Real Property Flashcards
What is Fee Simple Absolute
property owned by a single party with no co-owners
Tenancy in Common
Each co-owner has a distinct, proportionate, undivided interest in the property
The owners each have a share of ownership, expressed as a percentage.
Each owner can sell, devise, or encumber their share (and only their share)
No ROS
Joint Tenancy
Each “joint tenant” has a right of survivorship. “Last man standing” becomes sole owner of the property.
The joint tenants cannot devise their share in a will or trust, because of this survivorship. Their share disappears upon death and is absorbed by the surviving owners, until only one remains.
In FL, granting instrument must expressly refer to survivorship, or estate will default to tenancy in common.
Four Unities that Must Be Present to Create a Joint Tenancy
Each tenant’s interest must be exactly identical (i.e. four unities of time, title, interest, and possession must be present)
-possession - equal right to enjoy and possess the property
-interest: equal shares in the property
Time: must receive interest at same time
Title: must receive interest under same title
Tenancy by the Entirety
Married couples
ROS
In FL, property owned by both a husband and a wife is presumed to be held as tenants by the entirety, unless there is express language creating some other form of ownership.
Benefit: property is protected from creditors of each individual spouse. Only joint creditors (creditors of both spouses) can attack the property. Applies to any asset held as tenancy by entirety.
• Note: any asset can be owned as tenancy by entirety (art, furniture, bank accounts). Assets purchased during marriage are presumed to be owned as tenants by entirety, if they are owned by both spouses. Applies only to assets actually owned by both spouses. (different from marital asset).
Rights and Duties of Co-Owners
Each co-owner has:
- the right to possess all portions of the property but cannot have exclusive possession.
- operating expenses, rents and proceeds must be shared according to pro-rata interest.
- If one co-owner encumbers the property, he has only encumbered his interest in the property
Partition/Forced Sale:
Court may order partition of the property to satisfy creditor (i.e. physically divide into separate parcels) or force sale of the property and split the proceeds between the remaining owners and the creditor.
Exception to Need for Four Unities to Create a Joint Tenancy
An owner can create a joint tenancy in herself and another, even though unities of time and title are not satisfied (that is, no strawman is required)
Severance of Joint Tenancy
If any of the four unities (P.I.T.T.) are destroyed, the JT is terminated and the parties hold the property as TIC.
- most common when one JT transfers interest in property.
- Taking out a mortgage DOES NOT destroy JT, but only applies to JT’s half.
Is Florida a lien theory or title theory state?
Lien theory - mortgage is treated as a lien.
Is there a right of reimbursement from co-tenants for improvements or repair costs?
No - these costs are not required to be shared. However, you can get credit for repairs in partition action.
What is ouster?
If a co-tenant denies another cotenant access to the property
What are remedies of an ousted tenant?
- get an injunction granting access to the property
- recover damages for value while ousted.
Nature of Leasehold
T has present possessory interest and LL has future interest (e.g. reversion)
o Tenancy for Years
Has a beginning and end date; runs for a specified period of time and then terminates at end of specified term.
If period of over 1 year, it MUST be in writing (SoF).
LL reserves the right of reentry
o Periodic Tenancy
Has a start date and continues on successive periods (i.e. month-to-month, year-to-year) until it is terminated by proper notice. Until then, it is automatically renewed.
Created by express agreement or by implication (continued payment of rent after expiration of lease), or operation of law
FL: nonresidential periodic tenancy is considered tenancy at will
Required notice of termination for a periodic tenancy?
Year-to-year = 60 days;
quarterly = 30 days notice
month-to-month=15 days;
week-to-week=7 days
Tenancy at will
- by statute, applies when term of tenancy is unlimited, even if in a written lease.
- continues until it is terminated by either party
- In Fla. notice is required
- Ends at death of either party, or LL or T transfers his interest.
Required notice of termination of a Tenancy at will
For nonresidential -annual rent payments - 3 months notice -quarterly rent payments - 45 days notice monthly rent payments - 15 days weekly rent payments - 7 days
Does Florida recognize NON-Residential periodic tenancies?
No. A nonresidential tenancy with periodic rent payments and no fixed termination date is a tenancy at will.
If lessor holds over at end of term, and LL consents in writing, what type of tenancy is created?
Tenancy at will.
Tenancy at Sufferance
T wrongfully remains in possession after the expiration of a lawful tenancy,. Lasts only until LL evicts or elects to hold T to another term. Notice of termination is NOT required.
Special notice provisions that LL can include in residential lease regarding termination and vacating the premises
- LL can require 60 days notice of T’s plan to vacate
- LL must provide notice of 1. T’s obligation to provide notice and 2. the date the rental is termination. LL’s notice must come 15 days before T’s notice period begins. If T does not give at least 15 days notice prior to vacating, he can be held liable for another month’s rent.
Hold-over doctrine
If a T continues in possession after lease term ends, the LL may either evict the T in county court (no forcible entry) or bind the T to a new periodic tenancy. NO SELF HELP
Commercial = year-to-year if original lease term was over 1 year or month-to-month if for less than 1 year
Residential = month-to-month
** IF LL sends notice before the lease terminates that new lease will be at a higher rent, then T will be held to the new term at a higher rent.
When can LL get double rent from T
When T refuses to deliver possession to LL at end of lease term
Leases are governed by what principles
Contract principles of good faith and commercial reasonableness
- A party’s good faith cooperation is an implied condition precedent to performance of a contract
Landlord’s duties
- to deliver possession
- quiet enjoyment
- Implied warranty of habitability
LL’s Duty to Deliver Possession
LL has a duty to deliver actual possession at the beginning of the term. LL is in breach if he has not evicted a hold-over T by the beginning of the new T’s term.
LL’s Duty of Quiet Enjoyment
-prevents the LL from taking action that makes the premises wholly or partially unsuitable for their intended purposes, resulting in a constructive eviction.
Actual Eviction
occurs when the LL excludes T from entire premises; terminates T’s obligation to pay rent
Partial Eviction
LL physically excludes T from part, but T excused from paying rent (unless 3rd party evicted T)
Constructive Eviction
(i) LL does something (not third party) to (ii) make property uninhabitable and (iii) Tenant must vacate the premises within a reasonable time after giving notice.
In FL, T may terminate agreement if the premises are destroyed or damaged “so that the enjoyment of the premises is substantially impaired” and seek damages
Implied Warranty of Habitability
- implied in every RESIDENTIAL lease
- requires LL to maintain their property such that it is reasonably suitable for human needs.
- failure to comply with housing, building, health codes constitutes breach
- FL law- LL must maintain maintain the roofs, windows, doors, floors, steps, porches, exterior walls, foundations, and all other structural components in good repair and capable of resisting normal forces and loads and the plumbing in reasonable working condition. And repair damages screens annually
What Should T do if LL fails to maintain the premises as required
If LL does not repair, T must give LL written notice specifying noncompliance
LL has 7 days to comply or T may: (1) move out and terminate the lease (constructive eviction); or (2) reduce and abate rent to fair market value in view of defects
Does T have duty to make repairs?
In FL, T has NO DUTY to make repairs, with exception of plumbing. The LL’s obligation to repair may be altered by lease in a single-family dwelling or duplex.
What can LL do if T stops paying rent?
If T stops paying rent, the LL cannot resort to self-help. LL may remove the T only by means of an action for possession filed in county court. In FL, LL may terminate lease 3 days after written demand of overdue rent.
If person purchases property at a foreclosure sale, may they terminate a lease?
Yes, by giving Tenant 30 days notice.
Ejectment
Legal remedy that LL can sometimes use to remove a person from wrongfully occupying the property (in CIRCUIT court)
What can LL do if T has abandoned the premises (or LL obtains a writ of possession, or T has surrendered possession)
LL can
- Treat the lease as terminated and take possession, thereby terminating any further liability of the T
- Retake possession, and hold T liable for difference between rent due from T, and what LL is able to relet it for in good faith
- Stand by and do nothing, and hold T liable for rent as it comes due.
- Charge liquidated damages or early termination fee as provided in lease (must be provided by separate addendum).
Assignment
Complete transfer of all remaining interests for the entire remaining term, except that T may reserve a right of reentry for breach. Transferee stands in shoes of T, and owes rent to LL. New T is primarily liable. T can still be held liable under contract theory unless there is a novation.
Subleases
Transfer of less than T’s remaining term or space. LL can only collect rent from T. The subtenant only has rent obligations to T
Security Deposit
- must be held in separate non-interest or interest bearing bearing account
- LL has 15 days to return security deposit if he does not intend to impose a claim on it
- LL has 30 days to send T written notice of intention to impose a claim, or she forfeits the right to do so.
- If T does not object w/in 15 days, LL can deduct the amount of the claim, and remit balance to T within 30 days of notice of claim.
Defenses to eviction or nonpayment action
- Defend on ground that LL violated duty to make repairs or comply with building codes (but T must have given prior notice to LL of noncompliance). This is a complete defense
- Raise any other legal or equitable defense, including defense of retaliatory conduct. LL must be given opportunity to cure before dismissal of action
In an action for possession, what does T need to do if it interposes any defense other than payment
T shall pay into the registry of the court the accrued rent as alleged in the complaint, and any rent that accrues during pendency as it is due
-Failure to do so within 5 days after service of process constitutes an absolute waiver of any defenses other than payment, and LL is entitled to immediate default judgment w/o further notice or hearing
Easement
non-possessory interest held by one person to use another’s land or restrict the use of another’s land
How is an express easement created?
By grant - in a writing that satisfies the SOF
By reservation - grantor conveys land but reserves an easement right in land for his own use
Dominant and servient tenement
Dominant - if beneficiary of easement is land
Servient - parcel subject to the easement
Types of easements
- Express - subject to SOF
- Implied (by neccesity; from existing use)
- Prescription
Implied Easement by Necessity - common law
Created when:
- A single tract of land is divided by a common owner and a piece of it is conveyed to another (UNITY OF TITLE);
- There is no reasonable way of entrance to, or exit from, the dominant tenement;
- The easement is reasonably necessary for beneficial use or enjoyment of the dominant tenement.
Florida Statutory Easement by Necessity
(1) there is no practicable route to enter on, or exit from, the dominant tenement due to adjacent lands, fencing, or other improvements; AND
(2) the dominant tenement is used for dwelling or agriculture purposes.
(3) UNITY OF TITLE is NOT required.
The servient tenement is entitled to compensation for the use of the easement.
Easement Implied from Existing Use
AKA Easement by Estoppel or Quasi easement
Implied if:
- Single tract of land is divided by common owner;
- Before division, owner used single tract of land as if there was an easement on it;
- After the division, the common owner continues to use the conveyed land in a continuous and apparent manner and
- Such use must be reasonably necessary for the owner’s use and enjoyment.
Implied Easement By Prescription - requirements
CHON!
Owner allows a trespassor to use his land continuously for 20 years. Use must be:
1. Hostile (w/o permission)
2. Open and notorious (owner could discover) and
3. Continuous for statutory period
(*Diff from AP, need not be exclusive use)
What is a Profit?
Right to enter into another’s land to remove a specific natural resource
-writing required
What is a license?
Revocable permission to use another’s land (e.g. ticket to a music concert).
- cannot be transferred, personal to licensee, revoked if you try to transfer
- can be revoked at any time
An invalid oral easement may be deemed a
license
When can a license be revoked?
At will, or upon grantor’s death
What is the scope of an easement?
Intended to meet the reasonable future needs of the dominant tenement holder
How is an easement terminated?
- Release - expressly by holder; must be in writing
- Merger - if holder acquires fee title to the underlying estate
- Abandonment - holder demonstrates an intent to never use it again
- Prescription - holder fails to protect against trespassors during statutory period
- Sale to BFP - easement terminates if owner sells property
- Estoppel - owner reasonably relies to his detriment on holder’s assurances that easement will no longer e used
- End of necessity - easement by necessity lasts only as long as easement is necessary.
Easement Appurtenant
- easement that benefits the dominant parcel
- there must be two tracts of land and it run’s with the holder’s land (i.e. dominant tenement)
Easement in Gross
-holder acquires a right to use the servient tenement independent of his possession of another tract of land.
Affirmative Easement
allows the holder to enter onto the servient tenement and make an affirmative use of it
Negative Easement
prevents the owner of servient tenement from engaging in specified act on the servient tenement (i.e. light, air, support, flow)
What is a real covenant?
- is a written promise concerning the use of the land that runs to successors of the promise.
- It typically requires the holder to either do something OR refrain from doing something to the land.
What type of damages can you get for violation of real covenant
Money damages
What type of damages can you get for violation of an equitable servitude
Equitable relief
Requirements for a real covenant to run with the land?
Privity
Intent (to bind successors)
Notice (successor must have actual or record notice) - FOR BURDEN ONLY
Touch and Concern (the land)
*must be in writing
If you are testing burden - horizontal privity + strict vertical privity
If you are testing benefit - relaxed vertical privity only, and no need for notice
Example of a real covenant
A conveys Greenacre to B pursuant to a deed that states:
B, his successors, heirs and assigns shall not construct any structure on Greenacre that exceeds 15 feet in height.
A-B deed record. B conveys to C. C builds a 20 foot house.
A can recover damages from C if the requirements of a real covenant are met
Equitable servitude
covenant that equity will enforce against the burdened land who has notice of covenant
Elements of Equitable Servitude
Intent (to bind successors)
Notice (successor must have actual, constr. or inquiry notice)
Touch and Concern (the land)
- does not need to be in writing
- no privity required
