marketable title

1. Open and notorious.

2. Adverse and Hostile.

1. Severance of title to land held in common ownership.

2. An existing, apparent, and continuous use of one parcel for the benefit of another at the time of severance, and,

1. Identify the parties

2. Describe the servient and dominant land.

1. Loyalty and good faith.

2. Duty of due care and diligence.

1. Be in writing.

2. Name the grantor and grantee.

1. Severance of title to land held in common ownership, and.

2. Necessity for the easement at the time of severance.

1. Landowner allows another to use his land,

2. The user relies in good faith on this allowance, usually making improvements or by incurring significant costs. Detrimentally relied on the promise made by landowner. and

3. Continuous.

4. For the statutory period.

3. Describe the exact location of the easement on the servient land.

4. State the purpose for which the easement may be used.

3. Describe the real property being conveyed.

4. have present intent by the grantor to convey.

5. Actual or constructive delivery of the deed.

6. Acceptance by the grantee.

Was there a conditional use permit, C U P?

A C U P is a special use permit that allows for a certain use of the land that the zoning ordinance would normally not allow. A conditional use is one that the governing council has determined is appropriate for that particular zone,

Duty to disclose offers

A broker must disclose all offers from a buyer to a seller and may not accept or decline any offers or make any counteroffers without the consent of the seller.

Was the easement used within reasonable scope?

A misuse of an easement by a dominant tenement occurs if the dominant owner alters his use of the easement in a way that imposes an unreasonable burden on the servient owner.

Non-judicial foreclosure via power of sale.

A private process without judicial involvement or approval. These types of foreclosures occur with a deed of trust or mortgage. Must specify the address of the trustor or mortgagor and include a request that a copy of any notice of default and notice of sale be mailed to the designated address.

Quitclaim deed

A quitclaim deed is a deed that has no covenant of title.

Did Bob act properly as a broker in the sale of Whiteacre?

A real estate broker is an individual licensed by the state to help an owner in the sale of property and collects commission from the sale of the real estate.

Was there a zoning violation?

A zoning restriction in and of itself does not make title unmarketable. However, if there is an existing zoning violation, that would make the title unmarketable.

There are three types of notice:

Actual notice, constructive notice, and inquiry notice.

Was a valid easement created?

An easement can be created expressly, by implication, or by prescription.

Was a there an easement found not on the deed?

An easement is a non-possessory property interest in the land of another. They can be appurtenant or in gross and affirmative or negative.

If the seller is unable to make the title marketable, the buyer may rescind the contract.

An easement is an encumbrance if it is not listed on the deed.

Was there an overlay?

An overlay imposes additional requirements or authorizations for a particular geographic area, on top of the existing, underlying zone, such that both sets of controls apply to the particular area.

A subsequent bona fide purchaser for value, B V P, is one who purchases an interest in land for valuable consideration without notice of an interest already held by a third party.

Analyze by stating, "Here, the statute states..." or say,

Where there is an easement by prior existing use, expansions or changes in use of an easement are permissible so long as they could have been reasonably expected.

Analyze whether the misuse would reduce value in the servient owner's land. If yes, the servient tenement could obtain money damages or an injunction for the misuse of the easement.

Duty of due care and diligence.

At common law, the court followed caveat emptor and seller did not have to make any disclosures about the property.

Duty of loyalty and good faith.

Broker must be loyal to the seller, their client, and act in good faith in their dealings.

Analyze whether there was notice or a recording and apply to the applicable statute.

Brokers

Brokers act as a fiduciary to their client.

Brokers owe the seller the duties of:

Did buyer take the property subject to the easement?

Did the buyer have notice of the easement?

Was there an easement created by prescription?

Easement by prescription arises through the adverse use of another person's land. The use must be:

Was the easement terminated?

Easements are generally indefinite in duration. An easement can be terminated by end cramps.

An encumbrance is a nonpossessory right or interest in the property held by a third party that reduces the property's market value, restricts its use, or imposes an obligation on the property owner.

Easements, real covenants, equitable servitudes, liens, etc. are encumbrances.

A variance is relief from a zoning ordinance when the zoning code would impose under hardship on the property owner.

Example of a variance is the triangle parcel with impossible setbacks.

Was there an easement created expressly by grant?

Express easement by grant must satisfy the statute of frauds and must:

Was there a valid conveyance of the deed?

For a conveyance of land to be valid, it must:

Was there an easement created by necessity?

For an easement by necessity to be created there must be:

An appurtenant easement benefits the dominant tenement of the servient tenement's land.

For an easement to be appurtenant, the dominant and servient land must be connected.

Was there an easement created by estoppel or irrevocable license?

For an easement to be created by estoppel or irrevocable license there must be:

Was there an easement created by prior existing use?

For an easement to be created by prior existing use, there must be:

Who is entitled to the proceeds in the foreclosure of the property?

Foreclosure

Were any future covenants breached?

Future covenants includes the covenant of general warranty, covenant of quiet enjoyment, and covenant of future assurances.

Was there a breach of covenant of quiet enjoyment?

Grantor warrants grantee will not be disturbed in their use and enjoyment of the property.

Was there a breach of warranty?

Grantor warrants that they will defend against lawful claims brought against the grantee by another asserting superior title.

Was there a breach of future assurances?

Grantor warrants that they will take any other acts necessary to perfect the title conveyed.

A deed of trust is the conveyance of an is the conveyance of an interest in real property where the trustor gives a deed of trust to the trustee for the benefit of the beneficiary.

Here, XYZ is the trustor, because they are borrowing the money from bank, the beneficiary, but ABC, the trustee, is holding the deed of trust.

Modernly, the broker must conduct a reasonably diligent inspection of the property and disclose all reasonably discoverable defects to the buyer.

If a broker intentionally misrepresents the attributes of a property to a buyer, the broker may be liable to the buyer for misrepresentation.

Was there a deficiency judgment?

If the proceeds of the sale are insufficient to satisfy the mortgage debt, the mortgagee can bring a personal action against the mortgagor/debtor for the deficiency.

Was there marketable title?

In every sale of real property, there is an implied warranty that the seller will convey title that is marketable.

Estoppel, necessity, destruction, condemnation, release, abandonment, merger, prescription, or severance.

Misuse does not terminate an easement.

Were any present covenants breached?

Present covenants are enforceable at the time of the conveyance.

3. Reasonable necessity for that use

Reasonable necessity means the alternative access or utilities cannot be obtained without a substantial expenditure of money or labor.

When a mortgagor defaults on his debt, the mortgagee can sue for the debt or foreclose on the mortgage. Foreclosure is an action in equity.

There are 2 methods of foreclosure: 1. Judicial foreclosure. and 2. Non-judicial foreclosure by the power of sale.

Every state has a recording statute that modifies the "first in time, first in right" common law rule to give priority to certain deeds when there are competing claims to title.

There are three types of recording statutes.

A marketable title is one that contains no defects in the chain of title, encumbrances on the land not listed in the deed, or zoning violations.

To recover under breach of implied warranty of marketability, the buyer must inform the seller of the defect in title to allow the seller a reasonable time to attempt to curt the defect and make the title marketable.

Covenant of seisen warrants that the grantor owns the title to the land.

Was the covenant of right to convey breached?

They are the covenant of seisin, the covenant of right to convey, and the covenant against encumbrances.

Was the covenant of siesen breached?

Mortgage vs. Deed of trust

Was there a deed of trust?

Warranties

Was there a general warranty deed or special warranty deed?

but must be monitored and controlled to protect the health, safety, welfare and morals of the community.

Was there a variance?

The covenant of right to convey warrants that the seller has the right to convey the land.

Was there an encumbrance on the property?

When a grantor conveys a general warranty deed, any encumbrance on the land not in the deed is considered a breach.

What is the remedy for a breach of covenant against encumbrances?

Can XYZ sue ABC for breach of general warranty?

When a deed is conveyed and the grantor warrants it with a general warranty, they convey promises or assurances with respect to the title of the deed. They are called present and future covenants.

Judicial foreclosure

Where the mortgagee begins the judicial foreclosure process by filing a complaint against the mortgagor, junior lienholders, and other holding security interests in the property that are subordinate to the mortgage. These types of foreclosures occur with a mortgage.

What is the effect of buyer recording?

Who is protected by the recording statute?

Recording statutes cover deeds, mortgages, easements, real covenants, and other instruments creating an interest in land.

Who is the subsequent bona fide purchaser for value?

General warranty deed.

With a general warranty deed, the grantor promises that no one at any time in the past has created any title defects that are still existing.

Special warranty deed.

With a special warranty deed, title defects that are prior in time to the grantor's acquisition of the property are not warranted against.

In a notice statute state,

a BPV prevails over an earlier purchaser only if the BVP had no notice of the earlier conveyance at the time she purchased.

In a race-notice statute,

a BPV will prevail so long as, 1. She had no notice of the prior conveyance at the time of purchase, and, 2. the BPV records first.

In a race statute state,

the first purchase to record prevails, even if they had notice of a prior unrecorded conveyance.