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PROPERTY ISSUE CHECKLIST & TEMPLATES INTERESTS CREATED BY VOLITION, IMPLICATION, AND PRESCRIPTION A. EASEMENTS, PROFITS A PENDRE, AND LICENSES 1. EXPRESS CREATION 2. CREATION BY IMPLICATION 3. CREATION BY PRESCRIPTION 4. SCOPE AND TRANSFERABILITY 5. TERMINATION B. REAL COVENANTS AND EQUITABLE SERVITUDES 1. TRADITIONAL ELEMENTS 2. EQUITABLE SERVITUDES 3. CONSTITUTIONAL AND PUBLIC POLICY LIMITATIONS ON COVENANTS AND SERVITUDES 4. CONSTRUCTION, ADMINISTRATION AND TERMINATION NON-VOLITIONAL (NATURAL) INTERESTS A. NUISANCE DOCTRINES THE REAL ESTATE CONTRACT A. ORAL AGREEMENTS B. THE STANDARD WRITTEN CONTRACT 1. CONSTRUCTION AND PERFORMANCE 2. STATUS OF VENDOR AND PURCHASER-EQUITABLE CONVERSION 3. THE ROLE OF THE REAL ESTATE BROKER THE DEED A. CONVEYANCING AT COMMON LAW AND UNDER THE STATUTE OF USES B. THE MODERN DEED—TYPES AND ELEMENTS C. EXECUTION D. SUBJECT MATTER CONVEYED

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EASEMENTS I R Whether an easement was created. An easement is a grant for the limited use of land for a specific purpose. It creates a benefit to the dominant estate and a burden to the servient estate. The four types of easements are affirmative, negative, appurtenant and in gross. The intent of the parties determines which type of easement is created. There are three ways to create an easement: (1) expressly, (2) by implication, and (3) by prescription. Here, the limited use of land is... • The specific purpose is... • The benefit to the dominant estate is... • The burden to the servient estate is... TYPE OF EASEMENT c—An affirmative easement is present r—an affirmative easement entitle one to do acts upon the burdened land. a—Here, _______ is entitled to do acts upon the burdened land because... c—therefore the easement is affirmative. c—A negative easement is present. r—a negative easement entitles the owner of the easement to prevent the owner of the burdened land from making certain uses of the land. a—here, the owner of the easement prevents certain use of the land because... c—Therefore, the easement is negative. c—The easement is appurtenant.
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r—An appurtenant easement is represented by two tracts of adjoining lands in which the benefit runs with the land after subsequent conveyances. Neither word of inheritance nor other words of art are essential to the valid reservation of an appurtenant easement of even unlimited duration. a—Here, the nature of the property shows adjoining tracts of land because... • The benefit will run with the land after subsequent conveyances because... • There are no words of inheritance because... c—Therefore the easement is appurtenant. c—The easement is in gross. r—An in gross easement is a personal right, not inheritable, to come upon the land to do something. An in gross easement always lies in a grant and is an interest in land that requires a writing and a seal. a—Here, the right was personal because... • The right is not inheritable because... • The easement does not lie in a grant because... • The interest in the land is expressed in writing and sealed because... c—Therefore, the easement is in gross c—A license was created r—a license is not an interest in land, but a mere right to use land, which is revocable at will. For equitable purposes, the court may determine that a license transforms into a license coupled with an interest. Where a license has been created, and the licensee expends money or its equivalent in labor in the execution of the license, it becomes irrevocable and the licensee will have a right of entry on the land for the purpose of maintaining his structures, or in general, his right under the license, and the license will continue for so long a time as the nature of it calls for. a—Here, there is no interest in land because...
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4 . a license was created.. • There was common ownership prior to the severance of title because. • The licensee should have a right of entry because. r—an implied easement falls under two categories— implication by necessity and implication by prior use. an express easement was created. there was an easement by necessity because. c—Therefore. a—Here. • The surrounding circumstances show. r—An express easement is created in the conveyance. the nature of the instrument provides... • The lands are abutting because.. The court will look to the four corners of the instrument and to any surrounding circumstances to determine the intent of the parties.. CREATION OF EASEMENT c—The easement was expressly created.. • The license is coupled with an interest because. c—Therefore.. evidence of abutting tracts of land. Factors to consider that an easement by necessity was created are common ownership of two tracts of land prior to the severance of title.. The necessity is determined at the time of the original conveyance and may lie dormant until the necessity is revived by the current possessor....• The license is revocable at will because. c—The easement was impliedly created.. • The time of termination will be. The easement by necessity will end if no longer necessary to the enjoyment of the land. the circumstances... • Based on the instrument.. a—Here.... the parties probably intended... and the nature of the land... • The licensee expended money and labor because.. • The purpose of maintaining the structures is. and facts indicating a landlocked property..

. • The necessity at the time of the original conveyance was. • The nature of the alternative right of way was.. a—The owner of the entire tract of land was.. after employing a part of the tract or one parcel. the easement was implied by prior use.. the use was continuous because. • It was adverse to the owner because.. derives from another.. r—Prior use arises when an owner of an entire tract of land or two or more adjoining parcels... a—Here.. conveys or transfers part of the property. there was an implied easement by prior use. • The use was not as a matter of courtesy because. o OR a—Here. • It was uninterrupted because.. r—An easement by prescription is created if use of another’s land has been continuous. with knowledge and acquiescence of the owner... under a claim of right. • The owner employed part of the land because..• The nature of the property is landlocked because. 5 . for at least twenty years...... uninterrupted.... and not as a matter of courtesy or favor on his part. ingress.. • The advantage was apparent because.. • The advantage was permanent because.. • There are no reasonable means of access. • The owner silently consented because. or egress because. • The advantage was continuous because... c—The easement was created by prescription... • The use lasted twenty years because. and permanent nature. • The tract benefited from the other because. continuous. • The owner had knowledge because.... a benefit or advantage of apparent.. c—Therefore... and adverse.

c—Therefore. and there must be privity of estate to recover at law.. A Here. Mere non-user is not sufficient to terminate an easement. an easement by prescription was created. An easement can be terminated by mutual agreement or by virtue of the conveying instrument. C Therefore. the covenant must touch and concern the land. affirmative real 6 A . real covenants require a writing. a real covenant is a promise with respect to land. merger of two lands.. An easement implied by prescription ends when the use is interrupted by acts of the servient owner. Generally. An easement by necessity will end when the easement is no longer necessary to the quiet enjoyment of land. or by alteration. Thus. TERMINATION OF EASEMENT I R Whether the easement was terminated. Generally. the easement was terminated. REAL COVENANTS I R The issue is whether a real covenant was created. Affirmative real covenants are more likely to be in dispute because it is harder to prove the covenant runs with the land. unequivocal intent to abandon. the parties must have intended the real covenant to run with the land. release. c—The real covenant is affirmative r—Affirmative real covenants require the promisee of the dominant estate to require the promisor of the servient estate to do something on the servient estate. To enforce a real covenant it must run with the land.. but the same adverse use will start the period over again. They can be either affirmative or negative.

owner of the dominant estate. Factors that “touch and 7 . there is/is not a valid writing. the promisee. c—Therefore.... Whether a real covenant will touch and concern the use of land is one of degree that depends on the particular circumstances of the case. __________________________________________________________________________________ c—The real covenant does/does not touch and concern the land r—Generally. r—Negative real covenants are restrictions against the promisor from doing something on the servient estate. the promisee restricted the promisor from doing _______ on the servient estate. and it helps determine the intent of the parties. Negative real covenants are easier to prove that they run with the land because it is easier to meet the requisite elements.covenants are disfavored because it implicates perpetuities and poses unreasonable restraints on land that bind to all future owners regardless of use... the nature of the writing shows. a—Here.. c—The real covenant is negative. a—Here. required the promisor to do . • Remedies because. • Statute of frauds because.. a—Here. c—Therefore. r—a writing is required to comply with the statute of frauds because parcels of land are unique. the covenant is negative. c—Therefore. the writing determines the remedy for breaching the covenant (in law or equity). the real covenant is affirmative. c—There is/is not a valid writing. to “touch and concern” means to substantially effect the ownership interests of the burdened and benefited land..

. c—Therefore... a—Here.. the parties intended the covenant to run with the land. there is/is not privity of estate between the parties... • Impacts the enjoyment because. quality. r—Whether the original covenanting parties intended the covenant to run with the land requires an examination of the original writing and the surrounding circumstances which may show the intent of the parties. a—Here. c—Therefore.. • The party is a successor to the estate of the original person so benefited/burdened because. c—therefore. • Impacts the quality because.. • Discuss circumstances. Vertical privity requires that only one person presently claiming the benefit or subject to the burden is a successor to the estate of the original person so benefited or burdened. the writing shows. • Impacts the value because...concern” include the impact on value. __________________________________________________________________________________ c—There is/is not privity of estate between the parties. the party presently claiming the benefit/burden is... 8 . and enjoyment of the interests in the land.... • Discuss circumstances. __________________________________________________________________________________ c—The parties intended the covenant to run with the land.. a—The nature of the covenant substantially effects the interest of the parties because.. the real covenant does/does not touch and concern.. r—The modern view is that no more than vertical privity is required...

.. a—Here. A party purchasing land with notice that a covenant is attached must not violate the covenant. a—Here.. Notice can be actual.C Therefore. there was/was not actual notice.. the party should have known about the covenant because. constructive or by inquiry. To be enforceable. there is/is not a valid real covenant that runs with the land.. the party had/did not have/ knowledge of the covenant within the deed because. an equitable servitude still requires a writing and must comply with the statute of frauds. EQUITABLE SERVITUDES I R The issue is whether an equitable servitude was created. However. When a requisite element of a real covenant is missing. the courts may find an equitable servitude if the real covenant is not enforceable at law. Notice is based on equity. The typical remedy is an injunction against the party violating the restriction in the covenant. A c—There was/was not actual notice. • The covenant was in the deed because.. it may be enforceable provided there is notice. Constructive notice arises by operation of law. • The deed was recorded and the party could have found out about the covenant because.. c—Therefore. r—Constructive notice is when the party should have known about the covenant because it is written in the deed or recorded at the recorder of deeds. _____________________________________________________________ c—There was/was not constructive notice. r—Actual notice requires knowledge of the covenant within the deed. 9 ..

. _____________________________________________________________ c—The party was/was not obligated to inquire.. 10 . ________ should have been put to inquiry because. C Therefore. c—Therefore.. C Therefore..c—Therefore.. • Thus.. the covenant not to compete does/does not run with the land. the nature of the property shows. the party was/was not obligated to inquire. Harmonious development encourages the maximum utility of land. there was/was not constructive notice. • By walking the land. r—The surrounding circumstances put the buyer of land with a covenant attached in a position that he should have inquired whether there was a covenant attached to the land. the covenant facilitates/does not facilitate orderly and harmonious development for commercial use because. a—Here. Reasonable covenants against competition may be considered to run with the land when they serve a purpose of facilitating orderly and harmonious development for commercial use. _____________________________________________________________ Reciprocal Negative Easements I Whether a reciprocal negative easement exists. Covenant not to Compete I R Whether a covenant not to compete runs with the land and is enforceable in equity.. the covenant does/does not encourage the maximum utility of the land in question because.. A Here. the servitude is enforceable and ________ will probably be enjoined from violating the restriction.

. a scheme is the plan of what the grantor wants to do with his land. the reasoning is that the original purchaser of the lot detrimentally relied on the restriction applying to all adjacent parcels. a reciprocal negative easement was/was not created. • It will expire on. • The restriction was created in writing when.. A C Therefore.. The reciprocal negative easement is created in writing with the sale of the first property and runs with the land until it expires. • The nature of this land is such that.. These are created for mutual benefit of all adjacent landowners. It is operative upon use by any owner having actual or constructive notice of its existence. It is the overall purpose of what the land will be used for. it sustains overall property values.. there is a common owner because. • The subsequent sales occurred... and promotes uniformity.. Schemes I R Whether a scheme was created and enforceable in equity.... the restriction or benefit applies to the subsequent sales by the common owner of all the adjacent lots. It is not operative on any owners who purchased land before the restriction or benefit was created.. • There was notice because. Generally. The scheme signifies the overall intent of the grantor.. Finally.R When an owner of 2 or more lots adjacent to each other sells one with a restriction or benefit. A scheme will have legal effect if it is definitely settled by the common owner when the sale of the lots begins although 11 .. Here. • The restriction applies to these properties because.

. The court will balance private interests against public interests to determine whether the covenant will be enforced.. • The public interests are. Here.. a scheme was/was not created and is/is not enforceable... where a contract provision is manifestly against the public interest. _____________________________________________________________ Construing The Covenant 12 . A Here. • The overall purpose is. • There was/was not evidence of the scheme because. but a series of subsequent conveyances supplies that evidence. • Make a decision. • The private interests are..... the covenant states. the court will find the contract unenforceable. the grantor had a plan because. C Therefore. • Subsequent conveyances supplied evidence of the scheme because..... Courts are cautious to void contracts on the basis that they are contrary to public policy.there is no evidence of settlement at that time. A C Therefore... However.... the covenant does/does not violate public policy. _____________________________________________________________ PUBLIC POLICY LIMITATIONS ON COVENANTS AND SERVITUDES I R Whether the covenant or equitable servitude violates public policy. • The common owner is.

.. Here. The factors included: the surrounding circumstances existing at the time of the creation of the covenants.. waiver.. TERMINATION OF RESTRICTIVE COVENANTS AND EQUITABLE SERVITUDES I R Whether the covenant or servitude was terminated. change in condition. Intent of the parties is given great weight and the court will not defeat the purpose for which the covenant was established. The purpose of the restriction is.. express by terms. The beneficiaries are. Abandonment. Termination of covenants or servitudes requires the intent to terminate.I R Whether the covenant will be construed strictly or broadly. it does/does not apply. the beneficiaries.. Change in conditions outside a development will not constitute a termination of a covenant applicable to the development.. The • • • • • nature of the property indicates. [pick one and discuss] • Circumstances.. if the covenant is strictly/broadly construed. the location and character of the tract of land. Termination is determined by the circumstances of each case. Mere non-use of property alone does not constitute a termination of the covenant. and whether the restriction is pursuant to a general plan for the development of the property. The character of the land is... merger. the purpose of the restriction. The location is key because. 13 A .. A C Therefore.. There is a general plan because... acquiescence. and expiration can terminate a covenant or servitude.

. • The nuisance unreasonable interferes with the rights of the entire community because. It is an unreasonable interference affecting the rights enjoyed by citizens as a part of the general public. A C Therefore.C Therefore. 14 . A public nuisance is a burden that affects the entire community.. _____________________________________________________________ PRIVATE NUISANCE I Whether there is a private nuisance. _____________________________________________________________ PUBLIC NUISANCES I R Whether there was a public nuisance... the covenant was/was not terminated. Here. when a party violates a statute or law. there is a public nuisance per se.. • The party violated the statute because. the burden effects the entire community because.. there was/was not a public nuisance. In addition.

the nature of the nuisance is. the contract must be in writing and comply with the statute of frauds for evidentiary purposes—prevention of fraud or perjury in an area of a unique resource. To ensure validity...” that party may have to indemnify the owner of the nuisance. • The enjoyment of their property was burdened because.. Nuisance requires a balancing of the utility of the ∆ ’s conduct against the degree of harm caused to the Π . the writing must include the 15 . Where the nuisance already exists. there was/was not a private nuisance. also the character.. and use of adjoining property. The real estate contract must be a definite expression of the terms of the agreement... Generally. and duration of the nuisance.... alternative means of acquiring ∆ ’s purpose of the nuisance. • The Π did/did not come to the nuisance because.. the contract may be invalid for want of definiteness. volume. The court must determine the nature of the interference by the facts of the case and the location of the properties affected by the nuisance. Here. • Utility of the ∆ ’s conduct is. and a developer builds residences that brings homeowners “to the nuisance.. If not.R A private nuisance is an unreasonable interference affecting a single individual or definite small number of persons in the enjoyment of private rights not common to the general public. • The nuisance unreasonably interfered with a single individual/small number of persons because. A C THE REAL ESTATE CONTRACT I R Whether the real estate contract is enforceable at law. • The degree of harm to the Π is. Nuisances can be non-physical interferences. Therefore..

the written agreement must contain financing terms— standard mortgage agreements. The terms must outline the exact. and remedies for breach. These factors show the party’s intent to contract for the sale of land. date for possession. adequate. that they are negotiating with an understanding that the terms of the contract are not fully agreed upon and a written formal agreement is contemplated. terms may include contingencies that the buyer will only be obligated provided she obtains proper financing. price.. Finally. 16 . the writing must include the names of both parties. Usually. or land installment contract agreements. payment. however. purchase money mortgage agreements. and is there anything to take it out of the statute of frauds. and detailed description of the property conveyed as well as the condition of the premises. ORAL AGREEMENTS I R Whether the oral agreement falls under the statute of frauds. equitable estoppel. a binding contract does not come into existence in the absence of execution of the formal document. there is/is not a valid contract.. Also. signed by the party to be charged. three validation devices work to remove an agreement from under the statute. Although all agreements pertaining to the sale of land must be in writing. A C Here. They are part performance. to commence in futuro is within the statute of frauds. The type of title or deed must be stated to avoid receipt of title that is not clear or freely merchantable.signature of the party to be charge. Therefore. and the written memorandum. to ensure the buyer is paying for what he or she is bargaining for. the nature of the contract. Where the intent of the parties is clear. An oral lease of real estate for a term of one year.

• There was possession because... • Valuable improvements were made because. r—The acts of making valuable improvements on the land OR taking possession and of making part payment. _____________________________________________________________ c—Alternatively.. there was partial performance.. • They were unequivocally referable to the sale of this land because... • Partial payment was made because.. _________ reasonably relied to his detriment because. the nature of the buyer’s conduct shows.. • The circumstances so changed his position because. and allows specific performance for a buyer who makes partial or full payment on land. when they are performed under or in reliance upon the oral contract as to be unequivocally referable to the vendorvendee relationship and not referable to any other relation between the parties are sufficient to remove the contract from the statute of frauds. has so changed his position that injustice can be avoided only by specific performance. a—Here.. equitable estoppel applies.. • These were performed under or in reliance in reliance of the oral agreement because.. The doctrine of part performance is a rule of equity which seeks to minimize unjust enrichment to the seller for valuable improvements made. in reasonable reliance on the contract and on the continuing assent of the party against whom enforcement is sought. r—A contract for the transfer of an interest in land may be specifically enforced notwithstanding failure to comply with the statute of frauds if it is established that the party seeking enforcement... a—Here. c—Therefore.. 17 .A c-There was partial performance...

the written memorandum will take the agreement out of the statute. and the only signature made necessary by the statute is that of the party to be charged... The memorandum that is signed by the party to be charged may be specifically enforced by a Π who has not signed. For instance.... a—Here. A party not signing the memorandum cannot be charged on the contract.. Mutuality of obligation is not essential to the validity of a contract so far as it complies with the statute. the written memorandum will take the agreement out of the statute. The alternative view is that some writing must have the signature of both parties.. equitable estoppel applies..• Injustice can only be avoided by specific performance because. but may be stated in general terms.. the parties are named because... r—One or more notes or memorandum must name the parties and may consist of several writings. 18 . • The memo contains the essentials of the contract because. c—Therefore. the other party has signed because. but not necessarily the same writing. o Terms of payment and price. o Description. terms of payment and price. the description of the property.... • If required.. and terms of sale should be stated generally. _____________________________________________________________ c—Alternatively. o Terms of sale... • The party to be charged has signed because. c—Therefore.. • The terms are general because. It must contain all the essentials of the contract.

.. the circumstances before the execution of a contract will probably not change to the detriment of the parties. the parties rescinded the agreement because.C Therefore. An executory contract involving title to. or an interest in... A C Therefore. The purpose of rescission agreements by mutual assent of the parties is to return them to the status quo. lands may be rescinded by an agreement resting in parol. PAROL MODIFICATION AND RESCISSION I R Whether the subsequent modifications or rescissions must be in writing.. Here. An unexecuted contract carries less possibility of unjust enrichment... • Unjust enrichment will not be implicated because.. The statute of frauds concerns the making of contracts only. CONSTRUCTION AND PERFORMANCE OF THE WRITTEN CONTRACT 19 . Modifications changing the original writing must comply with the statute of frauds.. the agreement complies with the statute of frauds. • The purpose of the rescission was to return the parties to the status quo because. • The circumstances will not change because. the rescission or modification does not require a writing. and does not apply to the matter of their revocation or a release of one’s rights. • The agreement rested in parol because..

. When the parties agree to contract for the sale of land. the conduct of the parties.. time is of the essence when it is clear that the parties have expressly stipulated so. • The buyer was relying on the timing because... the deadlines expressed in the contract will determine the liabilities of the parties and the accruing costs for letting the property off the market in anticipation of the buyer’s payment.. While the property is off the market. • Discuss marketability. • The purpose of the transaction was such that time was of the essence because...I R The issue is when performance is due. the buyer changes his position in the transaction because he may miss the high sale season (spring and summer)... 20 A . Time is not of the essence of the contract of sale and purchase of land unless a contrary purpose is disclosed by its terms or is indicated by the circumstances and object of its execution and the conduct of the parties.. When the property is off the market for a long period. or the purpose for which the sale was made. time was of the essence.. The rationale is that the buyer is relying on whether time will be of the essence or not. • The conduct infers that time was of the essence because. Thus. the value decreases because the best price is usually offered within the first 30 days. Here. • Alternatively.. the circumstances show that time was of the essence because. An exception is any unreasonable delay in paying the purchase money. • There was no unreasonable delay in paying the purchase money because. • Timing was expressed in the agreement because.. Market timing is a strategy that has a great impact on real estate transactions because of marketability. OR their intention is inferable from the circumstances of the transaction.. the seller risks foregoing other possible buyers. In addition.

FINANCING I The issue is the (1) type of financing agreement created and (2) whether the financing agreement fails for indefiniteness.. 21 R A .. The three types of financing agreements are traditional bank lender mortgages. The object of the mortgage document is not to effect the sale of land. A mortgagor differs in that it generally receives title to the land and has the right of redemption. r—A mortgage may be defined as a conveyance of land given as security for the payment of a debt. purchase money mortgages and land installment contracts..C Therefore. has been given possession. the writing must specify the amount of financing. a—Here.. The seller may keep the land and sue for installments due upon buyer’s default. but to provide security for the payment of the debt concerning the land. • The mortgage agreement is to secure a debt. time was of the essence. there is a traditional bank mortgage. • The amount of financing was specified because.. In the financing agreement. One main distinction among the three is that a vendor in a land contract has not conveyed title. and there is usually an escrow involved to assure the buyer can pay taxes on the property without relying on the seller.. ordinarily. not to effect the sale of the land because. • Discuss Escrow issues here. and buyer has no right of redemption.. but the vendee. the land was conveyed because. c—(1) Here..

• The contract specified remedies for default because. • The buyer gave the seller a mortgage because. c—Therefore. a—Here. there was a purchase money mortgage. r—Land installment contracts are agreements to pay the purchase price in a long term sale contract in which the vendor has not conveyed title but the vendee. c—(1) Here. has been given possession. 22 . and bars the right to sue for the balance of the purchase price.. r—A purchase money mortgage differs from traditional mortgages because it involves a financing agreement between only the buyer and seller: the buyer gives the seller a mortgage when the property is conveyed to secure the unpaid balance of the purchase price. Where the seller of land retains title only as security for amounts payable under an installment sale contract.. • The mortgage secured the unpaid balance because. The seller retains legal title to the land while the buyer retains equitable title. there was a traditional bank mortgage.. The contract will contain remedies for buyer’s default. c—(1) Here there exists a land installment contract... there is a purchase money mortgage....c—Therefore. ordinarily. a vendee who willfully defaults in one or more payments after having paid a substantial part of the purchase price retains an absolute right to redeem the property by paying the entire balance of the price and any other costs due. Partial performance (part payment) can bar the seller’s right to take back the land or retain payments. the mortgage involved only the buyer and seller because.

.. the nature of the parties’ conduct shows. Since the law abhors forfeitures.. • The seller has not conveyed title because. a—Here. • The buyer has possession because. the parties’ conduct can modify the contract terms. o The buyer made substantial payments because. the financing agreement was a land installment contract.. • The intent of the parties is expressed because. r—The contract will typically contain a “subject to financing” clause as a conditions precedent to the buyer’s performance.. • Part performance is present because. [identify the type of financing agreement again]. c—(2) The financing agreement does/does not fail for indefiniteness.. • The seller has legal title because. • Alternatively. c—Therefore.. Thus... the seller may waive strict compliance with the provisions of the contract by his conduct showing otherwise. 23 ..... • The buyer has equitable title because. o The buyer willfully defaulted because. In doing so... the agreement was a long term sale contract because.. Where a contract for the sale and purchase of land contains provisions requiring strict compliance.a—Here.... the seller must give notice to the buyer if he does not wish to waive his right to enforce the strict provision of the contract.. the court will refrain from finding indefiniteness if the intention of the parties is expressly ascertained OR ascertainable from the conduct of the parties and all surrounding circumstances.

. • The seller never notified the buyer because. the financing agreement will not fail for indefiniteness. • The purchaser did/did not agree to less than clear title because. • A reasonable person in the ordinary course of business would/ would not feel doubt or uncertainty about the title because. c—Therefore. because title need not be conveyed until the final payment is made or tendered.. In every executory contract for the sale of lands. which continues until merged in the deed of conveyance unless the purchaser expressly agrees to accept less than clear title.. MERCHANTABLE TITLE I R The issue is whether the party conveyed a merchantable title.” The vendor in a real estate contract generally is not obliged to have full and clear merchantable title at all times during the pendency of his contract of sale. • Seller rescinded because.. • The rescission was before performance was due because.... a _______ was created and the financing agreement was definite.• The seller waived his right to enforce strict compliance with the terms of the agreement because. there was an implied warranty of clear and merchantable title because.. not necessarily that the title is actually “bad.. C Therefore.. A title is not merchantable if a reasonably careful and prudent man would refuse to accept the title in the ordinary course of business because of doubt or uncertainty. there is an implied warranty on the party of the vendor that he has a good title. 24 A . Here.....

. • The title includes warranties of quiet enjoyment because. right to convey. and defenses of title against all claims. quiet enjoyment. • The title may not be valid because. freedom from encumbrances. Here. • The title includes warranties of quiet enjoyment because.. A Here.. the grantor conveyed his complete interest because.. but seller was not obligated to deliver good title before law day]. • The title includes warranties of ownership because. _____________________________________________________________ Warranty Deed I Whether the deed is a warranty deed. 25 . including warranties of ownership. there was merchantable title [alternative. R A warranty deed is a deed that expressly guarantees the grantor’s good.... QUITCLAIM DEED I R Whether the deed is quitclaim A quitclaim deed is a deed that conveys a grantor’s complete interest or claim in real property but neither warrants nor professes that the title is valid. • There may be a cloud over the title/deed because... clear title and that the title contains covenants concerning the quality of title.. the deed expresses good title because.. the deed is quitclaim..... A C Therefore.C Therefore. • DISCUSS CIRCUMSTANCES..

Special Warranty Deed I R Whether the deed is a special warranty deed. SWD is a deed in which the grantor covenants to warrant and defend the title against claims and demands of only the grantor and all persons claiming by and under him.• The title includes warranties against encumbrances because. • The title includes defenses because... “While a vendee can recover his money paid on the contract from a vendor who defaults on law day without a showing of tender or even of willingness and ability to perform where the vendor’s title is incurably defective. or whether a curable defect exists... If the defect is incurable... C Therefore. and the seller is on notice of the defect. Here. Thus. the deed was a warranty deed.. the deed is a special warranty deed. the title warrants and defends the title against claims of the grantor because. a tender and demand are required to put the vendor in default where his title could be cleared without difficulty in a reasonable time. 26 .” If the defect is curable. the vendor is automatically in default. seller is entitled to a reasonable time beyond law day to make his title good. • OR. A C Tender I R The issue is tender. the title warrants and defends the title against the claims of parties claiming under the grantor because..

When the seller has received the purchase price. Assignments I Whether the agreement is assignable. breaching the anti-assignment clause results in a trivial breach because. The general rule is where a remedy is inadequate at law... Courts abhor forfeitures and favor the free use of property.. • • • C the nature of the defect is... the defect was curable and seller has the opportunity to make good title.A Here. circumstances that lead to the breach. The seller should have reasonable time to make title good because... Therefore. the agreement is assignable. A Here.. • The nature of the clause is to secure performance because. • Further... equitable remedies can be had... R A provision against assignment in a land sale contract is designed merely to secure performance. • The seller has received the purchase price because. C Thus. a forfeiture might result because. Remedies I R The issue is what remedies apply. the intent of the parties shows..... • Otherwise. The defect is curable because. he has received all that the provision against assignment was intended to secure.. To determine remedies.. and location of the 27 . nature of performance... • Free use of land here should be encouraged because. we look to nature of the property. The seller has notice of the defect because.

o The nature of the property is unique because. Specific performance usually applies where there is unique or extraordinary quality to the property.. • The location of the property is key because. o A—Here. the measure of the vendee’s damages is substantially the same as in the cause of an executed sale. specific performance is adequate because.. 28 .. that is. out of pocket damages).. • R—If the sale fails by reason of a defect in the vendor’s title and the vendor is guilty of no bad faith or fraud. specific performance is proper. o A—here. C—No benefit of the bargain damages apply here. • The nature of performance is. but he can recover nothing for the loss of his bargain.. • C—therefore. o The remedy at law is inadequate because.. or injunctions..... • C—Therefore.... • R—the principle underlying the specific performance remedy is equity’s jurisdiction to grant relief where the damage remedy at law is inadequate. o Legitimate expenses have been incurred because.. the vendee may recover any consideration he has paid. A Here.. and any legitimate expense incurred by him.. bad faith is/is not present because. Equitable remedies include specific performance.property.. actions for the recovery of possession... the nature of the property is. o Consideration has been paid because. THUS.. RULES • C—Specific performance applies... suits to quiet title. • The circumstances are. with interest. Remedies at law include benefit of the bargain (damages for the difference between fair market value and the purchase price. the party is not entitled to loss of bargain..

The principle of equity treats things ought to be done as done.. The rule is limited in its application to cases where the enforcement of the contract is in accord with the intention of the parties. Equitable Conversion I R Whether equitable conversion of property applies.. the buyer receives equitable title subject to seller’s transfer of legal title. there was/was not any bad faith because. and where it will not produce inequitable results. misrepresentation and the like.. If the buyer defaults after an 29 . o The value of the property at the time of the breach is. R—The measure of damages where the vendor has breached a land sale contract is the market value of the property at the time of the breach less the contract price to the vendee. free from fraud. o The market value is. regardless of the good faith of the party. Benefit of the bargain damages are to be awarded for breach of contract for the sale of real estate... Thus. the money interest goes to their estate upon his death. If prior to the completion of a valid contract the seller dies. as soon as a valid contract is made for the sale of an estate. o The difference is. o A—Here..• • • OR C—The party is entitled to benefit of the bargain damages. C—Therefore. equity considers the buyer as the owner of the land. and the seller as the owner of the money due.. the party is entitled to the benefit of the bargain. Under equitable conversion. Equitable conversion is the treating of land as personalty and personalty as land under certain circumstances..

. C Therefore.. who can re-convey. A Here. when real property is destroyed through no fault of the seller before a buyer takes possession... Where there is any loss by a destruction of the property through casualty during the pendency of the contract.. Under the doctrine of equitable conversion. the risk of loss falls upon the buyer. • The money interest goes to the estate. such loss must be borne by the purchaser. • The loss occurred during the pendency of the action because. • There was no fault because.. To determine the risk of loss.. the property remains personalty and reverts to the estate.. • The intention of the parties was... neither party being guilty of causing the destruction.. the nature of the agreement provides.. • Insurance money was paid for the damage because. Risk of Loss I R The issue is who will bear the risk of loss before law day.. 30 . the buyer bears the risk of loss...equitable conversion... equitable conversion applies. any insurance paid to the seller for property damage should be applied on any remaining balance of the purchase price. Even though the buyer bears the risk of loss..... • Buyer has equitable title in the property because.. • The buyer has/has not taken possession because. the nature of the contract was valid and enforceable before law day because. C—Therefore. A—Here. then to the law.) • Equitable conversion would not produce inequitable results.. • There is no fraud because.. look first to the written agreement.(Nature of the agreement/circumstances.

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