Florida Bar Exam - Property 2015

Generally VOID.

Exception: right of first refusal is valid. To A, but if A tries to sell, then B has right of first refusal (B has option to buy land before A can sell to someone else)

life estate measured by the life of another. If the life tenant dies before the measuring life, then the life estate goes to the estate of the deceased until the measuring life dies. If the measuring life dies first, then the life estate terminates.

To A, for the life of B.

Alienable. You can transfer the life estate but when the measuring life dies, it goes back to O.

Grant includes clear conditional language, violation of condition results in automatic forfeiture of the interest.
Future interest = possibility of reverter

To A, so long as Blackacre is used for recreation.

A = FSD; O = POR

Characteristics: divisible, descendible, alienable, subject to the condition.

Clear conditional language and express reservation of right of entry in the grantor. Its O's prerogative to exercise right of entry.

To A, so long as Blackacre is used for recreation, but if Blackacre ceases to be used for recreation, O reserves right to enter and take possession.

Future interest is the right to entry

Characteristics: divisible, descendible, alienable.

Clear conditional language, violation creates right in THIRD PARTY.

To A, but property ceases to be used for residential purpose during As life, to B.

A = fee simple subject to executory interest

B = shifting executory interest

Reversion (after a life estate)

Possibility of reverter (FSDPOR)

Springing Executory Interest (after FSSEL) (To A if A graduates Law School)

Contingent Remainder

Vested Remainder OR Indefeasibly Vested Remainder

Vested Remainder Subject to Complete Divestment

Vested Remainder Subject to Open

To A for life, then to B.

A = life estate, B = vested remainder

B is ascertainable and no conditions to interest vesting.

B's interest is indefeasibly vested. Even if B dies before A, B's interest will go to his estate.

Voluntary (Affirmative Waste) = affirmative conduct that causes decrease in value of prop OR consumption/exploitation of natural resource.

Permissive = a failure to maintain the property.

Ameliorative waste = when life tenant alters the property substantially but it increases the value of the land.

Prior Use

Reasonable repairs

Grant

Exploitation

GR is that depletion of natural resources is affirmative waste.

Exception = Open Mines Doctrine. Where consumption of the natural resources was the normal use of the land then can continue its normal use. So if it was a coal mine, keep mining coal.

Maintenance means that the life tenant must continue the normal use of the property and has the obligation to make reasonable repairs.

Repair NOT replace.

Life tenant must pay all ordinary taxes.

Four unities must be met: interest must have vested at same TIME; all must have TITLE from same instrument; all tenants take same INTERESET (kind and amount); all have same rights of POSSESSION

Time, Title, Interest, Possession

not DIVISIBLE or DESCENDIBLE, is ALIENABLE. Severs that JTs interest and creates Tenancy in COMMON.

A, B, and C = JTs. Each has 1/3. C sells to D. D is tenant in common with A and B. A and B remain JTs.

JT asks court to partition prop. 3 ways: by voluntary agreement of how the property will be divided; partition in kind (court draws lines); or forced sale of the entire prop - equal division of proceeds.

Creditors can reach during the lifetime of a Tenant. Forced sale in the JTs interest results in severance when sale takes place.

Once JT dies, the interest AUTOMATICALLY passes to the other JTs by survivorship. Creditors can no longer reach.

Any grant of a concurrent estate to H&W gives rise to tenancy by entirety provided 4 unities are met.

Right of survivorship

NOT alienable

NOT divisible

NOT descendible

Cannot unilaterally create mortgage.

Death

Mutual agreement IN WRITING

Divorce

Execution by a JOINT creditor

Generally, don't have to share profits with your co-tenants

EXCEPT where there is: ouster, an agreement to share, rent from third parties; or where there is depletion of natural resources (farming doesn't count)

right of one co tenant to force the other to pay fair share of expenses for the property.

Don't have to pay for improvements (ex: new house);

co-tenants have to pay fair share on mortgage (if both on it); taxes; and fair share for necessary repairs.

Tenancy for years

periodic tenancy

tenancy at will

tenancy at sufferance

By express agreement

Implied agreement (parties agree to tenancy but don't agree to a duration) (ex: A leases apartment to B for $500/month but no duration stated)

By operation of law (2 ways - see next)

1) With an ORAL lease that violates the SoF (ex: L and T orally agree to enter into a 5 year lease with rent of $1,000 a month. Not a tenancy for years because violates SoF. Creates periodic tenancy when T sends check and L accepts)

2) Hold over tenants (tenancy at sufferance)

Must give notice that is at least equal to the length of the period.

If month to month - then one month notice.

If year to year then 6 months notice.

The Landlord has options with the hold over tenant. They can:

1) SUE to evict the tenant. Sue in trespass and recover damages for the holdover OR

2) Impose a new periodic tenancy

the period for rent payments. For residential property, usually results in a month to month tenancy

Death of either party

waste by the tenant

assignment by the tenant

transfer of title of the prop by LL (LL sells to 3rd party)

Lease by the LL to a third party

Pay rent

Maintain the premise

Tenant cant commit waste.

If the premise are destroyed without the tenants fault, tenant given opportunity to terminate lease

CL: LL can sue for damages but could only collect past due rent

Maj Rule: LL may sue for damages and terminate lease (evict T)

LL can accept offer of abandonment and retake the premise terminating the lease. T has no further rent obligation.

LL can relet the premise and hold T liable for deficiency. Maj Rule requires LL to mitigate damages by trying to find a new tenant.

LL doesn't retake = may hold tenant liable for remainder of rent as it comes due. No duty to mitigate.

LL retakes premise = LL must mitigate damages and try to find new tenant/hold old tenant liable for deficiency

Must deliver possession of the premise

Must deliver premise in habitable condition

implied covenant of quiet enjoyment

Implied warranty of habitability (note: CL didn't have this. If delivered physical possession, then satisfied)

This applies to residential leases only. Obligates LL to provide and maintain leased premise to be fit for basic human habitation

T can move out and terminate lease (no more rent required)

T can stay on property and sue for damages

T can make reasonable repairs and deduct cost from future rent payments

Total eviction

Partial Eviction

Constructive Eviction

Direct physical invasion of T possession

Termination of lease, no more rent obligation

LL physically excludes T from some portion of leased property

T remedies = stay on what's left and stay for free.

not physical eviction but interference w/ T enjoyment and use

LL failure to provide a service (not 3rd party)

SING

Substantial Interference w/ T use

Notice (T notifies L who fails to respond)

Get out (T vacates in reasonable time)

T is liable for rent if there is: privity of Estate or privity of contract.

There is privity of estate between present LL and present T.

Privity of K between LL and original T where there is an agreement(the lease)

Original LL continues to be liable to original T because of privity of K

Successor LL may be liable to original T if there is EITHER privity of K or privity of estate AND the covenant runs with the land (touches and concerns).

LL 2 will be in privity of estate, will be responsible for covenants that run w/ land.

Sublessee is not liable for rent

LL can recover rent from anyone w/ whom he is in privity with (K or estate) In a sublease, the sublessee is not in either privity. Privity of estate remains with sublessor because only part of their interest is transferred in the sublease.

clause in lease that says tenant may not assign or sublet the premise without express permission of LL.

VALID.

transfer is VOIDABLE by LL.

a non assignment clause wont prevent subleases; non sublease clause wont prevent assignments.

Permission given to assignment once means that the clause is waived UNLESS LL states otherwise at the time of giving permission. LL must reserve right to approve future assignments/subleases.

LL can approve an assignment impliedly by accepting a check from an assignee or sublessee.

Maybe. T shares ONLY to the extent that the fair rental value of the property exceeds the amount of rent due under the lease.

Ex: if the fair rental value was $3000/month but T was paying $1000/month then T shares to the extent that the fair rental value exceeds the rent that was due - $2,000 x months left on lease.

CLAPS

Common areas

Latent defects

Assumption of repairs

Public Use

Short Term lease of furnished apt

LL is under duty to disclose latent defects LL knows about or has reason to know of.

A defect that T doesn't know of and wouldn't discover.

LL knows of defects

LL knows T wont fix the defect

LL knows public uses the premise

LL must repair

Fixtures become part of the property. Cannot be removed by seller or tenant.

Note that if there is an express agreement regarding the fixture, it will control.

Intent of the person installing it. Did they intend that the item remain with the property?

1) degree of attachment

2) what is the general custom

3) how much harm will result to the premise on removal? Substantial harm usually means no removal

4) Are the fixtures TRADE FIXTURES? i.e. personal property used in trade or business. These are generally NOT fixtures and can ALWAYS be removed.

T must remove before T vacates at end of sublease

S must remove item before closing or seller will lose it.

Think: washers and dryers. These are personal property fixtures. Can remove.

right to compel the servient owner to refrain from something. Usually limited to LASSS

Light, air, support, stream, scenic views

burdened by the easement

Prescription (COAH)

(continuous, open, actual, hostile)

Implication

Necessity

Grant

Continuous use (seasonal use may satisfy)

Open/notorious use

Actual use of the easement

Hostile use - any grant of permission destroys

Easement from previous use by common grantor (implied easement)

Easement by absolute right of access rule (necessity)

A is a common grantor where A owns a large parcel of land and grants part of it to B. A had always used a path across B's land. Easement arises where there was previous use that was:

1) continuous

2) apparent

3) reasonably necessary

Actual knowledge

Constructive knowledge (easement was recorded)

Inquiry notice (buyers physical inspection of land & sees physical appearance of easement)

Terms of the easement generally define scope.

Where agreement is silent, the easement is assumed to be perpetual (lasts forever) and the use is presumed to be reasonable use with the development of the dominant estate.

Estoppel

Necessity

Destruction

Condemnation of serv. land (eminent domain)

Abandonment

Merger

Prescription

Merger is done where there is unit of ownership of the two parcels (dominant and servient)

If the land is later divided again and no longer under one ownership, easement is not automatically recreated. We don't mess with dead stuff.

a limited privilege to enter land for a specific purpose/use. generally informal and freely revocable.

this is a CONTRACT right.

Where an easement was attempted; but unsuccessful bc of SoF.

When the license holder spend considerable money on the property in furtherance of an oral license.

Enforced by estoppel.

Right to go onto land of another and take away natural resources. Grant of profit = grant of implied easement.

Analyzed by same rules as for easement

Promise to do or not do something on the land.

I promise not to build for commercial purpose (restrictive)

I promise to maintain the land (affirmative)

What remedy is PL asking for?

Covenant = money damages

Equitable Servitude = injunction for enforcement

Benefited by the promise

Burdened by the promise. No dominant and servient.

Writing (promise in writing)

Intent of original parties for it to run

Touch and Concern

Horizontal privity

Vertical Privity

Notice to successor

Original parties were in privity of estate

Grantor/grantee; LL/T; mortgagor, mortgagee

Where there is a nexus between one of the original parties and their successor. Look for a non-hostile connection (contract, devise, descent, some land transfer).

NO VERTICAL PRIVITY WHERE THERE IS ADVERSE POSSESSION.

Writing

Intent for benefit to run

Touch and Concern

Vertical Privity

Notice to successor

Promise

equity by injunction

WITNES

Writing

Intent

Touch and concern

Notice

Equitable Servitude

NO PRIVITY NEEDED.

Doctrine of Changed Conditions: the restriction will be terminated when change of the circumstances are so pervasive that it affects the entire area and renders the purpose of the restriction moot.

Unclean hands (PL made wrongful use too)

Acquiescence (PL allowed another neighbor to make the wrongful use)

Laches (PL sat on their rights)

Continuous

Hostile

Actual

Notorious / open

Exclusive

When the owner of the land is disabled at inception of the AP. So if wrongfully on land and actual owner is insane, SoL doesn't start for AP

Infancy, incarceration, insanity

Note: intervening disability doesn't stop clock

Where AP may tack his time to his predecessors to meet SoL time. Must have privity (non hostile nexus) between AP1 and AP2.

NO Tacking when AP2 ousts AP1.

The AP clock doesn't start running against the holder of the future interest until it becomes possessory.

Ex: A has life estate, remainder to B. C meets requirements for AP during A life estate. C gets the life estate. For C to get the remainder in FSA, must meet all requirements for AP vs. B too. So must remain for 7 years of B's interest too.

1) closing (governed by contract of sale)

2) conveyance (governed by prop law)

Must be in writing and signed

must include description of property

Names of parties

Price term

Payment of part of the K price

Possession

Improvements to land

must have 2 of the three.

Risk of loss

Proof of title given to buyer

Title free of encumbrances (easements, mortgages, restrictive covenants other than those DISCLOSED to buyer)

Valid legal title as of closing (can use money from sale to satisfy mortgage)

Rescission

Sue for Money Damages

Specific performance (w/ reduction in sale price to reflect defect in title)

Damages (difference between K price and value of property as of date)

Liquidated Damages (Buyers deposit will be forfeited in event of B breach...must be reasonable - abt 10% of K price)

Specific performance - land is always unique

GR: Buyer cannot recover bc buyer should have inspected

Exception: Active concealment - S cannot actively conceal defects. Misrepresentation or fraud on part of S; S failure to disclose defects in prop that S knew of or should have known that materially affects value of Prop. (Johnson)

Execution by grantor and delivery

Acceptance (implied unless express rejection)

NO CONSIDERATION required.

Did grantor have the necessary intent? No physical transfer required

presumption of delivery even if grantee knows nothing of the deed

But if grantor dies and still in their possession, presumption of no delivery

O = life estate

A = vested remainder in FS

Valid. Usually use escrow.

Note: oral instructions to escrow agent are always admissible.

Quitclaim (no promises made to title)

General Warranty (6 present and future promises)

Special Warranty (no defects from caused by grantor, no promises about the other owners)

Seisin

Right to convey (S has title and can validly convey)

Covenant against warranties (no encumbrances other than those disclosed)

quiet enjoyment

covenant of warranty (promise to protect buyer against others who come later and make claim to title)

covenant of further assurances (seller promises to take all steps necessary to convey valid title)

All future successors in interest can sue for breach of the future interests.

A conveys to B by general warranty deed for $5000. B conveys to C by no warranty for $10,000. B breaches covenant of warranty (future covenant). B can recover $5,000 from A but nothing from B.

CL: if devised property is subject to mortgage or other lien then must be exonerated out of testators estate (paid out of testator estate)

Modern Rule: Devisee takes property subject to mortgage

First in time, first in right.

Protect interests of subsequent purchasers by giving them notice of prior purchaser.

Race

Notice

Race Notice

Subsequent BFP who takes without notice of the earlier transaction.

Don't have to record first, the subsequent BFP wins even if earlier BFP goes after subsequent BFP and records first.

at any time until the moment of foreclosure sale debtor can redeem property by paying amount that is due plus interest

GR: not in the original mortgage or deed of trust but can in a refinancing or execution of different agreement

landowner has right to have her land supported by adjoining landowners and strict liability results if land is not supported.

SL for improvements to the land only if the land would have collapsed anyway, even without the weight of improvements.

riparian owner may use all water needed for domestic purpose and are limited to reasonable use for all non domestic purposes (commercial or domestic uses)

lack of knowledge

prior purchaser