transfer of land

By
Real Estate Agent with Perry Wellington Realty

Transfers of Land

 

Real Estate Purchases

3 phases

Pre-contract

Executory/due diligence period

Post-closing

Ownership is transferred to buyer at closing

 

Form Contract p. 565

Earnest money is basically liquidated damages for default

Real estate taxes – paid twice annually

Contract is very pro-seller

SOF exceptions – part performance or equitable estoppel

 

Lohmeyer v. Bower p. 580

Property is too close to the property line and 2 stories when covenant says it can only be one

Court says that it is not marketable – it is already violating restrictions

Seller must disclose the easements and restrictive covenants (unless they are publicly known)

 

Conklin v. Davi p. 584

Title is gained through adverse possession – not record of title

Need to say that time is of the essence or it will continue until things are cleared up

Contract only calls for marketable title, not perfect title

 

Ways to get out of the Contract

  1. Express Warranty

In the document of sale or title

Merger clause – no other warranties than those in this agreement

  1. Implied Warranty

Warranties of merchantability, fitness for a particular purpose

Can be waived by contract “sold as is”

Some things are a matter of public policy and cannot be contracted out of

  1. Rescission

Want the contract undone for some reason

Does not require a warranty or even that the buyer know (mutual mistake of fact)

  1. Fraud (tort action)

Requires a knowingly false statement about a material element

Remedy is damages, not undoing of the contract

Problem of non-disclosure – how actively did they conceal it?

  1. Special Statutory Remedy Regime

Ex. lemon law for the sale of new cars

 

Lempke v. Dagenais p. 602

Garage roof is poor quality, state has implied warranty of quality workmanship

Need to show that it is attributable to the construction of the roof

Generally warranties are assignable

Court decides that they suffered a loss as they paid for the house with a garage

Did they assume the risk of it being leaky – already paid for that risk?

 

Deed

Must be signed, recordable (notarized), and delivered

Can put additional promises in a deed

  1. Quitclaim deed – no warranties, express or implied (used for gifts)

  2. Special warranty deed – promises are limited to grantor and not anyone else

Seller has not done anything to damage the property but others may have

  1. General warranty deed

    1. Present covenants (broken at time of transfer)

      1. Seisen

      2. Right to convey

      3. No encumbrances

    2. Future covenants (broken at some later point)

      1. General warranty

      2. Quiet enjoyment

      3. Further assurances

 

Problems

People would rather go bankrupt than pay against defects in title

Statute of limitations on the present covenants

Quiet enjoyment only protects you against successful adverse claims

 

Brown v. Lober p. 617

Transferred title to all the property but he only had 1/3rds ownership of mineral rights

It falls under covenant of seisen but the SOL has already run

No claim under quiet enjoyment because they haven’t been ousted (no one came for the minerals

 

Frimburger v. Anzellotti p. 620

Property is currently in violation of wetlands regulations

Present violations of zoning regulations are sufficient to get a rescission, building codes are not

Buyer should have pursued other remedies – file an application for a waiver

Court put wetlands regulations with building codes to not put a huge burden on attorneys and title searchers

 

Rockafellor v. Gray p. 626

Rockafellor was first in line and not notified of judicial auction – all other transfers are void

Court rules that deed promises also work for subsequent buyers, they can still sue you

 

Sweeney v. Sweeney p. 633

Want to convey property at death – deeds it to John and he deeds it back to Maurice

Court holds that it works because they intended it to be a transfer of ownership

 

Rosengrant v. Rosengrant p. 637

Want to transfer property at their death, use a deed and give it to him and then keep it at the bank

Court is hostile to their efforts – no delivery if you can go and get it back

 

Murphy v. Financial Development Corp. p. 648

Historically a mortgage was a fee simple transfer with a reversion when the loan was paid off

Statutory law now governs – lenders look for ways to lower costs of foreclosure

Some states use a deed of trust instead of a mortgage – hold legal title until it is paid

 

Bean v. Walker p. 655

Installment land sale contract – close when you have paid the entire balance

Makes payments for 8 of the 15 yrs and then gets laid off

Equity intervenes – Buyer has an interest in the house so you have to us foreclosure proceedings

 


Comments (1)

1~Judi Barrett
Integrity Real Estate Services 116 SE AVE N, Idabel, OK 74745 - Idabel, OK
BS Ed, Integrity Real Estate Services -IDABEL OK

Brian, That's quite a list and must have taken some time to research and write.

Oct 23, 2010 12:49 AM