FL Property Flashcards

Question

Landlord Duties: | Implied warranty of Habitability

Answer 1

2) Implied warranty of Habitability: (only for residential leases) (feb 2005) • In Florida, 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, (2) maintain roofs, windows, doors, floors and all other structural components in good repair. * In Florida, a Statute of Warranty of Habitability extends duties on the Landlord that include extermination; locks and keys; clean and safe common areas; garbage removal; and heat, running water, and hot water. Also repairs to structure. * Habitability includes basics such as running water, plumbing, heat in the winter, etc. • If the Landlord does not comply with his repair obligations:  the tenant must give the landlord written notice and if the landlord fails to comply within 7 days, the tenant may: (1) Move out and terminate the lease; (2) withhold rent; (3) make repairs and withhold rent in escrow until court makes determination; (4) pay full rent and seek damages.  In Florida, Tenant has no duties to make repairs.  In Florida, the LL’s obligation to make repairs in a residential lease may be altered or modified by agreement ONLY IF the premises is a SINGLE FAMILY DWELLING OR DUPLEX.

Answer 2

In Florida, 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, (2) maintain roofs, windows, doors, floors and all other structural components in good repair.

Answer 3

• In Florida, a Statute of Warranty of Habitability extends duties on the Landlord that include extermination; locks and keys; clean and safe common areas; garbage removal; and heat, running water, and hot water. Also repairs to structure.

Answer 4

The tenant must give the landlord written notice and if the landlord fails to comply within 7 days, the tenant may: MR3 (1) MOVE out and terminate the lease; (but NOT required) (2) REDUCE or withhold rent until court has assessed fair rental value in lieu of the defect (3) make REPAIRS and withhold rent in escrow until court makes determination; (4) REMAIN, pay full rent and seek damages.  In Florida, Tenant has no duties to make repairs.  In Florida, the LL’s obligation to make repairs in a residential lease may be altered or modified by agreement ONLY IF the premises is a SINGLE FAMILY DWELLING OR DUPLEX.

Answer 5

• Every lease has an implied covenant that neither the landlord nor a paramount title holder will interfere with the tenant’s quiet enjoyment and possession of the premises. May be breached by:  actual eviction- LL, paramount title holder, or holdover tenant excludes T from entire leased premises. Relieves T’s duty to pay rent.  partial eviction - T is physically excluded from only part of the leased premises. Does not relieve t’s duty to pay rent; simply can apportion rent. • Constructive eviction happens when: (SING) (feb 2005)  Landlords breach of duty renders the premises unsuitable for occupancy. T must prove: (1) Substantial Interference -A chronic or permanent problem attributable to Landlords actions or failure (not neighbors or stranger’s actions). (2) Notice - Tenant must give L notice of the problem and a reasonable time to repair (3) Goodbye - Tenant MUST vacate the premises within a reasonable time after L fails to fix the problem, if not she waives this right.

Answer 6

Every lease has an implied covenant that neither the landlord nor a paramount title holder will interfere with the tenant’s quiet enjoyment and possession of the premises. May be breached by wrongful eviction: actual eviction- LL, paramount title holder, or holdover tenant excludes T from entire leased premises. Relieves T’s duty to pay rent. partial eviction - T is physically excluded from only part of the leased premises. Does not relieve t’s duty to pay rent; simply can apportion rent.

Answer 7

Landlord's breach of duty renders the premises unsuitable for occupancy. T must prove: (1) Substantial Interference  A chronic or permanent problem attributable to Landlords actions or failure (not neighbors or stranger’s actions). (i.e. flooding inside when it rains) (2) Notice  Tenant must give L notice of the problem and a reasonable time to repair (3) Goodbye  Tenant MUST VACATE the premises within a reasonable time after L fails to fix the problem, if not she waives this right.

Answer 8

By wrongful eviction or constructive eviction

Answer 9

NO 2 Exceptions: L must NOT allow nuisance on site and must control common areas

Answer 10

Implied Warranty of Habitability - need not move out Covenant of Quiet Enjoyment - MUST move out

Answer 11

Upon tenant vacating the premise after termination of lease, LL has 15 days to return the security deposit or 30 days to notify tenant of his intention to impose a claim on the deposit. o Tenant has 15 days to object. o Landlord may be relieved from this notice requirement when tenant does not give the require notice prior to vacating the premises and any amount owed by tenant will be reduced by the amount of the security deposit.

Answer 12

 Absent an express restriction in the lease, a tenant may freely transfer her leasehold interest in whole or in part.  If the tenant transfers in violation of a prohibition in the lease, the transfer is not void. • However, the landlord usually may terminate the lease or sue for damages.  Sublease: the tenant transfers less of the entire interest • The sublessee is considered the tenant of the original lessee, and pays rent to the original lessee, who in turn pays rent to the landlord. • Sublessee is not personally liable to the landlord for rent.  Assignment: The transfer must be for the entire remaining term. • The assignee stands in the shoes of the original tenant and owes the rent directly to the landlord. The original lessee is no longer in privity of estate with the landlord, but the landlord could still recover from original tenant though privity of contract.

Answer 13

the tenant transfers less of the entire interest * The sublessee is considered the tenant of the original lessee, and pays rent to the original lessee, who in turn pays rent to the landlord. * Sublessee is not personally liable to the landlord for rent.

Answer 14

 Assignment: The transfer must be for the entire remaining term. • The assignee stands in the shoes of the original tenant and owes the rent directly to the landlord. The original lessee is no longer in privity of estate with the landlord, but the landlord could still recover from original tenant though privity of contract.

Answer 15

L and T2 are liable to each other for all the covenants (promises) in the original lease that "run with the land" including promise to pay or repair But NOT in privity of contract because never exchanged the original promissory words of contract that create the lease. T1 and L are no longer in privity of estate because T1 is not in possession but they ARE in privity of contract which means that if T2 can't pay T1 is liable

Answer 16

Neither in privity of estate or contract. No rent - L goes after T1. T1 goes after T2; Implied Warranty of Habitability prob T2 goes to T1. T1 goes to L.

Answer 17

Common Areas: maintain Latent Defects Rule: warn of hidden defects of which L has knowledge or reason to know (warn not repair) Assumption of Repairs: while under no duty to make repairs, once undertaken, L must complete them with reasonable care. L makes negligent repairs he is liable Public Use Rule: L who leases public space (hall or museum) and who should know because of the significant nature of the defect and the short length of the lease that T will not repair is liable for any defects on the premises (T doesnt have time or expertise to repair) Short-term Lease of Furnished Dwelling: L is responsible for any defective condition which proximately injuries T. Why? T doesn't have the time or ability to make the repairs herself.

Answer 18

 Easements – (July 2010) (July 2003) (Feb 2001) - affirmative easement or negative easement - easement appurtenant or easement in gross Creation of an Easement - by grant - by implication - by necessity - by prescription - express - express grant or express reservation - implied - implied from existing use or easement by necessity  Real Covenants: (Feb 2001) - express or implied easement

Answer 19

 Easements – (July 2010) (July 2003) (Feb 2001)  An easement is a non-possessory interest in land that entitles its holder to make use of another’s land or to restrict use of another’s land. Examples: utility lines, right of way over land, neighbor's drain, etc.

Answer 20

 Affirmative easement: right to use the land of another (servient land). Created through PING (prescription, implied, necessity, or grant)  Negative easement: holder can prevent a landowner from doing something on his land (today they are simply restrictive covenants- writing required) 4 categories: LASS - light, air, support, stream (sometimes scenic view)

Answer 21

 Easement Appurtenant: (July 2010) (July 2003) an easement is appurtenant when it benefits its holder (owner of the dominant estate) in his physical use or enjoyment of his property. • There must be two tracts of land: a dominant tenement (benefited by easement) and a servient (burdened by easement).  The benefit of an easement appurtenant passes with the transfer of the benefited land, REGARDLESS of whether the easement is mentioned in the conveyance.  The burden also passes AUTOMATICALLY UNLESS the new owner is a BFP without notice  Easement in Gross: benefits the holder rather than another parcel • The easement is in gross if it confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land. Here, the servient land is burdened but there is no benefited or dominant land. Examples: right to place a billboard on another's lot, right to swim in another's pond, or utility company's right to lay power lines on another's lot  An easement in gross is not transferable unless it is for commercial purposes.  A commercial/economic easement in gross transfers with the land provided the grantee/successor has NOTICE of the easement.

Answer 22

 Easement Appurtenant: (July 2010) (July 2003) an easement is appurtenant when it benefits its holder (owner of the dominant estate) in his physical use or enjoyment of his property. • There must be two tracts of land: a dominant tenement (benefited by easement) and a servient (burdened by easement).  The benefit of an easement appurtenant passes with the transfer of the benefited land, REGARDLESS of whether the easement is MENTIONED in the conveyance.  The burden also passes AUTOMATICALLY UNLESS the new owner is a BFP WITHOUT notice of the easement

Answer 23

 Easement in Gross: benefits the holder rather than another parcel • The easement is in gross if it confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land. Here, the servient land is burdened but there is no benefited or dominant land. Examples: right to place a billboard on another's lot, right to swim in another's pond, or utility company's right to lay power lines on another's lot  An easement in gross is not transferable UNLESS it is for commercial purposes. CHECK  A commercial/economic easement in gross transfers with the land provided the grantee/successor has NOTICE of the easement.

Answer 24

PING PRESCRIPTION (July 2003) (Feb 2001) • May be acquired by analogy to adverse possession requirements. (COAH) 1. The use of the easement must be CONTINUOUS for the statuary period.  In Florida period required to obtain a prescriptive easement is 20 years. 2. OPEN and NOTORIOUS use, meaning it must be visible 3. ACTUAL use need not be EXCLUSIVE (different than for adverse possession) and; tacking is permitted 4. HOSTILE/ Adverse, meaning without permission or consent of servient owner. - permission defeats the acquisition of an easement by prescription. It requires that the use be hostile. (DIFFERENCE between easement by prescription and adverse possession: AP no EXCLUSIVE IMPLICATION Implied Easements: (Feb 2001) created by operation of law, it is an exception to SOF (no writing requirement) • Implied from existing use (quasi-easement): Exists when there has been a subdivision of land. Prior use must have been apparent, and the parties expected that the use would survive division because it is reasonably necessary to the dominant tenement’s use and enjoyment. (example drain located on servient land to benefit dominant land) NECESSITY Easement by necessity: implied when the grantor conveys a portion of its land with no way out, except over some part of the grantor’s remaining land (example: division deprives one lot of access to a public road) • Florida has a statutory easement of necessity in addition to common law: (July 2003) (Feb 2001) [where there is no unity of title – argue this]  It applies when any land is used for dwelling or agricultural purposes is landlock, no reasonable route of entrance of exit is available.  This statutory necessity easement arises regardless of whether a unity of title existed from a common source. Unity of title is NOT necessary. (Under common law: need unity of title)  IMPORTANTLY, the owner of the property on which an easement is imposed:  is entitled to compensation. • CHECK: A new easement is created by law even after extinguished by merger when land is still locked. GRANT The writing is called a "deed of easement" Express Easement: They are interests in land so they must be in writing and signed (SOF). - Express Grant (July 2019)  An interest to endure more than one year MUST be in WRITING (SOF) signed by the holder of servient tenement and complying with all formal requirements of a deed.  In addition to a signed writing, FL requires easements for a term greater than one year to be signed in the presence of two subscribing witnesses.  Lasts forever unless the writing limits that. CHECK Express Reservation -  Arises when an owner of land conveys title but RESERVES the right to continue to use the tract for a special purpose after the conveyance.  Majority rule – Grantor MUST be reserving the right for himself; it is VOID if he is reserving the right for someone else. y

Answer 25

``` Prescription Easement (July 2003) (Feb 2001) • May be acquired by analogy to adverse possession requirements. (COAH) ``` 1. The use of the easement must be CONTINUOUS for the statuary period.  In Florida period required to obtain a prescriptive easement is 20 years. 2. OPEN and NOTORIOUS use, meaning it must be visible 3. ACTUAL use need not be EXCLUSIVE (different than for adverse possession) and; tacking is permitted 4. HOSTILE/ Adverse, meaning without permission or consent of servient owner. - permission defeats the acquisition of an easement by prescription. It requires that the use be hostile. (DIFFERENCE between easement by prescription and adverse possession: AP no EXCLUSIVE

Answer 26

Implied Easements: (Feb 2001) created by operation of law, it is an exception to SOF (no writing requirement) • Implied from existing use (quasi-easement): Exists when there has been a subdivision of land. Prior use must have been apparent, and the parties expected that the use would survive division because it is reasonably necessary to the dominant tenement’s use and enjoyment. (example drain located on servient land to benefit dominant land)

Answer 27

Easement by necessity: implied when the grantor conveys a portion of its land with no way out, except over some part of the grantor’s remaining land (example: division deprives one lot of access to a public road) • Florida has a statutory easement of necessity in addition to common law: (July 2003) (Feb 2001) [where there is no unity of title – argue this]  It applies when any land is used for dwelling or agricultural purposes is landlock, no reasonable route of entrance of exit is available.  This statutory necessity easement arises regardless of whether a unity of title existed from a common source. Unity of title is NOT necessary. (Under common law: need unity of title)  IMPORTANTLY, the owner of the property on which an easement is imposed:  is entitled to compensation. • CHECK: A new easement is created by law even after extinguished by merger when land is still locked.

Answer 28

The writing is called a "deed of easement" Express Easement: They are interests in land so they must be in writing and signed (SOF). - Express Grant (July 2019)  An interest to endure more than one year MUST be in WRITING (SOF) signed by the holder of servient tenement and complying with all formal requirements of a deed.  In addition to a signed writing, FL requires easements for a term greater than one year to be signed in the presence of two subscribing witnesses.  Lasts forever unless the writing limits that. CHECK Express Reservation -  Arises when an owner of land conveys title but RESERVES the right to continue to use the tract for a special purpose after the conveyance.  Majority rule – Grantor MUST be reserving the right for himself; it is VOID if he is reserving the right for someone else.

Answer 29

Scope: (July 2019) (July 2010) the key to interpreting the scope of an easement is the reasonable intent of the original parties. Look at the terms and conditions that created the easement.  Easement holder cannot expand the scope of the easement beyond what was contemplated at the time it was granted. When easement is used in a way that exceeds its legal scope, is said to be surcharged  Must not be exercised to injuriously increase the burden upon the servient tenement because the owner of the land retains the right to use the land in any matter not inconsistent with the easement.  Remedy: injunction of the excess use and damages if servient land has been harmed  exam tip: overuse or misuse of easement does not terminate the easement. The appropriate remedy is an injunction.

Answer 30

 Termination of Easement: Usually easements last forever (run with the land) unless terminated. END CRAMP  Estoppel – servient owner changed position in reasonable reliance on easement holder’s assurances that doesn’t want easement anymore. Dominant landowner is estopped from using the easement.  Necessity – expires when necessity ends (UNLESS the easement was reduced to an express grant).  Destruction – destruction of land other than willful conduct of servient owner will terminates it.  Condemnation – of servient estate by gov. through eminent domain power.  Release – release given by the easement holder to the servient landowner will terminate the easement and MUST be in WRITING  Abandonment – there must be a physical action by easement holder showing their intent to never use easement again.  Mere nonuse or words alone is NOT enough to terminate  Ex. A has right of way across B’s parcel. A erects a structure on A’s parcel that precludes her from ever again reaching B’s parcel. That action shows abandonment.  Merger – title to the easement and servient land becomes vested in the same person. When complete unity of tittle is achieves easement is extinguished. IF title is separated again after that the easement is not automatically revived UNLESS it is an easement y necessity (statutory in FL). • CHECK Florida has a statutory easement of necessity in addition to common law: (July 2003) (Feb 2001) [where there is no unity of title – argue this]  It applies when any land is used for dwelling or agricultural purposes is landlock, no reasonable route of entrance of exit is available.  This statutory necessity easement arises regardless of whether a unity of title existed from a common source. Unity of title is NOT necessary. (Under common law: need unity of title)  IMPORTANTLY, the owner of the property on which an easement is imposed:  is entitled to compensation.  Prescription – servient owner can extinguish easement by interfering with it in accordance with elements of adverse possession (COAH) through the statutory period (20 years)

Answer 31

 Estoppel – servient owner changed position in reasonable reliance on easement holder’s assurances that doesn’t want easement anymore. Dominant landowner is estopped from using the easement.

Answer 32

 Necessity – expires when necessity ends (UNLESS the easement was reduced to an express grant).

Answer 33

 Destruction – destruction of land other than willful conduct of servient owner will terminates it.

Answer 34

 Condemnation – of servient estate by gov. through eminent domain power.

Answer 35

 Release – release given by the easement holder to the servient landowner will terminate the easement and MUST be in WRITING

Answer 36

 Abandonment – there must be a physical action by easement holder showing their intent to never use easement again.  Mere nonuse or words alone is NOT enough to terminate  Ex. A has right of way across B’s parcel. A erects a structure on A’s parcel that precludes her from ever again reaching B’s parcel. That action shows abandonment.

Answer 37

 Merger – title to the easement and servient land becomes vested in the same person. When complete unity of tittle is achieves easement is extinguished. IF title is separated again after that the easement is not automatically revived UNLESS it is an easement y necessity (statutory in FL). • CHECK Florida has a statutory easement of necessity in addition to common law: (July 2003) (Feb 2001) [where there is no unity of title – argue this]  It applies when any land is used for dwelling or agricultural purposes is landlock, no reasonable route of entrance of exit is available.  This statutory necessity easement arises regardless of whether a unity of title existed from a common source. Unity of title is NOT necessary. (Under common law: need unity of title)  IMPORTANTLY, the owner of the property on which an easement is imposed:  is entitled to compensation.

Answer 38

 Prescription – servient owner can extinguish easement by interfering with it in accordance with elements of adverse possession (COAH) through the statutory period (20 years)

Answer 39

 License – privilege their holders to go upon the land of another  Unlike an easement, it is not an interest in land; it is merely a privilege; no writing is needed b/c not subject to SOF  A failed attempt to create an easement results in a license – (ex. Classic neighbors talking by the fence watch for seemingly oral easement).  Licenses are revocable at the will of the grantor (may sue for breach of k though)  Irrevocable when estoppel is present (invested money, labor, or both in reasonable reliance on the license’s continuation) or if the license is coupled with an interest.  Personal to the licensee, CANNOT be transferred.

Answer 40

 Entitles the holder to take some resources (timber, soil, minerals, fish) from the servient land.  All easement rules apply to profits only difference is it allows you to remove stuff from land  May be extinguish through surcharge (misused that overly burdens servient estate)  To terminate: ENDCRAMP

Answer 41

 Private nuisance: is a substantial, unreasonable interference with another’s interest in his use and enjoyment of land. * The court balances the utility of the conduct against the gravity of the harm caused by the conduct. * Remedy: damages. If the legal remedy of damages is unavailable or inadequate, injunctive relief may be granted.  Public nuisance: is an unreasonable interference with a right common to the general public. • If it interferes significantly with public health, safety or is proscribed by statute. • To recover damages plaintiff must have suffered a harm that is different from that suffered by other members of the public.

Answer 42

 Private nuisance: is a substantial, unreasonable interference with another’s interest in his use and enjoyment of land. • The court balances the utility of the conduct against the gravity of the harm caused by the conduct. • Remedy: damages. If the legal remedy of damages is unavailable or inadequate, injunctive relief may be granted.

Answer 43

 Public nuisance: is an unreasonable interference with a right common to the general public. • If it interferes significantly with public health, safety or is proscribed by statute. • To recover damages plaintiff must have suffered a harm that is different from that suffered by other members of the public.

Answer 44

Covenant: - Writing signed by grantor - Remedy - damages - Burden w/ land - WITHN - Benefit w/ Land - WITV Equitable Servitude - Not always written - Remedy - injunction - Create to bind Successor - WITNES - General/Common Scheme - (1) D's lot included in common scheme and (2) D had notice (AIR)* of promise in prior deeds when took * actual, inquiry, or record notice - Defenses - Changed conditions

Answer 45

The covenant is a promise to do or not do something related to land. It is unlike the easement because it is not the grant of a property interest. Instead, it is a contractual limitation or promise regarding land. Negative aka restrictive covenants - promise to refrain from doing something. Examples: NOT build commercially, not to place for sale sign on lot, paint a certain hue, place garbage n balcony Affirmative - a promise to do something related to land. Examples: maintain fence or garden

Answer 46

P wants money damages - construe the promise as a real covenant P wants injunction - construe the promise as an equitable servitude

Answer 47

 Burden Running with the Land: WITHN (always do burden first) (1) covenant is in writing (2) original parties intended covenant to run (usually found in the language of the conveyance) (3) Touch and concern the land (must affect the parties’ legal relations as landowners and NOT simply as members of the community at large • HOA fees and covenants not to compete do T&C the land (4) Horizontal privity – nexus between original parties. It requires they be in succession of estate meaning a landlord-tenant, grantor-grantee, mortgagor/mortgagee relationship when the covenant was created. (5) Vertical privity – nexus between A and A-1 requiring some non-hostile between parties (contract, devise, descent) – cannot be through adverse possession. (CHECK needs to hold entire interest held by original party) (6) Notice – A-1 must have had notice pursuant to Florida’s recording statute. (actual, inquiry or record notice)  Benefit Running with the Land: WITV (1) covenant is in writing (2) original parties intended covenant to run (usually found in the language of the conveyance) (3) Touch and concern the land (must affect the parties’ legal relations as landowners; the promised performance benefits their use & enjoyment of the land) (4) Vertical privity – nexus between B and B-1 requiring some non-hostile between parties (contract, devise, descent) – cannot be through adverse possession. (CHECK needs to hold entire interest held by original party)

Answer 48

First Question: Does the burden of As promise to B run from A to A-1...  Burden Running with the Land: WITHN (always do burden first) (1) covenant is in writing (2) original parties intended covenant to run (usually found in the language of the conveyance) (3) Touch and concern the land (must affect the parties’ legal relations as landowners and NOT simply as members of the community at large • HOA fees and covenants not to compete do T&C the land (4) Horizontal privity – nexus between original parties. It requires they be in succession of estate meaning a landlord-tenant, grantor-grantee, mortgagor/mortgagee relationship when the covenant was created. (5) Vertical privity – nexus between A and A-1 requiring some non-hostile between parties (contract, devise, descent) – cannot be through adverse possession. (CHECK needs to hold entire interest held by original party) (6) Notice – A-1 must have had notice pursuant to Florida’s recording statute. (actual, inquiry or record notice)

Answer 49

 Benefit Running with the Land: WITV (1) covenant is in writing (2) original parties intended covenant to run (usually found in the language of the conveyance) (3) Touch and concern the land (must affect the parties’ legal relations as landowners; the promised performance benefits their use & enjoyment of the land) (4) Vertical privity – nexus between B and B-1 requiring some non-hostile between parties (contract, devise, descent) – cannot be through adverse possession. (CHECK needs to hold entire interest held by original party)

Answer 50

An Equitable Servitude is a promise that equity will enforce against successors of the burdened land who have notice of the covenant. Remedy: Injunctive relief To create an equitable servitude that will bind successors... WITNES (1) covenant is in WRITING* • Exception to writing requirement-> implication from a common scheme for development of a residential subdivision (reciprocal negative easement).  Thus, if a developer subdivides land and some deeds contain negative covenant while others do not, the negative covenant will be binding on all parcels provided there was a common scheme & notice. (2) original parties INTENDED covenant to run (usually found in the language of the conveyance) (3) TOUCH and CONCERN the land (must affect the parties’ legal relations as landowners) (4) NOTICE the assignees of the burden land had notice of the promise when they took ES: EQUITABLE SERVITUDE

Answer 51

Under the Common Scheme Doctrine the court will imply a reciprocal negative servitude to hold the unrestricted lot holder to the promise. TWO elements: (1) When sales began, the subdivider had a general scheme of residential development which INCLUDED the defendants lot. (2) The defendant-lot holder had NOTICE of the promise contained in those prior deeds when it took. NOTICE: AIR 3 types of Notice  Can be actual notice (literal knowledge of covenants); inquiry notice (appearance/observation of the complex makes the common scheme obvious; duty to inspect); OR record notice (chain of title w/ prior deeds)

Answer 52

(1) ACTUAL notice (literal knowledge of covenants) (2) INQUIRY notice (appearance/observation of the complex makes the common scheme obvious; duty to inspect); OR (3) RECORD notice (chain of title w/ prior deeds)

Answer 53

Changed conditions – the changed circumstances alleged by the party seeking release from the terms of an ES MUST be so pervasive that the entire area has changed; mere pockets of limited change is not good enough.

Answer 54

 First - Conveyancing - 2 Implied promises in every Land Sale K 1) Marketable Title 2) No False Statements of Material Fact - Breach of K for land sale K  Second - Execution of a Deed - Requirements of the deed - Types of Deeds - Recording Statutes in Florida  Third - Mortgages - Transferring Mortgage - Assignments - Due on sale Clauses  Fourth - Foreclosure - foreclosure action - Purchase Money Mortgage - Redemption - Proceeds of a foreclosure sale and defciency judgments - Foreclosure of property occupied by tenant  Effect of lost note  Installment Land Contracts

Answer 55

Step 1: The land contract, which conveys EQUITABLE TITLE. The land contract endures until step 2. Step 2: The closing, where the deed passes LEGAL TITLE and becomes our operative document. SO equity - contract legal - deed

Answer 56

1- Standard K - Statute of Frauds - When Size of Land Recited in K is More than its Actual Size - EXCEPTION TO SOF - The Doctrine of Part Performance 2- The Problem of Risk: Equitable Conversion 3- Two Promises in Every Land K: 1- Marketable Title: 3 circumstances: adverse possession, encumbrances, and zoning violations and 2- Seller will not make false stmts of material fact 4- No Implied Warranties of Fitness or Habitability: EXCEPTION new home by a builder-vendor

Answer 57

1 of 4 Conveyance Topics ``` Standard & SOF Under the SOF, the K MUST: 1- be in WRITING 2- SIGNED by the party against whom enforcement is sought (signed by the party to be charged) 3- DESCRIBE the land AND 4- be supported by CONSIDERATION 5- includes PRICE ``` 2- Legal description (Feb 2010) 1- land sale K must identify the land 2- The description does not have to be formal but sufficient if it provides a good lead as to the identity of the property; it MUST be unambiguous 3- Parol evidence and extrinsic evidence is admissible to explain, supplement, or clear up ambiguity. 4- If a description is too indefinite, title remains with the grantor, subject to the possibility of reformation.  Reformation: is an equitable action in which the court rewrites the deed to make it conform to the intention of the parties. Ex: K says 100 acres; survey says 98; remedy - specific performance with pro rata reduction of price commensurate with 2 acres 3- SOF exception - The Doctrine of Part Performance takes contract out of the statute. 1- Florida recognizes part performance when enforcing oral land sale contracts when ALL 3 elements are met, (1) B pays in whole or significant part, (2) B takes possession and (3) B makes substantial improvements.

Answer 58

``` Standard & SOF Under the SOF, the K MUST: 1- be in WRITING 2- SIGNED by the party against whom enforcement is sought (signed by the party to be charged) 3- DESCRIBE the land AND 4- be supported by CONSIDERATION 5- includes PRICE ```

Answer 59

2- Legal description (Feb 2010) 1- land sale K must identify the land 2- The description does not have to be formal but sufficient if it provides a good lead as to the identity of the property; it MUST be unambiguous 3- Parol evidence and extrinsic evidence is admissible to explain, supplement, or clear up ambiguity. 4- If a description is too indefinite, title remains with the grantor, subject to the possibility of reformation.  Reformation: is an equitable action in which the court rewrites the deed to make it conform to the intention of the parties. Ex: K says 100 acres; survey says 98; remedy - specific performance with pro rata reduction of price commensurate with 2 acres

Answer 60

3- SOF exception - The Doctrine of Part Performance takes contract out of the statute. 1- Florida recognizes part performance when enforcing oral land sale contracts when ALL 3 elements are met, (1) B pays in whole or significant part, (2) B takes possession and (3) B makes substantial improvements.

Answer 61

2- The Problem of Risk: Equitable Conversion Equitable Conversion regards as done that which ought to be done. Once a contract is signed, equity regards the buyer as the owner of the real property. Buyers bears risk of loss/destruction to the property in the interim between the k and closing regardless of fault. UNLESS the k says otherwise and the buyer then is subject to a credit $ at closing. • When a party to a contract of sale dies before the contract has been completed, the deceased seller’s interest passes as personal property, and the takers of seller’s real property must give up the title to the buyer when the contract closes. If property is destroyed, without fault of either party, before closing, Florida follows the majority rule that the risk of loss is on the buyer.  The seller is required to credit insurance proceeds to the buyer  The parties can contract out of this default risk  Since Buyer has equitable title of the property as of signing and recording the contract, Buyer has the right to assign or devise his interest in the property. o Florida has adopted the uniform simultaneous death act, which states that if 2 people die at the same time, it is presumed for purposes of devising their property that they survived the other.

Answer 62

(1) Marketable Title: (July 2010) (July 2007) DEFINE There is an implied warranty in every land sale K that at the closing the seller will provide marketable title that is free from reasonable doubt and from lawsuit. Title need not be perfect but free from issues that might present future litigation. CURE DEFECT The buyer CANNOT RESCIND the contract prior to closing on grounds of marketable title because Seller can satisfy outstanding liens/mortgages from sale proceeds.  Buyer would have to notify seller and give them a reasonable time to CURE the defect  If seller fails to cure defects, the buyer’s remedies include: rescission, damages & specific performance UNMARKETABLE TITLE 3 Circumstances render UT (EAZ) 1- ADVERSE POSSESSION - even if a portion of title rests on AP, it is unmarketable because seller cannot provide GOOD RECORD TITLE 2- ENCUMBRANCES - servitudes and mortgages render title unmarketable UNLESS buyer has waived them (Ex. seller satisfying mortgage or lien at closing). 3- ZONING VIOLATIONS - if there is a violation property is subject to potential litigation (2) No False Statements of Material Fact (Feb 2012) (July 2010) Seller promises not to make any false stmts of material facts.  Florida law states that the seller has a DUTY TO DISCLOSE facts materially affecting the value of the property that are not readily observable or known to the purchaser.  Seller will be liable for defects, even without making any statements, if he ACTIVELY CONCEALED defects (wallpapering over water damage)  Seller is liable for defects which he KNOWINGLY or NEGLIGENTLY made a false statement of fact if the buyer RELIED on the statement and it materially affected the VALUE of the property.  Additionally, the buyer is not required to investigate a seller’s statement to determine whether they are a misrepresentation UNLESS the falsity is known or obvious.  Courts will more likely impose liability on seller if the property is residential, defect is dangerous, and the seller personally created the defect or attempted to repair it and failed to do so. AS IS DISCLAIMER  General disclaimer clauses will generally not be enforceable and will not excuse seller from liability for failure to disclose material defects, fraud or concealment.  In Florida, contracts for sale of commercial property: that contain “as is” clauses, the purchaser does not have a cause of action for fraud if he had opportunity to inspect and could have discovered the defect through ordinary diligence. In essence, seller would argue that “buyer beware” is still the rule applied to purchasers of commercial property.  Exception to Buyer Beware rule: (what buyer would argue) • (1) where artifice or trick has been employed to prevent the purchaser from making independent inquiry. (2) other party does not have equal opportunity to become appraised of the fact (3) where a party undertakes to disclose facts and fails to disclose the whole truth.

Answer 63

No Implied Warranties of Fitness or Habitability The land contract contains no implied warranties of habitability. EXCEPTION: The implied warranty of fitness and workmanlike construction applies to the sale of a new home by a builder-vendor

Answer 64

Rescission: (Feb 2012) Is a remedy whereby the original contract is considered voidable and rescinded. The parties are left as if the contract had never been made. The grounds for rescission must have occurred either before or at the time the K was entered into.  The grounds are: mutual mistake of material fact, unilateral mistake if the other party should have known the mistake, misrepresentation of fact or law by either party as to a material fact in the negotiations that was relied upon.  And If plaintiff paid money to the defendant, he is entitled to restitution

Answer 65

 Time for Performance – courts presume that time is NOT “of the essence” in real estate contracts. • do not have to perform on closing date; they get a reasonable time after. • Unless - time for performance is specifically stated in the contract.

Answer 66

Breach of K for land sale K: • SPECIFIC PERFORMANCE - (Feb 2010, July 2007, Feb 2003) is applicable if there is an inadequate remedy at law and enforcement is feasible.  Because land is unique, the remedy at law (damages) would generally be inadequate • If specific performance is not awarded, the usual measure of damages for breach of K to sell real property is the difference between the contract price and the market value price of the land on the date of the breach. CP – MV(@breach)= damages • CONSEQUENTIAL DAMAGES can also be recovered - any further losses resulting from the breach that any reasonable person would have foreseen would occur from a breach at the time of entry into the contract. • LIQUIDATED DAMAGES (Feb 2003) – Sales contracts usually require the buyer to deposit money with the seller “earnest money”, and provide that if the buyer defaults, the Seller may retain this money as liquidated damages.  Courts usually uphold the seller’s retention of the deposit if the amount appears to be reasonable in light of the seller’s anticipated and actual damages.  Courts uphold the retention of a deposit of up to 10% of the sales price without further inquiry into its reasonableness.  In FL when a K includes both a liquidated damages clause and an option to recover actual damages, the liquidated damages is unenforceable because it is considered a penalty. • Think of theses defenses: SOF, misrepresentation, specific performance, rescission, and reformation.

Answer 67

Think of theses defenses: - SOF - misrepresentation - specific performance - rescission - reformation

Answer 68

Merger: On the day of closing, once the deed is signed, the contents of the real estate K MERGE into the deed. o an party can no longer sue on the real estate K once deed is executed/after closing. The merger doctrine does not apply when there is an inherent conflict between the deed and the bargained-for agreement to be merged into it. In such cases, a seller cannot rely on the merger doctrine to avoid liability to the buyer for breach of the sales K (for example, if seller has failed to convey marketable title.

Answer 69

Step 2: The closing, where the deed passes LEGAL TITLE and becomes our operative document.

Answer 70

The controlling document is now the deed. It passes legal title from seller to buyer. Requirements: To pass legal title from seller to buyer the deed MUST be "LEAD": Lawfully, Executed And Delivered Execution of a Deed: (Feb 2011)  Deed - is the document executed on the day of closing and transfers legal title from the seller to the buyer.  Requirements of the deed: • MUST be in writing and signed by the GRANTOR • reasonably identify the parties (grantor/grantee) & the land (no need not recite consideration nor is consideration required to make a deed valid).  in Florida, execution of a deed requires (1) writing and (2) signed in presence of 2 subscribing witnesses. If the deed was not signed in the presence of 2 witnesses – the conveyance is invalid • Delivered: Grantor must have the present intent to transfer the deed to the grantee, regardless of whether they actually hand it over physically. title passes immediately • Acceptance: Usually presumed UNLESS grantee unequivocally rejects it. * ORAL CONDITION: if deed is transferred to the grantee with an oral condition, it will drop out * ESCROW: Grantor may deliver an executed deed to a 3rd party known as an escrow agent, with instructions that the deed be delivered to grantee once certain conditions are met. When condition is met, title passes to the grantee. If the grantor dies or becomes incompetent or is otherwise unavailable before the express conditions are met, title will still pass from the escrow agent to the grantee once the condition is met.

Answer 71

The controlling document is now the deed. It passes legal title from seller to buyer. Requirements: To pass legal title from seller to buyer the deed MUST be "LEAD": Lawfully, Executed And Delivered Execution of a Deed: (Feb 2011)  Deed - is the document executed on the day of closing and transfers legal title from the seller to the buyer.  Requirements of the deed: • MUST be in writing and signed by the GRANTOR • reasonably identify the parties (grantor/grantee) & the land (no need not recite consideration nor is consideration required to make a deed valid).  in Florida, execution of a deed requires (1) writing and (2) signed in presence of 2 subscribing witnesses. If the deed was not signed in the presence of 2 witnesses – the conveyance is invalid • Delivered: Grantor must have the present intent to transfer the deed to the grantee, regardless of whether they actually hand it over physically. title passes immediately • Acceptance: Usually presumed UNLESS grantee unequivocally rejects it.

Answer 72

Types of Deeds: (July 2010) (July 2006)  GENERAL Warranty Deed: In Florida, a general warranty deed is the statutory deed unless the deed establishes otherwise. A general warranty contains 6 covenants (3 future and 3 present) which warrant against claims of all other persons including previous titleholders. • 3 PRESENT Warranties: may only be breached at the time the deed is delivered usually at closing (SOL @ delivery). SEC  Grantor makes promises that… (1) covenant of seisin: he OWNS the property (2) covenant of right to convey: he has the RIGHT to convey (no disability no restrains to transfer) (3) covenant against encumbrances: there are NO servitudes OR liens on the land • 3 FUTURE Warranties: These are breached when grantee is disturbed in possession. (SOL begins to run when grantee is disturbed in possession) WAQ  Grantor makes promises that grantee… (4) covenant of quiet enjoyment: will not be disturbed by 3rd parties lawful claim of title. (5) covenant of warranty: grantor will defend grantee superior claims of title asserted by others and to compensate the grantee for any loss sustained by the claim (6) covenant for further assurances: grantor promises to perform acts reasonably necessary to perfect title  SPECIAL Warranty Deed: Grantor makes the same covenants as the general warranty deed but ONLY on behalf of himself and no representations regarding his predecessors. • (1) Grantor promises has not conveyed the property to anyone other than grantee AND • (2) free from encumbrances made by grantor. • In Florida, a SWD differs from a GWD only in that the SWD DOES NOT warrant protection against claim from the Grantor’s predecessors in interest. Rather, a special warranty deed only involves warranties involving the grantor.  OUITCLAIM Deed: Grantor makes no promises or assurances regarding claims against the title. The grantor is simply conveying whatever interest he has in the land to the grantee

Answer 73

 General Warranty Deed: In Florida, a general warranty deed is the statutory deed unless the deed establishes otherwise. A general warranty contains 6 covenants (3 future and 3 present) which warrant against claims of all other persons including previous titleholders. • 3 Present Warranties: may only be breached at the time the deed is delivered usually at closing (SOL @ delivery). SEC  Grantor makes promises that… (1) covenant of seisin: he OWNS the property (2) covenant of right to convey: he has the RIGHT to convey (no disability no restrains to transfer) (3) covenant against encumbrances: there are NO servitudes OR liens on the land • 3 Future Warranties: These are breached when grantee is disturbed in possession. (SOL begins to run when grantee is disturbed in possession) WAQ  Grantor makes promises that grantee… (4) covenant of quiet enjoyment: will not be disturbed by 3rd parties lawful claim of title. (5) covenant of warranty: grantor will defend grantee superior claims of title asserted by others and to compensate the grantee for any loss sustained by the claim (6) covenant for further assurances: grantor promises to perform acts reasonably necessary to perfect title

Answer 74

Special Warranty Deed: Grantor makes the same covenants as the general warranty deed but ONLY on behalf of himself and no representations regarding his predecessors. • (1) Grantor promises has not conveyed the property to anyone other than grantee AND • (2) free from encumbrances made by grantor. • In Florida, a SWD differs from a GWD only in that the SWD DOES NOT warrant protection against claim from the Grantor’s predecessors in interest. Rather, a special warranty deed only involves warranties involving the grantor. • 3 Present Warranties: may only be breached at the time the deed is delivered usually at closing (SOL @ delivery). SEC  Grantor makes promises that… (1) covenant of seisin: he OWNS the property (2) covenant of right to convey: he has the RIGHT to convey (no disability no restrains to transfer) (3) covenant against encumbrances: there are NO servitudes OR liens on the land • 3 Future Warranties: These are breached when grantee is disturbed in possession. (SOL begins to run when grantee is disturbed in possession) WAQ  Grantor makes promises that grantee… (4) covenant of quiet enjoyment: will not be disturbed by 3rd parties lawful claim of title. (5) covenant of warranty: grantor will defend grantee superior claims of title asserted by others and to compensate the grantee for any loss sustained by the claim (6) covenant for further assurances: grantor promises to perform acts reasonably necessary to perfect title

Answer 75

Quitclaim Deed: Grantor makes no promises or assurances regarding claims against the title. The grantor is simply conveying whatever interest he has in the land to the grantee

Answer 76

 Recording Statutes in Florida: Florida has a pure NOTICE recording act, which means that we protect the last purchaser, not the 1st. Under this type of recording act, a subsequent BFP prevails a prior grantee that failed to record (even if that person was also a BFP). Under a pure notice statute, the order of recording after the subsequent purchase is irrelevant. Florida recording act applies to leases for a term of one year or longer.  Bona fide purchaser (BFP): a person who gives valuable consideration and has no notice of the prior instrument at the time of the transaction.  Consideration must be some pecuniary value. (heir is not protected)  Fl has a presumption of: (1) Lack of notice of an unrecorded instrument by a subsequent purchaser. (2) Burden of proving actual notice is on the claimant under the unrecorded instrument to show actual knowledge.  Florida’s recording act has been construed to protect lien and judgment creditors, and subsequent purchases without notice who have paid valuable consideration  Florida’s judgment lien statute provides for a 10-YEAR LIEN  Quiet title action: to clear title to the land  Note: if you inherit the land, you are NOT a BFP because you didn’t give value  Shelter Rule  One who takes from a BFP, will prevail against any entity that the transferor BFP would have prevailed against. In other words, the transferee “takes shelter” in the status of his transferor, and thereby “steps into the shoes” of the BFP even though she otherwise fails to meet the requirements of BFP status.

Answer 77

 Fl has a presumption of: (1) Lack of notice of an unrecorded instrument by a subsequent purchaser. (2) Burden of proving actual notice is on the claimant under the unrecorded instrument.  Florida’s recording act has been construed to protect lien and judgment creditors, and subsequent purchases without notice who have paid valuable consideration  Florida’s judgment lien statute provides for a 10-YEAR LIEN  Action – quiet title action: to clear title to the land  Note: if you inherit the land, you are NOT a BFP because you didn’t give value  Shelter Rule - One who takes from a BFP, will prevail against any entity that the transferor BFP would have prevailed against. In other words, the transferee “takes shelter” in the status of his transferor, and thereby “steps into the shoes” of the BFP even though she otherwise fails to meet the requirements of BFP status.

Answer 78

Forms of notice that a buyer may potentially be charged with are AIR • Actual Notice – actual knowledge of the prior conveyance. • Record Notice – notice imputed if the prior interest is recorded in the chain of title • Inquiry Notice – means grantee is bound to make reasonable inquiry into the recorded instruments and has a duty to inspect the premises before transfer of title  Buyer will be held to have knowledge of any facts that such inquiry would have revealed. Possession of the property by another or a break in the chain of title would put Buyer on inquiry notice

Answer 79

A conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, UNLESS the conveyance is recorded If, at the time B takes, he is a BFP, he wins. It won't matter that A may ultimately record first, before B does. It won't matter in the A v. B contest, that B never records. THE LAST BFP TAKES. All recording statutes apply to mortgages as well as deed; therefore, in a notice state, Buyer takes subject to the lien because buyer had record notice whether he checked the record or not.

Answer 80

This is where the buyer borrows money to purchase real property (rep by note), and voluntarily transfers a lien security interest in the debtors land as collateral for the debt (rep by mortgage). The transaction is evidenced by two documents: a note, and a mortgage. The NOTE is a promise to repay the money at a future date, or in installments over time. The note should not be recorded. The MORTGAGE is a security instrument. It states that if the buyer/borrower fails to make payments, the lender can take the property via foreclosure. The mortgage should be recorded because it puts others on constructive notice (defeats BFP). Florida is a lien theory state, which means that the lender has no ownership interest in the property until foreclosure.

Answer 81

 Florida is a lien theory state. The judgment lien statue provides for a 10-year lien Mortgagee (Bank/lender) does not have legal title to the property, simply has a lien on the property and the mortgagor retains legal title and possession of the property, unless and until foreclosure occurs.  Mortgage is usually evidenced by two documents: a mortgage deed and a promissory note

Answer 82

 In Florida, creditor mortgagee can only transfer his interest by endorsing the note and delivering it to the transferee. Transfer of a mortgage without the note is a nullity.

Answer 83

 In Florida, the lien of a mortgage in which final date of maturity is not ascertainable will have a life of 20 years from the date of the mortgage UNLESS the obligation is re-recorded with the mortgage or contains an affidavit showing the maturity date

Answer 84

In FL, a lis pendens notice generally expires one year after commencement of the action. However, the court may extend the time on reasonable notice and for a good cause.

Answer 85

 Due on sale Clauses: (July 2019) A due on sale clause allows the mortgagee/lender to demand full payment of the loan if the mortgagor/borrower transfers any interest in the property WITHOUT the lender’s consent.  In Florida, no restriction on due-on-sale clauses are valid. Therefore, a mortgage lender, need not show impairment of security before enforcing the due on sale clause

Answer 86

 Assignments: (Feb 2018) (July 2019)  If the grantee has "assumed the mortgage" (sign an assumption agreement, promising to pay the mortgage loan) the grantor and grantee are both personally liable. Grant is primarily liable and the original mortgagor is secondarily liable as a surety. • has to be a written signed document, oral statements are not enough.  If no assumption agreement is signed, the grantee is NOT personally liable, and the original mortgagor remains primarily and personally liable. • Nonetheless, the grantee does not pay the loan, the mortgage may be foreclosed, wiping out the grantee’s investment in the land.

Answer 87

Even if the contract involves installment payments, Buyer is still deemed the owner of the Property.  Seller can argue that contract serves as a mortgage on the property. Florida is a lien state, meaning that a mortgage acts as a lien on the property. The mortgagee does not have title to the property, just a lien o Seller could enforce the lien by filing a foreclosure action, suing for breach of contact. o Florida does not allow for exoneration of liens unless it is explicitly stated in the decedents will

Answer 88

debtor- mortgager creditor - mortgagee "gee, I hope he pays meeee."

Answer 89

PMM an extension of value by a lender who takes as collateral a security interest in the very real estate that its loan enables the debtor to acquire. PMM PRIORITY PMM creditor has 1st priority in the in the parcel it financed if it records properly. Non-PMM an extension of value by a lender who takes as collateral a security interest in real estate that is not the subject of its lien

Answer 90

When the mortgagor defaults on the loan, the mortgagee/creditor must look to the land for satisfaction through foreclosure, a judicial proceeding where the land is sold and the proceeds are used to satisfy the debt. PROCEEDS If the proceeds are LESS than the amount owed, the creditor brings a deficiency action against the debtor seeking from a court a deficiency judgment to satisfy the remainder owed. If there is a SURPLUS, junior liens are paid off in order of their priority. Any remaining surplus goes to the debtor. FEES Off the TOP attorney's fees and expenses of the foreclosure and then any accrued interest on the foreclosed debt. NECESSARY PARTIES debtor, mortgagor, junior lienholders, leasees, holders of easements and licenses. Failure to include the debtor is required for a deficiency judgment. Failure to join lienholders results in the preservation of that party's claim, despite the foreclosure and sale. If not joined, the necessary party's mortgage will remain on the land. VARIOUS INTERESTS JUNIOR Foreclosure will terminate interests junior to the mortgage being foreclosed but will not affect senior interests. Thus, junior interests are paid in descending order assuming funds remain after paying the superior claims. If not, junior lienholders will proceed with a deficiency judgment against the debtor. Once foreclosure of a superior claim occurs and funds are distributed, junior lienholders can no longer look to the property for satisfaction. SENIOR Foreclosure does not affect any interest senior to the mortgage being foreclosed. The buyer at the sale takes subject to such interest. The buyer is not personally liable on the senior debt, the debtor remains liable, but as a practical matter, if the senior mortgage is not paid, sooner or later the senior creditor will foreclose against the land. Therefore, the buyer has a strong incentive to pay off the senior lien. Otherwise, the property is subject to foreclosure if the buyer does not pay. When a mortgage is foreclosed, the buyer at the sale will take title as it existed when the mortgage was placed on the property. PRIORITIES A creditor MUST record to achieve priority. Once recorded, priority is determined by the norm "first-in-time first-in-right" the creditor who records 1st takes 1st.

Answer 91

When the mortgagor defaults on the loan, the mortgagee/creditor must look to the land for satisfaction through foreclosure, a judicial proceeding where the land is sold and the proceeds are used to satisfy the debt.

Answer 92

PROCEEDS If the proceeds are LESS than the amount owed, the creditor brings a deficiency action against the debtor seeking from a court a deficiency judgment to satisfy the remainder owed. If there is a SURPLUS, junior liens are paid off in order of their priority. Any remaining surplus goes to the debtor. FEES Off the TOP attorney's fees and expenses of the foreclosure and then any accrued interest on the foreclosed debt.

Answer 93

NECESSARY PARTIES debtor, mortgagor, junior lienholders, leasees, holders of easements and licenses. Failure to include the debtor is required for a deficiency judgment. Failure to join lienholders results in the preservation of that party's claim, despite the foreclosure and sale. If not joined, the necessary party's mortgage will remain on the land.

Answer 94

VARIOUS INTERESTS JUNIOR Foreclosure will terminate interests junior to the mortgage being foreclosed but will not affect senior interests. Thus, junior interests are paid in descending order assuming funds remain after paying the superior claims. If not, junior lienholders will proceed with a deficiency judgment against the debtor. Once foreclosure of a superior claim occurs and funds are distributed, junior lienholders can no longer look to the property for satisfaction. SENIOR Foreclosure does not affect any interest senior to the mortgage being foreclosed. The buyer at the sale takes subject to such interest. The buyer is not personally liable on the senior debt, the debtor remains liable, but as a practical matter, if the senior mortgage is not paid, sooner or later the senior creditor will foreclose against the land. Therefore, the buyer has a strong incentive to pay off the senior lien. Otherwise, the property is subject to foreclosure if the buyer does not pay. When a mortgage is foreclosed, the buyer at the sale will take title as it existed when the mortgage was placed on the property.

Answer 95

PRIORITIES A creditor MUST record to achieve priority. Once recorded, priority is determined by the norm "first-in-time first-in-right" the creditor who records 1st takes 1st.

Answer 96

 Redemption: At any time prior to the foreclosure sale, the mortgagor may redeem the property by paying the amount due. • Exercising the right of redemption. If the mortgagor or note that contains an “acceleration clause”, the full balance must be paid to redeem. If it does not, payoff missed payments plus accrued interests and cost. - debtor/mortgagor may not waive the right of redemption in the mortgage. this is called clogging the equity of redemption.  In Florida, statutory redemption is not permitted. Statutory redemption gives the borrower a right to redeem himself by buying back the property AFTER a foreclosure sale. This is not permitted in Florida.

Answer 97

 After sale of property, clerk of court must promptly file a certificate of sale. * If no objection to sale are filed within 10 days after filing of certificate of SALE – clerk filed a certificate of title. * When certificate of TITLE is filed – sale stands confirmed.

Answer 98

 Foreclosure of property occupied by tenant: A lease is one type of junior interest. So, must be included as a party in the foreclosure. o If not included, the lease will survive the foreclosure o Interests subordinate to those of the foreclosing party are necessary parties to the foreclosure action. Failure to include a necessary party results in the preservation of that party’s interest despite foreclosure and sale.  In Florida, if a tenant is occupying premises that are the subject of a foreclosure sale and the purchaser wishes the tenant to vacate, the purchaser must serve the tenant a 30-day NOTICE of termination. o The tenant may remain in possession for 30 days following the purchaser’s delivery of this notice.

Answer 99

 Effect of lost note: (July 2019)(Feb 2018) If a negotiable instrument is lost, stolen, or destroyed, a person will be entitled to enforce the instrument if they can prove (i) that they were entitled to enforce the instrument when loss of possession occurred (or that they acquired ownership from a person who was entitled to enforce it when loss of possession occurred); (ii) the terms of the instrument; and (iii) the facts that prevent their production of it.  In Florida, a plaintiff seeking to enforce a lost or missing note in a foreclosure action must file an affidavit with their complaint setting forth the facts entitling them to enforce the instrument.

Answer 100

Generally these provide for forfeiture rather than foreclosure in the event of default.  In Florida, by statute, an installment land sale contract with the purpose of securing an obligation to pay money is treated as a mortgage with the same relationship between a regular mortgagor/mortgagee.

Answer 101

1. Compensatory Damages for any unforeseeable harm 2. Specific Performance: Must show (1) inadequate legal remedy [unique], (2) definite and certain contract terms, (3) feasibility of enforcement, (4) mutuality of enforcement, and (5) lack of defenses. 3. Part Performance: acts of part performance include 1) possession of the land by the purchaser, 2) making of substantial improvements, and/or 3) payment of all or part of the purchase price by the purchaser. 4. Injunction where there is interference with one’s property rights: Must show: (1) inadequate legal remedy, (2) property right, (3) feasibility of enforcement, (4) balance of hardships, (5) lack of defenses. 5. Reformation: equitable action in which the court rewrites the deed to make it conform to the intention of the parties. It will be granted if the deed does not express what the parties agreed to, either because of their mutual mistake or a scrivener’s error. It will also be granted for unilateral mistake.

Answer 102

1. Compensatory Damages for any unforeseeable harm

Answer 103

2. Specific Performance: Must show (1) inadequate legal remedy [unique], (2) definite and certain contract terms, (3) feasibility of enforcement, (4) mutuality of enforcement, and (5) lack of defenses.

Answer 104

3. Part Performance: acts of part performance include 1) possession of the land by the purchaser, 2) making of substantial improvements, and/or 3) payment of all or part of the purchase price by the purchaser.

Answer 105

4. Injunction where there is interference with one’s property rights: Must show: (1) inadequate legal remedy, (2) property right, (3) feasibility of enforcement, (4) balance of hardships, (5) lack of defenses.

Answer 106

5. Reformation: equitable action in which the court rewrites the deed to make it conform to the intention of the parties. It will be granted if the deed does not express what the parties agreed to, either because of their mutual mistake or a scrivener’s error. It will also be granted for unilateral mistake.

Answer 107

 Remedy = injunction; forces you to do it  In Florida, a homeowner’s association cannot enforce a restrictive covenant unless the association is a successor to the developer’s right of enforcement or the covenant has expressly created its benefit

Answer 108

In Florida, the landlord has 15 days to return the deposit, or 30 days to give written notice of intention to impose a claim on the deposit, the tenant than has 15 days to object

Answer 109

When a tenant retains possession of premises pursuant to an option that has become a purchase contract, a landlord-tenant relationship no longer exists between the parties; the relationship becomes a vendor-vendee relationship. Under those circumstances, the landlord/vendor may only remove the tenant/vendee through an action for ejectment. To be successful, tenant must establish that the parties entered into a valid option to purchase the property, and that the option was exercised by tenant. An option to purchase property is an irrevocable offer in effect for a specified period of time. The option: 1) must be supported by consideration, 2) must specify a time within which the option may be exercised, and 3) must identify with particularity the property and price to be paid.

Answer 110

1. Fee Simple Absolute: the property is owned by a single party with no co-owners 2. Tenancy in Common: is the default form of concurrent ownership in Florida. Each tenant has a distinct, proportionate, undivided interest in the property. 3. Joint Tenancy: each tenant has a right to survivorship; each tenants interest must be exactly identical in (1) time, (2) title, (3) interest, and (4) possession must be present a. Instrument of conveyance must expressly provide for the right of survivorship b. Although Florida normally requires the four unities mentioned above to create a joint tenancy, an owner can create a joint tenancy in herself and another in a single deed, even though the unities of time and title and not satisfied (no straw man required) c. Free to convey interest 4. Tenancy by the Entirety: In Florida, a conveyance to spouses presumptively creates tenancy by the entirety; but presumption can be overcome by express language to the contrary. a. Upon dissolution of marriage, parties hold property as tenants in common b. Spouse holding title to real property may create tenancy by the entirety by conveying the property to herself and the other spouse c. Spouse may not convey interest without the others consent d. Creditors of one spouse cannot reach the spouses interest; only joint creditors (creditors of both spouses) can attack the property

Answer 111

1. Fee Simple Absolute: the property is owned by a single party with no co-owners

Answer 112

2. Tenancy in Common: is the default form of concurrent ownership in Florida. Each tenant has a distinct, proportionate, undivided interest in the property without right of survivorship.  This interest is freely alienable by inter vivos and testamentary transfer, inheritable, and subject to claims by creditors.  Each tenant is entitled to possession of the whole estate.

Answer 113

``` 3. Joint Tenancy: 2 or more co-tenants with concurrent undivided interest in the land including the right of survivorship. Each tenants interest must be exactly identical in unity of T-TIP (1) TIME, (2) TITLE, (3) INTEREST, and (4) right to POSSESS the whole ``` Grantor must clearly express the right of survivorship When one tenant dies, the share goes to the surviving joint tenant. a. Although Florida normally requires the four unities mentioned above to create a joint tenancy, an owner can create a joint tenancy in herself and another in a single deed, even though the unities of time and title and not satisfied (no straw man required) SEVERANCE AND SALE A JT may sell or transfer her interest inter vivos (may do so secretly) severing the JT. It severs the JT because it disrupts T-TIP creating a TOC with the incoming buyer Not devisable or descendible because of the right of survivorship SEVERANCE AND PARTITION (Feb 2017): Any co-tenant has a right to judicial partition, either voluntarily, in kind (judicial action for physical division of the land) or by forced sale through judicial action and division of the proceeds.  However, In Florida, only those in possession or having a right to immediate possession of the property are entitled to partition. Remaindermen are not entitled to partition among themselves.

Answer 114

4. Tenancy by the Entirety: In Florida, a conveyance to spouses presumptively creates tenancy by the entirety; but presumption can be overcome by express language to the contrary. a. Upon dissolution of marriage, parties hold property as tenants in common b. Spouse holding title to real property may create tenancy by the entirety by conveying the property to herself and the other spouse c. Spouse may not convey interest without the others consent d. Creditors of one spouse cannot reach the spouses interest; only joint creditors (creditors of both spouses) can attack the property

Answer 115

Rights and Duties of Co-Tenants: Peter Ran Every Tuesday With A Purpose  [Possession]: Each tenant has the right to possess all portions of the property, but cannot have exclusive possession  [Rent]: Rents and proceeds must be shared according to pro-rate interest o A co-tenant is exclusive possession is not liable to co-tenants for rent  [Encumbrances]: If one co-tenant encumbers the property, he has only encumbered his interest in the property  [Taxes]: Each tenant is responsible for his fair share of taxes, interest  [Waste]: can bring an action against another co-tenant for waste  [Adverse Possession]: cannot acquire title through exclusive possession  [Partition]: JT and Tenants in common may bring an action to partition

Answer 116

Florida has adopted the uniform simultaneous death act, which states that if 2 people die at the same time, it is presumed for purposes of devising their property that they survived the other. Florida has not adopted the rule that the spouse must survive the other spouse by 120 hours in order to take it out of the act.

Answer 117

 Severance and Mortgages: Florida is a lien theory state.  A mortgage is regarded as a lien on title and one joint tenant’s execution of a mortgage one of the tenants on his interest will not sever the joint tenancy.  A JT may place a mortgage on his interest but may not encumber the other co-tenant’s interest.  Only the actual foreclosure of the mortgage will sever the joint tenancy and turn it into a tenancy in common.  If the mortgage is foreclosed, it will cause a severance of the joint tenancy BUT if the mortgagor dies before the loan is foreclosed, the mortgage will be extinguished.

Answer 118

SEVERANCE AND PARTITION (Feb 2017): Any co-tenant has a right to judicial partition, either voluntarily, in kind (judicial action for physical division of the land) or by forced sale through judicial action and division of the proceeds.  However, In Florida, only those in possession or having a right to immediate possession of the property are entitled to partition. Remaindermen are not entitled to partition among themselves.

Answer 119

SEVERANCE AND SALE A JT may sell or transfer her interest inter vivos (may do so secretly) severing the JT. It severs the JT because it disrupts T-TIP creating a TOC with the incoming buyer Not devisable or descendible because of the right of survivorship

Answer 120

 Life estate (Feb 2017) lasts for the duration of the grantee’s life.  A life tenant is entitled to all the ordinary uses and profits of the land, but she cannot do anything that would injure the interests of the holder of a remainder or reversion.  These are considered acts of waste and the future interest holder may sue for damages.  Ameliorative waste: consists of acts that economically benefit the property. o At common law, any change to existing buildings or other improvements was always actionable waste, even if it improved the value of the property. o Under modern authorities, a life tenant can substantially alter or even demolish existing buildings if: the market value of the future interest is not diminished, and either the remainderman does not object OR a substantial and permanent change in the neighborhood conditions has deprived the property of reasonable productivity. o Cannot demand that the holder of the remainder pay part of the cost of an improvement  Taxes: life tenant has a duty to pay mortgage interest and property taxes. o Failure to pay required charges constitutes permissive waste  Cannot acquire an interest adverse to the remainderman, either directly or indirectly.  Thus, life tenant who allows the property to be sold for taxes cannot acquire a title adverse to the remaindermen.  The transaction amounts to a redemption and results in a restoration of the rights of the remainderman, as well as of the life tenant.

Answer 121

 Title to real property may be acquired by adverse possession. Gaining title by adverse possession results from the operation of the statute of limitations for trespass to property. If an owner does not, within the statutory period, take legal action to eject a possessor who claims adversely to the owner, the owner is barred from bringing the suit for ejectment and time vest in the possessor. To establish adverse possession: (COAH) (i) actual entry giving exclusive possession that is (ii) open and notorious (iii) adverse/ hostile and (iv) continuous throughout the statutory period

Answer 122

To establish adverse possession: (COAH) (1) continuous throughout the statutory period (2) open and notorious: the sort of possession the usual owner would make (3) actual entry giving exclusive possession that is (4) adverse/hostile possessor doesn't have owners consent to be there* *possessor's mind is irrelevant. Doesn't matter that possessor thought he was on his own land or encroaching on another.

Answer 123

7 years continued possession

Answer 124

one adverse possessor may tack on to his time with the land his predecessor's time, so long as there is privity between the possessors. Privity is satisfied by any non-hostile nexus such as a contract, will, or deed By contrast, privity is absent when the possessor acquires possession by ousting (forcible removal) hid predecessor in possession; ouster defeats privity

Answer 125

The SOL will not run against a true owner who is afflicted by a disability at the inception of the adverse possession. Disabilities include: insanity, imprisonment, and infancy

Answer 126

Adverse Possession under Color of title [the adverse possession claimant must have some sort of title on which to base a claim of title}: for possession under color of title to be adverse, the instrument of conveyance must adequately describe the property and be properly recorded in the official county records. In Florida, if occupation arose under color of title, the property will be considered possessed when it has been: 1. Usually cultivated or improved 2. Protected by a substantial enclosure 3. Used for the supply of fuel or fencing timber for husbandry or for the ordinary use of the occupant 4. Partly improved if the part is of a known or single farm Adverse Possession without Color of Title: [the adverse possession claimant has no claim to title (ownership is not based on a written instrument) and must have paid property taxes on the land claimed to be adversely possessed  To prevail on a claim without color of title the adverse claimant must have: 1. paid taxes within 1 year after possession; 2. return of the property within 30 days; 3. paid taxes on the property for each year of the statutory time limit. Plus 1. substantial enclosure; 2. cultivated, maintained and improved. o The filing of the suit by the true owner is not enough to stop the period from running; the suit must be pursued to judgment.

Answer 127

“HOMESTEAD RIGHTS ARE LIBERALLY CONSTRUED IN FAVOR OF THE DEBTOR.” • You MUST say this in any essay about homestead!

Answer 128

The Florida Constitution terms certain property as “homestead,” thereby protecting it from levy by creditors of the owner. Homestead status automatically attaches to any property in Florida that serves as a natural person’s principal residence.

Answer 129

To establish a homestead, an individual must be a Florida resident, and 1) must have intent to establish that place as their home, and 2) actually live there. Homestead property inside of a municipality is protected up to ½ acre of contiguous land, that includes the residential dwelling. Homestead property outside of a municipality is protected up to 160 acres of contiguous land, including improvements. • Note: there is no cap on the value of the home, just a cap on the physical land protected

Answer 130

As a general rule, a person is only entitled to ONE homestead per individual OR married couple.  If a married couple is legitimately living apart (separated, but not divorced), each spouse may claim a different property as homestead.

Answer 131

Once homestead is established, it may be abandoned if the homesteader leaves the property with the intent to no longer make it their regular abode, and never took repossession of the property.

Answer 132

If the debtor does not use Homestead protection rights to protect real property, he may protect up to $4,000 of personal property instead. Additionally, he may protect $1,000 of vehicle value. Furthermore, the debtor can combine these two exemptions to protect $5,000 of a vehicle. Homestead rights are liberally construed in favor of the debtor. If the property is homestead, and there is any way it can be protected from a creditor, the court will do so. This is a constitutional right. • Note: you can only pick either the vehicle, or the personal property; you cannot choose both, but you can combine them to protect up to $5,000 of a vehicle.

Answer 133

Creditors cannot attach any interest, lien, or encumbrance on the debtor’s homestead property. Exception: - creditors whose debt bears a direct relationship with the property may attach an interest to the property. - Qualifying debts include mortgages on the property, mechanic liens improving value of the property, constructions liens, and tax liens. In order to qualify for homestead creditor protection, the debtor must establish his homestead before the judgment is recorded. Creditors can only attach liens to whichever portion is owned by the tenant if it is a tenant in common situation.

Answer 134

Homestead property is subject to forced sale to satisfy: 1) taxes and assessments against the property, 2) obligations contracted for the purchase, improvement, or repair of the property, and (mechanic or construction lien) 3) mortgages on the property.

Answer 135

Types of property that can be protected  a single-family home, harm, duplex, condo, trailer (if not easily moved), a houseboat (if not easily moved). • The test for trailers or houseboats is whether it is “permanently affixed,” i.e. hooked up to plumbing, electricity, no wheels, hasn’t been moved in a long time, etc.

Answer 136

 If the homestead is sold, the proceeds retain homestead protection status PROVIDED THAT the owner has a good-faith intent to invest the proceeds in another Florida homestead within a reasonable time  Only the amount of the proceeds re-invested is protected.  Proceeds from a foreclosure sale are probably protected, but the case law in unsettled. *** For creditor protection issues, it does not matter which spouse’s name is on the title to the property; the marital home will be homestead for both spouses. Mortgages:  In order for a lender to foreclose on a marital homestead property, both husband and wife MUST be on the mortgage, even if only one spouse is on the deed. Divorce:  Does not automatically terminate the homestead status. Even if one spouse vacates the property, he may still be able to claim the property as his homestead: this is especially true if the spouse who vacated continues to support a minor that resides at the property.  One may try to make equity interest arguments if paid mortgage payments but it will probably not be strong enough

Answer 137

 If the homestead is sold, the proceeds retain homestead protection status PROVIDED THAT the owner has a good-faith intent to invest the proceeds in another Florida homestead within a reasonable time  Only the amount of the proceeds re-invested is protected.  Proceeds from a foreclosure sale are probably protected, but the case law in unsettled.

Answer 138

*** For creditor protection issues, it does not matter which spouse’s name is on the title to the property; the marital home will be homestead for both spouses.

Answer 139

 In order for a lender to foreclose on a marital homestead property, both husband and wife MUST be on the mortgage, even if only one spouse is on the deed.

Answer 140

 Does not automatically terminate the homestead status. Even if one spouse vacates the property, he may still be able to claim the property as his homestead: this is especially true if the spouse who vacated continues to support a minor that resides at the property.  One may try to make equity interest arguments if paid mortgage payments but it will probably not be strong enough

Answer 141

Framework for Answering Homestead Creditor Protection Questions: 1. Does the property qualify as the debtor’s homestead? If there are multiple debtors, discuss each one. 2. How much, and what types of property are protected? 3. Analyze each debt: a. Is the debt related to the property? b. When was the judgment recorded? c. Is there a non-owner/ non-mortgagor spouse? 4. Discuss the effect of homestead on proceeds (if any). 5. What if the property is not homestead?

Answer 142

Framework for Analyzing Restraint on Devise Questions: 1. Is the property the homestead of the married couples? 2. Are both spouses’ names on the title of the property? 3. Did the owner-spouse convey/ devise the property without the other spouse consent? 4. What happens to the homestead property?

Answer 143

One spouse cannot devise or convey the homestead property without the consent of the other spouse, even when only one spouses name appears on the title. However, this protection may be waived in an ante nuptial agreement.

Answer 144

Restraint on devise after death  if the homestead property is owned by one spouse and not the other, there are restraints on what the owner-spouse can do with the property when he or she dies depending on whether or not there are minor children

Answer 145

Restraint on devise after death  if the homestead property is owned by one spouse and not the other, there are restraints on what the owner-spouse can do with the property when he or she dies:  If the homestead owner dies, and leaves minor children and a surviving spouse - the owner-spouse cannot devise the property to anyone including the surviving spouse  By default, the surviving spouse gets a life estate, with a vested remainder to the owner’s lineal descendants o This is the same as what happens if the owner dies intestate, the homestead if not part of the probate estate o The surviving spouse may elect to take a ½ interest in the homestead as tenants in common instead of a life estate, with the remaining one-half interest vesting in the surviving descendants, per stirpes * Each tenant-in-common has the right to total use of the property, and may sell, mortgage, devise or otherwise convey his interest without consent of the other tenants in common. * Each tenant in common may only sell or encumber his share in the property. He cannot encumber the interest of the other tenants in common * Tenancy in common is the default form of shared ownership in Florida. * To establish a joint tenancy with survivorship, the instrument establishing ownership must expressly refer to survivorship

Answer 146

 If the other spouse survives and there are no minor children  same result occurs by default o But if there are no minors to care for, the decedent can choose to devise the homestead to the surviving spouse in fee simple absolute

Answer 147

The decedent can devise the homestead to whomever he chooses

Answer 148

If the property is owned by both spouses - property owned as joint tenants with survivorships or by the entirety is NOT subject to the restraint on devise - The property passes by operation of law to the surviving spouse *** Want to protect a spouse that lives in the house, but does not own it

Answer 149

Framework for Analyzing Restraint on Devise Questions: 1. Is the property the homestead of the married couples? 2. Are both spouses’ names on the title of the property? 3. Did the owner-spouse convey/ devise the property without the other spouse consent? 4. What happens to the homestead property?

Answer 150

In FL, when governmental action affecting property does not rise to the level of taking under the Constitution, but inordinately burdens an existing use of real property or a vested right to a specific use of real property, the property owner is entitled to relief. Real property is inordinately burdened if the government action has directly restricted its use such that the property owner is either: (1) permanently unable to attain the reasonable expectation for the existing use (or vested right to a specific use) of the property; OR (2) left with existing or vested uses that are unreasonable in that the property owner permanently bears a disproportionate share of a burden imposed for the public good, which in fairness should be borne by the public at large. A temporary impact on development that is in effect for longer than ONE year may constitute an inordinate burden.