Florida Real Property Distinctions
Terms in this set (35)
Future interests: limits on possibilities of reverter and rights of entry
MSR: in a few states, statutes limits permissible duration of possibilities of reverter and rights of entry to certain number of years to foster marketability of title
FL: FL statute limits duration of reverters or forfeiture provision to 21 years from date of deed conveying realty
Future interests: Doctrine of Worthier Title (Rule against remainders in grantor's heirs)
MSR: under doctrine of worthier title, remainder only to grantor's heirs is invalid and grantor retains reversion in property. Doctrine still applied to inter vivid transfers in a majority of states, but most states treat it only as rule of construction.
FL: doctrine abolished in FL.
Remainder to grantor's "heirs," "heirs at law," "next of kin," "relatives," or "family" does not presumptively create reversionary interest in grantor.
RAP - rights of first refusal
MSR: RAP applies in most states
FL: RAP does NOT apply
Uniform statutory RAP
MSR: under CL, no interest in property valid unless it must vest, if at all, not later than 21 years after one or more lives in being at creation of interest
FL: FL created the Uniform Statutory Rule against Perp., which adopts 90-year alternative vesting period. Under rule, non-vested property interest (real or personal) is invalid unless:
1. when interest created it is certain to vest or terminate w/in CL period (21 years after death of individual then living); OR
2. it actually vests or terminated w/in 90 years after its creation.
NOTE: for property interests in trust created after 12/31/2000, time limit is 360 years, instead of 90 years.
Concurrent estates: joint tenancy creation
MSR: at CL and many states, 4 unities of time, title, interest and possession are required to create JT
FL: No straw man is required:
FL generally requires 4 unities to create JT BUT
An owner can create JT in herself and another person by single deed, even though unities of TIME and TITLE not satisfied
Concurrent estates: tenancy by the entirety
MSR: tenancy by entirety is marital estate akin to JT between spouses. Not recognized in community property states, but in some CL jurisdiction it arises presumptively in ay conveyance made to spouses.
FL: conveyance to spouses presumptively creates tenancy by entirety. Spouse holding title to real property can create tenancy by entirety between herself and other spouse by conveying property to other spouse by deed that expressly says that tenancy by entirely intended or by conveying property to both herself and other spouse.
Landlord and tenant: termination of a tenancy for years
MSR: in most states, tenancy for years ends automatically on termination date, and no notice required
FL: residential lease for specific duration can contain CLAUSE requiring tenant to give LL up to 60 days notice prior to vacating premises on expiration of lease.
LL must provide WRITTEN NOTICE to tenant specifying: (1) tenant's obligations under notice provision & (2) date rental agreement terminated
Notice must be provided to tenant w/in 15 days before start of the notification period contained in lease.
If tenant remains on premises w/ LL's permission after agreement terminated and fails to give at least 15 days notice prior to vacating, tenant liable for an additional month's rent
Landlord and tenant: termination of a periodic tenancy - notice required
MSR: Periodic tenancy is automatically renewed, from period to period, until proper notice of termination is give by either party. Many jurisdictions have statutorily prescribed the notice required to terminate a periodic tenancy. In general, guidelines are as follows:
1. tenancy must end at the end of a "natural" lease period;
2. for a tenancy from year to year, 6 months notice is required;
3. for tenancies less than 1 year in duration, a fully period in advance of the period in question is required by way of notice
FL: either party can terminate a residential periodic tenancy by giving the following notice before the end of a natural lease:
- 60 days notice for a year to year tenancy;
- 30 days notice for quarter to quarter tenancy;
- 15 days noice for month to month tenancy;
- 7 days notice for a week to week tenancy
LL & Tenancy: termination of tenancy at will
MSR: tenancy at will can be terminated by either party w/o notice. Reasonable demand to quit premises required.
FL: does not recognize NONRESIDENTIAL period tenancy.
Tenancy at will = any nonresidential tenancy w/ periodic rent payments and no fixed termination date
Either party can terminate nonresidential tenancy at will by giving following notice prior to end of rent payment period:
1. 3 months when annual rent payment required
2. 45 days when quarterly rent payments required
3. 15 days when monthly rent payments required
4. 7 days when weekly rent payments required
LL & Tenancy: termination of a tenancy after foreclosure
MSR: no multistate rule
FL: purchaser of leased residential property at foreclosure sale can terminate leave by giving tenant 30 days notice
LL & Tenancy: double rent jeopardy
MSR: no multistate rule
FL: allows collection of double rent when tenants hold over
LL & Tenancy: tenant's liability for covenants to repair
MSR: in residential leases, even if tenant covenants to repair, LL will usually be obligated to repair (except for damages caused by tenant) under IMPLIED WARRANTY OF HABITABILITY bc LL obligations under warranty are usually held not to be waivable.
FL: LL obligation to make repairs under residential lease can be altered or modified only in lease involving SINGLE-FAMILY dwelling or duplex
Not where MULTIPLE dwelling units concerned.
LL & Tenancy: LL remedies if tenant abandons
MSR: if tenant unjustifiably abandons property, LL cannot just let promises lie idle and collect rent from abandoning tent. LL must make reasonable efforts to mitigate her damages by reletting to a new tenant.
FL: LL can stand by and do nothing - holding tenant liable for rent as it comes due
Easements: easement by necessity
MSR: at CL, when owner of tract of land sells part of the tract, and by this division deprives one of access to public road or utility line, a right-of-way by absolute necessity is created by implied grant or reservation over lot w/ access to public road or utility line. Easement by necessity terminated when necessity ends.
FL: In addition to recognizing CL RULE of implied grant of way of necessity
FL has statutory easement of necessity when any land that is used for DWELLING OR AG purposes is shut off or hemmed in by lands, fencing, or other improvements so that no reasonable route of entrance or exist available.
Statutory easement of necessity arises regardless of whether unity to title existed from common source.
Owner of property on which easement imposed is entitled to compensation.
Easements: easement by prescription
MSR: to acquire a prescriptive easement, use can be open and notorious, adverse, and continuous and uninterrupted for statutory period
FL: In FL, prior required to obtain prescriptive easement is 20 years
Covenants running with land at law (real covenants): transfer fee covenants
MSR: no multistate rule
FL: "transfer fee covenant" is declaration or covenant recorded against title to real property that requires PAYMENT of transferee to declarant or other person on subsequent transfer of interest in real property.
Transfer fee covenants recorded on or after July 1, 2008, constitute unreasonable restraint on alienation, regardless of duration of covenant or amount of transfer fees, and DO NOT RUN w/ title to property or bind subsequent owners
Equitable servitudes: enforcement
MSR: generally, benefit of equitable servitude will run w/ land (and to successors in interest of original parties) if original parties so intended and servitude touches and concerns the benefited property
FL: HOA cannot enforce RESTRICTIVE COVENANT unless association successor to developer's right of enforcement or covenant was expressly created FOR ITS BENEFIT.
While individual property owners have standing to enforce such covenants, association does not have standing to sue as their rep.
Adverse possession: running of statute
MSR: Statutory period of AP varies by state
FL: Statutory period for AP in FL 7 years continuous possession of the premises
Adverse possession: under color of title
MSR: Occupation of property is "under color of title" when occupation founded on written instrument or judgment or decree of court.
Occupation adverse if instrument or decree invalid. In most states, adverse possession rules do not vary depending on whether occupation under color of title.
FL: if occupation arose under color of title, property will be considered possessed when it has been:
1. usually cultivated or IMPROVED;
2. protected by substantial ENCLOSURE (all contiguous land protected by enclosure will be included);
3. used for supply of fuel or fencing timber for husbandry or for ordinary use of the occupant;
4. partly improved if part is of known or single farm. Part not cleared or enclosed is to be considered for same length of time as part improved or cultivated.
For possession under color of title to be adverse, conveyance instrument must adequately describe property and be properly recorded in the official county records.
Adverse possession - without color of title
MSR: only a minority of states require adverse possessor to pay taxes on property. However, in all states, payment of property taxes is good evidence of claim of right.
FL: property possessed only if it has been:
1. usually cultivated, maintained, or IMPROVED, OR
2. protected by substantial ENCLOSURE
Adverse possessor w/o color of title must have:
1. paid outstanding TAXES on property w/in 1 year after entering possession
2. made return (filing w/ PROPERTY APPRAISER regarding possession) of property AND
3. paid TAXES on property for each year of statutory period
Land sale Ks - "as is" clauses
MSR: in most states, general clause ("property sold as is" or "with all defects" is not sufficient to overcome seller's liability for fraud, concealment, or failure to disclose
FL: different rule for commercial property.
Sophisticated purchaser whose K contained "as is" clause does NOT have c/a for fraud if had ample opportunity to conduct inspections and could have discovered defect through exercise of ordinary diligence.
Deeds - form & content - attestation and acknowledgment generally unnecessary
MSR: attestation by Ws is generally unnecessary, as is an acknowledgment. But either or both might be required of deed to be recorded.
FL: real estate may only be conveyed by written instrument signed in presence in 2 subscribing Ws.
Requirement applies to all conveyances by any type of instrument of any interest greater than 1 year.
Recording, what can be recorded - instrument affecting an interest in land
MSR: State laws vary on whether leases must be recorded, most frequently providing that leases longer than a particular period of time must be recorded
FL's recording act applies to leases for term of 1 year or longer
Recording, types of recording acts
MSR: basically 3 types of recording acts:
- notice statutes,
- race-notice statutes,
- and race statutes
FL: notice recording act
Recording, who is protected by recording acts - judgment creditors
MSR: in nearly all states, plaintiff who obtains money judgment can obtain judgment lien on defendant's real estate. In majority of states, judgment lien not protected by recording statute.
FL: recording act protects lien and judgment creditors and subsequent purchasers w/o notice.
FL judgment lien statute provides for 1-year lien.
Recording, purchasers w/o notice
MSR: Subsequent purchaser must show they ACTUALLY DID KNOW of any prior recorded conveyance.
"Without notice" means purchaser had no actual, record, or inquiry notice of prior conveyance at the time she paid consideration and received interest in the land.
FL: PRESUMPTION of lack of notice of unrecorded instrument by person subsequently acquiring interest in property.
Burden on claimant under unrecorded instrument to show actual knowledge.
Recording - lis penden protection
MSR: lis pendent notice notified title searchers of pending litigation, usually for duration of litigation
FL: lis pendent notice generally expires 1 year after commencement of action. A court can extend time on reasonable notice and for good cause.
Types of security interest - mortgage
MSR: Most states, mortgage lien valid for as long as provided in state's marketable title act or indefinitely
FL: lien of mortgage in which final date of maturity not ascertainable will have life of 20 years from date mortgage
- UNLESS obligation re-recorded w/ mortgage or contains affidavit showing maturity date
Transfers by mortgagee and mortgagor - transfer by mortgagee of mortgage w/o note
MSR: Case law divided, with some states holding transfers the associated notice; in others, transfer of a mortgage w/o notice is a nullity
FL: transfer of mortgage w/o associated note is nullity
Transfer by mortgagee and mortgagor - due-on-sale clause
MSR: Most modern mortgages contain "due-on-sale" clauses -- allow lender to demand full payment of loan if GOR transfers any interest in property w/o lender's consent.
In some states, private lender must demonstrate that transfer of interest impairs likelihood of repayment to enforce due-on-sale clause.
FL: No restrictions on due-on-sale clauses are valid.
Therefore, mortgage lenders (private or institutional) do not have to show impairment of security before enforcing due-on-sale clause
Possession before foreclosure - theories of title
MSR: States generally follow one of three theories of title:
- lien theory,
- title theory,
- intermediate theory
According to lien theory, GEE is holder of security interest only and GOR owner of land until foreclosure
FL: Lien theory jurisdiction
Foreclosure - statutory redemption
MSR: about 1/3 states give mortgagor (and sometimes junior liners) a statutory right to redeem for some fixed period after foreclosure sale has occurred; this period is usually 6 months or 1 year.
FL: does not allow statutory right to redeem after foreclosure sale is finalized.
After sale, clerk of court must promptly file certificate of sale.
If no objections to sale filed w/in 10 days after filing certificate of sale, clerk files certificate of title.
When certificate filed, sale stands confirmed.
Installment land Ks - treat as mortgages
MSR: Installment K usually provide forfeiture rather than foreclosure as remedy in default.
Bc forfeiture often hard remedy, courts tended to resist enforcing clause and in doing so have developed theories including equity of redemption, restitution, treat as mortgage, waiver, or election of remedies.
FL: installment land sale K whose purpose is to secure obligation to pay money if mortgage and safeguards for debtor and remedies for creditor are same as those btw GOR & GEE
Water rights - surface waters, reasonable use theory
MSR: diffused surface waters are those that have no channel but pass over surface of land.
Problems concern right of a lower owner to restrict a flow that would naturally cross his land and right of an upper owner to alter or divert a natural flow onto other lands. Different states follow different legal theories to deal w/ these problems.
FL: follows "reasonable use" doctrine.
Under rule, possessor incurs liability only when harmful interference with flow of surface waters is un-rsbl
Zoning - inordinately burdened property
MSR: in all state, if zoning ordinance reduces value of real property that it constitutes taking under 4th and 14th amendments of U.S. Constitution.m the gov't must provide the owner w/ just compensation. No compensation required if ordinance does not amount to taking under Const.
FL: gov't action does not rise to level of taking, but inordinately burdens existing use of property or vested right to specific use of property = property owner entitled to relief
Inordinately burdened if gov't action directly restricted use such that property owner either:
(1) permanently unable to attain rsbl expectation for existing use (or vested right to specific use) of property OR
(2) left w/ existing or vested uses that are un-rsblin that property owner permanently bears disproportionate share of burden imposed for public good, which in fairness should be borne by public at large
Temporary impact on development that is in effect for longer than 1 year can constitute inordinate burden.