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Elements of adverse possession
Continuous
- Seasonal fine
- Tacking allowed
- Doesn't count against disabled owners
Actual, open, notorious
Hostile
Exclusive - no sharing with true owner
For required amount of time - 10 years in NY, tacking allowed
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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)
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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
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Duties of seller of land/property
Deliver marketable title
- 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
Implied warranty of habitability
Implied warranty of workmanship
- 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.
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Remedity for unmarketable title (NY rules)
If seller not at fault:
- recover purchase money paid
- recover expenses from title examination
- recover nominal damages
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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.
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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.
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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.
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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.
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Defenses to foreclosure
NY: usury is a defense if mortgagor is not a corp. Remedy is discharge without payment of principal or interest.
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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
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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.
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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.
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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
Quitclaim
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