FL Property Essay

Question 1

Homestead checklist

Answer 1

what is homestead/elements , super creditors, abandonment, devising your homestead

ECAD

Question 2

Homestead definition

Answer 2

In FL, your primary residence is protected from a forced sale by creditors.

Question 3

elements to get homestead protection

Answer 3

1) must be primary residence.
• Look for legal domicile, drivers license, etc.
2) must be owned by a natural person.
3) homestead must be filed with the clerk’s office before any creditor claim.
4) the acreage requirement: ½ acre of contiguous land inside of a municipality, or 160 acres of contiguous land outside of a municipality.

Question 4

homestead includes:

Answer 4

both your primary residence and up to $1000 of personal property.

Question 5

super creditors that can get your house no matter what: (new paragrpah)

Answer 5

1) mortgage
2) property taxes
3) mechanic’s liens (Any work that’s done on the property itself. Built a pool, an extension of the house, etc.)

Question 6

abandonment of homestead (new paragraph)

Answer 6

• 1) leave the property
• 2) express the intent not to return
• If this happens, you lose your homestead protection and creditors can come after your home.

Question 7

devise of homestead (new paragraph)

Answer 7

You cannot devise your homestead in a will.

RULE: The surviving spouse gets a life estate and the minor child gets the remainder.

Question 8

homestead exemption from property taxes

Answer 8

two $25,000 exemptions off the market value of your property.
Example: if your house was 400K, you would only be paying tax for $350K

o 1) you only pay your property taxes to the local county government
o 2) no state income tax in FL, we only pay federal income tax.
 What is the rate that you’re going to pay your property tax?
• Calculated by the millage rate.

Question 9

Homestead and property taxes: portability

Answer 9

When FL resident sells one homestead, and moves to another homestead, they must re-file homestead protection on the new house to keep homestead benefits.

This allows the FL resident to take the property tax exemption value to the new residence.

Question 10

Easements

Answer 10

• Non possessory interest in the use of the land of another; or restrict the use of land of another.
o Easements can be positive or negative: can either grant someone the use of land or restricting.
o Can say: easements may be created in writing or not. An easement in writing is an express easement.

Question 11

Different types of easements: each as separate paragraph.

Express easement

Answer 11

easement between parties created in writing. How long will it last? However long it states in the writing

Question 12

Easement by necessity

Answer 12

when it is necessary for one person to enter the land of another because it is the only way off of their property.
• They are landlocked on their property unless they can cross another property. Necessary to get off land.
• when does an easement by necessity terminate? When its no longer necessary.
• Not in writing.

Question 13

easement by prescription

Answer 13

looks like adverse possession. Using this right of way on your property for the statutory period of 20 years. Open, notorious, adverse, and continuous for 20 years. Not in writing.

Question 14

equitable conversion

Answer 14

• Under the doctrine of equitable conversion, once a contract for the sale of real property is signed, equity regards the buyer as the owner of the property who bears the risk of loss.

Question 15

Mortgages: installment land sale contracts

Answer 15

• In Florida, installment land-sale contracts are considered mortgages.
Florida is a lien theory jurisdiction in which the mortgagor holds equitable title and possession of the mortgaged property while the mortgagee holds a lien on the property.

Question 16

purchase money mortgage

Answer 16

• A purchase-money mortgage is a mortgage given to secure a loan for the buyer to acquire title to the property at issue.

Question 17

If the mortgagor transfers the property subject to the mortgage, and mortgage payments are not made

Answer 17

mortgagee (bank) may foreclose and force the property to be sold.

However, the transferee of the property (new buyer) does not have personal liability for the debt.

Question 18

Tenancy by the entireties

Answer 18

Under Florida Law, a tenancy by the entireties is presumptively created when property is conveyed to spouses during their marriage.

A tenancy by the entireties includes the right of survivorship, which means

upon the death of either spouse, ownership of the property held automatically passes to the other spouse.

Question 19

an easement appurtenant

Answer 19

appurtenant attaches to the land and creates a dominant and servient estate. An easement can be created expressly in writing, by implication, prescription or by estoppel.

Question 20

• An easement can be implied by necessity if there is

Answer 20

1) Severance of title to land held under common ownership, 2) Two parcels are situated in way that an easement over one is strictly necessary to the enjoyment of the other. The showing of prior use is unnecessary.

Question 21

Duration of easements

Answer 21

easements are generally enforceable forever. Could also be coined as the term that easements “run with the land.” Unless, the easement is terminated.
If it is express, it terminates upon the date or the time that we agree in the writing.
If it is an easement by necessity, it terminates when its no longer necessary.

Question 22

Other ways easements can terminate:

Answer 22

Abandonment: 1) non-use (stop using the right of way, etc.) 2) expressing an intent no to return.
• Non use is not enough to abandon the easement.
Merger: when you buy both pieces of property. Cant have an easement on your own land.

Question 23

Covenants

Answer 23

A covenant is always in writing. Governed by contract prinicples.

A K promise that allows me to use the land of another or a K promise that restricts me from using the land of another. (restrictive covenant)
o How long will it last if it is in writing? Generally runs with the land.

Question 24

elements for a covenant that runs with the land

PINT

Answer 24

1) there was intent for it to run with the land
2) it touches and concerns the land
• When it is about the use of the property itself, and it is not personal between the parties.
3) is there horizontal and vertical privity
4) notice.
If these elements are present, then the covenant will RWTL.

Question 25

equitable servitude

Answer 25

if you see in a hypo that someone is in court for an injunction regarding a restrictive injunction: think equitable servitude.
Equitable servitude: instead of monetary damages, ask for equitable servitude to stop
Restrictive covenant + injunction= equitable servitude.

Question 26

Conveyance

Answer 26

• Two pieces of paper you have to successfully comply with in order to transfer title:
real estate K and deed

Question 27

Real estate contract essay set up

Answer 27

do a quick paragraph about which governing law applies, formation, SOF, if for land talk about specific performance.
o Every real estate contract it is implied that there is marketable title.
o Elements to include when talking about a real estate contract: equitable conversion, statute of frauds, marketable title is implied, and K principles

Question 28

equitable conversion

Answer 28

o once you sign a real estate contract, under the doctrine of equitable conversion, the buyer now acquires equitable ownership, and the risk of loss shifts to the buyer when you sign the contract. The buyer acquires equitable interest.

Question 29

Every real estate contract it is implied that there is marketable title.

Answer 29

Marketable title: reasonably free of doubt. There are no encumbrances, liens, mortgages on the title.

Question 30

quitclaim deed

Answer 30

I make no warranties or promises about the quality of the title. Let the buyer beware, could be giving you perfect title or not.
o Cant sue if someone gives you a quitclaim deed and they still have liens/mortgages.

If it is a quitclaim deed and you find out there are problems, buyer cant sue.

Question 31

warranty deed

Answer 31

o General warranty: I am assuring you that the title has been good forever since the land has been created.
o Special warranty: the title is clear since the current owner has owned the property.

Question 32

three present warranties under warranty deed

Answer 32

seisin: i own it
right to convey: I can sell it
warranty against encumbrances: i can sell it without strings attached.

Question 33

three future warranties under warranty deed

Answer 33

quiet enjoyment: once i convey title, you wont be disturbed.

warranty of warranty: if you are disturbed, i will defend you

further assurances: after I defend you, I will make it right

Question 34

Deed writing requirement

Answer 34

the deed needs to be in writing, based on the statute of frauds.
• Also needs to be signed by the grantor and
there must be two witnesses.

Question 35

Deed needs to be delivered from seller to buyer

Answer 35

• Not about the physical giving of the deed, but the intent.
• Did the seller express the intent that the grantee should have the deed?
• Can argue in an essay why there is intent or a lack of intent
• Acceptance of the deed is presumed by the buyer unless there is evidence of the contrary.

Question 36

For a valid deed, there must be identifiable

Answer 36

grantees

Question 37

Deed and legal description of land:

Answer 37

deed must include a legal description of the land.
a reasonable person can locate the land.
usually a street address/GPS address

Question 38

Merger:

Answer 38

Real estate contract merges into the deed.

Question 39

Mortgages

Answer 39

Loan using the land as security or collateral.

Question 40

Purchase money mortgage

Answer 40

Loan that will be paid back first if there are multiple loans.
Purchase money mortgage= money/loan used to purchase the house.
always gets priority

Question 41

FL is a lien theory state, which means

Answer 41

the bank only has a lien on the property but not a title on the property.

Question 42

Recording statutes (new heading)

Answer 42

FL is a pure notice jurisdiction, which protects the last or subsequent bona fide purchaser.

Question 43

Bona fide purchaser

Answer 43

• Bona fide purchaser: 1) someone who pays value and 2) has no notice of any earlier transactions.

Question 44

If you inherited the land or adversely possessed it, can you be a BFP?

Answer 44

No, because you didn’t pay value for it.

Question 45

ways to say you have notice:

Answer 45

someone recorded it. Anyone after the date someone recorded it, cannot be a BFP.

Judgment credtiors are not BFP’s
Mortgagees (banks, etc.) are BFP’s

Question 46

Owning property

Answer 46

o Can either own a piece of property as joint tenants, tenants in common, or tenancy by the entirety.

Question 47

Joint tenants

Answer 47

right of survivorship= as soon as one co-tenant dies, the other one gets the whole interest. A joint tenancy is undivided 50% interest in the whole.
• So, if it says Jon and Bob bought Greenacre as an investment property and owned it as joint tenants with ROS. the moment Jon dies, Bob gets the whole thing: not Jon’s heirs.

Question 48

tenancy in common

Answer 48

default ownership. no right of survivorship

Question 49

tenancy by the entirety

Answer 49

. FL it is presumed that Husband and Wife own their property as TBE

 Which means: there is a ROS and one spouse may not convey without the other’s consent. Meaning, one spouse also cannot mortgage the property without the other’s consent.

Question 50

TBE-homestead

Answer 50

If one spouse qualifies, property is protected from either spouse’s creditors.

Question 51

When homestead is owned by joint tenancy or tenancy in common:

Answer 51

each individual tenant must qualify for the homestead exemption.
If one of the co-owners do not qualify, their creditor has the right to ask the court for a partition and force a sale of the property. The remaining joint tenants retain their ownership.
When all owners have homestead protection, the home will be exempt from forced sale and liens.

Question 52

Life estates and vested remaindermen: homestead

Answer 52

The owner of the life estate has the present possessory interest and that ownership interest qualifies for homestead.

A life estate owner cannot do anything that harms or encumbers their future interest in the property.
Future interest holders do not have qualifying ownership interest to qualify for homestead exemption (until their interest vests).
When the life tenant qualifies for the homestead creditor exemption, the property is still protected from the life tenant’s creditors; but not safe for the remainderman’s creditors.

Question 53

Forced sale protection for spouse/heirs (homestead)

Answer 53

Homestead protection inures to surviving spouse or heirs.
Property remains exempt from forced sale by deceased owner’s creditors.
If no surviving spouse, inures to heirs. Heirs have legal ownership and may sell property.

Question 54

forced sale protection for spouse: homestead

Answer 54

The spouse receives life estate protected by homestead interest OR may elect to take 50% interest within 6 months of death with descendants sharing 50% interest per stirpes.

Question 55

forced sale protection: heirs (homestead)

Answer 55

Heirs receive the vested remainder or 50% share if spouse takes elected ½ share. Heirs interest is not protected.
The spouse can request partition of the property and get ½ proceeds from the sale.

Question 56

Sale of Homestead

Answer 56

Proceeds from the sale of homestead is protected if reinvested in new homestead in a reasonable time. The surplus from the sale of homestead is not protected.

Question 57

Intestate succession: homestead

Answer 57

Homestead protection inures to surviving spouse or heirs. If surviving spouse and minor child, surviving spouse gets a life estate and the minor child gets the remainder. Lineal descendants (minor children) get vested remainder per stirpes or can choose to take 50% interest as tenants in common with the surviving spouse.

Question 58

Deeds

Answer 58

Deeds transfer title to an interest in real property. A deed must be in writing, signed by the grantor, and reasonably identify the parties in the land.

Question 59

land sale K- statute of frauds

Answer 59

For a land sale K, the SOF requires a writing, signed by the parties to be charged, with the essential terms: 1) description of the property, 2) description of the parties, 3) price.

Question 60

Even if the land sale K is deemed unenforceable under the SOF, the K may still be enforced by arguing

Answer 60

Part performance.

Either party may seek specific performance when the actions of performance indicate that a K existed. In FL, must satisfy: 1) full or partial payment, 2) possession by purchaser, 3) substantial improvement of property by purchaser.

Question 61

Right to Partition

Answer 61

A TIC or JT may demand at any time that the property be partitioned and split among the tenants. If parties cannot agree how to partition the property, either party may bring a partition action in court. Court will decide the fairest way to split property.

Question 62

lien theory

Answer 62

: FL is a lien theory jurisdiction, which means the bank (mortgagee) only has a lien on the property and not title to the property

Question 63

Transferee/subject to mortgage

Answer 63

if the mortgagor transfer the property subject to the mortgage and mortgage payments are not made, the mortgagee may foreclose and force the property to be sold.

Question 64

foreclosure

Answer 64

In FL, if the mortgagor stops making payments and defaults on the mortgage, the mortgagee (bank) can foreclose on the property to satisfy the debt.