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Elements of adverse possession
Actual, open, notorious
- Seasonal fine
- Tacking allowed
- Doesn't count against disabled owners
e - no sharing with true owner
For required amount of time
- 10 years in NY, tacking allowed
Statute of Fraud requirements for land sale contracts:
- In writing
- Signed by party to be charged
- Contain all essential terms (parties, property description, terms of price and payment)
Exceptions to statute of frauds for land sales:
All or part of purchase price paid + purchaser in possession OR purchaser improvement to property = specific performance without writing.
Contract in fact - parties' actions show agreement
Estoppel - detrimental reliance on contract
Duties of seller of land/property
Deliver marketable title
Implied warranty of habitability
Implied warranty of workmanship
- No adverse possession that has not been quieted
- No private encumbrance (mortgage, easement, etc - in NY, a possibility of reverter is a defect)
- No violation of zoning law
- No significant physical defect
- In NY, buyer's at foreclosure sales are owed these same dutues, but are still expected to have constructive and inquiry notice of recorded defects.
NY law requires sellers of 1- to 4-family residential dwellings to provide completed statutory disclosure forms before signing contracts. Not for condos, co-ops, or new construction.
Remedity for unmarketable title (NY rules)
If seller not at fault:
- recover purchase money paid
- recover expenses from title examination
- recover nominal damages
Remedies for breach by buyer or seller in land contract
Damages - difference btwn contract part and market price on date of performance.
Specific performance - includes abatement for any defects of title.
Who is liable where buyer assumes seller's mortgage?
Lender may seek payment from both the orginal debtor or the buyer, unless there has been a modification of the obligation after the assumption, in which case only buyer is liable.
Who is liable where buyer buys subject to seller's mortgage?
Buyer is not personally liable upon default, although absent a novation, the original debtor is personally liable.
When is sale complete?
Delivery of valid deed + intent to make present transfer of title to grantee + acceptance of deed by grantee
Gifts, transfer to escrow with conditional instructions to transfer, etc. do not count since there is not present intent.
Defenses to foreclosure
NY: usury is a defense if mortgagor is not a corp. Remedy is discharge without payment of principal or interest.
Contents of valid deed:
Parties (specifically named, not "to my neighbors")
Signature of grantor (does not need grantee's)
Words of transfer
Description of property
Notice recording acts:
A purchaser need only purchase without notice of the prior interest to prevail under a notice statute
Bona fide purchaser need not record in order to prevail over a prior interest in a notice jurisdiction, but must record to prevail against a subsequent purchaser.
Judgment liens' protection against prior and subsequent interests in the property
Creditors are protected only against claims that arise after
a judgment lien against the debtor is recorded.
B purchased Blackacre from A, but does not record the deed. C, a creditor of A, not knowing of the deed to B, then recorded a judgment lien against Blackacre. A judicial sale of Blackacre was scheduled. A then sold Blackacre to D, who promptly recorded the deed.
- C is protected against D’s claim because D purchased after C recorded the judgment lien.
- C is not protected against B’s unrecorded interest.
NY: Judgment liens on real property last 10 years and can be extended; money judgments are effective for 20 years.
Types of deed
General warranty - present covenants (owns land, can convey it, covenants against encumbrances) + future covenants (protection against subsequent claims of title) + help in defending against claims of encumbrance
Special warranty ("Bargain and sale deed" in NY) - warranty against defects arising during time granto had title