Competing Claims

Question 1

Define

adverse possession

Answer 1

Method of acquiring title to another’s land by hostile continuous possession for a period of time.

Question 2

Elements of adverse possession

Answer 2

Trespasser’s possession must be:

1. Continuous for duration of statutory period (depends on jurisdiction);
2. Hostile;
3. Actual,
4. Open & notorious;
5. Exclusive

Question 3

What is the default statutory period for adverse possession?

Answer 3

20 years

Question 4

What is “continuous” possession?

Answer 4

Uninterrupted use of the property throughout the statutory period.

Question 5

Does seasonal or infrequent use count as continuous possession?

Answer 5

Yes as long as it is consistent with the ordinary use of the property (ex. if property is a ski cabin or summer beach house).

Question 6

Define

tacking

Answer 6

When a trespasser “tacks on” (adds on) a prior adverse possession period to meet the statutory requirement.

⚠️ Note: Privity between trespassers is required. The new trespasser must take by non-hostile means without gaps in possession.

Question 7

When is tacking not allowed?

Answer 7

If the new trespasser has taken control of the property through hostile means (called “ouster”).

Question 8

Does the SOL run if the rightful owner was disabled when the adverse possession started?

Answer 8

No, SOL will toll (pause) if rightful owner was disabled (minor, incarcerated, mentally incompetent, etc) when the adverse possession started.

Question 9

What is “actual” possession?

Answer 9

Actual, physical possession of the property.

Question 10

What is “open and notorious” possession?

Answer 10

Obvious and not hidden; the owner would know of it with reasonable inspection.

Question 11

What does it mean for possession to be hostile?

Answer 11

Without the owner’s permission. Trespasser does not need to intend to adversely possess the property.

Question 12

Can a trespasser adversely possess the land with the owner’s permission?

Answer 12

No, defeats hostility requirement

Question 13

If a renter overstays their lease, is this considered “hostile” possession?

Answer 13

No, tenancy at sufferance exists, not adverse possession

Question 14

Will a mistaken encroachment satisfy the intent needed for adverse possession?

Answer 14

Majority: Yes, mistake is sufficient

Minority: No, possessor must show they would have intentionally encroached even if they had known of their hostile use

Question 15

Define

color of title

Answer 15

Title that appears valid, but actually isn’t because of some flaw in the deed (i.e. deed doesn’t contain all required elements)

Question 16

What is the effect of adversely possessing the property under color of title?

Answer 16

If adverse possessor occupies a significant portion of the land in the deed, the possessor is entitled to the entire property

Question 17

Can you adversely possess government land?

Answer 17

No

Question 18

Can a co-tenant acquire title to the whole property through adverse possession?

Answer 18

Yes, but only if the co-tenant clearly and unequivocably ousts the others from the land for the statutory period

Question 19

When will a restrictive covenant run with land acquired by adverse possession?

Answer 19

Only if adverse possessor’s use was consistent with the covenant

Question 20

What are the 3 steps in a land transaction?

Answer 20

1. Land contract;
2. Closing;
3. Deed transfer

Question 21

Requirements for a land sale contract to satisfy the SOF

Answer 21

1. In writing;
2. Signed by the parties to be bound;
3. Contain essential terms of the deal (description of the land, consideration to be paid, etc)

Question 22

When does a land sale contract not need to satisfy the SOF?

Answer 22

If buyer does 2 of the following:

1. Takes possession of the land;
2. Makes physical improvements; and/or
3. Pays significant part of the purchase price

Question 23

Define

implied covenant of marketable title

Answer 23

title is free from defects and unreasonable risk of litigation

Question 24

What defects render a title unmarketable?

Answer 24

1. Encumberances;
   
   • Covenants
   • Easements
   • Mortgages
   • Liens
2. Title acquired by adverse possession;
3. ​Zoning violations;
4. Incurable physical defects; and
5. Future interests that have not consented to transfer

Question 25

Can the buyer **waive** defects that render a title unmarketable?

Answer 25

Yes

Question 26

# Define duty to disclose

Answer 26

1. Seller has duty to disclose all **material latent defects**; and 2. Seller cannot **misrepresent** or **fraudulently conceal**

Question 27

Do **disclaimers** limit the seller's liability for misrepresentation or fraudulent concealment? (e.g. "property sold as is")

Answer 27

No, disclaimers do not limit liability for misrepresentation or fraud

Question 28

**Deadline** for seller to deliver marketable title

Answer 28

By the **date of closing**

Question 29

What happens if the title is unmarketable **at the time of closing**?

Answer 29

Can make arrangements on the date of closing to earmark part of the purchase price to remedy the defect and make the title marketable

Question 30

What can the buyer do if they **discover the title is unmarketable?**

Answer 30

Notify the seller **before the closing date** and give them a reasonable time to cure defects If seller doesn't cure, buyer can seek specific performance, damages, and an action to quiet title ## Footnote ⚠️ If buyer doesn't notify seller beforehand, deed controls b/c of the merger doctrine and seller is not liable

Question 31

What is the implied warranty of **quality in construction**/good workmanship?

Answer 31

For **new** property, implied promise that structures will be constructed in a "good and workmanlike" manner

Question 32

What's the **doctrine of merger** and its effect?

Answer 32

Once the deed is transferred/conveyed to the buyer, the contract merges with the deed and the **deed** **controls**, not the contract. ## Footnote ⭐️ This means that whatever obligations the seller had under the contract are not enforceable unless they are **also contained in the deed**.

Question 33

What is the **doctrine of equitable conversion**?

Answer 33

Doctrine that helps determine who bears the risk of loss. Once the buyer signs K to purchase land at a later date, but before closing: * Buyer has **equitable** title; and * Seller has **legal** title

Question 34

Under the doctrine of equitable conversion, **who bears the risk of loss** if the property is destroyed prior to closing?

Answer 34

Holder of the equitable title (the **buyer**), regardless of whether buyer took possession yet

Question 35

What's the **exception** to the doctrine of equitable conversion?

Answer 35

Buyer will not bear the risk of loss if loss is attributable to the **intentional or negligent acts** of the seller

Question 36

What happens if the buyer bears the risk of loss and the seller has **insurance**?

Answer 36

Seller should give the buyer a **credit equal to the insurance proceeds** against the purchase price

Question 37

What happens if the **seller dies** before closing?

Answer 37

Seller's interest is considered personal property & passes to seller's devisees

Question 38

What happens if the **buyer dies** before closing?

Answer 38

Interest treated as real property & buyer's devisees can sue for transfer of property to themselves

Question 39

# Define deed

Answer 39

Instrument that passes **legal title** to the land from the seller to the buyer

Question 40

What is required for a deed to be effective?

Answer 40

1. In **writing** and signed by grantor; 2. **Describe** the parties and the land; 3. **Delivered** (i.e. seller must have present intent to transfer the interest)

Question 41

What types of actions show **present intent to transfer the deed**?

Answer 41

1. **Physical delivery:** mailing or handing the deed to the person; or 2. Any other conduct or words that would **imply present intent to transfer** * ex. recording the deed, drafting the deed

Question 42

If the grantor **keeps** the deed after writing it, has there been delivery?

Answer 42

No, rebuttable presumption that the grantor **did not** presently intend to transfer the property

Question 43

Does giving the deed to the **grantee's agent** (e.g. attorney) count as valid delivery?

Answer 43

Yes

Question 44

If the grantor **transfers** the deed to her **own agent** (e.g. attorney), and tells the attorney to deliver the deed in the *future*, does the **transfer** count as **delivery**?

Answer 44

**No,** delivery only occurs once the agent actually **delivers** the deed to the **grantee.**

Question 45

# Define death escrow

Answer 45

Occurs when grantor instructs agent to deliver deed to grantee *upon grantor's death.* ## Footnote ⭐️ Only valid if grantor places deed **beyond his/her control**, i.e. retains zero control upon transfer to attorney. If grantor retains any power over the deed (e.g. asking it to be returned), then no valid death escrow has been created and no valid deed delivery.

Question 46

# Define relation-back doctrine

Answer 46

If deed is given to **third party** and **third party subsequently delivers** deed to grantee, delivery date will be when deed was *first given to the third party*

Question 47

What are the **exceptions** to the **relation-back doctrine**?

Answer 47

1. There are multiple conditions on delivery by third party; or 2. Grantor expressly retains the right to reclaim the deed from the third party

Question 48

If a deed has been effectively delivered, can the grantor **rescind** it?

Answer 48

No

Question 49

Is **acceptance** required for the deed transfer to be complete?

Answer 49

**Yes**, if grantee rejects the deed, no transfer has occured

Question 50

If the grantee **accepts** the deed, but then **returns it** to the grantor, has ownership been transferred back to the grantor?

Answer 50

No, merely giving it back to the grantor does not change ownership - a **new deed** must be validly executed for ownership to revert back to the grantor

Question 51

What are the 3 types of deeds?

Answer 51

1. General warranty; 2. Special warranty; and 3. Quitclaim

Question 52

# Define quitclaim deed

Answer 52

Buyer takes the property "as-is," with no warranties, covenants, or promises

Question 53

If the buyer has a **quitclaim** deed, can she sue the grantor if the grantor didn't actually have title or the title is not free and clear?

Answer 53

No, buyer takes the interest "as-is," without **any** warranties or assurances

Question 54

# Define general warranty deed

Answer 54

Contains **6 present and future** **covenants of title** that cover the property's entire history Present: 1. Seisin; 2. Right to convey; and 3. Against encumbrances Future: 1. Quiet enjoyment; 2. Warranty; and 3. Further assurances

Question 55

# Define special warranty deed

Answer 55

Contains the **same covenants of title** as a general warranty deed, but only for the **period of the seller's ownership** of the land. Does not contain any warranties for what happened before the grantor took ownership

Question 56

When is the only time a present covenant can be breached?

Answer 56

At the time of delivery

Question 57

What is the only time that a future convenant can be breached?

Answer 57

After delivery of the deed

Question 58

# Define covenant of seisin

Answer 58

Grantor owns the property described in the deed

Question 59

# Define covenant of the right to convey

Answer 59

Grantor has the right to convey title

Question 60

# Define covenant against encumbrances

Answer 60

There are no encumbrances on the property (liens, easements, etc.)

Question 61

# Define covenant of quiet enjoyment

Answer 61

Third party will not assert a claim for a title

Question 62

# Define covenant of warranty

Answer 62

Grantor will defend against a third party's claim for title

Question 63

# Define covenant of further assurances

Answer 63

Grantor will do anything reasonably necessary to perfect the grantee's title

Question 64

# Define bona fide purchaser for value (BFP)

Answer 64

Buyer who: 1. Purchases property for **value**; 2. Without **notice** of any prior claims

Question 65

What are the 3 **types** of **notice?**

Answer 65

1. Actual; 2. Record (also called constructive notice); and 3. Inquiry

Question 66

# Define actual notice

Answer 66

**Actual**, personal knowledge of a competing claim

Question 67

# Define record notice

Answer 67

Implied to all persons when a conveyance is **properly recorded** (i.e. if the conveyance was properly recorded, the buyer has record notice)

Question 68

# Define inquiry notice

Answer 68

**Reasonable inspection** would have revealed the prior claim ## Footnote ⚠️ The buyer **doesn't need to actually inspect** to have inquiry notice. As long as the buyer *would have discovered* the claim if they had reasonably investigated, they will have inquiry notice

Question 69

What are the types of **recording statutes**?

Answer 69

1. Notice\* 2. Race-notice\* 3. Race ## Footnote \* Most common

Question 70

Who prevails in a **notice jurisdiction**?

Answer 70

**Subsequent** bona fide purchaser if earlier purchase was **not recorded** and and purchaser **did not know** of earlier purchase

Question 71

Name the type of recording statute*: "No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof, unless it is recorded."*

Answer 71

Pure **notice** jurisdiction

Question 72

Who prevails in a **race jurisdiction**?

Answer 72

**First** grantee to record (regardless of whether they are a BFP)

Question 73

Name the type of jurisdiction: *"No conveyance or mortgage of an interest in land is valid against any subsequent purchaser whose conveyance is first recorded."*

Answer 73

Race jurisdiction

Question 74

Who prevails in a **race-notice jurisdiction**?

Answer 74

**First BFP** to properly **record**

Question 75

Name the type of statute: *“No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice who shall first record.”*

Answer 75

Race-notice

Question 76

Are **mortgagees** considered BFP's and thus protected by recording acts?

Answer 76

Yes because they have paid value

Question 77

Are grantees who were given the deed by **gift or will** protected by the recording statutes? (generally)

Answer 77

No, because they did not pay value. If they received the deed from a BFP, however, the Shelter Rule will apply and they will be protected. ## Footnote ⚠️ This is true even if the grantee **records** the deed. Since they did not pay value, they are not protected against prior claims (unless Shelter Rule applies)

Question 78

# Define wild deed

Answer 78

Deed recorded *outside of the chain of title*; does not give notice to subsequent purchasers

Question 79

# Define estoppel by deed

Answer 79

If a landowner transfers title without actually owning it, and then *subsequently* does acquire title, she will be estopped (barred) from denying the validity of the first conveyance

Question 80

# Define Shelter Rule

Answer 80

If a buyer receives property from a BFP, they will also be protected as a BFP. ## Footnote ⭐️Enables devisees, heirs, or anyone else who isn't a BFP to gain the same protection as BFP has

Question 81

# Define ademption

Answer 81

When the testator gives real property to a beneficiary, but no longer owns the property at their death, the devise is **adeemed**. The named beneficiary takes nothing. ## Footnote Ex. Max conveys his home to Ian in his will, but then sells the home to Carly. Max then dies. Ian gets nothing because the devise is adeemed. *More info:* [Ademption](https://www.law.cornell.edu/wex/ademption)

Question 82

Can ademption occur with both a **specific devise** (real property) and a **general devise** (monetary gift)?

Answer 82

No, only with a specific devise

Question 83

What is the effect of an **anti-ademption statute** on adeemed gifts?

Answer 83

The devisee is entitled to the **proceeds** from the sale of land