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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 DEEDTYPES AND ELEMENTS C. EXECUTION D. SUBJECT MATTER CONVEYED

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 cAn affirmative easement is present ran affirmative easement entitle one to do acts upon the burdened land. aHere, _______ is entitled to do acts upon the burdened land because... ctherefore the easement is affirmative. cA negative easement is present. ra negative easement entitles the owner of the easement to prevent the owner of the burdened land from making certain uses of the land. ahere, the owner of the easement prevents certain use of the land because... cTherefore, the easement is negative. cThe easement is appurtenant.
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rAn 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. aHere, 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... cTherefore the easement is appurtenant. cThe easement is in gross. rAn 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. aHere, 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... cTherefore, the easement is in gross cA license was created ra 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. aHere, there is no interest in land because...
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The license is revocable at will because... The license is coupled with an interest because... The licensee expended money and labor because... The licensee should have a right of entry because... The purpose of maintaining the structures is... The time of termination will be... cTherefore, a license was created. CREATION OF EASEMENT cThe easement was expressly created. rAn express easement is created in the conveyance. The court will look to the four corners of the instrument and to any surrounding circumstances to determine the intent of the parties. aHere, the nature of the instrument provides... The surrounding circumstances show... Based on the instrument, the circumstances, and the nature of the land, the parties probably intended... cTherefore, an express easement was created. cThe easement was impliedly created. ran implied easement falls under two categories implication by necessity and implication by prior use. Factors to consider that an easement by necessity was created are common ownership of two tracts of land prior to the severance of title, evidence of abutting tracts of land, and facts indicating a landlocked property. 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 easement by necessity will end if no longer necessary to the enjoyment of the land. aHere, there was an easement by necessity because... There was common ownership prior to the severance of title because... The lands are abutting because...
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The nature of the property is landlocked because... The necessity at the time of the original conveyance was... There are no reasonable means of access, ingress, or egress because... o OR aHere, there was an implied easement by prior use. rPrior use arises when an owner of an entire tract of land or two or more adjoining parcels, after employing a part of the tract or one parcel, derives from another, a benefit or advantage of apparent, continuous, and permanent nature, conveys or transfers part of the property. aThe owner of the entire tract of land was... The owner employed part of the land because... The tract benefited from the other because... The advantage was apparent because... The advantage was continuous because... The advantage was permanent because... The nature of the alternative right of way was... cTherefore, the easement was implied by prior use. cThe easement was created by prescription. rAn easement by prescription is created if use of anothers land has been continuous, uninterrupted, and adverse, for at least twenty years, under a claim of right, with knowledge and acquiescence of the owner, and not as a matter of courtesy or favor on his part. aHere, the use was continuous because... It was uninterrupted because... It was adverse to the owner because... The use lasted twenty years because... The owner had knowledge because... The owner silently consented because... The use was not as a matter of courtesy because...
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cTherefore, an easement by prescription was created. TERMINATION OF EASEMENT I R Whether the easement was terminated. An easement can be terminated by mutual agreement or by virtue of the conveying instrument, merger of two lands, unequivocal intent to abandon, release, or by alteration. Mere non-user is not sufficient to terminate an easement. An easement by necessity will end when the easement is no longer necessary to the quiet enjoyment of land. An easement implied by prescription ends when the use is interrupted by acts of the servient owner, but the same adverse use will start the period over again. A Here,... C Therefore, the easement was terminated. REAL COVENANTS I R The issue is whether a real covenant was created. Generally, a real covenant is a promise with respect to land. They can be either affirmative or negative. To enforce a real covenant it must run with the land. Thus, real covenants require a writing, the covenant must touch and concern the land, the parties must have intended the real covenant to run with the land, and there must be privity of estate to recover at law. cThe real covenant is affirmative rAffirmative real covenants require the promisee of the dominant estate to require the promisor of the servient estate to do something on the servient estate. Affirmative real covenants are more likely to be in dispute because it is harder to prove the covenant runs with the land. Generally, affirmative real
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covenants are disfavored because it implicates perpetuities and poses unreasonable restraints on land that bind to all future owners regardless of use. aHere, the promisee, owner of the dominant estate, required the promisor to do ... cTherefore, the real covenant is affirmative. cThe real covenant is negative. rNegative real covenants are restrictions against the promisor from doing something on the servient estate. Negative real covenants are easier to prove that they run with the land because it is easier to meet the requisite elements. aHere, the promisee restricted the promisor from doing _______ on the servient estate. cTherefore, the covenant is negative. cThere is/is not a valid writing. ra writing is required to comply with the statute of frauds because parcels of land are unique, the writing determines the remedy for breaching the covenant (in law or equity), and it helps determine the intent of the parties. aHere, the nature of the writing shows... Statute of frauds because... Remedies because... cTherefore, there is/is not a valid writing.
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cThe real covenant does/does not touch and concern the land rGenerally, to touch and concern means to substantially effect the ownership interests of the burdened and benefited land. 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. Factors that touch and
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concern include the impact on value, quality, and enjoyment of the interests in the land. aThe nature of the covenant substantially effects the interest of the parties because... Discuss circumstances... Impacts the value because... Impacts the quality because... Impacts the enjoyment because... cTherefore, the real covenant does/does not touch and concern...
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cThe parties intended the covenant to run with the land. rWhether 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. aHere, the writing shows... Discuss circumstances... ctherefore, the parties intended the covenant to run with the land.
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cThere is/is not privity of estate between the parties. rThe modern view is that no more than vertical privity is required. 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. aHere, the party presently claiming the benefit/burden is... The party is a successor to the estate of the original person so benefited/burdened because... cTherefore, there is/is not privity of estate between the parties.

C Therefore, there is/is not a valid real covenant that runs with the land. EQUITABLE SERVITUDES I R The issue is whether an equitable servitude was created. 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. To be enforceable, an equitable servitude still requires a writing and must comply with the statute of frauds. However, it may be enforceable provided there is notice. Notice is based on equity. A party purchasing land with notice that a covenant is attached must not violate the covenant. Notice can be actual, constructive or by inquiry. The typical remedy is an injunction against the party violating the restriction in the covenant.

cThere was/was not actual notice. rActual notice requires knowledge of the covenant within the deed. aHere, the party had/did not have/ knowledge of the covenant within the deed because... cTherefore, there was/was not actual notice. _____________________________________________________________ cThere was/was not constructive notice. rConstructive 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. Constructive notice arises by operation of law. aHere, the party should have known about the covenant because... The covenant was in the deed because... The deed was recorded and the party could have found out about the covenant because...
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cTherefore, there was/was not constructive notice. _____________________________________________________________ cThe party was/was not obligated to inquire. rThe 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. aHere, the nature of the property shows... By walking the land, ________ should have been put to inquiry because... cTherefore, the party was/was not obligated to inquire. C Therefore, the servitude is enforceable and ________ will probably be enjoined from violating the restriction.

Covenant not to Compete I R Whether a covenant not to compete runs with the land and is enforceable in equity. 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. Harmonious development encourages the maximum utility of land.

Here, the covenant facilitates/does not facilitate orderly and harmonious development for commercial use because... Thus, the covenant does/does not encourage the maximum utility of the land in question because... C Therefore, the covenant not to compete does/does not run with the land. _____________________________________________________________ Reciprocal Negative Easements I Whether a reciprocal negative easement exists.
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When an owner of 2 or more lots adjacent to each other sells one with a restriction or benefit, the restriction or benefit applies to the subsequent sales by the common owner of all the adjacent lots. The reciprocal negative easement is created in writing with the sale of the first property and runs with the land until it expires. It is operative upon use by any owner having actual or constructive notice of its existence. It is not operative on any owners who purchased land before the restriction or benefit was created. These are created for mutual benefit of all adjacent landowners, it sustains overall property values, and promotes uniformity. Finally, the reasoning is that the original purchaser of the lot detrimentally relied on the restriction applying to all adjacent parcels. Here, there is a common owner because... The restriction was created in writing when... The subsequent sales occurred... The nature of this land is such that... The restriction applies to these properties because... There was notice because... It will expire on...

C Therefore, a reciprocal negative easement was/was not created. Schemes I R Whether a scheme was created and enforceable in equity. Generally, a scheme is the plan of what the grantor wants to do with his land. It is the overall purpose of what the land will be used for. The scheme signifies the overall intent of the grantor. A scheme will have legal effect if it is definitely settled by the common owner when the sale of the lots begins although
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there is no evidence of settlement at that time, but a series of subsequent conveyances supplies that evidence. A Here, the grantor had a plan because... The overall purpose is... The common owner is... There was/was not evidence of the scheme because... Subsequent conveyances supplied evidence of the scheme because...

C Therefore, a scheme was/was not created and is/is not enforceable. _____________________________________________________________ PUBLIC POLICY LIMITATIONS ON COVENANTS AND SERVITUDES I R Whether the covenant or equitable servitude violates public policy. Courts are cautious to void contracts on the basis that they are contrary to public policy. However, where a contract provision is manifestly against the public interest, the court will find the contract unenforceable. The court will balance private interests against public interests to determine whether the covenant will be enforced. Here, the covenant states... The private interests are... The public interests are... Make a decision...

C Therefore, the covenant does/does not violate public policy. _____________________________________________________________ Construing The Covenant
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I R

Whether the covenant will be construed strictly or broadly. Intent of the parties is given great weight and the court will not defeat the purpose for which the covenant was established. The factors included: the surrounding circumstances existing at the time of the creation of the covenants, the location and character of the tract of land; the purpose of the restriction; the beneficiaries; and whether the restriction is pursuant to a general plan for the development of the property. The nature of the property indicates... The location is key because... The character of the land is... The purpose of the restriction is... The beneficiaries are... There is a general plan because...

Therefore, if the covenant is strictly/broadly construed, it does/does not apply. TERMINATION OF RESTRICTIVE COVENANTS AND EQUITABLE SERVITUDES I R Whether the covenant or servitude was terminated. Termination of covenants or servitudes requires the intent to terminate. Abandonment, waiver, merger, change in condition, express by terms, acquiescence, and expiration can terminate a covenant or servitude. Mere non-use of property alone does not constitute a termination of the covenant. Termination is determined by the circumstances of each case. Change in conditions outside a development will not constitute a termination of a covenant applicable to the development. Here, [pick one and discuss] Circumstances...
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C Therefore, the covenant was/was not terminated. _____________________________________________________________ PUBLIC NUISANCES I R Whether there was a public nuisance. A public nuisance is a burden that affects the entire community. It is an unreasonable interference affecting the rights enjoyed by citizens as a part of the general public. In addition, when a party violates a statute or law, there is a public nuisance per se. Here, the burden effects the entire community because... The nuisance unreasonable interferes with the rights of the entire community because... The party violated the statute because...

C Therefore, there was/was not a public nuisance. _____________________________________________________________ PRIVATE NUISANCE I Whether there is a private nuisance.

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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. Nuisances can be non-physical interferences. Nuisance requires a balancing of the utility of the s conduct against the degree of harm caused to the , also the character, volume, and duration of the nuisance, alternative means of acquiring s purpose of the nuisance, and use of adjoining property. 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. Where the nuisance already exists, and a developer builds residences that brings homeowners to the nuisance, that party may have to indemnify the owner of the nuisance. Here, the nature of the nuisance is... The nuisance unreasonably interfered with a single individual/small number of persons because... The enjoyment of their property was burdened because... Utility of the s conduct is... The degree of harm to the is... The did/did not come to the nuisance because... Therefore, there was/was not a private nuisance.

THE REAL ESTATE CONTRACT I R Whether the real estate contract is enforceable at law. The real estate contract must be a definite expression of the terms of the agreement. If not, the contract may be invalid for want of definiteness. To ensure validity, the contract must be in writing and comply with the statute of frauds for evidentiary purposesprevention of fraud or perjury in an area of a unique resource. Generally, the writing must include the
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signature of the party to be charge. The terms must outline the exact, adequate, and detailed description of the property conveyed as well as the condition of the premises, to ensure the buyer is paying for what he or she is bargaining for. Also, the writing must include the names of both parties, price, date for possession, payment, and remedies for breach. The type of title or deed must be stated to avoid receipt of title that is not clear or freely merchantable. Finally, the written agreement must contain financing terms standard mortgage agreements, purchase money mortgage agreements, or land installment contract agreements. Usually, terms may include contingencies that the buyer will only be obligated provided she obtains proper financing. A C Here, the nature of the contract... Therefore, there is/is not a valid contract.

ORAL AGREEMENTS I R Whether the oral agreement falls under the statute of frauds, and is there anything to take it out of the statute of frauds. An oral lease of real estate for a term of one year, to commence in futuro is within the statute of frauds. Although all agreements pertaining to the sale of land must be in writing, signed by the party to be charged, three validation devices work to remove an agreement from under the statute. They are part performance, equitable estoppel, and the written memorandum. These factors show the partys intent to contract for the sale of land. Where the intent of the parties is clear, however, 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, a binding contract does not come into existence in the absence of execution of the formal document.
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c-There was partial performance. rThe acts of making valuable improvements on the land OR taking possession and of making part payment, 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. The doctrine of part performance is a rule of equity which seeks to minimize unjust enrichment to the seller for valuable improvements made, and allows specific performance for a buyer who makes partial or full payment on land.

aHere, the nature of the buyers conduct shows... Valuable improvements were made because... There was possession because... Partial payment was made because... These were performed under or in reliance in reliance of the oral agreement because... They were unequivocally referable to the sale of this land because... cTherefore, there was partial performance. _____________________________________________________________ cAlternatively, equitable estoppel applies. rA 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, in reasonable reliance on the contract and on the continuing assent of the party against whom enforcement is sought, has so changed his position that injustice can be avoided only by specific performance. aHere, _________ reasonably relied to his detriment because... The circumstances so changed his position because...
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Injustice can only be avoided by specific performance because... cTherefore, equitable estoppel applies. _____________________________________________________________ cAlternatively, the written memorandum will take the agreement out of the statute. rOne or more notes or memorandum must name the parties and may consist of several writings. It must contain all the essentials of the contract, but may be stated in general terms. For instance, the description of the property, terms of payment and price, and terms of sale should be stated generally. A party not signing the memorandum cannot be charged on the contract, and the only signature made necessary by the statute is that of the party to be charged. Mutuality of obligation is not essential to the validity of a contract so far as it complies with the statute. The memorandum that is signed by the party to be charged may be specifically enforced by a who has not signed. The alternative view is that some writing must have the signature of both parties, but not necessarily the same writing. aHere, the parties are named because... The memo contains the essentials of the contract because... o Description... o Terms of payment and price... o Terms of sale... The terms are general because... The party to be charged has signed because... If required, the other party has signed because... cTherefore, the written memorandum will take the agreement out of the statute.
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Therefore, the agreement complies with the statute of frauds.

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

C Therefore, the rescission or modification does not require a writing. CONSTRUCTION AND PERFORMANCE OF THE WRITTEN CONTRACT
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I R

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

FINANCING I The issue is the (1) type of financing agreement created and (2) whether the financing agreement fails for indefiniteness. The three types of financing agreements are traditional bank lender mortgages, purchase money mortgages and land installment contracts. One main distinction among the three is that a vendor in a land contract has not conveyed title, but the vendee, ordinarily, has been given possession. The seller may keep the land and sue for installments due upon buyers default, and buyer has no right of redemption. A mortgagor differs in that it generally receives title to the land and has the right of redemption. c(1) Here, there is a traditional bank mortgage. rA mortgage may be defined as a conveyance of land given as security for the payment of a debt. The object of the mortgage document is not to effect the sale of land, but to provide security for the payment of the debt concerning the land. In the financing agreement, the writing must specify the amount of financing, and there is usually an escrow involved to assure the buyer can pay taxes on the property without relying on the seller. aHere, the land was conveyed because... The mortgage agreement is to secure a debt, not to effect the sale of the land because... The amount of financing was specified because... Discuss Escrow issues here...
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cTherefore, there was a traditional bank mortgage. c(1) Here, there is a purchase money mortgage. rA 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. The contract will contain remedies for buyers default. aHere, the mortgage involved only the buyer and seller because... The contract specified remedies for default because... The buyer gave the seller a mortgage because... The mortgage secured the unpaid balance because... cTherefore, there was a purchase money mortgage. c(1) Here there exists a land installment contract. rLand 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, ordinarily, has been given possession. The seller retains legal title to the land while the buyer retains equitable title. Partial performance (part payment) can bar the sellers right to take back the land or retain payments, and bars the right to sue for the balance of the purchase price. Where the seller of land retains title only as security for amounts payable under an installment sale contract, 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.

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aHere, the agreement was a long term sale contract because... The seller has not conveyed title because... The buyer has possession because... The seller has legal title because... The buyer has equitable title because... Part performance is present because... o The buyer willfully defaulted because... o The buyer made substantial payments because... cTherefore, the financing agreement was a land installment contract. c(2) The financing agreement does/does not fail for indefiniteness. rThe contract will typically contain a subject to financing clause as a conditions precedent to the buyers performance. Since the law abhors forfeitures, 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. Where a contract for the sale and purchase of land contains provisions requiring strict compliance, the seller may waive strict compliance with the provisions of the contract by his conduct showing otherwise. In doing so, 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. Thus, the parties conduct can modify the contract terms. aHere, [identify the type of financing agreement again]. The intent of the parties is expressed because... Alternatively, the nature of the parties conduct shows...
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The seller waived his right to enforce strict compliance with the terms of the agreement because... The seller never notified the buyer because... cTherefore, the financing agreement will not fail for indefiniteness. C Therefore, a _______ was created and the financing agreement was definite.

MERCHANTABLE TITLE I R The issue is whether the party conveyed a merchantable title. In every executory contract for the sale of lands, there is an implied warranty on the party of the vendor that he has a good title, which continues until merged in the deed of conveyance unless the purchaser expressly agrees to accept less than clear title. 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, not necessarily that the title is actually bad. 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, because title need not be conveyed until the final payment is made or tendered. Here, there was an implied warranty of clear and merchantable title because... 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... Seller rescinded because... The rescission was before performance was due because...
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Therefore, there was merchantable title [alternative, but seller was not obligated to deliver good title before law day].

QUITCLAIM DEED I R Whether the deed is quitclaim A quitclaim deed is a deed that conveys a grantors complete interest or claim in real property but neither warrants nor professes that the title is valid. Here, the grantor conveyed his complete interest because... The title may not be valid because... There may be a cloud over the title/deed because... DISCUSS CIRCUMSTANCES...

C Therefore, the deed is quitclaim. _____________________________________________________________ Warranty Deed I Whether the deed is a warranty deed.

R A warranty deed is a deed that expressly guarantees the grantors good, clear title and that the title contains covenants concerning the quality of title, including warranties of ownership, quiet enjoyment, right to convey, freedom from encumbrances, and defenses of title against all claims. A Here, the deed expresses good title because... The title includes warranties of ownership because... The title includes warranties of quiet enjoyment because... The title includes warranties of quiet enjoyment because...
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The title includes warranties against encumbrances because... The title includes defenses because... C Therefore, the deed was a warranty deed.

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. Here, the title warrants and defends the title against claims of the grantor because... OR, the title warrants and defends the title against the claims of parties claiming under the grantor because... Thus, the deed is a special warranty deed.

Tender I R The issue is tender, or whether a curable defect exists. 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 vendors title is incurably defective, a tender and demand are required to put the vendor in default where his title could be cleared without difficulty in a reasonable time. If the defect is curable, and the seller is on notice of the defect, seller is entitled to a reasonable time beyond law day to make his title good. If the defect is incurable, the vendor is automatically in default.
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A Here, C

the nature of the defect is... The defect is curable because... The seller has notice of the defect because... The seller should have reasonable time to make title good because...

Therefore, the defect was curable and seller has the opportunity to make good title.

Assignments I Whether the agreement is assignable. R A provision against assignment in a land sale contract is designed merely to secure performance. When the seller has received the purchase price, he has received all that the provision against assignment was intended to secure. Courts abhor forfeitures and favor the free use of property.

Here, the intent of the parties shows... The nature of the clause is to secure performance because... The seller has received the purchase price because... Otherwise, a forfeiture might result because... Free use of land here should be encouraged because... Further, breaching the anti-assignment clause results in a trivial breach because... C Thus, the agreement is assignable. Remedies I R The issue is what remedies apply. The general rule is where a remedy is inadequate at law, equitable remedies can be had. To determine remedies, we look to nature of the property, nature of performance, circumstances that lead to the breach, and location of the
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property. Remedies at law include benefit of the bargain (damages for the difference between fair market value and the purchase price, out of pocket damages). Equitable remedies include specific performance, actions for the recovery of possession, suits to quiet title, or injunctions. A Here, the nature of the property is... The nature of performance is... The circumstances are... The location of the property is key because... THUS,... RULES CSpecific performance applies. Rthe principle underlying the specific performance remedy is equitys jurisdiction to grant relief where the damage remedy at law is inadequate. Specific performance usually applies where there is unique or extraordinary quality to the property. o Ahere, specific performance is adequate because... o The remedy at law is inadequate because... o The nature of the property is unique because... Ctherefore, specific performance is proper. CNo benefit of the bargain damages apply here. RIf the sale fails by reason of a defect in the vendors title and the vendor is guilty of no bad faith or fraud, the measure of the vendees damages is substantially the same as in the cause of an executed sale; that is, the vendee may recover any consideration he has paid, with interest, and any legitimate expense incurred by him, but he can recover nothing for the loss of his bargain. o AHere, bad faith is/is not present because... o Consideration has been paid because... o Legitimate expenses have been incurred because... CTherefore, the party is not entitled to loss of bargain.
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OR CThe party is entitled to benefit of the bargain damages. RThe 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. Benefit of the bargain damages are to be awarded for breach of contract for the sale of real estate, regardless of the good faith of the party. o AHere, there was/was not any bad faith because... o The market value is... o The value of the property at the time of the breach is... o The difference is... CTherefore, the party is entitled to the benefit of the bargain.

Equitable Conversion I R Whether equitable conversion of property applies. Equitable conversion is the treating of land as personalty and personalty as land under certain circumstances. If prior to the completion of a valid contract the seller dies, the money interest goes to their estate upon his death. Under equitable conversion, the buyer receives equitable title subject to sellers transfer of legal title. The principle of equity treats things ought to be done as done. Thus, as soon as a valid contract is made for the sale of an estate, equity considers the buyer as the owner of the land, and the seller as the owner of the money due. The rule is limited in its application to cases where the enforcement of the contract is in accord with the intention of the parties, free from fraud, misrepresentation and the like, and where it will not produce inequitable results. If the buyer defaults after an
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equitable conversion, the property remains personalty and reverts to the estate, who can re-convey. AHere, the nature of the contract was valid and enforceable before law day because... The money interest goes to the estate... Buyer has equitable title in the property because... The intention of the parties was...(Nature of the agreement/circumstances...) Equitable conversion would not produce inequitable results... There is no fraud because... CTherefore, equitable conversion applies. Risk of Loss I R The issue is who will bear the risk of loss before law day. To determine the risk of loss, look first to the written agreement, then to the law. Under the doctrine of equitable conversion, when real property is destroyed through no fault of the seller before a buyer takes possession, the risk of loss falls upon the buyer. Where there is any loss by a destruction of the property through casualty during the pendency of the contract, neither party being guilty of causing the destruction, such loss must be borne by the purchaser. Even though the buyer bears the risk of loss, any insurance paid to the seller for property damage should be applied on any remaining balance of the purchase price. A Here, the nature of the agreement provides... The loss occurred during the pendency of the action because... There was no fault because... The buyer has/has not taken possession because... Insurance money was paid for the damage because... C Therefore, the buyer bears the risk of loss.
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