FL Property

Question 1

Lecture Notes: Three Basic Types of Property Essays

Property

Answer 1

1. Easement / Covenant Land Rights
2. Landlord / Tenant
3. Conveyance (transfer of title)

NOTE: Could overlap.

NOTE: Homestead stuff is under FL Con Law

Question 2

Easement Essay Road Map

Property

Answer 2

# 1. **Define easement**
2. **State how it is created** (what kind of easement?)

• Express (in writing) OR
• Easement by Necessity
• Easement by Prescription (think adverse possession; 20 years) OR
• Easement by Implication (“implied by prior use”))

3. Duration: How it can be terminated (easements run forever with the property until it is terminated)

• Express: Terminates date or time agreed to in writing
• Necessity: Terminates when no longer necessary
• Abandonment: Non-use AND Express intent not to return (NOTE: NON-USE IS NOT ENOUGH TO TERMINATE)
• Merger: When the two properties merge together

Question 3

Covenant Essay Road Map

Property

Answer 3

1. Define Covenant:

• Always in writing; governed by contract principles.
• A contract allowing land use for a particular purpose OR restricting land use for a particular purpose (“restrictive covenant”)

2. Duration: Generally runs with the land.

• Intent to run with the land
• Touches and concerns the land (is it about the use of the land?)
• Horizontal and vertical privity (just list it on the essay - no one really can explain)
• Notice

3. Breach of Covenant Remedies:
   * Equitable Servitude?: = Type of equitable remedy (not damages) such as an injunction. (Injunction = An order to stop someone from using land for an unauthorized purpose).

Question 4

Landlord / Tenant Essay Road Map

Property

Answer 4

1. What type of tenancy?:

• Periodic Tenancy: Lease has a start date followed by subsequent periods of time (week to week, month to month, year to year). Does not terminate until notice is given.
• Tenancy for Years: Lease gives a beginning and an end date.
• Tenancy At Will: Tenancy is indefinite, can be terminated at any time by either party.
• Tenancy at Sufferance: holdover tenant, stays over a period of time after lease term. Can charge double rent.)
• NOTE: More than a year = Statute of frauds issue to discuss.

2. Termination:
   * Periodic Tenancy: Month to month = Notice of termination given at least 15 days before term end; Year to year = 60 days.
3. Tenant Duties: Pay rent (unless breach in warranties by landlord), not commit waste

• Breach: Landlord cannot commit self-help. Cannot change the locks / etc. to kick you out. Must begin statutory eviction proceedings in court.
• Breach: If stays over lease term (tenant at sufferance) landlord can charge double rent.

4. Landlord Duties: Deliver physical possession to tenant on date lease begins; warranty of quiet enjoyment; warranty of habitability (maintaining health and safety codes).
   * Breach of Warranty of Habitability: Constructive Eviction - tenant can get out of the lease.
5. Assignment / Sublease:

• Assignment: When assigning the lease to a third person, landlord can come after tenant #1 UNLESS a novation / release is executed by the parties.
• Sublease: First tenant remains liable for the rent to landlord.

Question 5

Conveyance of Title Essay Road Map

Property

Answer 5

1. Sale of Land: Two pieces of paper are necessary:

A. Real Estate Contract (can argue contract law - K formation, statute of frauds, etc.)

• Equitable conversion: BUYER BEARS RISK OF LOSS AFTER K SIGNED.
• Marketable Title: Implied in every real estate K that title is free of any liens or encumbrances.

B. Deed: Was the deed validly conveyed?

Requirements for Valid Conveyance of Deed:

• In writing,
• Signed by grantor,
• Have an identifiable grantee, (who is getting the property?)
• Identify the property (address)
• Two witnesses,
• Delivery (delivered to grantee WITH INTENT; PHYSICAL POSSESSION NOT REQUIRED.)
• NOTE: Acceptance is presumed UNLESS specifically stated that they did not accept it.

B1. What type of Deed Is It? (Is the deed a warranty deed OR quitclaim deed?)

• Quitclaim Deed: Seller makes no warranties / promises about the quality of title.
• Warranty Deed:

2 Types of Warranty Deeds

• General: Warrantying that title has been okay since forever on the property.
• Special: Warrantying that title has been okay only since I’ve owned the property.

Includes 6 Warranties (3 present and 3 future):

• Warranty of Seisin (“I promise that I own the land”)
• Warranty of Right to Convey (“I promise that I have the right to sell it to you”)
• Warranty Against Encumbrances (“There is nothing on the title”)
• Warranty of Quiet Enjoyment (“No one will bother you that there is a problem with the title”)
• Warranty of Warranty (“If there is a problem, I will take care of it”)
• Warranty of Further Assurances (“If there is a problem, I will pay to remove encumbrances”)

2. Merger: Once the deed is signed, the terms in the real estate contract merge with the deed and buyer can no longer sue non the K, only on the deed itself. (Just semantics).
3. Mortgages: A loan to purchase land where the land is used as security / collateral.

Priority of Mortgages

• Purchase Money Mortgage: The money you used to buy the property always get priority.
• NOTE: FL = Lien Theory State: Bank only has a lien on the property but no title; is not removed until mortgage is paid in full.

Recording Statutes

• FL is a Notice jurisdiction.
• Who wins? = FL protects the last or subsequent bonafide purchaser (MEMORIZE!!).
• Bonafide Purchaser = Someone who pays value (cannot inherit or receive by gift) AND has no notice of any earlier transactions; “the innocent purchaser”)
• Notice = recording the deed.
• NOTE: Mortgagee IS A BONAFIDE PURCHASER! Giving the loan is considered value.

Question 6

Mortgages Essay Road Map

Property

Question 7

Easement (Defined)

Property

Answer 7

A non-possessory property interest to use the land of another (positive easement) or restrict the use of another’s land (negative easement).

Question 8

Easement (Defined)

Property

Answer 8

A non-possessory property interest to use the land of another (positive easement) or restrict the use of another’s land (negative easement).

Question 9

4 Types of Easements

Property

Answer 9

1. Express Easement
2. Easement by Necessity
3. Easement by Prescription
4. Easement by Implication (through prior use)

Question 10

Easement by Implication

Property

Answer 10

Easement implied through prior use:

1. Severance of one property into two
2. Prior use in existence before severance
3. Use was apparent
4. At time of severance, easement was necessary for the proper and reasonable enjoyment of the dominant tract.

Question 11

Easement by Prescription - Elements

Property

Answer 11

1. Actual use
2. Defined area/route
3. Open and notorious
4. Continuous (20 year stat. period under FL Law)
5. Hostile (no permission by owner)

Question 12

Easement in Gross

Property

Answer 12

An easement is deemed “in gross” if it benefits the landowner personally. Ex. Company paying Owner $700 a month to use a road over his land.

Question 13

Negative Easement of View

Property

Answer 13

In most jurisdictions, negative easements for light, air and view have been repudiated, absent an express grant between the parties, because such restrictions would hamper land development.

FL recognizes a negative easement of view for riparian (water) lands.

NOTE: A writing as ALWAYS required for a negative easement.

Question 14

Ways to Terminate an Easement

Property

Answer 14

1. End of duration (express easement)
2. End of Necessity (easement by necessity)
3. Abandonment (Non-use AND Expressed Intent to not return)
4. Merger (dominant and servient properties become one; cannot have easement on your own property)

Question 15

Covenant

Property (17:00 in lecture)

Answer 15

Contractual promise ALWAYS in writing to do or not do something on A’s own land.

Generally runs with the land

Question 16

When does a covenant run with the land? - Elements

Property

Answer 16

1. Intent by parties
2. Touches and concerns the land (is it about how I use the property?)
3. Horizontal and vertical privity
4. Notice

Question 17

Equitable Servitude

Property

Answer 17

Restrictive covenant (promise NOT to do something on your land)

+ Injunction

= Equitable Servitude (“I don’t want damages, I want them to stop doing it.”)

Question 18

Profit

Property

Answer 18

A non-possessory interest in land where the holder of the profit is entitled to enter land and remove substances (i.e. minerals, timber, etc.)

Question 19

License

Property

Answer 19

• A privilege to do something on someone’s land.
• Ex. License to paint a mural on one wall; license to hunt in a field on land.
• Non-transferable.
• Terminates upon death of grantor or conveyance of property.

Question 20

Types of Leasehold Estates (Tenancies)

Property

Answer 20

1. Tenancy for Years: Lasts for fixed period of time (NOTE: If over 1 year = must meet SOF). Terminates auto. after fixed period.
2. Periodic Tenancy: Lasts for fixed period but does not terminate until a party gives notice.
3. Tenancy at Will: No stated duration; lasts as long as parties both desire. Must be created by express language that either party can terminate at any time, or is otherwise a periodic tenancy.
4. Tenancy at Suffrance: Holdover tenant; lease has expired by T remains in possession. L entitled to double rent.

Question 21

Tenancy for Years

Property

Answer 21

• Lasts for fixed period of time
• (NOTE: If over 1 year = must meet SOF).
• Terminates automatically after fixed period.

Question 22

Periodic Tenancy

Property

Answer 22

• Lasts for fixed period but does not terminate until a party gives notice.
• Automatically renewed until party gives notice.
• Termination requires notice by one party equal to the length of time period (ex. one full month notice for a month-to-month tenancy)
• Can be express, implied (by how often T pays rent), or by operation of law (holdover, or invalid lease but T remains in possession).
• Termination: 60 days req’ for year-to-year, 15 days required for month-to-month, 7 days req’ for week-to-week.

Question 23

Tenancy at Will

Property

Answer 23

• = a tenancy not embodied by a signed writing, or that has periodic rent payments and no set termination date.
• Termination:

Year-to year req’ three months notice;

Month-to-month req’ 15 days notice;

Week-to-week req’ 7 days notice (same as periodic tenancy)

Question 24

Tenancy at Sufferance

Property

Answer 24

• Holdover tenant; lease has expired but T remains in possession.
• L entitled to double rent.
• Expires when L either evicts T or holds T to another term of original tenancy.
• If T is notified of increase in rent for a new term and T is afterwards a holdover tenant, he is presumed to have acquiesced to the new terms.

Question 25

Easement by Implication

Property

Answer 25

Easement implied through prior use:

1. Severance of one property into two
2. Prior use in existence before severance
3. Use was apparent
4. At time of severance, easement was necessary for the proper and reasonable enjoyment of the dominant tract.

Question 26

Equitable Conversion

Property

Answer 26

A purchaser of property becomes the equitable owner of title once the sales contract is signed.

Purchaser therefore bears the risk of loss during the period of time after the RE contract, but before the deed is delivered.

See July 2007 Essay # 3 (B and S agreed that S would not deliver deed until final payment was made. B still had title.

Question 27

Remedies for Breach of Sales K

Property

Answer 27

Breaching party is liable for damages = :

1. difference between K price and market value on date of breach, plus incidental costs;
2. Specific performance (land is unique); or
3. Liquidated Damages Clause: Ex. Look for contracts where K requires non-refundable deposit if B defaults in performance. Courts will uphold if amount is reasonable.

Question 28

Failure to Disclose:

Property

Answer 28

Seller liable if:

1. Knows of defect;
2. Defect not apparent and S knows B unlikely to discover it upon inspection; and
3. Defect is so serious, it is likely B would not purchase if he knew.

Question 29

Liability for Defects in Land Sale

Property

Answer 29

1. Misrepresentation (S made a false statement of material fact to B and B relied on it)
2. Active Concealment (S liable for concealing defects even if he or she made no statement if S took steps to actively conceal defect)
3. Failure to Disclose (S knew of defect, knew B unlikely to discover it upon inspection, and defect so serious, it is unlikely B would purchase if knew.

Question 30

Adverse Possession

Answer 30

Adverse possession has 4 requirements; Possession must be: A-HOE

1. Actual;
2. Hostile (trespasser must be either a) aware of his trespassing; b) merely occupying the land; or c) made an honest mistake, such as relying on an incorrect deed;
3. Open and Notorious (trespassing not done in secret)
4. Exclusive and Continuous (cannot share possession with anyone else, and for a unbroken period of time of 7 years.
5. Land is either improved, cultivated, or maintained.

NOTE: Within one year of owning the property, adverse possessor MUST have paid all outstanding taxes on the property AND file paperwork with the state.