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Flashcards in Property Deck (54)
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Primary residence of a natural person that is protected from the claims of creditors. Designed to protect the family. 1/2 contiguous acre in the city; 160 contiguous acres outside of the city.


Establishment of Homestead

If the judgment is entered before the homestead is established, then the homestead is not protected against the claims of creditors


Abandonment of Homestead

Homestead is abandoned once the whole family leaves


Exceptions to Homestead Protections

- Mortgages
- Mechanic's Liens
- Taxes


Restrictions on Devise of Homestead

- Forced Sale: Once the owner of homestead property dies, homestead protections inures to the surviving spouse and heirs

- Conveyance (Deeds): If married, cannot convey homestead without joinder of spouse (invalid if one spouse does not join)

- Testamentary Gifts (Wills): Only applies to INDIVIDUALLY owned property that is homestead
Survived by spouse or minor children --> cannot devise
Survived by spouse & no minor children --> can devise
to spouse fee simple
Improper Devise ---> Spouse gets a life estate and all
descendants get a remainder, per stirpes. Spouse can
elect to share 1/2 as tenants in common with
descendants, per stirpes.
No spouse & No minor kids --> devise to whoever


Tenants by the Entirety

Created by a conveyance to a married couple.

In Florida, if married then presume TE.

Has rights of survivorship.

Protection against joint creditors (no protection against creditors from one of the spouse).

If bought together and got married later, then not TE

Spouse must join in any deed or conveyance (not join--> conveyance is void)

Unities: Time, title, interest, possession, marriage

Severance: Death, divorce, joint conveyance, execution by joint creditor


Joint Tenants with Right of Survivorship

To create a JTROS, deed or will must have express language of survivorship (O --> A&B with right of survivorship)

No protection against creditors

Unities: Time, title, possession, interest

Severance: death, partition, 1 tenant conveys


Tenants in Common

Florida assumption without survivorship language. (goes by will or intestacy)

Default if all other co-tenancies fail

Freely conveyable by devise or contract

Unity: Possession


Land Sale Contracts (Conveyancing)

(elements, etc.)

1. Offer
2. Acceptance
3. Consideration

Statute of Frauds: Requires a writing signed by the party to be charged with the essential terms (essential terms: name the grantor/grantee, identify the land, the price, and any conditions on payment)

EXCEPTION: Partial performance (need all 3)
Payments, possession, AND improvements


Equitable Conversion

Once there is a valid real estate contract, the courts can treat the buyer as the owner


Legal Title vs. Equitable Title

Legal title transfers with the deed

Equitable title transfers with the contract


Marketable Title

Title reasonably free from doubt/risk of litigation. Requires the seller, after contracting, to deliver marketable title at the closing. (no breach until after closing)


Deed (Requirements)

- Written instrument
- Signed by the grantor
- Identify the grantor/grantee
- Identify the land
- Signed by 2 witnesses in Florida


General Warranty Deed

Seller warrants that:
- No defect in title has occurred during his ownership of the property
- No defect in chain of title
- Normally contains the 6 covenants for title


Special Warranty Deed

Seller warrants that:
- No defect in title has occurred during his ownership of the property
- The grantor has not conveyed the estate or any interest therein to anyone besides the grantee

-NO warrant that there is no defect in the chain of title


Quitclaim Deed

Seller makes no warranty... grantor simply conveys whatever interest he may have


Delivery of Deed

Must have delivery of a deed. When the deed is delivered, the deed replaces the contract (can sue on contract but not after)



A written promise to do or not to do something on the land. Covenants run with the land.


6 Covenants for Title

1. Seisin: Seller promises that he owns and possesses the land

2. Right to Convey: Seller promises that he has the right to convey property

3. Right Against Encumbrance: Seller promises there are no encumbrances on the land

4. Right of Quiet Enjoyment: Seller promises to assist in defense against claims of superior title

5. Covenant of Warranty: Buyer will not be disturbed by claims of superior title

6. Further Assurances: Seller will take steps necessary to perfect title



(Covenant of Title)
Seller promises he owns and possesses the land


Right to Convey

(Covenant of Title)
Seller promises he has the right to convey the land


Right Against Encumbrance

(Covenant of Title)
Seller promises there are no encumbrances on the land.


Right of Quiet Enjoyment

(Covenant of Title)
Seller will assist in defense against all claims of superior title


Covenant of Warranty

(Covenant of Title)
Buyer will not be disturbed by claims of superior title


Further Assurances

(Covenant of Title)
Seller will take steps necessary to perfect title


Recording Statutes

Florida is a notice state!

In a notice jurisdiction, the last bona fide purchaser for value and without notice prevails

Types of Notice:
Actual: Had actual knowledge of it
Constructive: When the prior conveyance was recorded
Inquiry: With reasonable inquiry, you could have discovered the conveyance

Mortgages must be recorded! If mortgage is not recorded but it had been delivered and you bought it for value without notice, you don't have to pay the mortgage



A security interest in real property to ensure repayment of a loan


Lien Theory vs. Title Theory

Florida is a Lien Theory state!!!!

Lien Theory: If you have a mortgage, the bank has a security interest/lien on the home. If you do not pay, the bank can sell the home in a foreclosure sale, but the bank does not own title until after the foreclosure sale

Title Theory: When you get a mortgage through a bank, the bank owns title until you pay off the loan


Purchase Money Mortgage

A security interest granted for money to purchase real property that has priority over other secured interests (creditors)


Right of Redemption

Any time after default but before the foreclosure sale, the mortgagor can redeem the property by paying off the balance that is due. The right of redemption cannot be waived at the time the mortgage is created.