Florida Real Estate Principles,
Practices & Law 38th Edition
Linda L. Crawford
Copyright © 2015 Kaplan, Inc.
All rights reserved.
Chapter 9
Title, Deeds, and Ownership
Restrictions
Title to Real Property
• A person holds vested ownership rights in
property
– Title A legal concept signifying ownership to the
collection of rights called an estate
– Equitable title The beneficial interest that
implies a person will receive legal title at a future
date; the interest that a buyer receives upon
executing a contract prior to title closing
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Acquiring Legal Title
• Alienation
Act of transferring ownership, title, or an
interest in real property
• Alienation may be
– Voluntary With the owner’s control and consent
– Involuntary Without owner’s control and
consent
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Voluntary Alienation
• Deed
– A written instrument used to convey an interest
in real property
– Conveys legal title
• Will
– Testate Deceased person prepared will before
death
– Testator (testatrix) person who leaves a will
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Involuntary Alienation
• Descent When person dies without leaving a will
(intestate) property descends to heirs
• Escheat provides for government to take property
of owner who dies intestate and has no known
heirs
• Adverse possession when the true owner sleeps
on owner’s rights
• Eminent domain gives government right to take
property for public purpose through a
condemnation proceeding
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Conditions for Adverse Possession
H ostile possession
Open possession
T axes paid by adverse possessor
C laim of title
A dverse possession for 7 years
Notorious and flagrant public
possession
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Types of Notice
Actual
Direct knowledge acquired in the course of
a transaction
Constructive (legal notice)
Recording in the public records
Acknowledgment Formal declaration before a
notary public by grantor that the signing is a free
act
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Condition of Title
Chain of title is complete successive history
Title search
•
Abstract of title is a summary report of title
search found in public record
Opinion of title
• Executed by an attorney who has studied the
abstract
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Title Insurance
• Contract that protects policyholder from
losses from defects in title
• Florida does not require title insurance
• Licensees are not qualified to give opinion of
title
• Licensees first must obtain a current opinion
from an attorney before quoting an opinion
that title is good
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Title Insurance
Owner’s Policy
• Issued for purchase
price
• Protects new owner
and owner’s heirs
• Not transferable to
another owner
• One-time premium
Lender’s Policy
• Issued for unpaid
mortgage amount
• Protects lender against title
defects
• Transferable (assignable)
• Protects lender up to
outstanding loan balance
• Most lenders require as a
condition of making loan
• One-time premium
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Deeds
• A written instrument that conveys title
• Two parties to a deed
– Grantor – owner giving title
– Grantee – new owner receiving title
• Must be signed by a competent grantor and
two witnesses
– Grantee does not sign deed
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Elements of a Deed
• Consideration—good or valuable
• Execution—signatures of competent grantor
and two witnesses
• Description of property
• Delivery and acceptance—voluntary
• Interest or estate being conveyed
• Names of grantee and grantor
• Granting clause and others
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Clauses in a Deed
• Premises names parties
– Date of deed
– Granting clause – words
to convey title
• Habendum
– “To have and to hold”
– Type of estate conveyed
• “Forever” = fee
simple
• “Life of the grantee”
= life estate
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Clauses in a Deed
• Seisin
– Grantor owns
– Grantor has right to
convey title
• Covenant against
encumbrances
– Property is free from
liens or other
encumbrances
unless noted on the
deed
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Statutory Deeds
• Quitclaim deed
– Grantor quitclaims to the grantee all of grantor’s
rights, title, and interest
– Used to clear clouds on title
– Remise, release, and quitclaim
– Grantor does not claim ownership
• No Covenant of Seisin
– No warranty to defend title
– Suit to quiet title
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Statutory Deeds
• Bargain and sale deed
– Granting, habendum and seisin
– No future warranty
– Conveys all the title the grantor has, but it does
not protect grantee from clouds or claims on the
title
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Statutory Deeds

Special warranty deed


Grantor does not warrant title except against
acts by the grantor or grantor’s representative
Used by large corporations when selling property
and by lenders selling foreclosed property
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Statutory Deeds
• General warranty deed
– Full covenant and warranty deed
– Contains all covenants and warranties available
• Quiet enjoyment—peaceful possession undisturbed by
claims of title
• Further assurance—grantor will deliver legal instrument
if required
• Warranty forever—to defend grantee’s title
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Special Purpose Deeds
• Personal representative’s deed
– Personal representative is appointed by will or by
court to settle estate of deceased person
• Guardian’s deed
– Guardian acts on behalf of a minor
• Committee’s deed
– Used when owner is legally incompetent
• Certificate of title given at a foreclosure sale
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Legal Requirements
• General warranty deed required unless
otherwise stated in contract
• Transfer of title is not effective until the
deed is delivered and accepted
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Ownership Limitations and Restrictions
Government
• Police power
Private
• Deed restrictions
• Easements
• Leases
• Liens
– Zoning Ordinances
– Building Codes
– Health Ordinances
• Eminent domain
– Fair Price
– Condemnation
proceeding
• Taxation (property)
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Deed Restrictions
• Deed restrictions are part of a deed
– Affect only one particular property
• Restrictive covenants often recorded with
the plat map
– Affect all the properties in a subdivision
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Easements
• Right to use portion of owner’s land for a
specific purpose
• Does not convey ownership (possession)
• Terminated by agreement, abandonment,
court order
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Types of Easements
• Created by written agreement
– Easement Appurtenant
• Benefits adjacent parcel of land
– Easement In Gross
• Benefits individual or business entity
• Created through a court of law
– Easement By Necessity
• Landlocked
– Easement By Prescription
• 20 years open, continuous, noninterrupted use
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Encroachment
• Unauthorized use of
another’s property
– Fence or garage
located beyond
boundary
– Implied easement
after seven years
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Leases
• Grants right of possession and use to lessee
(tenant)
– Does not transfer ownership interest
• Must be written and signed to be
enforceable if over one year
– Also requires signatures of 2 witnesses if over
1 year
• Licensees may use fill-in-the-blank lease
forms approved by FL Supreme Court
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Types of Leases
• Gross
– Tenant pays fixed rent
• Net
– Tenant pays fixed rent
plus building expenses
• Ground
– Lease on land
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Percentage Lease
• Percentage
• Example:
– Minimum rent may
be either a gross or
net rent
– Additional rent
based on gross sales
– Commonly used for
large retail stores
• Monthly minimum rent of
$1,000 plus 3 percent
annual gross sales in excess
of $325,000. Gross sales
were $450,700.
• $450,700 - $325,000 =
$125,700
• $125,700 x 3% = $3,771
• $1,000 x 12 months =
$12,000 rent + $3,771 =
$15,771 total rent
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Variable Lease
• Rent changes at set
times
• Rent adjustments
tied to a price index
• Also called index
lease
• Example
Rent is $12 per square foot
with index of 1.5. Index
increases to 1.8.
1.8 ÷ 1.5 = 1.20
1.20 x $12 per square foot
= $14.40 adjusted rental
rate
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Assignment and Sublease
• Assignment
– When tenant assigns all of leased property for
remainder of lease
• Sublease
Two ways to sublet property
1.Tenant assigns a portion of leased property
2.Tenant assigns all property for less than
remaining term
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Liens
• Right to have a debt satisfied by some
property owned by the debtor
• Lienholder (lienor) may have the property
sold to pay the debt of the owner (lienee)
• Liens are recorded in the public records
(constructive notice)
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Voluntary and Involuntary Liens
Voluntary
Involuntary
• Mortgage
• Vendor’s lien
• Judgment liens
• Tax liens
• Construction liens
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General and Specific Liens
General
• Judgment liens
• IRS liens
• Federal estate tax
liens
Specific
• Property tax liens
• Special assessment
liens
• Mortgages
• Vendor’s lien
• Construction
(mechanic’s) lien
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Lien Priority
• Superior liens
– Property tax
– Special assessments
– Federal estate tax
• Junior liens
– Priority by recording date
Construction lien is an
exception
– Subordination agreement
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