Real Property Flashcards
Restrictive Rules from Common-Interest Communities
Common-interest communities (eg, condominiums) have the implied power to adopt reasonable rules to govern the use of common and individually owned property to protect common property in the community.
Accessions
Accessions are items that are so attached to other property that they cannot be removed without causing substantial damage.
Trade Fixtures
Trade fixtures—items attached to real property by a tenant for use in his/her trade or business—can be removed without the landlord’s consent if (1) the removal occurs before, or within a reasonable time after, the lease ends and (2) the removal will not substantially harm the property.
Mortgage Prepayment
Under the common law “perfect tender in time” rule, a mortgagor (debtor) has no right to prepay a mortgage debt unless the mortgage documents provide otherwise.
However, the prevailing modern trend reverses this presumption and allows prepayment unless the mortgage documents provide otherwise.
Prepayment prohibitions or penalties contained in a mortgage are generally valid and enforceable.They do not violate public policy because they serve the beneficial purpose of:
- Allowing the mortgagee to maintain the financial yield intended under the mortgage agreement and
- Compensating the mortgagee for any losses suffered because of a prepayment
Easement by Estoppel
An easement by estoppel is created through good-faith, reasonable, detrimental reliance on the servient-estate owner’s permission to make a limited use of his/her land.
Caveat Emptor
The common-law doctrine of caveat emptor provides that a seller has no duty to disclose property defects to the buyer unless otherwise agreed.
Zoning Ordinances
A zoning ordinance is a governmental regulation regarding land use that, for example, limits the use of a particular area to single-family residences. The ordinance may include a special exception permitting a particular future use of property if a special-use permit is obtained. If a property owner complies with the procedures for obtaining a special-use permit and establishes entitlement to that permit (as the psychiatrist did here), the responsible government agency must issue the permit. Therefore, the zoning commission cannot properly deny the psychiatrist a permit.
Mortgage
A mortgage is a lien against real property given to secure repayment of a debt.
If the debt (evidenced by a promissory note) belongs to someone other than the mortgagor, then the mortgagor is not personally liable for repaying that debt.* However, the mortgagee can foreclose on the mortgaged property if the debtor defaults.
As-Is Seller and Buyer Agreement
Sellers of residential property must disclose known material defects that the buyer cannot reasonably discover. However, the seller can disclaim this duty (eg, with an “as is” clause) so long as the seller has not fraudulently misrepresented or concealed the condition of the property.
Installment Land K
Under an installment land contract, the time for the seller to deliver marketable title arrives when the buyer makes the final installment payment.
Liquidated Damages Clause in Sell of Real Property
A liquidated damages provision is enforceable if the amount bears a reasonable relation to anticipated damages. An amount less than 15% of the purchase price is likely reasonable.
Cotenants and Renting
A tenant in common has the right to lease (or otherwise transfer) his/her separate, undivided property interest to a third party without the other co-tenants’ consent. But the other co-tenants have the right to share possession of the property with the third party and receive a share of the rental income in proportion to their property interests.
Future Interests in Real Property
A future interest that follows a defeasible life estate becomes possessory upon the death of an individual or the happening of a stated event. Future interests are alienable, meaning that the future-interest holder (ie, remainderman) can freely convey his/her interest.
Deficiency and Mortgage Liability
A party who assumes a mortgage expressly agrees to become personally liable for the mortgage debt. That means the party assuming the mortgage is primarily liable for paying any deficiency resulting from a foreclosure sale and the debtor is secondarily liable as a surety.
Tenancy by the Entirety
A tenancy by the entirety is only available to married couples and can only be partitioned if both spouses consent.
Easement by Necessity
An easement by necessity is created when (1) the dominant estate is virtually useless (eg, landlocked) without the benefit of an easement across the servient estate, (2) the two estates were once a single tract of land, and (3) the necessity arose when the land was severed and the two estates were created.
SOF Land Sale K
Under the statute of frauds, contracts for the sale of land must be in writing, be signed by the party against whom enforcement is sought, and contain all essential terms. Time for performance is not an essential term, and courts will presume that performance within a reasonable time was intended if no time is listed.
Permanent Injunction in Florida
Permanent injunctions are issued after a hearing or trial has been concluded. The party seeking the injunction must show:
- irreparable harm
- a clear legal right
- an inadequate remedy at law and
- consideration of the public interest.
