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44 Cards in this Set

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  • 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 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