Property Dist. Flashcards
Limitations on Possibilities of Reverter and Rights of Entry
FL: Florida statute limits duration of reverters of forfeitures provisions to 21 years from the date of the deed conveying realty (Exceptions for conveyance to governmental, educational, literary, scientific, religious, public utility or transportation, charitable or nonprofit corporations).<br></br><br></br><br></br><br></br>MS: Statutes limit the permissible duration of possibilities of reverter and rights of entry to a certain number of years to foster marketability of title.
Fee Tail
FL: Florida follows minority view: any instrument purporting to create fee tail is deemed to create a life estate in the first taker with a remainder per stirpes to his lineal descendants in being at the time of his death. If there are no such remaindermen, remainder vests in any other remaindermen designated in the instrument. Absent such designation, reverts to original grantor or his heirs.<br></br><br></br>MS The fee tail limited inheritance to lineal descendants of the grantee. If no lineal descendants survived at the grantee’s death, the property either reverted to the grantor or her successors or passed to a designated remainderman.
Rule in Shelley’s Case
FL: The Rule in Shelley’s Case has been abolished.<br></br><br></br>MS At common law, where a freehold estate was given to A, and in the same instrument a remainder was limited to the ‘heirs’ or to the ‘heirs of the body’ of A, the purported remainder in the heirs was not recognized and A took both the freehold estate and the remainder.
Doctrine of Worthier Title (Rule Against Remainders in Grantor’s Heirs)
FL: The Doctrine of Worthier Title has been abolished in Florida. A remainder to the grantor’s ‘heirs,’ ‘heirs at law,’ ‘next of kin,’ ‘relatives,’ or ‘family’ does not presumptively create a reversionary interest in the grantor.<br></br><br></br>MS Under the Doctrine of Worthier Title, a remainder limited to the grantor’s heirs is invalid, and the grantor retains a reversion in the property. This doctrine is still applied to inter vivos transfers in a majority of states, but most states treat it only as a rule of construction.
Uniform Statutory Rule Against Perpetuities
FL: Florida has enacted the Uniform Statutory Rule Against Perpetuities, which generally adopts a 90-year alternate vesting period. Note that for property interests in a trust created after 12/31/00, the time limit is 360 years, instead of 90 years.<br></br><br></br>MS The Uniform Statutory Rule Against Perpetuities provides an alternative 90-year vesting period.
Termination of Periodic Tenancy ‘ Notice Required (FL)
FL: Florida has adopted the Uniform Residential Landlord and Tenant Act, which establishes notice and termination requirements for residential periodic tenancies. For nonresidential leases, Florida statutes make no distinction between a tenancy at will and a periodic tenancy. Both are included under the definition of tenancy at will.
Termination of Periodic Tenancy ‘ Notice Required (MS)
<br></br><br></br>MS A periodic tenancy is automatically renewed, from period to period, until proper notice of termination is given by either party. Many jurisdictions have statutorily prescribed the notice required to terminate a periodic tenancy. In general, the guidelines are as follows: (i) the tenancy must end at the end of a ‘natural’ lease period; (ii) for a tenancy from year to year, six months notice is required; (iii) for tenancies less than one year in duration, a full period in advance of the period in question is required by way of notice.
Termination of Tenancy at Will
FL: Florida statutes set forth time frames for required notice to terminate.<br></br><br></br>MS A tenancy at will may be terminated by either party without notice. However, a reasonable demand to quit the premises is required.
Holdover Doctrine ‘ Landlord Remedies
FL: Landlord may remove tenant only be means of action for possession filed in county court.<br></br><br></br>MS Landlord may treat hold-over tenant as trespasser and evict him under an unlawful detainer statute.
Holdover Doctrine ‘ New Periodic Tenancy (FL)
FL: Florida law does not permit landlord to bind a nonresidential tenant to new periodic tenancy if tenant holds over. If holding over is consented to in writing by landlord, tenancy at will is created. Holding over without written consent of landlord results in creation of tenancy at sufferance. For residential leases, Florida follows the majority view that a hold-over tenant will be bound to, at most, a month-to-month tenancy.
Holdover Doctrine ‘ New Periodic Tenancy (MS)
<br></br><br></br>MS Landlord may, in his sole discretion, bind tenant to new periodic tenancy. The terMS and conditions of the expired tenancy apply to the new tenancy. In commercial leases, if the original lease term was for one year or more, a year-to-year tenancy results from holding over. If the original term was for less than one year, the periodic term is determined by the manner in which rent was due and payable under the prior tenancy. In residential leases, most courts would rule the tenant a month-to-month tenant, irrespective of the term of the original lease.
Holdover Doctrine ‘ Collection of Double Rent
FL: Florida allows for collection of double rent when tenant holds over.<br></br><br></br>MS Many statutes provide that if tenant willfully remains in possession after term expires and landlord makes written demand for possession, landlord may collect double rent.
Tenant’s Liability for Covenants to Repair
FL: In Florida, the landlord’s obligation to make repairs under a residential lease may be altered or modified only in a lease involving a single-family dwelling or a duplex, not where multiple dwelling units are concerned.<br></br><br></br>MS In residential leases, even if the tenant covenants to repair, the landlord will usually be obligated to repair (except for damages caused by the tenant) under the implied warranty of habitability because the landlord’s obligations under that warranty are usually held not to be waivable.
Landlord Remedies ‘ Tenant Abandons
FL: Upon a residential tenant’s abandonment or surrender of the leased premises, the landlord may stand by and do nothing, holding the tenant liable for the rent as it comes due.<br></br><br></br>MS If the tenant unjustifiably abandons the property, the landlord has two options: she may do nothing or she may repossess. By the traditional view, the landlord may let the premises lie idle and collect the rent from the abandoning tenant, unless the tenant tenders an acceptable substituting tenant. The majority view, however, requires the landlord to make reasonable efforts to mitigate his damages by reletting to a new tenant.
Easement by Necessity (FL)
FL: In addition to recognizing common law rule of implied grant of way of necessity, Florida also has a statutory easement of necessity when any land outside any municipality that is used for dwelling or agricultural purposes is shut off or hemmed in by lands, fencing, or other improvements so that no reasonable route of entrance or exit is available. Owner or tenant may use and maintain an easement for persons, vehicles, stock, franchised cable television service, and any utility service. Statutory easement of necessity arises regardless of whether a unity of title exists from a common source. Owner of property on which easement is imposed is entitled to compensation.
