WATSON REAL PROPERTY II – FALL 2011
I. Introduction
1) Steps
a. K to close (not required)
i. earnest money K
-buyer gives seller deposit to show intent to buy
-if buyer breaches, usually seller keeps deposit as liquidation damages
b. executory period
i. time to: validate ownership, clear title, get loan
c. close
i. installment land K
-seller finances buyer
-buyer possess house, but seller doesn’t give buyer title until all loan satisfied
2) Security
a. promissory note
i. recourse
-bank (mortgagee) hold buyer (mortgagor) personally liable to repay debt
-mortgagee gets money by going after mortgagor personally
ii. non-recourse
-mortgagor is not personally liable for note
-mortgagee can only go after the home (mortgage)
b. mortgage
i. mortgagee holds house as security for repayment
ii. if mortgagor doesn’t repay the loan, default, and foreclosure
iii. mortgagee gets money by sale proceeds
3) Foreclosure
a. mortgagor in default
b. mortgagee terminates mortgagor’s equitable right of redemption
c. remainder of debt is satisfied by deficiency judgment (recourse personal liability)
II. Statute of Frauds
1) Law
a. rule
i. land sales require written K (no oral K)
ii. can be multiple pages
iii. if writing destroyed, parties can testify to it
b. requirement
i. written K
-K/memo/note/letter/check/pleading
-doesn’t have to be a traditional K
-but if no writing, unenforceable
ii. essential terms (PP-DICS)
-parties (names)
-price (not essential-reasonable if not included)
-description (don’t need to be specific)
-intent
-consideration
-signature (of person resisting enforcement) (any form)
-(don’t need closing date)
c. rescind land K (eliminate K)
i. written: valid
ii. oral: valid
d. modify land K (creating a K)
i. written: valid
ii. oral: invalid (exception: oral modification of time of performance upheld)
2) Exception (no SOF)
a. part performance
i. definition
-substitute for writing
ii. evidence (O-PPI)
-oral K (PP-DICS)
-buyer substantial/total payment (alone not enough)
-buyer possession (biggest factor)
-buyer substantial improvements
iii. rationale
-evidentiary: actions give evidence of the K
-estoppel: reliance/fairness/prevent injustice
iv. law
-full performance: cannot rescind
-partial performance: K enforceable in equity
v. remedy
-specific performance (no damages)
III. Time of Performance
1) Introduction
a. parties don’t have to fix a time for performance
b. default: reasonable time
2) Time is of the Essence Clause
a. definition
i. oral or written clause stating specific date of performance
ii. can be declared unilaterally
b. law
i. TOE clause:
-breach
•reasonably late (30 days): total breach (exception: waiver)
•unreasonably late: total breach (exception: waiver)
ii. no TOE clause:
-breach
•reasonably late (30 days): parties can still perform
•unreasonably late (10 years): total breach
iii. TOE modification
-rule
•party can write/orally create TOE clause later
-types
•mutual agreement
•unilateral (SR)
-specific
-reasonable (previous conduct, hardship /prejudice, # of days provided)
c. remedies
-buyer
•actual
•S.P.
•restitution
•special
-seller
•actual
•S.P.
•liquidation
•special
3) Conditions
a. definition
i. condition on party’s duty to perform
b. types
i. precedent
-must occur before party has duty to perform
-exception: waiver
ii. concurrent
-neither party has duty to perform until other party has tendered performance
-tender: willing and able to perform
-exception: repudiation, unwillingness to perform, difficult/impossible performance
c. exceptions
i. waiver
ii. repudiation
iii. unwilling to perform
iv. impossible to perform
v. interference
IV. Financing
1) Introduction
a. promissory note
i. personal liability to pay off loan (mortgagee’s ability to sue mortgagor personally)
ii. secured by mortgage
b. mortgage
i. security interest to repay the note (mortgagee’s ability to foreclose on property)
2) Types
a. cash sale (from seller POV)
i. definition
-seller walks away with 100% of asking price in cash
-buyer gets legal title
-bank gets promissory note and mortgage
ii. types
-cash buyer
-bank loan
b. installment land K
i. definition
•seller finances buyer
•buyer doesn’t get title until all payments made
c. assumption
e still subject to liens
-buyer cannot skirt a lien by assigning equitable title to assignee
VI. Remedies After Breach
1) Full Breach SALL R
a. actual damages (law)
i. situation
-buyer and seller K to sell
-buyer or seller backs out
-victim entitled to actual damages regardless of actor’s intent
ii. definition
-how much a party is hurt
-can only recover if harmed
•buyer: FMV raises above K price
•seller: FMV falls below K price
iii. types
-English Rule: not seller’s fault: buyer only gets restitution (deposit w/ expenses)
-American Rule: regardless of seller fault: buyer gets restitution (deposit w/ expenses)
-NJ: majority: regardless of seller fault: buyer gets FMV – K price
iv. formula
-(K price – FMV on date of breach) + special [expenses, lost profit, increase interest]
v. example 1
-A to B for 100
-FMV rises to 120
•A backs out
-A: nothing (he breached)
-B: 20 (120-100)
•B backs out
-A: nothing (wasn’t hurt)
-B: nothing (he breached)
-FMV decreases to 80
•A backs out
-A: nothing (he breached)
-B: nothing (wasn’t hurt)
•B backs out
-A: 20 (120-100)
-B: nothing (he breached)
b. specific performance + special (equity)
i. definition
-force party to perform
ii. available (UFI)
i. property is unique (RE is per se unique)
ii. fair (neither party harmed)
iii. regular damages are inadequate
iii. unavailable
i. seller cannot perform (no title, no $)
ii. buyer purpose is resale (easily measured with actual damages)
iii. K lists other damages, not S.P.
c. lien
i. definition
-force money out of someone by putting lien on their asset
ii. example
-seller breach
-buyer can put lien on home to get deposit back