BLACK LETTER LAW MIXED SUBJECTS Flashcards
Ad valorem taxes imposed on Real Estate by the State in FLorida are
Unconstitutional. taxes upon real estate or tangible personal property. The State of Florida can tax certain types of intangible personal property. taxes upon real estate or tangible personal property.
Generally, _______________on alienation that _____________interfere with the free alienability of land are ___________. Iglehart v. Phillips, 383 So. 2d 610, 614 (Fla. 1980).
durational restraints ;unreasonably; unenforceable.
Beyond the primary test of their duration’s reasonableness, another consideration regarding the validity of a restraint on alienation is its long term impact on the subject premises’ “improvement and marketability.” Id
MIXED CONTRACTS: PREDOMINATE PURPOSE TEST
For mixed contracts [contracts that have elements of both services and goods,] the predominant purpose of the contract determines whether the common law or UCC governs.
If the predominant purpose of the contract involves the purchase or sale of goods, the UCC applies. If the predominant purpose of the contract involves services or real estate, the common law applies.)
How does Florida classify unwritten leasdes that are not residential?
Florida law considers a nonresidential lease of land or tenements to be a tenancy at will unless it must be reflected in a writing signed by the lessor. Fla. Stat. ch. 83.01.
What special laws are prohibited?
A general law of local application is a law that uses a classification scheme based on population or some other criterion so that its application is restricted to particular localities.” City of Miami Beach v. Frankel, 3
There can be no special law or general law of local application pertaining to: election, assess,ent, evidence rules, crime punishment, civil or criminal venue, lots of other stuff. However, just be aware that special laws cannot embrace any and all subject matters.
Accessory after the fact
Under Florida law, prosecution of an accessoryafter the fact cannot be contingent upon the prosecution or conviction of a principal in the first degree. Fla. Stat. ch. 910.13.A person convicted as a principal to a crime cannot also be convicted as an accessory after the fact to the same crime since these two offenses are mutually exclusive. Donaldson v. State, 722 So.2d 177 (Fla. 04/30/1998)
What type of proerty can qualify as a homestead.
Modular home, mobile home, even a housboat can qualify! A house too.
Felony Murder in FLroida occurs if:
A person commits first-degree murder if the person commits a killing while engaged in the perpetration of, or in the attempt to perpetrate:•trafficking in cannabis offense,•arson,•sexual battery,•robbery,•burglary,•kidnapping,•escape,•aggravated child abuse,•aggravated abuse of an elderly person or disabled adult,•aircraft piracy,•unlawful throwing, placing, or discharging of a destructive device or bomb,•carjacking,•home-invasion robbery,•aggravated stalking,•murder of another human being,•resisting an officer with violence to the officer’s person,•aggravated eluding or fleeing with serious bodily injury or death, or•felony that is an act of terrorism or is in furtherance of an act of terrorism.
At common law a conveyance of property from O to O and A as Joint tenants with right of survivorship creates a
tenancy in common.
The Declaration of Rights expressly provides that Florida Provides Access to the courts shall be
“open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” Fla. Const. art. I, § 21. T
Seller’s duty to disclose imposed in residential real estate transactions does not apply in ________estate transactions.
commercial real
What is an implied warranty of habitability
a residential tenant assuming possession of the leased premises discovers that the wiring is dangerously frayed and the plumbing is faulty, the landlord has breached the implied warranty of habitability. Under the implied warranty of habitability for residential tenancies, the landlord covenants that the premises are suitable for human residence. The standard usually applied is the local housing code. Dangerous wiring and faulty plumbing likely violate the local housing code and will subject the landlord to liability for breach of the implied warranty of habitability
What happens to additional terms in a contract offer between merchants?
The get incoporated unless they materially alter the K, the offer expressly limits acceptance, the Offeror has already objected or objects in time.
Access to Public Records and Meetings in FLorida (Sunshine Law)
Sunshine Law allows
Inspect or copy public records
Government meetings need to be open and noticed
commission mmeetings open and notice
No offical act is binding unless done at a meeting
Minutes need to be recorded and open
FLorida citizen may enforce with injunction
It necessarily follows from the right of survivorship that the interest of a _____________ ____________terminates upon his death prior to the other _________ _______. For this reason, a mortgage on the interest of a _____ ________ imposes a lien upon a defeasible interest, and the lien, of necessity, terminates when, by reason of the mortgagor’s death, his interest in the tenancy terminates.
joint tenant
Indirect revocation of an offer can occur
when the offeree learns that offer revolked from reliable source or kears of acts that would indicate a reasonable person should know offered revolked.
What level of scruitny does a
gender get in FLorida?
Rational Basis.
Some written nonresidential lease agreements include an______________. Such clauses have been found to be valid restraints on alienation if their terms are reasonable.
Option to Purchase Leased Premises
Partial eviction by a paramount title holder results in an ________ _____ __________ i.e., the tenant is liable for the reasonable rental value of the portion that he continues to possess.
I
apportionment of rent;
A paramount title holder’s taking possession of an unused barn constitutes partial actual eviction. Thus, rent will be apportioned.
What is the knockout rule in UCC
The conflicting terms of an offerare knocked out and gaps are filled by UCC
ADVERTISEMENTS AS OFFERS
An advertisement is usually considered an invitation to deal rather than an offer. This is because an advertisement usually fails to confer a power of acceptance to the other side. However, advertisements that are very specific and leave nothing open to negotiation may constitute offers.
How does Fl deal with LImiting Marine NEt Fishing?
The marine resources of the State of Florida belong to all of the people of the State and are conserved and managed for the benefit of this State, its people, and future generations. To this end, the Florida Constitution provides limitations on marine net fishing in Florida waters to protect saltwater finfish, shellfish, and other marine animals from unnecessary killing, over-fishing, and waste.
In Florida, what is breach of implied warranty?
In Florida where a merchant deals and goods or particular kind that those colors will be marketable that is there of average quality for good of the kind and generally fit for the purpose for which such goods are normally used. Also if a defendant knows the plaintiff is relying on the defendants skills and advice about the purchase the sale constitutes an implied warranty.
Misrepresentation or fraudulent inducement by one of the parties is
grounds for rescission of a contract if the misrepresentation goes to a material fact past or present in the negotiations and actual reliance on these facts.
How will the proceeds from a partition sale of property initially held by four joint ttenants (A, B, C, and D) be divided if A sold her interest to E, and B died, leaving her property to F and G?
C and D get 3/8 each; E gets 1/4
The proceeds from a partition sale of property initially held by four joint tenants (A, B, C, and D), after A sold her interest to E, and B died, leaving her property to F and G, would be divided as follows: C and D get 3/8 each; E gets 1/4. The distinguishing feature of a joint tenancy is the right of survivorship. When property is held by three or more joint tenants, one joint tenant’s conveyance destroys the joint tenancy only as to that interest. The remaining joint tenants continue to hold in joint tenancy as between themselves, and the grantee holds his interest as a tenant in common with them. When A sold her interest to E, that 1/4 interest was severed and thus converted into a tenancy in common, which E continues to hold. Thus, E gets A’s 1/4 share. When one joint tenant dies, the property is freed from her interest, and the survivors retain an undivided right in the property. Since B’s interest was extinguished on her death, B’s devisees do not take B’s interest; the surviving joint tenants hold free of it. This leaves C and D as joint tenants with right of survivorship, together owning a 3/4 interest in the land. A joint tenancy is terminated by a suit for partition. When the partition sale was ordered, this joint tenancy was converted into a tenancy in common, and split equally between C and D. Thus, C and D each will receive 3/8 of the partition proceeds
Due Process in FLorida is addressed in Article…
No person shall be deprived of life, liberty, or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against oneself. Fla. Const. art. I, § 9.
What does the overbreath doctrine provide in FL?
if a law similarly burdens or penalizes unprotected and protected expression (e.g., speech or conduct); and the law results in deterring people from exercising a constitutional right of protected expression in order to avoid criminal prosecution; then that law is facially invalid and entirely unconstitutional.
When spouses hold property as a tenancy by the entireties, only the creditor of both _______ __________ may attach the property.
spouses, jointly
What are the 3 defeasible fee simple estated?
Fee simple determinable, fee simple subject to a condition subsequent, fee simple subject to an executory interest.
Fee simple subject to condition subsequent:
This is an estate where your rights can end but it one is not automatic and the person has a right of reentry which must be claimed to turn it back over to the grantee. The occurrence of the condition gives the grantor the right to affirmatively act to get the property back.
Can the court add in missing terms?
Yes if it is clear the parties intended to make a contract the court can supply reasonable terms that are missing. The court would simply provide that the price is reasonable at the time of delivery and the time is within a reasonable time.
What is a pure notice recording act?
Florida law includes a pure notice type of recording act. It provides that: (A) no disposition (i.e., conveyance, transfer, or mortgage) of an interest in real property, and (B) no lease of at least a one-year term, will be good and effectual against creditors or subsequent purchasers for value who lack notice of such real property interests unless the interest is duly recorded. Fla. Stat. ch. 695.01(1)
Since 2006 Florida governmental entitites may ot use eminent domain for …
The purpose of abating or eliminating a public nusiance, or eleminationg slum or blight. This in not valid and dont amount to a public purpose.
What is a tenancy at will>
A tenancy at will is terminated by the parties at any time or by operation of law. IN FLorida, specific notice of termination time limits apply and the tenancy is created by express agreement or periodic payments.
Two partners bought a commercial building from an owner. They paid cash for the building and took title as joint tenants with right of survivorship. Several years later, the first partner executed a mortgage on the building to secure a personal loan to a bank. The second partner had no knowledge of the mortgage to the bank. The state in which the commercial building is located recognizes the lien theory of mortgages. The first partner died before paying off his loan. He left all of his property by will to his daughter, his only heir.
Who has title to the commercial building?
The second partner has title free and clear of the mortgage. When the partners bought the property, they took title as joint tenants with right of survivorship. If the joint tenancy continued until the first partner’s death, then the property would pass immediately on death to the second partner. Because the second partner did not sign the mortgage, she would not be subject to it, regardless of whether she knew about it. The key to answering this question is to know whether execution of the mortgage by the first partner caused a severance of the joint tenancy. If it did cause a severance, then the first partner’s one-half would not pass to the second under right of survivorship but instead would pass to the first’s estate, and thus would go to the daughter by will. Whether a mortgage creates a severance or not depends on whether the state follows the lien theory or the title theory of mortgages. Lien theory means no severance; title theory means severance. Because this is a lien theory state (majority rule on the MBE), there was no severance; thus, the joint tenancy remained intact. On the first partner’s death, the joint tenancy ended and the first partner’s interest instantly passed to the second partner. The first partner’s estate got nothing; hence, the daughter could get nothing. (B) would be the correct answer if the execution of the mortgage had created a severance of the joint tenancy. The severance would have changed the joint tenancy to a tenancy in common. The second partner would keep her one-half, free of the mortgage she did not sign, and the daughter would inherit the first partner’s one-half, subject to the mortgage the first partner signed. Because we are told this is a lien theory state, there was no severance when the mortgage was executed so the joint tenancy remained intact until the first partner’s death. (C) is incorrect. Not only is the joint tenancy unsevered so that it remains intact to give title to the entire property to the second partner, but also under no circumstances could the second partner be held liable for a mortgage she did not enter into. (D) is incorrect. When the first partner died, the property passed free and clear to the surviving joint tenant. The mortgage signed by the first partner did not sever the joint tenancy because this is a lien theory state. The mortgage can be held only against the property the first partner has; when the first partner died, the right of survivorship operated to end the first partner’s interest and automatically vested it in the survivor.
What is a General Law in Florida?
General laws are laws that apply uniformly throughout the entire state.
What does a sale of goods offer need to be valid?
The quantity offered must be certain or capable of being made certain. Requirement/output contracts for example itis assumed that there will be no unreasonably disproportionate request.
What is an implied contract?
this is when the contract is formed by manifestations of intent read CONDUCT forms the contract.
What are the top three issues tested in Florida about con law?
Due Process
State Action
Fundamental Rights – equal protection and judicial review
What is descretionary for the Supreme court to hear in FLorida?
REview of Distric Ct. of apeals decisions declaring statute valid or concerning fl constitution, great public importance, or to decide when two district courts in conflict
Under the state constitution, which of the following are prerequisites for the issuing of a search warrant prior to a search of a person’s home?
Search warrants may be issued only upon probable cause, supported by an affidavit describing the persons or places to be searched, the things to be seized, and/or the communication to be intercepted. The Florida Constitution provides for the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means. Before a warrant for a search of a person’s home can be issued, it is not sufficient for a law officer to set forth a reasonable suspicion that a crime has been committed in the home.
In what specific way does the Florida Constitution differ from the U.S. Constitution with respect to the right to assemble?
The Florida Constitution grants the addtional rights to the people to instruct their representatives. The U.S. Constitution does not grant the people the right to instruct their representatives, whereas the Florida Constitution does. There is no right to assemble non-peacefully. The Florida Constitution, like its federal constitutional counterpart, provides for the right to assemble for the redress of grievances. The Florida courts generally adopt the standards applicable to the corresponding freedom of assembly provisions in the U.S. Constitution.
Local Ad Valorem Taxes in Florida
Are allowed, but not on intangible personal property.
Counties, school districts, and municipalities shall, and special districts may, be authorized by law to levy ad valorem taxes and may be authorized by general law to levy other taxes, for their respective purposes, except ad valorem taxes on intangible personal property and taxes prohibited by this constitution.
Right of reentry is held by whom?
Grantor who gave a fee simple subject to a condition subsequent. This is a right that they have to exercise however, so they have it but they may not use it.
Define Homestead Law
A homestead is a type of interest in property. A homestead is the primary, principal residence of its owner, a natural person, in Florida.
A chartered county may ___________________ of a regulatory nature (e.g., ordinances that regulate behavior).
preempt municipal ordinances.
ROPERTY LEASES are
A lease of real property is an interest in land subject to Florida’s Statute of Frauds if its duration exceeds one year. Fla. Stat. ch. 725.01
If the court finds that a contract is unconscionable they may
refuse to enforce the K, enforce the remainder of the K without the unconscionable clause, limit the application of any clause as to avoid an unconscionable result.
Government interference with the right of privacy is permitted only if there is a(n) ____________________ state interest and ____________________ are used to protect that interest.
Compelling; least intrusive means. The Florida Constitution permits government interference with the right to privacy only if there is a compelling state interest and the least intrusive means are used to protect that interest.
Detention by merchants in Florida:
Under certain circumstances, a merchant may detain and question a person of interest for a suspected offense. Fla. Stat.ch. 812.015.To do that, a merchant needs:•
probable cause to believe that a person committed a retail theft or unlawful use or attempted use of an anti-shoplifting or inventory control device countermeasure; and•
in the case of retail theft, that the property can be recovered by taking the offenderinto custody
Every lease contains an implied covenant that neither the landlord nor someone with paramount title will interfere with the tenant’s quiet enjoyment and possession of the premises. This covenant is breached by the tenant’s______or _______ _______ _________from the leased premises.
total or partial actual eviction
What are the twot ypes of counties in FLorida?
Florida counties are classified as either chartered or non-chartered. Florida state law governs as to any conflicting county or municipal law. Whether Florida county law governs as to any conflicting municipal law depends upon whether the county is a charter or non-charter county.
What is an quasi-contract?
This is when one party is unjustly enriched and the court makes it a contract and the unjustly enriched person pays restitution to the person damaged.
Trafficking in Canabas
A person commits the first degree felony of “trafficking in cannabis” by knowingly purchasing, selling, delivering, manufacturing, or bringing into Florida, knowingly having possession of, more than 25 pounds of cannabis, or at least 300 cannabis plants.
Property settlement agreement
Before divorece degree, settles economic issues, can’t be modified
How much Consideration is needed for a good fair contract modification?
None under the UCC.
Under the concept of constructive evcition what the tenant do?
Vacate, terminate Sue
What is the mailbox rule for acceptance?
Acceptance is valid at the moment of dispatch, unless rejection sent first then which one arrives first counts. But if rejection arrives first and offer detrimentally relies on it then it sticks.
What happens at common law or UCC when a term is vague in an offer?
It fails and is not considered an offer. Fair, appropriate, etc.
THe FELONY CLASSIFICATIONS in FLorida are
Capital felony LIfe Felony Felony of the first degree felony of the second degree felony of the third degree
THis is hou it is Unless Unless an existing Florida constitutional provision, statute, court rule, or court decision states otherwise, the following provisions control the identification of criminal offenses as either misdemeanors or felonies. Fla. Stat.ch. 775.081(3).a)Felony Categories
In FLorida an Easment by estopple is
An easement by estoppel generally involves both oral permission and detrimental reliance. An oral promise of an easement alone, however, is unenforceable under Florida’s Statute of Frauds. Fla. Stat. ch. 725.01. Katcher v. Sans Souci Co., 200 So. 2d 826 (Fla. Dist. Ct. App. 3 07/05/67), cert. discharged, 217
An easment can also be asserted based on ___________
adverse possession with color of title.
How long do yuo need to wait to get your gun in Florida?
3 days beteen purcahse and delivery of a handgun.
Where does the power to act come from in a CHARTER County Government come from?
THE CHARTER: And they can act as long as it is not inconsistent with State law.
ounties operating under county charters shall have all powers of local self-government not inconsistent with general law or special law. In other words, the power to act for charter counties is presumed, absent a conflicting state law. The charter shall provide which shall prevail in the event of conflict between county and municipal ordinances.
To be recorded, an instrument concerning real property must be _________ ,______________, or______________________ by notary public. Fla. Stat. ch. 695.03.
acknowledged by the signing party,
proved by a subscribing witness,
or authenticated
Article 1 section 8 provides Floridians with the right to?
Bear Arms. The right of the people to keep and bear arms in defense shall not be infringed, except that the manner of bearing arms may be regulated by law. Fla. Const. art. I, § 8(a).
FL Con Law Due Process as it relates to 14th amendment and medical treatment:
The Florida Supreme Court has concluded that “a competent person has the constitutional right to choose or refuse medical treatment.” In re Guardianship of Browning, 568 So. 2d 4, 11 (Fla. 1990).
Are advertisements offers?
No they are invitations for offers.
The basic test for unconscionability is
whether the terms or so one-sided as to be unconscionable under the circumstances at the time the contract was formed.
In Florida a lack of proper recording of a real property interest creates a _______________ _______________ that a person lacks constructive notice of such a pre-existing but unrecorded interest in real property.
In Florida, a lack of proper recording of a real property interest creates a rebuttable presumption that a person lacks constructive notice of such a pre-existing but unrecorded interest in real property.
Florida law includes a statutory rule against___________
rule against perpetuities.
What are the two types of stalking in FLorida?
GENERAL STALKING –MISDEMEANOR
Stalking occurs when an accused willfully, maliciously, and repeatedly follows, harasses, or cyberstalks a victim. Fla. Stat. ch. 784.048(2). This offense is first-degree misdemeanor. Id.
2)AGGRAVATED STALKING -FELONYAggravated stalking is a third-degree felony. Fla. Stat.ch. 784.048(3). It consists of the same prohibited conduct as general stalking, plus an additional element. Id.Specifically, the accused must also make a credible threat, with the intent to place the victim in reasonable fear of the death or bodily injury of the victim or the victim’s:•child,•sibling,•spouse,•parent, or•dependent. Id.; Fla. Stat.ch. 784.048(1)(c).
In Florida, stalking includes several types of behavior by an accused towards a victim. A victim can file a stalking complaint seeking to obtain an injunction preventing the stalker from continuing the alleged misconduct.
What are the three ways Constitutional Homestead protects homes in Florida?
homestead property is exempt from some taxes (as addressed earlier); 25k
homestead property is protected from forced sale by creditors (under any court process) and no judgment or execution may be a lien on homestead property; and
homestead owner is restricted from alienating or devising homestead property
Scope of Laws in FLorida and the single subject rule
Every law can embrace only one subject and matter properly connected therewith (the “Single Subject Rule”).
In Florida what constitutes negligent hiring?
An employer is liable for negligent hiring when the employer hires a person who he knows or should have know was not qualified for the job or if there is something in the ee history that makes them unfit for employment.
What is a periodic tenancy?
This is a tenancy that continues on successive periods (month to month for example) IT is automatically renewed and requires a notice of termination. A year to year tenancy requires a 60 day notice, a month to month requires a 15 day notice.
When can a firm offer be revolked?
Even if no consideration This can’t be revolked for 90 days if no time period is listed in offer. but this is when no consideration is given. when consideration gets involved it becomes an option contract.
Fee simple determinable, to a for so long as,
Is an estate that ends autimatically if a particular event occurs. If that event occurs it reverts to the person who conveyed the property. AUTOMATICALLY
When a statutor easment by necessity is sought, this action can result in an award of __________ to a prospective servient estate owner for the landlocked owner’s use of the easement. Id.
compensation;
If that owner is awarded compensation for the easement, the easement will exist from when the award is paid.
Selling or Delivering 10+Grams of Controlled Substances is a
Felony . by selling or delivering over 10 grams of certain controlled substances, or any combination of those controlled substances, or any mixuture including such substance.
Under Florida law, where a taking in an eminent domain proceeding has occurred who decides what is full compensation? Judge or Jury?
Once the question of whether there has been a taking has been resolved, the question of what constitutes full compensation is for a jury. Note, however, that the right to a jury on this issue is statutory, not constitutional.
Felony Murder in FLorida is
A person commits second-degree murder when a victim is killed by someone other than the person who was engaged in the perpetration of, or in the attempt to perpetrate, a felony. Fla. Stat.ch. 782.04(3). In this event, the person perpetrating or attempting to perpetrate an enumerated dangerous felony is guilty of second-degree murder
What are the four major defenses to contract formation?
Mistake, Lack of Capacity, Illegality, or Statute of Frauds.
What relief can be granted in domestic violence
injunction temporary injunction good for 15 days (need hearing to be permanent) must be on reasonable belief of violence and general injunction which requires notice and hearing
What is conditional acceptance?
This is a rejection of the offer when they are express.
Are attorney’s fees compensated as a part of full compensation for property that has been subjected to a taking?
Yes: Full compensation for the property taken must be in accord with its fair market value, including attorneys’ fees. Property owners may be awarded prejudgment interest on paid expenses. Leaseholds, easements, personal property, franchises, and contracts have been held to be compensable property interests.
What is exempt from Ad Valorem Taxes?
Certain property is exempt from ad valorem taxation including: 1) all property owned by a municipality and used for municipal or public purposes (but not such property used for commercial or private purposes); 2) household goods and personal effects of at least $1,000 for each household; and 3) $25,000 of value for a qualified homestead (residing on the property and in good faith making it a permanent home
UCC § 2-207[1]
(Under the UCC, the acceptance does NOT have to mirror the offer [i.e., the acceptance can include different or additional terms from those in the offer]. UCC § 2-207[1] determines whether the purported acceptance [containing new terms] will operate as an acceptance or as a counteroffer. It states:
- A definite and seasonable expression of acceptance or written confirmation;
- Which is sent within a reasonable amount of time;
- Operates as an ACCEPTANCE even though it states terms additional to or different from those offered or agreed upon;
- UNLESS acceptance is expressly made conditional upon assent to the additional or different terms.)
With respect to the doctrine of separation of powers, how does the Florida Constitution differ from the U.S. Constitution?
Florida expressly states the doctrine of sepaation fo powers, mandating separation of the executive, judicial, and legilative branches of government.
What is Vagueness in Fl Con Law?
A reasonable person must be able to discern what is prohibited by reading the law. If the law is too vague as written, the law may be void for vagueness. For example, an ordinance prohibiting assembly on the sidewalks in a manner that is “annoying to people passing by” is unconstitutionally vague. A reasonable person cannot be expected to know what is “annoying,” and as such, this subjective standard could not be enforced because it is vague
What financial needs to be submitted to court?
FInancial affidavits, tax returns, pay stubs, loan apps, financial statement for past year, ongoing duty to disclose so if new circumstances you have to disclose.
An action to quiet title is an __________remedy
equitable
An action to quiet title is an equitable action seeking to determine title to land, quiet title to the land, and award possession of the land to the rightful owner. Fla. Stat. ch. 65.011. An action to quiet title may be requested by a plaintiff claiming to own any land against defendants claiming title to the land adversely to the plaintiff.
In order to establish a prescriptive easement, the claimant must prove:
1) . __________ years
2) the use is _____________ and neither with
3) the owners___________or____________imputed______________due to the ______,________, and ___________use
4) the use is __________the owners use and enjoyment of his land and not ___________and
5) . the use is related to a ________________ or if a right of way is involved the use is a ______________route.
1) . 20 years of actual, continuous, uninterrupted use;
2) . the use is adverse under claim of right, and either with:
3) .the owner’s actual knowledge; or the owner’s imputed knowledge due to open, notorious, and visible use;
4) . the use is inconsistent with the owner’s use and enjoyment of his land and the use must not be permissive; and
5) . the use is related to a specific area; or if a right of way is involved, the use is a defined route
A discrimination claim based on age gets what level of scruitny?
In contrast to discrimination claims grounded in race, physical disability or religion, age is not a suspect classification in Florida. The courts therefore will apply a rational basis test to an age discrimination claim.
A buyer of residential real estate (new or used) may bring a cause of action against its seller for ____________ ________ in connection with their transaction. Id.; Johnson v. Davis, supra.
fraudulent nondisclosure
An abutting landowner’s easements of _____,______,and _______, and access are appurtenant to the land and cannot be conveyed separate from the land.
light, air, and view
State Road Dep’t v. Lewis, 79 So. 2d 699 (Fla. 1955). Any damage to such rights, or to the abutting property from infringement upon them, gives rise to a tort claim. Id
What is a continuting offer?
Seller offers to sell buyer widgets for $1 per widget up to 100k widgets for 1 year. This is valid and buyer can buy till they get to 100k.
Generally, to be valid and enforceable in Florida, an instrument conveying an interest in real property must be ______________________Fla. Stat. ch. 689.01.
in writing and signed by the person conveying the interest. This person must sign the instrument in the presence of two subscribing witnesses who also sign it then.
What is a defeasable fee simple?
This is a fee simple estate in land which the holder possess a fee simple title, but the title is subject to being divested upon the occurrence of a certain condition.
What is a merchants firm offer under article 2
A merchant offers to buy or sell goods in writing and gives assurances that it will hold the offer open.
In FLorida Rights are deemed fundamental when
Guaranteed by FL constitution and state needs CI and Strict Scruitny standard of review to when abridged
What are the elements of an offer?
Promise, where there is certianty and definiteness of the essential terms, and communication to the offeree.
Under FLorida con law Political power is
Inherent in the people. The enunciated rights must not be construed to deny or impair others.
What are the factors that are considered when alimony is awarded?
1) . Financial resources, 2) standard of living 3) time of marriage 0-6 short 7-16 moderate 3). 17 plus long term’.
4) . Need to help spouse find a job 5) contributions to marriage 6). age and health 7) marital misconduct onlyif this reduced the marital assets, 8).children 9). sourcese of income 10) taxes
COUNTY LAW VERSUS CONFLICTING MUNICIPAL LAW
Supremacy depends upon whether the county is chartered or non-chartered. In non-chartered counties, county law generally governs throughout the county. However, within the borders of the municipality, a conflicting municipal law trumps the county law, and thus governs within the municipality.
In a chartered county, county law generally governs throughout the county. However, the county charter clause covering supremacy will dictate whether the municipal law trumps the county law within the municipal borders.
A landowner conveyed her parcel of land to “my brother and my sister jointly, with right of survivorship.” Shortly thereafter, the brother was in an automobile accident. The driver of the other vehicle sued the brother on a theory of negligence, and obtained a judgment in the amount of $250,000. Because the brother did not have insurance or enough cash to satisfy the judgment, the driver levied on the brother’s interest in the land.
What interest will the driver most likely take?
The driver will get an undivided one-half interest in the land regardless of the status of the brother and the sister’s title. A joint tenancy is a concurrent estate with a right of survivorship, while a tenancy in common does not have a right of survivorship. At common law, the conveyance here would qualify as a joint tenancy because the unities of time, title, interest, and possession are present in the conveyance. Although under modern law a joint tenancy must be created with specific language or else it will be presumed to be a tenancy in common, the conveyance here still would probably qualify as a joint tenancy, even though it did not use the words “joint tenancy,” because it contained the “right of survivorship” language. However, regardless of whether the estate is characterized as a joint tenancy or a tenancy in common, one tenant’s interest may be transferred without the consent of the other tenant, and a creditor may levy on the interest. In most jurisdictions, a lien against one joint tenant’s interest does not sever the joint tenancy until the lien holder proceeds to enforce it by foreclosure. At that point, the purchaser at the foreclosure sale will hold the property as a tenant in common with the other tenant, but will still have an undivided one-half interest in the property unless and until he brings an action to partition the estate
The Declaration of Rights in the Florida Constitution provide what in comparison to the Federal Constitution’s Bill of Rights?
A greater scope of protection. FL Sup Ct has stated that the federal constitution represents the floor and the Fl Constitution it’s the ceiling.
A right of ___________ a leased premises may be enforceable if it is a reasonable restraint on alienation.
first refusal to purchase
The state constitution provides that no person may be deprived of ____________________, ____________________, or ____________________ without due process of law.
Life, Liberty, and property.Procedural due process also extends to actions by private organizations exercising a quasi-public function (e.g., professional organizations).
A man and a woman purchased a parcel of land, taking title as joint tenants. Two years later, they married and had a son. Several years after that, the man and woman divorced. After the divorce, the woman and her son continued to occupy the land, although title remained in the names of both the man and the woman. The man moved out of the state and conveyed all of his title and interest in the land by deed to the son. Shortly thereafter, the man was killed in an automobile collision. The man died intestate.
Who has title to the land?
The woman and her son have title to the land as tenants in common. The man and the woman took title to the land as joint tenants. An inter vivos conveyance by one joint tenant of his undivided interest severs the joint tenancy, so that the transferee takes the interest as a tenant in common and not as a joint tenant. Here, there was an inter vivos conveyance by the man to the son of all of the man’s interest in the property held in joint tenancy with the woman. This conveyance destroyed the joint tenancy, so that the son takes his interest in the property as a tenant in common with the woman, rather than as a joint tenant. The woman doesnt have it alone becase the severance of the joint tenancy destroyed the right of survivorship. A joint tenancy carries with it a right of survivorship, whereby the death of one joint tenant frees the property from his concurrent interest, so that the surviving joint tenant retains an undivided right in the property that is no longer subject to the interest of the decedent. Had the man died without having conveyed his interest in the land, the woman would have had full ownership of the property, free of the man’s interest. However, because the joint tenancy had been terminated prior to the man’s death, there was no right of survivorship. Note also that the estate held by the man and the woman was not a tenancy by the entirety, which is a marital estate similar to a joint tenancy between a husband and wife. If a conveyance to spouses is unclear as to the type of estate created, most states presume that it creates a tenancy by the entirety. Here, the man and the woman took title to the land prior to their marriage, and their subsequent marriage does not affect the nature of their title. This is important because in a tenancy by the entirety, one spouse cannot convey any interest. The woman and the mans heirs don’t own 1/2 each becasue because the man conveyed his interest in the land to the son. Thus, there is no interest or right in the land to which the heirs of the man can succeed under the intestacy laws. In addition, even if there had been no conveyance, the man’s heirs would not have succeeded to his interest in the land. Rather, the woman would have taken an undivided interest in the property by means of the right of survivorship.
When a joint tenant conveys his interest, it automatically becomes a tenancy in common interest. This is because the unity of time (one of the four unities required for creation of a joint tenancy) is lacking. To be joint tenants, the interests of the co-tenants must vest at the same time. Here, the woman and the man’s interest vested at the same time, but the son’s vested much later. Thus, the woman and her son cannot be joint tenants they are tenants in common.
Under an amendment to the Declaration of Rights, in the FLorida Constitution, the right to privacy is
a fundamental right that is broader than the federal constitution, it embraces more privacy interest and extends more protection to the idividual in those intreasets than the federal constitution. It says:“every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.” Fla. Const. art. I, § 23
What is the nature of a leashold?
Tenant has a present possessory interest and the landlord has a reveriom ( a future interest)
What is a merchants confirmatory memo?
This is when a merchant confirms an oral agreement in a memo after the fact.
What is the concept of unconsionablity?
This allows a court to refuse to enforce a provisional an entire K to avoid unfair terms due to some unfairness in the bargaining process.
An irrevocable license is
“functional equivalent” of an easement by estoppel they are not the same thing. They are different in origin, scope, and function. The “irrevocable license” is a distinct remedial concept recognized historically and currently in many jurisdictions, which, like Florida, provide no statutory remedy. It only arises under certain very narrow circumstances and should be applied only to the extent required to prevent inequity. The duration of irrevocable licenses should be limited to the time necessary to protect the reliance investment of the licensee. The irrevocable license gives equity a broad range of remedies short of creating an easement servitude in real property.
What are some of the situations indicating possession of property adverly with color of title?
usual cultivation or improvement;
protection by a substantial enclosure; and
occupant’s ordinary use.
How does Governors veto power work in FLorida?
Every bill passed by the legislature is presented to the governor for approval and will become a law if the governor approves and signs it, or fails to veto it within 7 consecutive days after presentation (15 days if the legislature adjourns during that time). In all cases except general appropriation bills, the veto extends to the entire bill. The governor may veto any specific appropriation in a general appropriation bill. The legislature may override the governor’s veto by a two-thirds vote of each house: the senate and the house
What are the three elements you must have to create a contract?
Offer, Acceptance and consideration. Then Be sure there are no defenses.
Generally, in Florida, when a home’s seller knows of facts _____________ ______________ ____________ __________ of the real property that are not readily observable and are not known to the buyer, the seller has a duty to disclose them to the buyer.
materially affecting the value
When spouses hold property as a_______ _________ with right of survivorship, a creditor of one of the__________ __________ may attach the_________ part of the property to recover the _________ ______debt. Id.; Sitomer v. Orlan, 660 So. 2d 1111 (Fla. Dist. Ct. App. 4 1995).
joint tenancy
joint tenants
joint tenants
joint tenant’s
How much is the homestead exemption in FLorida?
Generally, the homestead exemption from taxation applies up to the assessed valuation of $25,000, and for all non-school district levies, on the assessed valuation greater than $50,000 and up to $75,000. For example, suppose a property owner owns a home and a commercial property. The owner makes the home his residence and it qualifies as the owner’s homestead. The home and commercial property are each assessed at $300,000. The commercial property will be subject to property taxes on an assessed value of $300,000. The home will be subject to property taxes on an adjusted value of $275,000 (the assessed value minus the homestead protection). Also, up to an additional $25,000 exemption applies on the assessed valuation greater than $100,000, for all non-school district levies. Fla. Stat. ch. 196.031(1)(b) (2017)
MASTER OF THE OFFER
The offeror is the master of the offer, which means that the offeree MUST accept the offer according to the rules of the offer.
Fla. Const. art. I, § 5. gives the people the right to:
The people shall have the right peaceably to assemble, to instruct their representatives, and to petition for redress of grievances.
How can a landlord get liquidated damages from a tenant?
A written residential rental agreement for a specified duration can obligate the tenant to notify the landlord before vacating the premises at the agreement’s end. This agreement cannot require such notice more than 60 days before the premises are vacated. Fla. Stat. ch. 83.575(1). Under this agreement IF the tenant does not not give notice the landlord may be entitled to lieuidated damages set fot in the agreement.
What is termination by operation of law of an offer?
death, insanity, destruction of subject matter or subervenining illegality all terminate the offer.
How do you pass a bill in FLorida?
Any bill may originate in either house and after passage in one may be amended in the other. It must be read in each house on three separate days, unless this rule is waived by two-thirds vote. On final passage, the vote of each member voting must be entered on the journal. Passage of a bill requires a majority vote in each house.
A plaintiff may bring an action against a defendant to remove a cloud on the title or ____________for the purposes of perfecting or fixing legal title to land. Often, these types of actions are brought when at least two parties both assert claims to and dispute the ownership of real property.
to quiet title
