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Flashcards in Property Deck (54)
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1

Homestead
(defined)

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.

2

Establishment of Homestead

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

3

Abandonment of Homestead

Homestead is abandoned once the whole family leaves

4

Exceptions to Homestead Protections

Supercreditors!
- Mortgages
- Mechanic's Liens
- Taxes

5

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

6

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

7

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

8

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

9

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

10

Equitable Conversion

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

11

Legal Title vs. Equitable Title

Legal title transfers with the deed

Equitable title transfers with the contract

12

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)

13

Deed (Requirements)

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

14

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

15

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

16

Quitclaim Deed

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

17

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)

18

Covenants

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

19

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

20

Seisin

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

21

Right to Convey

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

22

Right Against Encumbrance

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

23

Right of Quiet Enjoyment

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

24

Covenant of Warranty

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

25

Further Assurances

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

26

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

27

Mortgage

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

28

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

29

Purchase Money Mortgage

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

30

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.