FL PROPERTY

EASEMENT/COVENANT

1. EASEMENT

• Non-possessory INTEREST to USE the land of another or RESTRICT the use of another.

• POSITIVE or NEGATIVE.

1. CREATION OF EASEMENT

• EXPRESS:

  • IN WRITING.

• NECESSITY:

  • NOT IN WRITING.

  • Factually based on it was NECESSARY for someone to enter the land of another because they are landlocked.

• BY PRESCRIPTION:

  • NOT IN WRITING.

  • 20 Years.

  • Open/Notorious, Adverse, and Continuous.

• BY IMPLICATION:

  • NOT IN WRITING.

  • Implied by Prior Use.

1. DURATION OF EASEMENT

• Last FOREVER. Runs with the land, UNLESS its terminated.

• TERMINATON:

  • Express Easements:

    • When stated.

  • Easement by Necessity:

    • No longer necessary.

  • Abandonment:

    • Non-use.

    • Express intent to no longer return.

  • Merger:

    • Two Property MERGE Together.

1. COVENANT

• ALWAYS in writing. It is a PROMISE to allow.

• Contract Principles:

  • Offer, Acceptance, Consideration.

• RESTRICTIVE COVENANT:

  • RESTRICTS use.

• RUNS W THE LAND:

  • INTENT.

  • TOUCH & CONCERN.

    • Is it about how the property itself is used?

  • PRIVITY.

    • Horizontal and Vertical.

  • NOTICE.

• EQUITABLE SERVITUDE:

  • NOT enforced by monetary damages.

  • Seek an INJUNCTION.

    • An order to stop someone.

LANDLOND/TENANT

1. STATUTE OF FRAUDS

• Leases for OVER a year.

• Has to be IN WRITING.

1. TYPES OF TENANCY

• PERIODIC TENANCY:

  • Has start date.

  • NO termination date UNTIL notice is given.

  • Notice to Terminate Month-Month:

    • NO LESS than 15 days.

  • Notice to Terminate Year-Year:

    • NO LESS than 60 days.

• TENANCY FOR YEARS:

  • Has start AND end date.

• AT WILL:

  • Goes on INDEFINITELY.

• AT SUFFERANCE:

  • Holdover Tenant.

  • Landlord can EVICT and charge DOUBLE RENT.

1. TENANT DUTIES

• ALWAYS has a duty to pay rent, UNLESS warranty was breached.

• NOT commit waste.

  • Failure to act also commits waste.

  • Affirmative actions.

1. LANDLORD DUTIES

• Deliver physical possession on the FIRST date on the lease.

• WARRANTY QUIET ENJOYMENT:

  • Maintaining quiet so tenant can be at peace.

• WARRANTY OF HABITABILITY:

  • Maintaining health and safety code.

  • Tenant May Argue:

    • Constructive Eviction.

• IF Tenant Breaches:

  • Landlord:

    • CAN’T commit self-help.

    • NEED to follow the statutory eviction proceedings.

    • MUST go to court for eviction.

1. ASSIGNMENT v. SUBLEASE

• ASSIGNMENT:

  • Give away the REMAINING term of the lease to someone else.

  • Tenant #2 becomes primarily liable.

  • Landlord can come after original tenant UNLESS novation because they are still in privity.

    • Novation = Release.

• SUBLEASE:

  • Giving away a PORTION of the lease.

  • Original tenant primarily liable.

CONVEYANCE

1. REAL ESTATE CONTRACT

• CONTRACT PRINCIPLES:

  • Offer, Acceptance, Consideration.

  • SOF.

  • Common Law or UCC?

  • Specific Performance.

  • Misrepresentation/Mistake.

• EQUITABLE CONVERSION:

  • Buyer acquires equitable interest and the risk of loss shifts to the buyer.

  • Buyer is responsible for any damage.

• MARKETABLE TITLE:

  • Reasonably free of doubt.

  • Free of any encumbrances.

  • Always implied in every real estate contract.

1. DEED

• WARRANTY DEED:

  • A warranty deed includes 6 promises and guarantees the quality of title.

  • 3 PRESENT WARRANTEES.

    • There is a breach on the day of closing.

      • SEISEN.

        • I am promising I own the land.

      • RIGHT TO CONVEY.

        • I have the legal right to sell.

      • WARRANTY AGAINST ENCUMBRANCES.

        • No Encumbrances.

• 3 FUTURE WARRANTEES.

  • Enforceable down the road, forever.

    • QUIET ENJOYMENT.

      • There is never going to be an issue with the title.

    • WARRANTY.

      • If there is a problem, the landlord will take care of it.

    • FURTHER ASSURANCES.

      • Not only will the landlord take care of it, he will pay, clean, and repair.

• GENERAL WARRANTY DEED:

  • Title has always been perfect.

• SPECIAL WARRANTY DEED:

  • Title is clear since last owner.

• QUITCLAIM DEED:

  • No promises about the quality of the title.

  • Seller can’t be sued.

• ELEMENTS OF A VALID DEED/CONVEYANCE:

  • SOF.

    • In writing.

    • Signed by the guarantor.

    • Two witnesses.

  • Delivery.

    • Valid intent.

    • Acceptance of the deed is presumed by the buyer unless there’s evidence of the contrary.

• Identifiable Grantees.

• Legal Description of the land.

• MERGER:

  • Contents of the contract merges into the deed.

  • You can only sue on the deed not the contract.

1. MORTGAGES

• PURCHASE MONEY MORTGAGE:

  • Gets priority.

• LIEN THEORY:

  • Florida is lien theory state.

  • Bank only has a lien, not a title to your property.

• RECORDING STATUTES:

  • PURE NOTICE:

    • Florida is a pure notice jurisdiction, which protects the last/subsequent BFP.

      • A BFP is someone who pays value and has no notice of earlier transactions.

        • Banks/Mortgagees are BFP.

        • Creditors/Lien-holders are NOT BFP.

        • Will inheritors are NOT BFP.

        • Recording of the deed in a court house puts everyone on notice of the deed.

• OWNERSHIP:

  • JOINT TENANT.

    • Right of survivorship:

If one dies, the other gets the whole thing.

• Undivided 50% interest as a whole.

• TENANCY IN COMMON.

  • No right of survivorship.

    • Goes down intestacy.

    • TENANCY BY THE ENTIRETY.

      • Florida presumes that husband and wife own property as tenants by entirety.

      • Right of survivorship:

• One spouse cannot convey or mortgage the property without the others consent.

1. DUTY TO DISCLOSE

• If seller knew or should’ve known of defect, the seller had the duty to disclose them.

• Seller can’t actively conceal something. If they did, buyer may argue misrepresentation or concealment.

1. REMEDIES

• SPECIFIC PERFORMANCE:

  • When the contract/land is unique.

    • Land is always unique.

• RECESSION:

  • No meeting of the minds.