FL REAL PROPERTY

Question 1

Joint Tenancy FL

Answer 1

Although FL generally requires the 4 unities to create a joint tenancy, an owner can create a joint tenancy in herself and another by single deed, even though the unities of time and title are not satisfied; that is, no strawman is required

Question 2

Title Theory or Lien Theory?

Answer 2

FL is a lien theory state

Question 3

Tenancy by the Entirety

Answer 3

In FL, a conveyance to spouses presumptively creates a tenancy by the entirety. A spouse holding title to real property may create a tenancy by the entirety between herself and the other spouse by conveying the property to the other spouse by deed that expressly states that a tenancy by the entirety is intended or by conveying the property to both herself and the other spouse.

Question 4

Remedy of Parties

Answer 4

FL allows this rule, but limits it to co-tenants entitled to possession. Thus, remaindermen are not entitled to partition among themselves.
Federal –
A JT or TIC have a right to judicial partition either in kind or by sale and division of the proceeds.

Question 5

Tenancy for Years

Answer 5

In FL, a residential lease for a specific duration may contain a clause requiring the tenant to give the landlord up to 60 days notice prior to the tenant vacating. However, if such a clause is included, the landlord must notify the tenant of an intent not to renew within that period .
A lease may provide that if the tenant fails to give the required notice before vacating, the tenant may be liable for liquidated damages, as specified in the renatl agmt if the landlord provides written notice to the tenant specifying
1. the tenant’s obligations under the notice provision and
2. the date the renatl agmt is terminated.
this notice must be provided to the tenant w/n 15 days before the start of the notification period
If the tenant remains on the premises with the landlord’s permission after the rental agmt has terminated and fails to give at least 15 days notice prior to vacating, the tenant is liable for an additional month’s rent.
Federal –
Tenancy for a fixed period of time automatically terminates on the date at the end of the stated period w/o either party giving notice to the other.

Question 6

Residential Periodic Tenancy (termination)

Answer 6

In FL, either party may terminate a residential periodic tenancy by giving the following notice
1. 60 days for year to year tenancy
2. 30 days for quarter to quarter tenancy
3. 15 days for month to month tenancy
4. 7 days notice for week to week tenancy
Federal –
For year to year, generally 6 months notice, but modern view is that one month’s notice is sufficient
For less than one year, at least one full period in advance

Question 7

Non-Residential Periodic Tenancy

Answer 7

FL does not recognize nonresidential periodic tenancies. Any nonresidential tenancy w/ periodic rent payments and no fixed termination date is a tenancy at will. Either party may terminate a nonresidential tenancy at will by giving the following notice
1. 3 months when annual payments
2. 45 days when quarterly payments
3. 15 days for monthly payments
4. 7 days for weekly payments
Federal –
At common law, no notice was required to terminate a tenancy at will, but most state require that a party give notice and a reasonable time to quit the premises.

Question 8

Non-Residential Periodic Tenancy

Answer 8

FL does not recognize nonresidential periodic tenancies. Any nonresidential tenancy w/ periodic rent payments and no fixed termination date is a tenancy at will. Either party may terminate a nonresidential tenancy at will by giving the following notice
1. 3 months when annual payments
2. 45 days when quarterly payments
3. 15 days for monthly payments
4. 7 days for weekly payments
Federal –
At common law, no notice was required to terminate a tenancy at will, but most state require that a party give notice and a reasonable time to quit the premises.

Question 9

Hold Over Tenant and Rent Collection Allowed

Answer 9

FL allows for collection of double rent when tenants hold over.

Question 10

Tenant’s Liability for Covenants to Repair

Answer 10

In FL, the landlord’s obligation to make repairs under a residential lease may be altered/modified only in a lease involving a single family dwelling or duplex, not where multiple dwelling units are concerned.
Federal –
In residential leases, even if the tenant covenants to repair, the landlord will usually be obligated to repair under the “implied warranty of habitability” because that obligation is not waivable

Question 11

Rent Deposits

Answer 11

In FL, upon vacating after termination of the lease, the landlord has 15 days to return the tenant’s security deposit if they do not intend to impose a claim on it. If the landlord intends to impose a claim, they have 30 days to notify tenant in writing. The tenant then has 15 days to object. If no objection, the landlord must deduct the amount of the claim and remit the balance of the deposit to the tenant w/n 30 days of the landlord’s initial notice to impose a claim.
Except as otherwise provided, a tenant must give at least 7 days notice to landlord prior to vacating before the expiration of the term in lease. Failure to do so waives the landlords requirement of notice regarding the deposit, but does not waive any right the tenant may have to all or part of the deposit.

Question 12

Tenant on Premises but Fails to Pay Rent

Answer 12

In FL, in an action by landlord for possession based on nonpayment or otherwise, if the tenant raises any defense other than payment, then the tenant must pay into the registry of the court the accrued rent alleged as unpaid in the landlord’s complaint ( or if disputed, an amount determined by the court ) plus any rent that accrues while action is pending.

Question 13

Abandonment or Surrender

Answer 13

In FL, when a residential tenant abandons or surrenders leased premises, the landlord may stand by and do nothing, holding the tenant liable for the rent as it comes due. If the landlord retakes possession of the unit, they may continue to hold the tenant liable for any difference between the rent the tenant owed and the rent actually received, but in that case, the landlord must make reasonable efforts to find a replacement tenant.
Federal –
Majority view requires the landlord to mitigate damages, the landlord must repossess the premises and attempt to relet them. The tenant’s liability will depend on whether that repossession constitutes acceptance of a surrender. If surrender is not found, the tenant remains liable for the difference in rent promised and the fair rental value. However, landlord’s reletting constitutes acceptance of surrender and abandoning tenant is free from any rent liability accruing after abandonment.

Question 14

Easement for more than one year

Answer 14

Fl requires for a writing subscribed by two witnesses for easements greater than one year.
Federal –
Signed writing by the grantor

Question 15

Statutory easement by necessity

Answer 15

In addition to the common law rule of implied grant of way of necessity, FL also has a statutory easement of necessity when any land that is used for dwelling or agricultural purposes is shut off or hemmed in by lands, fencing, or other improvements so that no reasonable route of entrance or exit is available. The statutory easement of necessity arises regardless of whether a unity of title existed from a common source. The owner of the property on which the easement is imposed is entitled to compensation.

Question 16

Period to obtain prescriptive easement

Answer 16

20 years in FL

Question 17

Transfer Fee Covenant

Answer 17

IN FL, a transfer fee covenant is declaration or covenant recorded against the title to real property that requires the payment of a transfer fee to the declarant or other person upon a subsequent transfer of an interest in the real property.
Transfer fee covenants recorded on or after July 1, 2008, constitute an unreasonable restraint on alienation, regardless of the duration of such covenants or amount of transfer fee, and do not run with the title to the property or bind subsequent owners.

Question 18

HOA Enforcing Restrictive Covenant

Answer 18

A HOA’s cannot enforce a restrictive covenant unless the association is a successor to the developer’s right of enforcement or the covenant was expressly created for its benefit. Whild the individual property owners have standing to enforce such covenants, the association does not have standing to sue as their rep.

Question 19

Adverse Possession Statutory Period

Answer 19

The statutory period for adverse possession in FL is 7 years continuous possession of the premises.

Question 20

Possession under color of title

Answer 20

In FL, if occupation arose under color of title, the property will be considered possessed when it has been
1. usually cultivated or improved
2. protected by a substantial enclosure (all contiguous land protected by enclosure will be included)
3. use for the supple of fuel or fencing timber for husbandry or for the ordinary use of the occupant or
4. partly improved if the part is of a known or single farm. The part that has not been cleared or enclosed is to be considered occupied for the same length of time as the part improved or cultivated.
For possession under color of title to be adverse, the instrument of conveyance must adequately describe the property and be properly recorded.

Question 21

Possession when not under color of title

Answer 21

IN FL, if occupation did not arise under color of title, the property will be considered possessed only if it has been (1) usually cultivated, maintained, or improved OR (2) protected by substantial enclosure.
Moreover, an adverse possessor w/o color of title must have
(1) paid outstanding taxes w/n 1 year after entering
(2) made a return (a filing w/ the property appraiser) of the property and
(3) paid taxes on the property for each year of statutory period
Federal –
Payment of property taxes generally not required.

Question 22

Enforcing Oral Land Sale K

Answer 22

To enforce an oral land sale contract in FL, you need all three requirements
1. possession
2. full or partial payment of purchase price and
3. substantial improvements
Federal –
only need two

Question 23

Merger Doctrine

Answer 23

IN FL, the merger doctrine does not apply when there is an inherent conflict between the deed and the bargained for agreement to be merged into it. IN such case, a seller cannot rely on the merger doctrine to avoid liability to the buyer for breach of sales contract (i.e., seller has failed to convey marketable title)
Common Law
If the buyer permits closing to occur, the contract is said to merge with the deed and, in the absence of fraud, the seller is no longer liable on the implied covenant of marketable title.

Question 24

Liquidated Damages

Answer 24

IN FL, when a contract includes both liquidated damages clause and an option to recover actual damages, the liquidated damages clause is unenforceable because it is considered a penalty.
Common Law
Courts routinely upheld the seller’s retention of the deposit if the amount appears to be reasonable in light of the seller’s anticipated and actual damages. Even without a liquidated damages clause, courts may uphold retention of the deposit on the ground that giving restitution of the funds would unjustly reward a party’s breach.

Question 25

As Is Clauses

Answer 25

IN FL, there is a different rule for commercial property. A sophisticated purchaser whose contract contained an as is clause does not have a COA for fraud if she had ample opportunity to conduct inspections and could have discovered a defect through the exercise of ordinary negligence.
Common Law
A general clause, such as property sold as is is not sufficient to overcome seller’s liability for fraud, concealment, or failure to disclose.

Question 26

Attestation - Deeds

Answer 26

In FL, statutes require that real estate may only be conveyed by written instrument signed in the presence of two witnesses. This applies to all conveyances by any type of instrument of any interest (other than a lease) greater than one year.
Common Law
Attestation by witnesses is generally unnecessary, as is an acknowledgment.

Question 27

Statutory Deed

Answer 27

In FL, the statutory deed is a general warranty deed.
Common Law
Many states have statutes that provide for what type of deed is conveyed by the use of the word “grant.” Often these statutes provide a deed by implication and the following limited assurances against acts of the grantor
(1) prior to the execution of conveyance, the grantor has not conveyed the same estate or any interest therein to any person other than grantee and
(2) the estate conveyed is free from encumbrances made by the grantor

Question 28

Judgment Creditors

Answer 28

FL’s recording act protect lien and judgment creditors and subsequent purchasers without notice. Note that FLs judgment lien statute provides for a 10 year lien.
Common Law
A plaintiff who obtains a judgment lien under a statute may or maynot be protected by the recording acts from a prior unrecorded conveyance made by the defendant. The cases are split, but the majority holds no that a judgment lienor is not protected. Courts reason either (1) the plaintiff is not a BFP because he didn’t pay value or (2) the judgment attaches only to property owned by the D, not property D previously conveyed.

Question 29

Judgment Creditors

Answer 29

FL’s recording act protect lien and judgment creditors and subsequent purchasers without notice. Note that FLs judgment lien statute provides for a 10 year lien.
Common Law
A plaintiff who obtains a judgment lien under a statute may or maynot be protected by the recording acts from a prior unrecorded conveyance made by the defendant. The cases are split, but the majority holds no that a judgment lienor is not protected. Courts reason either (1) the plaintiff is not a BFP because he didn’t pay value or (2) the judgment attaches only to property owned by the D, not property D previously conveyed.

Question 30

Presumption of lack of notice

Answer 30

In FL, there is a presumption of lack of notice of an unrecorded instrument by a person subsequently acquiring an interest in the property. The burden is on the claimant under the unrecorded instrument to show actual knowledge.

Question 31

Lis Pendens

Answer 31

In FL, a lis pendens notice generally expires one year after the commencement of the action. However, a court may extend the time on reasonable notice and for good cause.

Question 32

Mortgage Life

Answer 32

In FL, the lien of a mortgage in which the final date of maturity is NOT ascertainable has a life of 20 years from the date of the mortgage unless the obligation is re-recorded with the mortgage or contains an affidavit showing the maturing date.

Question 33

Transfer of Mortgage without Note

Answer 33

IN FL, the transfer of a mortgage without the associated note is a nullity.
Common Law
The case law is divided, with some states holding that the transfer of the mortgage automatically transfers the note as well, unless the mortgagee-transferor expressly reserves the rights to the note. The transferee can file an equitable action and compel transfer of the note.

Question 34

Statutory Redemption

Answer 34

FL does not allow a statutory right to redeem after the foreclosure sale has occurred and is finalized. After a sale of the property, the clerk of the court must promptly file a certificate of sale. If no objections to the sale are filed w/n 10 days after filing the certificate of sale, the clerk files a certificate of title. When the certificate of title is file, the sale stands confirmed.

Question 35

Riparian Rights

Answer 35

In FL, a riparian owner is one whose land extends to the ordinary high watermark of the navigable water abutting the land. An upland riparian owner enjoys rights of unobstructed ingress and egress over the foreshore as well as an unobstructed view over the waters.
Common law
Under the majority rule all tracts held under unity of ownership are riparian if the tracts are contiguous and any of them front on the water. Thus, is a riparian owner purchases a parcel which is contiguous ot the riparian parcel, riparian rights attach to the newly acquired.
The Minority rule is limits riparian rights to the smallest tract of land ever owned abutting the water. If the back portion is sold, it becomes nonriparian and can never regain riparian right.s

Question 36

Reasonable Use Theory - Riparian Rights

Answer 36

FL follows the reasonable use doctrine. under this rule, a possessor incurs liability only when their harmful interference with the flow of surface waters is unreasonable.
Each riparian owner must submit to reasonable use by other riparian owners and a downstream owner cannot enjoin such use by an upstream owner unless it substantially interferes with he needs of those who have a like right.

Question 37

Zoning Burdens

Answer 37

In FL, when a governmental action affecting property does not rise to the level of a taking under the constitution, but inordinately burdens an existing use of real property or a vested right to a specific use of the real property, the property owner is entitled to relief. Real property is inordinately burdened if the government action has directly restricted its use such that the property owner is either 91) permanently unable to attain the reasonable expectation for the existing use (or vested right to a specific use) of the property or (2) left with existing or vested uses that are unreasonable in that the property owner permanently bears a disproportionate share of a burden imposed for the public good, which in fairness, should be born by the public at large.