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The Florida Bar Exam > Florida Real Property > Flashcards

Florida Real Property Flashcards

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1
Q

How does the Florida Marketable Record Titles Act affect encumbrances?

A

Under the Florida Marketable Record Titles Act, encumbrances must be preserved or reaffirmed by filing a notice of preservation in the public records of the county 30 years after the initial recording.

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2
Q

What is an implied reciprocal servitude?

A

Implied reciprocal servitudes arises from a common scheme, and are enforceable without writing if:
1. intent to create a servitude for all plots;
2. the servitude is negative; and
3. the party against whom enforcement is sought has notice.

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3
Q

What are equitable servitudes?

A

Equitable servitudes are agreements concerning the use of land, enforceable in equity upon proof of the following:

  1. writing;
  2. intent;
  3. touch and concern; and
  4. notice.
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4
Q

What is vertical privity?

A
  1. Strict vertical privity: Successor takes the entire interest of the original party.
  2. Relaxed vertical privity: Successor takes an interest carved our of the original party’s estate.
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5
Q

What is horizontal privity?

A

Horizontal privity requires that for the burden of a covenant to run to subsequent owners, the original parties to the covenant must have shared some interest in the property (estate) when the covenant was created.

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6
Q

What does it mean when for a real covenant to “touch and concern” land?

A

“Touch and concern” means that the covenant must directly affect the use , enjoyment , value or condition of the land itself.

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7
Q

What is required for the benefit to run in a real covenant?

A
  1. Writing;
  2. Intent;
  3. Touch and Concern;
  4. Relaxed Vertical Privity
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8
Q

What are the requirements for the burden to run?

A
  1. Writing;
  2. Intent;
  3. Touch and Concern;
  4. Notice;
  5. Strict Vertical Privity; and
  6. Horizontal Privity
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9
Q

What does it mean if the “burden” runs with the land?

A

The burden of the covenant is being subject to it.

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10
Q

What does it mean when the “benefit” runs with the land?

A

The benefit of the covenant is the ability to enforce the covenant.

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11
Q

What are real covenants?

A

Real covenants are promises concerning the use of the land that runs to successors to the promise and may be enforced at law.

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12
Q

What is an easement by estoppel according to Florida law?

A

Although Florida law does not allow an oral promise to give rise to an easement (even if there is detrimental reliance), Florida law will recognize an irrevocable license if the licensee makes permanent improvements.

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13
Q

When does an easement by implication arise?

A

An easement by implication arises when, before the division of a tract of land, the owner used one part of the land to benefit the other part, and there was intent to continue use after severance.

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14
Q

How does a prescriptive easement arise?

A

A prescriptive easement arises through continuous , hostile , open and notorious use for a statutory period of 20 years in Florida.

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15
Q

What is the statutory way of necessity in Florida?

A

In Florida, the statutory way of necessity grants an easement used for dwelling, agriculture, or sock raising when no practicable ingress or egress is available. It allows access to persons, vehicles, cable TV services, and utilities without liability for trespass or damages.

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16
Q

Under what conditions does Florida recognize easements by necessity?

A

Florida recognizes easements by necessity if:
1. The land is granted with no accessible right-of-way;
2. No other reasonable access exists; and
3. There is unity of title.

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17
Q

How is an express easement created?

A

An express easement is created by a written agreement that meets the requirements for a deed.

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18
Q

What are the types of rights granted by easements?

A

Easements can be affirmative (granting a right to do something) or negative (preventing others from doing something).

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19
Q

What are the types of easements based on relation to land ownership?

A

Easements are appurtenant (tied to the land) or in gross (personal to the holder).

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20
Q

What is the difference between dominant and servient estates in easements?

A

The servient estate is the land subject to the easement, while the dominant estate benefits from the easement over the servient estate.

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21
Q

What is an easement?

A

An easement is a non-possessory interest in land that allows one party (the easement holder) to use another’s land for a specific purpose.

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22
Q

Do co-tenants generally owe fiduciary duties to each other?

A

No, co-tenants generally do not owe fiduciary duties to each other. However, fiduciary obligations can arise if co-tenants jointly purchase the property or acquire interests from a common source under circumstances indicating reliance or a confidential relationship. Fiduciary obligations may also arise when a co-tenant acquires property at tax or mortgage foreclosure sales, giving other co-tenants the right to reacquire their interests by paying their due contributions within a reasonable time.

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23
Q

What must a co-tenant do with rent received from third-parties?

A

A co-tenant must account for third-party rent to other co-tenants. They can deduct expenses, including necessary repairs, when calculating net proceeds. Net proceeds are divided among co-tenants based on their ownership interests.

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24
Q

Can a co-tenant seek contribution for improvements made to the property?

A

No, a co-tenant does not have the right to contribution for improvements.

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25
Q

Can a co-tenant compel others to share repair expenses?

A

No, a co-tenant cannot compel others to share repair expenses through an action for contribution.

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26
Q

What can a co-tenant do if they pay more than their share of necessary property expenses?

A

A co-tenant who pays more than their share of necessary property expenses (e.g. , taxes, mortgage) can compel other tenants to contribute based on their ownership interest.

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27
Q

What are the possession requirements for a property to be considered possessed without color of title?

A

The property must be:
1. protected by a substantial enclosure; or
2. cultivated, maintained, or improved in a usual manner.

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28
Q

In Florida, how is adverse possession commenced without color of title?

A

In Florida, adverse possession without color of title begins when the possessor:

  1. pays all outstanding taxes within one year of possession;
  2. files a description with the county appraiser within 30 days after paying such taxes; and
  3. subsequently pays all taxes for all remaining years necessary to establish a claim of adverse possession.
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29
Q

In Florida, when does adverse possession begin under color of title?

A

Adverse possession begins under color of title when the writing is recorded in the county where the property is located, and the property is either:
1. cultivated or improved;
2. protected by a substantial enclosure;
3. used for the supply of fuel or fencing of timber for husbandry;
4. or partly improved, as long as the partly improved parcel is part of a known lot or single farm.

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30
Q

What is color of title?

A

Color of title is adverse possession based on a faulty writing (e.g. , a fraudulent deed).

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31
Q

What is the statutory period to establish a claim for adverse possession in Florida?

A

In Florida, the person claiming adverse possession both with and without color of title must show by clear and convincing evidence that possession is actual, continuous, and uninterrupted for a period of at least seven years.

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32
Q

What are the elements of adverse possession?

A
  1. Open and notorious - apparent or visible to a reasonable observer;
  2. Continuous - uninterrupted for the statutory period;
  3. Exclusive - not shared with the owner;
  4. Actual - physical presence on the land; and
  5. Non-permissive - hostile and adverse to the owner.

(“ O - C - E - A - N “)

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33
Q

What is a quitclaim deed?

A

A quitclaim deed has no covenants of title.

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34
Q

What is a special warranty deed?

A

A special warranty deed includes the same covenants as a general warranty deed, but only warrants against defects arising during the time the grantor held title.

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35
Q

What does the covenant of further assurances guarantee?

A

The grantor will do whatever future act reasonably necessary to pass the title if later determined title is imperfect.

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36
Q

What does the covenant of warranty guarantee?

A

The grantor will defend the grantee in a third party’s lawful claim of title.

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37
Q

What does the covenant of quiet enjoyment guarantee?

A

The grantee will not be disturbed in possession by a third party’s lawful claim of title.

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38
Q

What are the future covenants?

A
  1. Covenant of Quiet Enjoyment;
  2. Covenant of Warranty;
  3. Covenant of Further Assurances
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39
Q

When are future covenants breached?

A

If at all, they are breached after the closing.

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40
Q

What does the covenant against encumbrances guarantee?

A

There are no undeclared encumbrances against the land.

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41
Q

What does the covenant of the right to convey guarantee?

A

The grantor has the right to transfer title.

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42
Q

What does the covenant of seisin guarantee?

A

The grantor owns the land as described in the deed.

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43
Q

What are the present covenants?

A
  1. Covenant of Seisn;
  2. Covenant of the Right to Convey;
  3. Covenant Against Encumbrances
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44
Q

When are present covenants breached?

A

If at all, they are breached at the closing.

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45
Q

What is a general warranty deed?

A

A general warranty deed includes present and future covenants relating to the entire chain of title.

46
Q

What is the timeline for returning a security deposit in residential leases?

A

A residential landlord has 15 days to return the security deposit or 30 days to provide the tenant with written notice of a claim. The tenant has 15 days to object.

47
Q

What happens to obligations in the land sale contract in relation to the deed?

A

Under the common law, obligations in the land sale contract are merged into the deed and cannot be enforced unless explicitly stated in the deed.

48
Q

What is required for the validity of a deed?

A
  1. Delivery: the grantor must demonstrate the intent to make a present transfer.
  2. Acceptance: the grantee must accept the interest, (which is ordinarily presumed).
  3. Statute of Frauds: In Florida, the deed must be in writing , contain a sufficient description of the land, name the parties, and be signed by the grantor.
  4. Witnesses: In Florida, a deed must be signed in the presence of two subscribing witnesses.
49
Q

What is a deed in real estate?

A

A deed is the legal instrument used to transfer ownership of real property.

50
Q

What is equitable conversion in real estate contracts?

A

Under equitable conversion, the seller retains legal title to the property, but equitable title passes to the buyer during the pendency of the sales contract.

51
Q

What is a fraudulent conveyance in real estate transactions?

A

A fraudulent conveyance occurs when:

  1. an individual transfers an asset to a third party;
  2. with the intent to hinder, delay, or defraud liability.
52
Q

When is a seller liable for defects in both residential and commercial property sales?

A

The seller is liable if they actively conceal (i.e. , misrepresentation/fraud) defects in the property.

The seller may be liable if:

  1. a person makes a false statement concerning a material fact;
  2. that person knows that the representation is false;
  3. the representation was made with the intent of inducing another to act on it; and
  4. the party acting in reliance on the representation was injured as a result.
53
Q

What principle applies to the sale of commercial property regarding property condition?

A

The doctrine of caveat emptor places the duty to examine and judge the value and condition of the property solely on the buyer.

54
Q

What remedies may a buyer of residential property seek if defects are not disclosed?

A

The buyer may be entitled to damages or recession if defects are proven.

55
Q

Does a stipulation in the land sale contract absolve the seller from disclosing defects?

A

No, even if the purchaser inspects the property, the seller still has a duty to disclose defects not readily observable to the buyer that materially affect the property’s value.

56
Q

What duty does a seller of real residential property have regarding disclosure?

A

The seller must disclose facts materially affecting the value of the property that are not readily observable and known to the seller, but not the buyer.

57
Q

When does the seller have to deliver marketable title in real estate transactions?

A

The teller typically doesn’t have to deliver marketable title until the closing, unless otherwise agreed upon.

58
Q

What is a marketable title?

A

Marketable title is free from defects or unreasonable risks of litigation.

59
Q

Does promissory estoppel allow enforcement of a land-sale contract not complying with the Statute of Frauds in Florida?

A

No, it does not permit enforcement if the contract fails to comply with the Statute of Frauds in Florida.

60
Q

Under what circumstances can an oral agreement for a land sale be enforceable in Florida?

A

If all three acts constitute persuasive evidence of a contract:

  1. payment of all or part of the purchase price;
  2. possession by the purchaser; and
  3. substantial improvement of the property by the purchaser.
61
Q

How does Florida handle the identification of property inadequately described in a land-sales contract?

A

Florida permits the use of extrinsic evidence to identify such property.

62
Q

What are the requirements for forming a contract for the sale of real property in Florida?

A

It must meet the general requirements of offer, acceptance, consideration, and comply with the Statute of Frauds.

63
Q

What is prohibited under the doctrine of retaliatory eviction?

A

The landlord cannot punish tenants for exercising their rights as tenants.

64
Q

What must a tenant do to claim constructive eviction?

A

The tenant must give notice, allow time for the landlord to cure, and vacate within a reasonable time. The tenant’s obligation to pay rent is then excused.

65
Q

What can a tenant do in the case of partial eviction?

A

The tenant may seek relief, but is not excused from paying rent.

66
Q

What happens if a landlord performs an actual eviction?

A

Total eviction terminates the lease and ends the tenant’s obligation to pay rent.

67
Q

What does the covenant of quiet enjoyment provide to a tenant?

A

The right to use and enjoy the premises without landlord interference.

68
Q

What must a nonresidential tenant do before withholding rent for repairs?

A

If the premises are wholly untenable due to the landlord’s failure to maintain.

The landlord must notify the landlord, who has 20 days to repair.

If the repairs are not made in 20 days, the tenant may terminate the lease, abandon the property, retain withheld rent, and not be responsible for future rent.

69
Q

When can a nonresidential tenant withhold rent in Florida?

A

If the premises are wholly untenable due to the landlord’s failure to maintain.

70
Q

What must a tenant do if the landlord fails to repair a residential lease?

A

Provide written notice of noncompliance and give the landlord 7 days to cure.

If the landlord fails to repair within 7 days, the tenant may terminate the rental agreement.

71
Q

Can the duty to repair be modified in residential leases in Florida?

A

Yes, it can be modified in single-family or duplex leases, but not in multi-family dwellings.

72
Q

What are the landlord’s duties regarding repair and habitability in Florida?

A

A landlord must repair and ensure a residential lease is fit for basic human habitation.

73
Q

What is the landlord’s duty regarding possession in Florida?

A

The landlord must deliver actual physical possession of the leasehold.

74
Q

What can a landlord collect if a tenant holds over after lease expiration?

A

The landlord can collect double the rent due for the period the tenant refuses to surrender the premises.

75
Q

Can a landlord use self-help to retake possession in Florida?

A

No, Florida does not allow self-help for retaking possession.

76
Q

What happens if a landlord accepts the full amount of past-due rent?

A

It waives the landlord’s right to evict the tenant for nonpayment of rent.

77
Q

What can a landlord do if a nonresidential tenant fails to pay rent?

A

The landlord may file an action to recover possession once rent is due.

78
Q

What must a landlord do if a residential tenant fails to pay rent?

A

Provide a written demand to pay or vacate within 3 days, excluding weekends, and legal holidays.

79
Q

What must a landlord do if a residential tenant is noncompliant with a lease provision?

A

The landlord must give the tenant 7 days to cure the noncompliance, if curable.

If the noncompliance recurs within 12 months, the landlord may commence an eviction action without a subsequent notice.

If the noncompliance is the type that cannot be cured, the landlord may terminate the rental agreement and give the tenant 7 days to vacate the premises.

80
Q

What is permissive waste?

A

Neglect of the leasehold by the tenant (except for normal wear and tear) that decreases its value.

81
Q

What is ameliorative waste?

A

Changes made by the tenant that increase the property’s value.

82
Q

What is affirmative waste?

A

Voluntary conduct by a tenant that causes a decrease in the leasehold’s value.

83
Q

What is the duty of a Florida residential tenant regarding waste?

A

A tenant must maintain the rental property in good order.

84
Q

Is a tenant’s obligation to pay rent suspended if the tenant causes the casualty?

A

No.

85
Q

What is the effect on a residential tenant’s obligation to pay rent of only part of the premises is destroyed?

A

The tenant must vacate the unusable part, and their rent liability is reduced by the fair rental value of the part destroyed.

86
Q

When can a residential tenant terminate the rental agreement due to the destruction of the premises?

A

When the tenant’s enjoyment is substantially impaired by the casualty.

87
Q

Who can the landlord collect rent from in a sublease?

A

Only from the original tenant (privity of contract and estate).

88
Q

Who can a landlord collect rent from in an assignment?

A

The original tenant (privity of contract) and the assignee (privity of estate).

89
Q

What must an oral lease over one year comply with in Florida?

A

It must be in writing to satisfy Florida’s Statute of Frauds.

90
Q

How is the duration of a tenancy at will determined in Florida?

A

The duration is based on the period by which rent is payable (e.g., weekly rent means a weekly tenancy).

91
Q

How does Florida define a tenancy at will?

A

In Florida, any residential or commercial lease not in writing and signed by the landlord is considered a tenancy at will.

92
Q

What is a tenancy at will?

A

A tenancy at will is a leasehold that does not have a specified term and continues so long as the landlord and tenant desire.

93
Q

What is the notice period for terminating a week-to-week periodic tenancy in Florida?

A
  1. Residential tenancy: 7 days
  2. Nonresidential tenancy “at will”: 7 days
94
Q

What is the notice period for terminating a month-to-month periodic tenancy in Florida?

A
  1. Residential Tenancy: 30 days
  2. Nonresidential tenancy “at will”: 30 days
95
Q

What is the notice period for terminating a quarter-to-quarter periodic tenancy in Florida?

A
  1. Residential Tenancy: 30 days
  2. Nonresidential tenancy “at will”: 45 days
96
Q

What is the notice period for terminating a year-to-year periodic tenancy in Florida?

A
  1. Residential Tenancy: 60 days
  2. Nonresidential tenancy “at will”: 3 months
97
Q

What are nonresidential periodic tenancies called in Florida?

A

By Florida statute, a nonresidential periodic tenancy is called a “ tenancy at will.”

98
Q

What is a periodic tenancy?

A

A periodic tenancy is a repetitive, ongoing estate measured by a set period, but with no predetermined termination date.

99
Q

What are the tenant’s liabilities if they fail to give the required notice to vacate a tenancy for years?

A

The tenant may owe liquidated damages if so provided in the lease.

However, if the tenant remains on the premises with the landlord’s permission at the end of the rental term and fails to give the required notice, the tenant is liable for an additional one month’s rent.

100
Q

What notice must be given to terminate a residential tenancy for years in Florida, and are the notice requirements reciprocal on the landlord and the tenant?

A

In Florida, a residential tenancy for years may contain a provision requiring the tenant to notify the landlord within a specified period before vacating the premises at the end of the agreement, so long as such provision requires the landlord to notify the tenant within such notice period if the rental agreement will not be renewed.

The provision may not require less than 30 days’ notice or more than 60 days’ notice from either the tenant or the landlord.

101
Q

What is a tenancy for years?

A

A tenancy for years is a leasehold measured by a fixed and ascertainable amount of time.

102
Q

In Florida, what is required to create a tenancy by the entirety in personal property?

A

In Florida, with regard to personal property, the creation of a tenancy by the entirety generally must satisfy the five unities (time, title, interest, possession, and marriage) at the time the property interest is created.

In addition, there must be:

  1. the intent that the tenants have the right of survivorship; and
  2. the intent to create a tenancy by the entirety.
103
Q

In Florida, what is the effect on a tenancy by the entirety if parties remarry?

A

In Florida, remarriage by the parties does not restate tenancy by the entirety.

104
Q

In Florida, what is the effect of a divorce on a tenancy by the entirety?

A

In Florida, if the tenants divorce, the parties become tenants in common.

105
Q

In Florida, how does a title-holding spouse create a tenancy by the entirety?

A

In Florida, a tenancy by the entirety is created when the title-holding spouse:

  1. conveys a deed to the other spouse specifying an intent to create a tenancy by the entirety; or
  2. conveys the property to both.
106
Q

In Florida, what type of tenancy is presumed by a transfer of real property to husband and wife?

A

In Florida, transfer of real property by a third party to a husband and wife is presumed to be held in a tenancy by the entirety.

107
Q

What is the effect of the slayer rule on a joint tenancy in Florida?

A

In Florida, if one joint tenant (or tenant in a tenancy by the entirety) is convicted of intentionally killing the other the joint tenancy (or tenancy by the entirety) is severed.

In the absence of a murder conviction, the unlawful and intentional killing may be proven by the greater weight of the evidence.

108
Q

In Florida, is a strawman required to create a joint tenancy?

A

Although Florida normally requires the four unities to create a joint tenancy, a landowner may create a joint tenancy in himself and another by a single deed; no strawman is required to satisfy the four unities.

109
Q

What theory of mortgages does Florida follow?

A

Florida is a lien theory jurisdiction.

110
Q

What is Florida’s approach to the Rule Against Perpetuities?

A

Florida takes a “wait and see” approach.

Under this approach, a non-vested property interest is invalid unless it doesn’t vest or terminate within 90 years from when the interest was created.

111
Q

What is the duration limit for reverter provisions in Florida, and are there any exceptions?

A

The Florida Legislature has limited possibility of reverter provisions to 21 years unless conveyed to specific entities (e.g. , governmental educational, charitable).

The Florida Bar Exam (3 decks)

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