fl property Flashcards
ownership: estates in land
basics
Different ways property can be transferred (i.e., alienated):
1. sale (passing by deed)
2. gift (there is intent, delivery, and acceptance)
3. devise (upon death)
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estates in land
(1) fee simple absolute
The largest estate, capable of lasting forever, fully alienable
Florida—takes the modern approach to the fee simple absolute
* An ambiguous conveyance is a fee simple by default
* Does not require words of limitation
(2) fee simple determinable and possibility of reverter
The fee simple determinable is a durational fee simple.
General Rule: A possibility of reverter has no time limit (it can last as long as necessary).
Florida Distinction: The Florida legislature has a forfeiture provision, which caps a possibility of reverter at 21 years from the date of conveyance.
- Exception! Charitable gifts (scientific, literary, religious, governmental, etc.)
(3) fee tail
“To A and the heirs of her body”
A gift to the grantee’s lineal line
Most states—including Florida—have abolished the feetail.
if you see one, fl treats it as a life estate
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O conveys “to A for life, forever.” This is likely a fee simple absolute.
fee simple determinable: (o conveys to a so long as land used as park. a has fee simple and o has possibility of reverter if land is not used as park)
In Florida, O conveys “to A and the heirs of his body.” A has a daughter, B.
What does this create? a has life estate. b has remainder
forfeiture provision:
Example: B give his property to C, until C marries. C marries 22 yrs later. C has a fee simple. B’s future interest (i.e., a possibility of reverter) was annulled after 21 years from the date of conveyance.
ownership: future interests
future interests
(1) contingent remainders (right of reversion)
A remainder is contingent if it is created in a grantee that is unascertainable, or if the grantee’s taking is subject to an express condition precedent
Contingent remainders are not protected in Florida and may be destroyed if not vested by the time the preceding estate terminates.
(2) shelley’s case
O “to A for life, then to A’s heirs.”
Common Law: Merger doctrine—A has a fee simple absolute.
Florida Rule: Does not recognize Shelley’r rule. Instead, by statute, an instrument that purports to create a life estate in a person with the remainder to her heirs instead creates: (1) a life estate with (2) a remainder per stirpes to the life tenant’s lineal descendants in being when the life estate began. The remainder is subject to open during the life estate.
(3) doctrine of worthier title (under common law, but not fl, there is remainder)
O “to A for life, then to the heirs of O.”
Common Law: O has a reversion in fee simple absolute. Cut off the contingent remainder.
Florida: Does not recognize this. The heirs get their remainder interest.
contingent remainder:
O conveys “to A for life, then to B if B passes the Florida bar exam.” At the time, B is a first-year law student in Florida.
B has contingent remainder. O has reversion.
ownership: RAP
rule against perpetuities
O “to A for life, then to A’s first kid to become a lawyer.” A has no kids at the time.
Common Law Rule: This conveyance violates RAP.
* There is no validating life. It is possible that A’s first kid will become a lawyer more than 21 years after A’s death.
Florida: Takes a “wait and see” approach. (Florida Uniform Statutory RAP) (FUSRAP)
* RAP Period = 90 years from when the interest was created.
* think of the “wait and see” period as a safety valve, in three steps:
1. Is it good under the common-law rule? If so, you’re done.
2. If it’s bad under the common-law rule, does the “wait and see” rule provide shelter?
3. if so, it’s good; if not, it’s bad.
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ownership: concurrent ownership
(1) *tenancy in common *
this is the default concurrent estate.
Abe conveys a portion of his land “to my neighbors, Betty and Candice.” Betty and Candice take as tenants in common.
(2) joint tenancy: Concurrent ownership with a right of survivorship.
Four Unities: Like most states, Florida requires four unities to create a joint tenancy
* Possession: Joint tenants must be able to possess the whole
* Interest: Joint tenants must receive the same interest (type, share)
* Time: Joint tenants must receive at the same time
* Title: Joint tenants must receive in the same instrument
severance: if a joint tenant gives a mortgage on their share of the property, fl Follows the lien theory. The mortgage does not sever the unities.
slayer rule: An equity rule that says a person can’t profit from an intentional killing (i.e., murder). In Florida, when one joint tenant kills the other, this will sever the joint tenancy.
(3) tenancy by the entirety: The married people’s joint tenancy.
creation: Under Florida law, a transfer to a married couple is presumed to be a tenancy by the entirety.
transfer: Tenants by the entirety cannot unilaterally convey property held by the entirety.
Personal Property: A TBE in personal property must include the five unities and the intent to create a right of survivorship and a TBE.
* A party challenging the presumption of a TBE bears the burden of showing a different classification existed.
Exception to four unities:
Abe owns Cottonacre. Abe conveys a deed to Barney as a joint tenant of Cottonacre with Abe. This is possible under Florida law.
No strawman is required; it is okay that the unities are not satisfied.
But:
Abe owns Cottonacre. Abe conveys the property “to Barney and
Candice, as joint tenants with a right of survivorship, with Barney taking a 70% interest and Candice taking a 30% interest.”
Although it looks a lot like a joint tenancy, this transfer lacks the unity of interest. It is likely a tenancy in common.
landlord and tenant law: leasehold estates
leasehold estates
Recall that there are three kinds of leasehold estates—tenancy for years, periodic tenancies, and tenancies at will.
(1) tenancy for years
A leasehold for a fixed time period
Traditionally, they end naturally at the conclusion of the term.
Florida: A residential tenancy for years may contain a notice provision for the end of the term, if either the landlord or tenant will not be renewing the leasehold.
* The notice period cannot be more than 60 days.
If the tenant fails to provide notice, The tenant may be on the hook for specified damages, if laid out in the lease.
If the tenant remains on the premises at the end of the term, even with landlord’s consent, The tenant may be on the hook for another month’s rent.
(2) periodic tenancy
An interest of successive periods, without a natural end point (i.e., month-to-month, year- to-year, etc.)
Under Florida law, a non-residential periodic tenancy is called a “tenancy at will.”
Florida: Florida law has a specified notice period for terminating a periodic tenancy. These are the minimums:
* Week-to-week: 7 days
* Month-to-month: 15 days
* Quarter-to-quarter: 30 days residential; 45 days nonresidential at will
* Year-to-year: 60 days residential; three months nonresidential at will
(3) tenancy at will
An informal rental relationship
Florida: An unwritten nonresidential lease (i.e. not signed by landlord) is a tenancy at will.
landlord and tenant law: tenant duties
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tenant duties
(1) pay rent
A tenant has the obligation to pay rent.
Obligation can be suspended.
Destruction: If the premises are destroyed—so long as not caused by tenant
Test: The test is if the premises have been “substantively impaired.”
there can be total or partial destruction of the premises.
(2) avoid waste
Florida tenants must take steps to maintain rental properties in good order, (e.g., clean, in good repair, use facilities & utilities in a reasonable manner, don’t unreasonably disturb fellow tenants, etc.)
(3) nonresidential waste
special issue regarding commercial leases that puts the burden to repair on the landlord.
If the landlord fails to maintain the premises, then the tenant may withhold rent if the premises are wholly untenable.
The tenant must notify the landlord.
Time window opens:
* If the landlord completes repairs within 20 days, then the tenant must pay due rent.
* If the landlord does not complete repairs within that time, then the tenant may terminate the lease, abandon the property, retain the withheld rent, and not be responsible for future rent.
abandonment
It can be presumed that the tenant has abandoned the premises if the tenant is absent from the premises for a period of time equal to one-half the time for periodic rental payments (30 consecutive days for nonresidential leases).
The presumption does not apply if the rent is current or the tenant notified the landlord in writing of any intended absence.
landlord and tenant law: remedies
remedies
(1) cure
In the residential context, a tenant in breach gets an opportunity to cure the injury.
(2) failure to pay rent if tenant does not pay
Residential: The landlord must provide a written demand to pay rent or vacate the premises within 3 days, excluding Saturday, Sunday, and legal holidays.
* his notice requirement cannot be waived.
nonresidential: Once rent comes due, the landlord may file an action to recover possession.
if the tenant pays the rent after the fact, The landlord’s acceptance is treated as a waiver of the landlord’s right to evict.
(3) holdovers if the tenant stays beyond the end of their lease
Florida does not permit self-help.
The landlord must file to retake possession.
The landlord can recover double rent due.
landlord and tenant law: landlord duties
landlord duties
(1) possession
Landlords have an obligation to deliver possession.
- Most states follow the rule that possession means actual possession (physical possession)
- A minority of jurisdictions require only that the landlord deliver legal possession.
Florida follows majority view of actual possession, the tenant has to be put in the leasehold
(2) duty to repair
As a general matter, residential landlords have a duty to repair the premises.
- This can be waived in single-family residential properties but cannot be waived in multi- family dwellings.
the landlord must abide by the housing code, if one exists (grows out of the warranty of habitability)
If there is no housing code, then the landlord must maintain:
- roofs, windows, doors
- Floors, steps, porches
- Exterior walls, foundation, structural components, and plumbing
in multi-family dwellings
- the landlord must deal with pests
- deal with locks and keys
- maintain common areas
- responsible for garbage
- provide heat, water, and hot water
If a landlord does not comply:
* the tenant must notify the landlord in writing.
Window opens:
* The landlord has 7 days to cure.
* If the landlord does not cure within that time, the tenant may terminate.
(3) retaliatory eviction
Florida has a broad retaliatory eviction protection.
Basic Idea: The landlord cannot punish tenants for exercising their rights as tenants.
The landlord cannot increase rent, threaten, or decrease services.
Exercising Rights:
* Reporting a housing code violation
* Organizing a tenant group
* Lodging complaints
* Exercising rights under housing laws
landlord tenant law: deposit money
Deposit money
A landlord has 15 days to return any money deposited by the tenant as security
Imposing a claim: Say the landlord wants to claim all or a portion of the deposit money, what must the landlord do?
* Timing: Landlord has 30 days to notify the tenant of the claim
* Form: Notice must be in writing, sent by certified mail to the tenant’s last known address, and give reasons for the claim.
Response: The tenant has 15 days to object.
Damages: If the landlord fails to provide requisite notice, then the landlord must pursue an action for damages
land sale contracts
forming the contract
Land sale contracts must be in writing—of course!
* It must be signed by the party to be charged, and it must contain all essential terms
One of those essential terms is the description of the property.
if the contract does not include an adequate description, In Florida, extrinsic evidence is admissible to help identify an inadequately described piece of property.
exceptions to the statute of frauds
Part Performance: A possible exception to the Statute of Frauds
* General Law: Either party may seek specific performance if some act constitutes persuasive evidence that the contract existed.
for example
* Payment of the purchase price—all or part;
* Purchaser is in possession; or
* Purchaser improves the property
Most states require at least two of the three acts to satisfy part performance.
Florida requires all three.
Promissory Estoppel: Florida does not recognize detrimental reliance as an exception to the Statute of Frauds.
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performing the contract
(1) duty to disclose
Think of the buyer’s situation. The buyer inspects the property, looking for defects in need of repair.
Seller has a duty to disclose any facts materially affecting the value that are not readily observable by the buyer.
General disclaimers do not waive the duty to disclose defects.
(2) risk of loss
Once contract is signed, equity regards the buyer as owner of the property.
Risk of loss is connected to equitable conversion.
If the property is destroyed in the period between the contract and the closing, the risk of loss on the
buyer (majority and fl rule).
seller’s liability for defects
- remedy is recission of contract
- applies to residential property
- commercial property is caveat emptor (buyer responsible before buying)
active concealment
* seller is liable if seller took steps to conceal the defect in the property
* this applies to residential and commercial property
misrepresentation or fraud
* a tort cause of action
elements:
* seller knowingly ot recklessly makes a false statement to the buyer
* buyer relied on the statement
* it materially affected the value of the property
title: basics
Ownership in real property revolves around title.
It is useful to keep three things in mind about title:
* Title is relative. My title can be better or worse than your title.
* Title can change hands formally (e.g., by sale) or
informally (e.g., by adverse possession).
* There are several mechanisms to assure title (e.g., insurance, recording, deed warranties).
title: adverse possession
adverse possession
The doctrine of adverse possession allows a person in unlawful possession to acquire good title to a piece of property.
There is not a transfer. The trespasser becomes owner by operation of law.
Title relates back to the trespass.
(1) elements
Florida follows the usual elements to adverse possession—Continuous, Open & Notorious, Hostile, and Exclusive.
The one distinction: The time period in Florida is 7 years.
(2) scope of possession
Florida law makes a distinction between adverse possession with and without color of title.
Color of title is adverse possession based on a faulty writing (a fraudulent deed).
Under Color of Title: Two Steps
1. Adverse possession begins when the writing is recorded in the county where the property is located; and
2. The property is either:
* Cultivated or improved;
* Protected by a substantial enclosure;
* Used for supply of fuel or fencing of timber for husbandry; or
* Partly improved, as long as the partly improved parcel is part of a known lot or single farm.
Without Color of Title: Two Steps
(1) Step 1—Taxes: In Florida, an adverse possessor must pay taxes on the property.
* Within a year of possession, pay the outstanding taxes;
* File a description with the county assessor within 30 days of paying the outstanding taxes; and
* Pay taxes in all remaining years of occupation.
(2) Step 2—Occupation: The property must be:
* Protected by a substantial enclosure; or
* Cultivated, maintained, or improved in a usual manner.
title: deeds (Description and execution)
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deeds
(1) description
As with any deed, Florida law requires a description of the property being transferred.
if the description has a single error in it (a “scrivener’s error”), the deed (and subsequent deeds) can still convey title if the following are all present:
* The grantor held record title to the intended property at the time the first erroneous deed was executed;
* The grantor did not hold title to any real property in the subdivision or community within 5 years before the erroneous deed;
* Intended property is not defined solely by metes and bounds; and
* A curative notice is recorded in the county records; must show grantor’s intent
(2) execution
Most states do not have a witness requirement.
Florida law says a deed must be signed in the presence of 2 witnesses.
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deeds (types)
(1) general warranty deed
expressly gurantees the grantor’s good and clear title of the following covenants
* covenant of seisin: grantor has estate she purports to convey. grantor must have BOTH title and possession at time of grant
* covenant of right to convey: grantor has authority to make the grant. title alone satisfies this.
* covenant against encumbrances: no physical (encroachments) or title (mortgage) encumbrances
* covenant of quiet enjoyment: grantee will not be disturbed in possession by a 3rd party claiming lawful title
* covenant of warrant: grantor agrees to defend against reasonable claims of title by 3rd party and to compensate grantee for any loss sustained by claim of superior title
* covenant for further assurances: grantor promises to perform acts reasonably necessary to perfect title
(2) special warranty deed
provides 2 assurances
1. grantor has not conveyed the same estate or interest to anyone other than the grantee AND
2. estate is free from encumbrances made by grantor
(3) quitclaim deed
conveys whatever interest the grantor has. no covenants of title are express or implied.
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marketable title
every contract in FL contains an implied warranty that the seller will provide marketable title at closing.
