Property II Outline
1. Transfers of Land
A. The Land Transaction
a. Transfers of Land -voluntary intervivos transfers of interest in land
i. Equitable Remedy = anything other than money damages
1. can only get if you show that money damages won’t get you what you deserve
2. a remedy that is fair and just
ii. Alienability = transferable
1. prevents land from just being held/controlled by one family/owner forever
**Essential that you know where you are in time
Pre-K à ** K Signed Post Deed
Negotiations (Escrow) Escrow closes
Offer and counter-offer Escrow opens **Deed transfered
Neutral third party $ Paid
Holds K and down payments Claims after Deed transferred
K contingencies = Deed based Claim
(inspections/sale of own home/title search (No more K based claims)
financial arrangements/appraisal) à$ damage remedy
= Contract Based Claims
àrescission/restitution remedy
**Significance regarding which side of escrow you’re on
**Legally significant
I. The Contract of Sale
a. The Statute of Frauds (Hickey)
i. Contract for sale of property must be in writing = First requirement for statute of frauds
ii. Requires certain types of K that need to be in writing
iii. **Property requires contract and deed to be in writing = 2 Places where Statute of Frauds may come up
1. Agreement and Actual transfer = Must be evidenced in writing
iv. Absolute Minimum Requirements
1. Most Important to be in Writing = Absolute Requirements (mostly found in cases)
2. Description of property (Way to show meeting of minds)
3. Signature of party to be bound (Usually both parties)
4. Agreed purchase price or statement of fair market value
a. Can be an informal writing if meets minimal requirements
v. What you might see to suggest SOF is at issue:
1. no facts that suggest writing;
2. ambiguous facts of a writing
vi. How is SOF going to be raised as a claim or argument:
1. The party that doesn’t want it enforced = Defense to enforcement of contract
2. Contract not enforceable because there is no writing
vii. 2 Exceptions: Can be raised by party that wants it enforced
1. Part Performance
2. Estoppel
a. **Raise if other uses SOF
viii. Part Performance: Acted in a way you wouldn’t have because you thought you had a contract and suffered irreparable injury
1. EX. – Paid Money, Improvements to property,
2. = Reliance type of argument
a. Selling a house = not necessarily because you can do that without a contract
ix. Irreparable Injury
1. Not only did I rely or do these acts, they cant be undone and if you don’t enforce, I will suffer injury
x. Estoppel: Justifiable detrimental reliance
1. start with reliance and back up
a. How do you show reliance:
– Acted in a way you wouldn’t have because you thought you had a contract
b. How do you show detrimental:
– I lost something that cant be gotten back
– **Same thing as irreparable injury in part performance
c. How do you show Justifiable:
– What did other person do while this was going on
– Other person knew about it and sat by and watched
– **Switch whose behavior your looking at
xi. Hickey
1. Hickey’s Act: Sold house = not conclusive, could have sold anyways
2. He gets off though because Green admitted there was an agreement
3. His irreparable injury: He sold his house and no longer has one = Part performance satisfied
4. Green knew they were going to sell = Satisfies Estoppel exception as well
5. **Case stands for: SOF must be in writing and if they do you can raise exceptions as defense
b. Marketable Title (Lohmeyer)
i. = Seller’s implied promise in the contract that title will be free from reasonable doubt at the close of escrow
1. Question = is there an issue with title that is likely to lead to litigation?
2. Free from reasonable doubt: Not likely to lead person to litigation
3. How might be discovered?
a. Title search – will reveal whatever problems might exist as title
b. If discovered, you don’t sue, you make seller aware and
close of escrow, the contract merges into the deed and you cant bring any contract based claims
c. After close, contract based claim is gone
c. The Duty to Disclose Defects (Stambovsky, Johnson)
i. Modern law most likely to benefit the buyer; = ***If seller knows there is a material, latent defect with property = S has a duty to disclose
ii. Common law mostly benefits landlord and seller had no duty to disclose defects to buyer
1. Defect must be known to S
2. Must be material = important/big
3. Latent = not obvious or readily identifiable by the buyer (opposite of latent = patent)
a. could be both latent and patent;
– Ex. Leaky roof, obvious when raining
iii. Must be known, latent, and material
1. ***Must look to facts to determine whether latent = likely to be an issue on exam
iv. Issues of material defects:
1. **Some courts use objective and some use subjective standard**
a. Subjective: – Noise; is it only a defect to this particular buyer?
– If you work the night shift, the noise in the day may be subjectively be material b/c sleeps during day
b. Objective: house directly in the flight path
– Latent if you inspected the house after the flight curfew
d. The Implied Warranty of Quality (Lempke)
i. IWQ = Implied promise by the builder that the residence is built to standards of workmanlike quality
1. Implied: there whether it says so or not in the contract
a. applies only to residences generally
b. the implied promise is in the contract with the builder
2. Standards of Workmanlike Quality: What are the local standards?
a. the local standard for what workers are expected to do
