Fl Property Essay

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property checklist 2-fixtures

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1. chattel attached to the property so tgat it is no longer personal property.

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Property checklist issues-1
Estates in land

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1. Landlord/tenant
-4 types of leasehold: 1) tenancy for years (specified amount of time like 2 years then over) 2) periodic tenancy (continues in successive periods 3) tenancy at will, tenancy at sufferance
-holdover doctrine: if t continues in possession after lease ends, l may evict or bind to new "periodic tenancy".

-t duties
1. t-"duty to repair", waste doctrine
2. t's liability for covenants to repair
3. t's duty to pay rent: if t stops paying L can evict or eject but no self help.

-L remedies
1. L has duty to deliver possession (must evict holdover before new tenant term)
2. L-duty of quiet enjoyment: may not interfere w QE of t through actual, partial or constructive eviction.

-Implied warranty of habitability


2. FIXTURES-chattel attached to the property so that it is no longer personal property.

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Property checklist 2-Rights in another's land

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1. 4 easements-affirmative, negative, appurtenant, in gross
2. creation of easements:
1) by implication: implied fron existing use (by estoppel), by necessity, fl statutory for ingress and egress
2) by prescription
3) express grant
4) express reservation

3. Profits: non posessory interest creates rights to take resources from another's land.

4. License: permission to go on another's land.

5. real covenant: promise in deed to do or not to something on the land. runs w the land.

6. Equitable servitude

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property checklist 3-

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1) adverse possession
need 1) actual entry giving "exclusive possession" that is 2) ooen and notorious 3) hostile 4) continuous for statutory period. ** in FL-7 years.**

2) Conveyancing
-Sales contracts-SOF- writing, identifies parties, legal description, price, signed by party to be charged. -SOFTWARE can be overcome by substantial performance, delivery of property or improvements.
1. Equitable conversion-once K signed buyer owns property and bears all risk.
2. Marketable title-in FL seller must provide MT at closibg.
3. Seller liability for defects: for failure to disclose, active concealment, misrepresentation or fraud.

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property checklist 4

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1. Deeds-transfer upon Delivery and Acceptance; FL requires signed by 2 subscribing witnesses.
2. General warranty deed: 1) covenant of seisin 2) covenant of right to convey 3) c agaibst encumberances 4) c of quiet enjoyment 5) c of warranty.
3. special warranty deed: provides 2 limited assurances-1) grantor has not conveyed to any other grantee 2) estate is free from encumberances made by grantor.
4. quitclaim deed-conveys whatever interest the grantor has.

2. Recording-Fl has " pure notice"

3. Security interests
4. cooperatives, condominiums, zoning.

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Fl is pure NOTICE statute

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1) under fl pure notice: bfp prevails over prior grantee if prior grantee did not record.
2) subsequent bfp protected whether records at all (as long as he had "no notice").
3) presumption that if subsequent grantee then there is a lack of notice and any prior grantee has burden to prove there was notice.
4) inquiry notice-if grantee is bound to make reasonable inquiry he will be held to have knowledge of any facts that such inquiry would have revealed.
** FL recording statute does not mandate inquiry note but case law "imposes a duty on a purchaser" to "physically examine the premises".

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Marital property-elective share

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In Fl there is an "elective share provision" permitting surviving spouse to "elect to take" an amoub t equal to 30% of the total fair market value of elective estate on date of death.

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Implied warranty of marketability

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there is an "implied warranty of marketability" in every land sale contract that "at closing the seller will provide the buyer with a title that is 'marketable'"

--Marketable Title: "free from doubt". Titkr must be free from Qs tgat more ght present an "unreasonable risk if litigation."

-- need Unencumbered fee simple with good record Titke. No mortgages, liens, easements, covenants.

-seller has right to satisfy mtg or lien at closing w proceeds of sale.

-if buyer determine title unmarketable, must notify seller and give a reasonable time to cure defects, even if extends closing date.
buyer can--> rescind, sue for damages, specific performance or require to quiet title.
-measure of damages for breach-k price and mkt value.

-if buyer permits closing k merges e deed S no longer liability for k warranty of marketable title. after can onky bribg actions for violation of promises in the deed.

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LIEN theory in fl

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Fl has adopted the lien theory in mortgages.

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Doctrine of Worthier title abolished in fl

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abolished

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Fl-writing requirement

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in fl real estate may be conveyed only by a written instrument signed in the presence of two subscribing witnesses.

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Deed-Usual covenants for title
(present-Seisin, right to convey, encumberances) (future-quiet enjoyment, warranty and further assurances.)

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1) Covenant of Seisin-grantor HAS the estate or interest he purports to convey.
2) Right to Convey: that the grantor has POWER/AUTHORITY to make the grant.---TITLE will satisfy this covenant.
3) covenant against encumberances-assuring no visible encumberances-assuring, such as easements or invisibke such as mortgages agaibst the title or interest conveyed.
4 ) Covenant of quiet enjoyment-grantee will nit be disturbed in his posesion or enjoyment of third party by 3rd parties lawful claim of title.
5) Covenant of Warranty: covenant where grantor agrees to defend on behalf of the grantee any lawful or reasonable claims of title by a third party, and to compensate the grantee for any loss sustained by the claim of superior title.
6) covenant of further assurances-to perform whatever acts are reasonably necessary to perfect the title conveyed if it turns out to be imperfect.

SPECIAL warranty deed-grantor covenants only that "HE HIMSELF did not create title defects"; he represents nothing about what previous owners might have done.

*QUITCLAIM deed does not have these warranties because onky conveys such interest as grantor has.

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Right of first refusal-fl

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in Fl url against perpetuities does not apply to right of first refusal.

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Fl has no "rule in shelleys case"

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in Fl abolished.

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deed valid as inter vivid gift if 3 requirements

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1) donate intent 2) delivery 3) acceptance

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bfp requirements

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1) purchaser of mortgage or creditor
2) take WITHOUT actual, record or inquiry notice
3) paid valuable consideration

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SOF

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The statute of frauds requires that "agreement for Sale of Land" must:
1. identify the parties to be charged
2. identify the subject matter of the agreement
3. the signatures of all parties to be charged
-----Doctrine of part performance would take agreement outside of formal requirements of SOF. Cures and defects in SOF. (ex. of paid for land for 6 months).

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Lease or Option to purchase must be in writing

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In FL-Lease or option amendment must be SIGNED in "presence of TWO subscribing witnesses".

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Land Sales K-breach of k

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The standard measure of damages for breach of land sales K is the difference between the K price and yhe fair market value of tge land.

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Easemnts, Profits, covenants, Servitudes--nonposessory interests

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-In general easements, profits, covenants and servitude are "nonposessory interests in land that create a right to use land possessed by someone else".

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Easements

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-The holder of an easement has the right to use a tract of land called a "Serving Tenement" for a "special purpose" but has NO right to possess or enjoy the plot of land.

1. Affirmative- entitles holder to enter upon servient tenement and make "affirmative use" of it.
2. Negative- holder can compel owner to "refrain from engaging in activity" on servient tenement.

A. E Appurtenant- when right to use "benefits the holder of the easement" in his physical use or enjoyment of another tract of land.--Must be 2 tracts of land-Dominant tenement-has benefit of easement and Servient tenement-which is subject to the easement right. (Dominant tenement is the piece of land getting the benefit and Servient tenement is the land being used).

B. E in Gross- where holder acquires right of special use independent of ownership or posession of another tract of land.

CREATION of Easement:
1. express grant-MUST be in SOF writing.
2. Express reservation-grantor conveys title but reserves special use of easement for themself after conveyance.
3. implication-created by operation of law. (from existing use, recorded subdivision or plat, by necessity).
4. Prescription-like acquiring property by Adverse possession- 1) use must be open and notoriius 2) adverse and continuous 3) interrupted for statutory period (can be tacking).

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Seller liability for improvements

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1) misrepresentation or fraud-requires proof that seller made false statement of fact and buyer relied.
2) active cocealment-seller took steps to conceal defects in property
3) failure to disclose-Liable IF seller "knows or has reason to jnow" of defect; defect noy obvious or apparent, buyer unlikely to discover by ordinary inspection; defect serious and would probably cause buyer to reconsider if it were known.

FL SC : seller of real property has duty ti disclose facts materially affecting tge value of the property tgat are not readily observable or known to a purchaser.

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Contracts/property

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Rescission: Remedy-where is considered void and rescinded and parties are left as though K never made.
Grounds for rescission- 1) mutual mistake of material fact 2) unilateral mistake if other party knew or should have known 3) unilateral mistake if hardship by the mistaken party is so extreme it outweighs the parties expectations under the k 4) misrepresentation of fact or law by either party as to a material factor in the negotiations that was relied upon.


Commercial buyer-when sophisticated buyer of commercial property agrees to an "as is" purchase k, had ample opportunity to conduct inspections and could have discovered an alleged defect tgrough the exercise of ordinary diligence purchaser does not have a cause of action fir fraud.common law rule of buyer beware still applied to purchasers of commercial property.

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Land sale Qs always discuss:

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1) SOF rule, requirements and if not satisfied overcome w PART Performance or Estoppel. -ALWAYS discuss these 3.