Property Flashcards
Leasehold in general
Tenant has possessory interest and LL had reversion as a future interest
tenancy for years (LL/T)
runs for a specified amount of time; LL reserves right of entry
periodic tenancy
continues on successive periods; month-to-month, etc.; automatically renewed; requires notice of termination: month-to-month=15 days, year-to-year =60 days; created by express agreement, implication, or operation of law. In FL, nonresidential periodic tenancy is considered tenancy-at-will.
tenancy at will
terminated by LL or T at any time, or by operation of law (death, transfer); in FL, specific notice of termination time limits apply; created by express agreement or period payments; if termination expressly granted to LL, termination right implied to T, but not vice versa
tenancy at sufferance
T wrongfully remains in possession after the expiration of a lawful tenancy, until LL evicts or elects to hold T to another term; notice of termination NOT required.
holdover doctrine
if T continues on possession after lease expiration, the Ll may evict the T in county court (no forcible entry) or bind the T to a new periodic tenancy (commercial= year-to-year if original term was over 1 year or month-to-month if less than 1 year; residential: month-to-month). Fl does NOT permit LL to bind nonresidential T to a new periodic tenancy, instead a tenancy at sufferance is created. Fl allows for the collection of DOUBLE RENT when T holds over. Holdover does not apply to: only a few hours, T not at fault, or seasonal lease
Leases and the law
K governs LL/T relationship; covenants therein are independent-> seek damages, but still must perform
T’s duty to repair
“waste doctrine”: T may not damage property. 3 types of waste: 1-voluntary: affirmative-negligent or intentional damage; 2-permissive-T fails to take steps to protect against elements/repair (FL has no duty to repair except plumbing); 3-ameliorative: alterations where T liable for restoration except for long term Ts who alter for neighborhood continuity
T’s liability for covenants to repair
residential: LL obligated for all repairs not caused by T; in FL, LL’s obligation to repair may be altered or modified only in a single family dwelling or duplex; nonresidential: LL may be awarded damages for difference in property condition from commencement to expiration of lease
T’s duty to pay rent
if T stops paying rent, the LL CANNOT result to self-help. LL may remove T only by means of an action for possession filed in county court. LL may terminate 3 days after written demand of overdue rent.
T’s duty to pay rent: eviction
Eviction under FL’s “Unlawful Detainer” statute-only issue is T’s lawful possession; T may not raise counter claims
T’s duty to pay rent: Ejectment
the legal remedy that LLs can sometimes use to remove a person from wrongfully occupying the property
LL Duties and T’s Remedies in general
generally LL had no duty to repair or maintain, unless modified by agreement
LL’s duty to deliver possession
duty to deliver actual possession at the beginning of the term; LL is in breach if he has not evicted a holdover T by the beginning of the new T’s term; will be liable to damages to increase in rent for T in the interim loss
LL’s duty of quiet enjoyment
LL may not interfere with T’s quiet enjoyment/possession except through: 1-actual eviction: occurs when LL excludes the T from the entire premises; terminates T’s obligation to pay rent. 2-partial eviction: LL physically excludes T from part; T not excused from paying entire rent unless excluded by 3rd party. 3-constructive-LL does something to make property uninhabitable; in FL, the T may terminate the agreement if the premises are destroyed or damages “so that the enjoyment of the premises is substantially impaired.” T must move out in reasonable time or waive
implied warranty of habitability: residential lease
LL has duty to reasonably inspect the premises for habitability and to maintain the premises. LL must 1-comply w/ building, housing, and health codes; 2-where there are no codes, must maintain roofs, windows, screens, doors, floors, steps, porches, exterior walls, foundations, and all other structural components in good repair. Must maintain plumbing in reasonably working condition; in multi-unit dwellings, LL must maintain pest control, lock and keys, clean safe condition of common area, garbage removal, hot and running water. T has NO DUTY to make repairs except plumbing. LL’s obligations to repair may be altered in a single family dwelling or duplex.
implied warranty of habitability: residential lease: LL fails
1-LL doesn’t repair, T must give written notice specifying noncompliance; 1-LL has 7 days to comply or T may: a-move out and terminate the lease (constructive eviction), b-reduce or abate rent to fair market value in light of defects. No retaliatory eviction by LL permitted.
assignments and subleases in general
T may transfer leasehold interest unless prohibited in agreement
to assign a lease
complete transfer of all remaining interests
sublease of lease
T retains any remaining interest in addition to right to reenter upon breach
fixtures
chattel attached to the property so that it is no longer personal property; common v. divided ownership
easements
non-possessory interest creates right to use or restrict use of land possessed by another (perpetual duration unless limited by grant)
affirmative easement
allows the holder to enter onto the servient tenement and make affirmative use of it
negative easement
prevents the owner of servient tenement from engaging in specified activity on the servient tenement (i.e. light, air, support, flow). Distinguish from a restrictive covenant-private agreement that restricts the use or occupancy of real property (promise to do or not to do something on the land).
easement appurtenant
there must be 2 tracts of land; the “dominant tenement” is the estate benefited by the easement and the “servient tenement” is the estate subject to the the easement right. Runs w/ holder’s land. If servient sells to a bona fide purchaser w/ no notice, it ends. Must be to use and enjoyment of dominant land.
easement in gross
the holder acquires the right to use the servient tenement independent of his possession of another tract of land (i.e. the easement benefits the holder rather than another parcel. Only runs if it’s for commercial or economic purpose, not personal purpose
creations of easements
SOF applies unless less than 1 year; by express grant or reservation; implication; or prescription.
easement by implication
2 types: easement implied from existing use or easement by necessity
easement implied from existing use (easement by estoppel or quasi easement)-implied if:
1-prior division of a single tract; 2-an apparent and continuous use exists on the servient estate; 3-use is reasonably necessary for the enjoyment of the dominant estate; 4-the court determines that the parties intended the use to continue after the division of land
easement by necessity
FL recognizes the common law rule where an owner of land sells part of the land, easement is reasonably necessary for the beneficial use and enjoyment of the part granted or reserved. An implied grant only arises where UNITY OF TITLE exists from a common source. Expires when necessity ends.
courts look to what for the scope of the easement?
the intent
easement by prescription
the holder has used the easement for the statutory 20 years the use was open and notorious, adverse, and continuous; doesn’t have to be exclusive, the public at large can acquire; can’t be negative
express grant
in writing and signed by the holder of the servient tenement. Must comply with all formal requirements of a deed unless the duration is brief enough to be outside of SOF.
express reservation
arises when grantor conveys title to land but reserves the right to continue to use the tract for a special purpose; can only reserve for grantor, not 3rd party
how to terminate easements
stated conditions, merger, release (same formalities as created), abandonment (physical manifestation), estoppel, prescription, necessity, condemnation and involuntary destruction.
profits
non-possessory interest creates rights to take resources from another’s land. A writing IS required; all easement rules apply to profits; not an interest, but a privilege.
license
permission to go on another’s land; a writing is generally NOT required; an invalid or oral easement may be deemed a license; may be revoked at will or upon grantor’s death; personal to the licensee and is inalienable; any attempt to transfer results in a revocation by operation of law; revocation can lead to a breach of K
real covenant
normally found in the deed; a written promise to do something on the land, or promise not to do something on the land; damages are money damages
transfer fee covenants
after 2008, constitute an unreasonable restraint on alienations and do not run w/ title
equitable servitude
a covenant; regardless of whether it runs with the land; equity will enforce against the assignee of the burdened land who has notice of the covenant; no privity required; in writing, except negative; must have notice; remedy is injunction
adverse possession requires:
1-actual entry giving 2-exclusive possession, that is 3-open and notorious, 4-hostile, and 5-continuous for 7 years; also must pay taxes to prove AP; tacking requires privity
sales K of land
SOF applies; reduced to writing; identify parties; legal description, price, signed by party to be charged; SOF can be overcome by substantial performance, delivery of property, or improvements-must be the person that would suffer hardship to invoke estoppel (usually not seller)
equitable conversion
once K signed, equity regards buyer as property owner & seller’s proceeds from sale is personal property; if property is destroyed w/o fault of either party, before closing, the risk of loss is on the BUYER & seller must credit any fire or casualty insurance against price buyer is required to pay
marketable title
every K in FL contains an implied warranty that seller will provide a marketable title at closing
seller’s liability for defects
seller of new or used real property has an “affirmative duty to disclose” facts materially affecting the value of the property that are not readily observable or known to a purchaser; remedy is rescission of K; does not apply to commercial sales; “as is” not an effective disclaimer
seller’s failure to disclose defect
liable if: 1-seller knows or has reason to know of defect; 2-defect isn’t obvious or apparent and buyer is not likely to discover it by ordinary inspection; 3-defect would cause buyer to reconsider purchase if known
new construction-home warranties
no warranty of fitness or quality like personal property
seller actively conceals defect in real property
liable if seller took steps to conceal a defect
seller misrepresentation or fraud
1-seller made a false statement of fact to buyer; 2-seller knew statement was false or made statement recklessly; 3-buyer relied on statement; 4-material effect on value of property
deeds in general
transfers title in an interest in real property upon DELIVERY & ACCEPTANCE; SOF applies; must be in writing; must be signed by grantor & reasonably identify the parties and the land; signed in presence of 2 subscribing witnesses; no consideration required, only donative intent
general warranty deed in general
expressly guarantees the grantor’s good and clear title and the following covenants: seisin, right to convey, covenant against encumberances, quiet enjoyment, covenant of warranty, for further assurances
covenant of seisin
grantor has title and possession of estate she purports to convey at the time of the grant
covenant of right to convey
grantor has the authority to make the grant; title alone satisfies
covenant against encumberances
no physical (encroachment) or title (mortgage) encumberances
covenant of quiet enjoyment
grantee will not be disturbed in possession by a 3rd party claiming LAWFUL title
covenant of warranty
grantor agrees to defend against reasonable claims of title by a 3rd party and compensate grantee for any loss sustained by the claim of superior title
covenant for further assurances
grantor promises to perform acts reasonably necessary to perfect title
special warranty deed
provides two limited assurances: 1-grantor has not conveyed the same estate or interest to anyone other than the grantee; 2-estate is free from encumberances made by grantor
quit claim deed
conveys whatever interest the grantor has; no covenants of title are express or implied
recording of deed
FL has “pure notice” recording act. A subsequent BFP prevails over a prior grantor who failed to record.
Bona fide purchaser
subsequent party must give value and not have actual, inquiry, or constructive notice of the prior conveyance at the time of the transaction; shelter rule for transferees of BFPs
deed: notice of BFP
FL does not mandate inquiry notice, but case law imposes duty on purchaser to physically examine the premises. Physical possession by one who is not the grantor has been held as constructive notice and visible easements have been construed as actual notice because inspection is presumed
unrecorded deed notice
presumption of lack of actual notice of an unrecorded instrument by a person subsequently acquiring property
burden of proving actual notice
is on the claimant of an unrecorded instrument/deed
clerk’s certificate of sale
after sale, the clerk of court must file a certificate of sale, and if there are no objections filed w/i 10 days, the certificate of title; once title is filed, it stands confirmed
security interest: mortgage
transfer w/o notice is a nullity; FL follows lien theory on foreclosure (judicial sale)-bank/mortgagee holds a security interest only and borrower/mortgagor considered owner of land until foreclosure, therefore bank may not possess before foreclosure is complete; prior to foreclosure, borrower/mortgagor may redeem property by paying amount due; NO statutory redemption after foreclosure is complete; bank can sue for deficiency judgment
security interest: deed of trust
trustee hold title in trust for beneficiary; foreclosure is non-judicial sale-power of sale
security interest: installment land K
installment purchaser obtains legal title only when full K price paid; treated as a mortgage instead of a forfeiture
cooperatives
title to land and building are held by a corporation that leases individual apartments to shareholders
condos
each owner owns the interior of her individual unit plus an undivided interest in exterior and common areas
zoning
may enact statutes to reasonably control the use of land for the protection of health, safety, morals, and welfare of citizens, based upon state’s police power, limited by due process and equal protection of 14th amendment USC
limitations on possibility of reverter and rights of entry
FL limits duration of reverters for forfeiture provisions to 21yrs from date of deed conveying realty; exceptions are for conveyance to gov’t, educational, literacy, scientific, religious, public utility, transportation, charity, nonprofit
fee tail in FL
attempted fee tail instead creates a life estate in first taker with a remainder per stirpes to her lineal descendants in being at time of death; if no remaindermen, remainder vests in others designated in instrument, if none it reverts to original grantor or heirs
Shelley’s Rule
makes “to a and her heirs” just “to a”; abolished in FL; in Fl it turns “to A and heirs” to “to a and a’s descendants”
doctrine of worthier title
in common law it prevents remainders in O; abolished in FL.
RAP
21 years; but FL has additional 90 year vest if before 12/31/00 or 360 year vest if after 12/31/00
tenant abandons
upon residential abandonment or surrender of leased premises, LL may stand by and do nothing ,holding T liable for the rent as it comes due
easement by prescription SOL
20 years (common law-FL has no specific statute)
adverse possession SOL
7 years continued possession; notice from property appraiser to owner of record to establish AP without color of title
recording, purchasers w/o notice-actual notice
presumption of lack of notice of an unrecorded instrument by a person subsequently acquiring interest in the property; burden is on claimant w/ unrecorded deed to show actual knowledge
exoneration by will
property specifically devised is not exonerated from liens by other will property unless the will specifically directs it to be so
transfer of mortgage w/o note
nullity
limitation on possibilities of reverter and right of entry
Fl Stat. limits duration of reverters of forfeiture provisions to 21 yrs from the date of deed conveying realty.
limitation on possibilities of reverter and right of entry: Exceptions:
conveyance to governmental, educational, literacy, scientific, religious, public utility or transportation, charitable or nonprofit corporation or association
fee tail rule
any instrument purporting to create a fee tail is deemed to create a life estate in the 1st taker w/ a remainder per stripes to her lineal descendants in being at time of death. If there are no such remaindermen, remainder vests in any other remaindermen designated in the instrument; absent another designation, it reverts to O or O’s heirs
Uniform Statutory Rule against perpetuities
Fl has enacted the Uniform Statutory Rule Against Perpetuities, which generally adopts a 90 year vesting period; but, for property interests created after 12/31/00, the time limit is 360 years, instead of 90.
holdover tenant removal by LL
LL can only remove T by means of action for possession filed in county court
double rent
LL can collect double rent from hold over T
