Florida Real Property Flashcards
Fee Simple Absolute
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
Fee Simple Determinable & Possibility of Reverter
General Rule: A possibility of reverter has no time limit (i.e., it can last as long as necessary).
Florida Distinction:
- The Florida legislature has capped a possibility of reverter at 21 years.
- Exception! Charitable gifts
Fee Tail
A gift to the grantee’s lineal line
- Example: O conveys “to A and the heirs of her body.”
Florida— ABOLISHED the fee tail.
- If a grantor tries to create a fee tail, Florida treats it as a life estate
- A has a daughter, B
- A has a LE
- B has a remainder
Future Interests > Contingent Remainders
O “to A for life, then to B if B passes the Florida bar exam.” A dies while B is in law school
If interest has not vested at end of life estate, most states do not kill B’s interest. They wait instead to see if B’s interest vests.
Florida applies destructibility of unvested contingent remainders
- if interest has not vested at end of life estate, they are destroyed.
- B gets nothing, O has a FSA
1) Shelley’s Case
2) Doctrine of Worhtier Title
O “to A for life, then to A’s heirs.”
Common Law: Merger doctrine—A has a fee simple absolute.
Florida Has abolished Shelly’s Rule:
* This creates a life estate in A, and a remainder in the heirs.
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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 has abolished the doctrine of worthier title:
- The heirs get their remainder interest.
Lesson: Florida gives effect to grantor intent
The Rule Against Perpetuities (RAP)
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) treat as a safety valve to CL RAP
RAP Period = 90 years from when the interest was created.
Ex: In his will, Owen provided that “I give my beloved estate, Yellowacre, to my son Charlie for life, then to his first-born grandchild.” At the time of Owen’s death, Charlie did not have any children or grandchildren. Fifty years later, when Charlie dies, he is survived by three children and one grandchild.
- Does it survive in Florida? Yes. It vested within the 90-year window. It’s good.
Joint Tenancy > Four Unities
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
FLORIDA Exception:
Abe owns Cottonacre. Abe conveys a deed to Barney as a joint tenant of Cottonacre with Abe. (no time/title)
- This is possible under Florida law. No strawman is required; it is okay that the unities are not satisfied.
- Still need unity of interest. share and type
Joint Tenancy > Severance
Lien Theory — Mortgage effect: Bank gains a LIEN on property, RESIDENT keeps LEGAL TITLE
- RULE: Mortgage Does NOT sever Joint Tenancy
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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.
Tenancy by the Entirety
The married people’s joint tenancy.
Under Florida law, a transfer to a married couple is presumed to be a tenancy by the entirety.
- Divorce: converts into a TIC
- Remarriage: Does not revive TBE, have to re-execute
Tenants by the entirety cannot unilaterally convey Property held by the entirety
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Personal Property: A TBE in personal property must include the five unities and the intent to create a (1) right of survivorship and (2) a TBE.
LANDLORD AND TENANT > Creation and Termination of Leasehold Estates
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.
- What if the tenant fails to provide notice? The tenant may be on the hook for specified damages, if laid out in the lease.
- What 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 months rent.
Periodic Tenancy
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; 3 months nonresidential at will
Under Florida law, a commercial periodic tenancy is called a “tenancy at will.”
TENANCY AT WILL
- Florida: An infromal commercial lease (i.e. not signed by landlord) is a tenancy at will.
LANDLORD AND TENANT > Tenant Duties
1) PAY RENT
When is that obligation SUSPENDED?
1) Destruction — If the premises are “substantially impaired” (not caused by tenant)
- Total destruction - withhold rent
- Partial destruction (one room) - Reduce rent accordingly.
2) AVOID WASTE
Residential - must take steps to maintain rental properties in good order
Commercial Leases - If the LANDLORD fails to maintain the premises, then the tenant may withhold rent if the premises are wholly untennable
- The tenant MUST notify the landlord.
- If the landlord completes repairs within 20 days of notice, then the tenant must pay due rent.
- If not, then the tenant may terminate the lease, abandon the property, retain the withheld rent, and not be responsible for future rent.
LANDLORD AND TENANT > Tenant Remedies
CURE
Residential - Tenant in breach gets an opportunity to cure the injury.
- Curable violation = 7 days to cure and if repeated within 12 months = LL can move to evict w/o notice
- non curable violation = 7 days to vacacte
FAILURE TO PAY RENT
Residential: LL must provide a written demand to pay rent or vacate the premises within 3 days, excluding weekends and legal holidays.
Commercial: Once rent comes due, the landlord may evict.
- 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.
HOLDOVERS (if the tenant stays beyond the end of their lease)
- Florida does NOT permit LL’s self-help. (LL personally locking tenant out)
- The landlord must file to retake possession and can recover double rent due.
LANDLORD AND TENANT > Landlord Duties
DELIVER POSSESION
Florida follows the rule that Landlord’s must deliver physical possession, put the tenant in the leasehold.
DUTY TO REPAIR
Residential landlords have a duty to repair the premises.
- can be waived in single-family residential properties
- 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)
- problems with them will be a threat to the tenant’s health and safety.
IF LL DOES NOT COMPLY:
- The tenant must notify the landlord in writing, (Window opens) LL has 7 days to cure.
- If the landlord does not cure within that time, the tenant may terminate.
RETALIATORY EVICTION
- Basic Idea: The landlord cannot punish tenants for exercising their rights as tenants.
- increasing rent, decreasing services, or threats
TENANT 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 (SOF) - MUST BE IN WRITING
- 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.
- In Florida, extrinsic evidence is admissible to help identify an inadequately described piece of property.
Exceptions to the Statute of Frauds
Part Performance: IN FLORIDA YOU NEED ALL 3
- Payment of the purchase price—all or part;
- Purchaser is in possesion; or
- Purchaser improves the property
Promissory Estoppel: Florida does not recognize as an exception to the Statute of Frauds
Performing the Contract
Duty to Disclose - Seller has a duty to disclose any facts materially affecting the value that are not readily observable by the buyer.
- General disclaimers (eg, “as is”) do not waive the duty to disclose defects.
TITLE > Adverse Possesion
Adverse Possession
1) Florida’s Statutory Period: 7 years.
2) Scope of Possession
- Florida law makes a distinction between adverse possession with and without Color of title - (adverse possession based on a fraudulent deed)
Averse Possesion WITH color of title
Step 1
- writing is recorded in the county where the property is located; and
Step 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.
Averse Possesion WITHOUT color of title
Step 1—Taxes
- 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.
Step 2—Occupation
- Protected by a substantial encosure; or
- Cultivated, maintained, or improved in a usual manner.
