FL Real Property

Question 1

Adverse Possession

Answer 1

In Florida, a party can gain title to property through adverse possession if there is actual possession that is hostile and adverse, open and notorious used to put the true owner on notice, exclusive and continuous for the statutory period (7 years). Florida also requires improvement to the land which means improving, cultivating, or protection by substantial enclosure.

Additionally, in Florida, a claimant can bring an action for AP under color of title or without color of title. To prove AP under color of title the claimant must have recorded some type of deed which purports to vest title in the claimant, to prove AP without color of title the claimant must file tax returns and have paid the property taxes for the statutory period.

Question 2

Constructive Trust

Answer 2

Constructive Trust is an equitable remedy to prevent unjust enrichment by a person who obtained property through fraud, duress, undue influence, or detrimental reliance. This compels someone who unfairly holds a property interest to convey that interest to another to whom it justly belongs.
Resulting Trust
If a private express trust fails in whole or in part the court will impose a resulting trust in which the trustee will hold excess trust property for the benefit of the settlor.

Question 3

Deeds

Answer 3

At closing the real estate contract merges into the deed and the deed controls.
Florida law requires that a valid deed needs to be in writing, signed by the grantor, and must done in the presence of two witnesses who must also sign the deed. A deed must also use words of transfer, identify the parties and include a description of the property.
For an effective transfer there must be intent to convey, delivery, and acceptance (presumed). – grantees must be identifiable.

Question 4

Types of Deeds

Answer 4

Type of Deeds
A general warranty deed warrants that there were no title defects that occurred during grantor’s ownership and no defects in the chain of title.

A special warranty deed contains warranties but only against the grantor’s own actions.

Quitclaim deed provides no warranties or covenants of title.

Question 5

6 Deed Covenants

Answer 5

3 present warranties:
Seisin – the grantors own’s the estate they are conveying,
Against encumbrances – grantor promises there are no encumbrances on the property,
Right to convey – grantor promises they have the right to convey.

3 future warranties:
Warranty – the grantor promises he will defend title against lawful claims and compensate the grantee for any loss sustained by assertion of superior title,
Quiet enjoyment – promises the grantor will not be disturbed in possession an enjoyment by assertion of superior title,
Further assurances – grantor promises to take whatever steps may be required to perfect title.

Question 6

Easement Intro

Answer 6

Intro - Affirmative v. Negative
An easement is a non-possessory interest to use land of another or to restrict the use of another’s land.

An easement may be affirmative or negative. An affirmative easement gives the holder the right to do something on the land. A negative easement creates a restriction on the landowner not to use their property in a particular way

An easement appurtenant benefits a specific parcel of land and runs with the land. For an easement to be appurtenant, there must be a dominant (benefited estate) and a servient (burdened estate). The holder of an easement in gross acquires a right to use the servient land. (benefits holder rather than parcel).

Question 7

Types of Easements

Answer 7

An express easement is granted in a writing or a deed and must satisfy the statute of frauds.

An easement by necessity is created when there is unity of title, no right of way, and no reasonable way to get on or off the property. If all 3 elements exist there is a presumption that an easement has been granted.

An easement by prescription requires actual possession that is hostile and adverse, open and notorious, and continuous for the statutory period (20 years).

Easement by implication occurs when a property is divided and the facts and circumstance indicate by prior use that is reasonably necessary.

Florida recognizes a statutory easement of necessity when any land outside a municipality that is used for dwelling or agricultural purposes is shut off so that no practicable egress or ingress exists, no unity of title.

Question 8

Termination of Easements

Answer 8

Surcharge - A person using an express easement beyond its stated use may be liable for a surcharge for the value of the overuse. If the surcharge is not an adequate remedy, the landowner can seek an injunction to stop the overuse or seek termination by judicial decree, if the overuse is causing irrevocable harm.

1. Release (giving back easement),
2. Abandonment (non-use AND intent not to return)
3. Merger – Owner purchases the tract with the easement it merges into the estate
4. Expiration (express)
5. Necessity ends

Question 9

Quiet Title

Answer 9

In Florida, an action for quiet title asks the court to declare a judgment terminating rights on parties with clouded title.

A successful quiet title action removes all adverse legal claims and interest on the property in question. This results in a Florida judge signing a judgment that renders the property as quieted, and as a result the recorded chain of title if free from encumbrances and/or liens.

Question 10

Ejectment

Answer 10

In Florida, ejectment is a statutory cause of action by a person with superior right to possession to recover possession of the property wrongfully occupied by another.

Question 11

Eviction

Answer 11

In Florida, the right to evict belongs to the owner of the property. Grounds for eviction include material breach of lease terms, non-payment of rent, committing waste, or when a tenant stays beyond their rental period without permission (holdover tenant).

Eviction for non-payment of rent requires the landlord to provide 3 days written notice to pay or vacate.

Eviction for non-compliance with lease terms landlord must give tenant 7 days to cure if tenant violates the lease again within 12 months the landlord can immediately file an action for eviction without notice to the tenant.

Question 12

Partial Eviction

Answer 12

Partial destruction of premises the tenant does not have to pay rent for the entire premises.

Question 13

Retaliatory Eviction

Answer 13

In Florida, a landlord cannot increase rent or threaten eviction if the tenant in good faith reports violations, participates in tenant organization, or complains to the landlord about the landlord’s non-compliance with the lease.

Question 14

Return of Security Deposit

Answer 14

A residential landlord has 15 days to return a security deposit or 30 days to provide the tenant with written notice by certified mail of the intent to make a claim on the deposit. The tenant has 15 days to object. Landlord cannot make a claim if they do not provide proper notice.

Question 15

Waste Grounds for Eviction

Answer 15

Affirmative waste is when the tenant intentionally or negligently causes harm to the property.

Permissive waste is when the tenant fails to maintain the premises in good condition and allows the property to go into disrepair.

Ameliorative waste is an improvement that changes the character of the property which increases its value. Recovery will be the cost to restore the land to its original condition.

Question 16

Pre-foreclosure Rights and Duties

Answer 16

Florida is a lien theory state which means the mortgagee only has a lien and cannot take possession of the property prior to foreclosure because the mortgagor is considered to be the owner of the property until foreclosure.

Based on the equity of redemption, after default but before a foreclosure sale, the mortgagor can regain clear title to the property by paying the full amount of the outstanding debt plus any accrued interest.

A mortgagor may waive the right to redeem after the mortgage is executed in exchange for consideration. However, a court will generally not enforce such a waiver as it clogs the mortgagors right of redemption.

A mortgagee has the option of accepting a deed in lieu of foreclosure. Upon agreement by both parties, the mortgagor may convey all interest in the property to the mortgagee which allows the mortgagee to take immediate possession of the property without any further legal formalities.

Question 17

Foreclosure Process

Answer 17

Florida requires foreclosure by judicial sale. The mortgagee must give notice to the mortgagor and the holder of any junior interests in the property, senior mortgages may also be joined.

A valid foreclosure will terminate any interest that is junior to the interest being foreclosed but will have no effect on any senior interest.

A first in time mortgage has priority over subsequent interests with two exceptions. First, a purchase money mortgage (PMM) which is used to finance the purchase of the property will take priority over any liens created before the PMM even if the prior lien was recorded. Second, a subsequent mortgage has priority over an unrecorded, non-PMM interest.

Generally, the mortgagee is only entitled to collect the amount of the obligation that is currently due and owing, unless there is an acceleration clause which provides the that the full amount becomes due upon default. A due-on-sale clause provides that the full amount becomes due upon sale or transfer of the property used to secure the note. Due-on-encumbrance clause is an acceleration clause when the mortgagor obtains a second mortgage or encumbrance.

Question 18

After Foreclosure Sale / Effect of Foreclosure

Answer 18

After a foreclosure sale the mortgagor’s interest is terminated, the purchaser will take the property free and clear of any junior mortgage and subject to any senior mortgage. However, if a junior interest was not given notice and made a party to the action, the interest will be unaffected.

The proceeds are first applied to the costs associated with the sale, second to the balance and interest of the mortgage obligation being foreclosed, and third to the mortgage obligations owed to junior interest holders in the order of priority. Any remainder is paid to the mortgagor.

A mortgagee is permitted to bring a personal action against the mortgagor and any party who assumed the mortgage if there is a deficiency.

Florida does not recognize a statutory right of redemption after foreclosure sale is complete

Question 19

Mortgage

Answer 19

A mortgage is a document that conveys an interest in real property to a mortgagee as security for an obligation. A mortgagee is the lender of a mortgage, typically a bank. A mortgagor is the borrower of a mortgage, typically an individual or business entity.

Question 20

Foreclosure: Standing

Answer 20

Generally, a mortgagee may foreclose on a mortgage when the mortgagor is in default. Default occurs when the mortgagor fails to make timely loan payments.

A party seeking to foreclose must demonstrate it has standing and the legal right to foreclose. The claimant must show it is the owner of the note and mortgage and it had ownership before filing the action. This can be proven by a chain of self-authenticated assignments.

Question 21

Foreclosure: Lost Note

Answer 21

In Florida, if a promissory note has been lost the plaintiff can provide a lost note affidavit showing an unbroken chain of ownership from the originating lender to the present owner of the loan.

The plaintiff is still entitled to enforce the note if they were entitled to the instrument when the loss of possession occurred, the loss of possession was not the result of a transfer or lawful seizure, and it cannot reasonably obtain possession because the instrument has been destroyed or its whereabouts are unknown.

Question 22

Land-Sale Contract

Answer 22

Common law governs real estate and services contracts.

A contract for the sale of land requires an offer, acceptance, and consideration. Offer is the objective manifestation of an intent to enter into a contract with definite terms which is communicated to the offeree which creates the power of acceptance. An acceptance is the manifestation of assent to the offeror’s terms that is communicated and absolute & unequivocal. In Florida, consideration is a benefit, legal detriment, or both.

Question 23

Enforceability: Statute of Frauds

Answer 23

The statute of frauds requires that a land contract must be in writing and signed by the party to be charged. The writing must contain all essential terms, including the price of the property, identification of the parties to the contract, and a description of the property.

Part performance exception: if all of the following are satisfied by the buyer: (1) payment of part or all of the contract price (2) taking possession (3) making substantial improvement.

Question 24

Installment Land Contracts

Answer 24

An installment land-sale contract, is an agreement where the buyer and seller agree that the buyer will pay the purchase price and interest in installments over a set period of time, the seller will retain title until all payments have been made. In Florida, installment contracts are treated like a mortgage and thus are a lien on the property.

Question 25

Equitable Conversion

Answer 25

Once the contract is signed, the buyer has equitable ownership and the risk of loss passes to the buyer. The seller must credit any insurance proceeds against the purchase price.

Question 26

Marketable Title

Answer 26

Every land sale contract in Florida contains the implied warranty that the seller will provide marketable title at closing which means the title must be free of questions that present unreasonable risk of litigation.

Question 27

Duty to Disclose

Answer 27

In Florida, the seller of residential property has the duty to disclose all known material defects thar are not readily observable to the buyer. A material defect is one that would make a buyer reconsider the purchase. Remedy is recission. – Residential only. Commercial property caveat emptor.

Question 28

Implied Warranty of Fitness

Answer 28

Warranty of fitness is implied in a contract for the sale of a newly constructed home. The seller warrants that he used adequate materials and good workmanship, the warranty generally covers latent construction defects.

Question 29

Tenancy for Years

Answer 29

Tenancy for years is a lease for a fixed period of time, absent a provision in the lease, notice is not required for termination since the tenant knows the termination date from the outset of the lease. – if the lease does require notice it cannot be more than 60 days

Question 30

Periodic Tenancy

Answer 30

Periodic tenancy is a tenancy that continues for successive periods until either party gives notice of termination. In Florida, a year to year requires 60 days’ notice before the end of the period, quarter to quarter requires 30 days’ notice before the end of the period, month to month requires 15 days’ notice before the of the period, week to week requires 7 days’ notice before the end of the period

Question 31

Tenancy at Will

Answer 31

Tenancy at will goes on indefinitely and can be terminated by either the landlord or tenant at any time. An unwritten non-residential lease is a tenancy at will.

Question 32

Tenancy at Sufferance

Answer 32

Tenancy at sufferance is created if the tenant holds over after the lease expires without the landlord’s permission. In this case the landlord will be entitled to recover double rent for the period of the hold over. NO SELF-HELP (must file an eviction action) – actual and consequential damages or 3 months’ rent whichever is greater.

Question 33

Tenant Duties

Answer 33

7 days to cure. 3 days to pay rent

Tenant has a duty to pay rent, comply with health and building codes, keep the premises clean and dispose of garbage, not destroy the premises or commit waste, or do anything that will breach the peace.

Question 34

Landlord Duties

Answer 34

7 days to cure.

Landlord has a duty to deliver physical possession when the lease begins and must maintain the premises at all times during the tenancy. This includes complying with local building and health codes, keeping all structural components in good repair, hot water and adequate plumbing, and extermination of pests.

Question 35

Implied Warranty of Habitability

Answer 35

Implied warranty of habitability states the landlord has the duty to provide a habitable rental. Health and safety issues will result in a breach of this warranty. The tenant must provide written notice to the landlord and the tenant can either abate rent or terminate the lease by claiming constructive eviction.

Question 36

Constructive Eviction

Answer 36

Every lease contains the covenant of quiet enjoyment which means the premises must be suitable for its intended purpose. If this duty is breached the tenant can terminate the lease by claiming constructive eviction.

To claim constructive eviction the tenant must give the landlord written notice of the issue and a reasonable opportunity to fix the problem. If the problem is not fixed the tenant must vacate.

Question 37

Option Contract

Answer 37

In an option contract, one party acquires the right to purchase property, typically during a specific time period, in exchange for consideration. An option contract removes the ability of a grantor to revoke the option. The option must be in writing to satisfy the SOF

**Note if an option is not recorded it cannot be asserted against a BFP

Question 38

Partition

Answer 38

In Florida, a partition action can be brought by any joint tenant or tenant in common. A partition in kind is when the court will physically divide the property into separately owned parts. When physical division is impossible, impracticable, or inequitable, the court will order a partition by sale and distribute the proceeds to the parties in accordance with their respective interests.

Question 39

Real Covenant

Answer 39

A real covenant is a written promise to do something on the land or a promise not to do something on the land (restrictive covenant), it is governed by contract principles. To enforce the covenant, it must run with the land which means there was intent, touches and concerns the land, horizontal and vertical privity, and notice. – DO ANALYSIS – money damages

To run the benefit vertically some test must be satisfied, to run the burden vertically the same test must be satisfied

Question 40

Equitable Servitude

Answer 40

Equitable servitude is a restriction placed on the land requires intent, notice, and touch and concern the land. (no privity) – injunction damages. – Restrictive covenant + injunction = equitable servitude.

Question 41

Real Covenant: Termination

Answer 41

Termination: Marketable record titles act covenants must be preserved or reaffirmed by filing a notice of preservation in the public records – must be done 30 years after the initial recording.

Question 42

Real Covenant: Variance

Answer 42

Use variance is a type change (i.e. residential to commercial) satisfy undue hardship test which means the plaintiff must prove that no reasonable use of the property exists without a variance.

Area variance is a change in size. Must satisfy the practical difficulties test which means the plaintiff must prove at least inconvenience.

Question 43

Nuisance

Answer 43

Private nuisance occurs when there is a substantial, unreasonable interference with another’s use or enjoyment of property. The interference must be offensive, inconvenient, or annoying to an average person in the community.

Illegal activity, pollution, noxious odors, fences, and constant barking all may rise to the level of a private nuisance if it unreasonable.

Question 44

Recording Jurisdiction

Answer 44

In Florida a deed does not need to be recorded to be valid but is important to put the world on notice of the ownership. Florida is a pure notice jurisdiction which applies to conveyances, transfers, mortgages, or leases of a term of 1+ years.

Florida’s pure notice statute protects the last or subsequent bonafide purchaser. A BFP is someone who pays value and takes without notice.

Question 45

Notice Types

Answer 45

There are three types of notice. Actual notice is when the purchaser actually knew of the prior unrecorded conveyance. Record/constructive notice is when the other party’s deed is recorded in the proper place in the record books. Inquiry notice is when the appearance of the property is such that the purchaser should have asked more questions about the title to the property. Florida imposes a duty to conduct a reasonable investigation to determine ownership rights.

Question 46

Transfer of Mortgage

Answer 46

Absent a novation, the mortgagor remains personally liable on the loan obligation after the transfer of the mortgaged property.

Assumption of mortgage occurs when the buyer takes responsibility to pay the existing mortgage on the property. The mortgagee then becomes a third-party beneficiary and can bring an action to recover against the buyer or the original mortgagor (unless there is a novation).

Subject to the mortgage does not place any liability upon the buyer. The mortgagee can only bring an action to recover against the original mortgagor for nonpayment.

Question 47

Mortgage Transfer to New Mortgage

Answer 47

When the mortgage is transferred to a new mortgagee, if the promissory note is a negotiable instrument, then the mortgagor is generally obligated to pay the holder of the note, even if it is transferred to a third party (by delivery & indorsement) without the mortgagor’s knowledge. Contrarily, if the promissory note is non-negotiable, it may be transferred by a separate document assigning the right to a third party.

Question 48

PTFA

Answer 48

The federal Protecting Tenants at Foreclosure Act (PTFA) allows a tenant with a bona fide lease for residential property to remain on the premises until the end of the lease term after a foreclosure sale. However, the lease can be terminated with 90 days’ notice if the property was sold to a purchaser who will occupy the property

Question 49

Joint Tenants

Answer 49

A joint tenancy in an undivided interest in the whole property with the right of survivorship. Four unities are required for a joint tenancy time, title, interest, and possession. Take title at the same time, by the same instrument, with the same interest in the property, and equal possession. The deed must contain “with rights of survivorship” in order to create a joint tenancy. Can be severed by an inter vivos conveyance or partition.

Florida is a lien theory state which means that a lien on the property will not sever the joint tenancy, in a title theory state a lien on the property would sever a joint tenancy and thus would become TIC. In a lien theory state, when a joint tenant dies his debts die with him and do not pass to the remaining joint tenants.

Question 50

Tenants by the Entirety

Answer 50

Tenancy by the entirety (TBE) requires the same unities as a joint tenancy plus the unity of marriage. In Florida, it is presumed that a married couple take title as tenants by the entirety. TBE cannot be unilaterally severed and includes the right of survivorship.

Property owned by a married couple as tenants by the entirety is not subject to judgment unless the judgment is against both spouses.

Question 51

Tenants in Common

Answer 51

Each tenant owns an undivided interest in the whole and each are entitled to possession of the whole. Each can encumber their interest, and each have the right to partition.