (sound mind, requisite age)
- 3. covenant against encumbrances: no servitudes or mortages on Blackacre
- Next three covenants are future covenants - not breached until grantee is disturbed in possession. The SOL for breach of future covenant will not begin to run until the future date.
- 4. covenant for quiet enjoymenet: grantee won't be disturbed in possession by a 3d party's lawful claim of title
- 5. covenant of warranty: promises to defend grantee against lawful claims of title brought by others
- 6. covenant for further assurances: grantor will do whatever is needed in the future to perfect the title
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Closing
Types of Deed
Statutory Special Warranty Deed
- Deed most frequently used in VA
- contains two promises that granto makes only on behalf of himself (grantor makes no representations on behalf of his predecessors in interest)
- 1. grantor promises he hasn't conveyed Blackacre to anyone other than grantee
- 2. Blackacre is free from encumbrances made by grantor
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