Business Law and the Regulation of Business Chapter 51: Transfer and Control of Real Property

1. Business Law and the Regulation of BusinessChapter 51: Transfer and Control of Real Property By Richard A. Mann & Barry S. Roberts

2. Topics Covered in this Chapter I. Transfer of Real Property A. Contract of Sale B. Deeds C. Secured Transactions D. Adverse Possession II. Public and Private Controls A. Zoning B. Eminent Domain C. Private Restrictions on Land Use

3. Contract of Sale • Formation- a contract to transfer any interest in land must be in writing to be enforceable. • Marketable Title - the seller must transfer marketable title, which is a title free from any defects or encumbrances.

4. Quality of Improvements • Common Law Rule - under caveat emptor (“let the buyer beware”) the seller is not liable for any undiscovered defects. • Implied Warranty of Habitability - in a number of States, the builder-seller of a dwelling impliedly warrants that a newly constructed house is free from latent defects.

5. Deeds • Definition- a formal document transferring any type of interest in land. • Types • Warranty Deed - the grantor (seller) promises the grantee (buyer) that she has valid title to the property without defect. • Special Warranty Deed - the seller promises that he has not impaired the title. • Quitclaim Deed - the seller transfers whatever interest she has in the property.

6. Requirements • The deed must (1)­be written, (2)­contain certain words of conveyance and a description of the property, (3)­end with the signature of the grantor, a seal, and an acknowledgment before a notary public, and (4)­be delivered.

7. Recordation • Required to protect the buyer's interest against third parties; consists of delivery of a duly executed and acknowledged deed to the appropriate recorder's office.

8. Secured Transactions • Elements- a secured transaction involves (1)­a debt or obligation to pay money, (2)­an interest of the creditor in specific property that secures performance, and (3)­the debtor's right to redeem the property (remove the security interest) by paying the debt.

9. Secured Transactions • Mortgage - interest in land created by a written document that provides security to the mortgagee (secured party) for payment of the mortgagor's debt. • Deed of Trust - an interest in real property which is conveyed to a third person as trustee for the benefit of the creditor.

10. Transfer of Mortgage Interests • Assumes the Mortgage - the purchaser of mortgaged property becomes personally liable to pay the debt. • Subject to the Mortgage - purchaser is not personally liable to pay the debt, but the property remains subject to the mortgage. • Foreclosure - upon default, sale of the mortgaged property to satisfy the debt.

11. Fundamental Rights of Mortgagor and Mortgagee Debtor/Mortgagor (D) (1) To redeem property by payment of debt (2) To possess general rights of ownership as limited by mortgage money/credit Creditor/Mortgagee (C) (1) To recover amount of debt (2) To foreclose the mortgaged property upon default to satisfy debt D C mortgage in real property

12. Adverse Possession • Definition- acquisition of title to land by open, continuous, and adverse occupancy for a statutorily prescribed period. • Possession - must be actual and without intervening domination by true owner.

13. Zoning • Principal method of public control over private land use; involves regulation of land but may not constitute a taking of the property. • Authority - generally delegated to local authorities by statutes known as enabling acts. • Judicial Review - zoning ordinances may be reviewed to determine if they are invalid or a confiscation of property.

14. Exceptions to Zoning • Variance - a use differing from the zoning ordinance; granted to avoid undue hardship. • Nonconforming Use - a use not in accordance with, but existing prior to, a zoning ordinance; permitted to continue for a reasonable time.

15. Eminent Domain • Definition- the power of a government to take (buy) private land for public use. • Public Use - public advantage. • Just Compensation - the owner of the property taken by eminent domain must be paid the fair market value of the property.

16. Eminent Domain Has there been a taking of private property? No Takings provision of constitution does not apply Yes Is the taking for public use? No Taking is unconstitutional Yes No Has the owner received just compensation? Yes Taking is constitutional

17. Restrictive Covenants • Definition- private restrictions on property contained in a conveyance. • Covenants Running with the Land - covenants that bind not only the original parties but also subsequent owners of the property. • Covenants in Subdivision - bind purchasers of lots in the subdivision as if the restrictions had been inserted in their own deeds .