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10 Cards in this Set
- Front
- Back
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Expectancy Damages |
Measured by difference between:Contract price; and FMV as of date of the breach - e.g. Contractfor $300K; Buyer breaches & property worth only $275K (FMV). Sellerentitled to $25K. What if property value continues to go down? Seller onlyrecovers difference as of the date of the breach. Seller can’t collect on atheory of what might have happened. In the real world the FMV is a movingtarget. |
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Reliance Damages |
Out-of-pocketexpenses: fees, appraisal Lostprofits: entitled to the foreseeable damages; foreseeable by the parties at thetime of contracting. “A non-breaching party is entitled damages arisingnaturally from the breach itself or those that are in the reasonablecontemplation of the parties at the time of contracting.” Not going to be aremedy in a well-contracted agreement |
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Damages and Forfeiture of Payments |
Include:recovery for loss of expectation value on the transaction, out-of-pocketexpenses, lost profits, etc Generalmeasure of damages: the difference between the contract price and the fairmarket value of the property a the time of the breach |
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LiquidatedDamages Provisions |
damagesthat the parties to a contract agree to and qualify in advance of any breach |
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Uzan v. 845 UN LimitedPartnership - Differencebetween liquidated damages provisions & down payment |
Liquitated Damages - being subject to scrutiny by the court for reasonableness while Down Payment - given more latitude |
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Uzan v. 845 UN Limited Partnership - Parent Rule |
onewho breaches a contract may not recover the value of his part performance |
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Equitable Remedies |
SpecificPerformance: must go through with the deal - Mostcommonly only available as against the Seller b/c the Seller is delivering RealEstate, thought to be unique & thus Buyers may typically get specificperformance. On the other hand a Seller is not entitled to Specific Performance - partyseeking performance must be ready to perform (Ready, willing & able) - Whenwould a buyer seek s/p? Typically when purchase price is a bargain |
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Lis Pendens |
“Suit Pending” - Putpeople on notice so there can’t be any BFPs - Filinga lawsuit is a precondition to filing a lis pendens - Thelawsuit must be about the real estate (Foreclosure, Adversepossession action, Quiettitle action, Anaction to enforce a vendee’s lien - Why? Tomake sure the world has notice & make sure there can’t be a BFP, method of preserving remedy - amethod of asserting a potential claim or conflicting interest against title toreal estate when litigation is filed and pending |
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Slander of Title |
Mostcommon: recording an instrument adversely - Requirements:‘Clouding’ title, malicious intent, without foundation - designedto protect the value of the property. If anyone maligns or disparages thereputation of the property, the owner can take steps to protect its reputationand value in a manner similar to that offered to defend her own good name |
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Executive Excellence, LLC v.Martin Brothers Investments, LLC - Lis Pendens, Slander of Title |
A valid notice of lis pendensremains in effect until a final judgment has been entered in the action and thetime for appeal has expired. An action for slander to title must be based on the uttering of falsewords |
