Property Flashcards
Homestead
defined
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.
Establishment of Homestead
If the judgment is entered before the homestead is established, then the homestead is not protected against the claims of creditors
Abandonment of Homestead
Homestead is abandoned once the whole family leaves
Exceptions to Homestead Protections
Supercreditors!
- Mortgages
- Mechanic’s Liens
- Taxes
Restrictions on Devise of Homestead
- 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
Tenants by the Entirety
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
Joint Tenants with Right of Survivorship
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
Tenants in Common
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
Land Sale Contracts (Conveyancing)
elements, etc.
- Offer
- Acceptance
- 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
Equitable Conversion
Once there is a valid real estate contract, the courts can treat the buyer as the owner
Legal Title vs. Equitable Title
Legal title transfers with the deed
Equitable title transfers with the contract
Marketable Title
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)
Deed (Requirements)
- Written instrument
- Signed by the grantor
- Identify the grantor/grantee
- Identify the land
- Signed by 2 witnesses in Florida
General Warranty Deed
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
Special Warranty Deed
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
Quitclaim Deed
Seller makes no warranty… grantor simply conveys whatever interest he may have
Delivery of Deed
Must have delivery of a deed. When the deed is delivered, the deed replaces the contract (can sue on contract but not after)
Covenants
A written promise to do or not to do something on the land. Covenants run with the land.
6 Covenants for Title
- Seisin: Seller promises that he owns and possesses the land
- Right to Convey: Seller promises that he has the right to convey property
- Right Against Encumbrance: Seller promises there are no encumbrances on the land
- Right of Quiet Enjoyment: Seller promises to assist in defense against claims of superior title
- Covenant of Warranty: Buyer will not be disturbed by claims of superior title
- Further Assurances: Seller will take steps necessary to perfect title
Seisin
(Covenant of Title)
Seller promises he owns and possesses the land
Right to Convey
(Covenant of Title)
Seller promises he has the right to convey the land
Right Against Encumbrance
(Covenant of Title)
Seller promises there are no encumbrances on the land.
Right of Quiet Enjoyment
(Covenant of Title)
Seller will assist in defense against all claims of superior title
Covenant of Warranty
(Covenant of Title)
Buyer will not be disturbed by claims of superior title
Further Assurances
(Covenant of Title)
Seller will take steps necessary to perfect title
Recording Statutes
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
Mortgage
A security interest in real property to ensure repayment of a loan
Lien Theory vs. Title Theory
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
Purchase Money Mortgage
A security interest granted for money to purchase real property that has priority over other secured interests (creditors)
Right of Redemption
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.
Adverse Possession
- 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
- Exclusive: Must not share the property with anyone else and must exclude others from possession like the true owner would
- 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
- Hostile: Without permission
- Continuous: For the statutory period (7 years in Florida)
Landlord/Tenant
Types of Tenancies
- For Years: Tenancy that runs for a specific period of time and terminates automatically at the end of the lease term
- Periodic Tenancy: Tenancy that continues on successive periods and notice of termination must be given to terminate the lease.
- At Will: Tenancy that can be terminated by either landlord or tenant at anytime
- 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
For Years Tenancy (Landlord/Tenant)
Tenancy that runs for a specific period of time and terminates automatically at the end of the lease term
Periodic Tenancy (Landlord/Tenant)
Tenancy that continues on successive terms and notice must be given to terminate the lease
At Will (Landlord/Tenant)
Tenancy that can be terminated at anytime by either the landlord or the tenant
At Sufferance (Landlord/Tenant)
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
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
Tenant Duties
- Pay rent
2. Not commit waste (must notify LL of something bad on the property)
Landlord Duties
NO SELF HELP IN FLORIDA! (cannot change locks, take something of value for rent, etc.)
- 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.
- 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.)
- Implied Warranty of Quiet Enjoyment: Protection against a substantial interference of use and enjoyment
Eviction
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
Assignment
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
Sublease
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
Easements
The right to use the land of another - a non-possessory interest
Types of Easements
Appurtenant or In Gross
AND
Express, Implied, or Florida Statutory Easement by Necessity
Appurtenant Easement
An easement in which there is a dominant estate (benefited) and a servient estate (burdened). Runs with the land.
In Gross Easement
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.)
Express Easement
An express easement must be in writing in Florida per the Statute of Frauds
Implied Easements
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!
Florida Statutory Easement by Necessity
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)
Easement by Prescription
Actual
Open & Notorious
Hostile
Continuous (20 years)
How Easements End
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)
Profit
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
Real Covenant
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
Equitable Servitude
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
