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27 Cards in this Set
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FLORIDA REAL PROPERTY
Leasehold Estates LANDLORD & TENANT Florida Bar Exam - February 2012 |
FLORIDA REAL PROPERTY
E5 // FLP F12 LANDLORD & TENANT [P1] Property // LL-T |
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[Landlord/Tenant]
What are the leasehold estates in Florida? (4) |
[LEASEHOLD: A leasehold is an estate in land, under which the tenant has a present possessory interest in the leased premises and the landlord has a future interest (e.g., reversion).]
Under Florida law, there are four (4) kinds of leasehold estates: YPWS [1] Tenancy for YEARS [2] PERIODIC Tenancy [3] Tenancy at WILL [4] Tenancy at SUFFERENCE |
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[Landlord/Tenant]
What is a Lease Agreements? |
A lease is a CONTRACT for an interest in land containing the PROMISES of the parties (Landlord and Tenant).
If LEASE is for a YEAR or longer, the Lease Agreement must be in writing, signed by the party to be charged, and, in Florida, the party must sign in the presence of 2 subscribing witness, in order to satisfy the SOF. |
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Tenancy for Years:
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A Tenancy-for-Years is one that runs for specified time (e.g. 12 months, five years).
Unless the period is less than a year, the lease must be in writing to be enforceable under the Statute of Frauds. Terminates at the end of the specified time w/o notice having to be given by the LL or T. FL Statute: Lease agreement can require T give LL up to 60 days notice prior to vacating the premises at the expiration of the tenancy. LL must give T 15 days written notice in advance of the 60 days before the expiration of the tenancy. If T doesn't at least give LL 15 days written notice that he'll be vacating at end of the lease and LL give permission to stay, then T will be liable for rent for the next month. |
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Periodic Tenancy:
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A periodic tenancy continues on successive periods (e.g. month-to-month, year-to-year).
Notice of termination must be given to end the lease or the lease will automatically be renewed. For residential leases, FL has adopted the URLTA which establishes the notice and termination requirements for residential periodic tenancies. Either party may terminate a residential period tenancy by giving written notice in accordance with the following time frames: Yr-to-Yr: Not < 60 days notice prior to end of any annual period. Qtr-to-Qtr: Not < 30 days notice prior to end of any quarterly period. Mo-to-Mo: Not < 15 days notice prior to end of any monthly period. Wk-to-Wk: Not < 7 days notice prior to end of any weekly period. (Note: For nonresidential leases, FL makes no distinction between a Periodic Tenancy and a Tenancy at Will.) |
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Tenancy at Will:
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A Tenancy@Will is one that can be terminated by either the landlord or the tenant at any time.
Tenancy@Will is also used for all leases that are not in writing signed by the LL. For nonresidential leases, FL makes no distinction between a Periodic Tenancy and a Tenancy at Will. FL statute provides that either party may terminate a tenacy at will or nonresidential lease by giving notic in accordance with the following time frames, depending periods at which rent is due: Yr-to-Yr: Not < 3 months notice prior to end of any annual period. Qtr-to-Qtr: Not < 45 days notice prior to end of any quarterly period. Mo-to-Mo: Not < 15 days notice prior to end of any monthly period. Wk-to-Wk: Not < 7 days notice prior to end of any weekly period. A Tenancy@Will will also terminate when either party dies, the landlord transfers the interest, the tenant attempt to transfer his interest, etc. |
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Tenancy at Sufferance:
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A tenancy at sufferance arises when a tenant wrongfully remains in possession after the expiration of a lawful tenancy.
Holding over without the written consent of the LL results in the creation of a Tenancy at Sufferance. NO notice of termination required. It only lasts until the landlord takes steps to evict the tenant. No "self-help" allowed. LL must file action for possession in county court to remove the holdover-T from the property. If LL does not give T written permission to holdover, and LL does not accept further rent payments from T, then LL may (because FL considers such a T is a wrongdoer) be able to recover double the amount of the rent due while T held-over. |
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Hold-Over Doctrine:
If a tenant continues in possession after the lease term ends, and the LL chooses NOT to accept further rent payments from T, the LL may: (2 Options) |
LL has 2 options with regard to a Holdover T:
(i) EVICT the T (File an "Action for Possession" in County Court), or (ii) Recover 2x RENT for the time the T held-over. - FL does not permit the LL to bind a holdover-T to a new periodic tenancy. - Nor does FL does not permit the LL to engage in "self-help" methods to remove the holdover T |
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Hold-Over Doctrine:
What if the LL chooses to ACCEPT rent payments and bind the hold-over T to a new periodic tenancy and raises the rent? |
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 rent. If not the hold-over T will pay rent at the previous (lower) rent amount.
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Principles of LL-T Law:
In Florida, leases are governed by what general CONTRACT principle? |
In Florida, leases are governed by the general K principles of good faith and commercial reasonableness.
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Principles of LL-T Law:
In Florida, one established K principle is that _ ______ ____ _____ ___________ is an _______ _________ _________ to performance of a K. |
In Florida, one established K principle is that a party's good faith cooperation is an implied condition precedent to performance of a contract.
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LL Duty to Deliver Possession:
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Florida recognizes the lessor/LL's DUTY TO DELIVER PHYSICAL (actual) POSSESSION of the premises at the beginning of the leasehold term.
The LL is in BREACH if he hasn't evicted a hold-over T by the beginning of the new T's leasehold term. T's (lessee) Remedy for LL's Breach: (i) If the lessor fails to deliver possession, the Lessee (T) may maintain an action for BREACH of an EXPRESS or IMPLIED COVENANT. (ii) If LL fails to deliver physical possession to T, T will not be liable for rent during that period in which she did have actual possession. (iii) T may be able to terminate the lease based on LL's breach of the duty to deliver possession to T. (iv) However, if T waives the right to terminate by taking possession and moving in, T will be liable for subsequent periods of rent, but would be entitled to off-set any damage she incurred as a result of the LL's failure to deliver timely possession. T's Damages = Excess of the cost of a place to live over the rent amount per month she would have paid, cost of storing property for an additional time, etc. |
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LL Duty of Habitability:
(Implied Warranty of Habitability) |
IMPLIED WARRANTY OF HABITABILITY:
In FL, a LL has a DUTY to reasonably INSPECT the premises for HABITABILITY and to MAINTAIN residential PREMISES. Under a residential lease, a LL must: (i) COMPLY with all CODES (building, housing, and health); or (ii) Where there are no applicable codes, MAINTAIN STRUCTURAL COMPONENTS (roofs, windows, screens, doors, floors, steps, porches, exterior walls, foundations, and all other structural components) in good repair. |
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LL Duty to Repair:
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In FL, under a residential lease, a LL has a DUTY to MAKE all REPAIRS. The T has NO duty to make repairs, with the exception that the plumbing in a residence under a residential lease must be kept in repair.
If the residential LL fails to comply with his repair obligations then the T must give the LL written notice specifying the noncompliance. The LL then has 7 days to comply. If the LL fails to comply with T's written notice within 7 days, then the T may either: MMRR (i) MOVE OUT & TERMINATE the lease (e.g., constructive evection); OR (ii) MAKE REPAIRS directly and off-set the cost against future rent obligation; OR (iii) REDUCE or ABATE the amount equal to the FRV in view of the defects in the property; OR (iv) REMAIN in POSSESSION, pay full rent, and seek damages against the LL. |
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LL Duty to Repair:
In FL, can the LL's duty to make repairs be altered or modified in the lease agreement? |
The LL's obligation to make repairs under the residential lease MAY be altered or modified- But ONLY in a lease involving a 1 FAMILY DWELLING or a DUPLEX, not in leases involving units a multi-family dwelling.
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CONSTRUCTIVE EVICTION:
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If the landlord does something that renders the property UNINHABITABLE, the T may TERMINATE the lease and SEEK DAMAGES under the THEORY of CONSTRUCTIVE EVICTION.
BUT before the T can terminate the lease and seek damages under the theory of constructive eviction, the following 3 CONDITIONS MUST BE MET: "L.A. VeryBad. Vaca." (i) The acts that caused the injury must be the result of the LL's ACTIONS (not a neighbor or a 3P); (ii) The resulting CONDITIONS MUST BE VERY BAD, so that the court can conclude that the premises are uninhabitable; and (iii) T MUST VACATE the premises within a reasonable time after giving notice. IF T DOES NOT VACATE within a reasonable time, she has WAIVED the right to do so. |
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LL Remedies:
If a T stops paying rent, what is the LL's remedy? |
If FL, if the T stops paying rent the LL the can file a FORCIBLE ENTRY AND DETAINER action (action for possession) in COUNTY court.
But the LL is not permitted to engage in "self-help." (e.g., the landlord cannot change the locks or enter the premises and take something of value to pay the rent due). |
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Security Deposit:
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In Florida, upon the T vacating the premises after termination of the lease, the LL has 15 days to either: (a) return the security deposit, or (b) give the tenant written notice of intention to impose a claim in the deposit.
If the LL gives T written notice of his intention to impose a claim on the deposit, the tenant then has 15 days to object to the landlord's claim. Except when otherwise provided by the terms of the written lease, any T who vacates or abandons the premises prior to the expiration of the term specified in the lease must give 7 days' written notice by certified mail or personal delivery to the LL prior to vacating or abandoning the premises. -Failure to to give such notice does relieve the LL from the notice requirement regarding the security deposit, but it does not waive any right that the T may have to the security deposit or any part of it. |
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LL Duty to Mitigate Damages:
If the T is in breach of the lease agreement (K), and the LL obtains a writ of possession, the LL may: (3) |
If the T breaches a lease for a dwelling unit and the LL obtains a writ of possession, the LL may: (3)
(1) RETAKE possession for HIS OWN ACCOUNT (i.e., treat the lease as TERMINATED) and thereby terminating any further liability of the T; (2) RETAKE possession for the ACCOUNT OF T, holding T LIABLE for the DIFFERENCE b/t rent to be paid under the lease agreement and what, in GF, the LL is able to recover from a re-letting; OR (3) DO NOTHING, and stand-by, holding the T liable for the rent as it comes due. Note: If the LL chooses option #2 and retakes possession for the account of the T, the LL has a DUTY to exercise GF in attempting to re-let the premises, and any rent received by the LL as a result of the re-letting will be deducted from the balance of rent due from the T. [Essay Issue: LL is seeking to recover for breach of K (i.e., the lease agreement) because T has failed to comply with his duty to pay rent. LL must obtain a WoP by filing an AfP in CoCt, then the LL may RE RE DO.] |
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Eviction:
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ACTUAL EVICTION occurs when the LL (or a paramount title holder) EXCLUDES the T from the ENTIRE lease premise. Actual eviction TERMINATES T's OBLIGATION to pay rent.
Partial Eviction: Occurs when LL excludes T from a portion of the leased premises. T is excused from payment of all rent until the entire property is restored to complete use. |
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Ejectment:
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EJECTMENT is the legal remedy LL can sometimes use to REMOVE A PRESON WRONGFULLY OCCUPYING the property.
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Assignment/Sublease:
(Generally) |
T may FREELY TRANSFER her leasehold interest in whole or in part, absent an express restriction in the lease.
If a T transfers (i.e., assigns or sublets) in violation of a prohibition in the lease against transfers, the TRANSFER IS NOT VOID. However, the LL usually MAY TERMINATE the lease under either the LEASE TERMS or a STATUTE. |
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Assignment/Sublease: Is a sublessee personally liable to the LL for rent?
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In a SUBLEASE, the Sublessee is CONSIDERED THE T OF THE ORIGINAL LESSEE/T, and usually pays rent directly to the original lessee/T, who in turn pays rent to the LL under the main lease. *The sublessee is NOT personally liable to the LL for rent.
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Assignment/Sublease: What would constitute an assignment, rather than a sublease?
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To be an ASSIGNMENT, the transfer must be for the ENTIRE TIME remaining on the lease, and on the SAME TERMS as the original lease, except that the original T may reserve the Right of Termination (Reentry) for breach of the terms of the original lease that has been assigned.
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Assignment/Sublease: If the transfer is an assignment, what is the assignee's relationship with the LL?
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If the transfer is an ASSIGNMENT, (as opposed to a sublease), the assignee "stands in the shoes" of the original T in a DIRECT RELATIONSHIP with the LL and OWES RENT DIRECTLY to LL (but only for the period from the time of the assignment).
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Assignment/Sublease:
If a LL-T relationship exists b/t the parties (i.e., if there was an ASSIGNMENT), LL may remove T (assignee) only through an action for _______ filed in county court. ....But if a LL-T relationship does not exist between the parties (i.e., if there was a SUBLEASE), LL may remove the T (subleasee) through an action for _______. |
If a LL-T relationship DOES exists b/t the parties (i.e., if there was an ASSIGNMENT), LL may remove T (assignee) only through an action for POSSESSION filed in county court.
....But if a LL-T relationship DOES NOT exist between the parties (i.e., if there was a SUBLEASE), LL may remove the T (subleasee) through an action for EJECTMENT |
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Assignment/Sublease:
After the assignment, the original lessee is no longer in privity of _______ with the landlord. However, if the tenant promised to pay rent in the lease with the landlord, she can still be held liable on _______________. |
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 can still be held liable on the original CONTRACT obligation to pay (i.e., LL & T are still in privity of K).
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