Property Flashcards
What are the distinguishing characteristics of a joint tenancy? (3)
Right of survivorship: when one JT dies, her share goes automatically to surviving JT
Alienability: transferable during holder’s life
Not desendible or devisable
How is a joint tenancy created in Florida?
Must take T-TIP
(1) with IDENTICAL equal interests
(2) with rights to possess the whole
In FL - taking at the same time by same title is not required
“To A and his heirs”
Fee simple absolute
“To A & his heirs for so long as” “until” “while” “during”
Fee simple determinable
To A & his heirs, but if …. or “upon condition that”
Fee simple subject to condition subsequent
To A & his heirs for so long as… and if not..to B
Fee simple subject to an executory interest
To A for life
Life estate
To A for the life of B
Life estate
To A for life, then to B
Life estate
Fee simple absolute
-potentially infinite duration
-freely transferable, devisable, descendible through will/intestacy
-no future interest
Fee simple determinable
-lasts as long as condition is met then automatically to grantor
-freely transferable, devisable, descendible
-future interest is possibility of reverter
Fee simple subject to condition subsequent
-lasts until happening of named event AND reentry by grantor
-future interest is right of entry
Fee simple subject to an executory interest
-lasts as long as condition is met, then goes to third party
-shifting executory interest
Life estate
-measured by the life of someone
-future interest is reversion if held by O
-futre interest is remainder if held by TP
The life tenant must not…
Commit waste
-voluntary
-permissive
-ameliorative
Doctrine of equitable conversion
Once K for the sale of land is signed, equity regards the buyer as the owner of the real property. The seller retains legal title and the rights to the proceeds of the sale, which is considered personal property. The K conveys equitable title to buyer. Seller is entitled to possession until closing.
Risk of Loss - equitable conversion
The buyer bears the risk of loss for any damages to the property that occur between contract and closing.
Two promises in every land sale K
-S will provide marketable title
-S will not make false statements of material fact
Marketable title
Title reasonably free from doubt and the threat of litigation. Common defects that render title unmarketable are:
-defects in record chain of title (AP)
-encumbrances (mortgages, liens, easements, restrictive covenants)
-zoning violations
When must title be marketable?
at day of closing. S has up until that time to clear up whatever defect makes title unmarketable. if installment land K, S need not provide marketable title until B has made his last payment
Remedy if title not marketable
B must notify S that title is umarketable and give S reasonable time to cure defects. If S fails to cure, B’s remedies include rescission, damages, specific performance with abatement, and quiet title suit.
If closing occurs, the K & deed merge, and S’s liability on implied K covenant ends.
What happens to the implied warranty of marketable title at closing?
It is no longer a valid c/a. At closing, the K & deed merge, and S’s liability on the implied K covenant ends.
Liability for failure to disclose
(1) S knew or should’ve known of defect
(2) B is unlikely to discover defect and
(3) defect must be serious enough that B probably would’ve reconsidered the purchase
When is there in implied warranty of habitability in a land K?
ONLY when it concerns the sale of a new home by the builder of the home
When K includes liquidated damages and option to recover actual damages
In Florida, when a contract includes both a liquidated damages clause and an option to recover actual damages, the liquidated
damages clause is unenforceable because it is considered a penalty.
General warranty deed
warrants against all defects in title, including those attributable to grantor’s predecessors
Present covenants of general warranty deed
(1) seisin: grantor owns estate
(2) right to convey: grantor has power to transfer
(3) against encumbrances: no servitudes/liens on land
when is the present covenant breach if ever?
at the time the deed is delivered
future covenants of general warranty deed
(1) quiet enjoyment: Grantor promises grantee won’t be disturbed in possession by a third party’s lawful claim of title
(2) warranty: Grantor promises to defend against reasonable claims of title by TP & to compensate grantee for loss sustained by claim
(3)further assurances: Grantor promises to do whatever needed to perfect grantee’s title if it turns out to be imperfect
special warranty deed
contains same covenants as general warranty deed but grantor only makes those promises on behalf of himself
Easement
a grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land
how long is an easement presumed to last?
presumed perpetual duration unless grant specifically limits interest
Transfers of easement appurtenant
passes automatically with transfer of dominant tenement, regardless of whether mentioned in conveyance. The burden also passes with the servient estate unless the new owner is a BFP without notice of the easement.
4 basic methods of creating an easement
Prescription (COAH20)
Implication (preexisting use)
Necessity
Grant (SOF)
8 ways to terminate easement
Estoppel
Necessity
Destruction
Condemnation
Release
Abandonment
Merger
Prescription
Termination of easement through estoppel
An oral expression of an intent to abandon an easement won’t terminate an easement unless it’s also committed to writing (a release) or accompanied by action (abandonment). But if the servient owner materially changes their position in reasonable reliance on the easement holder’s representations (such as that the easement will no longer be enforced), the easement terminates through estoppel.
Abandonment
Physical act + express intent of non-use
Merger
When title to the easement and title to the servient land become vested in the same person
Covenant
Written promise to do or not do something related to land. Contractual limitation or promise regarding the land and usually found in deeds.
Requirement for burden of covenant to run
Writing
Intent
Touch and concern the land
Horizontal and veritcal privity
Notice
Horizontal privity
Nexus between the original promising parties (grantor-grantee, mortgagor mortagee, landlord tenant) when covenant was created. Shared interest in land. Hard to establish.
Vertical privity
Nexus between successor in interest and originally covenanting party. Requires non hostile nexus, like K, devise, or descent. (will only be absent if got interest through AP)
Requirements for benefit of covenant to run
Writing
Intent
touch and concern
Vertical privity
Equitable servitude
An equitable servitude is a promise that equity will enforce against successors of the burdened land regardless of whether it runs with the land at law, unless the successor is a BFP.
Creation of equitable servitude
Writing
Intent
Touch and concern
Notice
Equitable
Servitude
What is an assignment
A transfer of the entire remaining term of a lease
Who is liable to the landlord upon assignment?
original tenant remains liable to the landlord even when he assigns the remainder of his term to a new party
What options does the landlord have if assignee doesn’t pay?
can sue assignee (because in privity of estate) or can sue original tenant (bc still in privity of contract)
What is a sublease?
a transfer of less than an entire term of a lease
Who is liable to the landlord under a sublease for rent?
T1 only. The relationship between T1 and LL remains fully intact. T2 is neither in privity of estate nor privity of contract with landlord. T2 is only liable to T1 and vice versa.
Land contract conveys ________. The deed passes ______.
The land contract convey equitable title. The deed passes legal title.
Lien theory
the mortgagee is considered the holder of a security interest only and the mortgagor (or his successor) is deemed the owner of the land until foreclosure. Therefore the mortgagee may not have possession of the land before foreclosure
Joint tenants with right of survivorship
when co-T dies, the other one gets the whole interest
tenants in common
undivided 50% interest in the whole
tenancy by the entirety
An estate between married couples. FL presumed married couples own their land in tenancy by entirety. The estate carries a right of survivorship. One spouse can’t convey or mortgage without the other spouse’s consent.
How can a tenancy by the entirety be terminated?
(1) death of either spouse (survivor owns fee simple)
(2) divorce (parties become TIC)
(3) mutual agreement
SOF Land contract
To be enforceable, a land contract must be in writing and signed by the parties to be charges. The writing need not be a formal contract. The SOF requires that the writing contain
(1) a description of the property
(2) identification of the parties to the K and
(3) the price and manner of payment.
Incidental matters, such as taxes, furnishing of deeds ,etc. need not appear in the writing or even have been agreed upon.
Legal description of land in deed
A description is sufficient if it provides a good lead as to the identity of the property sought to be conveyed.
When a party to a land contract of sale dies before the contract has been completed…
the deceased seller’s interest passes as personal property. The legal title passes to the takers of seller’s real property but they must give up title to the buyer when the contract closes.
Adverse possession
(1) actual entry that is
(2) open and notorious
(3) adverse (hostile) and
(4) continuous for 7 years
Adverse possession under color of title
Where possession of the premises was entered into under color of title, founded on a written instrument (whether or not valid as a conveyance) that is properly recorded. Land must be
(1) usually cultivated or improved
(2) protected by substantial enclosure
(3) partly improved or enclosed if part of a farm
Adverse possession without color of title
Must have
(1) paid outstanding taxes on property within 1 year after entering posession
(2) made return of property within 30 days of doing so and
(3) paid taxes on the property for each year of the statutory period
AND
(1) protected by substantial enclosure or
(2) usually cultivated, maintained, or improved
Mortgage rule statement
A mortgage is a security interest in land used to secure a promise to repay a loan.
Necessary and proper parties in foreclosure
Necessary and proper parties include everyone who has an interest in the property but whose interest is inferior to the mortgage. These include the titleholder, lien holders who recorded the lien after the mortgage, and holders of easements.
When a mortgage is foreclosed, the buyer at the sale takes title…
as it existed when the mortgage was placed on the property.
Foreclosure
a process by which the mortgagor’s interest in the property is terminated and the property is generally sold to satisfy the debt in whole or in part
