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FL Bar Topics > Property > Flashcards

Property Flashcards

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1
Q

Homestead

defined

A

Primary residence of a natural person that is protected from the claims of creditors. Designed to protect the family. 1/2 contiguous acre in the city; 160 contiguous acres outside of the city.

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2
Q

Establishment of Homestead

A

If the judgment is entered before the homestead is established, then the homestead is not protected against the claims of creditors

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3
Q

Abandonment of Homestead

A

Homestead is abandoned once the whole family leaves

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4
Q

Exceptions to Homestead Protections

A

Supercreditors!

  • Mortgages
  • Mechanic’s Liens
  • Taxes
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5
Q

Restrictions on Devise of Homestead

A
  • Forced Sale: Once the owner of homestead property dies, homestead protections inures to the surviving spouse and heirs
  • Conveyance (Deeds): If married, cannot convey homestead without joinder of spouse (invalid if one spouse does not join)
  • Testamentary Gifts (Wills): Only applies to INDIVIDUALLY owned property that is homestead
    Survived by spouse or minor children –> cannot devise
    Survived by spouse & no minor children –> can devise
    to spouse fee simple
    Improper Devise —> Spouse gets a life estate and all
    descendants get a remainder, per stirpes. Spouse can
    elect to share 1/2 as tenants in common with
    descendants, per stirpes.
    No spouse & No minor kids –> devise to whoever
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6
Q

Tenants by the Entirety

A

Created by a conveyance to a married couple.

In Florida, if married then presume TE.

Has rights of survivorship.

Protection against joint creditors (no protection against creditors from one of the spouse).

If bought together and got married later, then not TE

Spouse must join in any deed or conveyance (not join–> conveyance is void)

Unities: Time, title, interest, possession, marriage

Severance: Death, divorce, joint conveyance, execution by joint creditor

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7
Q

Joint Tenants with Right of Survivorship

A

To create a JTROS, deed or will must have express language of survivorship (O –> A&B with right of survivorship)

No protection against creditors

Unities: Time, title, possession, interest

Severance: death, partition, 1 tenant conveys

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8
Q

Tenants in Common

A

Florida assumption without survivorship language. (goes by will or intestacy)

Default if all other co-tenancies fail

Freely conveyable by devise or contract

Unity: Possession

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9
Q

Land Sale Contracts (Conveyancing)

elements, etc.

A
  1. Offer
  2. Acceptance
  3. Consideration

Statute of Frauds: Requires a writing signed by the party to be charged with the essential terms (essential terms: name the grantor/grantee, identify the land, the price, and any conditions on payment)

EXCEPTION: Partial performance (need all 3)
Payments, possession, AND improvements

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10
Q

Equitable Conversion

A

Once there is a valid real estate contract, the courts can treat the buyer as the owner

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11
Q

Legal Title vs. Equitable Title

A

Legal title transfers with the deed

Equitable title transfers with the contract

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12
Q

Marketable Title

A

Title reasonably free from doubt/risk of litigation. Requires the seller, after contracting, to deliver marketable title at the closing. (no breach until after closing)

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13
Q

Deed (Requirements)

A
  • Written instrument
  • Signed by the grantor
  • Identify the grantor/grantee
  • Identify the land
  • Signed by 2 witnesses in Florida
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14
Q

General Warranty Deed

A

Seller warrants that:

  • No defect in title has occurred during his ownership of the property
  • No defect in chain of title
  • Normally contains the 6 covenants for title
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15
Q

Special Warranty Deed

A

Seller warrants that:

  • No defect in title has occurred during his ownership of the property
  • The grantor has not conveyed the estate or any interest therein to anyone besides the grantee

-NO warrant that there is no defect in the chain of title

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16
Q

Quitclaim Deed

A

Seller makes no warranty… grantor simply conveys whatever interest he may have

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17
Q

Delivery of Deed

A

Must have delivery of a deed. When the deed is delivered, the deed replaces the contract (can sue on contract but not after)

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18
Q

Covenants

A

A written promise to do or not to do something on the land. Covenants run with the land.

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19
Q

6 Covenants for Title

A
  1. Seisin: Seller promises that he owns and possesses the land
  2. Right to Convey: Seller promises that he has the right to convey property
  3. Right Against Encumbrance: Seller promises there are no encumbrances on the land
  4. Right of Quiet Enjoyment: Seller promises to assist in defense against claims of superior title
  5. Covenant of Warranty: Buyer will not be disturbed by claims of superior title
  6. Further Assurances: Seller will take steps necessary to perfect title
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20
Q

Seisin

A

(Covenant of Title)

Seller promises he owns and possesses the land

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21
Q

Right to Convey

A

(Covenant of Title)

Seller promises he has the right to convey the land

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22
Q

Right Against Encumbrance

A

(Covenant of Title)

Seller promises there are no encumbrances on the land.

23
Q

Right of Quiet Enjoyment

A

(Covenant of Title)

Seller will assist in defense against all claims of superior title

24
Q

Covenant of Warranty

A

(Covenant of Title)

Buyer will not be disturbed by claims of superior title

25
Q

Further Assurances

A

(Covenant of Title)

Seller will take steps necessary to perfect title

26
Q

Recording Statutes

A

Florida is a notice state!

In a notice jurisdiction, the last bona fide purchaser for value and without notice prevails

Types of Notice:
Actual: Had actual knowledge of it
Constructive: When the prior conveyance was recorded
Inquiry: With reasonable inquiry, you could have discovered the conveyance

Mortgages must be recorded! If mortgage is not recorded but it had been delivered and you bought it for value without notice, you don’t have to pay the mortgage

27
Q

Mortgage

A

A security interest in real property to ensure repayment of a loan

28
Q

Lien Theory vs. Title Theory

A

Florida is a Lien Theory state!!!!

Lien Theory: If you have a mortgage, the bank has a security interest/lien on the home. If you do not pay, the bank can sell the home in a foreclosure sale, but the bank does not own title until after the foreclosure sale

Title Theory: When you get a mortgage through a bank, the bank owns title until you pay off the loan

29
Q

Purchase Money Mortgage

A

A security interest granted for money to purchase real property that has priority over other secured interests (creditors)

30
Q

Right of Redemption

A

Any time after default but before the foreclosure sale, the mortgagor can redeem the property by paying off the balance that is due. The right of redemption cannot be waived at the time the mortgage is created.

31
Q

Adverse Possession

A
  1. Actual: Must be in actual possession of the property

Possession under Color of Title: A document that purported to give title but is ineffective for some reason not apparent on its face. Property will be considered possessed when the deed is recorded and the property improved

Possession without Color of Title: No document then the property is considered possessed when property appraiser is notified and taxes are paid

  1. Exclusive: Must not share the property with anyone else and must exclude others from possession like the true owner would
  2. Open & Notorious: Must use the property as the true owner would and the presence on the land is apparent so as to put the true owner on notice
  3. Hostile: Without permission
  4. Continuous: For the statutory period (7 years in Florida)
32
Q

Landlord/Tenant

Types of Tenancies

A
  1. For Years: Tenancy that runs for a specific period of time and terminates automatically at the end of the lease term
  2. Periodic Tenancy: Tenancy that continues on successive periods and notice of termination must be given to terminate the lease.
  3. At Will: Tenancy that can be terminated by either landlord or tenant at anytime
  4. At Sufferance: Tenancy that occurs when a tenant wrongfully remains in possession after the expiration of a tenancy
    - Hold-over Doctrine: If a tenant wrongfully remains in possession after the expiration of a tenancy, the landlord can: evict the tenant, bind the tenant to a new periodic tenancy, increase rent if the tenant was notified before the lease expired
33
Q

For Years Tenancy (Landlord/Tenant)

A

Tenancy that runs for a specific period of time and terminates automatically at the end of the lease term

34
Q

Periodic Tenancy (Landlord/Tenant)

A

Tenancy that continues on successive terms and notice must be given to terminate the lease

35
Q

At Will (Landlord/Tenant)

A

Tenancy that can be terminated at anytime by either the landlord or the tenant

36
Q

At Sufferance (Landlord/Tenant)

A

Tenancy that occurs when a tenant wrongfully remains in possession after the expiration of a tenancy
- Hold-Over Doctrine: If a tenant wrongfully remains in possession after the expiration of a tenancy, the landlord can: evict the tenant, bind the tenant to a new periodic tenancy, increase rent if the tenant was notified before the lease expired

37
Q

Hold-Over Doctrine

A

If a tenant wrongfully remains in possession after the expiration of a tenancy, the landlord can: evict the tenant, bind the tenant to a new periodic tenancy, increase rent if the tenant was notified before the lease expired

38
Q

Tenant Duties

A
  1. Pay rent

2. Not commit waste (must notify LL of something bad on the property)

39
Q

Landlord Duties

A

NO SELF HELP IN FLORIDA! (cannot change locks, take something of value for rent, etc.)

  1. Duty to Deliver Possession: Landlord must put the tenant in actual possession of the property at the beginning of the lease term. If the landlord does not, the tenant can break the lease.
  2. Implied Warranty of Habitability: Rental property must be livable. LL has duty to inspect the premises and make repairs (structural: walls, roof, doors, mold, etc.)
  3. Implied Warranty of Quiet Enjoyment: Protection against a substantial interference of use and enjoyment
40
Q

Eviction

A

ONLY REMEDY A LL HAS IN FL!

Actual: When the LL excludes the tenant from the premises through a legal proceeding

Constructive: If the landlord does something that renders the property uninhabitable or unenjoyable, the tenant may terminate the lease by moving out and stop paying rent

41
Q

Assignment

A

When a tenant conveys the entire remaining portion of his lease to someone else. The landlord can go after both the original tenant/assignor and the assignee

42
Q

Sublease

A

When a tenant conveys less than the entire portion of his lease to someone else. The landlord can only go after the sublessee if the sublessee is still on the premises, otherwise the LL must go after the tenant/sublessor

43
Q

Easements

A

The right to use the land of another - a non-possessory interest

44
Q

Types of Easements

A

Appurtenant or In Gross

AND

Express, Implied, or Florida Statutory Easement by Necessity

45
Q

Appurtenant Easement

A

An easement in which there is a dominant estate (benefited) and a servient estate (burdened). Runs with the land.

46
Q

In Gross Easement

A

An easement in which there is only a servient (burdened) estate. In Florida, an in gross easement is considered personal to the original easement holder and is non-transferrable

(ex: utilities, someone fishing on your land, etc.)

47
Q

Express Easement

A

An express easement must be in writing in Florida per the Statute of Frauds

48
Q

Implied Easements

A

Implied by Prior Use (Estoppel): If someone relied on the prior use of that easement

Implied by Necessity: Easement is reasonably necessary for the use and enjoyment of the land (ingress/egress). Must have unity of title!

49
Q

Florida Statutory Easement by Necessity

A

Based on public policy, convenience, or necessity, a statutory easement by necessity in Florida arises when land that is used for dwelling or agricultural purposes is shut off or hemmed in so that no reasonable route of entrance or exit is available. (Do not have to have unity of title)

50
Q

Easement by Prescription

A

Actual
Open & Notorious
Hostile
Continuous (20 years)

51
Q

How Easements End

A

Merger: If both pieces of property come under one ownership

Abandonment: Non-use and INTENT to abandon (look for permanently stop using the easement)

Release: If agree in writing to terminate the easement (statute of frauds)

52
Q

Profit

A

Easement + the right to remove something off the land (fish, timber, etc.).

Surcharge: Taking too much from the land will cause the profit to terminate

53
Q

Real Covenant

A

Real Covenant: A WRITTEN promise to do or not to do something on the OWNER’S OWN LAND.
Runs with the land.
Remedy = Money Damages

54
Q

Equitable Servitude

A

A covenant will be enforced against the assignee of the burdened land who has NOTICE of the covenant, regardless of whether the covenant runs with the land.

Remedy = injunction

FL Bar Topics (4 decks)

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