PROPERTY DISTINCTIONS

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PROPERTY DISTINCTIONS

• crickard_at_mac.com
• Workshop 12Online Student AssignmentComplete
  the essay (Slide 25-29)DUE Wednesday, 04/02/08
  _at_ 5 PM NO EXCEPTIONS!!

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Property in Essay Form

• This list of distinctions is NOT exhaustive
• Not one of the big subjects, but tested on
  average every two years
• Ancient Estates are possible testing areas.
  Looking at past questions, somewhat unlikely.
  You will have to know them for the MBE anyway.

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Landlord and Tenant

• In Florida
• If lease is for a specified amount of time, lease
  may contain a clause requiring tenant to give the
  landlord up to SIXTY days notice prior to vacating

• On the MBE
• A specific amount of notice is not required.
  Left up to individual states and their statutes.

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Landlord and Tenant

• In Florida
• Either party may terminate a residential periodic
  tenancy by giving notice within these time
  frames
• Year to Year 60 days
• Quarter 30 days
• Month 15 days
• Week 7 days

• On the MBE
• No specified time frames

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Landlord and Tenant

• In Florida
• Either party may terminate a non-residential
  periodic tenancy by giving notice within these
  time frames
• Year to Year 90 days
• Quarter 45 days
• Month 15 days
• Week 7 days

• On the MBE
• No specified time frames

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Landlord and Tenant

• In Florida
• Florida law does not permit the landlord to bind
  the tenant to a new periodic tenancy if the
  tenant holds over. If the holding over is
  consented to, in writing, by the landlord, a
  tenancy at will is created.

• On MBE
• Landlord can, in his/her sole discretion, bind
  the tenant to a new periodic tenancy

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Tenant Duties

• In Florida, tenant has no duty to make repairs,
  with the exception that plumbing in a residence
  must be kept in repair.

• On MBE
• Tenant has no duty to make and substantial
  repairs. However, tenant has a duty to make
  ordinary repairs to keep the property in the same
  condition as the beginning of the lease term.

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Tenant Duties

• In Florida If premises damaged through no fault
  of the tenant so that enjoyment is substantially
  impaired, the tenant may vacate the premises and
  terminate the lease. If only part is damaged,
  tenant pays fair rental value of whats left.

• On MBE
• Common law holds that when premises destroyed
  (i.e. by fire) lease continues in effect. Absent
  language in lease, neither party has duty to
  restore, but tenant has to keep paying the lease
  payments.

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Security Deposits

• In Florida After tenant vacates, the landlord
  has 15 days to return the security deposit or
  give written notice by certified mail of his
  intention to impose a claim on the deposit and
  the reason for doing so.

• On MBE
• There is no time frame to return deposit.
  Landlord may not retain deposit beyond the extent
  of recoverable damages.

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Landlord Duties

• In Florida
• Lessor/Landlord has a duty to deliver physical
  possession of the premises. If he/she fails,
  tenant may sue for breach of an express or
  implied covenant.

• In the world of the MBE, there is no specific
  rule, but know that some states pass the burden
  of bringing an eviction onto the new tenant
  against the old tenant.

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Landlord Duties

• In Florida, landlord has a duty to reasonably
  inspect the premises for habitability. Landlord
  must comply with building codes, etc.

• On the MBE Majority rule is that there is an
  implied warranty of habitability, but not every
  state has it.

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Tenant Gives Notice

• In Florida
• If a residential landlord fails to comply with
  his/her statutory repair obligations, the tenant
  must give the landlord notice specifying
  non-compliance. If landlord fails to comply
  within 7 days - tenant can terminate lease.

• On MBE
• If landlord fails to comply, tenant remains in
  possession, pays full rent, and seeks DAMAGES
  against the landlord.

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Easements (BIG AREA)

• In Florida
• Easements in Gross are NEVER transferable, even
  if the easement is for a strictly commercial
  purpose.

• On MBE
• Easements in Gross transferable only of the
  easement is for a commercial or economic purpose.

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Adverse Possession

• In Florida
• Statutory requirement for adverse possession is
  seven years continued possession of the premises.

• On the MBE
• True owner must file suit before the statutory
  period (ex 20 years) runs out. If judgment is
  rendered after the statutory period, the judgment
  will relate back to the time that the complaint
  was filed.

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Conveyance/Sale of Land

• In Florida
• Seller of new or used real property has an
  affirmative duty to disclose facts materially
  affecting the value of the property that are not
  readily observable or known to a purchaser.

• On MBE
• Contracts of sale carry no implied warranties of
  quality or fitness for the purpose intended.

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Habitability

• In Florida
• Builder of a new house impliedly warrants that
  the new house is designed and constructed in a
  reasonably workmanlike manner and is suitable for
  human habitation.

• ON MBE
• Each state has their own rule.

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Fraud

• In Florida
• In addition to the protections on the MBE, the
  buyer is not required to investigate the sellers
  statements to determine whether they are
  misrepresentations unless the falsity is known or
  OBVIOUS

• On the MBE
• You must prove that the seller made a false
  statement of fact and that the buyer relied on
  the statement and it materially affected the
  value of the property. Seller had to know
  statement was false, or have made it negligently.

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Fraud

• In Florida, when a party is induced to enter into
  a transaction with another by the other persons
  fraud or misrepresentation, the transaction is
  voidable against the other party.
• The blameless party could take action to rescind
  the agreement and seek restitution they could
  also seek the difference between what was paid
  for the property and what the property is worth
  with the defect, or the cost of repair.

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Failure to Disclose

• Seller is liable if
• Seller knows or has reason to know of the defect
• The defect is not obvious or apparent and the
  seller realizes that the buyer is unlikely to
  discover it by ordinary inspection and
• The defect is serious and it would probably cause
  the buyer to reconsider the purchase if it were
  known.
• Generally a clause in a contract stating
  property sold as is is not sufficient to
  overcome a sellers liability for failure to
  disclose.

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Failure to Perform

• In Florida
• Purchaser may bring and action for negligent
  failure to perform a building contract against a
  builder if the home is negligently designed or
  constructed.

• On the MBE
• Similar, but usually not tested.

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Active Concealment

• Seller is liable if the seller took steps to
  conceal a defect in the property.
• Courts are more likely to impose liability on the
  seller if the seller personally created the
  defect or previously attempted to repair it and
  failed to do so.
• Remember - Seller has an affirmative duty to
  disclose facts materially affecting the value of
  the property that are not readily observable to a
  purchaser.

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What if there is a breach?

• First ask if it is a material or minor breach. A
  minor breach occurs where the plaintiff gained
  the substantial benefit of the bargain with small
  deficiencies in the quality of performance.
  Material breach is when the purchaser did not get
  the substantial benefit of the bargain and the
  deficiencies in quality of performance were
  large. Courts can award compensatory damages
  (putting non-breaching party in the position she
  would have been in if the breach had not
  occurred.) Standard for measuring the breach is
  substitute performance. Plaintiff has duty to
  mitigate damages.

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Recording

• Know notice rules.
• Florida has the pure notice type recording act.
• Florida protects lien and judgment creditors and
  subsequent purchasers without notice.

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WATER RIGHTS

• In Florida
• Florida follows the reasonable use doctrine.
  The natural flow of surface waters may not be
  diverted into neighboring property.

• On the MBE
• You have to know several theories (ex Natural
  Flow, Common Enemy and Reasonable Use)

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Your Question

• Jack contracted in writing with Sawyer (seller)
  to purchase Sawyers house and citrus grove on a
  mystical island in the Florida Keys. This
  writing satisfies the statute of frauds is all
  respects. The writing for the sale of land
  stated that Sawyer sold the property as is.
  Sawyers land was part of a small experiment on
  the citrus grove where a human had to push a
  button every 108 minutes. Jack was not told
  exactly why, nor did Jack ask.
• Jack told Sawyer that Jack would be using the
  property for residential purposes ONLY.

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Your Question

• When Sawyer showed Jack the house, Jack noticed
  containers of Zephyrhills bottled water in the
  kitchen. Sawyer said that he used bottled water
  because he thought the well water supplying the
  house tasted bizarrely. It tasted bizarrely for
  about two years.

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Your Question

• The deed passed to Jack and he moved in. Two
  years later, Jack was hospitalized for severe
  intestinal problems. The well water was tested
  and found to contain high levels of a pesticide
  commonly used on citrus.
• It turns out that pushing the button stopped
  two years ago. Two years ago, when Sawyer
  stopped pushing the button, Sawyer released
  harmful pesticides into the drinking water.
  Also, Sawyer found it weird that when he stopped
  pushing the button, he had to replant almost all
  of his citrus trees and the water began to taste
  funny.
• The pesticide had been banned by the Florida
  Legislature four years before because it was
  found to contaminate groundwater and was toxic if
  ingested. Sawyer works for the Florida
  Department of Agriculture Division of
  Environmental Services.
• Jack learned that the cost of repairing and
  cleaning up the groundwater would exceed the
  purchase price Jack paid to Sawyer for the
  property. Jack was afraid to stay on the
  property and moved into a rented apartment.

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Your Question

• Jack contacts you for help. Prepare a memo
  describing Jacks potential causes of action
  against Sawyer and Sawyer's possible defenses
  thereto. Be certain to discuss Jacks possible
  remedies and limitations thereon. Do not discuss
  anything regarding Sawyers possible negligence.

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Questions?

• Email crickard_at_mac.com
• Email your completed answer (with conclusion
  headings!) to baughb_at_nsu.law.nova.edu