Fl Property Final

Front 1

Easement Defined

Back 1

Easement is a right to use a tract of land owned by another for a special purpose without acquiring the right to posseess and enjoy that property

Front 2

Easement
how to obtain

Back 2

an easement may be greated by DIRECT GRANT or by IMPLICATION (without a written document, exception to the SOF)

Front 3

Easement
Quasi-Easemnt

Back 3

A quasi-easement is deemed to exist only if:
1. there use of the SERVIENT property existed at the time of the division of the property,
2. the use was necessary for the enjoyment of the dominent property,
3. and it is determined that the parties inteded to continue its use after the division of property

Front 4

Easement
Easement by necessity
common law

Back 4

arrises if:
1. a portion of the land is sold (there was intial unity of ownership)
2. severance of the tract causes one parcel to become landlocked
3. the is no reasonable way of entrance to or exit from the parcel

Front 5

Easement
FLORIDA statutory easements

Back 5

arrises if:
1. any land OUTSIDE of a municipality that is used for agricultural or dwelling purposes
2. is landlocked
3. leaving no reasonable route of entrance or exit

NO UNITY of title is required

The owner of the servient estate is entitled to compensation for the imposition of the easement

Front 6

Easement
Easement by Prescription

Back 6

1. open and notorious
2. adverse and hostile
3. continuous for the prescriptive period of TWENTY years
- THE USE need not be exclusive

- Tacking is permitted


- to establish abandonment must show no longer being used AND intent to relinquish the easement interest

Front 7

Negative Easements

Back 7

Restrictive covenants (giving the possessor a right to PREVENT a landowner from doing soemthing on landowner's property)

MUST BE IN WRITING

Front 8

Sale of servient land with burden

Back 8

When a servient parcel is transfered, its new owner takes it subject to the burden of any easement UNLESS she is a BFP without notice

Front 9

Types of Notice

Back 9

1. Actual - actually knowing

2. Inquiry - from the visable appearance of the easement (examine the property)

3. Constructive - the instrument was recorded

BURDEN is on the claimant to show knowledge on the new purchaser!!

Front 10

Easement Termination

Back 10

Easements are presumped to be of a perpetual duration, and the burden of the easement passes automatically with ther servient tenement.

Can be cut off by:
1. lack of recording (if other notices dont provide notice)

2. abandonment - needs to manifest by abandonment where the easement holder manifests through physical action an intention to permanently abandon the easement

- Estoppel

- prescription if not (20 years)

Front 11

Easment by reservation

Back 11

arrises whent he owner of the tract of land conveys ttitle, but reserves the right to continue to use the tract for a special purpose after the conveyance

Front 12

Easement in Gross

Back 12

Created when the holder of the easement interest acquires his right of special use in the servient tenement independent of ownership or possession of another parcel of land

Destroyed when
the parties to the original creation of an easement specifically set forth condition upon the happening of which the easement right will terminate

- PERSONABLE AND NOT TRANSFERABLE!!!

Front 13

Profit a prende

Back 13

an interest which allows the holder to endter upon the servient tenement and take soil or a substance of the soil.

same rules for an easement

Front 14

Covenant
Real Covenant

Back 14

a written promise NOT to do something on the land - restricts land use.
To enforce the burden of the covenant must run with the land

Front 15

Covenant
Real covenant requirements

Back 15

1. Covenant is in writing
2. parties intended that the successors be bound by the covenant

3. Horizontal privity exists between covenanting parties (shared some interest in the land independent of the covenant at the time it was created (landlord/tenant)

4. vertical privity between the covenanting party and any successor in interest
- if successor holds the entire duration interest in the land held by the covevanting party where the covenant was made.

5. Touches and concerns the land (makes it more useful or valuable)
- if it does not it is a personal covenant!!! does not run with the land!!!

6. Successor has NOTICE pursuint to florida recording statute

- REMEDY to enforce a covenant at law is the award of damages

Front 16

Equitable Servitude

Back 16

an equitable servitude is a convenant enfoced in equity against the assignees of the burdened land who have notice of the covenant.

Front 17

Equitable Servitute
Requirements

Back 17

MUST BE IN WRITING

To run with the land:
1. the covenanting parties must have had INTENDED that future assignees be bound
- look at purpose of agrmt.
- or surrounding cirucmstances
- or building scheme (common plan)

3. subsequent purchasers must have ACTUAL or CONSTRUCTIVE notice of the agreement

4. the agreement must touch and concern the land

- Remedy for violation is usually an injunction!!

Defenses to this
1. unclean hands
2. changed conditions

Front 18

Lease

Back 18

Lease is a contract for the possession of property in return for RENT

- leases for greater than 1 year must be in WRITING in the presence of 2 subscribing witnesses

Front 19

Tenancy for years

Back 19

Continues for a fixed peroid of TIME, expires at the end of slated peroid of time without either party giving NOTICE to the other

1. 1+ year = SOF

Front 20

Tenancy for years
Termination

Back 20

1. Non complaince - LL/T may terminate rental agreement for noncompliance if NOTICE of noncomplaince is provided. AFTER 7 days of notice of noncomplaince must provide written notice of termination

2. LEASE EXPIRATION
Florida does NOT permit the landlord to bind the tenant to new lease if T is a holdover

IF HOLDOVER is consented IN WRITING - a tenancy at will is created

OTHERWISE without written consent - Tenaancy at sufferance is created - DOUBLE RENT

Lease Notice requirement - up to 60 days may be required, failure may be subject to LIQUIDATED damages,

Front 21

Periodic tenancy

Back 21

Continues for successive peroids until terminated by proper NOTICE, automaticaly renewed until proper notice of termination is given

Front 22

Peroidic tenancy
Termination requirements

Back 22

EITHER party may give notice under the following
1. YEAR = not less than 60 days notice prior to end of annual peroid

2. QUARTER not less than 30 days prior to end of quarter period

3. MONTH not less than 15 days notice prior to end of monthly peroid

4. Week not less than 7 days notice prior to end of weekly period

Termination for material noncomplaince - must give notice by mailing or delivering true copy to T or leave at the residence

Front 23

Tenancy at Will

Back 23

Floa label used for leases not within the SOF (not in writing signed by the lessor)
Terminates at the will of either party,

Front 24

Tenancy at sufferance

Back 24

HOldover - tenant wrongfully remains in possession after expiration of lawful tenancy.

Lasts until LL files an ACTION FOR POSSESSION in the county court

NO SELF-HELP

Florida allows for double rent when LL is holdover

LL v. T = County
T v. LL = circuit

Commercial tenant is not bound to a new tenancy because mree payment and acceptance of rent is not construed to be renewel of the term

Front 25

Partial Eviction

Back 25

When landlord locks tenant out of a portion of the leased premises
- then tenant is thereby excused from payment of all rent until the entire property is restored to its completed use

Front 26

Constructive eviction

Back 26

Failure to comply with repair obligations, T must deliver written notice specifying noncomplaince THEN wait 7 days
1. the acts that caused the injury must be by the LL or by persons acting for him (neighbors / strangers will not suffice)

2. the resulting conditions must be very bad so the court can conclude that the premises is uninhabitable

3. The T must move out, thereby showing that the premises were uninhabitable
- FAILURE to vacacte within a reasonable time waives right to do so

Front 27

Landlord Duties (lease)
1. possession
2. repair
3. habitability

Back 27

1. ACTUAL POSSESSION -LL must deliver actual possession at the begining of the leasehold term. The LL is in breach if he has not evicted the holdover tenant by the beginning of the new tennant's terms.

T is entitled to offset damages (excess cost of living, costs of storing property)

2. Repair - LL has the obligation to make repairs(may be altered in the lease)
- T has a duty to maintain plumbing
- LL must be provided reasonable time to make repairs after providing reasonable notice.
CAN enter with consent, emergency, show it to prospective renters

3. Implied warranty of habitability - LL has a duty reasonably inspect and to maintain
- comply with building. healthcodes, windows, roofing, floors, etc.

Front 28

Tenant Duties
1. PAY RENT

Back 28

T must pay rent
Failure to pay rent - LL must deliver written notice, after 3 days LL may terimnate agreement

Waiver - LL acceptance of late rent, waives right to evict,

Front 29

Tenant Duty
2. Withold Rent

Back 29

T may withold rent if:
1. lease places duty on LL to repair and maintain

2. premises is rendered wholely untentable

3. T provides NOTICE of intent to withold rent

4. LL has 20 days to make repairs or maintenance

- after 20 days if LL fails to repair or maintain, time can be extended OR T can abandon retain amount witheld and terminate lease

HOWEVER T must pay LL amts of rent withheld after the LL has completed the repair and maintenance

Front 30

Tenant
ABANDONMENT

Back 30

LL has a STATUTORY right to resume possession if T abandons:
- presumed abandoned if T is absent from premises for period of time equal to 1/2 of the time for peroidic rent payments
NOT applicable if he pays rent

LL may:
1. Surrender (terminate all futher liability)
2. Ignore (holding T liable for rent coming due)

3. Relet (T is iable for all difference)

Front 31

Assignment

Back 31

Absent an express restriction in the lease, a T may freely transfer her leasehold interest in whole or part.

If a T transfers in VIOLATION of a prohibition in the lease agreement, the transfer is NOT void, However the LL usually may terminate the elase under either the lease terms or Statute. Alternatively he may sue for damages

Front 32

Sublease

Back 32

In a sublease the sublessee is considered the T of the original lessee, who in turn pays the rent to the LL under the main lease

THE SUBLESEE is NOT PERSONALLY LIABLE to the LL for rent

Front 33

Assignment

Back 33

To be an Assignment the assignee stands in the shoes of the original T in a direct relationship with the landlord and owes the rent directly to the LL (but only for the period from the time of assignment). After assignemtn the orginial lesee is no longer in privity of estate with the LL. However if the T promised to pay rent in the lease with the LL she can still be held liable on her original K obligation to pay

Front 34

Rent Deposit

Back 34

Upon T's vacating after lease termination
LL has 15 days to return security deposit together with interest or

30 days to give T written notice by certified mail of his intention to impose a claim on the deposit and reason for doing so. Failure to give the required notice within 30 days peroid forfeits any right to impose a claim on the deposit

- If T doesnt object within 15 days of receiving notice, LL can deduct the claim amount from the deposit and return the balance within 30 days

Front 35

OPTION to buy land

Back 35

In Fla. an option to purchase is an irrevocable offer in effect for a specified period of time which much be supported by consideration, specify a time w/in whcih the option may be exercised, and identify with particularity the property and price to be paid.

Front 36

Adverse possession

Back 36

Posession must be
1. continuous and uninterupted
2. for the statutory period of 7 years
3. open and notorious
4. actual and hostile

Front 37

Adverse possession
Without color of title

Back 37

Possessor must within 1 year after taking possession, have made return of the property by proper legal description to the county appraisers office and have paid each year PROPERTY TAXES to the local municipality.

MUST be SUBSTANTIALLY ENCLOSED or usually cultivated or improoved

Front 38

Adverse possession
WITH color of title

Back 38

requires a written instrument or a judgement decree that must adequately describe the property and be properly recorded in the official county records

Then it must be usually cultivated/improved, protected by substnatial enclosure, used for the supply of fuel or fencing timber, or ordinary use of occupant, partially improved if there part is of a known or single farm

Front 39

Florida
LIEN THEORY

Back 39

lender (mortgagee) places a "lien" on the mortgaged real property while the borrower retains both "equitable" and "legal" title.

THEREFORE no possession of mortgage before foreclosure

NO right of redemption AFTER foreclosure sale

Permits deficiency judgments except if original mortgagee is purchaser

Front 40

Purchase and Sale Agreement
Requirements

Back 40

General K principles apply and require
1. mutual assent (offer + acceptance)
2. consideration (or substitute)
3. no defenses to the contract
4. SOF - essential terms
a. description of the property
b. identification of the parties
c. price
d. signature of ALL the parties to be charged

FLA STATUTE requires - signed in the presense of 2 subscribing witnesseses

FAILURE = equitable conversion

Front 41

Purchase and Sale Agreement
Sellers Liability

Back 41

1. duty, failure to disclose - seller of new or used real proeprty has an affirmative duty to disclose IF:
- seller knew or had reason to know of a material defect that is not obvious or apparent because buyer is not likely to discover by ordinary inspection

2. Affirmative LIE: Buyer is not required to investigate sellers statements to determine whether they are misrepentations unless falcity is known or obvious

3. Active concealment

Front 42

Purchase and Sale Agreement
Deed

Back 42

1. COmply with SOF
a. identify parties
b. signed by grantor
c. legal description

2. evidence of intent to transfer property (granted, bargained, sold)

3. Fla requires attestation in the presense of 2 subscribing witnesses and identification of who the deed was prepared by

Front 43

Purchase and Sale Agreement
Marketable Title

Back 43

There is an implied warranty in every land sale K at closing that S will provide the B with title that is marketable (REASONABLY FREE from doubt or unreasonable risk of litigation)

If title is NOT marketable B can rescind,
- sue for damages because of breach,
-request specific performance with abatement in price
- or require seller to quiet title

Front 44

Florida
PURE NOTICE STATE

Back 44

protecing a BFP who pays value with no actual or record notice of a prior conveyance.
- inquiry is based on case law

BURDEN on provingactual notice is on the claimaint under the unrecorded instrument

Front 45

BFP

Back 45

purchaser who made a purchase in good faith for valuable consideration and without notice

Front 46

PROPERTY Remedies
Equitable conversion

Back 46

1. specific performance
2. damages
3. recission - restitution

Front 47

Concurrent estates
FLORIDA PRESUMPTION

Back 47

Florida presumes a TIC is created unless otherwise specified or unless the conveyance is to H+W, in which case a TBE is created.

For JT - needs express language saying "with right of survivorship"

Front 48

Joint tenancy
Severance

Back 48

1. Termination by inter vivos conveyance
2. judgment lien execution/foreclosure
3. NOT mortgage (lien theory)
4. purchase and sale agreement enforceble in equity

Front 49

Tenancy in common
Duties

Back 49

each is entitled to possession of the whole
1. profits - co-tenants in possession have right ot retain profits from her own use, must share in rents from 3rd parties and net profits from expliotations of land
2. ENcumbrances - JT or TIC - may encumber her interest but not interest of co-tenants
3. Repair - co-tenant who pays more than her pro rata share of necessary repair is entitled to contribution provided she notified the OTHER of the need

Improvements - NO right of contribution

Taxes/mortgage - contribution can be demanded however reimbursement to a co-tenant in sole possession is limited to the extent that the expenditures exceed the rental value of use

Front 50

Florida
Rule in Shellys case

Back 50

ABOLISHED instead
Life estate and the heirs
get a REMAINDER per stirpes!!!

Front 51

Florida Equitable Conversion

Back 51

Once the contract is signed equity regards the purchaser as the owner of real property. The seller's interest which consists of the right to the proceeds of the sale is considered personal property. The bare legal title that remains in the selelr is consdiered to be held in trust for the purchaser as security for the debt owed to the seller

Front 52

Eminent Domain

Back 52

the 5th amendment prohibits the taking of private property without jsutification. this prohibition is applied to the states through the 14th
- COURTS balance the social goals sought to be promoted, the dimunition in value to the owner and the owner's reasonable expectation regarding use of property.

Taking ONLY if it unjustly reduces the economic value of the property

QUestion of law for the judge

Front 53

Nuisance

Back 53

Private nuisansce is a substantial interference with a private individuals use or enjoyment of the land. To be characterized as a unreasonable intereference the severity of the inflicted injury must outweigh the utility of the denfendants conduct

Front 54

QUIET TITLE

Back 54

action to determine who owns the property!!!