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Newest prop outlines - I Land Transfers Every conveyance of...

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I. Land Transfers Every conveyance of real estate involves a two-step process: 1) Land Sale (Contract of Sale) 2) Closing (Deed) 1) Contract of Sale Must be in writing, signed by party against whom enforcement is sought, D (Statute of frauds). It must describe the land and some consideration. Exception to statute of frauds writing requirement is the doctrine of “part performance”, which is satisfied by any two of three: 1) B takes possession of the land; 2) B remits all or part of the purchase price; 3) B makes substantial improvements to the premises Remedies for Breach: specific performance of the sale and purchase, nominal damages, actual damages, foreseeable consequence damages, liquidated damages Two Implied Promises in Land Contract: 1. Seller promises to provide marketable title, a title free from reasonable doubt, lawsuits and threat of litigation . When is title unmarketable? 1. adverse possession (majority view, if even a portion of the title rests in adverse possession, title is unmarketable); 2. encumbrances (servitudes and mortgages render title unmarketable, unless buyer has waived them); 3. zoning violations Marketable Title: an implied condition of a contract of sale of land. Buyer may rescind the contract if the seller is unable to convey a marketable title. To be unmarketable, the defect in title must be substantial and likely to injure the buyer. Buyers may waive certain defects (e.g. easements) Proof of Marketable title : seller can deliver marketable title either by 1) producing good record title – a recorded chain of title showing an unbroken transfer of title from some original root of title in the past to the seller with no recorded encumbrances; or 2) proving title by adverse possession – either thru a successful quiet title action or evidence sufficient to establish that the rival claim to title would not succeed if asserted and “that there is no real likelihood that any claim will ever be asserted.” 1
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Encumbrances: burden on the title, such as mortgages, judgment liens, easements, or covenants. Exceptions: 1) easements that benefit the property (e.g. a utility easement) is regarded by some courts as not an encumbrance so long as the easement is known to the buyer before entry into the contract; 2) covenants restricting use don’t make title unmarketable if the sale contract specifies a particular use that is permitted by the restrictive covenants; 3) limits imposed by public authority thru zoning laws are not regarded as encumbrances. Example: Lohmeyer v. Bower (Kan. 1951): Court held that existence of a covenant restricting use is an encumbrance making title unmarketable. However, the buyer had agreed to take title “subject to all encumbrances of record” but the existing violations of the covenant made the title unmarketable.
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