Shared Flashcard Set


Bar - Real Property w/ FL distinctions
Real Property w/ FL distinctions

Additional Law Flashcards




Present estates
Fee simple absolute: absolute ownership of infinite duration
-"to A" or "to A and his heirs"
-freely alienable and no future interest
-FL: ambiguous conveyance is considered fee simple by default; no words of limitation required

defeasible fees: fee simple determinable and fee simple subject to condition subsequent

fee simple determinable: limited by specific durational language
-"while" "during" until"
-possibility of reverter: automatically reverts to grantor upon occurrence of stated event

fee simple subject to condition subsequent
-limited by specific conditional language
-"provided" "on the condition that" "but if"
-right of reenetry held by grantor

FL: statute limits reverters or forfeitures of RP for breaches of these types of conditions to only 21 years from time they were created; after 21 years they become fee simple absolute subject to a covenant and if violated O and heirs can sue for damages or get an injunction; but this does not apply to transfers to government agencies or charities or nonprofits

fee tail
-"and the heirs of his body"
-FL converts it to a life estate in first taker and grants remainder to taker's descendents
Concurrent estates
tenancy in common
-two or more grantees with unity of possession
-no right of survivorship
-undivided interest with unrestricted rights to possess whole
-interest freely devisable/transferable
-FL: transfer of RP to two or more people creates a TC unless transfer expressly provides for right of survivorship or tenancy by entirety

joint tenancy
-express language creating JT, two or more tenants own with right of survivorship and interest is alienable, but not devisable/descendible
-four unities (need all four at the same time): equal rights to posses the whole, with identical equal interests, at the same time, by the same title
-FL: landowner may create JT in himself and another by a single deed
-severance: sale (don't need consent and severs JT as to seller), partition (voluntary agreement, judicial action, or forced sale), mortgage (severs JT under title theory, but not under lien theory)
-NOTE: FL is a lien theory state so a mortgage does not sever joint tenancy
-FL: slayer statute: if one JT or tenant by entirety is convicted of killing the other, JT is severed

tenancy by entirety
-JT with ROS
-must be married
-protected from creditors of only one spouse
-neither can unilaterally defeat ROS by conveyance to third party
-can be created by transfer from third parties
-FL: TE is created when title-holding spouse conveys deed to other spouse specifying intent to created TE, title-holding spouse conveys property to both, or mortgage encumbering RP made to husband and wife

-co-T in exclusive possession not liable for rent/profits unless ouster
-can collect for operating expenses
-no contribution of reasonable repairs/improvements (unless accounting/partition)
-liable for third-party rent
Future interests
-reversion: arises in grantor who transfers estate less than he owns (usually a life estate or estate for years) and not subject to RAP
-possibility of reverter: fee simple determinable
-right of reentry: fee simple subject to condition subsequent

remainder: future interest that becomes possessory upon expiration of prior estate of known fixed duration created in same conveyance where remainder created (does not cut prior estate short and never follows defeasible fee)

vested remainder: not subject to any conditions precedent and created by ascertainable grantee
-subject to open: at least one member in class qualified to take possession, so each class member's share subject to partial diminution because additional takers not yet ascertained can still vest, rule of convenience closes class when any member entitled to immediate possession
-subject to complete: occurrence of condition subsequent completely divests remainder

contingent remainder: does not meet definition of vested
-FL: contingent remainder that does not vest before preceding estate terminates is destroyed

executory interests: future interest in third party, not a remainder and cuts prior estate short upon occurrence of specified condition, transferable and subject to RAP (remember: follows a defeasible fee and remainders NEVER follow defeasible fees)
-shifting: cuts short prior estate created in same conveyance, so estate shifts from one grantee to another upon happening of condition
-springing: divests interest of grantor or fills gap in possession so estate reverts to grantor

transferability: remainders/executory interests transferable inter vivos and devisable/descendible
Rule in Shelley's case
"to A for life then to A's heirs"

common law: grantee would have a fee simple absolute

most states have abolished

FL: has abolished; creates a remainder in a's descendants; so an instrument that appears to create a life estate to a person with remainder to her heirs instead creates a life estate with remainder per stirpes to life tenant's lineal descendants in being at beginning of life estate
Doctrine of worthier title
from O "to A for life, remainder to O's heirs" is converted into a reversion in O

FL: abolished in FL; A gets life estate and O's heirs get remainder
Destructibility of contingent remainder
rule: if time for possession has arrived and contingent remainder is not ready to take, contingent remainder is destroyed

FL has not statutorily abolished this rule; only applies to legal contingent remainders (not equitable) in RP
Rule against Perpetuities
-at creation of interest, future interest must vest or fail by end of a life in being plus 21 years
-present interests and future interests held by grantor not vulnerable to RAP, only contingent remainders and executory interests
-FL: "wait and see"; non-vested interest in real or personal property is invalid unless: 1) when created, the interest will vest or terminate no later than 21 years after death of an individual then alive, or 2) the condition precedent is satisfied or becomes impossible to satisfy within 90 years after its creation; a future interest held in trust is invalid unless it vests of fails within 360 years (unless trust provides lessor period)
affirmative waste: wasted caused by voluntary conduct which decreases value

permissive waste: wasted caused by neglect toward property which causes decrease in value

ameliorative waste: special situation where life tenant or other person in possession changes the use of proeprty and increases value

applies to:
L v. T
co-T out o possession v. T in possession
bank/lender v borrower
Tenancy for years
-fixed period of time
-created by express agreement
-term more than one year must be in writing and satisfy SOF
-no notice of termination because termination date fixed

FL: may require T to notify L within specified time period (not more than 60 days) so long as L is also subject to notice requirement
-T may be liable for liquidated damages for failure to give notice, but L has to give written notice within 15 days of start of notification period specifying obligations, fee, penalties and other chares
Periodic tenancy
-repetitive, ongoing, estate by set periods of time
-automatically renews at end of each period unless valid termination notice
-SOF not required
-created by express agreement, implication (no mention of duration) or operation of law (hold-over tenant)

FL: to terminate, notice must be given:
-year to year: not less than 60 days
-quarter to quarter: not less than 30 days
-month to month: not less than 15 days prior to end of any monthly period
-week to week: not less than 7 days prior to end of any weekly period
Tenancy at will
-no fixed period of time
-parties must expressly agree or regular rent payment will imply periodic tenancy
-may be terminated by either party at any time, but reasonable demand to vacate usually required
Tenancy at sufferance
-T wrongfully holds over past expiration of lease
-wrongdoer is given tenancy to permit L to recover rent
-T lasts until L evicts T or elects to hold T to periodic tenancy
Tenant duties - pay rent
duty to pay unless premises destroyed, lease terminated, tenant excused, or material breach by landlord

if tenant chooses to withhold rent, T must notify L of problem and give L a reasonable opportunity to fix

FL: if leased premises are destroyed by a casualty to extent that T's enjoyment is substantially impaired, tenant can terminate lease and immediately vacate

FL: T's duty to pay rent is reduced by fair rental value of destroyed portion (if partial destruction)

FL: if L wishes to terminate lease for failure to pay rent, must provide T with written notice that T has 3 days to pay rent or vacate; cannot be waived in lease and has to be 3 business days; if T gives full rent due and L accepts, L waives right to terminate, T fails to pay after notice, L cannot self-help but L can bring action to court
Tenant duties - duty to avoid waste
-T has duty not to commit affirmative (voluntary waste) or permissive (neglectful) waste
-T may make changes to property that increases property's value (ameliorative waste); L usually require permission before T can make change
-duty to repair: in residential lease, L is presumed to be responsible for repairs; T must notify L of any needed repairs; but L not responsible to make repairs caused by T's actions
Tenant duties - other material violations of lease
whether material non-compliance can or cannot be cured

non-compliance which cannot be cured
-generally, intentional destruction, damage, or misuse of property
-L may terminate lease by giving written notice that lease is terminated and that tenant has 7 days from receipt of notice to vacate

non-compliance which is curable
-ex: unauthorized pets or guests, unauthorized parking
-L must give T written notice that T has 7 days from receipt to cure problem, or lease will be terminated
-if T does not cure within 7 days, L may terminate
-if T cures, but non-compliance happens again within 12 months, L may terminate without providing another opportunity to cure
Recovery of possession by L
if there is a holdover T, L can evict or continue relationship with T but treat holdover T as periodic T; L can impose higher rent if L has informed T of increase
-most states no longer allow L use self-help (including FL, like locking doors, etc), so L must properly serve T with notice of lawsuit and obtain court judgment of possession
Abandonment by T
majority rule: L must make reasonable efforts to re-rent property; L must treat leasehold as if it was vacant stock; if L does not make diligent efforts to mitigate, T is relieved from obligations to pay back rent; if L does seek to mitigate, L is entitled to diff between original rent and the rent received from replacement T; L does not have to accept unacceptable T

minority rule: L does not have to mitigate damages
Landlord duties - possession
must deliver actual possession or no obligation for T to pay rent
Landlord duties - repair
except for T damages, L must repair for residential but not commercial leases
Landlord duties - FL deposit money
FL: L has 15 days to return deposit money or 30 days to provide written notice of claim on deposit, T then has 15 days to object
Landlord duties - implied covenant of quiet enjoyment
T can withhold rent when L takes actions that make premises wholly or substantially unsuitable for intended purposes and T constructively evicted

four elements
-premises were unusuable for intended purposes
-T notified L of problem
-L did not correct
-T vacated premises after reasonable time had passed
Landlord duties - implied warranty of habitability
L has obligation to maintain property such that it is suitable for residential use; concerned with tenant health and safety
-T cannot waive habitability protection
-L's failure to comply with applicable housing codes constitutes breach
-applies to residential properties but not commercial leases

if premises are not habitable, tenant may
-refuses to pay rent
-remedy the defect and offset costs and against rent
-defend against eviction

NOTE: do not have to vacate

if T choses to withhold rent, must notify L of problem and give L reasonable opportunity to correct

FL: L has duty to repair, duty may be altered in writing in single-family or duplex lease
-must comply with applicable building, housing and health codes
-if no code, maintain essentials of home
-for multi-family dwellings, L must also provide extermination of pests, locks and keys, safe and clean common areas, garbage removal, heat, running water, and hot water
-T must give written notice of noncompliance and allow 7 days to cure
Retaliatory eviction
unlawful in FL for L to increase rent, decrease services, or bring eviction action against T in retaliation against T

activities against which L is not permitted to retaliate
-T reports violation of housing or health codes
-T participates in T organizations
-T pays rent directly to condo or HOA after demand from organization to pay L's obligation to organization
-T exercises rights under local, state or federal housing laws
FL homestead
residency requirements
-owner or owner's family must actually reside on property and have intent to remain indefinitely; must be primary residence

-proceeds from voluntary sale of homestead is protected from forced sale is owner intends to reinvest in another FL homestead within reasonable time, keeps proceeds of sale separate and actually reinvests
-same rules for reinvesting if homestead is destroyed by casualty

protection from forced sale
-can be single-family house, townhouse, condo
-can be fee simple or lesser interest
-no dollar cap

acreage limitation
-within municipality: half acre of land
-outside municipality: 160 acres of contiguous land

homestead protection from forced sale
-if property is homestead RP then it generally may not be forcibly sold to pay debts of homeowner
-exceptions: payment for taxes and assessments on homestead, purchase or improvements of homestead, labor performed on RP
-protections survive owner's death depending on who gets land (spouse: protected, heirs if any class of persons listed in FL intestacy: protected)

restrictions on alienation of homestead property
-during lifetime, unmarried owner may alienate by mortgage, sale or gift
-married person who owns homestead alone may not transfer any interest without spouse's interest

restrictions on devise of homestead
-if owner is survived by minor, owner cannot devise at all
-if owner is not survived by minor, but survived by spouse, can devise but only to spouse
-if owner attempts devise of homestead that is invalid, devise not enforced
-surviving spouse's homestead rights may be waived, wholly or partly, before or after marriage by a written K, agreement, or waiver, signed by waiving party in presence of 2 witnesses
-if spouses own it as tenants by entirety and not as homestead, surviving spouse takes it by right of survivorship
Adverse possession
1) continuous/uninterrupted
-common law: 20 years
-FL: 7 years
-seasonal use OK if consistent with type of property
-tacking okay, but no gaps and via non-hostile connections only

2) actual
-actual entry giving exclusive possession that is open/notorious, but if only actually posses portion of property, constructive AP gives title to whole

3) hostile
-must possess land without owner's permission and with intent to claim land against claims of others

4) exclusive
-cannot be shared with true owner

FL: constructive AP: if property is divided into lots, person claiming AP of one lot does not obtain constructive AP of any other lots

under color of title: constructive AP begins when instrument is properly recorded and property has been improved
FL also requires:
-must within first year of possession file return and pay all outstanding fees on land
-file certificate within 30 days of tax returns
-continue to pay taxes for full 7 years

without color of title: occurs when person has a defective instrument
FL requires
-written instrument conveying title
-AP requires possessor pay outstanding taxes, file description with appraiser, and continue to pay taxes
-possessor must enclose or improve property
Equitable conversion
-during period between execution of sale K and closing on property
-majority rule: buyer holds equitable title during period between execution of K and closing and delivery of deed so buyer responsible for any damages to property
-minority rule: places risk of loss on seller until closing and delivery of deed (called Uniform Vendor and Purchaser Risk Act)

-if something happens to property, risk of loss is on buyer
Installment sales contracts
security agreement between seller and buyer

seller agrees to sell property, by financing purchase for buyer
-seller retains legal title and buyer receives equitable title
-buyer takes immediate possession and acts as owner
-upon payment in full, seller conveys deed to buyer

FL: if buyer breaches payment treat as mortgage so seller would have to go through full foreclosure proceeding
Lien theory v title theory:
-lien theory: mortgages only acquire lien on property in lien theory states
-mortgagee gets title to property until mortgage is satisfied in title theory state
-FL is lien state

right of redemption: pay in full before house is foreclosed on; legal right

no statutory right of redemption in FL: debtor/mortgagor cannot redeem property after foreclosure sale is complete
-mortgagor can cure indebtedness and prevent foreclosure sale (right of redemption)
-right to cure only applies before later of: filing of certificate of sale by clerk of court or time specified in foreclosure order
Security interest
-mortgages must be in writing
-debtor/mortgagor has title and right to possession until foreclosure and creditor/mortgagor has lien and right to land if there is default
-lien stays on land if mortgage instrument properly recorded
-creditor can foreclose by judicial proceedings which terminate junior interests
-FL: no statutory right of redemption
formalities: land K must be in writing, signed by party to be charged and contain all of the essential terms (parties, property description, terms of price/payment)
-FL: in addition, K must be signed in presence of two witnesses

part performance (SOF exception; need two): buyer takes possession of land, buyer remits all or part of purchase price, and//or buyer makes substantial improvements

detrimental reliance: specific performance permitted if party seeking enforcement reasonably relied on K and would suffer hardship
Marketable title
-every land sale K includes an implied covenant of marketable title
-title free from defects or unreasonable risk of litigation
-buyer can rescind/recover payments, sue for breach, or sue for specific performance with an abatement of purchase price
-ex: title acquired by adverse possession that hasn't been quieted, private encumbrances, zoning ordinances
-defect in title must be cured or fixed before closing, at which point K and deed merge and deed controls
Implied warranty of fitness or suitability
applies to defects in new construction
-both initial homeowner and subsequent purchasers recover damages
-suit for breach of warranty must be brought within reasonable time after discovery of defect

FL: duty to disclose facts materially affecting value that are not readily observable and not known to buyer
Duty to disclose defects
most jursidictions impose duty on seller to disclose to buyer all known, physical material defects
-concerned with latent or hidden defects
-material defects must substantially effect value of home, health and safety of occupants, or desirability of home
-general disclaimers (as is) will not satisfy duty to disclose

FL: duty applies to both new and used property
Deed - delivery
at time of transfer grantor must intend to make present transfer of property interest to grantee
-rebuttable presumption of delivery/intent
-physical transfer of deed is not required but creates presumption of grantor's intent
-recording of deed
-intent can be implied from words/conduct of grantor
-parol evidence admissible to establish intent when grantor keeps deed

-transfer to grantor's agent not delivery but is for grantee's agent
-transfer to third party with condition is not delivery if grantor keeps absolute right to recover deed, but if not, treated like future property interest
-if conditioned upon death must intend to make present give
-acceptance presumed for beneficial transfers
Deed - valid deed requirements
-identified parties
-grantor's signature
-words of transfer
-reasonably definite property description

FL: signed in presence of two prescribing witnesses
Recording acts
Notice: bona fide purchaser (purchaser for value without notice) of prior interest prevails over prior grantee who failed to record
-must record against subsequent purchaser
-FL: notice jurisdiction; lien or judgment creditor who takes without notice is also protected against prior interest holder who failed to record

race: first to record prevails regardless of knowledge of prior conflicting interests

race-notice: subsequent BFP protected only if he takes without notice and is first to record
Types of notice
actual: personal knowledge of prior interest that cannot prevail under notice or race-notice statute

inquiry: if reasonable investigation would disclose prior claims, grantee cannot prevail against them
-FL: purchaser has duty to conduct reasonable investigation of premises and inquire as to any ownership rights

constructive: properly recorded and appears in chain of title
Easements - express
affirmatively created by parties in writing that satisfies SOF
Easements - implied
necessity: created when property is useless without benefit of easement across adjacent property, dominant/servient estates must be under common ownership and necessity must arise when estate severed

FL: necessity: recognizes if
-person grants land with no accessible right-of-way
-there is no other reasonable ingress and easement is necessary for use and enjoyment of part granted or reserved, and
-unity of title exists

FL: statutory way of necessity: statutory easement exists when rural land is sought to be used for a dwelling, agriculture, timber raising, or stock raising and land is otherwise shut off by land, fencing or improvements; landowner entitled to compensation

implication: if easement previously used on servient estate by earlier owner, court implies intent for easement to continue if prior use was continuous, apparent and reasonably necessary to dominant estate's use/enjoyment, estates were once under common ownership, and quasi-easement existed at severance
Easements - prescription
continuous, actual, open and hostile for statutory period (20 years at CL) (FL would be 7)
Easements - estoppel
good faith, reasonable, detrimental reliance through permission by servient estate holder, issued to prevent unjust enrichment
Easements - negative
prevents owner from using land in specific ways, must be expressly created by writing, signed by grantor and usually only recognized for light/air/support/stream water from artificial flow
Estoppel by deed
grantor conveys land grantor does not own; if grantor subsequently acquires title to land, grantor is estopped from trying to reposses on grounds that he didn't have title when he made original conveyance
-writing: must comply with SOF unless implied reciprocal servitude
-intent: rights/duties to run with land through explicit language or implied from totality of circumstances
-touch and concern land: benefit or burden must affect promisee/promisor as owner of land
-notice: must be constructive or actual
-privity: horizontal privity (burden only) when estate and covenant in same instrument, vertical privity (covenant based on mutual/successive interest in land burdened/benefitted by covenant)

FL: termination
-Marketable Record Title Act
-governs restrictive covenants such as those under homeowners associations
-encumbrances on RP may be rendered unenforceable 30 years after date of record if not properly preserved or reaffirmed
-RP can be transferred by devise
-if person dies without will, estate distributed by intestate succession
-people who take decedent's intestate estate are called heirs
-if decedent dies without will and without heirs, decedent's property escheat to estate

special problems in wills
-ademption (by extinction): devise of property that fails because it is no longer in testator's estate at testator's death (testator sold or destroyed); if it is adeemed, beneficiary gets nothing; ademption by satisfaction: if testator gives property to beneficiary while testator is alive, called adeemed by satisfaction
-lapses and anti-lapse statutes: lapse is a devise of property that fails because beneficiary dies before testator dies and no alternate beneficiary named in will; traditional rule is that lapsed gift becomes party of residuary gift; anti-lapse statutes prevent this and require that the gift be made to a parent and that deceased beneficiary be survived by issue; FL has anti-lapse statute if devisee is grandparent or descendant of grandparent and has a decedent (take per stirpes)
device for managing property whereby one trustee owns property for benefit of another person
-trustee holds legal title while beneficiary holds equitable title; beneficiary's sole job is to receive payment/property from trust
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