3.               Government-sponsored Mortgage Market Support Institutions

4.               Mortgage Risk

 

3.      Real Estate Development

9.               Subdivision & Construction

1.               Overview

2.               Land Option & Developers

3.               Purchase Money Land Financing

4.               Mechanics Liens

5.               Construction Loans & Other Mortgages to Secure Future Advances

10.            Planned Unit Developments, Condominiums and Cooperatives

1.               PUDs

2.               Condos

3.               Coop Apts

4.               Conversion of Rental Housing to Condos & Coops

Real Estate Transactions Outline

1.      Real Estate Transfer

11.            REAL ESTATE BROKERS & LISTING AGREEMENTS

1.               Overview

1.               Closely-Regulated by States

2.               Two Types of Licenses           

1.               Broker

2.               Sales Agent

(1)            Only act under broker's supervision.

3.               Broker's Authority

1.               Majority: Broker's authority is limited to show, advertise & market property.

(1)            Cannot force sale. But seller may still be liable for commission.

4.               Multiple Listing Service (MLS)

1.               Increases market exposure for property.

2.               Placing offer on MLS may create implied oral agency agreement b/w listing broker and subagent.

 

 

2.               The Listing Contract

1.               Exclusive Right to Sell

1.               For a specified period, even if broker is not the cause of the sale. Implied that broker must use best efforts.

2.               Exclusive Agency to Sell

1.               If broker does not cause sale, not entitled to commission.

2.               Specified period.

3.               Open Listing

1.               Must be "Procuring Cause"

(1)            Broker gets commission only if he finds a buyer.

2.               No requirement that broker use best efforts.

4.               Net Listing

1.               Broker must make deal that will net x dollars.

5.               Option Listing

1.               Broker has a right as principal to buy property as a last resort.

 

3.               Approaches to Valuation of Property

1.               Market Data

1.               Empirical approach compares property to similar property. Question re subjective factors.

2.               Cost

1.               Historical cost vs. replacement cost

(1)            Useful where party has peculiar use only.

3.               Capitalization of Income

1.               Income producing property

2.               Net operating income (NOI): Capitalization rate = value.

3.               Cap Rate = Multiple of annual NOI x Risk factor

 

4.               Brokers & Statute of Frauds

1.               Writing Required. Listing Contract must be in writing. S/F vigorously enforced. [see CA Civ. Code § 1624(d)]

2.               Evidentiary & Solemnity Functions

 

5.               Broker's Commission—When has Broker Earned Commission?

1.               Majority Rule: Broker earns commission when he produces a buyer who is ready, willing and able under the terms of the listing or if seller accepts buyer's different conditions

1.               Default Rule Only: Broker and client are free to alter these rules contractually.

2.               Presumption in favor of LDs.

 

2.               Minority Rule: Commission is not earned until performance of contract.

1.               Generally means close of escrow.

2.               Rationale

(1)            More realistic b/c people pay commission from funds in escrow.

(2)            Public Policy: if deal does not close, buyer was not ready, willing & able. Forces brokers to facilitate actual closing.

(3)            Where seller wrongfully prevents closing, courts following this rule will grant specific performance to make seller pay commission anyhow.

3.               Drake

1.               Facts: Broker entered listing agreement w/Drake specifying conditions to payment of commission. Broker finds buyers, but Drake withdraws offer and refuses to pay commission on gnds transaction did not close.

2.               Held: Drake must pay per terms of listing agreement. Court discusses majority and minority approach.  Likes minority rule, but says n/a to these facts where seller frustrated deal.

 

6.               Withdrawal from Sale Clause (Breach of Listing Contract)

1.               CA Rule: Withdrawal from sale clause in listing contract is enforceable according to its terms.  Not a breach nor an unlawful penalty. Gives seller an option to cancel contract.  Option price = must pay broker according to K.

1.               Equivalent of LDs: Courts likely to uphold unless clearly excessive or punitive.

 

2.               Blank v. Borden

1.               Facts: Exclusive 7-mo. listing. 6% commission payable even if Seller exercised withdrawal on sale clause. Broker made reasonable efforts, but Seller decided not to sell.

2.               Holding: Withdrawal from sale clause is not void penalty. Generally enforceable according to its terms.

3.               Measure of broker's damages is value of lost opportunity to make the sale.

 

3.               Rationale

1.               Presumption in favor of LDs: Courts unable to determine whether sale would have been effected had withdrawal clause not been invoked.

 

7.               Duties of Investigation & Disclosure

1.               Inspection Statutes: CA Civ Code § 1102 et seq. and § 2079 et seq.

1.               Codifies Easton

 

2.               Scope of Inspection: Limited to reasonably diligent visual inspection of accessible areas.

(1)            "No Dirty Knees" [§ 2079(3)].

(2)            Condominium: only unit for sale.

 

3.               Must Disclose Material Facts affecting value or desirability of the property.

4.               Mandatory: Parties may not waive.

5.               Residential Property Only

(1)            1-4 units.

(2)            Applies to sales, options to purchase, & ground leases.

(3)            Assume commercial buyers more experienced.

 

2.               Easton v. Straussburger

1.               Fact: Soil problems on property caused landslides. Agents did not inspect or disclose to buyer.

2.               Issue: Does a broker's duty of due care in a residential real estate transaction include a duty to conduct a reasonably competent and diligent inspection of the property in order to discover defects for benefit of buyer?

3.               Holding: Broker negligent. Breach of duty was proximate cause of buyer's injury.

4.               Rule: Duty to disclose includes affirmative duty to conduct a reasonably competent and diligent inspection of residential property and to disclose to prospective buyers all facts materially affecting the value or desirability of the property that such an investigation would reveal.

 

3.               Transfer Disclosure Statement—[§ 1102]

1.               Brokers want as much of burden on seller as possible.

2.               Force seller not to play hide & seek w/known problems.

3.               Seller must provide at earliest practicable opportunity.

 

4.               Buyer's Duty to Inspect Continues—[§ 2079 (5)]

1.               Must exercise reasonable care.

2.               Includes known facts and discoverable on reasonable inspection.

 

5.               "As Is" Clauses & Disclaimers

1.               Seller's Duties Persist

(1)            Seller must still complete form disclosure.

(2)            Must disclose known material defects not equally accessible to buyer.

(3)            No Fraud: As is language does not shield seller or its agent from liability for affirmative or negative fraud.

 

2.               Broker's Duty to Inspect & Disclose Persists

(1)            "As is" clause never relieves broker's duty to inspect & disclose all defects found on reasonable visual inspection.

(1)            No duty to inspect inaccessible areas or neighbor's statements, etc.

 

6.               Look for Negligent Misrepresentation

 

8.               Agency, Dual Agency & Agency Disclosure—CA Civ. Code § 2079 et seq.

1.               Agent Defined—[§ 2079 (13)]

1.               One who represents another, called the principal, in dealing with a third person.

 

2.               Broker usually a special agent with limited powers.

(1)            Finder: Limited role. No agency.

(2)            Escrow agent: limited agent for both parties. No imputation of knowledge.

 

3.               Existence of Agency is a Question of Fact.  Court looks at conduct of parties. Does purported agent have a degree of

(1)            Control

(2)            Discretion

 

4.               Creation: No writing required. Agency relation may be created or implied even if there is no written contract.

(1)            Agency is as agency does: actions that look like agency may imply one.

(2)            Payment of compensation not necessarily determinative of agency relationship.

 

5.               Imputed Knowledge/Actions: for liability purposes an agent's acts and knowledge are imputed to his principal.

 

2.               Subagency: someone employed to assist agent in performance of services to principal.

1.               Listing Broker is liable for wrongful acts of cooperating broker—subagent—toward third parties.

2.               Usually created by MLS Listing.

 

3.               Agent's Fiduciary Duties to Principal—[§ 2079 (12)]

1.               Fiduciary duty of utmost care, integrity, honesty and loyalty .

2.               Full and Complete Disclosure to principal of all material facts that would affect the principal's decision to enter into a transaction.

3.               No Conflicts: Agent may not compete w/principal.

 

4.               CA Agency Disclosure Statute—[§ 2079 (12)]

1.               Higher duty applies to sale of residential property.

(1)            Hansen says should apply to commercial as well.

2.               As soon as practicable, selling agent shall disclose to seller whether the listing agent is acting exclusively as seller's agent, or as a dual agent representing both the buyer and the seller...

(1)            Must be confirmed in K to purchase.

 

5.               Duty & Disclosures of Seller's Agent to Buyer—[§ 2079 (16)]

1.               Must disclose role in writing per form.

(1)            As soon as practicable.

(2)            Must be before buyer signs offer to purchase.

2.               Reasonable care and skill in performance of duties.

3.               Good faith & fair dealing

4.               Disclose Material Facts affecting value or desirability of property.

5.               Cannot reveal confidential information.

6.               Breach of Duty

(1)            Buyer has c/a.

(2)            S/L: 2 years, but n/a to intentional fraud.

 

6.               Standard of Care—[§ 2079 (2)]

1.               Reasonably prudent real estate licensee (broker).

 

7.               Dual Agency—[§ 2079 (16), (21)]

1.               Permitted but only w/knowledge & consent of both parties.

2.               Timely disclosure required.

(1)            Must disclose in writing to both parties.

3.               Agent owes full fiduciary duties to both sides

4.               May not disclose to either party that the other is willing to sell/buy at lower/higher price w/o that party's express written consent.

 

8.               Undisclosed Dual Agency

1.               No Right to Enforce Commission

(1)            Where agent fails to notify both principals of dual agency, agent may not collect commission.

(2)            Scope of Disclosure: Agent must disclose all facts that would reasonably affect the judgment of each party in permitting dual agency.

(3)            Actual conduct or injury irrelevant.

(4)            Policy: discourage conflicts of interest. Encourage informed transactions.

 

·                 Culver v. Jaoudi: Classic broker fraud case. Agent sues for commission. Facts indicated undisclosed dual agency. Broker denied being buyer's agent and acted like seller's agent. Deemed to be dual agent. You act and you are. Held: Broker cannot collect commission. Broker's actual behavior does not matter b/c rule is a matter of general policy.

 

2.               Remedy for Violation

(1)            Broker gets no commission

(2)            Seller may void listing agreement and transaction.

(3)            Buyer may look to Real Estate Recovery Fund for limited remedies after it has exhausted all other remedies. High threshold.

 

·                 Huijers v. DeMarrais: Broker signed listing agreement w/o disclosing dual agency to sellers. Issue: whether sellers may rescind listing agreement and/or purchase K.

Held: Sellers not liable to pay 6% commission. But sellers could not avoid transaction here b/c disclosure given prior to signing purchase contract.  Court construes substantial compliance strictly.

Notes that form explicit: "you should from outset understand what type of agency relationship or representation..." and Agent must disclose all facts that would reasonably affect the judgment of each party in permitting dual agency.

·                 Because seller pays broker's commission, seller may reasonably believe broker only has seller's best interest at heart and is working exclusively for the seller.

 

·                 Hansen sez: Probably undisclosed dual agency. Court says CA agency law applies. May or may not b/c residential property transaction. Materiality: 6% commission. But causation? Claim based on misrep, but no reasonable reliance?

 

12.            CONTRACTS FOR THE SALE OF LAND

1.               Generally

1.               Writing Required.

2.               Executory: Signing of binding K (earnest money) does not end ambivalence.

3.               Contingencies & Conditions Precedent remain

1.               Financing

2.               Inspection

(1)            Clean title to be transferred at COE

(2)            Title insurance.

4.               Property Description

1.               Reasonable particularity sufficient. No set form.

2.               Rural Land: metes & bounds or Jefferson Township system.

3.               Urban Land: usually refer by lot #. Already surveyed, defined & recorded w/county.

 

2.               Forms of Transfer

1.               Earnest Money/Deposit Receipt/Marketing K: per marketing/listing contract

1.               Offer to Purchase: Buyer fills out standard form & signs. Seller may accept subject to counteroffer if buyer appends one.

2.               Deposit: Buyer generally wants to keep low b/c LDs for Buyer's breach are keyed to this amount.

(1)            Usually not to exceed 3%.

2.               Exchange

1.               Tax-free Exchange: per IRC § 1031.

3.               Installment Land Sale

1.               Seller Carryback

(1)            Supplemental financing from seller.

(2)            Seller secured creditor. Takes second note & deed of trust.

(3)            Transfer of title to buyer.

 

2.               Installment Land Contract

(1)            Fully-amortized

(2)            Hybrid of mortgage & marketing contract.

(3)            No transfer of title. Seller retains title as security.

 

3.               Mortgage-type Remedies: Courts increasingly adopting mortgage-type remedies for vendor/vendee default.

4.               Option

1.               Defined: Consideration paid to make offer irrevocable for a stated period of time.

2.               Call Option: option to buy

3.               Put Option: option to sell

4.               Distinguish—Free Option: poorly-drafted bilateral contract or other defect in a real estate K which gives one party power to avoid K with impunity for a substantial period of time.

 

·                 Caras v. Parker: (This case is wrong!).  Escrow instructions were used to document what court characterized as an "option". Reasoning is wrong; result-oriented. If adopted as a general rule, escrow instructions would create free options for buyers, contrary to economic efficiency.

 

5.               Leasehold

1.               Term > 1 year: may have attributes of ownership

2.               Ground Lease: 50 year term w/option to renew.

(1)            Lessee's improvements revert to lessor/owner at end of term.

(2)            Allows businesses to deduct lease payments as business expense.

 

3.               Statute of Frauds & Part Performance—CA Civ. Code § 1624(c)

1.               Writing Required—most contracts for sale of land.  S/F important b/c

1.               Real Property as Unique

2.               Unusually Long Executory Period

3.               Relationship to Escrow

4.               Relationship b/w K and Deed

5.               Title Issues

6.               Exceptions

(1)            Part Performance

(2)            Equitable Estoppel

(3)            Courts are more likely to find exception as to oral agreement between buyer and seller. Not b/w buyer & broker.

 

2.               Functions of S/F & Writing

1.               Evidentiary

(1)            Memorialize transaction

(2)            Objective measure of parties' intent

(3)            Discourages fraud & perjury

2.               Solemnity

(1)            Significance of signing reinforces parties' true assent.

3.               Contract Construction

(1)            Where language of K unclear, court will look at parties' unambiguous behavior.

 

3.               Equal Dignity Rule—[CB p. 31 FN]

1.               Only seller's agent needs to have written and recorded authority to sign a memorandum on behalf of his principal.

 

·                 Schwinn v. Griffith:  Sale of property at auction. Purchaser reneged and refused to sign purchase agreement. Auctioneer signed. Issue: whether auctioneer is agent for buyer or seller. Crucial issue is who does agent represent and who agent can bind on gnds that agent's knowledge is imputed to his principal.

·                 HELD: S/F applies. Auctioneer is seller's agent. But becomes agent for buyer when buyer makes winning bid®auctioneer's signature on purchase agreement bound purchaser as his principal.

 

4.               Elements a Writing Sufficient to Satisfy S/F

1.               Counterparts: not every party much sign each one.

2.               Integration K/PER: writing embodies parties' final agreement, integrates all previous oral agreements.

3.               May not be conclusive evidence, but will not be applied to defeat parties' intent where there is sufficient extrinsic evidence.

 

5.               Relationship between Contract and Deed

1.               Contract: usually contains conditions precedent and contingencies

2.               Deed: By closing usually only mutual covenants remain.

(1)            Buyer pays & seller delivers deed.

3.               Deed & Escrow Instructions

(1)            Taken together may satisfy S/F where contract is oral.

 

6.               Validity: When is K Void/Voidable?

1.               Fraud in the Inducement®Voidable

(1)            Intent to contract based on false promise

(2)            But defrauded party knew it was signing a contract.

(3)            Fraud feasor cannot enforce

(4)            3rd Parties: BFP can enforce and keep land.

 

2.               Fraud in the Facto®Void

(1)            No intent or capacity to contract

(2)            Third party rights not enforceable, despite reliance.

(3)            BFPs cannot enforce.

 

4.               Remedies—Specific Performance & "Mutuality of Remedy"

1.               Restitutionary: Reliance Damages

1.               Return to status quo ante. Undo deal.

2.               Out of pocket damages recoverable.

 

2.               Compensatory Damages

1.               Give non-breaching party the benefit of bargain.

2.               General Damages

3.               Consequential or Special Damages

(1)            Traditional English Rule: allows rescission and out-of-pocket costs only except

(1)            Compensatory damages allowed if breach was wilful or in bad faith.

(2)            Majority American Rule: Allows general and consequential damages. General measure of damages for any breach is

(1)            K price - value on date of breach

1)               May fluctuate if long closing period

(2)            Irrespective of good or bad faith

(3)            Buyer likely to breach where market value decreases

(4)            Seller likely to breach where market value increases.

(3)            Majority Rule: Consequential Damages (Rule of Hadley v. Baxendale)

(1)            May recover lost profits, etc.

(2)            Where damages are not speculative

(3)            Damages must be proximately caused and within the contemplation of the parties or foreseeable at the time of contract.

1)               Cf: Tort Damages require only proximate causation.

 

3.               Specific Performance—Equitable Remedy

1.               Court uses equitable power to consummate deal.

(1)            Equitable conversion

2.               Non-exclusive: may also get damages where other costs are incurred as a result of other party's breach.

(1)            May also plead damages/specific remedies in the alternative.

3.               For Buyer: Court orders transfer of deed. Assumes damages are inadequate remedy b/c land is unique.

(1)            For residential real estate

4.               For Seller: Limited. Harder to prove that money damages are insufficient.

 

4.               Mutuality of Remedy—Specific Performance Sought by Seller

1.               Non-ownership of land is unique

2.               Seller asks court to force sale

3.               Courts have stopped accepting since 1970s

 

5.               Vendor's (Grantor's) Liens

1.               Arises by operation of law if buyer breaches after transfer of title.

(1)            Only where no consensual lien

(2)            Only to extent necessary

6.               Vendee's Liens

1.               Arises by operation of law if seller breaches after buyer has paid value. Law implies lien to secure at least repayment of funds buyer had already paid.

 

5.               Time of Performance

1.               Rule: Time is generally not of the essence (material).

1.               Reasonable Periods Permitted: Failure to close on closing date will not be deemed a material breach.

2.               Late party may be liable for "interim" damages caused by delay.

3.               Mutual failure to tender: neither party is in breach and closing automatically extended to date set by notice from one party to the other.

2.               "Time is of the Essence" Clause

1.               Makes delay a material breach, and invokes all remedies.

2.               Either party can make time of the essence by unilateral notice to other party.

3.               Waiver: either party can waive requirement.

3.               Long Executory/Escrow Period

1.               Time of perf is most litigated issue in real estate

2.               Much can change during escrow period.

4.               Tender of Performance Required

1.               Rule: Court may not allow party to recover against breaching party where it has not performed itself and court can deem a default.

2.               Exceptions

(1)            Anticipatory repudiation of K

(2)            Futility: Show other party has no intention to perform

(3)            Other party's performance is impossible

 

·                 Century 21 v. Webb: Seller refused to proceed with sale per Earnest Money Agreement. Escrow short. Not enough $ to clear title. Broker & buyer sue.  But court says buyer never satisfied tender requirement. Never tendered $ before demanding deed.

 

6.               Title to Be Conveyed and the Implied Covenant of Marketable Title

1.               Marketable Title: Statement that title is free from reasonable doubt

1.               Where parties do not provide otherwise, law provides promise to give good and marketable title.

 

2.               Insurable Title: Statement of what is acceptable as marketable title to an insurance company and what they will insure buyer against.

1.               Primary risk: title company takes primary risk, but will require seller to indemnify against secondary risk.

2.               Writeover: not listing a known risk that is deemed insignificant.

 

3.               Effect of a Writing—Doctrine of Merger by Deed

1.               Old Rule: At closing all contract covenants drop away unless specifically provided otherwise in contract.

2.               Modern Rule: Courts must determine parties' intent.

 

·                 Laba v. Carey: K on title company form: Seller to provide good title, subject to easements and restrictive covenants of record. Sidewalk not at grade required by ordinance. City granted variance. Issue: Whether buyer can recover & refuse to perform K on gnds title is unacceptable.

·                 Held: Title is marketable b/c K provided for exceptions. Ct sez level of sidewalk not related to title.

·                 Rule: Title company's statement must be unequivocal unless exceptions are in K. Where a purchaser agrees to take title subject to easements and restrictive covenants of record which are not violated, this is the precise kind of title the seller is obligated to tender. That obligation is not broadened by the usual "insurance" clause.

 

4.               Other Title Issues

1.               Encumbrance: any charge, restriction on rights of property owner.

2.               Access: complete lack of access to public road may make title unmarketable

3.               Encroachments: usually considered to affect marketable title

(1)            Physical intrusion

(2)            May depend on encroacher's position

4.               Title by Adverse Possession

(1)            Generally not marketable b/c of detailed factual proof of vendor's possession necessary

 

5.               Buyer's Recourse

1.               Before Closing: on discovery of encumbrance or other title problem, buyer can cancel K or can sue for violation of implied covenant of marketable title.

2.               After Closing: Buyer has more difficulty. Some arguments may be foreclosed, depending on circumstances and on parties' intent.

 

7.               Attorneys Fees

1.               American Rule denies prevailing party attorneys fees absent a contractual or statutory provision expressly authorizing a fee award.

 

8.               Equitable Conversion

1.               Ownership

1.               Legal Title: Record title. Name listed in county recorder's office.

2.               Beneficial Ownership: May be same as legal or bifurcated.

(1)            Trust: trustee is legal owner; beneficiary is equitable owner.

 

2.               Rule: Buyer becomes equitable/beneficial owner upon signature of executory K for sale of land.  Seller retains legal title as security for the price.

 

3.               Purpose: Basis for courts to order specific enforcement of executory K and force Seller to deliver corresponding legal title.

1.               Equity does that which should have been done.

 

4.               Characterization: Is Vendor's interest after signing of K real or personal property?

1.               Cannefax v. Clement: Clement is judgment lien creditor w/automatic lien on real estate. Attempts to enforce vs. real property already sold under executory K.

(1)            Issue: whether seller/judgment debtor's interest in executory land K is deemed real property or personal property.

(2)            Held: Equitable conversion on signing of executory K. Personal property. Cred can't get it.

 

5.               Risk of Loss: When does it pass?

1.               Old Rule: Buyer bears risk of loss.

2.               CA Rule (Uniform Act; 10 states): Seller bears risk until transfer of possession.

(1)            Buyer cannot force seller to reduce/abate price.

3.               Exception: Where a material part of subject property is destroyed w/o fault of either party & neither title nor possession has passed to purchaser, vendor's performance is excused and purchaser is entitled to the return of any consideration paid.

(1)            Unfair to require either party to accept less than bargain.

 

6.               Reasons to Put Legal Title in Another's Name

1.               Tax

2.               Protection vs. creditors

3.               Undisclosed principal

4.               Prevent lender from invoking due on sale clause

 

9.               Intro to Mortgage Financing

1.               Mortgage: 2-party K b/w mortgagor (debtor) and mortgagee (creditor).

 

2.               CA Law—Deed of Trust: Because in CA mortgage is deemed to create a lien, which expires w/S/L. Bars private enforcement.

1.               Deed of Trust: 3-party arrangement. Creates SI & transfer of title. Creditor may use non-judicial enforcement after S/L runs.

(1)            Trustor: Debtor entrusts trustee to hold title.

(2)            Trustee: Title co or other.

(3)            Beneficiary: bank or other lender. Has SI in title.

3.               Equity of Redemption

1.               Debtor may pay down obligation in  full and free property at any time. Extinguishes SI.

 

4.               Non-Judicial Foreclosure: Trustee's Sale

1.               4-month process: attempts to ensure ample notice of default and pending sale.

2.               Expeditious: But no deficiency action

(1)            CA Anti-deficiency laws: incorporate "fresh start" idea.

3.               Final: No right of redemption in debtor. Sold irrevocably.

4.               Credit Bid: Lender can make a full or partial credit bid to purchase.

5.               Trustee's Deed: title given by trustee to successful bidder.

(1)            Powerful Priority: Deed relates back to creation of trust. Superior to any intervening interests. Bidder takes free and clear.

(2)            May Create a "Sold-out Junior"

(3)            Senior interests persist.

 

5.               Judicial Foreclosure

1.               Takes much longer

2.               Deficiency Action: Lender retains right to sue for shortfall.

3.               Right of Redemption: Obligor maintains 1 year right of redemption.

(1)            Option to repurchase property at foreclosure price.

(2)            Transferable right.

(3)            May be worth more than obligor's right.

 

6.               Election of Remedies—Non-exclusive

1.               Creditor may pursue both judicial and nonjudicial remedies simultaneously until earlier of either

(1)            Close of trustee's sale or

(2)            Entry of judgment

7.               Strict Foreclosure

1.               Forfeiture on default.

2.               Most states do not allow for real estate.  Must sell.

 

8.               Debt Instruments & Collateral Assignment

1.               Promissory note is negotiable instrument [UCC Art. 3].

(1)            Freely transferrable commercial paper.

2.               Creditor may assign mortgage paper as assignment of chattel paper (personal property) under UCC Art. 9.

3.               Prepayment Penalty (Conflict w/equity of redemption?)

(1)            Even when prepayment is involuntary, when lender accelerates, lenders may impose prepayment penalty unless credit or loan agreement states otherwise.

 

9.               Due on Sale Clause [see CB pp. 22-23].

1.               Loan comes immediately due in the event owner/borrower transfers title

2.               Important in rising interest rate market

3.               Preserves banks' rights & limits exposure to interest rate fluctuation and unknown credit risk of transferees.

 

10.            Conditions in Executory Marketing Contracts

1.               Bushmiller: Most conditions in K carry covenants/duties.

1.               Affirmative Duty to Make Reasonable Efforts: Party always has a duty to satisfy conditions within its power. Must use reasonable efforts to satisfy condition. Failure of reasonable efforts will not satisfy good faith requirement.

(1)            Corollary of duty of good faith & fair dealing.

(2)            E.g.: Buyer's financing contingency carries duty that buyer use reasonable efforts to obtain financing.

2.               Waiver of Conditions—Doryon v. Salant (CA)

1.               Rule: Where a condition benefits a party, that party may waive such condition at its discretion.          

(1)            Other side should push party to be clear.

 

 

13.            COMMERCIAL LEASING

1.               Generally

1.               Free Option: key concept in real estate. Allows flexibility as market changes over time.

2.               Long Term K: who benefits as markets change over time?

 

2.               Restraints on Alienation & Transfer of Leases

1.               Although the law favors free alienability of property, contractual restrictions on alienability of leasehold interests are permitted to protect interests of the lessor. However, such restrictions will be strictly construed.

 

2.               Kendall v. Ernest Pestana

1.               Facts: Long term commercial lease required lessor's consent to assign or sublet. Set no standard for lessor's consent.

2.               Issue: What is standard for lessor's consent where K not stipulate?

(1)            Majority: Any reason.

(2)            Minority: Commercially reasonable. Question of fact.

3.               Holding: Court adopts minority rule.  Commercial reasonableness standard.

4.               Rule: Where a lease provides for assignment only with the consent of the lessor, such consent may be withheld only where the lessor has a commercially reasonable objection to the assignment, even in the absence of a provision in the lease stating that consent to assignment will not be unreasonably withheld.

5.               Reasoning: Dual analysis:

(1)            Public policy against restraints on alienation and

(1)            Conveyancing law: common law rule codified in CA Civ Code § 711.

(2)            Courts should "clear pathways of commerce."

(3)            Rule no longer just to limit "dead hand" control of land.

(2)            Implied contractual duty of good faith and fair dealing—K law.

6.               Quantum of Restraint Test

(1)            Balance degree of restriction w/reasonableness.

(2)            Cost/benefit analysis.

(3)            Forfeiture Restraint: No longer absolute disabling restraint.

(4)            Kendall court distinguished leasehold from fee simple. Lessor maintains reversionary interest.

7.               Commercial Reasonableness Inquiry

(1)            Really just trying to get at parties' intent and bargain.

 

8.               Kendall represents zenith of implied duty of good faith and fair dealing. After Kendall, CA legislature enacts CA Civ.Code 1995. Pares back use of implied duty.

 

3.               CA Civ.Code § 1995

1.               1995.230: A restriction on transfer of a tenant's interest in a lease may absolutely prohibit transfer.

2.               1995.240: Lessor may include provision whereby he collects the excess above the rent under the lease, if the lessee assigns the interest without consent.

 

3.               Limits on Implied Covenant of Good Faith and Fair Dealing

1.               Carma

1.               Facts: Lease K drafted w/Kendall & Kendall statute in mind. Recapture clause gave lessor right to kick out lessee if lessee requested lessor's consent to sublet.

2.               Holding: Sea change in interpretation of covenant of good faith and fair dealing. Court limits its application. There is implied duty not to violate K covenants. Implied covenant will NOT override parties express K covenants.

2.               Rule

1.               § 1995.210 permits a commercial lease to contain a restriction on tranfer of the lessee's interest subject only to general contract limits of unconscionability, etc. Parties power to restrict transfer is unlimited.

2.               Implied covenant of good faith and fair dealing may not be read to prohibit a party from doing that which is expressly permitted by agreement, subject to public policy limits. 

3.               Implied covenant of good faith and fair dealing is interstitial—gap filler, plainly subject to parties' right to grant, by express agreement, the right to engage in acts and conduct which would otherwise be estopped by implied covenant.

 

4.               Unconscionability—UCC Doctrine

1.               Ilkchooyi

1.               Rule: Doctrine of unconscionability applies to invalidate an express condition on transfer in a commerical lease, despite Legislature's broad authorization on such restrictions & reaffirmation of freedom of contract.

2.               Holding: Profit-shifting device too unfair and overbearing.

3.               Court says Legislature intended term "consideration" to be limited by connection to the value of lease.

 

2.               Elements of Unconscionability

1.               Procedural elements

(1)            Inequality of bargaining power which results in no real negotiation and an absence of meaningful choice

(2)            Surprise re terms hidden in prolix form drafted by party seeking to enforce disputed terms.

2.               Substantive elements

(1)            One-sided terms

(2)            lacking justification

(3)            reallocate risks of bargain in unreasonable or unexpected manner.

3.               Compare Unconscionability and Implied Covenant of GF & FD

1.               Implied Covenant: Affirmative covenant

2.               Unconscionability: Negative covenant

 

14.            DEEDS & CONVEYANCING

1.               Types of Deeds

1.               Grant Deed:  Presumption that grant is fee simple. But can modify.

 

2.               Quitclaim Deed: Passes whatever interest grantor had in the property and nothing more. No warranties.

 

3.               Warranty Deed: Grantor also warrants (i) good title; and (ii) grantee's quiet enjoyment.

1.               Not often used in CA b/c statutory implied covenants in grant deed and common use of title insurance.

 

4.               Deed of Trust: Deed conveying bare legal title to trustee to secure an obligation to be performed by trustor (grantee) who usually possesses property.

1.               Trustee's only interest is right to sell property at foreclosure if trustor defaults on obligation.

2.               Multiple deeds of trust can encumber same land.

 

2.               Elements of a Valid Deed

1.               In writing

2.               Names of parties

3.               Description of land

1.               Surveyor's description or surveyed map. Metes & bounds.

2.               Attached to or incorp in deed.

3.               Critical b/c this is what will be recorded. Get a legal description from title company and attach photocopy. Don't retype.

4.               Signature of Grantor

5.               Language reflecting a present intent by the grantor to transfer

1.               "Grant"; "grant deeds"

 

3.               Delivery of Deed—Intent to Pass Title + Act to Evidence Such Intent

1.               Delivery of Seisin

1.               Action to evidence intent to convey legal title.

2.               Witnesses & notary may be present

 

2.               Modern Approach—Critical Device to Transfer of Legal Title

1.               Contract: Parties bargain to form bilateral K—promise to buy/sell subject to contingencies.

2.               Escrow: creation of joint agency to carry out parties' instructions on how to close deal.

3.               Irrevocable on Opening: Once escrow opens, it is irrevocable, in theory.

(1)            Each side puts things in: deed, $ for price.

4.               Close of Escrow

(1)            Seller becomes owner of price

(2)            Buyer becomes owner of land

(3)            Original lender is paid off

5.               After Transfer: Deed is only evidence of transfer of title.

(1)            Recordation & description are important

3.               Rules

1.               No consideration needed for delivery of deed.

2.               No recordation needed for valid conveyance

(1)            But important to priority.

(2)            Recordation = presumption of delivery

(1)            Majority: rebuttable

(2)            Minority: conclusive

 

4.               Grantee's Acceptance

1.               Where grantee acts as owner, acceptance presumed unless acceptance would be burdensome to grantee.

 

5.               Interpretation of Deeds

1.               In favor of grantee and against grantor

 

4.               Non-Deed Transfers

1.               Judgments

1.               Court clerk can sign deed and pass title particularly in judgment for specific enforcement.

2.               Subdivision

3.               Foreclosure

1.               Buyer gets sheriff's or trustee's deed

4.               Adverse Possession

1.               Reward for trespassing.  Open, hostile, notorious possession for more than 5 years.

5.               Will

1.               If gift of land intervivos, be sure to address consideration issues and distinguish grant intent from testamentary intent.

6.               Intestacy

7.               Community Property Set Aside for surviving owner

8.               Joint Tenancy Right of Survivorship

 

5.               Conditional Deed

1.               Generally

1.               Majority Rule: Conditions held ineffective and grantee takes title free of condition as a matter of law.

(1)            Grantor should use escrow to apply conditions and contingencies to closing.

2.               Minority Rule: No delivery b/c conditions negate grantor's intent to convey.

 

2.               Delivery on death of Grantor

1.               Ineffective and void b/c Grantor must have present intent to convey immediately.

(1)            Courts may void only the condition and enforce grant.

(2)            Other courts may find an outright grant w/reservation of a life estate in the Grantor.

(3)            Others may treat as a will, but must then comply w/testamentary formalities.

 

6.               After-Acquired Title Doctrine—[CA Civ. Code § 1106]

1.               Where a person purports by a proper instrument to grant real property in fee simple, and subsequently acquires any title, or claim of title thereto, the same passes by operation of law to the grantee, or his successors.

2.               Shit thru a goose doctrine

 

·                 Schwenn v. Kaye:  P granted title to oil royalties to daughter as gift. P sold property w/o mention of royalties to D. Arco paid royalties to D. P gets title back from daughter & sues D. Held: Title passes to D by operation of after-acqd title doctrine.

 

7.               Estoppel by Deed

1.               Rule: If grantor purports to convey any estate, but later adds conditions, under certain circumstances courts will estop the grantor from asserting rights under such conditions.

1.               No Take Backs.

 

8.               Failure of Delivery & Escrow

1.               Timing Issues: When escrow closes can matter a great deal in terms of who bears risk of loss.

1.               Temporal Fraud: timing of closing can be manipulated to commit fraud.

 

2.               Todd v. Westermark:  Secured lender/deed of trust beneficiary is asked for her payoff demand so she will reconvey the deed. Escrow closes and title company issues policy before reconveyance. Escrow holder embezzled funds prior to COE. 

1.               Issue: Who bears the loss due to embezzlement?

2.               Holding: Court scrutinized escrow instructions. Deemed closing premature. Imposed loss on Buyer on grounds that prior to COE, funds deposited into escrow are still property of Buyer. Also Buyer covered by title insurance and thus best able to bear the loss. Escrow required marketable title and title insurance voluntarily took risk of premature closing before lienholder reconveyed deed.

3.               Rule: Terms and conditions of an escrow must be strictly performed.

4.               Rule: When conditions are fully performed, title passes immediately and recordation of documents operates to evidence the passing of title previously accomplished.

5.               Reality: Escrow agent capitalized at only $1.98. Beware!! 

(1)            Escrow holders must post fidelity bond. Some recourse in event of fraud.

6.               Title Insurance Viewed as Quasi-Public Safety Net

(1)            Here, court reaches to put loss on title insurer.

 

9.               Warranties of Quality—Physical Qualities of Property, Not Title

1.               Liability: Who can property owners sue? Is privity of K required?

1.               CA Rule: tends not to require privity. Courts may imply warranties.

2.               NY Rule: Caveat emptor rule, but eroding.

(1)            Courts apply various equitable tools to mitigate severity of rule.  Estoppel, waiver, laches.

·                 Stambovsky v. Ackley (NY 1991): Haunted house case. Court limits caveat emptor: "Where a condition  which has been created by the seller materially impairs the value of the contract and is particularly within the knowledge of the seller or unlikely to be discovered by a prudent purchaser exercising due care..., nondisclosure constitutes a basis for rescission as a matter of equity."

2.               No Fraudulent Concealment:  Vendor has a duty to disclose material facts which are latent, not readily observable or discoverable through a purchaser's reasonable inspection.  Especially where

1.               Residential Property

2.               Dangerous defect

3.               Seller created defect

4.               Seller gave buyer reassurances re quality

 

3.               Off Site Conditions

1.               Seller generally must disclose where such conditions are material to the transaction

(1)            e.g.: a hazardous waste site 1/2 mile away.

 

4.               Liability to Remote Purchasers—Builder/Vendors

1.               Seller may be liable where seller has reason to expect subsequent buyers will be affected by nondisclosure.

2.                

(1)            Rule:

 

5.               Theories of Liability in Absence of Privity

1.               Implied Warranty to All Future Owners of Workmanlike Construction

(1)            Rule: Builder/Vendors impliedly warrants that residential building is constructed in good workmanlike manner and fit for human habitation. [J. Stiles, TX].

 

(2)            Rule against Disclaimers:  Builder cannot disclaim warranties generally.  Must be specific and strictly construed against vendor.

 

2.               Negligence—Imposes broad duty on builders

(1)            Rule: A subsequent purchaser may recover in negligence against a builder if purchaser can establish builder's negligence proximately caused his damage. [Oates, NC].

 

3.               Strict Product Liability

(1)            Because Negligence and Causation are hard to prove, in limited circumstances—usually prefab houses—courts may apply strict product liability standard.

(2)            Plaintiff needs only prove product is not fit for purpose...

 

4.               Construction Lender's Responsibility for Major Projects

(1)            CA Rule [Connor]

(1)            Applies where construction lenders are actively involved in building and inspection.

(2)            Query: what is source of legal duty to buyers?

1)               All other cases say no duty.

(3)            Hansen sez: Plaintiffs' bar goes after deep pockets where builder unavailable.

 

6.               Statutes of Repose

1.               Temporal limit on builders' liability. Different purpose than S/L.

2.               CA Rule: 10 years for latent construction defects. Calculated from completion of construction.

 

10.            Title (Deed) Covenants and CCRs

1.               Covenants Running with the Land

1.               Based on Privity of Estate not K

 

2.               Present Covenants: Can be breached only at moment of conveyance

1.               Covenant of Seisin

2.               Covenant of Present Right to Convey

3.               Covenant against Encumbrances

 

3.               CA Civil Code § 1113: Any grant or conveyance of real property implies only two covenants:

1.               Grantor has not previously conveyed the property or any interest to any other person.

2.               Estate is free from any encumbrances done, made, or suffered by the grantor or any person claiming under him.

(1)            Unless otherwise agreed by the parties.

 

4.               Future Covenants

1.               Quiet Enjoyment: Implies duty to defend title.

(1)            Rule: Breach requires a union of acts of disturbance and lawful title.

(1)            Constructive Eviction: court decree or threat of litigation.

2.               Further Assurances: residual promise to provide documents to clear title in event of error.

 

5.               Measure of Damages—Limits

1.               No more than price paid even where property has appreciated.

2.               Relation to Subrogation Rights

(1)            Title insurers may use these as basis to sue to recover amounts they have paid out to insured buyers.

 

6.               Conditions, Covenants & Restrictions (CC&Rs)

1.               Reflect modern living and change in limits on right to use property.

 

2.               Old Rule: Covenant must be embodied in a deed to enforce against a subsequent grantee. [Still applies in majority of states.]

(1)            Must be in writing

(2)            Adequate written description of land

(3)            Instrument must disclose intent to bind successors

(4)            Touches & concerns the land

(5)            Must be recorded

(6)            Only benefit, not burden, runs at law

 

3.               New Rule—CA: Where owner of property publicly records declaration establishing common plan and containing CC&Rs, such restrictions will bind all subsequent owners, whether or not it is referenced in the deed.

(1)            Must be recorded prior to execution of purchase K.

(2)            Must describe property it governs

(3)            Must state that it binds all purchasers & successors who have constructive notice

(4)            Rationale

(1)            Subsequent owners are deemed to have notice and to have assented in paying for property.

(2)            CC&Rs should be enforceable provided they are reciprocal.

(5)            Counterpoint

(1)            Title insurers don't like this rule b/c it broadens their liability.

 

4.               Citizens for Covenant Compliance v. Anderson: D, Grantee, wants to raise llamas & open small winery. Neighbors disagree and seek to enforce a CC&R that limits property use to residential use.

(1)            Held: Where CC&R contained in public record, owners are deemed to have constructive notice.  CC&R is enforceable.

5.               Kennard's Dissent

(1)            Presumption of Fee Simple Absolute: Rule not consistent w/fee simple and title covenants

(1)            Present covenant against encumbrances.

(2)            Not Consistent w/Purpose of Recording Statutes

(1)            Meant to give notice of conveyances not unilateral events restricting land.

(3)            Retroactivity of Application

 

7.               Equitable Servitudes

1.               Burden unenforceable at law, and unjust to let grantee have it, courts will enforce servitude.

2.               Mitigates harshness of rules re covenants running w/the land.

 

11.            Settlement—Closing

1.               When all conditions have been met, escrow officer calls for funds and records on same day.

 

15.            ESCROW

1.               Purpose, Theory & Key Points

1.               Escrow: Legal fiction (entity) to facilitate delivery of deed and price.

1.               Response to the problem of "who goes first?".

2.               Permits a simultaneous and instantaneous exchange of property, funds and other consideration.

3.               Relation Back Feature: delivery to grantee by escrow agent is deemed to relate back to the date grantor placed deed in escrow.

(1)            Valid despite grantor's intervening death or priority problems.

 

4.               Lender may be party to escrow if it can give agent instructions.

 

2.               Purpose of Escrow

1.               Holds various elements until all conditions & contingencies are met®COE.

2.               Call for Funds: Lenders don't put in $ until last minute. Escrow holder calls for funds which are wired moments before recordation.

 

3.               Close of Escrow: Eo instanti:

1.               Dual Agency Created: Escrow holder is now a separate agent for each of Buyer and Seller with regard to distinct elements as per each's instructions.

2.               Price becomes seller's property.

3.               Real Estate: Buyer takes legal title.

4.               Risk of Loss passes

 

4.               Duties of Escrow Holder

1.               During Escrow Period

(1)            Joint agent for both buyer & seller. Owes both fiduciary duties.

2.               Rule: Terms & conditions of escrow instructions must be strictly performed.

 

5.               Recurring Issues & Problems

1.               Potential for Temporal Fraud

2.               Scrutinize Escrow Instructions

(1)            Key to escrow cases.

(2)            Courts will construe escrow instructions broadly in favor of principal, especially where escrow holder is drafter.

 

 

16.            TITLE INSURANCE & PRELIMINARY REPORTS

1.               Nature & Purpose of Title Insurance

1.               Indemnity K:  not a representation that contingency will not occur. Insured has no c/a for negligence. Coverage only per K terms. Title insurance not a title abstract.

1.               Lawrence v. Chicago Title: Title insurance is an indemnity K under which insurer is obligated to indemnify the insured against losses in the event of specific contingency affecting title occurs.

(1)            TI company is liable only up to stated policy limits.

 

 

2.               Product that has evolved in response to the law's irrationality. Fills gaps but only partially. 

1.               Courts sometimes regard industry as quasi-public.

2.               Provides quick, cheap way to find out the state of your title

3.               If you want more reliable info

(1)            Get a more binding policy w/a cap

(2)            Hire a lawyer: but v. expensive and not efficient.

 

3.               Seller provides to buyer at seller's expense.

4.               Based on Insurable Title on Policy Date: Based on a "snapshot" of title more or less contemporaneous with COE.

1.               Limited Protection: Provides protection only against insured defects that occurred or existed at that moment.  Insures title vests in purchaser.

(1)            True condition of the title is less important than the condition which the TI is prepared to underwrite.

 

2.               Insures Title not Beneficial Ownership

 

3.               Infinite Duration of Insurable Interest: Title problems generally appear in first few years. But policy is theoretically eternal, provided insured can prove covered title problems existed on the policy date.

 

5.               Policy Amount is Not Inflation-Adjusted

 

6.               Title Insurance is Non-Transferable to Subsequent Purchasers

 

7.               Hansen's Beef

1.               Big gap b/w expectations and reality. Two faces: prior to COE TI appear as experts. After closing they act as contractual indemnitors.

 

2.               Types of Title Assurance Methods/Policies

1.               CLTA—Standard Policy

1.               Examination of Public Record Only: Covers only paper risks that could have been discovered.

2.               No Inspection of physical state of property.

 

2.               ALTA—Extended Coverage

1.               Lenders usually require this coverage. 

(1)            Buyer can sometimes leverage off of this if "joint protection".

 

2.               Relies on surveyor's report. But costs 2X as much as CLTA.

 

3.               Insures against

(1)            Off record defects & liens

(2)            Water rights, mining claims, etc.

(3)            Discrepancies or conflict re boundary lines.

4.               Exception: Environmental issues

 

3.               Preliminary Report—"Prelims", Title Abstracts, and Disputes

1.               Distinguish b/w Title Abstract and TI Policy

1.               Abstract: report performed by a professional who has exercised due care.

(1)            Costs 5-10 more than a prelim

(2)            But can sue for negligence

2.               TI Policy: Statement of insurable title and what TI will cover. NOT a representation of the truth.

(1)            New Rule: CA Insurance Code: Prelim = Offer to enter into a policy.

(1)            Old Rule: Prelim = abstract.

(2)            Insurance company has no duty to perform reasonably diligent title search.

(3)            Consumer Protection Measures

(1)            Argue for liability based on course of dealing

1)               Document history of transaction

(2)            Get assurances from counterparty in K. K will incorp prelim by reference.

1)               Make sure counterparty has $ to back up its promises

(3)            Do full title search

 

2.               White v. Western TI

1.               Facts: Prelim issued by TI does not specifically exclude a recorded easement for water rights. D says that all water rights are excluded in K, so no need to list as a specific exception.

2.               Issue 1: Whether prelim is a title abstract

3.               Issue 2: whether insurer's duty to defend in good faith continues after insured files suit against it.

4.               Holding 1: K ambiguous. Creates impression that all items not specifically excluded are covered. Water rights easement is covered contingency.

(1)            Court wants to protect insured's reasonable expectations.

(2)            Old Rule: Prelim = abstract.

(3)            New stat: Limits liability under prelim = offer.

5.               Holding 2: Even where adverse parties in suit, insurer's duties continue.

 

4.               Coverage—Sample Policy

1.               Insuring Clause—Affirmative Statement of Coverage

1.               Giveth, but hedgeth. Subject to exceptions.

2.               Will pay for covered events up to liquidated amount.

3.               Limited Damages: indemnity K. Ds limited to Hadley v. Baxendale. Must be proximately caused & w/in contemplation of parties at the time of contracting.

4.               Includes

(1)            Title

(2)            Encumbrances

(3)            Unmarketability of title

(4)            Right of access (not landlocked)

(5)            Invalidity or unenf of lien on title (Lenders)

(6)            Priority of Lien (lenders)

(7)            Costs, attys fees, expenses

(1)            Make sure not deducted from policy amount.

 

2.               Exclusions—Preprinted, Standardized Diminutions of Coverage

1.               Insurance oriented, generalized reductions.

(1)            Govt Regulation of land

(2)            Structural defects

(3)            Separation of ownership: subdivision

(4)            Environmental

(5)            Police Power

(1)            Taking or zonign

(2)            Not insured unless in public record: Notice of lis pendens for condemnation.

(6)            Rights of eminent domain

(7)            Defects, Liens, Encumbrances, Adverse Claims...

(1)            Created, suffered, assumed or agreed to by the insured, whether or not in the public record.

(2)            Not known to TI and not in public records.

(3)            Most often litigated.

(4)            Write over: Not listing a known risk. Helps make deal happen. TI may writeover on condition developer will indemnify and hold harmless against any claims.

1)               Hansen: writeovers should be disclosed.

 

3.               Schedule A—Customized Diminutions of Coverage

1.               Standard vs. Extended Coverage

2.               Policy Date & time & identity of vestee, owner, beneficiary of deed of trust

3.               Policy Limits: may or may not include defense fees

4.               Property Description

 

·                 Contini v. Western Title Co.: A lis pendens was recorded from a long time ago, but there was no recorded judgment re size of property. Contini bought the property w/o realizing it was smaller area because of unrecorded judgment. Contini claims TI coverage and then sues.

·                 HELD: TI co. not liable per terms of policy that excluded things not in public record. But title abstractor held liable.

·                 Illustrates Older Rule. A standard TI policy insures against defects of records and does not protect the insured from matter dependent on a survey. Nevertheless, TI company breached its duty of care by failing to diligently search public record, and merley relying on TI policy issued earlier to a previous purchaser.

 

4.               Schedule B—Exceptions—More Particularized Reductions

1.               Property-like

2.               Legally not a definitive list of property, but a carve out from coverage

(1)            Tax assessments

(2)            Facts not in public record, which could be ascertained on inspection

(3)            Easements, liens, etc. not in public record.

 

5.               Part II: Conditions & Stipulations

1.               Definition of Terms

2.               Notice of Claim

(1)            Rule: Failure to give prompt & timely notice eliminates coverage only when prejudicial.

3.               Continuation of Insurance

4.               Arbitration clauses

 

5.               Examination under Oath (EUO)

(1)            Insured can be deposed immediately on making a claim.

 

6.               Tender of Policy Limits

(1)            Insurer can stop defending insured once it tenders the full amount.

(2)            Duty to defend ceases.

(3)            Effect of the fact that defense costs do not come out of insured amount.  Insurance companies may in some cases want to cut their losses.

 

5.               Marketability of Title

1.               General Rule: Title must be free from reasonable doubt, and

1.               Acceptable to a Reasonably Prudent Person, with full knowledge of the facts and their legal bearings, willing and anxious to perform the contract.

2.               Mere suspicion or small possibility not affect marketability of title.

 

2.               Market Value vs. Marketability of Title

1.               Market value ¹ marketability

3.               Lick Mill—Liability in Ownership of Title and TI

1.               Rule: Title is not unmarketable b/c property is economically unmarketable. Marketability of title relates to defects affecting legally recognized rights and incidents of ownership.

(1)            Mere fact state may attach statutory lien in future does not create an encumbrance.

2.               Rule 2: ALTA Policy does not extend to matters that do not affect title.

3.               Court reluctant to set precedent by holding TI liable for environmental cleanup costs where there was no recorded judgment documented in the public record. 

(1)            Current TI cost/price structure does not impound environmental cleanup costs.

4.               Counterpoint: Hansen lost this case. Argued environmental cleanup liability and duty run w/title. Title matters.

 

6.               Rights and Duties of Insurer—Claims Process & Covered Losses

1.               Duty to Inspect and Defend in Good Faith

1.               Broader than insurance coverage.  Extends to all cases, even where insurer and insured are adverse parties in a law suit.

2.               Duty to Indemnify for Covered Losses

1.               Native Sun: Implied dedication of an easement to the public.  Here a covered event occurred, but another event that also caused the loss was not covered.  HELD: No insurance coverage because carrying costs not covered defect.

(1)            Rule: Illustrates that not all claims and losses are covered. Must prove loss is within scope of coverage AND proximate causation.

(2)            Facts: P buys land and gov't claims interest in the parcels. State offers to settle. TI says no & prosecutes a quiet title action. P seeks to recover interest payments, property taxes and attorney fees incurred during settlement process.

 

3.               Rules of Interpretation

1.               Adhesion K: construed in favor of insured to protect reasonable expectations.

 

4.               Extent of Liability and Measure of Coverage

1.               Up to amount of policy.

2.               Lender: only up to amount of unpaid debt

3.               Buyer: Entitled to diminution in value

4.               Lawrence v. Chicago Title:

(1)            Insurer is not liable for tort damages.

(2)            P, secured lender, only entitled to payment in full, not to consequential damages.

 

5.               Timing of Claim

1.               Must prove you've suffered loss.

 

 

·                 Safeco v. Moskopoulos: P files lis pendens against house that he wants and makes it impossible for owners to sell it under better terms. Owners agree to sell to P, but then turn around and sue P for rescission. P claims against TI. TI company refuses claim.

·                                     Held:   TI company has NO DUTY TO DEFEND where claim had to do w/method by which property was acquired, not title defect.

·                                     Rule:   TI company must defend insured in litigation to extent that the litigation involves an alleged defect, lien, encumbrance, or other matter insured against in the policy.

 

7.               Duties of Insured

1.               Duty to Cooperate w/Defense

2.               Subrogation

1.               Insured must assign legal rights and claims to insurer under certain circumstances.

2.               Insurer will pay out insured and then sue in insured's place to recoup.

 

8.               Misconduct by the Insured

1.               Cumus Problem: Insurance defense counsel may have conflicts of interest b/w insured and insurer:

1.               Insured is client, but insurer hires and pays.

2.               If court determines, insured may hire independent counsel.  Insurer pays.

 

2.      Real Estate Financing

17.            SECURED FINANCING

1.               Absolute Deed & Conditional Sale

 

2.               Installment Land Contract

 

3.               Power of Sale Foreclosure and CA Antideficiency Laws

1.               CA Antideficiency Laws—§§ 724, 726, 580a, 580b, 580d

1.               Consumer protection devices developed first in 1930s

2.               Working class buy-in into the system of land owning and home owning.

3.               Mandatory. Nonwaivable.

4.               Limit real estate creditor's recourse against debtor.

5.               May be debtor's affirmative defense or may operate as a sanction against misbehaving creditors.

 

2.               Primary Fund Rule: One Action/Security First—§ 726

1.               Implied into all K by operation of law.

2.               Creditor must first exhaust real estate collateral before proceeding against Debtor's other assets.

(1)            Nonrecourse Note: Creditor is limited to collateral.

3.               If creditor moves against other property, it is deemed to have waived its security.

 

·                 Security Pacific v. Wozab: Bank owed debt of $1M secured by deed of trust on debtor's property. Set off $3K from debtors' account.  Court held that primary fund rule required bank to move against real estate first. HELD: Bank waived its security, but the underlying debt is still valid.

·                 Rule: Bank is not allowed to take a unilateral setoff of funds in a depositor's demand account against a debt secured by the depositor's interest in real property.

 

3.               Seller Financing Rule—§580b: Nonlender election for purchase money loans. Seller financing subject to deed of trust is non-recourse.

1.               Lender don't choose judicial foreclosure here b/c can't sue for deficiency anyway.

 

·                 Kish: Transaction for sale of SF house and purchase of Reno motel. Escrow fraud. D argues that he is protected from deficiency judgment by 580b.  Court gets it wrong anyway.

 

4.               Non-Judicial Foreclosure—Trustee's Sale—§580d

1.               Non-judicial private auction

2.               Must give notices of default and sale.

3.               No Deficiency Action

4.               Full Credit Bid Rule

(1)            Where lender bids full amount of debt at trustee's sale, it will be treated the same as other bidders.

(2)            Once lender makes full credit bid purchase, that's it.  Lender is treated as having been paid in full.

5.               Debtor has no right of redemption

 

5.               Judicial Foreclosure

1.               Must be by sale at public auction. No strict foreclosure.

(1)            Ensure sale at FMV

2.               Creditor can sue for deficiency

(1)            But only 3-month S/L

3.               Debtor has one year right of redemption

(1)            At sale price

(1)            Lenders should not make full credit bid, but risk of too low bid, due to right of redemption.

(2)            Transferable.

 

6.               Guarantees/Suretyships

1.               Guarantor is NOT protected by antideficiency legislation, UNLESS

(1)            Puts up his own home as security.

2.               Default Statutory Protections—waivable

(1)            Surety is just backstop

(2)            Must keep guarantor informed.

(3)            But, well-drafted guarantee may waive these and in reality, guarantor may have less protection than debtor.

 

3.               Sham Doctrine

(1)            Lender cannot require buyer/debtor to sign a guarantee for its own debt to circumvent anti-deficiency laws.

 

4.               Grabski Rule/Estoppel

(1)            Where Lender buys property at the trustee's sale, and is prohibited from suing Debtor for deficiency under 580d,

(2)            Lender is also equitably estopped from suing Guarantor for that deficiency.

(3)            Subrogation Theory

(1)            As Lender's subrogee Guarantor would have no right that the lender does not have.

(2)            Lender has no deficiency.

(3)            Guarantor should not be liable for it in equity.

(4)            But can be waived by K.

 

4.               Bankruptcy Overview

1.               Automatic Stay

2.               Fresh start

3.               TIB/DIP as a

4.               Secured Creds must get "indubitable equivalent"

 

 

18.            PRIORITIES—All Priority Fights Must Be Analyzed b/w Two Specific Parties

1.               The Priority Wedding Cake Generally

·                 Different factors determine priorities.

1.               Public Policy: the law sometimes favors certain classes of people.

1.               Mechanic's lien

2.               Trust deed held by bank.

2.               Equity—Tie Breaks—CA Civ Code § 2898

1.               Brock

3.               Contract—Express, Implied, or 3rd Party

1.               Subordination agreements

4.               Recording Acts—BFPs & BFEs Only

1.               Protects reliance of late comers and third parties.

 

2.               First In Time Rule—Default Rule—CA Civ Code § 2897

1.               FIT: All other things being equal, if you get there first you win.

1.               But exceptions are broad and the rule is rarely decisive.

 

2.               CA Civ Code § 1214: Every conveyance of real property is void as against a subsequent purchaser or mortgagee of the same property who in good faith, first records the mortgage.

1.               Purpose: prevent fraud thru w/holding notice of transactions to the detriment of subsequent BFPs.

 

3.               Special Statutory Priorities/Public Policy/Tie Breakers

1.               Purchase Money Mortgages (Deeds of Trust)

1.               Broader than 580b. Priority by operation of law, but recourse only to property. CCC 2898

2.               Vendor's Liens

3.               Mechanics' Liens

4.               Tie breaker case—Brock: Priority B/w Vendor's Lien and Deed of Trust Beneficiary

1.               Facts: Vendor of real property accepted buyer's unsecured promissory note for part of the price while buyer obtained loan under a deed of trust. Buyer defaulted on both notes. Vendor sued lender asserting priority of vendor's lien.

2.               Held: Deed of trust lender wins. No statutory resolution of inconsistency b/w provision for vendor's lien and provision giving lender priority. Court reasons that lender's priority is based on written legal relationship, whereas vendor's lien is equitable protection only implied at law.

3.               When all else is equal, law prevails over equity.

 

4.               Priority by Express or Implied or 3rd Party Agreement

1.               Subordination Agreements

2.               Automatic Subordination—Equitable Subordination—Top of Wedding Cake

1.               Court Estops party from claiming recording act priority

2.               Implies K in fact to Subordinate

3.               Subordinated lender may have c/a in negligence vs. escrow agent.

(1)            Instructions ambiguous; poor scrutiny to process.

 

·                 Bybee: Seller agreed to subordinate to construction lender. Borrower diverted funds and never finished project. Seller sued and argued lender failed to enforce borrower's use of funds. Court subordinates to protect seller. Seller carryback financing deemd to have priority notwithstanding subordination agreement. Encourage and protect seller financing and lender's proper supervision.

 

5.               Recording Acts & Mechanics of Recordation

1.               Recording Acts—Generally

1.               Voluntary. But important to limit vulnerability vs. BFPs.

(1)            Exception to FIT Rule and often dispositive factor in case.

2.               Constructive Notice—CA Civ. Code § 1213

(1)            A recorded conveyance of real property is constructive notice of the contents thereof to subsequent purchasers & mortgagees.

3.               Limited Validity of Unrecorded Instruments—CA Civ. Code § 1217

(1)            An unrecorded instrument is valid as b/w the parties thereto and those who have notice thereof.

4.               Use order of recording to establish priority among people who do not stand in BFP relationship to each other.

 

2.               Recording Acts—Three Types of Jurisdictions

1.               Pure Race (rare)

(1)            Whoever records first wins.

 

2.               Pure Notice (approx. 1/2 of states)

(1)            Recording gives constructive notice to all would-be BFPs and BFEs.

 

3.               Race-Notice—CA (1/2 of states)

(1)            BFPs and BFEs must also record to secure their interest.

(2)            Rewards parties for diligence.

 

3.               Title Search—Chain of Title

1.               Law requires a diligent search of public records using chain of title methodology.

2.               Search by names of grantors and grantees.

 

6.               Bona Fide Purchaser/Encumbrancer in Good Faith for Value w/o Notice

1.               Defined: A purchaser or encumbrancer in good faith who has taken or purchased land or lien and has parted with something of value in consideration, without knowledge or notice of competing liens on the subject property.

2.               Value

1.               Must be more than Nominal Value

2.               Substantial but not necessarily FMV

3.               Pro-Tanto BFP: where BFP has only given a portion of value. Depending on state, BFP may

(1)            Reliance: Become involuntary lienholder only to extent of value actually paid; or

(2)            Be BFP anyway

(3)            Get right to accelerate, pay off encumbrance and be a BFP.

 

3.               Without Notice or Knowledge

1.               No Actual Knowledge or Notice

 

2.               No Constructive Notice from Recording Act

(1)            No imputed constructive knowledge from duly recorded instrument.

3.               No Other Constructive Knowledge

(1)            Imputed from Agent to Principal

(1)            Agent has duty and assumed to disclose all material facts to his principal.

 

4.               No Inquiry Notice—Duty to Compare Public Record w/Reality

(1)            If a reasonably diligent observation of land would have revealed discrepancies with public record, BFP may be charged with inquiry notice, and may lose BFP status in some situations.

(2)            Where FIT person uses land conspicuously and has not recorded, late comer will be charged with duty to compare and inquire.

(3)            "Don't Play Dumb" Rule.

(4)            BFP can loses such status if material.

4.               Shelter Principle: Once you are a BFP, you can borrow w/o independently assessing whether party is a BFP.

1.               Policy: no point in providing BFP status if can't alienate property.

 

7.               Significance and Impact of Recordation: ID and Protection of BFPs & BFEs

1.               Failure to Record and the BFP for Value

2.               Why You Would Not Have Found Title—Bad Indexing

3.               Why You Would Not Have Found Title—Misdescription of Property

 

4.               Why You Would Not Have Found Title—Early/Late Problem

1.               Rule: No notice. Recording by someone w/o interest in land is not valid to give notice to BFPs or BFEs.

 

·                 Ludy v. Zumwalt: Z has unrecorded option to purchase L's portion of property. Z enters K  to buy water from Canal & gives lien. L sells and takes a purchase money deed of trust. Z defaults. 

·                 Issue: whether L is charged with notice of K and lien? Priority: L or Canal?

·                 Held: L has priority b/c BFE. Had no responsibility to look at encumbrances made before Z owned property.

 

5.               Why You Would Not Have Found Title—Wild Deed

1.               Wild Deed: Deed of trust recorded before obtaining record title.

(1)            Search of grantor/ee indexes will not disclose. So, no constructive notice imparted.

2.               Rule: Proper recordation is necessary to impart constructive notice. Where a person with an unrecorded interest in land conveys, all subsequent conveyances, even if recorded, will not provide constructive notice.

(1)            Does not thereby create a defect in the record title of another

(2)            BFPs and BFEs are NOT charged w/constructive notice where the instrument cannot be found in public records.

 

·                 Far West v. McLaughlin: Owner M failed to record grant deed subsequently executed a deed of trust and beneficiaries/lenders recorded. 1 year later, owner invalidly tried to reconvey deed of trust, recorded original grant, and executed new grant deed to new purchaser, who gave PMDT to Far West. Wild chain of title. Issue: Priority contest b/w M & FW.

 

·                 Holding: Where only one escrow had knowledge of original deed of trust, Court reasoned that two escrows are deemed separate and knowledge is not imputed as between them. FW has priority.

 

·                 Rule: In order for an earlier recorded encumbrance to impart constructive notice to a subsequent BFE for value, it must be re-recorded after its trustor is in the chain of title, and before the second grantee had given value.

 

 

8.               Lis Pendens—Protecting Priority of a Disputed Claim

1.               Uses Civil Litigation Machinery

1.               In an action re ownership or possession of real estate, law permits party to record notice of lis pendens.

2.               Warns/scares off other potential buyers.

2.               New Rule: Stricter Standard

1.               If defendant raises motion to expunge, plaintiff must show likelihood of victory by preponderance of the evidence®same standard as for injunctions.

2.               Must show probable validity of the real property claim

3.               Must serve lis pendens on the defendant.

4.               Court may refuse D's motion, but P will have to post heavy bond.

 

9.               Abuse of Recordation/Cloud on Title

1.               Slander of Title:  One who, without privilege, publishes matter which is untrue and disparaging to another's property in land, under circumstances as would lead a reasonable man to foresee that the conduct of a thrid person as a purchaser or a lessee thereof might be determined thereby, is liable for pecuniary loss resulting to the other from the impairment of saleability thus caused.  ELEMENTS:

1.               Publication

2.               Falsity

3.               Absence of justification

4.               Direct pecuniary loss

 

2.               Liability of Third Parties

1.               Escrow companies and recorders can be liable for economic harm inflicted on a 3rd party w/whom they have no direct dealing. Provided that consideraiton of the appropriate factors warrants this duty:

(1)            Extent to which transaction intended to affect P

(2)            Foreseeability of harm to P

(3)            Degree of certainty that P suffered injury

(4)            Connection b/w D's conduct and injury

(5)            Moral blame of D's conduct

 

2.               Quasi-Public Utility: Courts view TI/escrow companies as quasi-public utilities and may impose liability on them in close cases. Rationale: they are private industries monopolizing a quasi-public function based on public records.

 

·                 Seeley: P & D negotiate over property, but no K ever formed. D records Memo of Agt thru escrow agent w/o P's signature. Gets into public record.  D argues no cloud on title b/c Memo never had any legal effect

·                 Holding: This was something in the record that would cause a reasonable person to have doubt about title. Don't need actual legal cloud on title.

 

10.            Impact of Priority in Foreclosure—Wiping Out Junior Interests

1.               Relation Back

1.               At foreclosure, buyer's priority relates back to date of creation of deed of trust and wipes out all junior interests. Takes free and clear.

2.               Junior may sue on debt unsecured if debt is recourse.

3.               If nonrecourse (purchase money), that's it.

 

2.               Effectively reduces value of secured interest for a junior.

 

11.            Purchase Money Mortgage

 

12.            After-Acquired Property Clause

 

13.            Replacement & Modification of Senior Mortgages—Impact on Juniors

1.               Workouts can affect juniors' interests and senior's priority.

2.               Two Ways to Ensure Priority

1.               Inform All Juniors and Obtain Consent to Subordinate

(1)            But how sure that all juniors have been identified?

2.               Title Insurance—110.5 Endorsement

(1)            Ensures against loss of priority and shifts risk to TI co.

(2)            TI Co. will inform & get consent or determine taht  modification is immaterial and will not affect priority.

 

14.            Fixtures

 

15.            Wrap-Around Mortgages (All-Inclusive)

1.               Countermeasure vs. due on sale clauses.

2.               Allows parties to benefit from spread.

3.               Face amount of "wrap" covers underlying preexisting loan and equity amount.

4.               Example—Conventional Approach

1.               Owner carrying $200K mortgage & wants to sell at $400K.

2.               Buyer takes subject to first mortgage, pays $100K down and $100K second mortgage back to seller.

3.               BUT: due on sale clause would kick in.

5.               Example—Wraparound

1.               Owner carrying $200K mortgage at 7% & wants to sell at $400K.

2.               Buyer pays $100K down and issues note for $300K at 9%

3.               Seller promises to pay down on first mortgage from Buyer's payments on $300K note.

4.               Bank cannot exercise due on sale clause and Seller Financer gets the spread b/w wrap and first note.

(1)            $300K at 9% vs. $200K at 7%.

 

16.            Example—Leases & Financing

1.               Recently built shopping center. Pre-leased.

2.               How arrange long term financing, including take out of construction loan?

3.               What priority concerns does potential lender have?

1.               Lessees are all = BFPs b/c executed and recorded prior to loan.

4.               If leases are market or above lender wants to be able to foreclose and substitute itself for lessor.

5.               If leases are below market, lender would want to be able to wipe out old leases and re-lease at market rates.

6.               Two ways landlord or secured creditor can "cherry pick".

1.               Estoppel Certificate: Equitable concept used in legal manner.

(1)            Each lessee agrees to give lender info on condition of lease

(2)            Many leases include clause requiring lessee to give such info on reasonable request

(3)            Attests to lease & certified copy attached

(1)            No defaults

(2)            Use of property

(3)            No prepaid rent to lessor (over 1 month)

(4)            Tenant is thereafter estopped from asserting claims not in compliance...

 

2.               Attornment Agreement: Tenants agree to be bound to lender or successor of owner. 

(1)            Allows lender to enforce lessor's rights against tenant: right to rent, sue for breach

(2)            Creates automatic novation b/w lender and lessees. Gives lender privity of K.

(3)            Lender may try to put clauses in that allow it to cherry pick, but may not be consistent w/cov of good faith & fd.

(4)            Differs from subordination where T's lease is canceled.

 

17.            D'Oensch Doctrine

1.               RULE: PER: Terms that are not integrated in main K are not enforceable. Main K must be approved by highest management organ and recorded to be enforceable.

2.               Don't make side agreements

 

19.            FINANCIAL INSTITUTIONS

1.               Mortgage Lending

1.               Federal subsidization of mortgages encourages working class to buy into capitalism—home ownership.

2.               S&L: Inflationary environment of 1970s and 1980s. Decreasing deposits + maturity mismatch of loans and deposits.  Put huge pressure on S&Ls.

1.               Incentive to exercise due on sale clauses.

(1)            CA Supreme Court restricted to situations where security threatened.

(2)            But US SCt aff'd OCC reg that preempted CA law.

(1)            Due on Sale Clauses are enforceable according to their terms.

 

2.               Financial Institutions

 

3.               Government-sponsored Mortgage Market Support Institutions

 

4.               Mortgage Risk

 

3.      Real Estate Development

20.            SUBDIVISION & CONSTRUCTION

1.               Overview

 

2.               Land Option & Developers

1.               Developer's Option: in early stages, developers not owner of land. Don't want to be on the hook for land until they have obtained all of the necessary zoning approvals, licenses, etc.

1.               Likes to play free option game to tie up property, and stretch out seller's commitment while limiting his own obligation to buy.

 

3.               Purchase Money Land Financing

 

4.               Mechanics Liens

 

5.               Construction Loans & Other Mortgages to Secure Future Advances

 

21.            PLANNED UNIT DEVELOPMENTS, CONDOMINIUMS AND COOPERATIVES

1.               PUDs

 

2.               Condos

 

3.               Coop Apts