Five Reasons to Protect Property Interests
1. Protect first possession
• Encourage discovery
• Certainty (clear bright line rule)
• Public Safety (Less Conflict)
2. Encourage labor
• When property itself is not valuable but
it becomes valuable when labor is
invested in it (farm/wasteland)
3. Maximize societal happiness
• Incentivize socially useful conduct
(Hunting of nuisance animals,
discouraging vandalism)
• Coase Theorem- property ends up with
the person who values it most highly
(bidding war)
• Utilitarianism – looking at society with
goal of maximizing amount of social
happiness
4. Ensure democracy
• Property ownership protects ones
independence from the state and gives
person a stake in society that leads them
to make decisions in line with public good
(ex. Law firm partnership, uniform basic
income/living wage, waterfront property
owner voting for costal conservation)
5. Facilitate personal development
• Using ones assets as one wishes is a
part of human dignity or personhood
(family heirloom or homestead, wedding
ring or photograph)
Rule of Capture
Pierson v. Post (Plaintiff Post – Hunts
Defendant Pierson – Kills)
Animus revertendi (with intention to
return/domesticated animal); ferae naturae (wild
animals)
Opinion: Majority says you need CERTAIN CONTROL of
the animal to claim it. Mere pursuit is not enough. Need
to mortally wound or trap. If you mortally wound an
animal and are pursuing it, someone else cannot
intercept the animal
Dissent: You just need a reasonable prospect of taking
the animal to claim it
Use of Likeness
White v. Samsung Electronics America, Inc.
1) Cal Civil Code Section 3344 (use of likeness)
a. Does this amount to an impersonation?
2) California common law right of publicity
a. Defendant’s use of plaintiff’s identity
b. Appropriation of plaintiff’s name or likeness
to defendant’s advantage
c. Lack of consent
d. Resulting injury
3) 15 USC 1125(a). This is the Lanham Act, which protects
Trademarks
Opinion: Samsung appropriated White’s identity bcuz it
was clear that the robot was supposed to be her
Constitutionality of Punitive Damages
Court can add punitive to nominal damages, trespass is a strict
liability offense. Look at 1.) degree of reprehensibility of
defendants conduct 2.) disparity between potential and actual
harm suffered by the plaintiff and punitive award 3.)
differences between punitive damages awarded by the jury
and the civil penalties in other similar cases
-Punitive damages can be awarded even if there are no actual
damages, not significance of right to exclude
(VARA) Moral rights of artists include the following: (and end
when artist passes away, can be waived as well, apply only to
visual art, not to performance art)
1. disclosure or divulgation, which allows the artist to
determine when a work is complete and may be displayed;
2. paternity or attribution, which allows an artist to protect the
identification of his name with his own work, and to disclaim it
when applied to another's;
3. the right of withdrawal, which permits the artist to modify
or withdraw a work following publication; and
4. integrity, which allows the artist to prevent his work from
being displayed in an altered, distorted, or mutilated form.
Conversion(Moore, Cell Case)
A conversion occurs when a person without authority or
permission intentionally takes the personal property of
another or deprives another of possession of personal
property
Rationae Soli
Latin phrase meaning "according to the soil" or "by reason of
the ownership of the soil." In property law, it is a justification
for assigning property rights to landowners over resources
found on their own land.
Adverse Possession
Gurwit v. Kannatzer (wooded land case) – common law
test; 10 year AP period
Van Valkenburgh v. Lutz (Crazy guy waving pipe case) –
statutory test (i.e. Florida); 15 year AP period, actual
possession, enclose and improve
Fulkerson v. Van Buren (land cleared up and used for
church) – state of mind (need bad); 7 year AP period
Common Law Elements of Adverse Possession
1) Actual (type of conduct) – You must use the property
like a reasonable owner would, which depends on the
character of the land.
2) Exclusive – no one else is using it.
3) Open and Notorious – visible and obvious, such that
the owner would notice if a reasonable inspection were
made.
4) Adverse and Hostile – this element is understood in
different ways by different jurisdictions, but all
jurisdictions agree that possession with permission fails
this element. (Majority of jurisdictions say state of mind
is irrelevant)
5) Continuous -- frequency of conduct must match up w
nature of the property (can’t just use it once a year)
6) For the statutory period (7 yrs in FL)
In a close case, the adverse possessor loses
You cannot get adverse possession against government
entity
Justifications for Adverse Possession
-Stops frivolous claims
-Encourages development
-Protects Personhood
-Corrects title defects
Likeness Tests
-Predominant use test: whether or not the predominant
use of the work is to exploit the commercial value of the
individuals identity or if it’s to make an expressive
comment
-Rogers Test: Is celeb reference a pivotal part of the
work or something small/a coincidence?
-Transformative Use Test: does product containing a
celeb’s likeness so transformed that its more defendants
expression rather than celebs likeness?
Four Key Property Rights
Four Key Property Rights
1) Right to transfer (Johnson (Indian Case), Moore(Cell
Case)) – sell the pelt, assign royalty rights.
2) Right to exclude (Jacques, Shack) – my pelt, not
yours; you can’t use my identity
3) Right to use (Sundowner, Prah(use of sunlight case))
– make something of the pelt, decide what to endorse
4) Right to destroy (Eyerman(Dead Lady)) – ruin the pelt
if I wish, ruin my reputation if I wish.
State v. Shack
Farm workers have acquired a license to allow others to
enter the land, so long as this does not interfere with a
legitimate interest of the landlord.
Spite Fence
Sundowner Test: 1.)“Otherwise useless structure”
constructed 2.) “solely for the purpose of injuring
another.”
Dowdell Case: Fence or other structure in nature of a
fence, unnecessarily exceeds 6 feet in height,
maliciously erected for the purpose of annoying
neighbor
Key facts to take from the Eyerman case: (if all are
present a court may step in and block destruction)
- Valuable asset
- Person giving the orders is deceased
- No apparent reason given
- Negative effect on third parties (ex. Loss of property
value)
Elements of Private Nuisance from the Restatement
1) Intentional (Must intend to do conduct and be aware
that harm is likely, doesn’t need to intend to cause
harm)
2) Nontrespassory
3) Substantial interference
4) Injury to use and enjoyment of land.
5) Unreasonable (more harm than good?)
Adverse Possession in Florida
• Actual
• Continuous
• For the Statutory period (7 years)
• Open and Notorious
• Exclusive
• Hostile and adverse – state of mind does not matter
except under “color of title” claim
CAN BE ONE OF TWO TYPES:
• Color of title (“some sort of title”) – often a defective
deed.
- Claimant must genuinely believe this document to
be the correct claim of title.
- Must record a deed purporting to vest title in the
adverse claimant.
- Must cultivate, improve, or enclose the land
(typically via fence).
•“Without color of title” – must have paid property
taxes.

Must also file a return within 1 year of entry
onto the property with a full and complete
legal description.
 Must cultivate, improve, enclose, occupy, or
maintain the land
Color of title is typically a good faith claim, w/out it, a
bad faith claim
When making an AP claim in FL, must also meet the
common law elements
Personal Property
State v. Shaw (fish): Bring into one’s power and control, and so
maintain that control as to show that he does not intend to
abandon them again to the world at large. Confine and
maintain reasonable precautions . . .
Popov v. Hayashi (Barry Bonds): Significant steps interrupted
by unlawful acts result in qualified pre-possessory interest in
right to possession.
Rule of Finding/Finders: 4 categories of lost chattels
1. Lost – owner unintentionally and involuntarily parts with it.
(Armory(Chimney Sweep), Hannah(Broach Case) – finder has
rights against all but true owner (Special case of landowner))
2. Mislaid – owner voluntarily and knowingly places it
somewhere but then unintentioanlly forgets it
(McAvoy(Barber/Purse), Benjamin(Plane) – property goes to
owner/possessor of locus in quo)
3. Abandoned – owner knowingly relinquishes all right, title,
and interest to it (Popov(Barry Bonds), Haslem(Manure) – goes
to first possessor after abandonment (requires specific facts
showing abandonment or goods without inherent value)
(special case of landowner))
4. Treasure Trove – owner concealed it in a hidden location
long ago. Usually limited to gold, silver, coins, or currency
(goes to finder (seldom used) (Special case of landowner))
Armory v. Delamirie - Finder of a lost item has superior right
over everyone but a prior possessor.
Trover- common law action where the plaintiff seeks damages
for the wrongful taking of personal property.
Replevin is a lawsuit to recover possession of personal
property
Policy Considerations
Lost property - -true owner will have a hard time finding, but
we preserve those rights, just in case.
Mislaid property – true owner is most likely to find; rule tries
to make it most likely that true owner can get the property
back.
Abandoned - - true owner doesn’t want the property, so no
concern for those rights.
Treasure trove – we assume true owner cannot be found due
to passage of time.
Tragedy of Commons – Cap and trade is a good system for
emissions
Patent (Diamond v. Chakrabarty(Gene))
Works of inventors, Constitution, 20 years from
date of filing app., Does not exist until application
granted
Elements of Patent
1) Patentable subject matter - -machine, process,
manufacture, or composition of matter. Abstract
concepts, mathematical algorithms, scientific
principles, and physical phenomena cannot be
patented.
2) Utility – actual benefit (but only minimal
benefit is required) to humans. Rarely an issue.
3) Novelty – is it new in any way, looking at prior
art (all inventions, patents, publications, and the
like) – even if just one element out of 10 is new, it
is novel.
4) Nonobviousness –would the move from prior
art to this be obvious? (if differences between the
invention and prior art before the application date
would have been obvious to a person having
ordinary skill in the area, the application will be
denied)
5) Enablement - -application must be very
detailed so that any skilled person in the area to
which the art pertains can make and use the
same.
Adverse Possession of Personal Property(Reynolds,
violin)
1) Actual (nature of possession)
2) Open and notorious
3) Exclusive
4) Adverse and hostile
5) Continuous
6) For statutory period (15 yrs for Florida)(runs from
the time when the TO knows, or by exercise of
reasonable diligence should have known, facts sufficient
to bring suit)
(concealment stop SOL and keeps adverse possessor
from being able to quiet title)
Additional considerations: Good faith requirement since
AP not intended to reward theft? O’Keefe Rule of Due
Dilligence?
Inter Vivos Gift (No payment)
1) Donative intent – intending to make an immediate
transfer of property
2) Delivery - -donor parts with dominion and control

Manual delivery – transferring possession of
the thing itself. Required if practicable.

Constructive delivery – physical transfer of
some item that provides access to the gift (a
passcode, a key, etc.)

Symbolic delivery – represents or symbolizes
the gift (shares of stock).
3) Acceptance – presumed when valuable.
Testamentary gifts are invalid
Gift Causa Mortis (Brind(Jewelry,surgery) court
formulation)
(1) Must be made in contemplation, fear, or peril of
death;
(2) Donor must die of the feared illness; and
(3) Delivery must be made.
Another formulation (more modern)
1. Donative intent
2. Delivery
3. Acceptance (Assumed where object is inherently
valuable)
4. Anticipation of Imminent death
These are revocable gifts – generally deemed revoked
automatically if the donor does not die of the feared
illness. Minority rule – must expressly choose to revoke,
and do so within a reasonable time of recovery.
Trademark (Qualitex(Color), Mattel(Barbie)),
Distinguishes wares of a particular seller, state law and
Langham act, can exist without limit, can register
§ 1127 of the Lanham Act: trademarks “includ[e] any
word, name, symbol, or device, or other combination
thereof.”
Wont register immoral, deceptive, or disparaging marks.
Elements of Trademark:
1) Distinctiveness – note that there is a spectrum of
distinctiveness on page 291
• Arbitrary or fanciful – strongest – Apple (name
tells us nothing about the good or service).
• Suggestive – middle – Jelly Belly
• Descriptive – weakest – America’s Best Contacts
and Eyeglasses (only if secondary meaning is also
established in order to prevail. “This would mean
that consumers would think of Sutton’s services
specifically and not dog-training services generally
upon hearing the phrase.”) (also Coca-Cola!)(Color)
2) Non-functionality – can’t be some aspect of the
product that is part of its function (instead, those things
are covered by patent law).
3) First use in trade – must define what the trade is.
(The first person, to use a mark for a good or service in a
particular geographic market generally obtains rights to
use the mark in that market, unless another person has
already registered the mark.)
Copyright (Feist(Phonebook), Selle(BGs), Cheny
Bros.(Patterns))
Works of authorship, constitution (Article I, Section 8,
Clause 8), life of author+70 Years(Eldred v. Ashcroft
Case), Can Register
17 USC Section 102(a):
1) Originality – independently created, not copied, with
at least minimal creativity.
2) Work of authorship – 8 specific categories but others
may qualify as well, if they are seen as analogous.
a. Literary
b. Musical
c. Dramatic
d. Pantomime or choreographic
e. Pictorial, graphic, sculptural works
f. Motion pictures and a/v works
g. Sound recordings
h. Architectural works
3) Fixation – written, recorded, or otherwise embodied
in some physical form that is sufficiently permanent and
stable. (Ice Sculpture is enough)
Fair Use Factors (Harper v. Roe(President Ford))
1.) purpose of the work claiming fair use (news or public
vs. commercial use)
2.) type of work; more difficult to show fair use of
fiction than nonfiction
3.) amount of copyrighted material used
4.) possibility of damage
Elements of Copyright Infringement (strict liability,
good faith is not an excuse)
1) Valid copyright
2 Defendant actually copied Plaintiff’s work; and
3) An ordinary observer would conclude that the
Defendant’s work was substantially similar to the
Plaintiff’s work.
Elements of trademark infringement: (1)
valid trademark and (2) likelihood of
confusion.
APPLIES TO ALL 3
Similarities: All first in time, regulated by
federal law, give holder right to exclude
Differences: Purpose (copyright and patent
for creative labor, trademark for protecting
consumers from deception and to encourage
quality goods), Origin, length of protection
Start with assumption that you do not have a
protectable property interest
Six modern freehold estates
1) Fee simple absolute–All of the rights in the land
a. “To A” – words of purchase
b. “and his heirs” - -words of limitation
This estate is presumed. It is alienable,
devisable, descendible.
2) Life estate – You own present interest but
someone else gets it when you die
a. “To A” – words of purchase
b. “For life” - words of limitation
Not presumed but language need not be perfect. It
is alienable, not devisable, not descendible.
3) Fee tail - You own present interest but your
family might lose it in the future
a. “To A” – words of purchase
b. “And the heirs of his body” – words of
limitation
Lasts until line of descendants runs out
Disfavored. Even where allowed, language must be perfect. It
is alienable, not devisable, descendible.
4) Fee simple determinable
a. “To A” – words of purchase
b “So long as, while, until, during” – words of
limitation
Automatic, back to grantor. It is alienable,
devisable, descendible.
5) Fee simple subject to a condition subsequent
a. “To A” – words of purchase
b. Provided that, but if, on condition that” –
words of limitation
Not automatic, back to grantor. It is alienable,
devisable, descendible.
6) Fee simple subject to an executory limitation
a. “To A” – words of purchase
b. So long as, while, provided that, but if. . . .” –
words of limitation
Automatic, to third party. It is alienable, devisable,
descendible.
Magic Words for Estates
- Fee Simple Determinable
“So long as, while, until, during”
NOTE: Estate ends automatically upon occurrence of
event and grantor retains future interest
Ex. “To B and his heirs so long as the land is not used
as a nightclub”
(If the land does get used as a club, B retains poss.)
- Fee Simple Subject to a Condition Subsequent
“Provided that, but if, on condition that”
NOTE: may be terminated at the election of the
grantor when a certain condition or event occurs
Ex. “To E + her heirs provided that alcohol is never
served on the premises”
- Fee Simple Subject to an Executory Limitation
“So long as, while, provided that, but if”
NOTE: automatically ends and goes to third person
Ex. “To C + her heirs, but if Boston becomes a state,
then O’s heirs have the right to re-enter and retake the
estate”
Present and Future Interests
Life Estate:
Estate: Life Estate
Future interest: Reversion in Grantor or
Remainder or Executory Interest in third party
Fee Tail:
Estate: Fee Tail
Future interest: Reversion in Grantor
Fee Simple Determinable: (Ends
Automatically)
Estate: Fee simple determinable
Future interest: Possibility of reverter
Fee Simple Subject to a Condition
Subsequent: (Does not end automatically)
Estate: Fee simple subject to a condition
subsequent
Future: Right of entry (a.k.a. power of
termination)
Fee Simple Subject to an Executory
Limitation:
Estate: Fee simple subject to an executory
limitation
Future interest: Executory interest.
Fee Simple Defeasible is an umbrella term
used to describe a fee simple that might last
forever or that may end upon the occurrence
of some event in the future.
Term of Years:
(Leasehold) estate: Term of Years
Future interest: Reversion in Grantor or
Remainder or Executory Interest in someone
other than Grantor
It is alienable, devisable, descendible.
To B for life, then to D’s children. D is deceased and had children.
B’s estate: Life estate
D’s children’s future interest: Indefeasibly vested remainder.
To B for life, then to D’s children. D is alive and has no children.
B’s estate: Life estate
D’s children’s estate: Contingent remainder
O: ReversionT
o G for 10 years, then to M and her heirs.
G’s estate: Term of Years
M’s future interest: Indefeasibly vested remainder in fee simple absolute
To G for life, then if M marries, to M and her heirs.
G’s estate: Life estate
M’s future interest: Contingent remainder in fee simple absolute
O’s future interest: Reversion in fee simple absolute
To G and her heirs so long as the land is used as a hospital, then to M and
her heirs.
G’s estate: Fee simple subject to an executory limitation
M’s future interest: Shifting executory interest in fee simple absolute
O has no interest remaining, because the interest will be held by either G or
M
To M and her heirs one week from today.
O’s estate: Fee simple subject to an executory limitation
M’s future interest: Springing executory interest
O conveys “to A for life or until he has a son.”
A has Life estate determinable (words of duration tell us estate can come to
an end)
O has reversion and possibility of reverter
O conveys “to A and her heirs, but if A does not enter law school, then the
property shall revert to O.”
A has Fee simple subject to a condition subsequent
O has right of entry
Future interests retained by the transferor:
1. Reversion – follows smaller vested
estate such as life estate, fee tail, or term
of years that has been carved out of a
larger vested estate.
2. Possibility of reverter – follows FSD and
arises automatically upon happening of
stated event
3. Right of entry – follows FSSCS but does
not arise automatically upon happening
of stated event.
Future Interests Created in a Transferee:
1) Remainder: Capable of becoming
possessory immediately upon expiration of
the prior estate AND does not divest any
interest in a prior transferee (“waits
patiently”
• Vested remainder: (1) created in an
ascertainable (living) person and (2) no
condition precedent.
-Indefeasibly vested remainder -- A
remainder in an identifiable person
that is certain to become a possessory
estate at some point.
-Vested remainder subject to
divestment – A vested remainder
subject to a condition subsequent.
(Could be divested – lost)
-Vested remainder subject to open- A
vested remainder that may be shared
among a larger group in the future.
•Contingent remainder: either (1) not
created in an ascertainable (living)
person; or (2) subject to a condition
precedent
2) Executory interest: Any future interest
created in a third party that is not a
remainder.
Springing – if it follows an interest in
the grantor
Shifting – if it follows an interest in a
third party.
O conveys “to John and his heirs until Abby graduates from law
school, then to David and his heirs.”
John has fee simple subject to executory limitation
David has shifting executory interest
O conveys “to A for life, then one day after A dies, to C and his
heirs.”
A has life estate
O has reversion subject to executory limitation
C has springing executory interest
O conveys “to A for life, then, if B gets married, to B and his heirs so
long as B stays married.” B has never married.
A has a life estate
B has contingent remainder in fee simple determinable
O has reversion + possibility of reverter (most jurisdictions collapse
this into reversion)
O conveys “To A for life, then to A’s children who shall reach 21.”
None of A’s children have reached 21 at this time.
A has life estate
A’s children have contingent remainder
O has a reversion
O conveys “To his children who reach 21 and their heirs.” O has
two children, X, who is 15 years old, and Y, who is 25 years old.
Children given present possessory interest, Y has already qualified
but may be divested, X does not wait patiently
Y has a fee simple subject to executory limitation
X has shifting executory interest
The doctrine of destructibility of contingent remainders is a
special doctrine that applies only to contingent remainders
that immediately follow the present possessory interest. This
means that, if the contingent remainder has not vested by the
time the prior estate ends, it will be destroyed, and we just
move on to the next interest.
The Rule Against Perpetuities (Jee v Audley)
No interest is good unless it must vest, if at all, no later than 21
years after some life in being at the creation of the interest.
The Rule Against Perpetuities applies only to Contingent
remainders, executory interests, and vested remainders subject
to open.
The Litany of Questions:
What interests exist?
Can the interest possibly vest more than 21 years after all of the
lives in being die?
Yes. O and B can’t be validating lives because there is no reason
to think that the interest will necessarily vest or fail within 21
years of their death. Their deaths are simply irrelevant to the
vesting of the transfer.
And the law conclusively presumes that M can have children until
the day he or she dies, and if he or she has a first child under 9
years old at death, that child will turn 30 more than 21 years after
M dies.
So what happens?
The contingent remainder is void, so we remove it. That means B
has a life estate and O has a reversion. The interest of M’s
children just goes away.
Tenancies – Concurrent Ownership Estates
1) Tenancy in common “to A and B as tenants in common”
-This is the default concurrent ownership estate
No specific language is required to create this one.
vested?
- Each has right to use+ possess the whole parcel, even
Who are the relevant lives in being at the creation of the
if fractional interest isn’t the same (ex. A owns 1/3, B
interest? (Start with the persons named in the transfer, and
owns 2/3  both can use + possess whole parcel)
include anyone else who is relevant to the gift.)
-If one tenant in common dies, that person’s interest
Can the interest possibly vest more than 21 years after all of
goes to that person’s own heirs – not the other tenant
the lives in being die?
in common.
-Alienable, divisible, descendible
RAP Example
2) Joint tenancy – “To A and B as joint tenants with rights of
“To B for life, then to M’s first child to reach 30.” Assume M is childless.
survivorship.” (Survivorship must be clear) (for siblings)
What interests are created?
If one joint tenant dies, the other joint tenant becomes the
B’s estate: Life estate
sole owner. (Right of survivorship)
M’s first child to reach 30’s future interest: Contingent remainder
A joint tenant’s interest can’t be left to someone else by will
O’s future interest: Reversion
(devisable) or transferred by intestacy (descendible).
If any interest is contingent, why is it contingent?
Severance if one joint tenant transfers her interest
M doesn’t have any children, so M’s children are unascertained
Severance occurs if the 4 unities cease to exist
persons, and there is a condition precedent they have to satisfy once
This has certain requirements:
born – turning 30.
What has to happen for the contingent interest to become vested?
-Time – the joint tenants must acquire their interest at
M must have at least one child who reaches the age of 30.
same time.
Who are the relevant lives in being when the interest is created?
-Title – they must also acquire their interest by same
O, B and M
instrument
O is a life in being because this is a conveyance rather than a devise. B is
-Interest – must be equal in size and duration
a life in being because B is mentioned in the transfer.
-Possession – each must have the equal right to use and
M’s children are not lives in being because none currently exist.
enjoy the whole property
M is a life in being even though the conveyance would be to M’s
children, because M can have no children without M being involved
either legally or biologically.
Lesson: So you don’t have to be named in the transfer to be a relevant
life in being, if you are necessary to some interest that is created!
MARITAL PROPERTY
Separate Property
System
(Equitable distribution)
(Used by most states
Including Florida)
Community Property
System
(Used by 9 States)
Prior to
Marriage
Items don’t become
marital assets
Not part of the definition
of community property
During
Marriage
Assets are separately
owned by acquiring
spouse
Earnings belong to the
wage earner
Almost everything
acquired during marriage
is community property
by either spouse (owned
by both spouses equally)
At Divorce
Equitable distribution of
marital assets (Courts
divide property in just
and fair manner taking
into account income,
age contributions
during marriage, health,
standard of living
among other things)
Court will start with the
premise of a 50/50
distribution of the
assets.
Community property is
allocated equally or
equitably
(some states do 50/50
split, some do equitable
distribution)
Surviving spouse can
take what’s provided in
the will, OR
Take forced/elective
share (typically a 1/3 or
1/2 share) (FL does this)
Surviving spouse keeps
their half of community
property, decedent can
either leave half to the
surviving spouse or do as
they wish.
At Death
If time, title, or interest is missing, it becomes a tenancy
in common
Each joint tenant owns property in equal share (same %)
Leases (Neithamer(FHA aids case), Roomate.com(no FHA
protection in roommates choosing)In Re Clark(gross
housing))
Right to use – LL has mostly given this up
Right to exclude – LL has given this up, by letting T in.
Right to transfer – LL can still sell the property.
Right to destroy – not during the life of the lease!
Remedies include suing for all rent, terminating lease,
mitigating damages and then suing for rent, and in Florida
you can get liquidated damages
Sommer (abandonment case): landlord that keeps lease in
effect after abandonment can’t recover damages that
could’ve been mitigated, but can seek expenses of finding
new tenant
Statute of Frauds (SM1LES)
Sale of goods for $500 or more
Marriage
1 = 1 year (contracts over a year long)
Land
Executor or Administrator of an estate
Suretyship
* Needs to be memorialized in writing to protect against
fraud – don’t want ppl to be held to a promise they didn’t
make
Delivering Possession (Keydata(Nasa Case))
American Rule: landlord merely covenants that possession
will not be withheld by himself or by one having paramount
title.
English Rule: when the lease is silent on the point, the
landlord must deliver actual possession of premises at
beginning of the term
Partition (Akrland (mining company)
Any TIC or Joint Tenant has right to sue for partition of
prop
Partition in Kind: Leaves cotenants holding the same
estates as before and it does not force a sale on
unwilling cotenants
Partition by Sale Factors: 1) property cannot be properly
partitioned in kind 2)one party’s interest would be
promoted by sale, 3) no parties interest would be
prejudiced by sale
Esteves Rules-Everyone must pay fair share of operating
expenses, no occupancy charge is allowed, upon sale
there should be a credit allotted to the party who has
solely occupied the premises
Doctrine of Waste(Woodrick(barn case)) - Common
Law, none allowed, Woodrick says waste is only
disallowed where it reduces value of property
-Voluntary Waste: Results from an affirmative act that
significantly reduces the value of the property
(Demolishing Valuable House)
-Permissive Waste: Results from failure to take
reasonable care to protect the estate (failing to make
minor repairs or pay property taxes)
-Ameliorative Waste: results from an affirmative act
that leads to a substantial change in the property and
increases its vale(building pool)
3)Tenancy by the entirety –only for married couples
-Created by “four unities plus marriage.”
- in FL married couples’ tenancy by the entirety is
presumed.
-Has a right of survivorship like Joint Tenancy.
-Severed only by death, divorce, or agreement of
both parties.
-Neither spouse can alienate their property from
the other (creditors cant get it)
- Guy Case(Marital Property does not include
Intellectual enhancements)
-Obergefell (Same Sex)
CONSTRUCTIVE EVICTION
-Wrongful conduct (or lack of action/omissions) by the LL that
substantially interfered with the tenant’s beneficial use and
enjoyment of leased premises
-Must actually causes tenant to leave w/in a “reasonable”
amount of time
-Procedural steps: T must notify LL about the problem  give
LL reasonable period of time to fix problem  then vacate the
premises (w/in a reasonable amount of time)
-Wrongful OMISSIONS
1.) fails to perform obligation of lease
2.) fails to adequately maintain and control the common area
3.) breaches a statutory duty owed to the tenant
4.) fails to perform promised repairs
5.) allows nuisance like behavior.
-Wrongful CONDUCT
1) Blocking access to T’s premises
2) Creating a nuisance that affects the T
3) Harassing the T’s customers
4) Repeatedly trespassing on the T’s premises
CONSTRUCTIVE EVICTION TESTS:
-Fidelity Test: (use for LL omissions)
1. One can infer from the circumstances that LL intended that
the T no longer enjoy the premises
2. LL’s material omissions substantially interfered w T’s use +
enjoyment of the premises for the purpose for which the
premises had been leased
3. LL’s material omission permanently deprived T of the ability
to use + enjoy premises (look to frequency of it occurring)
- Doesn’t require that something has to happen every day
-Fidelity: protestors every Sunday was sufficient to meet this
4. T actually abandoned premises w/in reasonable time after
the LL’s omission
-Common Law Test:
1. Wrongful conduct
2. By the LL
3. That substantially interferes w T’s use + enjoyment of land
4. T must vacate the premises
Retaliatory Eviction
(Gilbert(electrical system repairs)
Traditional rule: LL cant terminate for any reason, now limited, can’t
terminate in violation of FHA or retaliation of tenant exercising their rights
Modern Rule: if tenants exercising rights is material/substantial reason for
lease termination, not allowed (in FL it is primary reason)
There are three main types of land descriptions:
1) Reference to subdivision map
2) PLSS land description (Public Land Survey System)
3) Metes and bounds
Insurable interest exists throughout this period
Eviction in Florida
1) Deliver notice of termination for failure to pay rent (In person or by
mail.)
2) Wait three days after delivering notice (for nonpayment of rent); 7
days for other violations of lease
3) File an eviction complaint with county clerk
4) Provide service of summons to the tenant (can use private process
server or sheriff)
5) Tenant has 5 days to answer
a) If T pays rent and LL still wants them out, have to schedule a hearing
b) if T does not respond, request default judgment
6) Go to court if hearing required. If LL wins, T usually gets 24 hours to
vacate.
Eviction (Berg(restaurant eviction)
NO MORE SELF HELP ALLOWED
Contract signed
Title and Risk of Loss pass
Cancellation period
Caveat Emptor (Buyer is Responsible) buyer is
expected to make reasonable investigations
about conditions of the property
Exceptions to Caveat Emptor:
1) affirmative misrepresentation
2) active concealment
3) fiduciary duty
Stambovsky rule: (Ghost Case)
Title Assurance:
Title Covenants: the grantor promises in the deed that he has good title
to convey
Title opinion based on search of public records: an attorney or other
professional renders an opinion about the state of title after searching
public land records
Title Insurance: Title insurance company issues a policy that insures the
grantees title
Lady Bird Deed(Transfer on Death or beneficiary deed)
The grantor retains complete control over the property while alive – can
mortgage or sell it without anyone’s permission (unlike standard LE) but
the land is transferred automatically without probate at death.
6 Standard Covenants:
Present covenants (clock runs at time of closing):
1. Covenant of seisin – you own what you claim to own
2. Covenant of right to convey – you are able to sell what you
claim you can sell
3. Covenant against encumbrances – there are no
encumbrances not already disclosed in the deed.
Future covenants (Clock runs in the future):
1. Covenant of warranty – you will defend the title against
anyone who raises a claim
2. Covenant of quiet enjoyment – possession won’t be
disturbed by someone claiming superior title.
3. Covenant of further assurances – you will cure any title
defects at closing.
Mortgage:
-Lender gives loan, borrower executes promissory note, and
obligation is secured by a mortgage that allows the lender to
foreclose on the property in the event of default.
-Judicial foreclosure is required.
-Borrower has title and possession of the property unless
there is foreclosure.
-Florida is a mortgage-only state.
Deed of Trust:
Lender gives loan, borrower executes promissory note, and
borrower transfers his or her interest in the real property to a
trustee who holds the interest unless/until the note is paid.
-No need for judicial foreclosure because the debtor doesn’t
have title to begin with.
-Instead, throughout the life of the loan, the trustee holds a
power of sale to be exercised upon default.
-Trustee has title and borrower has possession unless there is
a default, in which case the trustee delivers title and
possession to the lender.
The debtor has only equitable title until the note is paid.
Installment land sale contract: (Not recognized in FL)
-Much like a rent-to-own contract in the context of housing.
-Seller keeps legal title; buyer owns equitable title (as with
deed of trust) and takes possession.
-If buyer misses any payments, forfeits all payments made
and never gets legal title.
-If buyer makes every payment, gets legal title.
-Modern reforms allow substantial grace periods, and
treating them like a mortgage.
Where a condition which has been 1.) created by the
seller 2.) materially impairs the value of the contract and
Implied Warranty of Habitability (Wade(Sewage))
3.) is peculiarly within the knowledge of the seller or
-The implied warranty of habitability requires that Landlord maintain “bare
unlikely to be discovered by a prudent purchaser
living requirements, and that the premises are fit for human occupation.”
exercising due care…, 4.) nondisclosure constitutes a basis
-Failure to supply a need such as “heat or hot water” would breach the
warranty, however minor deficiencies such as a malfunction in the blinds
for rescission as a matter of equity
would not constitute a breach.
Majority rule:
Procedural Requirements: T must notify LL about the defects + allow a
-Material facts
reasonable time for LL to make repairs. T is not required to vacate – Can
-Known to seller
remain in possession + withhold rent until LL cures the habitability problem
(main difference btwn constructive eviction)
-Not known or reasonably knowable by buyer (subjective
Remedies for a breach of the implied warranty of habitability:
or objective)
1) T may continue to pay rent and seek reimbursement from the LL for -Which materially affect the value of the property
rent that should not have been required due to the condition of the
-Must be disclosed.
premises.
Strawn v. Caruso Rule: (Hazardous waste dump nearby)
2) Withhold rent until the repairs are made (which is often the most
Professional sellers of residential housing must disclose
productive remedy).
3) Go ahead and make the repairs using rent money and deduct the cost off-site physical conditions of which they are aware, which
of the repairs from the rent you pay.
are material to the transaction.
4) Terminate Lease
Megan’s Law: Sex offenders must register
The remedy is damages:
Land Sale Statute of Frauds
-Percentage diminution approach: T’s recovery reflects the % by which
Essential
Terms
(identity of the parties, price, property
the T’s use + enjoyment of the premises has been reduced by the
description), writing (formal contract or informal memo),
uninhabitable conditions
signature (must be signed by the party sought to be
Litigating the Statute of Frauds
bound).
-Plaintiff in contract action proves elements of contract: Offer +
Acceptance + Consideration = Contract
-Exceptions to SOF: Part Performance (buyer takes
-Defendant then proves affirmative defense of Statute of Frauds
possession, pays at least part of the purchase price,
-Plaintiff then seeks to prove that the Statute of Frauds either (1) is not makes improvements), Equitable Estoppel (one party acts
implicated or (2) is satisfied (either by a writing or an exception
to his detriment in reasonable reliance on another’s oral
promise, and serious injury would result if enforcement is
Buyers typically breach in falling markets; sellers typically breach in
refused) (Hickey case(sold house after agreed to buy
rising markets.
greens house))
Three primary types of deeds:
General warranty deed -Grantor fully warrants the
title against all defects that would affect marketability,
regardless of when those defects arose.
Special warranty deed -grantor warrants only that they
did nothing to render the title unmarketable; they
make no promises about what prior owners may have
done.
Quitclaim deed -grantor promises to sell only
whatever interest they have – but makes no promises
about what that interest actually is.
Parts of a deed
1.Identification of the parties (first part and second
party)
2. Description of the land (same 3 types as you saw
back on pages 541 and 542 of the book)
3. Words indicating a present intent to convey the
property (“remise (surrender), release, and quit-claim .
. . all the right, title, interest, claim and demand . . . in
the following lot, piece or parcel, land, etc.”
4. And signature by the grantor (grantee need not
sign).
Legal delivery of a deed(Rosengrantland2nephew)
The grantor must (1) intend to immediately transfer an
interest to the grantee (may be acts without words or
words without acts, or both) and (2) provide some
objective manifestation of that intent. Delivery is
presumed if deed is recorded.
Marketable Title: (Lohmeyer Case(house violated
stuff))
Unmarketable if:
1.) sellers property interest is less than the one she
purports to sell
2.) sellers title is subject to an encumbrance – not
zoning, not value, not utility (encumbrance is rights of
interests held by 3rd parties that effect the value of the
land)
3.) There is any reasonable doubt about 1 or 2
Equitable Conversion
-Breach of contract to sell or purchase real estate that
happens during period between contract signing and
execution(Brush Grocery(hail storm))
-Majority Rule: Party entitled to possession bears risk
of loss during executory period (normally seller, not
buyer)(Brush Represents this)
Escrow Agent is neutral 3rd party that who receives
purchase price, deed, mortgage, promissory note, and
any other documents needed to complete transaction
Judicial v. Nonjudicial Foreclosure
Nonjudicial foreclosure usually saves time and
money—but may present greater risks for the
mortgagor.
-This is because there is no judicial oversight in
a nonjudicial foreclosure, by definition.
-In a judicial foreclosure suit, the court must
determine that (1) a default has occurred and
(2) the debtor has no defenses before the
foreclosure sale may occur. If both elements are
satisfied, plaintiff receives the settled amount.
-In a nonjudicial foreclosure, the lack of judicial
oversight creates the possibility that the lender will
take advantage of the debtor—unless the debtor files
a lawsuit to enjoin the sale and thereby obtains
judicial review.
Easements (Relates to Access)
-Public law and private law aspects
-Easements are creatures of property law, so they transfer
easily in almost all cases to the next holder of the burdened
and benefited land.
Vocabulary – burdened land is called servient; benefited land
is called dominant.
-allows owner to continue to use the land, subject to the
easement.
-But owner is not permitted to exclude the holder of the
easement, and the easement continues for a definite amount
of time.
-An easement, like a lease, is considered an interest in land.
Affirmative easements let you have access to someone else’s
property so as to more productively use your own property.
Negative easements give you access to sunlight, air, wind, or
water that might otherwise be blocked by someone else’s
property.
Appurtenant easement
-benefits the holder in the use of a specific parcel of land.
Easement in gross
-Personal to the holder, not connected to a specific parcel of
land. (Milbrook Case)
Easement by grant: servient owner grants easement to
dominant owner
Easement by reservation: Dominant owner grants servient
land to servient owner but retains or reserves an easement
over that property
Types of Easements
Express Easement (Agreement)
-Must satisfy Statute Of Frauds
-Should be recorded
-Identify the parties
-Identify the servient land
-Provide the exact location of the easement
-Indicate the purpose of the easement
Implied Easement by Prior Use (Likely intent at severance)
-Severance of title to land held in common ownership
-Existing, apparent, and continuous use of one parcel for
the benefit of the other at severance; and
-Reasonable (strict in Florida) necessity for the use
(higher standard for if easement is grantor than for
grantee)
Three Exceptions to CC&R Enforcement
(1) Unreasonableness, (2) abandonment, and (3)
changed conditions.
Nahrstedt (Animals) rule on the unreasonableness
defense to enforcement of CC&Rs:
Restrictions should be enforced unless they are wholly
arbitrary (bear no rational relationship to the
protection, preservation, operation, or purpose of the
affected land.), violate a fundamental public policy, or
impose a burden on the use of affected land that far
outweighs any benefit.
Restatement rule on the unreasonableness defense to
enforcement of CC&Rs:
Valid unless . . .
-Illegal or unconstitutional or violates public
policy
-Arbitrary, spiteful, capricious (No standard,
inconsistent application)
-Unreasonably burdens a fundamental
constitutional right
-Unreasonable restraint on alienation, trade, or
competition
-Unconscionable (shocking to conscious and
absence of reasonable choice).
Easement by Necessity: (Likely intent at severance) (In
Florida there are two different kinds of easements by
necessity, common law requires both elements,
statutory only requires second element below)
-Severance of title to land held in common
ownership; and
-Necessity (strict or reasonable(reasonable in
Florida)) for the easement at the time of severance
– not before the time of severance, but at the
time of severance.
Prescriptive Easement: (landowners lack of protecting
own rights)
-Adverse use of another’s land;
-Continuous and uninterrupted for a at least 10
years (statutory period) (20 in Florida);
-Either actually known to the owner, or so open,
notorious & visible that a reasonable owner would
have noticed the use; and
-The dimensions of the land used, and the manner
or purpose for which it was used.
BOOK ELEMENTS: (open and notorious, adverse
and hostile, continuous, for statutory period)
Easement by Estoppel/Irrevocable license: (Reliance on
a verbal promise)
-Landowner allows another to use his land, thus
creating a license;
-Licensee relies in good faith on the license, usually
by making physical improvements or incurring
significant costs; and
-Licensor knows or reasonably should expect such
reliance will occur.
License
A license is not an interest in land and is often created
when the parties mean to create an easement but fail to
meet the writing requirement. A license can be
terminated unilaterally at any time. A license does not
continue for any definite period of time, and the owner
of land has the right to exclude the holder of the license
at any time.
Punishment for Trespass
“As in the Jacques case, trespass is a strict liability
offense. Thinking back to the fundamental theories of
property, the offense here is against Chandler’s right to
exclude others from Chandler’s property. As in the
Jacques case, the court may choose to award punitive
damages supported by an award of nominal damages. “
Texas standard for abandonment defense to
enforcement of CC&Rs: (Fink case)
-Whether the “violations are so great as to lead the
mind of the average [person] to reasonably
conclude that the restriction in question has been
abandoned.”
-The “number, nature, and severity” of the
violations are important.
-If abandonment is in doubt, court will examine
any prior acts of enforcement of the restriction,
and whether it is still possible to realize to a
substantial degree the benefits intended through
the covenant.
Fountain Valley case is the one that says it goes to
far with veteran
Land use agreements – real covenants or
equitable servitudes. (Relates to Control)
-“CC&R are rules and guidelines created to
regulate Privately Planned Communities and are
enforceable as real covenants or equitable
servitudes.”
-Creatures of contract law, once disfavored but
have become accepted over time.
-An easement involves access to someone else’s
land, while a real covenant or equitable servitude
allows you to either force some action to take
place -or prevent some action from taking place –
on someone else’s land.
Real covenants and equitable servitudes are
broader than easements in terms of what they
can cover. -They allow the benefited party to
either force some behavior (“you must paint
your house red”) or prevent some behavior
(“you cannot run a business out of your home”)
on someone else’s property.
In each real covenant, as with easements, we
have a burdened party and a benefited party.
-The burden rests on the party making the
promise; the benefit is enjoyed by the
party to which the promise is made.
But it is harder for real covenants and equitable
servitudes to be transferred with the land than it
is for easements.
-And that is because easements are
creatures of property law that were
assumed to attach to the land,
while real covenants and equitable
servitudes are creatures of contract law
originally assumed to be personal
promises not attached to the land.
If you want injunction, do equitable servitude, if
you want damages, do real covenant.
The Business Judgment Rule Today (Florida)
-Principle of substantive corporate law that presumes
a corporate director has acted in good faith
-Section 607.0830 provides that a director must
discharge his or her duties in good faith, with ordinary
care, and in a manner he or she believes in the best
interests of the corporation. A director cannot be
liable for money damages unless the plaintiff
shareholder or corporation also proves that the
director’s breach of his or her duties (whether in a
statement, vote, decision, or failure to act) consists of
one of the following: 1) a knowing criminal violation;
2) a transaction involving an “improper personal
benefit” (e.g., self-dealing); 3) an improper distribution
to shareholders; 4) conscious disregard for the best
interest of the corporation; or 5) willful misconduct.
Proving gross negligence is not enough to overcome
the business judgment rule’s protections.
The business judgment rule generally prevents a court
from calling directors to account for their actions or
inactions, no matter how poor their business judgment.
Restatement Business Judgement Standard
(1) In addition to duties imposed by statute and the
governing documents, the association has the
following duties to the members of the commoninterest community: (a) to use ordinary care and
prudence in managing the property and financial
affairs of the community that are subject to its control;
(b) to treat members fairly; (c) to act reasonably in the
exercise of its discretionary powers including
rulemaking, enforcement, and design-control powers;
(d) to provide members reasonable access to
information about the association, the common
property, and the financial affairs of the association.
(2) A member challenging an action of the association
under this section has the burden of proving a breach
of duty by the association. Except when the breach
alleged is ultra vires (beyond ones authority) action by
the association, the member has the additional burden
of proving that the breach has caused, or threatens to
cause, injury to the member individually or to the
interests of the common-interest community.
License – Right does not continue for a definite period
of time, and owner of land has the right to exclude the
holder of the license. A license, unlike a lease or
easement, is not classified as an interest in land.
Lease – typically provides lessee with exclusive right to
possession.
Eminent Domain
Fifth Amendment language on eminent domain: Nor shall
private property be taken for public use without just
compensation.” (Not limited to real estate)(In Florida, it is full
compensation, like attorney’s fees as well)(no compensation
for sentimental value)(solves bilateral monopoly
problem)(DOES NOT GIVE EMINENT DOMMAIN POWER, IT
RESTICTS IT)
-Midkiff – Police power includes. “Health, safety, morals, and
general welfare” (Broke up oligopoly)
Standard applied: “rationally related to a conceivable
public purpose.”
Only takings purpose matters, not mechanics in order to
pass strict scrutiny
-Kelo goes a step further because it is not an oligopoly and
existing uses were reasonable and not hurting anyone
Nuisance
Public: improper interference with a right
common to the public
Private: any intentional non trespassory invasion
of another’s interest in the private use or
enjoyment of land (The following elements apply)
Elements:
1) Intentional act –the act must be intentional,
and the actor must be aware that his act will or
likely will cause an invasion to another person’s
property, but he doesn’t have to feel any malice,
ill will, or intent to be a nuisance.
2) Nontrespassory – there is no physical entry
onto the land.
3) Unreasonable interference – most jurisdictions
balance the harm caused by the act against the
social utility of the act.
-Under the gravity of the harm test: (Boomer
(cement))
-Any conduct is unreasonable if it causes
substantial harm, regardless of the
social utility of the conduct.
-Under the Restatement approach:
(Thompson(smoke))
-Extent of the harm;
-Character of the harm (Is it personal
injury, property damage, or personal
discomfort);
-Social value that the law attaches to
the type of use or enjoyment invaded
(ability to use home, etc.);
-Suitability of the particular use or
enjoyment invaded to the character of
the locality; and
-Burden on the person harmed of
avoiding the harm
--- Balanced against ----Social value attached to the primary
purpose of the conduct complained of;
-Suitability of the complained-of
conduct to the character of the locality;
and
-Impracticability of preventing or
avoiding the invasion
4) Substantial interference – how bad is it?
(Property damage, personal injury and personal
discomfort)
5) With use and enjoyment of land
Remedy:
Public Land Use Regulation
Some of the assumptions of Euclidean zoning
1) separation of uses is desirable
2) single-family residence is the most important
use
3) Low-density development is desirable
4) Residents will travel by private car
5) Development will proceed lot by lot
6) Once zoning is established, there will be little
need to change it.
Rational Basis Test: (Euclid Standard) Unconstitutional
ONLY IF “clearly arbitrary and unreasonable, having no
substantial relation to the public health, safety,
morals, or general welfare.” This standard reflects
judicial deference to legislative decisions.
-Zonings come from police power
-Courts generally uphold ordinances which provide
that only members of a family may occupy a single
family residence.
-If an ordinance prohibits family members from living
together it is subject to the Moore strict scrutiny test
of evaluating the importance of the government
interest advanced and the extent to which those
government interests are served by the regulation.
Standards applied in the Associated Home Builders
case (Growth controls and exclusion)
-Gives guidance and alters euchlid standard under
circumstances when a land use ordinance effects
residents as well as non-residents of the same
municipality
-“The probable effect and duration of the
restriction” (stopping development or just slowing
down)
-The “competing interests affected by the
restriction,” including the interests of residents
and nonresidents
-“Whether the ordinance…represents a reasonable
accommodation of the competing interests”
(Weigh interests)
Stoyanoff: court pure aesthetic regulations won’t work
alone, need some other justification like property
value
Modern Courts: Purely aesthetic is okay as long as it
passes rational basis test
Gilleo: Ordinance banning almost all signs normally
would have passed uchlid rational basis test but fails
here because first amendment analysis is more strict
-Traditionally, an injunction was the remedy for nuisance,
although damages may also be awarded (as in Boomer).
- Today, courts balance equities to determine if the
appropriate remedy is an injunction or damages.
Public benefits test73.014: Taking property to eliminate nuisance, slum,
-Actually used by public
or blight conditions prohibited
-Public benefits by use of land (comprehensive plan?)
Florida Eminent Domain:
SECTION 6. Eminent domain.—
(a) No private property shall be taken except for a
public purpose and with full compensation therefor paid
to each owner or secured by deposit in the registry of
the court and available to the owner.
(b) Provision may be made by law for the taking of
easements, by like proceedings, for the drainage of the
land of one person over or through the land of another.
(c) Private property taken by eminent domain
pursuant to a petition to initiate condemnation
proceedings filed on or after January 2, 2007, may not
be conveyed to a natural person or private entity except
as provided by general law passed by a three-fifths vote
of the membership of each house of the Legislature.
Prohibited
Discrimination
Covered
Transactions
Statutory
Exemptions
Fair Housing Act of 1968
Civil Rights Act
of 1866
Race; Color; Religion; Sex; Disability;
national origin
Familial Status (families with minor
children, or pregnant women)
Handicap (1. A physical or mental
impairment which substantially
limits 1 or more of the person’s
major life activities; 2. A record of
having such an impairment; or 3.
Being regarded as having such an
impairment, but does not include
current, illegal use or of addiction to
a controlled substance
Race
Selling
Renting
Advertising
(Dwelling Only)
Inheriting
Purchasing
Leasing
Selling
Holding
Conveying
(Real and Personal
Property)
NONFREEHOLD
ESTATES
(LEASES):
Language
establishing
Term of
Years
Tenancy
“2 Year
Lease”
-Fixed
duration that
is agreed
upon in
advance
1. Rooms or units in
dwellings containing living
quarters . . . occupied by no
more than four families living
independently of one another,
if the owner . . . occupies one
of such living quarters as his
residence.
2. Any single-family house sold
or rented by an owner if he
does not own more than three
houses and does not use a real
estate broker or agent in the
sale or rental.
-Once that
term ends,
tenant’s
possessory
right
automatically
expires, + LL
may retake
possession
Majority rule
of notice to
terminate/end
Real
Covena
nt
Burden
Real
Covenant
Benefit
Equitable
Servitude
Burden
Equitable
Servitude
Benefit
Restateme
nt
(covenant
that runs
at law)
Yes, or
common
plan
Statute of
Frauds
Yes
Yes
Yes, or
common
plan
Yes, or
common
plan
Intent to Bind
Successors
Yes
Yes
Yes
Yes
Touch and
Concern
Yes
Yes
Yes
Yes
No
Notice
Yes
No
Yes
No
Not an
affirmative
element of
proof;
instead, an
affirmative
defense
Horizontal
Privity (must be
more than just
that agreement)
Vertical Privity
Yes
No
No
No
No
Yes
Yes
No
No
Generally
not
Not arbitrary,
unconstitutional,
unconscionable,
or violative of
certain public
policies
*
*
*
*
Yes
Yes (by
owner of
burdened
property)
Tenancy at Will
“Month to Month;
year to year” etc.
“So long as both of us
wish”
-Automatically
renewed for
successive periods
unless landlord or
tenant terminates
the tenancy by
giving advance
notice
But often arises by
implication w/out an
express agreement
30 days for month
to month
-At common law
either party could
terminate with no
notice.
-Today, most states
require advance
notice to end such a
tenancy that is
equivalent to the
period of time
between rent
payments.
-Tenancy terminates
automatically if
either party dies,
tenant abandons
possession, or
landlord sells the
property
Florida implies a
periodic tenancy in a
residential lease
where no fixed term
is given.
Florida Statutes
83.46 (and thus 83.57
for notice required)
LL has 3 options of
what to do with a
holdover tenant:
1. Treat him as a
trespasser + evict.
2. Charge double
rent
3. Renew his lease
for another term
-Today, most
states have
abolished the 3rd
option
Thus, tenancy at will
is only for
nonresidential leases
in Florida.
Can’t Renew Lease
6 months for year
to year
Florida Rules &
Notice
Required to
End
Note that these exemptions do
not apply to advertising in
violation of the FHA.
Periodic Tenancy
None
required
unless
parties
otherwise
contract;
automatically
ends at end
of term.
Florida
Statutes
83.575
Maximum
notice that
can be
required by
contract is 60
days.
Year to year – 60
days' notice to
terminate
Quarter to
Quarter – 30 days
Month to month –
15 days
Week to week –
7 days
Florida Statutes
83.57
-Has No fixed ending
point
(Effel case (must be
for fixed period or it
is tenancy at will),
can’t invent new
lease type))
Tenancy at
Sufferance
- only created when
a person who
rightfully took
possession of land
continues in
possession after
that right ends
(similar to AP)
- Arises from
occupant’s
improper conduct,
 person becomes
a holdover tenant
Landlord may
recover possession
and may recover
double rent during
the holdover
period.
Florida Statutes
83.58.
Not recognized in
Florida for
nonresidential
leases.
“Numerous clauses” – Can’t invent new type of lease
Fair Housing Act Burden shifting framework
(When a PL offers no direct evidence of discrimination)
PL must establish a prima facie case of discrimination
by showing:
1) PL is a member of a protected class and defendant
knew this
2) PL applied for and was qualified to rent the property
3) Defendant rejected this application and
4) Property remained available thereafter
Once PL establishes a prima face case, burden shifts to
DF to articulate some legitimate, nondiscriminatory
reason for their rejection of PL’s application
If DF satisfies this burden, PL must show either that DF’s reasons
are pretext (not the real reason) or that material facts are disputed