Property Essay Blurbs Flashcards
- Best: One Owner in Fee Simple, Life Estate, and Life Estate per Autre Vie (another’s life)
- Life Estate Owner has Duty not to Commit Waste to protect for future interests- - either Voluntary, Permissive-(Must pay property tax), Ameliorative waste is not allowed
Transfer By Deed - The seller, grantor, executes the deed in the presence of two witnesses who also sign the deed. The seller’s signature must be acknowledged by a notary so that the deed can be recorded, and the recording of the deed puts third parties on notice that the property has been transferred. Necessary legal descriptions must be included.
Prompt recording does not negate the need for consideration on underlying conveyance.
- FLORIDA has a pure notice statute, protecting a bona fide purchaser who pays value with no actual or record notice of a prior conveyance. BFP “wins” – unless he had Notice - What are the 2 types ?
- Record notice of prior conveyance (VS)
- Constructive or Inquiry notice of conveyance – who possesses?
Marketable Title: Implied in every contract for the sale of land is a warranty that at closing the seller will provide marketable title – one reasonably free from doubt ( a reasonably prudent buyer would accept, generally unencumbered fee simple absolute).
If a Buyer finds that a title is not marketable or has defects, the B has to tell S and allow a reasonable time for S to CURE, even if this means that the closing date must be extended.
If S fails to cure the title defects, B may pursue several remedies including – rescission, damages for breach, or specific performance with abatement in purchase price, or B can require seller to sue to quiet title.
- Transfer of a life estate only gives transferee a life estate, cannot alter term just by the conveyance.
- Transfer of estate with condition – or subject to total divestment – is terminable upon happening of an event and reversionary interest is in GRANTOR, so any transfer is giving the buyer less than a fee simple.
- Remainder is VESTED if it will happen upon x condition, not subject to a condition precedent (ie vested remainder subject to total divestment). Who elsemight have a vested remainder interest that is not included in the subject transaction?
Quitclaim deed – subject to only the rights/defense of grantor, no warranty
In a special warranty deed, this is limited to encumbrances caused by the seller.
Warranty deed - A person who signs a warranty deed guarantees that he or she owns and has all rights to the property. The Florida Statutes set forth a prescribed form of general warranty deed. The statutory form includes all of the common law covenants of title, and states that the seller will “fully warrant the title to said land, and will defend the same against the lawful claims of all persons whomsoever.”
The General Warranty Deed and the five (5) covenants
a. The Covenant of Seisin. This covenant is an assertion by the seller that the seller in fact owns the property being conveyed, is the sole owner, and is the only party in possession, unless the existence of a tenant was disclosed to, and accepted by, the buyer.
b. The Covenant of the Right to Convey. This covenant is an assertion by the seller that the seller has the right to convey the property, i.e., there are no restrictions or limitations on the ability of the seller to convey the property to the buyer. For example, by making this covenant, the seller is promising that no other party has an option or right of first refusal to purchase the property.
c. The Covenant Against Encumbrances. This covenant is an assertion by the seller that there are no undisclosed or nonvisible encumbrances against the property being conveyed. The encumbrances can be either (i) monetary liens or (ii) restrictions or limitations on the use of the property.
i. Examples of monetary liens are mortgages, judgments, and unpaid real estate taxes.
ii. Examples of restrictions or limitations on the use of the property are subdivision or condominium restrictions set forth in declarations of protective covenants or declarations of condominium. Other examples of limitations on the use of property that are encumbrances are: encroachments of a neighbor’s fence or building on a seller’s property, and easements, which are the right of a non-owner to use a part of another’s property for a specific purpose or purposes, such as access or utilities.
iii. It is important to understand that encumbrances that are disclosed, visible, or removed at closing are not considered encumbrances for purposes of this covenant. Thus, the following encumbrances would violate the covenant against encumbrances: subdivision or condominium restrictions that are referenced in general in the real estate contract (they do not have to be specifically described); a mortgage paid off by the seller at closing; or a driveway or overhead powerline easement.
d. The Covenant of Quiet Enjoyment. This covenant is a promise by the seller that the buyer’s use, possession, and enjoyment of the property will not be disturbed or “disquieted” because of a defect in the title to the property, i.e., a third party will not make claim against the buyer for ownership, possession, or use of the property.
e. The Covenant of General Warranty. This covenant is a warranty that the seller will protect the buyer from harm caused by title defects and defend the buyer from any claims by others to the property’s title. This covenant is also essentially a warranty against any of the preceding covenants being untrue.
“Covenants are loosely defined as ‘promises in conveyances or other instruments pertaining to real estate’ . . . [and] are divided into two categories, real and personal.”
A real covenant, or covenant running with the land, “differs from a merely personal covenant in that the former concerns the property conveyed and the occupation and enjoyment thereof, whereas the latter covenant is collateral or is not immediately concerned with the property granted.” “A real covenant binds the heirs and assigns of the original covenantor, while a person[al] covenant does not.”
Covenants may “run with the land” and are enforceable against subsequent owners or buyers if (1) the existence of a covenant that touches and involves/concerns the land, (2) there was an intention that the covenant run with the land, and (3) there was notice of the restriction on the part of the party against whom enforcement is sought.”
IN FL, the seller of a new or used real property has an affirmative duty to disclose facts materially affecting the value of the property which are not readily observable or known to the purchaser.
Purchasers may bring an action against builder or seller for misrepresentation, concealment and nondisclosure, breach of warranty for fitness or quality, or negligence. Many courts allow a claim of negligence against a builder of a new house even if the seller and purchaser are not in direct privity of contract (or b/c new home buyer is an intended beneficiary)
Tenants in Common (default); Plus Joint Tenants (right of survivorship), and T by the Entirety(marriage) (Recognized in FL although not in many other states anymore)
For Joint Tenancies: 4 UNITIES Required:
- time,
- title/same instrument,
- interest/equal share,
- possession/whole.
- Co tenants – not responsible for improvements by others, can sever or request partition.
- Outsting may happen if co-tenants substantially interfere with use and enjoyment of other co-tenant
Defeasible Fees – Can be terminated at some point by event or condition, always followed by future interest.
- Fee Simple Determinable: Ends automatically upon event, Possibility of Reverter to G “while/during/so long as”
- Fee Simple Subject to Condition Subsequent: Does not Automatically end, G must take STEPS to get’ Right of entry of re-entry – “provided that, But if, upon condition that”, enter or file lawsuit.
- Fee Simple Subject to Executory Limitation: Reversionary Interest to 3rd Party automatically (executory interest) Property to A as long as used as museum, otherwise then to B)
Future Interests = result of defeasible fees
- Reversion – to Grantor;
- Remainder – to 3rd party -
- Contingent remainder – subject to condition or to unknown party; (Heirs- unknown)
- Vested remainder – clear who is getting a future interest
- (i) Typical (certain, cannot be taken away from grantee)
- (ii) Vested subject to open (Class of persons and can be added to),
- (iii) Vested subject to divestment. (Certain who gets property, but a condition could happen to take away right (B dies before A)
Rules furthering marketability – Inalienable (no one can possess or transfer) – promote Alienability/transfer
AVAILABLE IN FLORIDAU
Destruction of contingent remainders - FL recognizes this rule. If a contingent remainder has not vested at the natural termination of the prior freehold estate, the contingent remainder is destroyed and may become and executory interest subject to RAP.
Rule Against Perpetuities: NON VESTED property interest in real property is INVALID unless: 1) Certain to vest or terminate no later than 21 years after the “life in being” /death of someone alive OR 2) Actually vests or terminates within 90 years after creation (360 for trusts).
NOT IN FLORIDA
Shelly’s Case - Abolished in FL. Allowed to create a life estate and remainder to heirs.
Doctrine of Worthier title - Abolished in FL. A remainder in heirs not a reversion.
Transfer By Deed - The seller, grantor, executes the deed in the presence of two witnesses who also sign the deed. The seller’s signature must be acknowledged by a notary so that the deed can be recorded, and the recording of the deed puts third parties on notice that the property has been transferred. Necessary legal descriptions must be included.
Note: Prompt recording does not negate the need for consideration on underlying conveyance.
FLORIDA has a pure notice statute, protecting a bona fide purchaser who pays value with no actual or record notice of a prior conveyance. BFP “wins” – unless he had Notice:
- Record notice of prior conveyance (VS)
- Constructive or Inquiry notice of conveyance – who possesses?
Therefore, under Florida law, a subsequent purchaser who purchases for value and without notice of a prior mortgage will prevail against the prior purchaser. The specific subjunctive exception in the Florida Statutes, “unless same be recorded according to law,” is not so much a literal exception as it is a provision that the act of recording a conveyance places creditors and subsequent purchasers on notice.10
In applying the notice provision of Florida’s recording statute, Florida courts have held that notice may take three distinct forms:
- actual notice; A party has “actual notice” when the party has actual knowledge of the fact in question
- implied notice; A party has “implied notice” of a fact when the party had a duty to make inquiry regarding such fact and the means of acquiring knowledge of such fact were present. OR
- constructive notice. “Constructive notice” also arises from an inference of knowledge. However, unlike implied notice, a party has constructive notice when the inference of knowledge arises “by operation of law, as under a recording statute.”
Express Easement
Created when parties agree to allow a dominant estate a specific use on a servient estate. A person using an express easement beyond the stated use is liable for surcharge for the value of the over use (for example, if easement was for recreational use, and then holder started using it for commercial purposes
Easement Appurtenant - an easement granted for the benefit of property / the dominant estate VERSUS
Easement granted for personal use - terminates when individual no longer conforms to original use.
EXCESSIVE USE or MISUSE-
REMEDY is SURCHARGE and would run to the dominant estate holder.
OR an injunction can be sought to conform use to easement grant
Termination of the easement by judicial decree could be done in equity if the excess use is irrevocably harming the property
