Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
44 Cards in this Set
- Front
- Back
Nature of Leaseholds - Generally
|
a leasehold is an estate in land, under which the tenant has a present possessory interest in the leased premises and teh landlord has a future interest (eg reversion)
|
|
Nature of Leaseholds - Tenancy for Years
|
this is a tenancy that runs for a specified time (12 months, 5 years)
UNLESS the period is less than a year, the least MUST be in writing to be enforceable under the SoF the lease terminates automatically at the end of the lease term |
|
Nature of Leaseholds - Periodic Tenancy
|
a periodic tenancy continues on successive periods (month-to-month, year-to-year)
notice of termination must be given to end the lease or the lease will automatically be renewed if the tenancy period is year-to-year or longer, at least 6 months' notice must be given if the tenancy is shorter, then notice must be given one period in advance |
|
Nature of Leaseholds - Tenancy at Will
|
these are tenancies that can be terminated by either the landlord or the tenant at any time
they also terminate when: (1) either party dies (2) the landlord transfers his interest (3) the tenant attempts to transfer his interest, etc |
|
Nature of Leaseholds - Tenancy at Sufference
|
a tenancy at sufference arises when a tenant wrongfully remains in possession after the expiration of a lawful tenancy
it lasts only until the landlord takes steps to evict the tenant no notice of termination is required |
|
Nature of Leaseholds - Hold-over Doctrine
|
if a tenant continues in possession after the lease terms ends, the landlord may either evict the tenant or bind the tenant to a new periodic tenancy
if the landlord notified the tenant before the end of the lease that the new lease would be at a higher rent, the tenant will be held to the new term at the higher level |
|
Landlord and Tenant - Lease Agreements
|
a lease is a contract containing the promises of the parties
in FL, leases are governed by general contract principles of good faith and commercial reasonableness one established contract principal is that a party's good-faith cooperation is an implied condition precedent to performance of a contract |
|
Landlord and Tenant - Duty to Deliver Possession
|
the landlord has a duty to put the tenant in actual possession of the premises at the beginning of the leasehold term
the landlord is in breach if he hasnt evicted a hold-over tenant by the beginning of the new tenants term FL recognizes the lessor's duty to deliver physical possession of the premises, and if the lessor fails to do so, the lessee may maintain an action for breach of an express or implied convenant |
|
Landlord and Tenant - Implied Warranty of Habitability
|
in FL, a landlord has a duty to reasonably inspect the premises for habitability and to maintain residential premises
under a residential lease, the landlord MUST: (1) comply with building, housing and health codes, OR (2) where there are no applicable codes, maintain the roods, windows, screens, doors, floors, steps, porches, exterior walls, foundations, and all other structural components in good repair |
|
Landlord and Tenant - Failure to Comply with Repair Obligations
|
(1) the tenant must give the landlord written notice specifying the noncompliance
(2) after 7 days of noncompliance with the letter, the tenant may: (a) move out and terminate the lease (constructive eviction) (b) make repairs directly and offset the cost against future rent obligations (c) reduce or abate rent to an amount equal to the FMV in view of the defects in the property (d) remain in possession, pay full rent, and seek damages against the landlord |
|
Landlord and Tenant - Tenant's Duty to Repair
|
the tenant has NO DUTY to make repairs, with the exeption that plumbing in a residence under a residential lease must be kept in repair
the landlord's obligation to make repairs under a residential lease, however, may be altered or modified in a lease involving a single-family dwelling or a duplex |
|
Landlord and Tenant - Habitability Requirement
|
if the landlord does something that renders the property uninhabitable, the tenant may terminate the lease and seek damages under the theory of constructive eviction
|
|
Landlord and Tenant - Constructive Eviction
|
the following conditions must be met:
(1) the acts that cause the injury must be the result of the landlord's actions (not a neighbor's or other 3rd party's) (2) the resulting conditions must be very bad, so that the court can conclude that the premises are uninhabitable, AND (3) the tenant must vacate the premises within a reasonable time...if the tenant doesnt vacate within a reasonable time, she has waived the right to do so |
|
Landlord and Tenant - Landlord Remedies
|
if a tenant stops paying rent, the landlord generally cannot resort to self-hlep (the landlord cannot change the locks or enter the premises and take something of value to pay the rents due)
instead, the landlord can file a forcible entry and detainer action in court |
|
Landlord and Tenant - Landlord Remedies - Eviction
|
actual eviction occurs when the landlord or a paramount title holder excludes the tenant from the entire lease premises
actual eviction terminates the tenant's obligation to pay rent |
|
Landlord and Tenant - Landlord Remedies - Ejectment
|
ejectment is the legal remedy that landlords can sometimes use to remove a person from wrongfully occupying the property
|
|
Landlord and Tenant - Assignment/Sublease - Generally
|
absent an express restriction in the lease, a tenant may freely transfer her leasehold interest in whole or in part
if a tenant transfers (assigns or sublets) in violation of a prohibition in the lease agsinst transfers, the transfer is NOT void, but the landlord usually may terminate the lease under either the lease terms or a statute |
|
Landlord and Tenant - Sublease - Process/Parties
|
in a sublease, the sublessee is consideredthe tenant of the original lessee, and usually pays rent directly to the original lessee, who in turn pays rent to the landlord under the main lease
the sublessee isnt personally liable to the landlord for rent |
|
Landlord and Tenant - Assignment - Process/Parties
|
to be an assignment, the transfer must eb for the entire remaining term, and on the same terms as the original lease EXCEPT that the tenant may reserve a right of termination (reentry) for breach of teh terms of the original lease that has been assigned
if the transfer is an assigment, the assignee stands in the shows of the original tenant in a direct relationship with the landlord and owes the rent directly to the landlord (but only for the period from the time of the assignment) after the assignment, the original lessee is no longer in privity of estate with the landlord however, if the tenant promised to pay rent in the lease with the landlord, she still can be held liable on the original contractual obligation to pay |
|
Landlord and Tenant - Security Deposit - Generally
|
in FL, the landlord, upon the tenant vacating the premises after termination of the lease, has 15 days to either return the security deposit or five the tenant written notice of his intention to impose a claim on the deposity
the tenant then has 15 days to object to the landlord's claim |
|
Landlord and Tenant - Security Deposit - Vacating/Abandoning
|
except when otehrwise provided by the terms of the written lease, any tenant who vacates or abandons the premises prior to the expiration of the term specified in teh written lease must give at least 7 days' written notice by certified mail or personal delivery to the landlord prior to vacatin or abandoning the premises
failure to give such notice relieces the landlord of teh notice requirement regarding the security deposit, but it doesnt waive any right the tenant may have to the security deposit or any part of it |
|
Easements - Definitions
|
an easement is a nonpossessory interest to use land possessed by aother or to restrict the use of another's land
|
|
Easements - Affirmative vs. Negative
|
AFFIRMATIVE - allows the holder to enter onto the servient tenement and make an affirmative use of it
NEGATIVE - prevents the owner of the servient tenement from engaging in specified activity on the servient tenement |
|
Easements - Appurtenant or In-Gross
|
APPURTENANT - benefits the easement holder in the use of his land (an easement to use a driveway across a neighbor's land), AND it runs with the holder's land
requires two tracts of land: (1) dominant tenement (the estate benefited by the easement) and (2) servient tenement (the easement subject to the easement right) IN GROSS - acquires a right to use the servient tenement independent of his possession of another tract of land (the easement benefits the holder rather than another parcel) FL courts have apparently refused to limit the rule that easements in gross are not transferable, even where the easement in gross is for strictly commercial purposes...easements in gross are considered personal to the original holder |
|
Easements - Easements by Implication - Generally
|
an easement by implication is created by operation of law
it is an exception to the SoF generally, there are 2 types of easements by implication: (1) easement implied from existing use (easement by estoppel) and (2) easement by necessity |
|
Easements - Easement by Necessity
|
FL recognizes the common law rule of an implied grant of way of necessity
such an implied grant or easement exists where there is no other reasonable way of entrance or exit and the easement is reasonably necessary for the beneficial use or enjoyment of the part granted or reserved an implied grant arises only where a unity of title exists form a common source |
|
Easements - Statutory Easement of Necessity
|
based on public policy, convenience and necessity, a statutory easement exists under FL law 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
the statutory easement of necessity arises regardless of whether a unity of title exists from a common source |
|
Easements - Easement by Prescription
|
an easement can arise through prescription if the easement holder has used the easement for a sufficient time, the use was open and notorious, the use was adverse (without the owner's permission), adn the use was continuous
the common law 20-year limitation period is applicable to easements |
|
Easements - Scope
|
unless the deed creating the easement provides otherwise, it is presumed that the easement is intended to meet reasonable future needs of the dominant tenement holder (if the easement was to drive a tractor across the land and tractors used to be 6-feet wide, but have been replaced by 12-foot combines, the easement will expand to 12-feet wide)
|
|
Covenants - Real Covenants
|
a real covenant, normally found in a deed, is a written promise to do something on the land (maintain a fence) or a promise not to do something on the land (not build a multifamily dwelling)
real covenants RUN with the land, which means that subsequent owners may enforce or be burdened by the covenants |
|
Equitable Servitudes - Generally
|
an equitable servitude is a covenant that, regardless of whether it runs with the land, equity will enforce against the assignee of the burdened land who has notice of the covenant
the usual remedy is an injunction |
|
Equitable Servitudes - Creation
|
while the most satisfactory manner to create an equitable servitude is by language in a deed, an equiatable servitude may also be created by oral representations or a court may imply a covenant, a reciprocal negative servitude, by using the "general scheme doctrine"
|
|
Equitable Servitudes - Compared to Real Covenants
|
remedy is the main distinction
if money damages are sought, you should use the real covenant analysis if a party seeks an injunction, consider whetehr the requirements for enforcement as an equitable servitude have been met |
|
License - Generally
|
licenses privileges their holders to go upon the land of another
but UNLIKE an easement, a license isnt an interest in land...it is merely a privilege, revocable at the will of the licensor a license is personal to the licensee and, thus, inalienable...any attempt to transfer a license results in revocation by operation of law a failed attempt to create an easement results in a license |
|
Conveyancing - Deeds
|
deeds transfer title to an interest in real proeprty
a deed must be in writing, be signed by the grantor, and reasonably identify the parties and land FL statutes provide that real estate may be conveyed only by a written instrument signed in the presence of 2 subscribing witnesses...this requirement applies to all conveyances by any type of instrument of any interest greater than one year |
|
Conveyancing - Equitable Conversion
|
under this doctrine, once a contract is signed, equity regards the buyer as the owner of the real property
if the property is destroyed (without fault of either party) before closing, FL adheres to the majority rule in putting the risk of loss on the buyer even though the risk of loss is on the buyer, if the property is damaged or destroyed, the seller must credit any fire or casualty insurance proceeds he receives against the purchase price the buyer is required to pay |
|
Conveyancing - Marketable Title
|
every contract in FL contains an implied warranty that the seller will provide marketable title (title reasonably free from doubt) at closing
it need not be perfect title, but it must be free of questions that present unreasonable risk of litigation title may be unmarketable because of a defect in the chain of title (variation in land description in deeds, defectively executed deed, evidence that a prior grantor lacked capacity to convey) |
|
Conveyancing - Recording Statutes - Generally
|
FL has a PURE notice recording act
under this type of recording act, subsequent bona fide purchaser prevails over a prior grantee who failed to record the order of recording after the subsequent purchaser is irrelevant |
|
Conveyancing - Recording Statutes - Bona Fide Purchaser
|
the subequent party msut give value and have no actual or constructive notice of the prior conveyance at the time of her transaction
|
|
Conveyancing - Recording Statutes - Presumption
|
there is a presumption of lack of notice of an unrecorded instrument by a person subsequently acquiring an interest in the property
the burden of proving actual notice is on the claimant under the unrecorded instrument |
|
Duties of Sellers of Land - Generally
|
a seller of existing land and buildings may be liable to the purchaser for defect in the improvements on any of several theories:
(1) failure to disclose (2) active concealment (3) misrepresentation or fraud |
|
Duties of Sellers of Land - Failure to Disclose
|
under this theory, a seller may be held liable for failure to disclose defects IF:
(1) the seller knows or has reason to know of the defect (2) the defect isnt obvious or apparent and the seller realized that the buyer is unlikely to discover it by ordinary inspection, AND (3) the defect is serious, and would probably cause the buyer to reconsider the purchase if it were known |
|
Duties of Sellers of Land - Active Concealment
|
this theory states that the seller is liable if the seller took steps to conceal a defect in the property
|
|
Duties of Sellers of Land - Misrepresentation or Fraud
|
this theory requires proof that the seller made a false statement of fact to the buyer, that the buyer relied on the statement, and tehat it materially affected the value of the property
the seller must either have known that the statement was false, or have made it negligently |