PROPERTY (D2) - University of Miami

UNIVERSITY OF MIAMI PROFESSOR SCHNABLY SCHOOL OF LAW

PROPERTY (D2) Exam Packet – Fall 2019

This Exam Packet contains the following exams with sample answers, except for Property (B1), December 8, 2014, and Property (A2), December 5, 2018.

1. Property (A2), December 5, 2018 2. Property (C2), December 7, 2016 3. Property (A2), December 7, 2015 4. Property (B1), December 8, 2014 5. Property (B), December 11, 2012 6. Property (C)(2), December 6, 2010 7. Property (H), December 9, 2009

It will be helpful to go over old exam questions to get a sense of the kinds of questions I may typically write. It may also help you understand the material better. At the same time, you should keep in mind the following:

• My aim is to have the exam reflect what we cover in any given year, and that does vary from year to year. Specifically:

o Some material covered in a previous year may not have been covered this year;

o Some material we covered this year may not have been covered in previous years;

o Even where the same general issues may have been covered in different years, we may have gone into the material in more depth in some years than others;

o The casebook used this year is not necessarily the same as the one used in the previous years.

o There may be some material and issues covered in one year that are not covered in another year, including this year.

• While the past exams can give you a sense of the kinds of questions I may ask, I may change the format somewhat in any given year.

UNIVERSITY OF MIAMI Property (A2)

Final Examination

PROFESSOR SCHNABLY SCHOOL OF LAW December 5, 2018

MANDATORY Write your Anonymous Grading No. (AGN) here _______________________ and turn in this exam at the end of the exam.

I. EXAM FORMAT & TIMETABLE

This is a four-hour closed book exam. The times shown for the Questions reflect their weight in grading, so it’s important to keep them in mind. You may answer the Questions in any order you wish. Note the Writing Instructions below.

Question Time (Minutes or Hours) Question I (answer A or B, NOT both) 60 min. / 1 hour Question II (answer any ONE of A, B, or C, NOT all three) 60 min. / 1 hour Question III 60 min. / 1 hour Total 180 min. / 3 hours

There is an extra 60 minutes, but no separate reading period. Use the extra time as you see fit. I strongly suggest you outline your answers before you begin to write them, but you do not have to turn in your outlines, and I will not grade any outlines that are turned in. All you are required to turn in are your answers. There is also a statutory supplement for Questions II(C) and III, being handed out separately.

II. WRITING INSTRUCTIONS

I sort the exams by Question, and then grade all the answer to one Question at a time. I may not be able to identify an answer as yours if you don’t follow the Writing Instructions below:

Writing Instructions for … Handwriting Laptop Write your AGN on the cover of each bluebook. Follow the Registrar’s instructions about input-

ting the AGN into your answer, etc. Write on every other line – i.e., skip lines. Put a hard page break between Question I and

Question II, and between Question II and Ques-tion III, so your answers will begin on a new page. (Use the Answer Separator function.)

Write on one side of each page.

Good luck and have a great holiday!

PROPERTY (A2) QUESTION I OF III Fall 2018 Page 2 of 10

Question I Answer either I(A) or I(B), NOT both

(60 minutes) Handwriting: Please begin your answer in a bluebook marked “Question I(A)” or “Question I(B),” depending on which Question you choose. Write your AGN on the cover of each blue-book. Please skip lines and write on one side of each page. Laptops : Please type “Question I(A)” or “Question I(B),” depending on which Question you choose, at the start of your answer.

Question I(A) (60 minutes)

The following events take place in the hypothetical U.S. state of Cania. There is information on the law of Cania at the end of this Question. The chart and notes below may be helpful but do NOT have all the facts.

• 2005: B C (Whiteacre). Recorded • 2006: C A (promise regarding well/pipes). Submitted to recording office for recording • 7/2018: C=>D (Whiteacre) (gift). Not recorded • 11/30/18: Well caves in; pipes damaged For a number of years Alvin lived on Blackacre in Cane County, and Barbara lived on Whiteacre, immediately to the east of Blackacre. There was a well on Whiteacre. Both Barbara and Alvin got their water from it. The arrangement for Alvin to get his water from the well was an informal one between Alvin and Barbara – nothing was in writing. One underground pipe connected the well to her house, another to his. No hook up to the county water system was available, so the well was the only source. In any event, Alvin thought the well water was far superior in taste to the county-supplied chlorine-laden water available in other neighborhoods. Barbara sold Whiteacre to Colin in 2005, who promptly recorded. Alvin and Colin turned out not to get along so well, so Alvin decided it would be a good idea to formalize the arrangement re-garding the well. Colin agreed, but wanted some money in return, which Alvin was willing to pay because he thought it would make Blackacre more valuable. Thus in 2006, in exchange for a pay-ment from Alvin, Colin promised in a deed on behalf of himself and his heirs and assigns to keep the well on Whiteacre in good working order at all times so that Alvin and his heirs and assigns could draw water from it, and also agreed to keep the part of the pipe to Alvin’s house that ran under Whiteacre in good repair. Alvin took the deed to the county courthouse for recording. The recorder of deeds, exhausted from staying up late the night before to watch the World Cup on TV, properly recorded the deed in the grantee index under Alvin, but by mistake recorded the deed in the grantor index under Nolan instead of Colin. Question I(A) continues on the next page →

Blackacre (Alvin) Whiteacre (Barbara, then Colin, then Dalila)


In July 2018, Colin won the lottery and decided to move to Canada. He made a gift of Whiteacre to his niece Dalila. He mentioned nothing about the promise regarding the well and the pipe. Dalila moved in to Whiteacre in August 2018. An anarchist, she decided against recording her deed. On November 30, 2018, the well on Whiteacre caved in, causing extensive damage to the well and the underground pipes (including the pipe to Alvin’s house on Blackacre). A contractor told Dalila that it would be extremely expensive to repair the well and the pipes connected to it (including the pipes to her house). Fortunately, the contractor said, it would be much less expensive to hook her up to the cheap county water supply, which recently had become available for the area. On December 3, 2018, Dalila was about to tell the contractor to go with the county water option for her house when Alvin, dearly missing his beloved well water, stopped by and demanded that she fix the well and the pipe immediately. “What does the well have to do with you?” replied Dalila. “You’re obligated to restore it to working order and fix the pipe,” replied Alvin, showing her a copy of the 2006 deed. “It’s called a covenant. Or servitude. Whatever. It’s how I get my water.” “This is the first I’ve heard of this,” said Dalila. “Anyway, why do you need me to fix it? You can just get a connection to the county water supply. It’s available in this area now and it’s pretty cheap. You’re not really going to get any real benefit out of me fixing the well and the pipes.” “I like the taste of the fresh well water,” said Alvin. “By the way, if need be I’ll go to court to get you to fix it or I’ll get damages from you. Well water doesn’t have any monthly charges, you know, unlike the county water.” Dalila comes to you on December 5, 2018, to ask whether Alvin can force her to repair the well and the pipe. Also, if she doesn’t, could Alvin get damages against her? Write a memo setting out the issues and evaluating the arguments on both sides, and your view as to what the law should be in this area. Note: Cania generally follows the common law. It also has the following statute: A conveyance of an estate in fee simple, fee tail or for life, or a lease for more than seven years from the making thereof, or an assignment of rents or profits from an estate or lease, shall not be valid as against any person, except the grantor or lessor, his heirs and devisees and persons having actual notice of it, unless it, or an office copy as provided in section thirteen of chapter thirty-six, or, with respect to such a lease or an assignment of rents or profits, a notice of lease or a notice of assignment of rents or profits, as hereinafter defined, is recorded in the registry of deeds for the county or district in which the land to which it relates lies. A “notice of lease”, as used in this section, shall mean an instrument in writing executed by all persons who are parties to the lease of which notice is given and shall contain the following information with reference to such lease:--the date of execution thereof and a description, in the form contained in such lease, of the premises demised, and the term of such lease, with the date of commencement of such term and all rights of extension or renewal. A “notice of assignment of rents or profits”, as used in this section, shall mean an instrument in writing executed by the assignor and containing the following information:-- a description of the premises, the rent or profits of which have been assigned, adequate to identify the premises, the name of assignee, and the rents and profits which have been assigned. A provision in a recorded mortgage assigning or conditionally assigning rents or profits or obligating the mortgagor to assign or conditionally assign existing or future rents or profits shall constitute a “notice of assignment of rents or profits”.

Question I(B) begins on the next page →


Question I(B) (60 minutes)

The following events take place in the hypothetical U.S. state of Cania. There is information on the law of Cania at the end of this Question. The notes below may be helpful but do NOT have all the facts.

• 5/2008: A dies. Will (a) leaves B-acre to friend Boris, so long as the land is used for farming, otherwise to daughter Winnie and (b) leaves the rest of her property of whatever kind in trust, with the income from the trust assets payable to son Xavier for life, and then the corpus of the trust given to the first of her grandchildren to conquer Colony Collapse Disorder (CCD)

• 6/2008: Boris moves onto B-acre • 5/2018: Boris begins to install solar panels on B-acre • 7/2018: Yolanda discovers cause/prevention of CCD • 12/1/2018: Xavier dies

Amanda lives on Bee-Acre, a 1000-acre farm. She also has $20,000,000 in stocks and bonds, which produce a net income of $1,250,000 a year. Amanda has always been fond of her two adult children, Winnie and Xavier. Winnie is something of a free spirit. She has no home of her own, but lives with different friends and sometimes spends months in the woods camping. Xavier is 53 and is an artist.

Amanda loves the farm on Bee-Acre, which has been in the family for many years. She uses it to grow only crops that are pollinated by bees. She is worried about Colony Collapse Dis-order (CCD), an increasingly prevalent phenomenon in which colonies of bees suddenly collapse – perhaps from parasites. In recent years, a few nearby farms have been converted to suburban housing developments. Amanda remarks to her good friend Boris one day, “I know some farms around here are being developed, but I’d like Bee-Acre to stay a farm forever.” “Good luck with that,” replies Boris, “you know how times change.”

In 2007, Amanda is diagnosed with a serious illness, and writes a will. In that will, she states, “I leave my beloved Bee-Acre to my friend Boris, so long as the land is used for farming, otherwise to Winnie.” She places “the rest of my property of whatever kind” in trust, with the income from the trust assets payable to Xavier for life, and then the corpus of the trust given to the first of my grandchildren to conquer CCD.”

In April 2008 Amanda dies. At the time of her death, Winnie has no children, and Xavier, a widower, has two children (who are Amanda’s grandchildren), Yolanda and Zeke. Yolanda, a senior in high school, has become very interested in the problem of CCD. She is thinking about becoming a research scientist someday to solve the problem. Yolanda’s brother Zeke is two years younger, and is also interested in science.

Amanda’s lawyer Lowell becomes trustee of the trust, and begins paying the income the assets produce to Xavier.

In June 2008, Boris moves into Bee-Acre and begins farming. In May 2018, with declining production due to numerous episodes of CCD, he decides that Bee-Acre would bring in much more money as a solar farm. Over the next few months he has solar energy panels installed all over Bee-Acre. The electricity they generate is sold to a local power co-op that provides electricity to local plant nurseries.

Question I(B) continues on the next page →


The new solar farm is so unusual it attracts media attention. Watching the local news one day on TV, Winnie sees what’s going on at Bee-Acre. Remembering Amanda’s will, she goes to Bee-Acre and tells Boris, “I want you off Bee-Acre right away! Bee-Acre is mine now.”

While the two of them are arguing, Yolanda shows up and says, “Whoa! You’re both wast-ing your time. As part of my Ph.D research, I discovered the cause of CCD and a way to prevent it. It all happened in July 2018. By the way, my dad Xavier just died three days ago. That means Bee-Acre is mine, along with all the stocks.”

“Oh, no you don’t, dear sister,” says Zeke, who’s just shown up. “I get a cut of everything too.” Who owns Bee-Acre? Who owns the stocks? Explain; evaluate the strengths and weaknesses of the arguments on both sides where there is any uncertainty.

Note: Cania generally follows the common law, including the classic rule against perpetu-ities, though courts have expressed some openness to reforms to it in recent years. It also has the following statute, enacted in 1950:

Cania Statutes: § 110. The doctrine of destructibility of contingent remainders is hereby abolished and shall not

prevail in the state of Cania.

PROPERTY (A2) QUESTION II OF III Fall 2018 Page 6 of 10

Question II (60 minutes)

(Answer any ONE of Questions II(A), II(B), or II(C), NOT all three)

Handwriting: Please begin your answer in a new bluebook marked “Question II(A),” “Question II(B),” or “Question II(C),” depending on which one you choose to answer. Please write your AGN on the cover of each bluebook. Please skip lines and write on one side of each page. Laptops : Please type “Question II(A),” “Question II(B),” or “Question II(C),” depend-ing on which one you choose to answer, at the start of your answer.

Question II(A) (60 minutes)

“Property law is insufficiently protective of people when bad things beyond their control happen to them. Let’s say you have a valid legal claim against someone, you sue on that claim, and you win. But when you try to collect on the judgment, it turns out that the defendant holds their property in a form that makes the property immune from creditors, like entireties or spendthrift trusts. How is that fair? Both should be abolished. And if someone gets a deed to your property by fraud or forgery, that deed should be void, period. But in fact that’s not necessarily the case. Not to mention that sometimes even a forged deed can give a person color of title! Or let’s say you buy a house and it turns out to have a termite infestation or a defective foundation. The buyer should never be stuck with the loss. But in fact there’s no guarantee that the buyer won’t be out a lot of money. The worst is when the government just takes your property and hands it over to a developer, or even lets some trespasser claim ownership of it. That’s just plain wrong. “There’s really no way to protect yourself from these disasters. The courts are the institution best suited to fix these problems with the law. They need to step up to the plate and take action. But when they do change the law, the change should be prospective only.” In what respects, if any, do you agree with this statement? In what respects, if any, do you disa-gree with it? Why?

Questions II(B) and II(C) are on the following pages→


Question II(B) (60 minutes)

“Property law rightly doesn’t give property owners absolute power. The theory is that the exercise of property rights almost always has an impact on other people or society generally, so some limits on the owner are needed. That’s what lies behind rules on rights of access, the rule prohibiting all restraints on alienation, rules governing easements, covenants, and servitudes, and rules limiting ‘dead hand’ control. “These rules and others like them are mostly mistaken, though. For one thing, it’s much better to leave relations among property owners to the market, which will typically take care of things. This is why any doubts about the scope of the Rule Against Perpetuities – like whether it applies to options or preemptive rights – should be resolved against applying it. It’s why the rule that re-straints on alienation aren’t allowed should be junked. “Still worse, all these attempts to create limits on property owners’ powers end up in a mish-mash of technicalities. How is a property owner supposed to know, for example, who exactly has a right of access to her property? Mostly the Rule Against Perpetuities is a trap for the unwary, with no useful function. It would be best to abolish it; reforming it isn’t going to solve the problems. Ease-ments are so arbitrary – why rule out a prescriptive easement just because it’s ‘negative’? And the whole requirement that there be ‘privity’ – whatever that is – in order to enforce a covenant or a servitude makes no sense. “There is one exception to this hands-off approach, though. The law needs to define what ‘prop-erty’ is in the first place. Is a degree property? The law needs to answer this question, and then the market can take over. It’s too bad, though, that In re Marriage of Graham (the Colorado case with the husband who divorced his wife as soon as he got his MBA, even though she’d put him through the program) botched this question up so badly, when it was called on to rule on whether an MBA is marital property in case of divorce. It just goes to show: Tough questions are always best left to the legislature.” In what respects, if any, do you agree with this statement? In what respects, if any, do you disagree with it? Why?

Question II(C) is on the following page→


Question II(C) (60 minutes)

“Two simple but powerful ideas recur throughout property law. One is that people should give clear notice of the property rights they claim. The other is that a duty to prevent harm should be put on the party in the best position to avoid it – the ‘cheapest cost avoider’ idea. “You can see the first idea at work in a number of areas, including adverse possession and record-ing statutes. “But weirdly, the law goes too far sometimes and not far enough other times. The Florida legisla-ture really has gone too far with the whole ‘notice’ idea in adverse possession with all those filing and tax requirements, which really screw up adverse possession law. Just look at what happens with border strips, among other problems. “On the other hand, the law is too easy on people eabot notice sometimes. It ought to say, if you get a deed to property and you don’t bother to record it, then that deed is void. Or maybe, whoever is first to record wins. Anyway, anything other than a pure race statute just muddies things up. “It also doesn’t make sense for the law to tell people to be clear what they mean, and then have a whole complicated set of presumptions to determine what their intent is. Why should the law have any presumptions about whether you mean tenancy in common or joint tenancy, or fee simple versus life estate? Just tell people to be clear what they mean. “The second idea – putting the burden of avoiding harm on the ‘cheapest cost avoider’ – works out a lot better in practice, as equitable conversion and duty to disclose show. But unlike saying ‘be clear about what you intend,’ an approach that puts actual duties on people really involves contestable policy choices. And policy choices should be left to the legislature, not arrogated by undemocratic courts to themselves. Not to mention that statutes are so much clearer and more comprehensive than the common law can ever be, as the contrast between State v. Shack (NJ; access to migrant farms) and the Florida migrant farmworkers’ statute shows.” In what respects, if any, do you agree with this statement? In what respects, if any, do you disagree with it? Why? Note: In case you need to refresh your memory of the Florida adverse possession statute or the Florida migrant farmworkers statute, a copy of each is included in the Appendix to this Exam.

PROPERTY (A2) QUESTION III OF III Fall 2018 Page 9 of 10

Question III (60 minutes)

Handwriting: Please begin your answer in a new bluebook marked “Question III”. Please write your AGN on the cover of each bluebook. Please skip lines and write on one side of each page. Laptops : Please type “Question III” at the start of your answer.

The following events take place in the hypothetical U.S. state of Cania, which generally follows the common law, and also has a statute identical to Florida’s Landlord-Tenant Statute. That Stat-ute is attached as an Appendix at the end of this exam. Excerpts from the Cane City Housing Code are at the end of this Question. Lorena owns a 100-unit apartment building in Cane City. Most of the tenants work at relatively low-wage jobs, and are stretched thin. Her apartment building is one of a small number of more affordable buildings On September 1, 2018, Lorena rents an apartment to Tico, who signs a two-year lease. The rent is payable on the 1st of each month, but the lease provides that the rent will not be considered overdue so long as it is paid by the 10th of the month. The lease also provides in Section 36 that “Tenant hereby waives all rights as a tenant under Cania law.” This provision is printed in bold print, and there is a box next to it stating, “I have read this provision and accept it,” where Tico writes his initials. When Tico asks Lorena about this provision, she replies, “It’s my whole business model – the rents are cheaper here than most other places in Cane City. I can do that because I don’t spend money on maintenance or repairs unless it’s absolutely necessary.” They have so much discussion about Section 36 that Tico doesn’t notice that Section 12 of the lease says, “Tenant is not permitted to keep pets in the apartment.” Lorena has included that pro-vision because she is terribly allergic to cats (especially) and dogs, and doesn’t want to deal with allergies every time she comes to the building. Tico moves in immediately after signing the lease, and pays his rent on time, or at least by the end of the 10 day grace period. Mostly the apartment is fine, and he is very happy to have found an affordable place. Every few days, though, he sees a mouse or two somewhere in the apartment. Talking to other tenants, he discovers that the building is infested with mice. Wondering how they get in, he looks under the kitchen and bathroom sinks and notices there are small gaps in the wall where water pipes come in to the unit. An exterminator friend of his tells him, “You know, small mice can crawl through a hole no bigger than a dime. Cats are pretty effective in getting rid of rodents like mice, though.” Tico calls Lorena on October 15 and complains about the mice. “It’s really unsanitary to have mouse droppings on the kitchen counter,” he says. “You need to seal up all those gaps where the pipes come in the walls. That way mice can’t move from unit to unit.” Lorena replies, “Well, keep your counter clean if you don’t like mouse droppings. And there are too many pipes and gaps for me to go sealing them all up. I’d go bankrupt if I tried. You can do it yourself if you want. Or put out mousetraps or hire an exterminator. Be my guest. But whatever you do, the cost is on you.” Tico has no money to hire someone to fix the gaps or hire an exterminator. But he notices a stray cat that hangs around near the front door of the apartment building, attracted by the number of mice in the building. Tico starts bringing the cat inside his apartment at night, and puts it outside every morning. The cat does help reduce the number of mice, but the cat doesn’t get all of them, and in any event new mice can come in from the neighboring units. He still finds mouse droppings


on the floor and the kitchen counter sometimes. The more he thinks about it, the more outrageous it seems to him that Lorena won’t fix the underlying problem with the gaps in the walls where the pipes come in. Early in the morning of November 1, Tico emails Lorena and tells her, “I am not paying any rent until you take care of the mouse problem. You have 5 days to fix this.” Lorena happens to be nearby and reads the email on her cell phone, and immediately drives over and stops by his apart-ment. She says, “You’re in big trouble. I’m not going to put up with any tenant who doesn’t pay rent.” She starts sneezing violently and tearing up, and then notices the cat, who Tico hasn’t put out yet. “Hey, the lease says, ‘no pets’!” She leaves immediately to get away from the cat. On her way out the front door of the building, she texts him, “Section 12 of your lease says no pets are allowed. You violated that. I order you to vacate the apartment in 10 days.” Tico does not pay rent or vacate, but instead continues to live there. On November 11, Lorena files for eviction of Tico based on non-payment of rent and on a violation of the lease’s “no pets” clause. Tico comes to you, a legal services attorney, for help. He tells you and the supervising attorney, “I don’t want to leave the apartment. It’s got a good rent and is mostly fine except for the mice. I just want her to seal up the gaps in my walls, or at least have an exterminator come around monthly to deal with the mice. As for the cat, well, I didn’t notice Section 12 but I don’t think I’m really violating it anyway. I really do want to stay for the rest of my lease – you can help me do that, right?” He also asks, “Is there anything I need to do now to protect my rights? Also, can I just hire someone to close the gaps and deduct the cost from the rent I owe Lorena?” After Tico leaves, the supervising attorney asks you to do some research. You review the Cania Landlord-Tenant Statute. You also find that there is a Cane City Housing Code, with these two provisions:

Cane City Housing Code § 23-2: (a) Every dwelling unit shall be reasonably weathertight, watertight and rodent-proof. Floors, walls, ceilings and roofs shall be capable of affording adequate shelter and privacy and shall be kept in good repair. Windows and exterior doors shall be reasonably weather-tight, watertight and rodent-proof, and shall be maintained in good working condition. All parts of the structure that show evidence of rot or other deterioration shall be repaired or replaced. (b) Every plumbing fixture, water pipe, waste pipe and drain shall be maintained in good sanitary working condition, free from defects, leaks and obstructions.

The supervising attorney asks you to write a memo responding to Tico’s questions. In addition, she’s says she’s thinking about writing a law review article on what the law of landlord and tenant should be, and adds, “I’d be interested in what you think the law should provide in a case like this.” Write the memo.

End of Examination

PROPERTY (A2) APPENDIX Fall 2018 i

Appendix

Fla. Stat. Ch. 83. Landlord and Tenant Law .............................................................. 1 Fla. Stat. §§ 381.008-381.00897 TITLE XXIX PUBLIC HEALTH CHAP-TER 381 PUBLIC HEALTH; GENERAL PROVISIONS (Migrant Farms) ........ 26 Fla. Stat. §§ 95.12-95.231 (Adverse Possession) ................................................... 34

APPENDIX: LANDLORD-TENANT

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Fla. Stat. Ch. 83. Landlord and Tenant (Table of Contents) Part I. Nonresidential Tenancies ............................................................................... 1

83.001 Application ....................................................................................................................1 83.01 Unwritten lease tenancy at will; duration .....................................................................1 83.02 Certain written leases tenancies at will; duration .........................................................1 83.03 Termination of tenancy at will; length of notice ...........................................................2 83.04 Holding over after term, tenancy at sufferance, etc ......................................................2 83.05 Right of possession upon default in rent; determination of right of possession

in action or surrender or abandonment of premises .....................................................2 83.06 Right to demand double rent upon refusal to deliver possession..................................2 83.07 Action for use and occupation ......................................................................................3 83.08 Landlord’s lien for rent .................................................................................................3 83.09 Exemptions from liens for rent .....................................................................................3 83.10 Landlord’s lien for advances .........................................................................................3 83.11 Distress for rent; complaint ...........................................................................................3 83.12 Distress writ ..................................................................................................................3 83.13 Levy of writ...................................................................................................................4 83.135 Dissolution of writ ........................................................................................................4 83.14 Replevy of distrained property......................................................................................4 83.15 Claims by third persons ................................................................................................4 83.18 Distress for rent; trial; verdict; judgment ......................................................................4 83.19 Sale of property distrained ............................................................................................4 83.20 Causes for removal of tenants .......................................................................................5 83.201 Notice to landlord of failure to maintain or repair, rendering premises wholly

untenantable; right to withhold rent .............................................................................5 83.202 Waiver of right to proceed with eviction claim ............................................................6 83.21 Removal of tenant .........................................................................................................6 83.22 Removal of tenant; service............................................................................................6 83.231 Removal of tenant; judgment ......................................................................................6 83.232 Rent paid into registry of court ...................................................................................7 83.241 Removal of tenant; process .........................................................................................7 83.251 Removal of tenant; costs .............................................................................................7

Part II. Residential Tenancies ................................................................................... 7 83.40 Short title .......................................................................................................................8 83.41 Application ....................................................................................................................8 83.42 Exclusions from application of part ..............................................................................8 83.43 Definitions.....................................................................................................................8 83.44 Obligation of good faith ................................................................................................9 83.45 Unconscionable rental agreement or provision.............................................................9 83.46 Rent; duration of tenancies ...........................................................................................9 83.47 Prohibited provisions in rental agreements .................................................................10 83.48 Attorney fees ...............................................................................................................10 83.49 Deposit money or advance rent; duty of landlord and tenant .....................................10


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83.50 Disclosure of landlord’s address .................................................................................13 83.51 Landlord’s obligation to maintain premises ...............................................................14 83.52 Tenant’s obligation to maintain dwelling unit ............................................................15 83.53 Landlord’s access to dwelling unit .............................................................................15 83.535 Flotation bedding system; restrictions on use ...........................................................15 83.54 Enforcement of rights and duties; civil action; criminal offenses ..............................15 83.55 Right of action for damages ........................................................................................15 83.56 Termination of rental agreement .................................................................................16 83.561 Termination of rental agreement upon foreclosure ....................................................17 83.57 Termination of tenancy without specific term ............................................................18 83.575 Termination of tenancy with specific duration .........................................................18 83.58 Remedies; tenant holding over....................................................................................19 83.59 Right of action for possession .....................................................................................19 83.595 Choice of remedies upon breach or early termination by tenant ..............................19 83.60 Defenses to action for rent or possession; procedure..................................................20 83.61 Disbursement of funds in registry of court; prompt final hearing ..............................21 83.62 Restoration of possession to landlord .........................................................................21 83.625 Power to award possession and enter money judgment............................................21 83.63 Casualty damage .........................................................................................................22 83.64 Retaliatory conduct .....................................................................................................22 83.67 Prohibited practices .....................................................................................................22 83.681 Orders to enjoin violations of this part .....................................................................23 83.682 Termination of rental agreement by a servicemember .............................................23 83.683 Rental Application by a servicemember ...................................................................24

The statute begins on the next page


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Fla. Stat. Ch. 83 LANDLORD AND TENANT

PART I NONRESIDENTIAL TENANCIES

(ss. 83.001-83.251) PART II

RESIDENTIAL TENANCIES (ss. 83.40-83.682)

PART III SELF-SERVICE STORAGE SPACE

(ss. 83.801-83.809) PART I

NONRESIDENTIAL TENANCIES 83.001 Application. 83.01 Unwritten lease tenancy at will; dura-tion. 83.02 Certain written leases tenancies at will; duration. 83.03 Termination of tenancy at will; length of notice. 83.04 Holding over after term, tenancy at suf-ferance, etc. 83.05 Right of possession upon default in rent; determination of right of possession in ac-tion or surrender or abandonment of premises. 83.06 Right to demand double rent upon re-fusal to deliver possession. 83.07 Action for use and occupation. 83.08 Landlord’s lien for rent. 83.09 Exemptions from liens for rent. 83.10 Landlord’s lien for advances. 83.11 Distress for rent; complaint. 83.12 Distress writ. 83.13 Levy of writ. 83.135 Dissolution of writ. 83.14 Replevy of distrained property. 83.15 Claims by third persons. 83.18 Distress for rent; trial; verdict; judg-ment. 83.19 Sale of property distrained. 83.20 Causes for removal of tenants.

83.201 Notice to landlord of failure to main-tain or repair, rendering premises wholly un-tenantable; right to withhold rent. 83.202 Waiver of right to proceed with evic-tion claim. 83.21 Removal of tenant. 83.22 Removal of tenant; service. 83.231 Removal of tenant; judgment. 83.232 Rent paid into registry of court. 83.241 Removal of tenant; process. 83.251 Removal of tenant; costs.

83.001 Application.—This part applies to nonresidential tenancies and all tenancies not governed by part II of this chapter.

History.—s. 1, ch. 73-330.

83.01 Unwritten lease tenancy at will; duration.—Any lease of lands and tenements, or either, made shall be deemed and held to be a tenancy at will unless it shall be in writing signed by the lessor. Such tenancy shall be from year to year, or quarter to quarter, or month to month, or week to week, to be deter-mined by the periods at which the rent is paya-ble. If the rent is payable weekly, then the ten-ancy shall be from week to week; if payable monthly, then from month to month; if payable quarterly, then from quarter to quarter; if paya-ble yearly, then from year to year.


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History.—ss. 1, 2, ch. 5441, 1905; RGS 3567, 3568; CGL 5431, 5432; s. 34, ch. 67-254.

83.02 Certain written leases tenancies at will; duration.—Where any tenancy has been created by an instrument in writing from year to year, or quarter to quarter, or month to month, or week to week, to be determined by the periods at which the rent is payable, and the term of which tenancy is unlimited, the tenancy shall be a tenancy at will. If the rent is payable weekly, then the tenancy shall be from week to week; if payable monthly, then the tenancy shall be from month to month; if payable quar-terly, then from quarter to quarter; if payable yearly, then from year to year.

History.—s. 2, ch. 5441, 1905; RGS 3568; CGL 5432; s. 2, ch. 15057, 1931; s. 34, ch. 67-254.

83.03 Termination of tenancy at will; length of notice.—A tenancy at will may be terminated by either party giving notice as fol-lows:

(1) Where the tenancy is from year to year, by giving not less than 3 months’ notice prior to the end of any annual period;

(2) Where the tenancy is from quarter to quarter, by giving not less than 45 days’ notice prior to the end of any quarter;

(3) Where the tenancy is from month to month, by giving not less than 15 days’ notice prior to the end of any monthly period; and

(4) Where the tenancy is from week to week, by giving not less than 7 days’ notice prior to the end of any weekly period.

History.—s. 3, ch. 5441, 1905; RGS 3569; CGL 5433; s. 34, ch. 67-254; s. 3, ch. 2003-5.

83.04 Holding over after term, tenancy at sufferance, etc.—When any tenancy cre-ated by an instrument in writing, the term of which is limited, has expired and the tenant holds over in the possession of said premises without renewing the lease by some further in-strument in writing then such holding over shall be construed to be a tenancy at sufferance. The mere payment or acceptance of rent shall not be construed to be a renewal of the term, but if the holding over be continued with the written consent of the lessor then the tenancy

shall become a tenancy at will under the provi-sions of this law.


83.05 Right of possession upon default in rent; determination of right of possession in action or surrender or abandonment of premises.—

(1) If any person leasing or renting any land or premises other than a dwelling unit fails to pay the rent at the time it becomes due, the lessor has the right to obtain possession of the premises as provided by law.

(2) The landlord shall recover possession of rented premises only:

(a) In an action for possession under s. 83.20, or other civil action in which the issue of right of possession is determined;

(b) When the tenant has surrendered pos-session of the rented premises to the landlord; or

(c) When the tenant has abandoned the rented premises.

(3) In the absence of actual knowledge of abandonment, it shall be presumed for pur-poses of paragraph (2)(c) that the tenant has abandoned the rented premises if:

(a) The landlord reasonably believes that the tenant has been absent from the rented premises for a period of 30 consecutive days;

(b) The rent is not current; and (c) A notice pursuant to s. 83.20(2) has

been served and 10 days have elapsed since ser-vice of such notice. However, this presumption does not apply if the rent is current or the tenant has notified the landlord in writing of an intended absence.

History.—s. 5, Nov. 21, 1828; RS 1750; GS 2226; RGS 3534; CGL 5398; s. 34, ch. 67-254; s. 1, ch. 83-151.

83.06 Right to demand double rent upon refusal to deliver possession.—

(1) When any tenant refuses to give up possession of the premises at the end of the ten-ant’s lease, the landlord, the landlord’s agent, attorney, or legal representatives, may demand of such tenant double the monthly rent, and may recover the same at the expiration of every


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month, or in the same proportion for a longer or shorter time by distress, in the manner pointed out hereinafter.

(2) All contracts for rent, verbal or in writ-ing, shall bear interest from the time the rent becomes due, any law, usage or custom to the contrary notwithstanding.

History.—ss. 4, 6, Nov. 21, 1828; RS 1759; GS 2235; RGS 3554; CGL 5418; s. 34, ch. 67-254; s. 427, ch. 95-147.

83.07 Action for use and occupation.—Any landlord, the landlord’s heirs, executors, administrators or assigns may recover reasona-ble damages for any house, lands, tenements, or hereditaments held or occupied by any per-son by the landlord’s permission in an action on the case for the use and occupation of the lands, tenements, or hereditaments when they are not held, occupied by or under agreement or demise by deed; and if on trial of any action, any demise or agreement (not being by deed) whereby a certain rent was reserved is given in evidence, the plaintiff shall not be dismissed but may make use thereof as an evidence of the quantum of damages to be recovered.


83.08 Landlord’s lien for rent.—Every person to whom rent may be due, the person’s heirs, executors, administrators or assigns, shall have a lien for such rent upon the property found upon or off the premises leased or rented, and in the possession of any person, as follows:

(1) Upon agricultural products raised on the land leased or rented for the current year. This lien shall be superior to all other liens, though of older date.

(2) Upon all other property of the lessee or his or her sublessee or assigns, usually kept on the premises. This lien shall be superior to any lien acquired subsequent to the bringing of the property on the premises leased.

(3) Upon all other property of the defend-ant. This lien shall date from the levy of the dis-tress warrant hereinafter provided.

History.—ss. 1, 9, 10, ch. 3131, 1879; RS 1761; GS 2237; RGS 3556; CGL 5420; s. 34, ch. 67-254; s. 429, ch. 95-147.

83.09 Exemptions from liens for rent.—No property of any tenant or lessee shall be ex-empt from distress and sale for rent, except beds, bedclothes and wearing apparel.

History.—s. 6, Feb. 14, 1835; RS 1762; GS 2238; RGS 3557; CGL 5421; s. 34, ch. 67-254.

83.10 Landlord’s lien for advances.—Landlords shall have a lien on the crop grown on rented land for advances made in money or other things of value, whether made directly by them or at their instance and requested by an-other person, or for which they have assumed a legal responsibility, at or before the time at which such advances were made, for the suste-nance or well-being of the tenant or the tenant’s family, or for preparing the ground for cultiva-tion, or for cultivating, gathering, saving, han-dling, or preparing the crop for market. They shall have a lien also upon each and every arti-cle advanced, and upon all property purchased with money advanced, or obtained, by barter or exchange for any articles advanced, for the ag-gregate value or price of all the property or ar-ticles so advanced. The liens upon the crop shall be of equal dignity with liens for rent, and upon the articles advanced shall be paramount to all other liens.

History.—s. 2, ch. 3247, 1879; RS 1763; GS 2239; RGS 3558; CGL 5422; s. 34, ch. 67-254; s. 430, ch. 95-147.

83.11 Distress for rent; complaint.—Any person to whom any rent or money for ad-vances is due or the person’s agent or attorney may file an action in the court in the county where the land lies having jurisdiction of the amount claimed, and the court shall have juris-diction to order the relief provided in this part. The complaint shall be verified and shall allege the name and relationship of the defendant to the plaintiff, how the obligation for rent arose, the amount or quality and value of the rent due for such land, or the advances, and whether payable in money, an agricultural product, or any other thing of value.

History.—s. 2, ch. 3131, 1879; RS 1764; GS 2240; RGS 3559; CGL 5423; s. 34, ch. 67-254; s. 1, ch. 80-282; s. 431, ch. 95-147.

83.12 Distress writ.—A distress writ shall be issued by a judge of the court which has ju-risdiction of the amount claimed. The writ shall


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enjoin the defendant from damaging, disposing of, secreting, or removing any property liable to distress from the rented real property after the time of service of the writ until the sheriff levies on the property, the writ is vacated, or the court otherwise orders. A violation of the command of the writ may be punished as a con-tempt of court. If the defendant does not move for dissolution of the writ as provided in s. 83.135, the sheriff shall, pursuant to a further order of the court, levy on the property liable to distress forthwith after the time for answering the complaint has expired. Before the writ is-sues, the plaintiff or the plaintiff’s agent or at-torney shall file a bond with surety to be ap-proved by the clerk payable to defendant in at least double the sum demanded or, if property, in double the value of the property sought to be levied on, conditioned to pay all costs and dam-ages which defendant sustains in consequence of plaintiff’s improperly suing out the distress.

History.—s. 2, ch. 3131, 1879; RS 1765; GS 2241; s. 10, ch. 7838, 1919; RGS 3560; CGL 5424; s. 34, ch. 67-254; s. 2, ch. 80-282; s. 432, ch. 95-147.

83.13 Levy of writ.—The sheriff shall ex-ecute the writ by service on defendant and, upon the order of the court, by levy on property distrainable for rent or advances, if found in the sheriff’s jurisdiction. If the property is in an-other jurisdiction, the party who had the writ issued shall deliver the writ to the sheriff in the other jurisdiction; and that sheriff shall execute the writ, upon order of the court, by levying on the property and delivering it to the sheriff of the county in which the action is pending, to be disposed of according to law, unless he or she is ordered by the court from which the writ em-anated to hold the property and dispose of it in his or her jurisdiction according to law. If the plaintiff shows by a sworn statement that the defendant cannot be found within the state, the levy on the property suffices as service on the defendant.

History.—s. 3, ch. 3721, 1887; RS 1765; GS 2241; RGS 3560; CGL 5424; s. 34, ch. 67-254; s. 3, ch. 80-282; s. 15, ch. 82-66; s. 8, ch. 83-255; s. 433, ch. 95-147; s. 5, ch. 2004-273.

83.135 Dissolution of writ.—The defend-ant may move for dissolution of a distress writ

at any time. The court shall hear the motion not later than the day on which the sheriff is author-ized under the writ to levy on property liable under distress. If the plaintiff proves a prima facie case, or if the defendant defaults, the court shall order the sheriff to proceed with the levy.

History.—s. 4, ch. 80-282.

83.14 Replevy of distrained property.—The property distrained may be restored to the defendant at any time on the defendant’s giving bond with surety to the sheriff levying the writ. The bond shall be approved by such sheriff; made payable to plaintiff in double the value of the property levied on, with the value to be fixed by the sheriff; and conditioned for the forthcoming of the property restored to abide the final order of the court. It may be also re-stored to defendant on defendant’s giving bond with surety to be approved by the sheriff mak-ing the levy conditioned to pay the plaintiff the amount or value of the rental or advances which may be adjudicated to be payable to plaintiff. Judgment may be entered against the surety on such bonds in the manner and with like effect as provided in s. 76.31.

History.—s. 3, ch. 3131, 1879; RS 1766; s. 1, ch. 4408, 1895; RGS 3561; CGL 5425; s. 34, ch. 67-254; s. 16, ch. 82-66; s. 9, ch. 83-255; s. 434, ch. 95-147.

83.15 Claims by third persons.—Any third person claiming any property so dis-trained may interpose and prosecute his or her claim for it in the same manner as is provided in similar cases of claim to property levied on under execution.


83.18 Distress for rent; trial; verdict; judgment.—If the verdict or the finding of the court is for plaintiff, judgment shall be ren-dered against defendant for the amount or value of the rental or advances, including interest and costs, and against the surety on defendant’s bond as provided for in s. 83.14, if the property has been restored to defendant, and execution shall issue. If the verdict or the finding of the court is for defendant, the action shall be dis-missed and defendant shall have judgment and execution against plaintiff for costs.


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History.—RS 1768; s. 3, ch. 4408, 1895; GS 2244; RGS 3563; CGL 5427; s. 14, ch. 63-559; s. 34, ch. 67-254; s. 18, ch. 82-66.

83.19 Sale of property distrained.— (1) If the judgment is for plaintiff and the

property in whole or in part has not been re-plevied, it, or the part not restored to the de-fendant, shall be sold and the proceeds applied on the payment of the execution. If the rental or any part of it is due in agricultural products and the property distrained, or any part of it, is of a similar kind to that claimed in the complaint, the property up to a quantity to be adjudged of by the officer holding the execution (not ex-ceeding that claimed), may be delivered to the plaintiff as a payment on the plaintiff’s execu-tion at his or her request.

(2) When any property levied on is sold, it shall be advertised two times, the first adver-tisement being at least 10 days before the sale. All property so levied on shall be sold at the location advertised in the notice of sheriff’s sale.

(3) Before the sale if defendant appeals and obtains supersedeas and pays all costs ac-crued up to the time that the supersedeas be-comes operative, the property shall be restored to defendant and there shall be no sale.

(4) In case any property is sold to satisfy any rent payable in cotton or other agricultural product or thing, the officer shall settle with the plaintiff at the value of the rental at the time it became due.

History.—ss. 5, 6, ch. 3131, 1879; RS 1769; GS 2245; RGS 3564; CGL 5428; s. 34, ch. 67-254; s. 19, ch. 82-66; s. 10, ch. 83-255; s. 436, ch. 95-147.

83.20 Causes for removal of tenants.—Any tenant or lessee at will or sufferance, or for part of the year, or for one or more years, of any houses, lands or tenements, and the assigns, un-der tenants or legal representatives of such ten-ant or lessee, may be removed from the prem-ises in the manner hereinafter provided in the following cases:

(1) Where such person holds over and con-tinues in the possession of the demised prem-ises, or any part thereof, after the expiration of the person’s time, without the permission of the person’s landlord.

(2) Where such person holds over without permission as aforesaid, after any default in the payment of rent pursuant to the agreement un-der which the premises are held, and 3 days’ notice in writing requiring the payment of the rent or the possession of the premises has been served by the person entitled to the rent on the person owing the same. The service of the no-tice shall be by delivery of a true copy thereof, or, if the tenant is absent from the rented prem-ises, by leaving a copy thereof at such place.

(3) Where such person holds over without permission after failing to cure a material breach of the lease or oral agreement, other than nonpayment of rent, and when 15 days’ written notice requiring the cure of such breach or the possession of the premises has been served on the tenant. This subsection applies only when the lease is silent on the matter or when the tenancy is an oral one at will. The no-tice may give a longer time period for cure of the breach or surrender of the premises. In the absence of a lease provision prescribing the method for serving notices, service must be by mail, hand delivery, or, if the tenant is absent from the rental premises or the address desig-nated by the lease, by posting.

History.—s. 1, ch. 3248, 1881; RS 1751; GS 2227; RGS 3535; CGL 5399; s. 34, ch. 67-254; s. 20, ch. 77-104; s. 2, ch. 88-379; s. 1, ch. 93-70; s. 437, ch. 95-147.

83.201 Notice to landlord of failure to maintain or repair, rendering premises wholly untenantable; right to withhold rent.—When the lease is silent on the proce-dure to be followed to effect repair or mainte-nance and the payment of rent relating thereto, yet affirmatively and expressly places the obli-gation for same upon the landlord, and the land-lord has failed or refused to do so, rendering the leased premises wholly untenantable, the ten-ant may withhold rent after notice to the land-lord. The tenant shall serve the landlord, in the manner prescribed by s. 83.20(3), with a writ-ten notice declaring the premises to be wholly untenantable, giving the landlord at least 20 days to make the specifically described repair or maintenance, and stating that the tenant will


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withhold the rent for the next rental period and thereafter until the repair or maintenance has been performed. The lease may provide for a longer period of time for repair or maintenance. Once the landlord has completed the repair or maintenance, the tenant shall pay the landlord the amounts of rent withheld. If the landlord does not complete the repair or maintenance in the allotted time, the parties may extend the time by written agreement or the tenant may abandon the premises, retain the amounts of rent withheld, terminate the lease, and avoid any liability for future rent or charges under the lease. This section is cumulative to other exist-ing remedies, and this section does not prevent any tenant from exercising his or her other rem-edies.

History.—s. 2, ch. 93-70; s. 438, ch. 95-147.

83.202 Waiver of right to proceed with eviction claim.—The landlord’s acceptance of the full amount of rent past due, with knowledge of the tenant’s breach of the lease by nonpayment, shall be considered a waiver of the landlord’s right to proceed with an eviction claim for nonpayment of that rent. Acceptance of the rent includes conduct by the landlord concerning any tender of the rent by the tenant which is inconsistent with reasonably prompt return of the payment to the tenant.

History.—s. 3, ch. 93-70.

83.21 Removal of tenant.—The landlord, the landlord’s attorney or agent, applying for the removal of any tenant, shall file a complaint stating the facts which authorize the removal of the tenant, and describing the premises in the proper court of the county where the premises are situated and is entitled to the summary pro-cedure provided in s. 51.011.


83.22 Removal of tenant; service.— (1) After at least two attempts to obtain

service as provided by law, if the defendant cannot be found in the county in which the ac-tion is pending and either the defendant has no usual place of abode in the county or there is no person 15 years of age or older residing at the

defendant’s usual place of abode in the county, the sheriff shall serve the summons by attach-ing it to some part of the premises involved in the proceeding. The minimum time delay be-tween the two attempts to obtain service shall be 6 hours.

(2) If a landlord causes, or anticipates causing, a defendant to be served with a sum-mons and complaint solely by attaching them to some conspicuous part of the premises in-volved in the proceeding, the landlord shall provide the clerk of the court with two addi-tional copies of the complaint and two pres-tamped envelopes addressed to the defendant. One envelope shall be addressed to such ad-dress or location as has been designated by the tenant for receipt of notice in a written lease or other agreement or, if none has been desig-nated, to the residence of the tenant, if known. The second envelope shall be addressed to the last known business address of the tenant. The clerk of the court shall immediately mail the copies of the summons and complaint by first-class mail, note the fact of mailing in the docket, and file a certificate in the court file of the fact and date of mailing. Service shall be effective on the date of posting or mailing, whichever occurs later; and at least 5 days from the date of service must have elapsed before a judgment for final removal of the defendant may be entered.

History.—s. 2, ch. 3248, 1881; RS 1753; GS 2229; RGS 3537; CGL 5401; s. 1, ch. 22731, 1945; s. 34, ch. 67-254; s. 2, ch. 83-151; s. 3, ch. 84-339; s. 440, ch. 95-147.

83.231 Removal of tenant; judgment.—If the issues are found for plaintiff, judgment shall be entered that plaintiff recover posses-sion of the premises. If the plaintiff expressly and specifically sought money damages in the complaint, in addition to awarding possession of the premises to the plaintiff, the court shall also direct, in an amount which is within its ju-risdictional limitations, the entry of a money judgment in favor of the plaintiff and against the defendant for the amount of money found due, owing, and unpaid by the defendant, with costs. However, no money judgment shall be


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entered unless service of process has been ef-fected by personal service or, where authorized by law, by certified or registered mail, return receipt, or in any other manner prescribed by law or the rules of the court, and no money judgment may be entered except in compliance with the Florida Rules of Civil Procedure. Where otherwise authorized by law, the plain-tiff in the judgment for possession and money damages may also be awarded attorney’s fees and costs. If the issues are found for defendant, judgment shall be entered dismissing the ac-tion.

History.—s. 8, ch. 6463, 1913; RGS 3549; CGL 5413; s. 34, ch. 67-254; s. 1, ch. 87-195; s. 4, ch. 93-70; s. 441, ch. 95-147.

Note.—Former s. 83.34. 83.232 Rent paid into registry of

court.— (1) In an action by the landlord which in-

cludes a claim for possession of real property, the tenant shall pay into the court registry the amount alleged in the complaint as unpaid, or if such amount is contested, such amount as is determined by the court, and any rent accruing during the pendency of the action, when due, unless the tenant has interposed the defense of payment or satisfaction of the rent in the amount the complaint alleges as unpaid. Unless the tenant disputes the amount of accrued rent, the tenant must pay the amount alleged in the complaint into the court registry on or before the date on which his or her answer to the claim for possession is due. If the tenant contests the amount of accrued rent, the tenant must pay the amount determined by the court into the court registry on the day that the court makes its de-termination. The court may, however, extend these time periods to allow for later payment, upon good cause shown. Even though the de-fense of payment or satisfaction has been as-serted, the court, in its discretion, may order the tenant to pay into the court registry the rent that accrues during the pendency of the action, the time of accrual being as set forth in the lease. If the landlord is in actual danger of loss of the premises or other hardship resulting from the loss of rental income from the premises, the

landlord may apply to the court for disburse-ment of all or part of the funds so held in the court registry.

(2) If the tenant contests the amount of money to be placed into the court registry, any hearing regarding such dispute shall be limited to only the factual or legal issues concerning:

(a) Whether the tenant has been properly credited by the landlord with any and all rental payments made; and

(b) What properly constitutes rent under the provisions of the lease.

(3) The court, on its own motion, shall no-tify the tenant of the requirement that rent be paid into the court registry by order, which shall be issued immediately upon filing of the tenant’s initial pleading, motion, or other pa-per.

(4) The filing of a counterclaim for money damages does not relieve the tenant from de-positing rent due into the registry of the court.

(5) Failure of the tenant to pay the rent into the court registry pursuant to court order shall be deemed an absolute waiver of the tenant’s defenses. In such case, the landlord is entitled to an immediate default for possession without further notice or hearing thereon.

History.—s. 5, ch. 93-70; s. 442, ch. 95-147.

83.241 Removal of tenant; process.—After entry of judgment in favor of plaintiff the clerk shall issue a writ to the sheriff describing the premises and commanding the sheriff to put plaintiff in possession.


Note.—Former s. 83.35. 83.251 Removal of tenant; costs.—The

prevailing party shall have judgment for costs and execution shall issue therefor.

History.—s. 11, ch. 6463, 1913; RGS 3552; CGL 5416; s. 34, ch. 67-254.

Note.—Former s. 83.37. PART II RESIDENTIAL TENANCIES 83.40 Short title. 83.41 Application. 83.42 Exclusions from application of part. 83.43 Definitions. 83.44 Obligation of good faith.


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83.45 Unconscionable rental agreement or provision. 83.46 Rent; duration of tenancies. 83.47 Prohibited provisions in rental agree-ments. 83.48 Attorney fees. 83.49 Deposit money or advance rent; duty of landlord and tenant. 83.50 Disclosure of landlord’s address. 83.51 Landlord’s obligation to maintain premises. 83.52 Tenant’s obligation to maintain dwell-ing unit. 83.53 Landlord’s access to dwelling unit. 83.535 Flotation bedding system; restrictions on use. 83.54 Enforcement of rights and duties; civil action; criminal offenses. 83.55 Right of action for damages. 83.56 Termination of rental agreement. 83.57 Termination of tenancy without spe-cific term. 83.575 Termination of tenancy with specific duration. 83.58 Remedies; tenant holding over. 83.59 Right of action for possession. 83.595 Choice of remedies upon breach or early termination by tenant. 83.561 Termination of rental agreement upon foreclosure. 83.60 Defenses to action for rent or posses-sion; procedure. 83.61 Disbursement of funds in registry of court; prompt final hearing. 83.62 Restoration of possession to landlord. 83.625 Power to award possession and enter money judgment. 83.63 Casualty damage. 83.64 Retaliatory conduct. 83.67 Prohibited practices. 83.681 Orders to enjoin violations of this part. 83.682 Termination of rental agreement by a servicemember. 83.683 Rental Application by a servicemember

83.40 Short title.—This part shall be known as the “Florida Residential Landlord and Tenant Act.”

History.—s. 2, ch. 73-330.

83.41 Application.—This part applies to the rental of a dwelling unit.

History.—s. 2, ch. 73-330; ss. 2, 20, ch. 82-66.

83.42 Exclusions from application of part.—This part does not apply to:

(1) Residency or detention in a facility, whether public or private, when residence or detention is incidental to the provision of med-ical, geriatric, educational, counseling, reli-gious, or similar services. For residents of a fa-cility licensed under part II of chapter 400, the provisions of s. 400.0255 are the exclusive pro-cedures for all transfers and discharges.

(2) Occupancy under a contract of sale of a dwelling unit or the property of which it is a part in which the buyer has paid at least 12 months’ rent or in which the buyer has paid at least 1 month’s rent and a deposit of at least 5 percent of the purchase price of the property.

(3) Transient occupancy in a hotel, condo-minium, motel, roominghouse, or similar pub-lic lodging, or transient occupancy in a mobile home park.

(4) Occupancy by a holder of a proprietary lease in a cooperative apartment.

(5) Occupancy by an owner of a condo-minium unit.

History.—s. 2, ch. 73-330; s. 40, ch. 2012-160; s. 1, ch. 2013-136.

83.43 Definitions.—As used in this part, the following words and terms shall have the following meanings unless some other mean-ing is plainly indicated:

(1) “Building, housing, and health codes” means any law, ordinance, or governmental regulation concerning health, safety, sanitation or fitness for habitation, or the construction, maintenance, operation, occupancy, use, or ap-pearance, of any dwelling unit.

(2) “Dwelling unit” means: (a) A structure or part of a structure that is

rented for use as a home, residence, or sleeping place by one person or by two or more persons who maintain a common household.


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(b) A mobile home rented by a tenant. (c) A structure or part of a structure that is

furnished, with or without rent, as an incident of employment for use as a home, residence, or sleeping place by one or more persons.

(3) “Landlord” means the owner or lessor of a dwelling unit.

(4) “Tenant” means any person entitled to occupy a dwelling unit under a rental agree-ment.

(5) “Premises” means a dwelling unit and the structure of which it is a part and a mobile home lot and the appurtenant facilities and grounds, areas, facilities, and property held out for the use of tenants generally.

(6) “Rent” means the periodic payments due the landlord from the tenant for occupancy under a rental agreement and any other pay-ments due the landlord from the tenant as may be designated as rent in a written rental agree-ment.

(7) “Rental agreement” means any written agreement, including amendments or addenda, or oral agreement for a duration of less than 1 year, providing for use and occupancy of prem-ises.

(8) “Good faith” means honesty in fact in the conduct or transaction concerned.

(9) “Advance rent” means moneys paid to the landlord to be applied to future rent pay-ment periods, but does not include rent paid in advance for a current rent payment period.

(10) “Transient occupancy” means occu-pancy when it is the intention of the parties that the occupancy will be temporary.

(11) “Deposit money” means any money held by the landlord on behalf of the tenant, in-cluding, but not limited to, damage deposits, security deposits, advance rent deposit, pet de-posit, or any contractual deposit agreed to be-tween landlord and tenant either in writing or orally.

(12) “Security deposits” means any mon-eys held by the landlord as security for the per-formance of the rental agreement, including, but not limited to, monetary damage to the

landlord caused by the tenant’s breach of lease prior to the expiration thereof.

(13) “Legal holiday” means holidays ob-served by the clerk of the court.

(14) “Servicemember” shall have the same meaning as provided in s. 250.01.

(15) “Active duty” shall have the same meaning as provided in s. 250.01.

(16) “State active duty” shall have the same meaning as provided in s. 250.01.

(17) “Early termination fee” means any charge, fee, or forfeiture that is provided for in a written rental agreement and is assessed to a tenant when a tenant elects to terminate the rental agreement, as provided in the agreement, and vacates a dwelling unit before the end of the rental agreement. An early termination fee does not include:

(a) Unpaid rent and other accrued charges through the end of the month in which the land-lord retakes possession of the dwelling unit.

(b) Charges for damages to the dwelling unit.

(c) Charges associated with a rental agree-ment settlement, release, buyout, or accord and satisfaction agreement.

History.—s. 2, ch. 73-330; s. 1, ch. 74-143; s. 1, ch. 81-190; s. 3, ch. 83-151; s. 17, ch. 94-170; s. 2, ch. 2003-72; s. 1, ch. 2008-131.

83.44 Obligation of good faith.—Every rental agreement or duty within this part im-poses an obligation of good faith in its perfor-mance or enforcement.

History.—s. 2, ch. 73-330.

83.45 Unconscionable rental agreement or provision.—

(1) If the court as a matter of law finds a rental agreement or any provision of a rental agreement to have been unconscionable at the time it was made, the court may refuse to en-force the rental agreement, enforce the remain-der of the rental agreement without the uncon-scionable provision, or so limit the application of any unconscionable provision as to avoid any unconscionable result.

(2) When it is claimed or appears to the court that the rental agreement or any provision thereof may be unconscionable, the parties


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shall be afforded a reasonable opportunity to present evidence as to meaning, relationship of the parties, purpose, and effect to aid the court in making the determination.

History.—s. 2, ch. 73-330.

83.46 Rent; duration of tenancies.— (1) Unless otherwise agreed, rent is paya-

ble without demand or notice; periodic rent is payable at the beginning of each rent payment period; and rent is uniformly apportionable from day to day.

(2) If the rental agreement contains no pro-vision as to duration of the tenancy, the dura-tion is determined by the periods for which the rent is payable. If the rent is payable weekly, then the tenancy is from week to week; if pay-able monthly, tenancy is from month to month; if payable quarterly, tenancy is from quarter to quarter; if payable yearly, tenancy is from year to year.

(3) If the dwelling unit is furnished without rent as an incident of employment and there is no agreement as to the duration of the tenancy, the duration is determined by the periods for which wages are payable. If wages are payable weekly or more frequently, then the tenancy is from week to week; and if wages are payable monthly or no wages are payable, then the ten-ancy is from month to month. In the event that the employee ceases employment, the em-ployer shall be entitled to rent for the period from the day after the employee ceases employ-ment until the day that the dwelling unit is va-cated at a rate equivalent to the rate charged for similarly situated residences in the area. This subsection shall not apply to an employee or a resident manager of an apartment house or an apartment complex when there is a written agreement to the contrary.

History.—s. 2, ch. 73-330; s. 2, ch. 81-190; s. 2, ch. 87-195; s. 2, ch. 90-133; s. 1, ch. 93-255.

83.47 Prohibited provisions in rental agreements.—

(1) A provision in a rental agreement is void and unenforceable to the extent that it:

(a) Purports to waive or preclude the rights, remedies, or requirements set forth in this part.

(b) Purports to limit or preclude any liabil-ity of the landlord to the tenant or of the tenant to the landlord, arising under law.

(2) If such a void and unenforceable provi-sion is included in a rental agreement entered into, extended, or renewed after the effective date of this part and either party suffers actual damages as a result of the inclusion, the ag-grieved party may recover those damages sus-tained after the effective date of this part.

History.—s. 2, ch. 73-330.

83.48 Attorney fees.—In any civil action brought to enforce the provisions of the rental agreement or this part, the party in whose favor a judgment or decree has been rendered may recover reasonable attorney fees and court costs from the nonprevailing party. The right to attorney fees in this section may not be waived in a lease agreement. However, attorney fees may not be awarded under this section in a claim for personal injury damages based on a breach of duty under s. 83.51.

History.—s. 2, ch. 73-330; s. 4, ch. 83-151; s. 2, ch. 2013-136. 183.49 Deposit money or advance rent;

duty of landlord and tenant.— (1) Whenever money is deposited or ad-

vanced by a tenant on a rental agreement as se-curity for performance of the rental agreement or as advance rent for other than the next im-mediate rental period, the landlord or the land-lord’s agent shall either:

(a) Hold the total amount of such money in a separate non-interest-bearing account in a Florida banking institution for the benefit of the tenant or tenants. The landlord shall not com-mingle such moneys with any other funds of the landlord or hypothecate, pledge, or in any other way make use of such moneys until such moneys are actually due the landlord;

(b) Hold the total amount of such money in a separate interest-bearing account in a Florida banking institution for the benefit of the tenant or tenants, in which case the tenant shall re-ceive and collect interest in an amount of at

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0083/0083.html#1


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least 75 percent of the annualized average in-terest rate payable on such account or interest at the rate of 5 percent per year, simple interest, whichever the landlord elects. The landlord shall not commingle such moneys with any other funds of the landlord or hypothecate, pledge, or in any other way make use of such moneys until such moneys are actually due the landlord; or

(c) Post a surety bond, executed by the landlord as principal and a surety company au-thorized and licensed to do business in the state as surety, with the clerk of the circuit court in the county in which the dwelling unit is located in the total amount of the security deposits and advance rent he or she holds on behalf of the tenants or $50,000, whichever is less. The bond shall be conditioned upon the faithful compli-ance of the landlord with the provisions of this section and shall run to the Governor for the benefit of any tenant injured by the landlord’s violation of the provisions of this section. In ad-dition to posting the surety bond, the landlord shall pay to the tenant interest at the rate of 5 percent per year, simple interest. A landlord, or the landlord’s agent, engaged in the renting of dwelling units in five or more counties, who holds deposit moneys or advance rent and who is otherwise subject to the provisions of this section, may, in lieu of posting a surety bond in each county, elect to post a surety bond in the form and manner provided in this paragraph with the office of the Secretary of State. The bond shall be in the total amount of the security deposit or advance rent held on behalf of ten-ants or in the amount of $250,000, whichever is less. The bond shall be conditioned upon the faithful compliance of the landlord with the provisions of this section and shall run to the Governor for the benefit of any tenant injured by the landlord’s violation of this section. In addition to posting a surety bond, the landlord shall pay to the tenant interest on the security deposit or advance rent held on behalf of that tenant at the rate of 5 percent per year simple interest.

(2) The landlord shall, in the lease agree-ment or within 30 days after receipt of advance rent or a security deposit, give written notice to the tenant which includes disclosure of the ad-vance rent or security deposit. Subsequent to providing such written notice, if the landlord changes the manner or location in which he or she is holding the advance rent or security de-posit, he or she must notify the tenant within 30 days after the change as provided in paragraphs (a)-(d). The landlord is not required to give new or additional notice solely because the deposi-tory has merged with another financial institu-tion, changed its name, or transferred owner-ship to a different financial institution. This subsection does not apply to any landlord who rents fewer than five individual dwelling units. Failure to give this notice is not a defense to the payment of rent when due. The written notice must:

(a) Be given in person or by mail to the ten-ant.

(b) State the name and address of the de-pository where the advance rent or security de-posit is being held or state that the landlord has posted a surety bond as provided by law.

(c) State whether the tenant is entitled to interest on the deposit.

(d) Contain the following disclosure: YOUR LEASE REQUIRES PAYMENT OF CERTAIN DEPOSITS. THE LAND-LORD MAY TRANSFER ADVANCE RENTS TO THE LANDLORD’S AC-COUNT AS THEY ARE DUE AND WITHOUT NOTICE. WHEN YOU MOVE OUT, YOU MUST GIVE THE LANDLORD YOUR NEW ADDRESS SO THAT THE LANDLORD CAN SEND YOU NOTICES REGARDING YOUR DEPOSIT. THE LANDLORD MUST MAIL YOU NOTICE, WITHIN 30 DAYS AFTER YOU MOVE OUT, OF THE LANDLORD’S INTENT TO IM-POSE A CLAIM AGAINST THE DE-POSIT. IF YOU DO NOT REPLY TO THE LANDLORD STATING YOUR


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OBJECTION TO THE CLAIM WITHIN 15 DAYS AFTER RECEIPT OF THE LANDLORD’S NOTICE, THE LAND-LORD WILL COLLECT THE CLAIM AND MUST MAIL YOU THE RE-MAINING DEPOSIT, IF ANY. IF THE LANDLORD FAILS TO TIMELY MAIL YOU NOTICE, THE LANDLORD MUST RETURN THE DE-POSIT BUT MAY LATER FILE A LAWSUIT AGAINST YOU FOR DAM-AGES. IF YOU FAIL TO TIMELY OB-JECT TO A CLAIM, THE LANDLORD MAY COLLECT FROM THE DEPOSIT, BUT YOU MAY LATER FILE A LAW-SUIT CLAIMING A REFUND. YOU SHOULD ATTEMPT TO INFOR-MALLY RESOLVE ANY DISPUTE BE-FORE FILING A LAWSUIT. GENER-ALLY, THE PARTY IN WHOSE FA-VOR A JUDGMENT IS RENDERED WILL BE AWARDED COSTS AND ATTORNEY FEES PAYABLE BY THE LOSING PARTY. THIS DISCLOSURE IS BASIC. PLEASE REFER TO PART II OF CHAP-TER 83, FLORIDA STATUTES, TO DE-TERMINE YOUR LEGAL RIGHTS AND OBLIGATIONS. (3) The landlord or the landlord’s agent

may disburse advance rents from the deposit account to the landlord’s benefit when the ad-vance rental period commences and without notice to the tenant. For all other deposits:

(a) Upon the vacating of the premises for termination of the lease, if the landlord does not intend to impose a claim on the security de-posit, the landlord shall have 15 days to return the security deposit together with interest if otherwise required, or the landlord shall have 30 days to give the tenant written notice by cer-tified mail to the tenant’s last known mailing address of his or her intention to impose a claim on the deposit and the reason for imposing the claim. The notice shall contain a statement in substantially the following form:

This is a notice of my intention to impose a claim for damages in the amount of upon your security deposit, due to . It is sent to you as re-quired by s. 83.49(3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you receive this notice or I will be authorized to deduct my claim from your security deposit. Your objec-tion must be sent to (landlord’s address) . If the landlord fails to give the required notice within the 30-day period, he or she forfeits the right to impose a claim upon the security de-posit and may not seek a setoff against the de-posit but may file an action for damages after return of the deposit.

(b) Unless the tenant objects to the imposi-tion of the landlord’s claim or the amount thereof within 15 days after receipt of the land-lord’s notice of intention to impose a claim, the landlord may then deduct the amount of his or her claim and shall remit the balance of the de-posit to the tenant within 30 days after the date of the notice of intention to impose a claim for damages. The failure of the tenant to make a timely objection does not waive any rights of the tenant to seek damages in a separate action.

(c) If either party institutes an action in a court of competent jurisdiction to adjudicate the party’s right to the security deposit, the pre-vailing party is entitled to receive his or her court costs plus a reasonable fee for his or her attorney. The court shall advance the cause on the calendar.

(d) Compliance with this section by an in-dividual or business entity authorized to con-duct business in this state, including Florida-li-censed real estate brokers and sales associates, constitutes compliance with all other relevant Florida Statutes pertaining to security deposits held pursuant to a rental agreement or other landlord-tenant relationship. Enforcement per-sonnel shall look solely to this section to deter-mine compliance. This section prevails over any conflicting provisions in chapter 475 and in other sections of the Florida Statutes, and


13

shall operate to permit licensed real estate bro-kers to disburse security deposits and deposit money without having to comply with the no-tice and settlement procedures contained in s. 475.25(1)(d).

(4) The provisions of this section do not apply to transient rentals by hotels or motels as defined in chapter 509; nor do they apply in those instances in which the amount of rent or deposit, or both, is regulated by law or by rules or regulations of a public body, including pub-lic housing authorities and federally adminis-tered or regulated housing programs including s. 202, s. 221(d)(3) and (4), s. 236, or s. 8 of the National Housing Act, as amended, other than for rent stabilization. With the exception of subsections (3), (5), and (6), this section is not applicable to housing authorities or public housing agencies created pursuant to chapter 421 or other statutes.

(5) Except when otherwise provided by the terms of a written lease, any tenant who vacates or abandons the premises prior to the expiration of the term specified in the written lease, or any tenant who vacates or abandons premises which are the subject of a tenancy from week to week, month to month, quarter to quarter, or year to year, shall give at least 7 days’ written notice by certified mail or personal delivery to the landlord prior to vacating or abandoning the premises which notice shall include the address where the tenant may be reached. Failure to give such notice shall relieve the landlord of the notice requirement of paragraph (3)(a) but shall not waive any right the tenant may have to the security deposit or any part of it.

(6) For the purposes of this part, a renewal of an existing rental agreement shall be consid-ered a new rental agreement, and any security deposit carried forward shall be considered a new security deposit.

(7) Upon the sale or transfer of title of the rental property from one owner to another, or upon a change in the designated rental agent, any and all security deposits or advance rents being held for the benefit of the tenants shall be

transferred to the new owner or agent, together with any earned interest and with an accurate accounting showing the amounts to be credited to each tenant account. Upon the transfer of such funds and records to the new owner or agent, and upon transmittal of a written receipt therefor, the transferor is free from the obliga-tion imposed in subsection (1) to hold such moneys on behalf of the tenant. There is a re-buttable presumption that any new owner or agent received the security deposit from the previous owner or agent; however, this pre-sumption is limited to 1 month’s rent. This sub-section does not excuse the landlord or agent for a violation of other provisions of this sec-tion while in possession of such deposits.

(8) Any person licensed under the provi-sions of s. 509.241, unless excluded by the pro-visions of this part, who fails to comply with the provisions of this part shall be subject to a fine or to the suspension or revocation of his or her license by the Division of Hotels and Res-taurants of the Department of Business and Professional Regulation in the manner pro-vided in s. 509.261.

(9) In those cases in which interest is re-quired to be paid to the tenant, the landlord shall pay directly to the tenant, or credit against the current month’s rent, the interest due to the tenant at least once annually. However, no in-terest shall be due a tenant who wrongfully ter-minates his or her tenancy prior to the end of the rental term.

History.—s. 1, ch. 69-282; s. 3, ch. 70-360; s. 1, ch. 72-19; s. 1, ch. 72-43; s. 5, ch. 73-330; s. 1, ch. 74-93; s. 3, ch. 74-146; ss. 1, 2, ch. 75-133; s. 1, ch. 76-15; s. 1, ch. 77-445; s. 20, ch. 79-400; s. 21, ch. 82-66; s. 5, ch. 83-151; s. 13, ch. 83-217; s. 3, ch. 87-195; s. 1, ch. 87-369; s. 3, ch. 88-379; s. 2, ch. 93-255; s. 5, ch. 94-218; s. 1372, ch. 95-147; s. 1, ch. 96-146; s. 1, ch. 2001-179; s. 53, ch. 2003-164; s. 3, ch. 2013-136.

1Note.—Section 4, ch. 2013-136, provides that “[t]he Legislature recognizes that landlords may have stocks of preprinted lease forms that comply with the notice requirements of current law. Accordingly, for leases entered into on or before December 31, 2013, a landlord may give notice that contains the disclosure required in the changes made by this act to s. 83.49, Florida Statutes, or the former notice required in s. 83.49, Florida Statutes 2012. In any event, the disclosure required by this act is only required for all leases entered into under this part on or after January 1, 2014.”

Note.—Former s. 83.261.


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83.50 Disclosure of landlord’s ad-dress.—In addition to any other disclosure re-quired by law, the landlord, or a person author-ized to enter into a rental agreement on the landlord’s behalf, shall disclose in writing to the tenant, at or before the commencement of the tenancy, the name and address of the land-lord or a person authorized to receive notices and demands in the landlord’s behalf. The per-son so authorized to receive notices and de-mands retains authority until the tenant is noti-fied otherwise. All notices of such names and addresses or changes thereto shall be delivered to the tenant’s residence or, if specified in writ-ing by the tenant, to any other address.


83.51 Landlord’s obligation to maintain premises.—

(1) The landlord at all times during the ten-ancy shall:

(a) Comply with the requirements of appli-cable building, housing, and health codes; or

(b) Where there are no applicable building, housing, or health codes, maintain the roofs, windows, doors, floors, steps, porches, exterior walls, foundations, and all other structural components in good repair and capable of re-sisting normal forces and loads and the plumb-ing in reasonable working condition. The land-lord, at commencement of the tenancy, must ensure that screens are installed in a reasonable condition. Thereafter, the landlord must repair damage to screens once annually, when neces-sary, until termination of the rental agreement. The landlord is not required to maintain a mo-bile home or other structure owned by the ten-ant. The landlord’s obligations under this sub-section may be altered or modified in writing with respect to a single-family home or duplex.

(2)(a) Unless otherwise agreed in writing, in addition to the requirements of subsection (1), the landlord of a dwelling unit other than a single-family home or duplex shall, at all times during the tenancy, make reasonable provisions for:

1. The extermination of rats, mice, roaches, ants, wood-destroying organisms, and

bedbugs. When vacation of the premises is re-quired for such extermination, the landlord is not liable for damages but shall abate the rent. The tenant must temporarily vacate the prem-ises for a period of time not to exceed 4 days, on 7 days’ written notice, if necessary, for ex-termination pursuant to this subparagraph.

2. Locks and keys. 3. The clean and safe condition of common

areas. 4. Garbage removal and outside recepta-

cles therefor. 5. Functioning facilities for heat during

winter, running water, and hot water. (b) Unless otherwise agreed in writing, at

the commencement of the tenancy of a single-family home or duplex, the landlord shall in-stall working smoke detection devices. As used in this paragraph, the term “smoke detection device” means an electrical or battery-operated device which detects visible or invisible parti-cles of combustion and which is listed by Un-derwriters Laboratories, Inc., Factory Mutual Laboratories, Inc., or any other nationally rec-ognized testing laboratory using nationally ac-cepted testing standards.

(c) Nothing in this part authorizes the ten-ant to raise a noncompliance by the landlord with this subsection as a defense to an action for possession under s. 83.59.

(d) This subsection shall not apply to a mo-bile home owned by a tenant.

(e) Nothing contained in this subsection prohibits the landlord from providing in the rental agreement that the tenant is obligated to pay costs or charges for garbage removal, wa-ter, fuel, or utilities.

(3) If the duty imposed by subsection (1) is the same or greater than any duty imposed by subsection (2), the landlord’s duty is deter-mined by subsection (1).

(4) The landlord is not responsible to the tenant under this section for conditions created or caused by the negligent or wrongful act or


15

omission of the tenant, a member of the ten-ant’s family, or other person on the premises with the tenant’s consent.

History.—s. 2, ch. 73-330; s. 22, ch. 82-66; s. 4, ch. 87-195; s. 1, ch. 90-133; s. 3, ch. 93-255; s. 444, ch. 95-147; s. 8, ch. 97-95; s. 6, ch. 2013-136.

83.52 Tenant’s obligation to maintain dwelling unit.—The tenant at all times during the tenancy shall:

(1) Comply with all obligations imposed upon tenants by applicable provisions of build-ing, housing, and health codes.

(2) Keep that part of the premises which he or she occupies and uses clean and sanitary.

(3) Remove from the tenant’s dwelling unit all garbage in a clean and sanitary manner.

(4) Keep all plumbing fixtures in the dwelling unit or used by the tenant clean and sanitary and in repair.

(5) Use and operate in a reasonable manner all electrical, plumbing, sanitary, heating, ven-tilating, air-conditioning and other facilities and appliances, including elevators.

(6) Not destroy, deface, damage, impair, or remove any part of the premises or property therein belonging to the landlord nor permit any person to do so.

(7) Conduct himself or herself, and require other persons on the premises with his or her consent to conduct themselves, in a manner that does not unreasonably disturb the tenant’s neighbors or constitute a breach of the peace.

History.—s. 2, ch. 73-330; s. 445, ch. 95-147.

83.53 Landlord’s access to dwelling unit.—

(1) The tenant shall not unreasonably with-hold consent to the landlord to enter the dwell-ing unit from time to time in order to inspect the premises; make necessary or agreed repairs, decorations, alterations, or improvements; sup-ply agreed services; or exhibit the dwelling unit to prospective or actual purchasers, mortga-gees, tenants, workers, or contractors.

(2) The landlord may enter the dwelling unit at any time for the protection or preserva-tion of the premises. The landlord may enter the

dwelling unit upon reasonable notice to the ten-ant and at a reasonable time for the purpose of repair of the premises. “Reasonable notice” for the purpose of repair is notice given at least 12 hours prior to the entry, and reasonable time for the purpose of repair shall be between the hours of 7:30 a.m. and 8:00 p.m. The landlord may enter the dwelling unit when necessary for the further purposes set forth in subsection (1) un-der any of the following circumstances:

(a) With the consent of the tenant; (b) In case of emergency; (c) When the tenant unreasonably with-

holds consent; or (d) If the tenant is absent from the prem-

ises for a period of time equal to one-half the time for periodic rental payments. If the rent is current and the tenant notifies the landlord of an intended absence, then the landlord may en-ter only with the consent of the tenant or for the protection or preservation of the premises.

(3) The landlord shall not abuse the right of access nor use it to harass the tenant.

History.—s. 2, ch. 73-330; s. 5, ch. 87-195; s. 4, ch. 93-255; s. 446, ch. 95-147.

83.535 Flotation bedding system; re-strictions on use.—No landlord may prohibit a tenant from using a flotation bedding system in a dwelling unit, provided the flotation bed-ding system does not violate applicable build-ing codes. The tenant shall be required to carry in the tenant’s name flotation insurance as is standard in the industry in an amount deemed reasonable to protect the tenant and owner against personal injury and property damage to the dwelling units. In any case, the policy shall carry a loss payable clause to the owner of the building.

History.—s. 7, ch. 82-66; s. 5, ch. 93-255.

83.54 Enforcement of rights and duties; civil action; criminal offenses.—Any right or duty declared in this part is enforceable by civil action. A right or duty enforced by civil action under this section does not preclude prosecu-tion for a criminal offense related to the lease or leased property.

History.—s. 2, ch. 73-330; s. 7, ch. 2013-136.


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83.55 Right of action for damages.—If either the landlord or the tenant fails to comply with the requirements of the rental agreement or this part, the aggrieved party may recover the damages caused by the noncompliance.

History.—s. 2, ch. 73-330.

83.56 Termination of rental agree-ment.—

(1) If the landlord materially fails to com-ply with s. 83.51(1) or material provisions of the rental agreement within 7 days after deliv-ery of written notice by the tenant specifying the noncompliance and indicating the intention of the tenant to terminate the rental agreement by reason thereof, the tenant may terminate the rental agreement. If the failure to comply with s. 83.51(1) or material provisions of the rental agreement is due to causes beyond the control of the landlord and the landlord has made and continues to make every reasonable effort to correct the failure to comply, the rental agree-ment may be terminated or altered by the par-ties, as follows:

(a) If the landlord’s failure to comply ren-ders the dwelling unit untenantable and the ten-ant vacates, the tenant shall not be liable for rent during the period the dwelling unit remains uninhabitable.

(b) If the landlord’s failure to comply does not render the dwelling unit untenantable and the tenant remains in occupancy, the rent for the period of noncompliance shall be reduced by an amount in proportion to the loss of rental value caused by the noncompliance.

(2) If the tenant materially fails to comply with s. 83.52 or material provisions of the rental agreement, other than a failure to pay rent, or reasonable rules or regulations, the landlord may:

(a) If such noncompliance is of a nature that the tenant should not be given an oppor-tunity to cure it or if the noncompliance consti-tutes a subsequent or continuing noncompli-ance within 12 months of a written warning by the landlord of a similar violation, deliver a written notice to the tenant specifying the non-

compliance and the landlord’s intent to termi-nate the rental agreement by reason thereof. Examples of noncompliance which are of a na-ture that the tenant should not be given an op-portunity to cure include, but are not limited to, destruction, damage, or misuse of the land-lord’s or other tenants’ property by intentional act or a subsequent or continued unreasonable disturbance. In such event, the landlord may terminate the rental agreement, and the tenant shall have 7 days from the date that the notice is delivered to vacate the premises. The notice shall be in substantially the following form:

You are advised that your lease is terminated effective immediately. You shall have 7 days from the delivery of this letter to vacate the premises. This action is taken because (cite the noncompliance) .

(b) If such noncompliance is of a nature that the tenant should be given an opportunity to cure it, deliver a written notice to the tenant specifying the noncompliance, including a no-tice that, if the noncompliance is not corrected within 7 days from the date that the written no-tice is delivered, the landlord shall terminate the rental agreement by reason thereof. Exam-ples of such noncompliance include, but are not limited to, activities in contravention of the lease or this part such as having or permitting unauthorized pets, guests, or vehicles; parking in an unauthorized manner or permitting such parking; or failing to keep the premises clean and sanitary. If such noncompliance recurs within 12 months after notice, an eviction ac-tion may commence without delivering a sub-sequent notice pursuant to paragraph (a) or this paragraph. The notice shall be in substantially the following form:

You are hereby notified that (cite the non-compliance) . Demand is hereby made that you remedy the noncompliance within 7 days of receipt of this notice or your lease shall be deemed terminated and you shall vacate the premises upon such termination. If this same conduct or conduct of a similar nature is re-


17

peated within 12 months, your tenancy is sub-ject to termination without further warning and without your being given an opportunity to cure the noncompliance.

(3) If the tenant fails to pay rent when due and the default continues for 3 days, excluding Saturday, Sunday, and legal holidays, after de-livery of written demand by the landlord for payment of the rent or possession of the prem-ises, the landlord may terminate the rental agreement. Legal holidays for the purpose of this section shall be court-observed holidays only. The 3-day notice shall contain a statement in substantially the following form:

You are hereby notified that you are indebted to me in the sum of dollars for the rent and use of the premises (address of leased premises, including county) , Florida, now occupied by you and that I demand payment of the rent or possession of the premises within 3 days (ex-cluding Saturday, Sunday, and legal holidays) from the date of delivery of this notice, to wit: on or before the day of , (year) .

(landlord’s name, address and phone num-ber)

(4) The delivery of the written notices re-quired by subsections (1), (2), and (3) shall be by mailing or delivery of a true copy thereof or, if the tenant is absent from the premises, by leaving a copy thereof at the residence. The no-tice requirements of subsections (1), (2), and (3) may not be waived in the lease.

(5)(a) If the landlord accepts rent with ac-tual knowledge of a noncompliance by the ten-ant or accepts performance by the tenant of any other provision of the rental agreement that is at variance with its provisions, or if the tenant pays rent with actual knowledge of a noncom-pliance by the landlord or accepts performance by the landlord of any other provision of the rental agreement that is at variance with its pro-visions, the landlord or tenant waives his or her right to terminate the rental agreement or to bring a civil action for that noncompliance, but not for any subsequent or continuing noncom-pliance. However, a landlord does not waive

the right to terminate the rental agreement or to bring a civil action for that noncompliance by accepting partial rent for the period. If partial rent is accepted after posting the notice for non-payment, the landlord must:

1. Provide the tenant with a receipt stating the date and amount received and the agreed upon date and balance of rent due before filing an action for possession;

2. Place the amount of partial rent accepted from the tenant in the registry of the court upon filing the action for possession; or

3. Post a new 3-day notice reflecting the new amount due.

(b) Any tenant who wishes to defend against an action by the landlord for possession of the unit for noncompliance of the rental agreement or of relevant statutes must comply with s. 83.60(2). The court may not set a date for mediation or trial unless the provisions of s. 83.60(2) have been met, but must enter a de-fault judgment for removal of the tenant with a writ of possession to issue immediately if the tenant fails to comply with s. 83.60(2).

(c) This subsection does not apply to that portion of rent subsidies received from a local, state, or national government or an agency of local, state, or national government; however, waiver will occur if an action has not been in-stituted within 45 days after the landlord ob-tains actual knowledge of the noncompliance.

(6) If the rental agreement is terminated, the landlord shall comply with s. 83.49(3).

History.—s. 2, ch. 73-330; s. 23, ch. 82-66; s. 6, ch. 83-151; s. 14, ch. 83-217; s. 6, ch. 87-195; s. 6, ch. 93-255; s. 6, ch. 94-170; s. 1373, ch. 95-147; s. 5, ch. 99-6; s. 8, ch. 2013-136.

83.561 Termination of rental agreement

upon foreclosure.— (1) If a tenant is occupying residential

premises that are the subject of a foreclosure sale, upon issuance of a certificate of title fol-lowing the sale, the purchaser named in the cer-tificate of title takes title to the residential premises subject to the rights of the tenant un-der this section.


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(a) The tenant may remain in possession of the premises for 30 days following the date of the purchaser’s delivery of a written 30-day no-tice of termination.

(b) The tenant is entitled to the protections of s. 83.67.

(c) The 30-day notice of termination must be in substantially the following form:

NOTICE TO TENANT OF TERMINA-TION

You are hereby notified that your rental agree-ment is terminated on the date of delivery of this notice, that your occupancy is terminated 30 days following the date of the delivery of this notice, and that I demand possession of the premises on (date) . If you do not vacate the premises by that date, I will ask the court for an order allow-ing me to remove you and your belongings from the premises. You are obligated to pay rent dur-ing the 30-day period for any amount that might accrue during that period. Your rent must be de-livered to (landlord’s name and address) .

(d) The 30-day notice of termination shall be delivered in the same manner as provided in s. 83.56(4).

(2) The purchaser at the foreclosure sale may apply to the court for a writ of possession based upon a sworn affidavit that the 30-day notice of termination was delivered to the ten-ant and the tenant has failed to vacate the prem-ises at the conclusion of the 30-day period. If the court awards a writ of possession, the writ must be served on the tenant. The writ of pos-session shall be governed by s. 83.62.

(3) This section does not apply if: (a) The tenant is the mortgagor in the sub-

ject foreclosure or is the child, spouse, or parent of the mortgagor in the subject foreclosure.

(b) The tenant’s rental agreement is not the result of an arm’s length transaction.

(c) The tenant’s rental agreement allows the tenant to pay rent that is substantially less than the fair market rent for the premises, un-less the rent is reduced or subsidized due to a federal, state, or local subsidy.

(4) A purchaser at a foreclosure sale of a residential premises occupied by a tenant does

not assume the obligations of a landlord, except as provided in paragraph (1)(b), unless or until the purchaser assumes an existing rental agree-ment with the tenant that has not ended or en-ters into a new rental agreement with the tenant.

History.—s. 1, ch. 2015-96.

83.57 Termination of tenancy without specific term.—A tenancy without a specific duration, as defined in s. 83.46(2) or (3), may be terminated by either party giving written no-tice in the manner provided in s. 83.56(4), as follows:

(1) When the tenancy is from year to year, by giving not less than 60 days’ notice prior to the end of any annual period;

(2) When the tenancy is from quarter to quarter, by giving not less than 30 days’ notice prior to the end of any quarterly period;

(3) When the tenancy is from month to month, by giving not less than 15 days’ notice prior to the end of any monthly period; and

(4) When the tenancy is from week to week, by giving not less than 7 days’ notice prior to the end of any weekly period.


83.575 Termination of tenancy with spe-cific duration.—

(1) A rental agreement with a specific du-ration may contain a provision requiring the tenant to notify the landlord within a specified period before vacating the premises at the end of the rental agreement, if such provision re-quires the landlord to notify the tenant within such notice period if the rental agreement will not be renewed; however, a rental agreement may not require more than 60 days’ notice from either the tenant or the landlord.

(2) A rental agreement with a specific du-ration may provide that if a tenant fails to give the required notice before vacating the prem-ises at the end of the rental agreement, the ten-ant may be liable for liquidated damages as specified in the rental agreement if the landlord provides written notice to the tenant specifying the tenant’s obligations under the notification provision contained in the lease and the date the

http://www.flsenate.gov/Laws/Statutes/2015/83.67




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rental agreement is terminated. The landlord must provide such written notice to the tenant within 15 days before the start of the notifica-tion period contained in the lease. The written notice shall list all fees, penalties, and other charges applicable to the tenant under this sub-section.

(3) If the tenant remains on the premises with the permission of the landlord after the rental agreement has terminated and fails to give notice required under s. 83.57(3), the ten-ant is liable to the landlord for an additional 1 month’s rent.


83.58 Remedies; tenant holding over.—If the tenant holds over and continues in pos-session of the dwelling unit or any part thereof after the expiration of the rental agreement without the permission of the landlord, the landlord may recover possession of the dwell-ing unit in the manner provided for in s. 83.59. The landlord may also recover double the amount of rent due on the dwelling unit, or any part thereof, for the period during which the tenant refuses to surrender possession.

History.—s. 2, ch. 73-330; s. 10, ch. 2013-136.

83.59 Right of action for possession.— (1) If the rental agreement is terminated

and the tenant does not vacate the premises, the landlord may recover possession of the dwell-ing unit as provided in this section.

(2) A landlord, the landlord’s attorney, or the landlord’s agent, applying for the removal of a tenant, shall file in the county court of the county where the premises are situated a com-plaint describing the dwelling unit and stating the facts that authorize its recovery. A land-lord’s agent is not permitted to take any action other than the initial filing of the complaint, un-less the landlord’s agent is an attorney. The landlord is entitled to the summary procedure provided in s. 51.011, and the court shall ad-vance the cause on the calendar.

(3) The landlord shall not recover posses-sion of a dwelling unit except:

(a) In an action for possession under sub-section (2) or other civil action in which the is-sue of right of possession is determined;

(b) When the tenant has surrendered pos-session of the dwelling unit to the landlord;

(c) When the tenant has abandoned the dwelling unit. In the absence of actual knowledge of abandonment, it shall be pre-sumed that the tenant has abandoned the dwell-ing unit if he or she is absent from the premises for a period of time equal to one-half the time for periodic rental payments. However, this presumption does not apply if the rent is current or the tenant has notified the landlord, in writ-ing, of an intended absence; or

(d) When the last remaining tenant of a dwelling unit is deceased, personal property re-mains on the premises, rent is unpaid, at least 60 days have elapsed following the date of death, and the landlord has not been notified in writing of the existence of a probate estate or of the name and address of a personal representa-tive. This paragraph does not apply to a dwell-ing unit used in connection with a federally ad-ministered or regulated housing program, in-cluding programs under s. 202, s. 221(d)(3) and (4), s. 236, or s. 8 of the National Housing Act, as amended.

(4) The prevailing party is entitled to have judgment for costs and execution therefor.


83.595 Choice of remedies upon breach or early termination by tenant.—If the tenant breaches the rental agreement for the dwelling unit and the landlord has obtained a writ of pos-session, or the tenant has surrendered posses-sion of the dwelling unit to the landlord, or the tenant has abandoned the dwelling unit, the landlord may:

(1) Treat the rental agreement as termi-nated and retake possession for his or her own account, thereby terminating any further liabil-ity of the tenant;

(2) Retake possession of the dwelling unit for the account of the tenant, holding the tenant


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liable for the difference between the rent stipu-lated to be paid under the rental agreement and what the landlord is able to recover from a re-letting. If the landlord retakes possession, the landlord has a duty to exercise good faith in at-tempting to relet the premises, and any rent re-ceived by the landlord as a result of the reletting must be deducted from the balance of rent due from the tenant. For purposes of this subsec-tion, the term “good faith in attempting to relet the premises” means that the landlord uses at least the same efforts to relet the premises as were used in the initial rental or at least the same efforts as the landlord uses in attempting to rent other similar rental units but does not require the landlord to give a preference in rent-ing the premises over other vacant dwelling units that the landlord owns or has the respon-sibility to rent;

(3) Stand by and do nothing, holding the lessee liable for the rent as it comes due; or

(4) Charge liquidated damages, as pro-vided in the rental agreement, or an early ter-mination fee to the tenant if the landlord and tenant have agreed to liquidated damages or an early termination fee, if the amount does not exceed 2 months’ rent, and if, in the case of an early termination fee, the tenant is required to give no more than 60 days’ notice, as provided in the rental agreement, prior to the proposed date of early termination. This remedy is avail-able only if the tenant and the landlord, at the time the rental agreement was made, indicated acceptance of liquidated damages or an early termination fee. The tenant must indicate ac-ceptance of liquidated damages or an early ter-mination fee by signing a separate addendum to the rental agreement containing a provision in substantially the following form: ☐ I agree, as provided in the rental agree-

ment, to pay $ (an amount that does not exceed 2 months’ rent) as liquidated damages or an early termination fee if I elect to terminate the rental agreement, and the landlord waives the right to seek additional rent beyond the month in which the landlord retakes possession.

☐ I do not agree to liquidated damages or an early termination fee, and I acknowledge that the landlord may seek damages as provided by law.

(a) In addition to liquidated damages or an early termination fee, the landlord is entitled to the rent and other charges accrued through the end of the month in which the landlord retakes possession of the dwelling unit and charges for damages to the dwelling unit.

(b) This subsection does not apply if the breach is failure to give notice as provided in s. 83.575.


83.60 Defenses to action for rent or pos-session; procedure.—

(1)(a) In an action by the landlord for pos-session of a dwelling unit based upon nonpay-ment of rent or in an action by the landlord un-der s. 83.55 seeking to recover unpaid rent, the tenant may defend upon the ground of a mate-rial noncompliance with s. 83.51(1), or may raise any other defense, whether legal or equi-table, that he or she may have, including the de-fense of retaliatory conduct in accordance with s. 83.64. The landlord must be given an oppor-tunity to cure a deficiency in a notice or in the pleadings before dismissal of the action.

(b) The defense of a material noncompli-ance with s. 83.51(1) may be raised by the ten-ant if 7 days have elapsed after the delivery of written notice by the tenant to the landlord, specifying the noncompliance and indicating the intention of the tenant not to pay rent by reason thereof. Such notice by the tenant may be given to the landlord, the landlord’s repre-sentative as designated pursuant to s. 83.50, a resident manager, or the person or entity who collects the rent on behalf of the landlord. A material noncompliance with s. 83.51(1) by the landlord is a complete defense to an action for possession based upon nonpayment of rent, and, upon hearing, the court or the jury, as the case may be, shall determine the amount, if any, by which the rent is to be reduced to reflect the diminution in value of the dwelling unit


21

during the period of noncompliance with s. 83.51(1). After consideration of all other rele-vant issues, the court shall enter appropriate judgment.

(2) In an action by the landlord for posses-sion of a dwelling unit, if the tenant interposes any defense other than payment, including, but not limited to, the defense of a defective 3-day notice, the tenant shall pay into the registry of the court the accrued rent as alleged in the com-plaint or as determined by the court and the rent that accrues during the pendency of the pro-ceeding, when due. The clerk shall notify the tenant of such requirement in the summons. Failure of the tenant to pay the rent into the reg-istry of the court or to file a motion to deter-mine the amount of rent to be paid into the reg-istry within 5 days, excluding Saturdays, Sun-days, and legal holidays, after the date of ser-vice of process constitutes an absolute waiver of the tenant’s defenses other than payment, and the landlord is entitled to an immediate de-fault judgment for removal of the tenant with a writ of possession to issue without further no-tice or hearing thereon. If a motion to determine rent is filed, documentation in support of the al-legation that the rent as alleged in the complaint is in error is required. Public housing tenants or tenants receiving rent subsidies are required to deposit only that portion of the full rent for which they are responsible pursuant to the fed-eral, state, or local program in which they are participating.


83.61 Disbursement of funds in registry of court; prompt final hearing.—When the tenant has deposited funds into the registry of the court in accordance with the provisions of s. 83.60(2) and the landlord is in actual danger of loss of the premises or other personal hard-ship resulting from the loss of rental income from the premises, the landlord may apply to the court for disbursement of all or part of the funds or for prompt final hearing. The court shall advance the cause on the calendar. The court, after preliminary hearing, may award all

or any portion of the funds on deposit to the landlord or may proceed immediately to a final resolution of the cause.

History.—s. 2, ch. 73-330; s. 2, ch. 74-146.

83.62 Restoration of possession to land-lord.—

(1) In an action for possession, after entry of judgment in favor of the landlord, the clerk shall issue a writ to the sheriff describing the premises and commanding the sheriff to put the landlord in possession after 24 hours’ notice conspicuously posted on the premises. Satur-days, Sundays, and legal holidays do not stay the 24-hour notice period.

(2) At the time the sheriff executes the writ of possession or at any time thereafter, the land-lord or the landlord’s agent may remove any personal property found on the premises to or near the property line. Subsequent to executing the writ of possession, the landlord may request the sheriff to stand by to keep the peace while the landlord changes the locks and removes the personal property from the premises. When such a request is made, the sheriff may charge a reasonable hourly rate, and the person re-questing the sheriff to stand by to keep the peace shall be responsible for paying the rea-sonable hourly rate set by the sheriff. Neither the sheriff nor the landlord or the landlord’s agent shall be liable to the tenant or any other party for the loss, destruction, or damage to the property after it has been removed.


83.625 Power to award possession and enter money judgment.—In an action by the landlord for possession of a dwelling unit based upon nonpayment of rent, if the court finds the rent is due, owing, and unpaid and by reason thereof the landlord is entitled to possession of the premises, the court, in addition to awarding possession of the premises to the landlord, shall direct, in an amount which is within its juris-dictional limitations, the entry of a money judg-ment with costs in favor of the landlord and against the tenant for the amount of money found due, owing, and unpaid by the tenant to


22

the landlord. However, no money judgment shall be entered unless service of process has been effected by personal service or, where au-thorized by law, by certified or registered mail, return receipt, or in any other manner pre-scribed by law or the rules of the court; and no money judgment may be entered except in compliance with the Florida Rules of Civil Pro-cedure. The prevailing party in the action may also be awarded attorney’s fees and costs.


83.63 Casualty damage.—If the premises are damaged or destroyed other than by the wrongful or negligent acts of the tenant so that the enjoyment of the premises is substantially impaired, the tenant may terminate the rental agreement and immediately vacate the prem-ises. The tenant may vacate the part of the premises rendered unusable by the casualty, in which case the tenant’s liability for rent shall be reduced by the fair rental value of that part of the premises damaged or destroyed. If the rental agreement is terminated, the landlord shall comply with s. 83.49(3).


83.64 Retaliatory conduct.— (1) It is unlawful for a landlord to discrim-

inatorily increase a tenant’s rent or decrease services to a tenant, or to bring or threaten to bring an action for possession or other civil ac-tion, primarily because the landlord is retaliat-ing against the tenant. In order for the tenant to raise the defense of retaliatory conduct, the ten-ant must have acted in good faith. Examples of conduct for which the landlord may not retali-ate include, but are not limited to, situations where:

(a) The tenant has complained to a govern-mental agency charged with responsibility for enforcement of a building, housing, or health code of a suspected violation applicable to the premises;

(b) The tenant has organized, encouraged, or participated in a tenants’ organization;

(c) The tenant has complained to the land-lord pursuant to s. 83.56(1);

(d) The tenant is a servicemember who has terminated a rental agreement pursuant to s. 83.682;

(e) The tenant has paid rent to a condomin-ium, cooperative, or homeowners’ association after demand from the association in order to pay the landlord’s obligation to the association; or

(f) The tenant has exercised his or her rights under local, state, or federal fair housing laws.

(2) Evidence of retaliatory conduct may be raised by the tenant as a defense in any action brought against him or her for possession.

(3) In any event, this section does not ap-ply if the landlord proves that the eviction is for good cause. Examples of good cause include, but are not limited to, good faith actions for nonpayment of rent, violation of the rental agreement or of reasonable rules, or violation of the terms of this chapter.

(4) “Discrimination” under this section means that a tenant is being treated differently as to the rent charged, the services rendered, or the action being taken by the landlord, which shall be a prerequisite to a finding of retaliatory conduct.


83.67 Prohibited practices.— (1) A landlord of any dwelling unit gov-

erned by this part shall not cause, directly or in-directly, the termination or interruption of any utility service furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, elevator, garbage collection, or refrigera-tion, whether or not the utility service is under the control of, or payment is made by, the land-lord.

(2) A landlord of any dwelling unit gov-erned by this part shall not prevent the tenant from gaining reasonable access to the dwelling unit by any means, including, but not limited to, changing the locks or using any bootlock or similar device.

(3) A landlord of any dwelling unit gov-erned by this part shall not discriminate against


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a servicemember in offering a dwelling unit for rent or in any of the terms of the rental agree-ment.

(4) A landlord shall not prohibit a tenant from displaying one portable, removable, cloth or plastic United States flag, not larger than 4 and 1/2 feet by 6 feet, in a respectful manner in or on the dwelling unit regardless of any provi-sion in the rental agreement dealing with flags or decorations. The United States flag shall be displayed in accordance with s. 83.52(6). The landlord is not liable for damages caused by a United States flag displayed by a tenant. Any United States flag may not infringe upon the space rented by any other tenant.

(5) A landlord of any dwelling unit gov-erned by this part shall not remove the outside doors, locks, roof, walls, or windows of the unit except for purposes of maintenance, repair, or replacement; and the landlord shall not remove the tenant’s personal property from the dwell-ing unit unless such action is taken after surren-der, abandonment, recovery of possession of the dwelling unit due to the death of the last re-maining tenant in accordance with s. 83.59(3)(d), or a lawful eviction. If provided in the rental agreement or a written agreement separate from the rental agreement, upon sur-render or abandonment by the tenant, the land-lord is not required to comply with s. 715.104 and is not liable or responsible for storage or disposition of the tenant’s personal property; if provided in the rental agreement, there must be printed or clearly stamped on such rental agree-ment a legend in substantially the following form: BY SIGNING THIS RENTAL AGREE-MENT, THE TENANT AGREES THAT UPON SURRENDER, ABANDONMENT, OR RECOVERY OF POSSESSION OF THE DWELLING UNIT DUE TO THE DEATH OF THE LAST REMAINING TENANT, AS PROVIDED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT

BE LIABLE OR RESPONSIBLE FOR STOR-AGE OR DISPOSITION OF THE TENANT’S PERSONAL PROPERTY. For the purposes of this section, abandonment shall be as set forth in s. 83.59(3)(c).

(6) A landlord who violates any provision of this section shall be liable to the tenant for actual and consequential damages or 3 months’ rent, whichever is greater, and costs, including attorney’s fees. Subsequent or repeated viola-tions that are not contemporaneous with the in-itial violation shall be subject to separate awards of damages.

(7) A violation of this section constitutes irreparable harm for the purposes of injunctive relief.

(8) The remedies provided by this section are not exclusive and do not preclude the tenant from pursuing any other remedy at law or eq-uity that the tenant may have. The remedies provided by this section shall also apply to a servicemember who is a prospective tenant who has been discriminated against under sub-section (3).

History.—s. 3, ch. 87-369; s. 7, ch. 88-379; s. 3, ch. 90-133; s. 3, ch. 96-146; s. 2, ch. 2001-179; s. 2, ch. 2003-30; s. 4, ch. 2003-72; s. 1, ch. 2004-236; s. 2, ch. 2007-136.

83.681 Orders to enjoin violations of this part.—

(1) A landlord who gives notice to a tenant of the landlord’s intent to terminate the tenant’s lease pursuant to s. 83.56(2)(a), due to the ten-ant’s intentional destruction, damage, or mis-use of the landlord’s property may petition the county or circuit court for an injunction prohib-iting the tenant from continuing to violate any of the provisions of that part.

(2) The court shall grant the relief re-quested pursuant to subsection (1) in conform-ity with the principles that govern the granting of injunctive relief from threatened loss or damage in other civil cases.

(3) Evidence of a tenant’s intentional de-struction, damage, or misuse of the landlord’s property in an amount greater than twice the value of money deposited with the landlord pursuant to s. 83.49 or $300, whichever is


24

greater, shall constitute irreparable harm for the purposes of injunctive relief.

History.—s. 8, ch. 93-255; s. 451, ch. 95-147.

83.682 Termination of rental agreement by a servicemember.—

(1) Any servicemember may terminate his or her rental agreement by providing the land-lord with a written notice of termination to be effective on the date stated in the notice that is at least 30 days after the landlord’s receipt of the notice if any of the following criteria are met:

(a) The servicemember is required, pursu-ant to a permanent change of station orders, to move 35 miles or more from the location of the rental premises;

(b) The servicemember is prematurely or involuntarily discharged or released from ac-tive duty or state active duty;

(c) The servicemember is released from active duty or state active duty after having leased the rental premises while on active duty or state active duty status and the rental prem-ises is 35 miles or more from the servicemem-ber’s home of record prior to entering active duty or state active duty;

(d) After entering into a rental agreement, the servicemember receives military orders re-quiring him or her to move into government quarters or the servicemember becomes eligi-ble to live in and opts to move into government quarters;

(e) The servicemember receives temporary duty orders, temporary change of station or-ders, or state active duty orders to an area 35 miles or more from the location of the rental premises, provided such orders are for a period exceeding 60 days; or

(f) The servicemember has leased the property, but prior to taking possession of the rental premises, receives a change of orders to an area that is 35 miles or more from the loca-tion of the rental premises.

(2) The notice to the landlord must be ac-companied by either a copy of the official mil-itary orders or a written verification signed by the servicemember’s commanding officer.

(3) In the event a servicemember dies dur-ing active duty, an adult member of his or her immediate family may terminate the service-member’s rental agreement by providing the landlord with a written notice of termination to be effective on the date stated in the notice that is at least 30 days after the landlord’s receipt of the notice. The notice to the landlord must be accompanied by either a copy of the official military orders showing the servicemember was on active duty or a written verification signed by the servicemember’s commanding officer and a copy of the servicemember’s death certificate.

(4) Upon termination of a rental agreement under this section, the tenant is liable for the rent due under the rental agreement prorated to the effective date of the termination payable at such time as would have otherwise been re-quired by the terms of the rental agreement. The tenant is not liable for any other rent or damages due to the early termination of the ten-ancy as provided for in this section. Notwith-standing any provision of this section to the contrary, if a tenant terminates the rental agree-ment pursuant to this section 14 or more days prior to occupancy, no damages or penalties of any kind will be assessable.

(5) The provisions of this section may not be waived or modified by the agreement of the parties under any circumstances.


83.683. Rental application by a service-member—

(1) If a landlord requires a prospective tenant to complete a rental application before residing in a rental unit, the landlord must complete pro-cessing of a rental application submitted by a prospective tenant who is a servicemember, as defined in s. 250.01, within 7 days after sub-mission and must, within that 7-day period, no-tify the servicemember in writing of an appli-cation approval or denial and, if denied, the rea-son for denial. Absent a timely denial of the rental application, the landlord must lease the rental unit to the servicemember if all other

http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000006&cite=FLSTS250.01&originatingDoc=NB87EFF50263D11E6A320BA0B17C22412&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Document)


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terms of the application and lease are complied with.

(2) If a condominium association, as defined in chapter 718, a cooperative association, as de-fined in chapter 719, or a homeowners’ associ-ation, as defined in chapter 720, requires a pro-spective tenant of a condominium unit, cooper-ative unit, or parcel within the association’s control to complete a rental application before residing in a rental unit or parcel, the associa-tion must complete processing of a rental appli-cation submitted by a prospective tenant who is a servicemember, as defined in s. 250.01, within 7 days after submission and must, within that 7-day period, notify the servicemember in writing of an application approval or denial and, if denied, the reason for denial. Absent a timely denial of the rental application, the as-sociation must allow the unit or parcel owner to lease the rental unit or parcel to the service-member and the landlord must lease the rental unit or parcel to the servicemember if all other terms of the application and lease are complied with.


History.--Added by Laws 2016, c. 2016-242, § 1, eff. July 1, 2016.

http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000006&cite=FLSTS250.01&originatingDoc=NB87EFF50263D11E6A320BA0B17C22412&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Document)

http://www.westlaw.com/Link/Document/FullText?findType=l&pubNum=1077005&cite=UUID(I0AAF1230EA-5A11E58624B-0CE2E1FED9E)&originatingDoc=NB87EFF50263D11E6A320BA0B17C22412&refType=SL&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Document)

APPENDIX: MIGRANT FARMS

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Fla. Stat. §§ 381.008-381.00897 TITLE XXIX PUBLIC HEALTH

CHAPTER 381 PUBLIC HEALTH; GENERAL PROVISIONS381.008 Definitions of terms used in ss. 381.008-381.00897.

381.0081 Permit required to operate a mi-grant labor camp or residential migrant hous-ing; penalties for unlawful establishment or operation; allocation of proceeds.

381.0082 Application for permit to operate migrant labor camp or residential migrant housing.

381.0083 Permit for migrant labor camp or residential migrant housing.

381.0084 Application fees for migrant labor camps and residential migrant housing.

381.0085 Revocation of permit to operate mi-grant labor camp or residential migrant hous-ing.

381.0086 Rules; variances; penalties.

381.0087 Enforcement; citations.

381.0088 Right of entry.

381.00893 Complaints by aggrieved parties.

381.00895 Prohibited acts; application.

381.00896 Nondiscrimination.

381.00897 Access to migrant labor camps and residential migrant housing. Fla. Stat. § 381.008. Definitions of terms used in §§ 381.008-381.00897 As used in §§ 381.008-381.00897, the fol-lowing words and phrases mean: (1) “Common areas”--That portion of a mi-grant labor camp or residential migrant hous-

ing not included within private living quarters and where migrant labor camp or residential mi-grant housing residents generally congregate. (2) “Department”--The Department of Health and its representative county health departments. (3) “Invited guest”--Any person who is invited by a resident to a migrant labor camp or residential mi-grant housing to visit that resident. (4) “Migrant farmworker”--A person who is or has been employed in hand labor operations in planting, cultivating, or harvesting agricultural crops within the last 12 months and who has changed residence for purposes of employment in agriculture within the last 12 months. (5) “Migrant labor camp”--One or more build-ings, structures, barracks, or dormitories, and the land appertaining thereto, constructed, estab-lished, operated, or furnished as an incident of employment as living quarters for seasonal or mi-grant farmworkers whether or not rent is paid or reserved in connection with the use or occupancy of such premises. The term does not include a single-family residence that is occupied by a sin-gle family. (6) “Other authorized visitors”--Any person, other than an invited guest, who is: (a) A federal, state, or county government offi-cial; (b) A physician or other health care provider whose sole purpose is to provide medical care or medical information; (c) A representative of a bona fide religious or-ganization who, during the visit, is engaged in the vocation or occupation of a religious professional or worker such as a minister, priest, or nun; (d) A representative of a nonprofit legal services organization, who must comply with the Code of Professional Conduct of The Florida Bar; or (e) Any other person who provides services for farmworkers which are funded in whole or in part


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by local, state, or federal funds but who does not conduct or attempt to conduct solicita-tions. (7) “Private living quarters”--A building or portion of a building, dormitory, or barracks, including its bathroom facilities, or a similar type of sleeping and bathroom area, which is a home, residence, or sleeping place for a res-ident of a migrant labor camp. The term in-cludes residential migrant housing. (8) “Residential migrant housing”--A build-ing, structure, mobile home, barracks, or dor-mitory, and any combination thereof on adja-cent property which is under the same own-ership, management, or control, and the land appertaining thereto, that is rented or re-served for occupancy by five or more sea-sonal or migrant farmworkers, except: (a) Housing furnished as an incident of em-ployment. (b) A single-family residence or mobile home dwelling unit that is occupied only by a single family and that is not under the same owner-ship, management, or control as other farm-worker housing to which it is adjacent or con-tiguous. (c) A hotel or motel as described in chapter 509, that is furnished for transient occupancy. (d) Any housing owned or operated by a pub-lic housing authority except for housing which is specifically provided for persons whose principal income is derived from agri-culture. (9) “Personal hygiene facilities”--Adequate facilities for providing hot water at a mini-mum of 110 degrees Fahrenheit for bathing and dishwashing purposes, and an adequate and convenient approved supply of potable water available at all times in each migrant labor camp and residential migrant housing for drinking, culinary, bathing, dishwashing, and laundry purposes. (10) “Lighting”--At least one ceiling-type light fixture capable of providing 20 foot-candles of light at a point 30 inches from the floor, and at

least one separate double electric wall outlet in each habitable room in a migrant labor camp or residen-tial migrant housing. (11) “Sewage disposal”--Approved facilities for satisfactory disposal and treatment of human ex-creta and liquid waste. (12) “Garbage disposal”--Watertight receptacles of impervious material which are provided with tight-fitting covers suitable to protect the con-tents from flies, insects, rodents, and other ani-mals. § 381.0081. Permit required to operate a mi-grant labor camp or residential migrant hous-ing; penalties for unlawful establishment or operation; allocation of proceeds (1) MIGRANT LABOR CAMP; PERMIT RE-QUIREMENT.--A person who establishes, main-tains, or operates a migrant labor camp in this state without first having obtained a permit from the de-partment and who fails to post such permit and keep such permit posted in the camp to which it ap-plies at all times during maintenance or operation of the camp commits a misdemeanor of the first de-gree, punishable as provided in § 775.082 or § 775.083. (2) RESIDENTIAL MIGRANT HOUSING; PERMIT REQUIREMENT.--A person who estab-lishes, maintains, or operates any residential mi-grant housing in this state without first having ob-tained a permit from the department commits a misdemeanor of the first degree, punishable as pro-vided in § 775.082 or § 775.083. (3) RESIDENTIAL MIGRANT HOUSING; HEALTH AND SANITATION.--A person who establishes, maintains, or operates any residential migrant housing or migrant labor camp in this state without providing adequate personal hy-giene facilities, lighting, sewage disposal, and garbage disposal, and without first having ob-tained the required permit from the department, commits a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084. (4) FINE.--The department may impose a fine of up to $1,000 for each violation of this section. If


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the owner of land on which a violation of this section occurs is other than the person com-mitting the violation and the owner knew or should have known upon reasonable inquiry that this section was being violated on the land, the fine may be applied against such owner. In determining the amount of the fine to be imposed, the department shall consider any corrective actions taken by the violator and any previous violations. (5) SEIZURE.-- (a) In addition to other penalties provided by this section, the buildings, personal property, and land used in connection with a felony vi-olation of this section may be seized and for-feited pursuant to the Contraband Forfeiture Act. (b) After satisfying any liens on the property, the remaining proceeds from the sale of the property seized under this section shall be al-located as follows if the department partici-pated in the inspection or investigation lead-ing to seizure and forfeiture under this sec-tion: 1. One-third of the proceeds shall be allocated to the law enforcement agency involved in the seizure, to be used as provided in § 932.7055. 2. One-third of the proceeds shall be allocated to the department, to be used for purposes of enforcing the provisions of this section. 3. One-third of the proceeds shall be depos-ited in the State Apartment Incentive Loan Fund, to be used for the purpose of providing funds to sponsors who provide housing for farmworkers. (c) After satisfying any liens on the property, the remaining proceeds from the sale of the property seized under this section shall be al-located equally between the law enforcement agency involved in the seizure and the State Apartment Incentive Loan Fund if the depart-ment did not participate in the inspection or investigation leading to seizure and forfei-ture.

§ 381.0082. Application for permit to operate migrant labor camp or residential migrant housing Application for a permit to establish, operate, or maintain a migrant labor camp or residential mi-grant housing must be made to the department in writing on a form and under rules prescribed by the department. The application must state the location of the existing or proposed migrant labor camp or residential migrant housing; the approx-imate number of persons to be accommodated; the probable duration of use, and any other infor-mation the department requires. § 381.0083. Permit for migrant labor camp or residential migrant housing Any person who is planning to construct, enlarge, remodel, use, or occupy a migrant labor camp or residential migrant housing or convert property for use as a migrant labor camp or residential mi-grant housing must give written notice to the de-partment of the intent to do so at least 45 days before beginning such construction, enlarge-ment, or renovation. If the department is satis-fied, after causing an inspection to be made, that the camp or the residential migrant housing meets the minimum standards of construction, sanitation, equipment, and operation required by rules issued under § 381.0086 and that the appli-cant has paid the application fees required by § 381.0084, it shall issue in the name of the de-partment the necessary permit in writing on a form to be prescribed by the department. The permit, unless sooner revoked, shall expire on September 30 next after the date of issuance, and it shall not be transferable. An application for a permit shall be filed with the department 30 days prior to operation. When there is a change in ownership of a currently permitted migrant labor camp or residential migrant housing, the new owner must file an application with the depart-ment at least 15 days before the change. In the case of a facility owned or operated by a public housing authority, an annual satisfactory sanita-tion inspection of the living units by the Farmers Home Administration or the Department of Housing and Urban Development shall substitute


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for the pre-permitting inspection required by the department. § 381.0084. Application fees for migrant labor camps and residential migrant hous-ing (1) Each migrant labor camp operator or owner of residential migrant housing who is subject to § 381.0081 shall pay to the depart-ment the following annual application fees: (a) Camps or residential migrant housing that have capacity for 5 to 50 occupants: $125. (b) Camps or residential migrant housing that have capacity for 51 to 100 occupants: $225. (c) Camps or residential migrant housing that have capacity for 101 or more occupants: $500. (2) The department shall deposit fees col-lected under this section in the County Health Department Trust Fund for use in the migrant labor camp program and shall use those fees solely for actual costs incurred in enforcing §§ 381.008-381.00895. (3) Any existing migrant labor camp or resi-dential migrant housing that is substantially renovated or newly constructed is exempt from the annual application fee described in this section for the next annual permit after the renovations or construction occurred. (4) Any existing migrant labor camp or resi-dential migrant housing that, during any per-mit year, has no major deficiencies cited by the department, no uncorrected deficiencies, and no administrative action taken against it is exempt from the annual application fee de-scribed in this section for the next annual per-mit period. § 381.0085. Revocation of permit to oper-ate migrant labor camp or residential mi-grant housing The department may revoke a permit author-izing the operation of a migrant labor camp or residential migrant housing if it finds the holder has failed to comply with any provi-

sion of this law or any rule adopted hereunder. To reinstate a permit for migrant labor camp or residential migrant housing from which a permit has been revoked, the operator shall submit an-other application with the appropriate fee and sat-isfy the department that he or she is in compli-ance with all applicable rules. § 381.0086. Rules; variances; penalties (1) The department shall adopt rules necessary to protect the health and safety of migrant farm-workers and other migrant labor camp or residen-tial migrant housing occupants, including rules governing field sanitation facilities. These rules must include definitions of terms, a process for plan review of the construction of new, ex-panded, or remodeled camps or residential mi-grant housing, sites, buildings and structures, and standards for personal hygiene facilities, lighting, sewage disposal, safety, minimum living space per occupant, bedding, food equipment, food storage and preparation, insect and rodent con-trol, garbage, heating equipment, water supply, maintenance and operation of the camp, housing, or roads, and such other matters as the depart-ment finds to be appropriate or necessary to pro-tect the life and health of the occupants. Housing operated by a public housing authority is exempt from the provisions of any administrative rule that conflicts with or is more stringent than the federal standards applicable to the housing. (2) Except when prohibited as specified in sub-section (6), an owner or operator may apply for a permanent structural variance from the depart-ment’s rules by filing a written application and paying a fee set by the department, not to exceed $100. This application must: (a) Clearly specify the standard from which the variance is desired. (b) Provide adequate justification that the vari-ance is necessary to obtain a beneficial use of an existing facility and to prevent a practical diffi-culty or unnecessary hardship. (c) Clearly set forth the specific alternative measures that the owner or operator has taken to


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protect the health and safety of occupants and adequately show that the alternative measures have achieved the same result as the standard from which the variance is sought. (3) Any variance granted by the department must be in writing, must state the standard in-volved, and must state as conditions of the variance the specific alternative measures taken to protect the health and safety of the occupants. In denying the request, the depart-ment must provide written notice under §§ 120.569 and 120.57 of the applicant’s right to an administrative hearing to contest the denial within 21 days after the date of re-ceipt of the notice. (4) A person who violates any provision of §§ 381.008-381.00895 or rules adopted un-der such sections is subject either to the pen-alties provided in §§ 381.0012, 381.0025, and 381.0061 or to the penalties provided in § 381.0087. (5) Notwithstanding any other provision of this chapter, any housing that is furnished as a condition of employment so as to subject it to the requirements of the Occupational Health and Safety Act of 1970, 29 U.S.C. § 655, shall only be inspected under the tem-porary labor camp standards at 42 C.F.R. § 1910.142. (6) For the purposes of filing an interstate clearance order with the Department of Eco-nomic Opportunity, if the housing is covered by 20 C.F.R. part 654, subpart E, no perma-nent structural variance referred to in subsec-tion (2) is allowed. § 381.0087. Enforcement; citations (1) Department personnel may issue cita-tions that contain an order of correction or an order to pay a fine, or both, for violations of §§ 381.008-381.00895 or the field sanitation facility rules adopted by the department when a violation of those sections or rules is en-forceable by an administrative or civil rem-edy, or when a violation of those sections or

rules is a misdemeanor of the second degree. A citation issued under this section constitutes a no-tice of proposed agency action. The recipient of a citation for a major deficiency, as defined by rule of the department, will be given a maximum of 48 hours to make satisfactory correction or demonstrate that provisions for correction are satisfactory. (2) Citations must be in writing and must de-scribe the particular nature of the violation, in-cluding specific reference to the provision of stat-ute or rule allegedly violated. Continual or repeat violations of the same requirement will result in the issuance of a citation. (3) The fines imposed by a citation issued by the department may not exceed $500 for each viola-tion. Each day the violation exists constitutes a separate violation for which a citation may be is-sued. (4) The citing official shall inform the recipient, by written notice pursuant to §§ 120.569 and 120.57, of the right to an administrative hearing to contest the citation of the agency within 21 days after the date of receipt of the citation. The citation must contain a conspicuous statement that if the citation recipient fails to pay the fine within the time allowed, or fails to appear to con-test the citation after having requested a hearing, the recipient is deemed to have waived the right to contest the citation and must pay an amount up to the maximum fine or penalty. (5) The department may reduce or waive the fine imposed by the citation. In determining whether to reduce or waive the fine, the department must give due consideration to such factors as the gravity of the violation, the good faith of the per-son who has allegedly committed the violation, and the person’s history of previous violations, including violations for which enforcement ac-tions were taken under this section or other pro-visions of state law. (6) Any person who willfully refuses to sign and accept a citation issued by the department com-mits a misdemeanor of the second degree, pun-ishable as provided in § 775.082 or § 775.083.


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(7) The department shall deposit all fines col-lected under §§ 381.008-381.00895 in the County Health Department Trust Fund for use of the migrant labor camp inspection pro-gram and shall use such fines to improve mi-grant labor camp and residential migrant housing as described in § 381.0086. (8) The provisions of this section are an alter-native means of enforcing §§ 381.008-381.00895 and the field sanitation facility rules. This section does not prohibit the de-partment from enforcing those sections or rules by any other means. However, the agency shall elect to use only the procedure for enforcement under this section or another method of civil or administrative enforce-ment for a single violation. (9) When the department suspects that a law has been violated, it shall notify the entity that enforces the law. § 381.0088. Right of entry The department or its inspectors may enter and inspect migrant labor camps or residen-tial migrant housing at reasonable hours and investigate such facts, conditions, and prac-tices or matters, as are necessary or appropri-ate to determine whether any person has vio-lated any provisions of applicable statutes or rules adopted pursuant thereto by the depart-ment. The right of entry extends to any prem-ises that the department has reason to believe is being established, maintained, or operated as a migrant labor camp or residential mi-grant housing without a permit, but such en-try may not be made without the permission of the owner, person in charge, or resident thereof, unless an inspection warrant is first obtained from the circuit court authorizing the entry. Any application for a permit made under § 381.0082 constitutes permission for, and complete acquiescence in, any entry or inspection of the premises for which the per-mit is sought, to verify the information sub-mitted on or in connection with the applica-tion; to discover, investigate, and determine the existence of any violation of §§ 381.008-

381.00895 or rules adopted thereunder; or to elicit, receive, respond to, and resolve com-plaints. Any current valid permit constitutes un-conditional permission for, and complete acqui-escence in, any entry or inspection of the prem-ises by authorized personnel. The department may from time to time publish the reports of such inspections. § 381.00893. Complaints by aggrieved parties Any person who believes that the housing vio-lates any provision of §§ 381.008-381.00895 or rules adopted thereunder may file a complaint with the department. Upon receipt of the com-plaint, if the department finds there are reasona-ble grounds to believe that a violation exists and that the nature of the alleged violation could pose a serious and immediate threat to public health, the department shall conduct an inspection as soon as practicable. In all other cases where the department finds there are reasonable grounds to believe that a violation exists, the department shall notify the owner and the operator of the housing that a complaint has been received and the nature of the complaint. The department shall also advise the owner and the operator that the alleged violation must be remedied within 3 busi-ness days. The department shall conduct an in-spection as soon as practicable following such 3- day period. The department shall notify the owner or the operator of the housing and the complainant in writing of the results of the in-spection and the action taken. Upon request of the complainant, the department shall conduct the inspection so as to protect the confidentiality of the complainant. The department shall adopt rules by January 1, 1994, to implement this sec-tion. § 381.00895. Prohibited acts; application (1) An owner or operator of housing subject to the provisions of §§ 381.008-381.00897 may not, for the purpose of retaliating against a resident of that housing, discriminatorily terminate or dis-criminatorily modify a tenancy by increasing the resident’s rent; decreasing services to the resi-dent; bringing or threatening to bring against the resident an action for eviction or possession or


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another civil action; refusing to renew the resident’s tenancy; or intimidating, threaten-ing, restraining, coercing, blacklisting, or dis-charging the resident. Examples of conduct for which the owner or operator may not re-taliate include, but are not limited to, situa-tions in which: (a) The resident has complained in good faith, orally or in writing, to the owner or op-erator of the housing, the employer, or any government agency charged with the respon-sibility of enforcing the provisions of §§ 381.008-381.00897. (b) The resident has exercised any legal right provided in this chapter with respect to the housing. (2) A resident who brings an action for or raises a defense of retaliatory conduct must have acted in good faith. (3) This section does not apply if the owner or operator of housing proves that the evic-tion or other action is for good cause, includ-ing, without limitation, a good faith action for nonpayment of rent, a violation of the resi-dent’s rental or employment agreement, a vi-olation of reasonable rules of the owner or operator of the housing or of the employer, or a violation of this chapter or the Florida Res-idential Landlord and Tenant Act. § 381.00896. Nondiscrimination (1) The Legislature declares that it is the pol-icy of this state that each county and munici-pality must permit and encourage the devel-opment and use of a sufficient number and sufficient types of farmworker housing facil-ities to meet local needs. The Legislature fur-ther finds that discriminatory practices that inhibit the development of farmworker hous-ing are a matter of state concern. (2) Any owner or developer of farmworker housing which has qualified for a permit to operate, or who would qualify for a permit based upon plans submitted to the depart-ment, or the residents or intended residents of

such housing may invoke the provisions of this section. (3) A municipality or county may not enact or ad-minister local land use ordinances to prohibit or discriminate against the development and use of farmworker housing facilities because of the oc-cupation, race, sex, color, religion, national origin, or income of the intended residents. (4) This section does not prohibit the imposition of local property taxes, water service and garbage collection fees, normal inspection fees, local bond assessments, or other fees, charges, or as-sessments to which other dwellings of the same type in the same zone are subject. (5) This section does not prohibit a municipality or county from extending preferential treatment to farmworker housing, including, without limi-tation, fee reductions or waivers or changes in ar-chitectural requirements, site development or property line requirements, or vehicle parking re-quirements that reduce the development costs of farmworker housing. § 381.00897. Access to migrant labor camps and residential migrant housing (1) RIGHT OF ACCESS OF INVITED GUEST.--A resident of a migrant labor camp or residential migrant housing may decide who may visit him or her in the resident’s private living quarters. A person may not prohibit or attempt to prohibit an invited guest access to or egress from the private living quarters of the resident who invited the guest by the erection or mainte-nance of any physical barrier, by physical force or violence, by threat of force or violence, or by any verbal order or notice given in any manner. Any invited guest must leave the private living quarters upon the reasonable request of a resident residing within the same private living quarters. (2) RIGHT OF ACCESS OF OTHERS.--Other authorized visitors have a right of access to or egress from the common areas of a migrant labor camp or residential migrant housing as provided in this subsection. A person may not prohibit or attempt to prohibit other visitors access to or egress from the common areas of a migrant labor


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camp or residential migrant housing by the erection or maintenance of any physical bar-rier, by physical force or violence, by threat of force or violence, or by any verbal order or notice given in any manner, except as pro-vided in this section. Owners or operators of migrant labor camps or residential migrant housing may adopt reasonable rules regulat-ing hours of access to housing, if such rules permit at least 4 hours of access each day dur-ing nonworking hours Monday through Sat-urday and between the hours of 12 noon and 8 p.m. on Sunday. Any other authorized vis-itor must leave the private living quarters upon the reasonable request of a person who resides in the same private living quarters. (3) CIVIL ACTION.--Any person prevented from exercising rights guaranteed by this sec-tion may bring an action in the appropriate court of the county in which the alleged in-fringement occurred; and, upon favorable adjudication, the court shall enjoin the en-forcement of any rule, practice, or conduct that operates to deprive the person of such rights. (4) CIVIL LIABILITY.--Other visitors are li-censees, not guests or invitees, for purposes of any premises liability. (5) OTHER RULES.--The housing owner or operator may require invited guests and other visitors to check in before entry and to pre-sent picture identification. Migrant labor camp and residential migrant housing owners or operators may adopt other rules regulating access to a camp only if the rules are reason-ably related to the purpose of promoting the safety, welfare, or security of residents, visi-tors, farmworkers, or the owner’s or opera-tor’s business. (6) POSTING REQUIRED.--Rules relating to access are unenforceable unless they have been conspicuously posted in the migrant la-bor camp or migrant residential housing and a copy has been furnished to the department.

(7) LIMITATIONS.--This section does not cre-ate a general right of solicitation in migrant labor camps or residential migrant housing. This sec-tion does not prohibit the erection or maintenance of a fence around a migrant labor camp or resi-dential migrant housing if one or more unlocked gates or gateways in the fence are provided; nor does this section prohibit posting the land adja-cent to a migrant labor camp or residential mi-grant housing if access to the camp is clearly marked; nor does this section restrict migrant workers residing within the same living quarters from imposing reasonable restrictions on their fellow residents to accommodate reasonable pri-vacy and other concerns of the residents.

APPENDIX: ADVERSE POSSESSION

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Fla. Stat. §§ 95.12-95.231

§ 95.12. Real property actions No action to recover real property or its pos-session shall be maintained unless the person seeking recovery or the person’s ancestor, predecessor, or grantor was seized or pos-sessed of the property within 7 years before the commencement of the action. § 95.13. Real property actions; possession by legal owner presumed In every action to recover real property or its possession, the person establishing legal title to the property shall be presumed to have been possessed of it within the time pre-scribed by law. The occupation of the prop-erty by any other person shall be in subordi-nation to the legal title unless the property was possessed adversely to the legal title for 7 years before the commencement of the ac-tion. § 95.14. Real property actions; limitation upon action founded upon title No cause of action or defense to an action founded on the title to real property, or to rents or service from it, shall be maintained unless: (1) The person prosecuting the action or mak-ing the defense, or under whose title the ac-tion is prosecuted or the defense is made, or the ancestor, predecessor, or grantor of the person, was seized or possessed of the real property within 7 years before commence-ment of the action; or (2) Title to the real property was derived from the United States or the state within 7 years before commencement of the action. The time under this subsection shall not begin to run until the conveyance of the title from the state or the United States.

§ 95.16. Real property actions; adverse possession under color of title (1) When the occupant, or those under whom the occupant claims, entered into possession of real property under a claim of title exclu-sive of any other right, founding the claim on a written instrument as being a conveyance of the property, or on a decree or judgment, and has for 7 years been in continued possession of the property included in the instrument, decree, or judgment, the property is held ad-versely. If the property is divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract. Adverse possession commencing after De-cember 31, 1945, shall not be deemed ad-verse possession under color of title until the instrument upon which the claim of title is founded is recorded in the office of the clerk of the circuit court of the county where the property is located. (2) For the purpose of this section, property is deemed possessed in any of the following cases: (a) When it has been usually cultivated or im-proved. (b) When it has been protected by a substan-tial enclosure. All land protected by the en-closure must be included within the descrip-tion of the property in the written instrument, judgment, or decree. If only a portion of the land protected by the enclosure is included within the description of the property in the written instrument, judgment, or decree, only that portion is deemed possessed. (c) When, although not enclosed, it has been used for the supply of fuel or fencing timber for husbandry or for the ordinary use of the occupant. (d) When a known lot or single farm has been partly improved, the part that has not been


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cleared or enclosed according to the usual custom of the county is to be considered as occupied for the same length of time as the part improved or cultivated. § 95.18. Real property actions; adverse possession without color of title (1) When the possessor has been in actual continued possession of real property for 7 years under a claim of title exclusive of any other right, but not founded on a written in-strument, judgment, or decree, or when those under whom the possessor claims meet these criteria, the property actually possessed is held adversely if the person claiming adverse possession: (a) Paid, subject to s. 197.3335, all outstand-ing taxes and matured installments of special improvement liens levied against the prop-erty by the state, county, and municipality within 1 year after entering into possession; (b) Made a return, as required under subsec-tion (3), of the property by proper legal de-scription to the property appraiser of the county where it is located within 30 days af-ter complying with paragraph (a); and (c) Has subsequently paid, subject to s. 197.3335, all taxes and matured installments of special improvement liens levied against the property by the state, county, and munic-ipality for all remaining years necessary to establish a claim of adverse possession. (2) For the purpose of this section, property is deemed to be possessed if the property has been: (a) Protected by substantial enclosure; or (b) Cultivated, maintained, or improved in a usual manner. (3) A person claiming adverse possession un-der this section must make a return of the property by providing to the property ap-praiser a uniform return on a form provided by the Department of Revenue. The return must include all of the following:

(a) The name and address of the person claiming adverse possession. (b) The date that the person claiming adverse possession entered into possession of the property. (c) A full and complete legal description of the property that is subject to the adverse pos-session claim. (d) A notarized attestation clause that states:

UNDER PENALTY OF PERJURY, I DECLARE THAT I HAVE READ THE FOREGOING RETURN AND THAT THE FACTS STATED IN IT ARE TRUE AND CORRECT. I FURTHER ACKNOWLEDGE THAT THE RE-TURN DOES NOT CREATE ANY IN-TEREST ENFORCEABLE BY LAW IN THE DESCRIBED PROPERTY.

(e) A description of the use of the property by the person claiming adverse possession. (f) A receipt to be completed by the property appraiser. (g) Dates of payment by the possessor of all outstanding taxes and matured installments of special improvement liens levied against the property by the state, county, or munici-pality under paragraph (1)(a). (h) The following notice provision at the top of the first page, printed in at least 12-point uppercase and boldfaced type:

THIS RETURN DOES NOT CREATE ANY INTEREST ENFORCEABLE BY LAW IN THE DESCRIBED PROP-ERTY.

The property appraiser shall refuse to accept a return if it does not comply with this sub-section. The executive director of the Depart-ment of Revenue is authorized, and all condi-tions are deemed met, to adopt emergency rules under ss. 120.536(1) and 120.54(4) for the purpose of implementing this subsection. The emergency rules shall remain in effect


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for 6 months after adoption and may be re-newed during the pendency of procedures to adopt rules addressing the subject of the emergency rules. (4) Upon the submission of a return, the prop-erty appraiser shall: (a) Send, via regular mail, a copy of the return to the owner of record of the property that is subject to the adverse possession claim, as identified by the property appraiser’s records. (b) Inform the owner of record that, under s. 197.3335, any tax payment made by the owner of record before April 1 following the year in which the tax is assessed will have priority over any tax payment made by an ad-verse possessor. (c) Add a notation at the beginning of the first line of the legal description on the tax roll that an adverse possession claim has been submit-ted. (d) Maintain the return in the property ap-praiser’s records. (5)(a) If a person makes a claim of adverse possession under this section against a por-tion of a parcel of property identified by a unique parcel identification number in the property appraiser’s records: 1. The person claiming adverse possession shall include in the return submitted under subsection (3) a full and complete legal de-scription of the property sufficient to enable the property appraiser to identify the portion of the property subject to the adverse posses-sion claim. 2. The property appraiser may refuse to ac-cept the return if the portion of the property subject to the claim cannot be identified by the legal description provided in the return, and the person claiming adverse possession must obtain a survey of the portion of the property subject to the claim in order to sub-mit the return.

(b) Upon submission of the return, the prop-erty appraiser shall follow the procedures un-der subsection (4), and may not create a unique parcel identification number for the portion of property subject to the claim. (c) The property appraiser shall assign a fair and just value to the portion of the property, as provided in s. 193.011, and provide this value to the tax collector to facilitate tax pay-ment under s. 197.3335(3). (6)(a) If a person makes a claim of adverse possession under this section against property to which the property appraiser has not as-signed a parcel identification number: 1. The person claiming adverse possession must include in the return submitted under subsection (3) a full and complete legal de-scription of the property which is sufficient to enable the property appraiser to identify the property subject to the adverse possession claim. 2. The property appraiser may refuse to ac-cept a return if the property subject to the claim cannot be identified by the legal de-scription provided in the return, and the per-son claiming adverse possession must obtain a survey of the property subject to the claim in order to submit the return. (b) Upon submission of the return, the prop-erty appraiser shall: 1. Assign a parcel identification number to the property and assign a fair and just value to the property as provided in s. 193.011; 2. Add a notation at the beginning of the first line of the legal description on the tax roll that an adverse possession claim has been submit-ted; and 3. Maintain the return in the property ap-praiser’s records. (7) A property appraiser must remove the no-tation to the legal description on the tax roll that an adverse possession claim has been submitted and shall remove the return from


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the property appraiser’s records if: (a) The person claiming adverse possession notifies the property appraiser in writing that the adverse possession claim is withdrawn; (b) The owner of record provides a certified copy of a court order, entered after the date the return was submitted to the property ap-praiser, establishing title in the owner of rec-ord; (c) The property appraiser receives a certified copy of a recorded deed, filed after the date of the submission of the return, from the per-son claiming adverse possession to the owner of record transferring title of property along with a legal description describing the same property subject to the adverse possession claim; or (d) The owner of record or the tax collector provides to the property appraiser a receipt demonstrating that the owner of record has paid the annual tax assessment for the prop-erty subject to the adverse possession claim during the period that the person is claiming adverse possession. (8) The property appraiser shall include a clear and obvious notation in the legal de-scription of the parcel information of any public searchable property database main-tained by the property appraiser that an ad-verse possession return has been submitted to the property appraiser for a particular parcel. (9) A person who occupies or attempts to oc-cupy a residential structure solely by claim of adverse possession under this section prior to making a return as required under subsection (3), commits trespass under s. 810.08. (10) A person who occupies or attempts to occupy a residential structure solely by claim of adverse possession under this section and offers the property for lease to another com-mits theft under s. 812.014. § 95.191. Limitations when tax deed holder in possession

When the holder of a tax deed goes into ac-tual possession of the real property described in the tax deed, no action to recover posses-sion of the property shall be maintained by a former owner or other adverse claimant un-less the action commenced is begun within 4 years after the holder of the tax deed has gone into actual possession. When the real prop-erty is adversely possessed by any person, no action shall be brought by the tax deed holder unless the action is begun within 4 years from the date of the deed. § 95.192. Limitation upon acting against tax deeds (1) When a tax deed has been issued to any person under s. 197.552 for 4 years, no action shall be brought by the former owner of the property or any claimant under the former owner. (2) When a tax deed is issued conveying or attempting to convey real property before a patent has been issued thereon by the United States, or before a conveyance by the state, and thereafter a patent by the United States or a conveyance by the state is issued to the per-son to whom the property was assessed or a claimant under him or her, and the tax deed grantee or a claimant under the tax deed grantee has paid the taxes for 4 successive years at any time after the issuance of the pa-tent or conveyance, the patentee, or grantee, and any claimant under the patentee or grantee shall be presumed to have abandoned the property and any right, title, and interest in it. Upon such abandonment, the tax deed grantee and any claimant under the tax deed grantee is the legal owner of the property de-scribed by the tax deed. (3) This statute applies whether the tax deed grantee or any claimant under the tax deed grantee has been in actual possession of the property described in the tax deed or not. If a tax deed has been issued to property in the actual possession of the legal owner and the legal owner or any claimant under him or her


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continues in actual possession 1 year after is-suance of the tax deed and before an action to eject him or her is begun, subsections (1) and (2) shall not apply. § 95.21. Adverse possession against lands purchased at sales made by executors The title of any purchaser, or the purchaser’s assigns, who has held possession for 3 years of any real or personal property purchased at a sale made by an executor, administrator, or guardian shall not be questioned because of any irregularity in the conveyance or any in-sufficiency or irregularity in the court pro-ceedings authorizing the sale, whether juris-dictional or not, nor shall it be questioned be-cause the sale is made without court approval or confirmation or under a will or codicil. The title shall not be questioned at any time by an-yone who has received the money to which he or she was entitled from the sale. This sec-tion shall not bar an action for fraud or an ac-tion against the executor, administrator, or guardian for personal liability to any heir, distributee, or ward. § 95.22. Limitation upon claims by re-maining heirs, when deed made by one or more (1) When any person owning real property or any interest in it dies and a conveyance is made by one or more of the person’s heirs or devisees, purporting to convey, either singly or in the aggregate, the entire interest of the decedent in the property or any part of it, then no person shall claim or recover the property conveyed after 7 years from the date of re-cording the conveyance in the county where the property is located. (2) This section shall not apply to persons whose names appear of record as devisees under the will or as the heirs in proceedings brought to determine their identity in the of-fice of the judge administering the estate of decedent.

§ 95.231. Limitations where deed or will on record (1) Five years after the recording of an instru-ment required to be executed in accordance with s. 689.01; 5 years after the recording of a power of attorney accompanying and used for an instrument required to be executed in accordance with s. 689.01; or 5 years after the probate of a will purporting to convey real property, from which it appears that the per-son owning the property attempted to convey, affect, or devise it, the instrument, power of attorney, or will shall be held to have its pur-ported effect to convey, affect, or devise, the title to the real property of the person signing the instrument, as if there had been no lack of seal or seals, witness or witnesses, defect in acknowledgment or relinquishment of dower, in the absence of fraud, adverse possession, or pending litigation. The instrument is ad-missible in evidence. A power of attorney validated under this subsection shall be valid only for the purpose of effectuating the in-strument with which it was recorded. (2) After 20 years from the recording of a deed or the probate of a will purporting to convey real property, no person shall assert any claim to the property against the claim-ants under the deed or will or their successors in title. (3) This law is cumulative to all laws on the subject matter.


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Return of Real Property in Attempt to Establish Adverse Possession without Color of Ti-tle

UNIVERSITY OF MIAMI Property (C2)

Final Examination



I. EXAM FORMAT & TIMETABLE This is a four-hour closed book exam.

The times shown for the Questions reflect their weight in grading, so it’s important to keep them in mind.

You may answer the Questions in any order you wish. Note the Writing Instructions below.

Question Time (Minutes or Hours) Question I 75 min. / 1 hour, 15 min. Question II (answer any ONE of A, B, C, or D, NOT all four) 60 min. / 1 hour Question III 60 min. / 1 hour Total 195 min. / 3 hours, 15 min

There is an extra 45 minutes, but no separate reading period. Use the extra time as you see fit. There is also a statutory supplement for Questions II(A) and III, being handed out separately.


I sort the exams by Question and grade one Question at a time. I may not be able to identify an answer as yours if you don’t follow the Writing Instructions below:






PROPERTY (C2) QUESTION I OF III Fall 2016 Page 2 of 10

Text of Question I begins on the next page →

Question I (75 minutes)

Handwriting: Please begin your answer in a bluebook marked “Question I,” and write your AGN on the cover of each bluebook. Please skip lines and write on one side of each page. Laptops : Please type “Question I” at the start of your answer.

Assume the following events take place in the hypothetical U.S. state of Cania. Cania generally follows the common law. But it does have the following statutes, both enacted in 1950. If there are other possible statutes or doctrines (including reforms) you’d want to know about because you think they’d be relevant, say what they would be and why they would matter. § 55: The Doctrine of Destructibility of Contingent Remainders is hereby abolished. § 93.640(1):

Every conveyance, deed, land sale contract, mortgage, will, devise, assignment of all or any portion of a seller’s or purchaser’s interest in a land sale contract or other agreement affecting the title of real property which is not recorded as provided by law is void as against any subsequent purchaser in good faith and for a valuable consideration of the same real property, or any portion thereof, whose conveyance, deed, land sale contract, mortgage, will, devise, assignment of all or any portion of a seller’s or purchaser’s interest in a land sale contract or other agreement affecting the title of real property is first filed for record, and as against the heirs and assigns of such subsequent purchaser.

Note: You may find the following diagram and timeline helpful in reading the Question, but they do not have all the facts necessary to answer the Question. s face the true and actual consideration paid for such transfer as provided in Cania § 93.030.

Year Land Transaction or Will Relating to … Events Blackacre Whiteacre

(formerly, eastern end of Blackacre)

Blackacre and Whiteacre

2005 Z O 2010 O A 2011 A O (right to maintain a

suitable driveway across Whiteacre to Whiteacre Street for the benefit of Blackacre)

2013 O B for life, then to my first GC to become a movie star (gift)

1/2016 Gerald video gets > 2 million hits

2/2016 O dies. Will:O =>CLS (all property) 3/15/16 AD 10/2016 B dies; Will: B==>G (all property) 11/2016 Confrontations

over driveway

Whi

teac

rew

Str

eet

Blac

kacr

e S

tree

t Blackacre Whiteacre


Question I continues on the next page →

In 2005, Zelda sold Blackacre to Olivia, a retiree. At the time, Blackacre was a 5-acre parcel with a mansion on the west side of the lot and a cottage on the east side. Blackacre fronted Blackacre Street on the west, and Whiteacre Street on the east. Immediately after buying Blackacre, she recorded the deed and moved into the mansion.

Olivia had two passions: cats and movies. She thought Blackacre would be a great place for her 20 cats. A fanatic movie buff, she spent most of her time watching old movies on cable TV (never Amazon or Netflix, because she had no interest in the Internet and dismissed it as a passing fancy). Watching the movies, she often dreamed that one of her grandchildren would take up acting and become rich and famous.

In 2010, Albert told his good friend Olivia that he was looking for a place to live. Olivia sold the easternmost half-acre of Blackacre to him, where the cottage was located. He moved into the cottage and named his new property “Whiteacre.” He promptly recorded his deed.

A year later, in 2011, the local government put a median strip down the center of Blackacre Street, planted with trees and bushes. The median made it harder to get to Blackacre from Blackacre Street. One day when Olivia was talking to Albert, she mentioned the problem with the median, and he replied, “why don’t you just cross my lot to get to Whiteacre Street? I don’t think that’ll interfere with my use of Whiteacre.” Olivia was delighted with the offer. The next day, Albert gave her a signed deed granting “Olivia, her heirs, successors, and assigns” the “right to maintain a suitable driveway across Whiteacre to Whiteacre Street for the benefit of Blackacre.” Olivia then had a driveway to Whiteacre Street put in from her house through her lot and through Whiteacre. Unfortunately, Olivia was so preoccupied with tending to her beloved but finicky cats that she forgot to record the deed.

In 2013, Olivia decided to move to an assisted living community. Feeling generous, she gave her daughter Beatrice (the mother of Hilda and Gerald) a deed to Blackacre, stating “to Beatrice for life, then to my first grandchild to become a movie star.” Beatrice recorded her deed.

Beatrice moved into Blackacre with her two children. Hilda was a college student majoring in drama. Gerald was 2 years old. Olivia had left the cats at Blackacre for Beatrice to take care of, and it turned out that Gerald really liked cats. Beatrice began posting cute videos of Gerald playing with the cats on YouTube. The videos became increasingly popular, with one scoring 900,000 hits. In early January 2016, when he was 5, Beatrice wrote a very simple story script of 3 pages which Gerald, a precocious child, memorized and then performed together with the cats. This video got over 2 million hits and became the subject of stories in the entertainment sections of the national media.

On February 1, 2016, Olivia died. Her will, which was properly recorded, left “all my proper-ty” to the Cat Lovers Society (CLS).

In late February 2016, Albert also decided to move to an assisted living facility. Ill and some-what desperate, Albert sold Whiteacre to Danielle for cash, at a fourth of its market value. There’d been snow several days before March 1, when Danielle looked at Whiteacre; all of Blackacre and Whiteacre was covered with 16 inches of snow. Beatrice was away with her children that week, and Albert didn’t drive anymore, so the driveway hadn’t been cleared. But the snow had begun to melt sooner over the driveway, so the snow on the driveway was 4 inches lower than the snow elsewhere.

Danielle moved in to Whiteacre right after closing on March 15. She immediately submitted the deed to the clerk of records for filing. Unbeknownst to Danielle, the clerk, who was later fired for incompetence, accidentally shredded it instead.

Shortly after Danielle moved in, she saw Beatrice shoveling snow on the driveway across Whiteacre. Danielle confronted her: “What are you doing on my lot?,” she asked. “Clearing my driveway, what do you think?” replied Beatrice. “I have no idea what you’re talking about,” said Danielle, incensed. “That’s your problem,” replied Beatrice. Danielle was angry and vowed to do something, but she was hugely busy and work and figured she’d take care of it later.


In October 2016 Beatrice was killed when the cats, who had never gotten over Olivia’s abandonment of them, turned on Beatrice en masse. Beatrice’s will left all her property to Ger-ald, since her daughter Hilda had already graduated from college and was now working as a waiter while auditioning for acting roles.

Beatrice’s brother Edgar, who had no children of his own, was immediately made Ger-ald’s legal guardian. As legal guardian, Edgar was entitled under Cania law to exercise full con-trol over all property owned by Gerald (for Gerald’s benefit).

In November 2016, Edgar stopped by Whiteacre to talk to Danielle. “I’m Gerald’s legal guardian,” he told her. “Gerald owns Blackacre now, and I’m managing it for him. I have to make some money for Gerald’s sake,” he went on. “Gerald may be a star on YouTube but I’m not getting that much ad revenue from his videos, at least not yet. So I’m going to turn the man-sion into a bed and breakfast with 10 guest rooms. You may notice the guests driving across the driveway to Whiteacre Street.” Danielle replied, “I still don’t know what this whole driveway business is about. I object to you or anyone else but me using it.”

Just as they got into a heated argument, a stranger stopped by. “I’m the president of the Cat Lovers Society,” he said to Edgar and Danielle. “I wanted to let you know that we own Blackacre now. You and Gerald need to move out of Blackacre now,” he said to Edgar. He went on: “We’re planning to tear down the mansion and build a small cat themed-hotel on Blackacre with 50 rooms. Across Blackacre Street on another parcel we just bought, we’ll have a cat veter-inarian with state-of-the art surgery and chemotherapy for cats. People who take their cats to the vet there for extended treatment can stay in the hotel, though the hotel won’t be restricted to guests with cats being treated at the vet. Anyway, we’ll need to widen the driveway across Whiteacre to give our guests the best access from Whiteacre Street.”

At that point, Hilda turned up, and interrupted them all. “Not so fast, guys. You can’t ig-nore my claim to Blackacre. I’m gonna be a movie star someday.”

__________________________________<>__________________________________ Based on the fact pattern above, please address the following subquestions. (You do not

need to begin each subquestion in a new bluebook or enter a page break between them.) The times roughly indicate their weight in grading. Note also that because all the instruments specifi-cally relevant to ownership claims regarding Blackacre were recorded, you need not address § 93.640(1) in answering subquestions (1) and (2).

(1) (25 minutes) Who has what claims to Blackacre? The CLS? Gerald (with Edgar as his guardian)? Hilda? What arguments would each of them have? What form would their owner-ship of an interest in Blackacre take? How do you think a Cania court would rule? Explain.

(2) (10 minutes) What difference would it make to your analysis of subquestion (1) if Ca-nia had not adopted §55 (the statute abolishing the Doctrine of Destructibility of Contingent Remainders)?

(3) (40 minutes) Is Danielle bound by the easement? Explain, giving arguments on both sides and your own judgment about who has the stronger argument. Next, assuming for the sake of argument that she’s bound and that Gerald owns Blackacre, would Edgar as Gerald’s guard-ian be entitled to follow through with his plans for the driveway that runs across Whiteacre? Ex-plain, giving arguments on both sides and your own judgment about who has the stronger argu-ment. Finally, assuming for the sake of argument that Danielle is bound, but now assuming that the CLS owns Blackacre, would it be entitled to follow through with its plans for the driveway that runs across Whiteacre? Explain, giving arguments on both sides and your own judgment about who has the stronger argument.



(Answer any ONE of Questions II(A), II(B), II(C), or II(D), NOT all four)

Handwriting: Please begin your answer in a new bluebook marked “Question II(A),” “Question II(B),” “Question II(C),” or “Question II(D),” depending on which one you choose to answer. Please write your AGN on the cover of each bluebook. Please skip lines and write on one side of each page. Laptops : Please type “Question II(A),” “Question II(B),” “Question II(C),” or “Ques-tion II(D),” depending on which one you choose to answer, at the start of your answer.


“The law governing involuntary transfers of property interests makes no sense. There are so many cases where it’s just too easy to take property rights away from one person and give them to another. Devel-opers and banks get special breaks. Kelo makes it way too easy for a developer or other private compa-ny to grab someone else’s land – all they have to do is get some local government to do it for them, and voilà: some poor homeowner is left high and dry, all just to satisfy a developer’s greed. The courts also make it way too easy for banks to sell your property in foreclosure. All they have to do is make some minimal, pro forma effort to advertise the sale, and, again, voilà: some friend of the bank manager snaps up your foreclosed home at a cheap price. “But it’s not just developers and banks who get the breaks. If someone doesn’t want a covenant enforced against them, all they have to do is cry, ‘change in conditions,’ and the court won’t enforce it, leaving the property owner who thought she had the benefit of a covenant with nothing. Or if you’re good at fraud or forgery, you can make easy money selling other people’s property and pocketing the sales price. “Given how easy it is in so many areas to take property from A and give it to B, it’s bizarre that in Florida, it’s virtually impossible to gain adverse possession of a border strip, no matter how long the use. Suddenly the law is all absolute about property rights? That makes no sense – especially consider-ing that in some other states, not only can landowners get adverse possession of a border strip and make it part of their property, they can transfer ownership of that border strip along with the rest of the property, even if the deed making the transfer doesn’t include the border strip in the legal description of the land. It’s also bizarre that the Florida statute doesn’t even expressly say it’s making adverse possession of a border strip impossible. Instead, the virtual ban on adverse possession of a border strip is a kind of by-product of the legislature’s overly strict general requirements for adverse possession. “With this one exception about border strips, the law is just too quick to shuffle around property rights. This problem is the result of thinking about property rights as claims to be denied or granted in light of some larger social good. That’s the unfortunate mindset behind this whole ‘cheapest cost avoider’ business. As much as possible, property rights should be treated as absolute, and where exceptions are unavoidable, there should be compensation.” In what respects, if any, do you agree with this statement? In what respects, if any, do you disagree with it? Why? Note: If you’d like to look at the Florida Adverse Possession statute, you’ll find it in the Statutory/Code Appendix.

Questions II(B), II(C) and II(D) are on the following pages→

PROPERTY (C2) QUESTION II OF III Fall 2016 Page 6 of 10


All the members of Cane City’s Commission, as well as the Mayor, were elected last year on a platform of making Cane City the most beautiful and child-friendly city in the state of Cania. On November 1, 2016, Arlene opens up CigarWorld in Cane City, with a huge variety of cigars. CigarWorld is in conformance with all existing zoning requirements when it opens. But to the horror of Cane City officials, it is within a quarter mile of a school and is located next to a city park. Moreover, the building has a 10 foot-long replica of a smoking cigar on the roof (“unbe-lievably tacky,” comments one Commission member).

The Commission quickly enacts an amendment to the zoning code.

• Section 1 prohibits any commercial enterprise within 2,500 feet (about half a mile) of a school or park from selling any tobacco products.

• Section 2 prohibits “unsightly, grotesque and unsuitable adornments to the exterior of structures.”

• Section 3 provides: “Amortization. Any commercial enterprise which would constitute a pre-existing use and would be in conflict with the requirements set forth in this amend-ment has 1 year from the enactment of this amendment to come into compliance with this amendment.”

The amendment goes in effect on December 1, and on December 2 Arlene is notified that CigarWorld is in violation of Sections 1 and 2 of the amendment, with 1 year to conform.

Arlene comes to you for advice. “Can they do this?” she asks. “I can’t not sell tobacco at Cigar-World!! Plus, it’s not like I could legally sell tobacco to minors. And the City doesn’t seem to be going after liquor stores. As for the giant cigar – it really helps draw in customers. Don’t I have any property rights?”

You do some quick research on Cania state law and discover that Article I § 10 of the Cania con-stitution provides, “No person shall be deprived of life, liberty or property without due process of law.” Cania’s Zoning Enabling Act provides that any local zoning ordinance “shall be designed to promote public health, safety, and welfare through appropriate consideration of the general character of the land, buildings, and population, and the conservation of property values.” Fifty years ago, the Cania Supreme Court rejected an argument that it automatically violates the prop-erty rights guaranteed under Cania Constitution Article 1 § 10 to have any zoning scheme at all. It has not had a case on zoning since then, though some recently appointed members of the Court, known for their libertarian and pro-market views, have hinted that they might reconsider that ruling.

What advice would you give Arlene? What do you think the law should be in this area? Consider state law only, and remember that state constitutions can be more protective of property rights than the federal constitution. There is no need to go into federal constitutional law, except as any federal holding may be useful by analogy in interpreting state law. You may also ignore any administrative issues – i.e., such as whether Arlene would have to first seek relief from any board of zoning appeals or the City Commission before seeking judicial relief.

Questions II(C) and II(D) are on the following pages→



“Property law is a nightmare, full of technicalities and paternalism. Easements, covenants and servitudes are a good example of the former. Easements are so arbitrary – why rule out a pre-scriptive easement just because it’s ‘negative’? And the whole requirement that there be ‘privity’ – whatever that is – in order to enforce a covenant or servitude makes no sense. The Rule Against Perpetuities in its classic form is a just another trap for the unwary, which the so-called reforms don’t really address. It would be better just to abolish the Rule, because it doesn’t serve any real purpose. Don’t get me started on fraud versus forgery in deeds. Who can tell the differ-ence? And why bother, anyway? As for relativity of title – please, this isn’t physics. If someone is occupying land illegally, they should just lose any suit to eject them. End of story.

“When property law isn’t being too technical, it’s channeling the worst features of the nanny state. Instead of trying to protect people from their own bad judgment, the law should just set out rules that everyone knows about and can take into account in deciding what to do. This whole idea of unwaivable rights in landlord-tenant law or the warranty of habitability or other areas is paternalistic do-gooding at its worst. The trend away from caveat emptor is bad for the same rea-son, not to mention that adopting a duty to disclose substitutes a muddy set of rules for the crisp clarity of caveat emptor.

“It takes only a moment’s reflection to see that the common theme running throughout most of these problems is that courts are mainly responsible for the doctrines with all technicalities or paternalism. When legislatures take over a matter, making the matter governed by a statute, the result is much better law. Since this is a democracy, it’s better anyway that elected representa-tives, not judges, make the law or change it.”

In what respects, if any, do you agree with this statement? In what respects, if any, do you disa-gree with it? Why?

Question II(D) is on the following page→


Question II(D) (60 minutes)

Assume the following events take place in the hypothetical U.S. state of Cania. Cania generally follows the common law. Jules and Dale, a married couple, take a look at Pat’s house, which is up for sale. Jules has a very serious, possibly fatal, illness, and sleeps best with lots of peace and quiet. When they’re looking at the house, Dale asks Pat if the place is quiet. Pat replies, “Eh, what’s that? I didn’t catch it. Can you speak up?” Jules repeats Dale’s question in a loud voice. “Oh, quiet, you say,” replies Pat. Pointing to the 8 foot hedge running along the back side of the lot, Pat says, “See that hedge? The hedge blocks the view, but behind the hedge, on the other side, is a cemetery. The folks there are pretty quiet.” “That’s great, 'cause we like a really quiet place,” says Jules. They end up buying the house from Pat. The deed conveys title to the house “to Jules and Dale.”

As soon as they move in, Jules and Dale discover that there is indeed a very quiet cemetery be-hind the house. They also discover that the owner of the house next door to them rents that house out through Airbnb for noisy, raucous parties that last all night every weekend. The neighbor across the street tells Jules and Dale, “Yeah, it’s awful. Been going on for a year. The whole neighborhood’s been up in arms about it.”

One Sunday morning, Dale is backing out of the driveway to go to the store. Distracted by a heated cellphone conversation, Dale accidentally hits Kai, one of the guests who’s been spending the weekend next door at the party house. Kai is seriously injured but recovers after a month in the hospital, and now is planning to sue Dale.

Jules and Dale come to you for advice. They ask, “Don’t we have some kind of action against Pat? Not telling us about the party house was pretty dishonest, don’t you think? And we’re wor-ried about Kai’s lawsuit. Please tell us Kai isn’t going to be able to execute against our home to satisfy any damage verdict. We don’t have any liability insurance and our house is our only as-set. By the way, if it helps, we can transfer title to the house to Jules’s child Hayden, from Jules’s first marriage. Hayden doesn’t have any money, so the transfer would be for free. But Hayden is very trustworthy and would let us live here as long as we want.”

What issues of Cania law would you need to research in order to advise Jules and Dale? Explain why and how each issue you identify would matter. What do you think the law should be on these issues? Explain.

PROPERTY (C2) QUESTION III OF III Fall 2016 Page 9 of 10


Handwriting: Please begin your answer in a new bluebook marked “Question III”. Please write your AGN on the cover of each bluebook. Please skip lines and write on one side of each page. Laptops : Please type “Question III” at the start of your answer.

Lorenzo owns a one-bedroom unit on the second floor of an older, two-story condomini-um building in Cane County, Florida. He bought it as an investment, and he regularly rents it out to tenants. It’s the only rental unit he owns. He does worry about overly litigious tenants, based on past experience. “Why can’t people just be reasonable?”, he wonders. He has another pet peeve: water that’s too hot. The unit he owns has its own hot water heater, which Lorenzo installed. As an emergency room doctor and ardent environmentalist, he believes that, if it’s too hot, tap water is a safety hazard and wastes energy. He’s aware of many highly reliable studies that have found that water at 140 degrees can cause a serious burn within three seconds, which is particularly risky for babies and toddlers. The hot water heater he had installed in the unit can supply hot water at a maximum of 130 degrees in an amount of 16 gallons per 3 hours.

On July 25, 2016, Tammy signs a lease to rent the unit for a year beginning August 1. Rent ($1,000/month) is due the first of each month. Among other things, section 33 of the lease states in bold print, “Tenant understands that this unit has a water heater that is capable of sup-plying hot water at a maximum temperature of 130 degrees.” He asks Tammy to put her initials alongside section 33, which she does before signing the lease.

Tammy moves in and is generally satisfied with the apartment. She does remark to a friend, “I really wish the hot water were a little hotter. I think there might’ve been something about it in the lease, but who reads those things?”

In mid-October, as Hurricane Michael approaches South Florida, Lorenzo comes by to in-stall the metal shutters on all the windows. The shutters aren’t easy to install because they’re heavy and have to be attached on the outside while standing on a ladder, but he gets it done.

As soon as the threat of the storm passes, Tammy calls Lorenzo. “Can you get these shut-ters down?” she asks. “Sure,” he replies, “I’ll do it in December, after the end of hurricane sea-son on November 30. It’s too much work putting them up and taking them down more than once in hurricane season.” “It’s so dark with the shutters up,” Tammy says, “and very stuffy. The shutters block the windows from opening. I want some sunlight and fresh air in here!” “You’ll get it in December,” Lorenzo replies. “Or maybe January – what with the holidays and all, December’s always a busy month for me. We’ll see.” “That’s way too long,” she says.

Tammy is unhappy, but too busy at work to do anything about her complaints at first. But on November 21, 2016, she writes a letter to Lorenzo, saying, “You’re violating your obliga-tions as a landlord by not taking the shutters down and by failing to supply me with water that’s sufficiently hot. I’m not paying rent as of December 1 if you don’t fix these problems.” She has the letter hand-delivered to Lorenzo on November 21.

Lorenzo is outraged. He calls Tammy and tells her, “I don’t take well to my tenants hounding me,” he says. “Whatever else you may say about me, I’m a man of good faith. As a landlord, I’m completely consistent about one thing: Whenever my tenant, whoever it happens to be at the time, doesn’t pay rent, I evict. Of course, I wouldn’t do that if I thought I’d in fact violated your rights, but I haven’t. The only thing I’m guilty of was trying to protect you from a hurricane and from scalding water.”

Question III continues on the following page→

PROPERTY (C2) QUESTION III OF III Fall 2016 Page 10 of 10

On December 1, not having received the rent when it’s due, Lorenzo has a letter hand-delivered to Tammy at the apartment. The letter is written pursuant to § 83.56(3), and satisfies all its requirements. It says Tammy owes him $1,000 for the December rent, and demands that she pay him by December 6 (3 days excluding Saturday and Sunday) or else he’ll terminate the lease.

Having received no rent, Lorenzo files an action on December 7, 2016, to recover posses-sion of the unit—i.e., to evict Tammy. Tammy pays the December rent into the court registry and files a defense to the action for possession under § 83.60 saying that Lorenzo has no right to evict her because he violated his duties as the landlord. She also says his lawsuit is retaliato-ry under § 83.64.

You are the law clerk to the judge to whom the case is assigned. He asks you to write a bench memo setting out, analyzing, and evaluating the arguments on both sides. He also asks for your recommendations as to how he should, consistent with the statute, resolve the case.

Write the memo.

Note: The Statutory/Code Appendix has excerpts from the Cane County Housing Code and also has the Florida Residential Landlord Tenant Statute. Note also that while the Question refers to specific sections of the Florida Residential Landlord Tenant Statute, those aren’t the only ones relevant.

End of Examination

Property (C2) Final Exam Professor Schnably December 7, 2016

Statutory/Code Appendix (for Questions II(A) and III) For Question II(A): Fla. Stat. §§ 95.12-95.231 ..................................................................................... 1 For Question III: Cane County Housing Code (Excerpts) ................................................................ 6 Fla. Stat. §§ 83.40-8..682 ...................................................................................... 7

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Fla. Stat. §§ 95.12-95.231 § 95.12. Real property actions No action to recover real property or its pos-session shall be maintained unless the per-son seeking recovery or the person’s ances-tor, predecessor, or grantor was seized or possessed of the property within 7 years be-fore the commencement of the action.

§ 95.13. Real property actions; possession by legal owner presumed In every action to recover real property or its possession, the person establishing legal title to the property shall be presumed to have been possessed of it within the time pre-scribed by law. The occupation of the prop-erty by any other person shall be in subordi-nation to the legal title unless the property was possessed adversely to the legal title for 7 years before the commencement of the action.

§ 95.14. Real property actions; limitation upon action founded upon title No cause of action or defense to an action founded on the title to real property, or to rents or service from it, shall be maintained unless:

(1) The person prosecuting the action or making the defense, or under whose title the action is prosecuted or the defense is made, or the ancestor, predecessor, or grantor of the person, was seized or possessed of the real property within 7 years before com-mencement of the action; or

(2) Title to the real property was derived from the United States or the state within 7 years before commencement of the action. The time under this subsection shall not begin to run until the conveyance of the title from the state or the United States.

§ 95.16. Real property actions; adverse possession under color of title (1) When the occupant, or those under whom the occupant claims, entered into pos-session of real property under a claim of title exclusive of any other right, founding the claim on a written instrument as being a conveyance of the property, or on a decree or judgment, and has for 7 years been in continued possession of the property includ-ed in the instrument, decree, or judgment, the property is held adversely. If the proper-ty is divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract. Adverse posses-sion commencing after December 31, 1945, shall not be deemed adverse possession un-der color of title until the instrument upon which the claim of title is founded is record-ed in the office of the clerk of the circuit court of the county where the property is located.

(2) For the purpose of this section, property is deemed possessed in any of the following cases:

(a) When it has been usually cultivated or improved.

(b) When it has been protected by a substan-tial enclosure. All land protected by the en-closure must be included within the descrip-tion of the property in the written instru-ment, judgment, or decree. If only a portion of the land protected by the enclosure is in-cluded within the description of the property in the written instrument, judgment, or de-cree, only that portion is deemed possessed.

(c) When, although not enclosed, it has been used for the supply of fuel or fencing timber for husbandry or for the ordinary use of the occupant.

For Question II(A)

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(d) When a known lot or single farm has been partly improved, the part that has not been cleared or enclosed according to the usual custom of the county is to be consid-ered as occupied for the same length of time as the part improved or cultivated.

§ 95.18. Real property actions; adverse possession without color of title (1) When the possessor has been in actual continued possession of real property for 7 years under a claim of title exclusive of any other right, but not founded on a written in-strument, judgment, or decree, or when those under whom the possessor claims meet these criteria, the property actually pos-sessed is held adversely if the person claim-ing adverse possession:

(a) Paid, subject to s. 197.3335, all outstand-ing taxes and matured installments of special improvement liens levied against the proper-ty by the state, county, and municipality within 1 year after entering into possession;

(b) Made a return, as required under subsec-tion (3), of the property by proper legal de-scription to the property appraiser of the county where it is located within 30 days after complying with paragraph (a); and

(c) Has subsequently paid, subject to s. 197.3335, all taxes and matured installments of special improvement liens levied against the property by the state, county, and munic-ipality for all remaining years necessary to establish a claim of adverse possession.

(2) For the purpose of this section, property is deemed to be possessed if the property has been: (a) Protected by substantial enclosure; or (b) Cultivated, maintained, or improved in a usual manner.

(3) A person claiming adverse possession under this section must make a return of the property by providing to the property ap-praiser a uniform return on a form provided

by the Department of Revenue. The return must include all of the following:

(a) The name and address of the person claiming adverse possession.

(b) The date that the person claiming ad-verse possession entered into possession of the property.

(c) A full and complete legal description of the property that is subject to the adverse possession claim.

(d) A notarized attestation clause that states:

UNDER PENALTY OF PERJURY, I DECLARE THAT I HAVE READ THE FOREGOING RETURN AND THAT THE FACTS STATED IN IT ARE TRUE AND CORRECT. I FURTHER ACKNOWLEDGE THAT THE RE-TURN DOES NOT CREATE ANY INTEREST ENFORCEABLE BY LAW IN THE DESCRIBED PROPERTY.

(e) A description of the use of the property by the person claiming adverse possession.

(f) A receipt to be completed by the proper-ty appraiser.

(g) Dates of payment by the possessor of all outstanding taxes and matured installments of special improvement liens levied against the property by the state, county, or munici-pality under paragraph (1)(a).

(h) The following notice provision at the top of the first page, printed in at least 12-point uppercase and boldfaced type:

THIS RETURN DOES NOT CREATE ANY INTEREST ENFORCEABLE BY LAW IN THE DESCRIBED PROPERTY.

The property appraiser shall refuse to accept a return if it does not comply with this sub-section. The executive director of the De-partment of Revenue is authorized, and all conditions are deemed met, to adopt emer-gency rules under ss. 120.536(1) and

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120.54(4) for the purpose of implementing this subsection. The emergency rules shall remain in effect for 6 months after adoption and may be renewed during the pendency of procedures to adopt rules addressing the subject of the emergency rules.

(4) Upon the submission of a return, the property appraiser shall:

(a) Send, via regular mail, a copy of the re-turn to the owner of record of the property that is subject to the adverse possession claim, as identified by the property apprais-er’s records.

(b) Inform the owner of record that, under s. 197.3335, any tax payment made by the owner of record before April 1 following the year in which the tax is assessed will have priority over any tax payment made by an adverse possessor.

(c) Add a notation at the beginning of the first line of the legal description on the tax roll that an adverse possession claim has been submitted.

(d) Maintain the return in the property ap-praiser’s records.

(5)(a) If a person makes a claim of adverse possession under this section against a por-tion of a parcel of property identified by a unique parcel identification number in the property appraiser’s records:

1. The person claiming adverse possession shall include in the return submitted under subsection (3) a full and complete legal de-scription of the property sufficient to enable the property appraiser to identify the portion of the property subject to the adverse pos-session claim.

2. The property appraiser may refuse to ac-cept the return if the portion of the property subject to the claim cannot be identified by the legal description provided in the return, and the person claiming adverse possession must obtain a survey of the portion of the

property subject to the claim in order to submit the return.

(b) Upon submission of the return, the prop-erty appraiser shall follow the procedures under subsection (4), and may not create a unique parcel identification number for the portion of property subject to the claim.

(c) The property appraiser shall assign a fair and just value to the portion of the property, as provided in s. 193.011, and provide this value to the tax collector to facilitate tax payment under s. 197.3335(3).

(6)(a) If a person makes a claim of adverse possession under this section against proper-ty to which the property appraiser has not assigned a parcel identification number:

1. The person claiming adverse possession must include in the return submitted under subsection (3) a full and complete legal de-scription of the property which is sufficient to enable the property appraiser to identify the property subject to the adverse posses-sion claim.

2. The property appraiser may refuse to ac-cept a return if the property subject to the claim cannot be identified by the legal de-scription provided in the return, and the per-son claiming adverse possession must obtain a survey of the property subject to the claim in order to submit the return.

(b) Upon submission of the return, the prop-erty appraiser shall:

1. Assign a parcel identification number to the property and assign a fair and just value to the property as provided in s. 193.011;

2. Add a notation at the beginning of the first line of the legal description on the tax roll that an adverse possession claim has been submitted; and

3. Maintain the return in the property ap-praiser’s records.

(7) A property appraiser must remove the

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notation to the legal description on the tax roll that an adverse possession claim has been submitted and shall remove the return from the property appraiser’s records if:

(a) The person claiming adverse possession notifies the property appraiser in writing that the adverse possession claim is withdrawn;

(b) The owner of record provides a certified copy of a court order, entered after the date the return was submitted to the property ap-praiser, establishing title in the owner of record;

(c) The property appraiser receives a certi-fied copy of a recorded deed, filed after the date of the submission of the return, from the person claiming adverse possession to the owner of record transferring title of property along with a legal description de-scribing the same property subject to the ad-verse possession claim; or

(d) The owner of record or the tax collector provides to the property appraiser a receipt demonstrating that the owner of record has paid the annual tax assessment for the prop-erty subject to the adverse possession claim during the period that the person is claiming adverse possession.

(8) The property appraiser shall include a clear and obvious notation in the legal de-scription of the parcel information of any public searchable property database main-tained by the property appraiser that an ad-verse possession return has been submitted to the property appraiser for a particular par-cel.

(9) A person who occupies or attempts to occupy a residential structure solely by claim of adverse possession under this sec-tion prior to making a return as required un-der subsection (3), commits trespass under s. 810.08.

(10) A person who occupies or attempts to occupy a residential structure solely by

claim of adverse possession under this sec-tion and offers the property for lease to an-other commits theft under s. 812.014.

§ 95.191. Limitations when tax deed holder in possession When the holder of a tax deed goes into ac-tual possession of the real property de-scribed in the tax deed, no action to recover possession of the property shall be main-tained by a former owner or other adverse claimant unless the action commenced is begun within 4 years after the holder of the tax deed has gone into actual possession. When the real property is adversely pos-sessed by any person, no action shall be brought by the tax deed holder unless the action is begun within 4 years from the date of the deed.

§ 95.192. Limitation upon acting against tax deeds (1) When a tax deed has been issued to any person under s. 197.552 for 4 years, no ac-tion shall be brought by the former owner of the property or any claimant under the for-mer owner.

(2) When a tax deed is issued conveying or attempting to convey real property before a patent has been issued thereon by the United States, or before a conveyance by the state, and thereafter a patent by the United States or a conveyance by the state is issued to the person to whom the property was assessed or a claimant under him or her, and the tax deed grantee or a claimant under the tax deed grantee has paid the taxes for 4 succes-sive years at any time after the issuance of the patent or conveyance, the patentee, or grantee, and any claimant under the patentee or grantee shall be presumed to have aban-doned the property and any right, title, and interest in it. Upon such abandonment, the tax deed grantee and any claimant under the tax deed grantee is the legal owner of the property described by the tax deed.

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(3) This statute applies whether the tax deed grantee or any claimant under the tax deed grantee has been in actual possession of the property described in the tax deed or not. If a tax deed has been issued to property in the actual possession of the legal owner and the legal owner or any claimant under him or her continues in actual possession 1 year after issuance of the tax deed and before an action to eject him or her is begun, subsec-tions (1) and (2) shall not apply.

§ 95.21. Adverse possession against lands purchased at sales made by executors The title of any purchaser, or the purchaser’s assigns, who has held possession for 3 years of any real or personal property purchased at a sale made by an executor, administrator, or guardian shall not be questioned because of any irregularity in the conveyance or any insufficiency or irregularity in the court pro-ceedings authorizing the sale, whether juris-dictional or not, nor shall it be questioned because the sale is made without court ap-proval or confirmation or under a will or codicil. The title shall not be questioned at any time by anyone who has received the money to which he or she was entitled from the sale. This section shall not bar an action for fraud or an action against the executor, administrator, or guardian for personal lia-bility to any heir, distributee, or ward.

§ 95.22. Limitation upon claims by re-maining heirs, when deed made by one or more (1) When any person owning real property or any interest in it dies and a conveyance is made by one or more of the person’s heirs or devisees, purporting to convey, either singly or in the aggregate, the entire interest of the decedent in the property or any part of it, then no person shall claim or recover the property conveyed after 7 years from the date of recording the conveyance in the county where the property is located.

(2) This section shall not apply to persons whose names appear of record as devisees under the will or as the heirs in proceedings brought to determine their identity in the office of the judge administering the estate of decedent.

§ 95.231. Limitations where deed or will on record (1) Five years after the recording of an in-strument required to be executed in accord-ance with s. 689.01; 5 years after the record-ing of a power of attorney accompanying and used for an instrument required to be executed in accordance with s. 689.01; or 5 years after the probate of a will purporting to convey real property, from which it appears that the person owning the property attempt-ed to convey, affect, or devise it, the instru-ment, power of attorney, or will shall be held to have its purported effect to convey, affect, or devise, the title to the real property of the person signing the instrument, as if there had been no lack of seal or seals, wit-ness or witnesses, defect in acknowledgment or relinquishment of dower, in the absence of fraud, adverse possession, or pending liti-gation. The instrument is admissible in evi-dence. A power of attorney validated under this subsection shall be valid only for the purpose of effectuating the instrument with which it was recorded.

(2) After 20 years from the recording of a deed or the probate of a will purporting to convey real property, no person shall assert any claim to the property against the claim-ants under the deed or will or their succes-sors in title. (3) This law is cumulative to all laws on the subject matter.

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Cane County Housing Code (Excerpts)

§ 17-1. Definitions …

(h) Hot water shall mean water heated by a system capable of supplying one hundred forty (140) degrees Fahrenheit water temperature in the amounts of sixteen (16) gallons per bedroom per three (3) hours.

§ 17-24 Minimum Housing Standards No person shall occupy, or let to another for occupancy, any dwelling or dwelling unit for the purpose of living, sleeping, cooking, or eating therein, which does not comply with the follow-ing requirements:

(1) Every dwelling shall have water heating facilities which are properly installed, maintained in safe and good working condition, and properly connected with the hot water lines and which are capable of heating water to such a temperature as to permit an adequate amount of hot wa-ter to be drawn at every required kitchen sink, lavatory basin, bathtub or shower.

(2) Every room, other than kitchens or bathrooms, shall have at least one (1) window facing directly to the outdoors. The minimum total window area which provides light to each habita-ble room shall be not less than ten (10) percent of the floor area of such room. When light ac-cess to any given window is blocked (other than by moveable curtains, blinds or drapes), such window shall not be included in the required minimum total window area, unless the blockage is temporary, for purposes such as maintenance, repair, or replacement.

(3) Every room shall be ventilated by openable areas equal to fifty (50) percent of the required minimum window area, as set forth in subsection (2) of this section.

For Question III

See next page for start of Landlord Tenant Statute

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Chapter 83. Landlord and Tenant

LANDLORD AND TENANT PART II

RESIDENTIAL TENANCIES §§ 83.40-83.682

83.40 Short title. ............................................................................................................................8 83.41 Application. .........................................................................................................................8 83.42 Exclusions from application of part. ...................................................................................8 83.43 Definitions...........................................................................................................................8 83.44 Obligation of good faith. .....................................................................................................9 83.45 Unconscionable rental agreement or provision...................................................................9 83.46 Rent; duration of tenancies. ..............................................................................................10 83.47 Prohibited provisions in rental agreements. ......................................................................10 83.48 Attorney fees. ....................................................................................................................10 83.49 Deposit money or advance rent; duty of landlord and tenant. ..........................................10 83.50 Disclosure of landlord’s address. ......................................................................................14 83.51 Landlord’s obligation to maintain premises. ....................................................................14 83.52 Tenant’s obligation to maintain dwelling unit. .................................................................15 83.53 Landlord’s access to dwelling unit. ..................................................................................15 83.535 Flotation bedding system; restrictions on use. ................................................................15 83.54 Enforcement of rights and duties; civil action; criminal offenses. ...................................16 83.55 Right of action for damages. .............................................................................................16 83.56 Termination of rental agreement. ......................................................................................16 83.561 Termination of rental agreement upon foreclosure. ..........................................................18 83.57 Termination of tenancy without specific term. .................................................................18 83.575 Termination of tenancy with specific duration. ................................................................19 83.58 Remedies; tenant holding over..........................................................................................19 83.59 Right of action for possession. ..........................................................................................19 83.595 Choice of remedies upon breach or early termination by tenant. .....................................20 83.60 Defenses to action for rent or possession; procedure........................................................20 83.61 Disbursement of funds in registry of court; prompt final hearing. ...................................21 83.62 Restoration of possession to landlord. ..............................................................................21 83.625 Power to award possession and enter money judgment....................................................22 83.63 Casualty damage. ..............................................................................................................22 83.64 Retaliatory conduct. ..........................................................................................................22 83.67 Prohibited practices. ..........................................................................................................23 83.681 Orders to enjoin violations of this part. ..........................................................................24 83.682 Termination of rental agreement by a servicemember. ..................................................24

For Question III(B)

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83.40 Short title.—This part shall be

known as the “Florida Residential Landlord and Tenant Act.”

History.—s. 2, ch. 73-330.


History.—s. 2, ch. 73-330; ss. 2, 20, ch. 82-66.


(1) Residency or detention in a facility, whether public or private, when residence or detention is incidental to the provision of med-ical, geriatric, educational, counseling, reli-gious, or similar services. For residents of a facility licensed under part II of chapter 400, the provisions of s. 400.0255 are the exclusive procedures for all transfers and discharges.


(3) Transient occupancy in a hotel, con-dominium, motel, roominghouse, or similar public lodging, or transient occupancy in a mobile home park.

(4) Occupancy by a holder of a proprie-tary lease in a cooperative apartment.




(1) “Building, housing, and health codes” means any law, ordinance, or governmental regulation concerning health, safety, sanitation or fitness for habitation, or the construction, maintenance, operation, occupancy, use, or appearance, of any dwelling unit.


rented for use as a home, residence, or sleep-ing place by one person or by two or more persons who maintain a common household.


furnished, with or without rent, as an incident

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of employment for use as a home, residence, or sleeping place by one or more persons.




(6) “Rent” means the periodic payments due the landlord from the tenant for occupan-cy under a rental agreement and any other payments due the landlord from the tenant as may be designated as rent in a written rental agreement.

(7) “Rental agreement” means any written agreement, including amendments or addenda, or oral agreement for a duration of less than 1 year, providing for use and occupancy of premises.




(11) “Deposit money” means any money held by the landlord on behalf of the tenant, including, but not limited to, damage deposits, security deposits, advance rent deposit, pet deposit, or any contractual deposit agreed to between landlord and tenant either in writing or orally.

(12) “Security deposits” means any mon-eys held by the landlord as security for the performance of the rental agreement, includ-ing, but not limited to, monetary damage to the landlord caused by the tenant’s breach of lease prior to the expiration thereof.





(17) “Early termination fee” means any charge, fee, or forfeiture that is provided for in a written rental agreement and is assessed to a tenant when a tenant elects to terminate the rental agreement, as provided in the agree-ment, and vacates a dwelling unit before the end of the rental agreement. An early termina-tion fee does not include:

(a) Unpaid rent and other accrued charges through the end of the month in which the landlord retakes possession of the dwelling unit.


(c) Charges associated with a rental agreement settlement, release, buyout, or ac-cord and satisfaction agreement.


83.44 Obligation of good faith.—Every rental agreement or duty within this part im-poses an obligation of good faith in its per-formance or enforcement.

History.—s. 2, ch. 73-330.


(1) If the court as a matter of law finds a rental agreement or any provision of a rental agreement to have been unconscionable at the time it was made, the court may refuse to en-force the rental agreement, enforce the re-mainder of the rental agreement without the unconscionable provision, or so limit the ap-plication of any unconscionable provision as to avoid any unconscionable result.

(2) When it is claimed or appears to the court that the rental agreement or any provi-sion thereof may be unconscionable, the par-ties shall be afforded a reasonable opportunity

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to present evidence as to meaning, relationship of the parties, purpose, and effect to aid the court in making the determination.

History.—s. 2, ch. 73-330.



(2) If the rental agreement contains no provision as to duration of the tenancy, the duration is determined by the periods for which the rent is payable. If the rent is payable weekly, then the tenancy is from week to week; if payable monthly, tenancy is from month to month; if payable quarterly, tenancy is from quarter to quarter; if payable yearly, tenancy is from year to year.

(3) If the dwelling unit is furnished with-out rent as an incident of employment and there is no agreement as to the duration of the tenancy, the duration is determined by the pe-riods for which wages are payable. If wages are payable weekly or more frequently, then the tenancy is from week to week; and if wag-es are payable monthly or no wages are paya-ble, then the tenancy is from month to month. In the event that the employee ceases em-ployment, the employer shall be entitled to rent for the period from the day after the em-ployee ceases employment until the day that the dwelling unit is vacated at a rate equiva-lent to the rate charged for similarly situated residences in the area. This subsection shall not apply to an employee or a resident manag-er of an apartment house or an apartment complex when there is a written agreement to the contrary.





(b) Purports to limit or preclude any lia-bility of the landlord to the tenant or of the tenant to the landlord, arising under law.

(2) If such a void and unenforceable pro-vision is included in a rental agreement en-tered into, extended, or renewed after the ef-fective date of this part and either party suffers actual damages as a result of the inclusion, the aggrieved party may recover those damages sustained after the effective date of this part.

History.—s. 2, ch. 73-330.

83.48 Attorney fees.—In any civil action brought to enforce the provisions of the rental agreement or this part, the party in whose fa-vor a judgment or decree has been rendered may recover reasonable attorney fees and court costs from the nonprevailing party. The right to attorney fees in this section may not be waived in a lease agreement. However, at-torney fees may not be awarded under this section in a claim for personal injury damages based on a breach of duty under s. 83.51.



vanced by a tenant on a rental agreement as security for performance of the rental agree-ment or as advance rent for other than the next immediate rental period, the landlord or the landlord’s agent shall either:

(a) Hold the total amount of such money in a separate non-interest-bearing account in a Florida banking institution for the benefit of the tenant or tenants. The landlord shall not commingle such moneys with any other funds of the landlord or hypothecate, pledge, or in any other way make use of such moneys until such moneys are actually due the landlord;

(b) Hold the total amount of such money in a separate interest-bearing account in a Florida banking institution for the benefit of the tenant or tenants, in which case the tenant shall receive and collect interest in an amount


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of at least 75 percent of the annualized aver-age interest rate payable on such account or interest at the rate of 5 percent per year, sim-ple interest, whichever the landlord elects. The landlord shall not commingle such moneys with any other funds of the landlord or hy-pothecate, pledge, or in any other way make use of such moneys until such moneys are ac-tually due the landlord; or

(c) Post a surety bond, executed by the landlord as principal and a surety company authorized and licensed to do business in the state as surety, with the clerk of the circuit court in the county in which the dwelling unit is located in the total amount of the security deposits and advance rent he or she holds on behalf of the tenants or $50,000, whichever is less. The bond shall be conditioned upon the faithful compliance of the landlord with the provisions of this section and shall run to the Governor for the benefit of any tenant injured by the landlord’s violation of the provisions of this section. In addition to posting the surety bond, the landlord shall pay to the tenant in-terest at the rate of 5 percent per year, simple interest. A landlord, or the landlord’s agent, engaged in the renting of dwelling units in five or more counties, who holds deposit moneys or advance rent and who is otherwise subject to the provisions of this section, may, in lieu of posting a surety bond in each coun-ty, elect to post a surety bond in the form and manner provided in this paragraph with the office of the Secretary of State. The bond shall be in the total amount of the security deposit or advance rent held on behalf of tenants or in the amount of $250,000, whichever is less. The bond shall be conditioned upon the faith-ful compliance of the landlord with the provi-sions of this section and shall run to the Gov-ernor for the benefit of any tenant injured by the landlord’s violation of this section. In ad-dition to posting a surety bond, the landlord shall pay to the tenant interest on the security deposit or advance rent held on behalf of that

tenant at the rate of 5 percent per year simple interest.

(2) The landlord shall, in the lease agree-ment or within 30 days after receipt of ad-vance rent or a security deposit, give written notice to the tenant which includes disclosure of the advance rent or security deposit. Subse-quent to providing such written notice, if the landlord changes the manner or location in which he or she is holding the advance rent or security deposit, he or she must notify the ten-ant within 30 days after the change as provid-ed in paragraphs (a)-(d). The landlord is not required to give new or additional notice sole-ly because the depository has merged with an-other financial institution, changed its name, or transferred ownership to a different finan-cial institution. This subsection does not apply to any landlord who rents fewer than five in-dividual dwelling units. Failure to give this notice is not a defense to the payment of rent when due. The written notice must:

(a) Be given in person or by mail to the tenant.

(b) State the name and address of the de-pository where the advance rent or security deposit is being held or state that the landlord has posted a surety bond as provided by law.


(d) Contain the following disclosure: YOUR LEASE REQUIRES PAYMENT OF CERTAIN DEPOSITS. THE LANDLORD MAY TRANSFER AD-VANCE RENTS TO THE LAND-LORD’S ACCOUNT AS THEY ARE DUE AND WITHOUT NOTICE. WHEN YOU MOVE OUT, YOU MUST GIVE THE LANDLORD YOUR NEW ADDRESS SO THAT THE LAND-LORD CAN SEND YOU NOTICES REGARDING YOUR DEPOSIT. THE LANDLORD MUST MAIL YOU NO-TICE, WITHIN 30 DAYS AFTER YOU MOVE OUT, OF THE LANDLORD’S INTENT TO IMPOSE A CLAIM

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AGAINST THE DEPOSIT. IF YOU DO NOT REPLY TO THE LANDLORD STATING YOUR OBJECTION TO THE CLAIM WITHIN 15 DAYS AF-TER RECEIPT OF THE LANDLORD’S NOTICE, THE LANDLORD WILL COLLECT THE CLAIM AND MUST MAIL YOU THE REMAINING DE-POSIT, IF ANY. IF THE LANDLORD FAILS TO TIME-LY MAIL YOU NOTICE, THE LAND-LORD MUST RETURN THE DEPOSIT BUT MAY LATER FILE A LAWSUIT AGAINST YOU FOR DAMAGES. IF YOU FAIL TO TIMELY OBJECT TO A CLAIM, THE LANDLORD MAY COLLECT FROM THE DEPOSIT, BUT YOU MAY LATER FILE A LAWSUIT CLAIMING A REFUND. YOU SHOULD ATTEMPT TO IN-FORMALLY RESOLVE ANY DIS-PUTE BEFORE FILING A LAWSUIT. GENERALLY, THE PARTY IN WHOSE FAVOR A JUDGMENT IS RENDERED WILL BE AWARDED COSTS AND ATTORNEY FEES PAY-ABLE BY THE LOSING PARTY. THIS DISCLOSURE IS BASIC. PLEASE REFER TO PART II OF CHAPTER 83, FLORIDA STATUTES, TO DETERMINE YOUR LEGAL RIGHTS AND OBLIGATIONS. (3) The landlord or the landlord’s agent


(a) Upon the vacating of the premises for termination of the lease, if the landlord does not intend to impose a claim on the security deposit, the landlord shall have 15 days to re-turn the security deposit together with interest if otherwise required, or the landlord shall have 30 days to give the tenant written notice by certified mail to the tenant’s last known mailing address of his or her intention to im-

pose a claim on the deposit and the reason for imposing the claim. The notice shall contain a statement in substantially the following form:

This is a notice of my intention to impose a claim for damages in the amount of upon your security deposit, due to . It is sent to you as required by s. 83.49(3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you re-ceive this notice or I will be authorized to de-duct my claim from your security deposit. Your objection must be sent to (landlord’s address) . If the landlord fails to give the required notice within the 30-day period, he or she forfeits the right to impose a claim upon the security de-posit and may not seek a setoff against the de-posit but may file an action for damages after return of the deposit.

(b) Unless the tenant objects to the impo-sition of the landlord’s claim or the amount thereof within 15 days after receipt of the landlord’s notice of intention to impose a claim, the landlord may then deduct the amount of his or her claim and shall remit the balance of the deposit to the tenant within 30 days after the date of the notice of intention to impose a claim for damages. The failure of the tenant to make a timely objection does not waive any rights of the tenant to seek damages in a separate action.

(c) If either party institutes an action in a court of competent jurisdiction to adjudicate the party’s right to the security deposit, the prevailing party is entitled to receive his or her court costs plus a reasonable fee for his or her attorney. The court shall advance the cause on the calendar.

(d) Compliance with this section by an individual or business entity authorized to conduct business in this state, including Flori-da-licensed real estate brokers and sales asso-ciates, constitutes compliance with all other relevant Florida Statutes pertaining to security deposits held pursuant to a rental agreement or

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other landlord-tenant relationship. Enforce-ment personnel shall look solely to this section to determine compliance. This section prevails over any conflicting provisions in chapter 475 and in other sections of the Florida Statutes, and shall operate to permit licensed real estate brokers to disburse security deposits and de-posit money without having to comply with the notice and settlement procedures contained in s. 475.25(1)(d).

(4) The provisions of this section do not apply to transient rentals by hotels or motels as defined in chapter 509; nor do they apply in those instances in which the amount of rent or deposit, or both, is regulated by law or by rules or regulations of a public body, includ-ing public housing authorities and federally administered or regulated housing programs including s. 202, s. 221(d)(3) and (4), s. 236, or s. 8 of the National Housing Act, as amend-ed, other than for rent stabilization. With the exception of subsections (3), (5), and (6), this section is not applicable to housing authorities or public housing agencies created pursuant to chapter 421 or other statutes.

(5) Except when otherwise provided by the terms of a written lease, any tenant who vacates or abandons the premises prior to the expiration of the term specified in the written lease, or any tenant who vacates or abandons premises which are the subject of a tenancy from week to week, month to month, quarter to quarter, or year to year, shall give at least 7 days’ written notice by certified mail or per-sonal delivery to the landlord prior to vacating or abandoning the premises which notice shall include the address where the tenant may be reached. Failure to give such notice shall re-lieve the landlord of the notice requirement of paragraph (3)(a) but shall not waive any right the tenant may have to the security deposit or any part of it.

(6) For the purposes of this part, a renew-al of an existing rental agreement shall be considered a new rental agreement, and any

security deposit carried forward shall be con-sidered a new security deposit.

(7) Upon the sale or transfer of title of the rental property from one owner to another, or upon a change in the designated rental agent, any and all security deposits or advance rents being held for the benefit of the tenants shall be transferred to the new owner or agent, to-gether with any earned interest and with an accurate accounting showing the amounts to be credited to each tenant account. Upon the transfer of such funds and records to the new owner or agent, and upon transmittal of a writ-ten receipt therefor, the transferor is free from the obligation imposed in subsection (1) to hold such moneys on behalf of the tenant. There is a rebuttable presumption that any new owner or agent received the security de-posit from the previous owner or agent; how-ever, this presumption is limited to 1 month’s rent. This subsection does not excuse the land-lord or agent for a violation of other provi-sions of this section while in possession of such deposits.

(8) Any person licensed under the provi-sions of s. 509.241, unless excluded by the provisions of this part, who fails to comply with the provisions of this part shall be subject to a fine or to the suspension or revocation of his or her license by the Division of Hotels and Restaurants of the Department of Busi-ness and Professional Regulation in the man-ner provided in s. 509.261.

(9) In those cases in which interest is re-quired to be paid to the tenant, the landlord shall pay directly to the tenant, or credit against the current month’s rent, the interest due to the tenant at least once annually. How-ever, no interest shall be due a tenant who wrongfully terminates his or her tenancy prior to the end of the rental term.


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1Note.—Section 4, ch. 2013-136, provides that “[t]he Legislature recognizes that landlords may have stocks of preprinted lease forms that comply with the notice requirements of current law. Accordingly, for leases entered into on or before December 31, 2013, a landlord may give notice that contains the disclosure required in the changes made by this act to s. 83.49, Florida Statutes, or the former notice required in s. 83.49, Florida Statutes 2012. In any event, the disclo-sure required by this act is only required for all leases entered into under this part on or after January 1, 2014.”

Note.—Former s. 83.261. 83.50 Disclosure of landlord’s ad-

dress.—In addition to any other disclosure required by law, the landlord, or a person au-thorized to enter into a rental agreement on the landlord’s behalf, shall disclose in writing to the tenant, at or before the commencement of the tenancy, the name and address of the land-lord or a person authorized to receive notices and demands in the landlord’s behalf. The person so authorized to receive notices and demands retains authority until the tenant is notified otherwise. All notices of such names and addresses or changes thereto shall be de-livered to the tenant’s residence or, if speci-fied in writing by the tenant, to any other ad-dress.



(1) The landlord at all times during the tenancy shall:

(a) Comply with the requirements of ap-plicable building, housing, and health codes; or

(b) Where there are no applicable build-ing, housing, or health codes, maintain the roofs, windows, doors, floors, steps, porches, exterior walls, foundations, and all other struc-tural components in good repair and capable of resisting normal forces and loads and the plumbing in reasonable working condition. The landlord, at commencement of the tenan-cy, must ensure that screens are installed in a reasonable condition. Thereafter, the landlord must repair damage to screens once annually, when necessary, until termination of the rental agreement. The landlord is not required to maintain a mo-bile home or other structure owned by the ten-ant. The landlord’s obligations under this sub-

section may be altered or modified in writing with respect to a single-family home or du-plex.


1. The extermination of rats, mice, roach-es, ants, wood-destroying organisms, and bed-bugs. When vacation of the premises is re-quired for such extermination, the landlord is not liable for damages but shall abate the rent. The tenant must temporarily vacate the prem-ises for a period of time not to exceed 4 days, on 7 days’ written notice, if necessary, for ex-termination pursuant to this subparagraph.

2. Locks and keys. 3. The clean and safe condition of com-

mon areas. 4. Garbage removal and outside recepta-



the commencement of the tenancy of a single-family home or duplex, the landlord shall in-stall working smoke detection devices. As used in this paragraph, the term “smoke detec-tion device” means an electrical or battery-operated device which detects visible or invis-ible particles of combustion and which is listed by Underwriters Laboratories, Inc., Fac-tory Mutual Laboratories, Inc., or any other nationally recognized testing laboratory using nationally accepted testing standards.


(d) This subsection shall not apply to a mobile home owned by a tenant.

(e) Nothing contained in this subsection prohibits the landlord from providing in the rental agreement that the tenant is obligated to

15

pay costs or charges for garbage removal, wa-ter, fuel, or utilities.

(3) If the duty imposed by subsection (1) is the same or greater than any duty imposed by subsection (2), the landlord’s duty is de-termined by subsection (1).

(4) The landlord is not responsible to the tenant under this section for conditions created or caused by the negligent or wrongful act or omission of the tenant, a member of the ten-ant’s family, or other person on the premises with the tenant’s consent.



(1) Comply with all obligations imposed upon tenants by applicable provisions of building, housing, and health codes.


(3) Remove from the tenant’s dwelling unit all garbage in a clean and sanitary man-ner.


(5) Use and operate in a reasonable man-ner all electrical, plumbing, sanitary, heating, ventilating, air-conditioning and other facili-ties and appliances, including elevators.


(7) Conduct himself or herself, and re-quire other persons on the premises with his or her consent to conduct themselves, in a man-ner that does not unreasonably disturb the ten-ant’s neighbors or constitute a breach of the peace.

History.—s. 2, ch. 73-330; s. 445, ch. 95-147.


(1) The tenant shall not unreasonably withhold consent to the landlord to enter the dwelling unit from time to time in order to in-spect the premises; make necessary or agreed repairs, decorations, alterations, or improve-ments; supply agreed services; or exhibit the dwelling unit to prospective or actual purchas-ers, mortgagees, tenants, workers, or contrac-tors.

(2) The landlord may enter the dwelling unit at any time for the protection or preserva-tion of the premises. The landlord may enter the dwelling unit upon reasonable notice to the tenant and at a reasonable time for the purpose of repair of the premises. “Reasonable notice” for the purpose of repair is notice given at least 12 hours prior to the entry, and reasona-ble time for the purpose of repair shall be be-tween the hours of 7:30 a.m. and 8:00 p.m. The landlord may enter the dwelling unit when necessary for the further purposes set forth in subsection (1) under any of the fol-lowing circumstances:



ises for a period of time equal to one-half the time for periodic rental payments. If the rent is current and the tenant notifies the landlord of an intended absence, then the landlord may enter only with the consent of the tenant or for the protection or preservation of the premises.



83.535 Flotation bedding system; re-strictions on use.—No landlord may prohibit a tenant from using a flotation bedding system in a dwelling unit, provided the flotation bed-ding system does not violate applicable build-ing codes. The tenant shall be required to car-ry in the tenant’s name flotation insurance as is standard in the industry in an amount deemed reasonable to protect the tenant and

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owner against personal injury and property damage to the dwelling units. In any case, the policy shall carry a loss payable clause to the owner of the building.

History.—s. 7, ch. 82-66; s. 5, ch. 93-255.

83.54 Enforcement of rights and duties; civil action; criminal offenses.—Any right or duty declared in this part is enforceable by civil action. A right or duty enforced by civil action under this section does not preclude prosecution for a criminal offense related to the lease or leased property.

History.—s. 2, ch. 73-330; s. 7, ch. 2013-136.

83.55 Right of action for damages.—If either the landlord or the tenant fails to com-ply with the requirements of the rental agree-ment or this part, the aggrieved party may re-cover the damages caused by the noncompli-ance.

History.—s. 2, ch. 73-330.


(1) If the landlord materially fails to com-ply with s. 83.51(1) or material provisions of the rental agreement within 7 days after deliv-ery of written notice by the tenant specifying the noncompliance and indicating the inten-tion of the tenant to terminate the rental agreement by reason thereof, the tenant may terminate the rental agreement. If the failure to comply with s. 83.51(1) or material provisions of the rental agreement is due to causes be-yond the control of the landlord and the land-lord has made and continues to make every reasonable effort to correct the failure to com-ply, the rental agreement may be terminated or altered by the parties, as follows:

(a) If the landlord’s failure to comply ren-ders the dwelling unit untenantable and the tenant vacates, the tenant shall not be liable for rent during the period the dwelling unit remains uninhabitable.

(b) If the landlord’s failure to comply does not render the dwelling unit untenantable and the tenant remains in occupancy, the rent for the period of noncompliance shall be re-

duced by an amount in proportion to the loss of rental value caused by the noncompliance.


(a) If such noncompliance is of a nature that the tenant should not be given an oppor-tunity to cure it or if the noncompliance con-stitutes a subsequent or continuing noncom-pliance within 12 months of a written warning by the landlord of a similar violation, deliver a written notice to the tenant specifying the noncompliance and the landlord’s intent to terminate the rental agreement by reason thereof. Examples of noncompliance which are of a nature that the tenant should not be given an opportunity to cure include, but are not limited to, destruction, damage, or misuse of the landlord’s or other tenants’ property by intentional act or a subsequent or continued unreasonable disturbance. In such event, the landlord may terminate the rental agreement, and the tenant shall have 7 days from the date that the notice is delivered to vacate the prem-ises. The notice shall be in substantially the following form:

You are advised that your lease is terminat-ed effective immediately. You shall have 7 days from the delivery of this letter to vacate the premises. This action is taken be-cause (cite the noncompliance) .

(b) If such noncompliance is of a nature that the tenant should be given an opportunity to cure it, deliver a written notice to the tenant specifying the noncompliance, including a no-tice that, if the noncompliance is not corrected within 7 days from the date that the written notice is delivered, the landlord shall termi-nate the rental agreement by reason thereof. Examples of such noncompliance include, but are not limited to, activities in contravention of the lease or this part such as having or per-mitting unauthorized pets, guests, or vehicles; parking in an unauthorized manner or permit-

17

ting such parking; or failing to keep the prem-ises clean and sanitary. If such noncompliance recurs within 12 months after notice, an evic-tion action may commence without delivering a subsequent notice pursuant to paragraph (a) or this paragraph. The notice shall be in sub-stantially the following form:

You are hereby notified that (cite the non-compliance) . Demand is hereby made that you remedy the noncompliance within 7 days of receipt of this notice or your lease shall be deemed terminated and you shall vacate the premises upon such termination. If this same conduct or conduct of a similar nature is re-peated within 12 months, your tenancy is sub-ject to termination without further warning and without your being given an opportunity to cure the noncompliance.

(3) If the tenant fails to pay rent when due and the default continues for 3 days, excluding Saturday, Sunday, and legal holidays, after delivery of written demand by the landlord for payment of the rent or possession of the prem-ises, the landlord may terminate the rental agreement. Legal holidays for the purpose of this section shall be court-observed holidays only. The 3-day notice shall contain a state-ment in substantially the following form:

You are hereby notified that you are indebt-ed to me in the sum of dollars for the rent and use of the premises (address of leased premises, including county) , Florida, now occupied by you and that I demand payment of the rent or possession of the premises with-in 3 days (excluding Saturday, Sunday, and legal holidays) from the date of delivery of this notice, to wit: on or before the day of , (year) .


(4) The delivery of the written notices re-quired by subsections (1), (2), and (3) shall be by mailing or delivery of a true copy thereof or, if the tenant is absent from the premises, by leaving a copy thereof at the residence. The

notice requirements of subsections (1), (2), and (3) may not be waived in the lease.

(5)(a) If the landlord accepts rent with ac-tual knowledge of a noncompliance by the tenant or accepts performance by the tenant of any other provision of the rental agreement that is at variance with its provisions, or if the tenant pays rent with actual knowledge of a noncompliance by the landlord or accepts per-formance by the landlord of any other provi-sion of the rental agreement that is at variance with its provisions, the landlord or tenant waives his or her right to terminate the rental agreement or to bring a civil action for that noncompliance, but not for any subsequent or continuing noncompliance. However, a land-lord does not waive the right to terminate the rental agreement or to bring a civil action for that noncompliance by accepting partial rent for the period. If partial rent is accepted after posting the notice for nonpayment, the land-lord must:


2. Place the amount of partial rent accept-ed from the tenant in the registry of the court upon filing the action for possession; or


(b) Any tenant who wishes to defend against an action by the landlord for posses-sion of the unit for noncompliance of the rent-al agreement or of relevant statutes must com-ply with s. 83.60(2). The court may not set a date for mediation or trial unless the provi-sions of s. 83.60(2) have been met, but must enter a default judgment for removal of the tenant with a writ of possession to issue im-mediately if the tenant fails to comply with s. 83.60(2).

(c) This subsection does not apply to that portion of rent subsidies received from a local, state, or national government or an agency of local, state, or national government; however,

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waiver will occur if an action has not been in-stituted within 45 days after the landlord ob-tains actual knowledge of the noncompliance.





premises that are the subject of a foreclosure sale, upon issuance of a certificate of title fol-lowing the sale, the purchaser named in the certificate of title takes title to the residential premises subject to the rights of the tenant un-der this section.

(a) The tenant may remain in possession of the premises for 30 days following the date of the purchaser’s delivery of a written 30-day notice of termination.

(b) The tenant is entitled to the protec-tions of s. 83.67.



You are hereby notified that your rental agreement is terminated on the date of delivery of this notice, that your occupancy is terminated 30 days following the date of the delivery of this notice, and that I demand possession of the premises on (date) . If you do not vacate the premises by that date, I will ask the court for an order allowing me to remove you and your be-longings from the premises. You are obligated to pay rent during the 30-day period for any amount that might accrue during that period. Your rent must be delivered to (landlord’s name and address) .


(2) The purchaser at the foreclosure sale may apply to the court for a writ of possession based upon a sworn affidavit that the 30-day notice of termination was delivered to the ten-

ant and the tenant has failed to vacate the premises at the conclusion of the 30-day peri-od. If the court awards a writ of possession, the writ must be served on the tenant. The writ of possession shall be governed by s. 83.62.


ject foreclosure or is the child, spouse, or par-ent of the mortgagor in the subject foreclo-sure.



(4) A purchaser at a foreclosure sale of a residential premises occupied by a tenant does not assume the obligations of a landlord, ex-cept as provided in paragraph (1)(b), unless or until the purchaser assumes an existing rental agreement with the tenant that has not ended or enters into a new rental agreement with the tenant.

History.—s. 1, ch. 2015-96.

83.57 Termination of tenancy without specific term.—A tenancy without a specific duration, as defined in s. 83.46(2) or (3), may be terminated by either party giving written notice in the manner provided in s. 83.56(4), as follows:









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83.575 Termination of tenancy with specific duration.—


(2) A rental agreement with a specific du-ration may provide that if a tenant fails to give the required notice before vacating the prem-ises at the end of the rental agreement, the tenant may be liable for liquidated damages as specified in the rental agreement if the land-lord provides written notice to the tenant spec-ifying the tenant’s obligations under the noti-fication provision contained in the lease and the date the rental agreement is terminated. The landlord must provide such written notice to the tenant within 15 days before the start of the notification period contained in the lease. The written notice shall list all fees, penalties, and other charges applicable to the tenant un-der this subsection.




History.—s. 2, ch. 73-330; s. 10, ch. 2013-136.


and the tenant does not vacate the premises, the landlord may recover possession of the dwelling unit as provided in this section.

(2) A landlord, the landlord’s attorney, or the landlord’s agent, applying for the removal of a tenant, shall file in the county court of the county where the premises are situated a com-plaint describing the dwelling unit and stating the facts that authorize its recovery. A land-lord’s agent is not permitted to take any action other than the initial filing of the complaint, unless the landlord’s agent is an attorney. The landlord is entitled to the summary procedure provided in s. 51.011, and the court shall ad-vance the cause on the calendar.


(a) In an action for possession under sub-section (2) or other civil action in which the issue of right of possession is determined;


(c) When the tenant has abandoned the dwelling unit. In the absence of actual knowledge of abandonment, it shall be pre-sumed that the tenant has abandoned the dwelling unit if he or she is absent from the premises for a period of time equal to one-half the time for periodic rental payments. Howev-er, this presumption does not apply if the rent is current or the tenant has notified the land-lord, in writing, of an intended absence; or

(d) When the last remaining tenant of a dwelling unit is deceased, personal property remains on the premises, rent is unpaid, at least 60 days have elapsed following the date of death, and the landlord has not been noti-fied in writing of the existence of a probate estate or of the name and address of a personal representative. This paragraph does not apply to a dwelling unit used in connection with a federally administered or regulated housing program, including programs under s. 202, s.

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221(d)(3) and (4), s. 236, or s. 8 of the Na-tional Housing Act, as amended.



83.595 Choice of remedies upon breach or early termination by tenant.—If the ten-ant breaches the rental agreement for the dwelling unit and the landlord has obtained a writ of possession, or the tenant has surren-dered possession of the dwelling unit to the landlord, or the tenant has abandoned the dwelling unit, the landlord may:

(1) Treat the rental agreement as termi-nated and retake possession for his or her own account, thereby terminating any further lia-bility of the tenant;

(2) Retake possession of the dwelling unit for the account of the tenant, holding the ten-ant liable for the difference between the rent stipulated to be paid under the rental agree-ment and what the landlord is able to recover from a reletting. If the landlord retakes pos-session, the landlord has a duty to exercise good faith in attempting to relet the premises, and any rent received by the landlord as a re-sult of the reletting must be deducted from the balance of rent due from the tenant. For pur-poses of this subsection, the term “good faith in attempting to relet the premises” means that the landlord uses at least the same efforts to relet the premises as were used in the initial rental or at least the same efforts as the land-lord uses in attempting to rent other similar rental units but does not require the landlord to give a preference in renting the premises over other vacant dwelling units that the land-lord owns or has the responsibility to rent;


(4) Charge liquidated damages, as provid-ed in the rental agreement, or an early termi-nation fee to the tenant if the landlord and ten-ant have agreed to liquidated damages or an early termination fee, if the amount does not exceed 2 months’ rent, and if, in the case of an

early termination fee, the tenant is required to give no more than 60 days’ notice, as provided in the rental agreement, prior to the proposed date of early termination. This remedy is available only if the tenant and the landlord, at the time the rental agreement was made, indi-cated acceptance of liquidated damages or an early termination fee. The tenant must indicate acceptance of liquidated damages or an early termination fee by signing a separate adden-dum to the rental agreement containing a pro-vision in substantially the following form: ☐ I agree, as provided in the rental agree-

ment, to pay $ (an amount that does not ex-ceed 2 months’ rent) as liquidated damages or an early termination fee if I elect to terminate the rental agreement, and the landlord waives the right to seek additional rent beyond the month in which the landlord retakes posses-sion. ☐ I do not agree to liquidated damages or

an early termination fee, and I acknowledge that the landlord may seek damages as provid-ed by law.

(a) In addition to liquidated damages or an early termination fee, the landlord is enti-tled to the rent and other charges accrued through the end of the month in which the landlord retakes possession of the dwelling unit and charges for damages to the dwelling unit.




(1)(a) In an action by the landlord for pos-session of a dwelling unit based upon non-payment of rent or in an action by the landlord under s. 83.55 seeking to recover unpaid rent, the tenant may defend upon the ground of a material noncompliance with s. 83.51(1), or may raise any other defense, whether legal or equitable, that he or she may have, including the defense of retaliatory conduct in accord-

21

ance with s. 83.64. The landlord must be given an opportunity to cure a deficiency in a notice or in the pleadings before dismissal of the ac-tion.

(b) The defense of a material noncompli-ance with s. 83.51(1) may be raised by the tenant if 7 days have elapsed after the delivery of written notice by the tenant to the landlord, specifying the noncompliance and indicating the intention of the tenant not to pay rent by reason thereof. Such notice by the tenant may be given to the landlord, the landlord’s repre-sentative as designated pursuant to s. 83.50, a resident manager, or the person or entity who collects the rent on behalf of the landlord. A material noncompliance with s. 83.51(1) by the landlord is a complete defense to an action for possession based upon nonpayment of rent, and, upon hearing, the court or the jury, as the case may be, shall determine the amount, if any, by which the rent is to be re-duced to reflect the diminution in value of the dwelling unit during the period of noncompli-ance with s. 83.51(1). After consideration of all other relevant issues, the court shall enter appropriate judgment.

(2) In an action by the landlord for pos-session of a dwelling unit, if the tenant inter-poses any defense other than payment, includ-ing, but not limited to, the defense of a defec-tive 3-day notice, the tenant shall pay into the registry of the court the accrued rent as al-leged in the complaint or as determined by the court and the rent that accrues during the pen-dency of the proceeding, when due. The clerk shall notify the tenant of such requirement in the summons. Failure of the tenant to pay the rent into the registry of the court or to file a motion to determine the amount of rent to be paid into the registry within 5 days, excluding Saturdays, Sundays, and legal holidays, after the date of service of process constitutes an absolute waiver of the tenant’s defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant with a writ of possession to issue

without further notice or hearing thereon. If a motion to determine rent is filed, documenta-tion in support of the allegation that the rent as alleged in the complaint is in error is required. Public housing tenants or tenants receiving rent subsidies are required to deposit only that portion of the full rent for which they are re-sponsible pursuant to the federal, state, or lo-cal program in which they are participating.


83.61 Disbursement of funds in registry of court; prompt final hearing.—When the tenant has deposited funds into the registry of the court in accordance with the provisions of s. 83.60(2) and the landlord is in actual danger of loss of the premises or other personal hard-ship resulting from the loss of rental income from the premises, the landlord may apply to the court for disbursement of all or part of the funds or for prompt final hearing. The court shall advance the cause on the calendar. The court, after preliminary hearing, may award all or any portion of the funds on deposit to the landlord or may proceed immediately to a fi-nal resolution of the cause.

History.—s. 2, ch. 73-330; s. 2, ch. 74-146.


(1) In an action for possession, after entry of judgment in favor of the landlord, the clerk shall issue a writ to the sheriff describing the premises and commanding the sheriff to put the landlord in possession after 24 hours’ no-tice conspicuously posted on the premises. Saturdays, Sundays, and legal holidays do not stay the 24-hour notice period.

(2) At the time the sheriff executes the writ of possession or at any time thereafter, the landlord or the landlord’s agent may re-move any personal property found on the premises to or near the property line. Subse-quent to executing the writ of possession, the landlord may request the sheriff to stand by to keep the peace while the landlord changes the locks and removes the personal property from the premises. When such a request is made,

22

the sheriff may charge a reasonable hourly rate, and the person requesting the sheriff to stand by to keep the peace shall be responsible for paying the reasonable hourly rate set by the sheriff. Neither the sheriff nor the landlord or the landlord’s agent shall be liable to the tenant or any other party for the loss, destruc-tion, or damage to the property after it has been removed.


83.625 Power to award possession and enter money judgment.—In an action by the landlord for possession of a dwelling unit based upon nonpayment of rent, if the court finds the rent is due, owing, and unpaid and by reason thereof the landlord is entitled to pos-session of the premises, the court, in addition to awarding possession of the premises to the landlord, shall direct, in an amount which is within its jurisdictional limitations, the entry of a money judgment with costs in favor of the landlord and against the tenant for the amount of money found due, owing, and unpaid by the tenant to the landlord. However, no money judgment shall be entered unless service of process has been effected by personal service or, where authorized by law, by certified or registered mail, return receipt, or in any other manner prescribed by law or the rules of the court; and no money judgment may be entered except in compliance with the Florida Rules of Civil Procedure. The prevailing party in the action may also be awarded attorney’s fees and costs.


83.63 Casualty damage.—If the premis-es are damaged or destroyed other than by the wrongful or negligent acts of the tenant so that the enjoyment of the premises is substantially impaired, the tenant may terminate the rental agreement and immediately vacate the prem-ises. The tenant may vacate the part of the premises rendered unusable by the casualty, in which case the tenant’s liability for rent shall be reduced by the fair rental value of that part of the premises damaged or destroyed. If the

rental agreement is terminated, the landlord shall comply with s. 83.49(3).


83.64 Retaliatory conduct.— (1) It is unlawful for a landlord to dis-

criminatorily increase a tenant’s rent or de-crease services to a tenant, or to bring or threaten to bring an action for possession or other civil action, primarily because the land-lord is retaliating against the tenant. In order for the tenant to raise the defense of retaliatory conduct, the tenant must have acted in good faith. Examples of conduct for which the land-lord may not retaliate include, but are not lim-ited to, situations where:

(a) The tenant has complained to a gov-ernmental agency charged with responsibility for enforcement of a building, housing, or health code of a suspected violation applicable to the premises;




(e) The tenant has paid rent to a condo-minium, cooperative, or homeowners’ asso-ciation after demand from the association in order to pay the landlord’s obligation to the association; or


(2) Evidence of retaliatory conduct may be raised by the tenant as a defense in any ac-tion brought against him or her for possession.

(3) In any event, this section does not ap-ply if the landlord proves that the eviction is for good cause. Examples of good cause in-clude, but are not limited to, good faith actions for nonpayment of rent, violation of the rental agreement or of reasonable rules, or violation of the terms of this chapter.

23




erned by this part shall not cause, directly or indirectly, the termination or interruption of any utility service furnished the tenant, includ-ing, but not limited to, water, heat, light, elec-tricity, gas, elevator, garbage collection, or refrigeration, whether or not the utility service is under the control of, or payment is made by, the landlord.

(2) A landlord of any dwelling unit gov-erned by this part shall not prevent the tenant from gaining reasonable access to the dwell-ing unit by any means, including, but not lim-ited to, changing the locks or using any boot-lock or similar device.

(3) A landlord of any dwelling unit gov-erned by this part shall not discriminate against a servicemember in offering a dwell-ing unit for rent or in any of the terms of the rental agreement.

(4) A landlord shall not prohibit a tenant from displaying one portable, removable, cloth or plastic United States flag, not larger than 4 and 1/2 feet by 6 feet, in a respectful manner in or on the dwelling unit regardless of any provision in the rental agreement deal-ing with flags or decorations. The United States flag shall be displayed in accordance with s. 83.52(6). The landlord is not liable for damages caused by a United States flag dis-played by a tenant. Any United States flag may not infringe upon the space rented by any other tenant.

(5) A landlord of any dwelling unit gov-erned by this part shall not remove the outside doors, locks, roof, walls, or windows of the unit except for purposes of maintenance, re-pair, or replacement; and the landlord shall not

remove the tenant’s personal property from the dwelling unit unless such action is taken after surrender, abandonment, recovery of possession of the dwelling unit due to the death of the last remaining tenant in accord-ance with s. 83.59(3)(d), or a lawful eviction. If provided in the rental agreement or a writ-ten agreement separate from the rental agree-ment, upon surrender or abandonment by the tenant, the landlord is not required to comply with s. 715.104 and is not liable or responsible for storage or disposition of the tenant’s per-sonal property; if provided in the rental agreement, there must be printed or clearly stamped on such rental agreement a legend in substantially the following form: BY SIGNING THIS RENTAL AGREE-MENT, THE TENANT AGREES THAT UPON SURRENDER, ABANDONMENT, OR RECOVERY OF POSSESSION OF THE DWELLING UNIT DUE TO THE DEATH OF THE LAST REMAINING TENANT, AS PROVIDED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT’S PERSONAL PROPERTY. For the purposes of this section, abandonment shall be as set forth in s. 83.59(3)(c).

(6) A landlord who violates any provision of this section shall be liable to the tenant for actual and consequential damages or 3 months’ rent, whichever is greater, and costs, including attorney’s fees. Subsequent or re-peated violations that are not contemporane-ous with the initial violation shall be subject to separate awards of damages.


(8) The remedies provided by this section are not exclusive and do not preclude the ten-ant from pursuing any other remedy at law or equity that the tenant may have. The remedies provided by this section shall also apply to a servicemember who is a prospective tenant

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who has been discriminated against under subsection (3).



(1) A landlord who gives notice to a ten-ant of the landlord’s intent to terminate the tenant’s lease pursuant to s. 83.56(2)(a), due to the tenant’s intentional destruction, damage, or misuse of the landlord’s property may peti-tion the county or circuit court for an injunc-tion prohibiting the tenant from continuing to violate any of the provisions of that part.


(3) Evidence of a tenant’s intentional de-struction, damage, or misuse of the landlord’s property in an amount greater than twice the value of money deposited with the landlord pursuant to s. 83.49 or $300, whichever is greater, shall constitute irreparable harm for the purposes of injunctive relief.

History.—s. 8, ch. 93-255; s. 451, ch. 95-147.

83.682 Termination of rental agree-ment by a servicemember.—




(c) The servicemember is released from active duty or state active duty after having leased the rental premises while on active duty

or state active duty status and the rental prem-ises is 35 miles or more from the servicemem-ber’s home of record prior to entering active duty or state active duty;

(d) After entering into a rental agreement, the servicemember receives military orders requiring him or her to move into government quarters or the servicemember becomes eligi-ble to live in and opts to move into govern-ment quarters;

(e) The servicemember receives tempo-rary duty orders, temporary change of station orders, or state active duty orders to an area 35 miles or more from the location of the rental premises, provided such orders are for a peri-od exceeding 60 days; or



(3) In the event a servicemember dies dur-ing active duty, an adult member of his or her immediate family may terminate the service-member’s rental agreement by providing the landlord with a written notice of termination to be effective on the date stated in the notice that is at least 30 days after the landlord’s re-ceipt of the notice. The notice to the landlord must be accompanied by either a copy of the official military orders showing the service-member was on active duty or a written verifi-cation signed by the servicemember’s com-manding officer and a copy of the service-member’s death certificate.

(4) Upon termination of a rental agree-ment under this section, the tenant is liable for the rent due under the rental agreement prorat-ed to the effective date of the termination pay-able at such time as would have otherwise been required by the terms of the rental agreement. The tenant is not liable for any

25

other rent or damages due to the early termi-nation of the tenancy as provided for in this section. Notwithstanding any provision of this section to the contrary, if a tenant terminates the rental agreement pursuant to this section 14 or more days prior to occupancy, no dam-ages or penalties of any kind will be assessa-ble.



UNIVERSITY OF MIAMI PROFESSOR SCHNABLY SCHOOL OF LAW December 7, 2016

PROPERTY (C2) Final Examination: Answers

Question I

(75 minutes)

Who has what claims to Blackacre?

Beatrice (B) has a life estate in Blackacre. The first of Olivia’s (O) grandchildren to become a movie star has a contingent remainder. It’s a contingent remainder because it refers to an unascer-tained person and follows a life estate. The CLS has a reversion in fee simple in Blackacre because when O wrote her will she left the rest of her property to them, and when her will took effect O’s estate had a reversion following B’s life estate, which would become possessory if the contingent remainder failed to.

Cania has abolished the DDCR (§55). Whether any of O’s grandchildren have a claim to Black-acre depends on whether Cania follows the traditional RAP. If so, any future interest is void if it’s not certain to vest within the death plus 21 years of a person alive at the time the interest is created.

The contingent remainder is void under the traditional RAP. We can’t use B as a measuring life, because it’s possible one of her kids would become a movie star more than 21 years after B dies. The deed says “[O’s] first grandchild.” O’s first grandchild (to become a star) could be a grandchild from any of O’s children, not just B’s, and not only Gerald (G) or Hilda (H). So we can’t use Hilda (H) or Gerald (G) as measuring lives, because B could have another child X right before she dies, and G and H could be run over and killed by Mr. Endo and X might become a movie start 70 years later on a reality TV show about cat murders. In fact there’s no one alive at the time of the grant (2013) we could point to and say, we’ll know within their lifetime or within 21 years of their death whether or not it will vest.

If Cania has reformed the RAP, though, G or H may still be entitled to Blackacre. Cania may have adopted the USRAP which would wait 90 years after the death of B to see if the contin-gent remainder will vest. The wait and see reform would not analyze the interest at its creation but rather view it as time unfolds. Under Cy Pres the Cania court would rewrite the conveyance to con-form to the grantor’s intent, if that helps validate the interest. For example, it could rewrite it to “then to the first of G or H to become a movie star.” Then they could be measuring lives.

If the traditional RAP applies, then CLS would have the best claim to Blackacre (since B is dead and the contingent remainder is invalid). They have O’s reversion and would so have owner-ship in fee simple of Blackacre. If a reformed RAP applied and saved the contingent remainder from being invalid under RAP, then when B died we’d have to ask whether at that point G or H had “become a movie star.” If one of them has, then that one would get Blackacre. If neither has at that point, then the CLS would hold Blackacre in fee simple (through the reversion) – but subject to an executory interest in the first of O’s grandkids to become a movie star.

Is G a movie star? He’s been in a YouTube video with 2 million hits. The entertainment me-dia reported on it. That might make him one. But G is probably not recognized in public as a normal movie star would be. G could be a one-hit wonder and disappear into YouTube history. Plus, people may be reluctant to watch G’s videos in the future knowing that those cats are killers.

It’s really a question of O’s intent. She didn’t like the internet, so maybe YouTube isn’t what she had in mind when she thought about being a movie star. Also, she thought of stars as being “rich and famous.” G isn’t rich. In fact Edgar (E) needs to earn more money to take care of him.

A court should rule for G because he is famous, and it was a movie, even if it was very

Property (C2) Question I of III Fall 2016 Page 2 of 14

short. It may not be exactly what O had in mind, but the language of her deed didn’t put a restriction on the kind of movie or require that the star be rich.

If G isn’t deemed to be a movie star, though, then it would stay with CLS, but so long as ei-ther G or H was alive, they could claim it if they became the first to become a movie star. Who knows what G will do in the future? He might make it in Hollywood. H has a chance, too, because she’s seeking acting roles.

(2) What would happen if Cania had not adopted DDCR?

If Cania did have the DDCR, then we could use B as a measuring life, and even the tradi-tional RAP would not invalidate it. This is because if the DDCR were in effect, the contingent re-mainder would be destroyed if it hadn’t vested in one of her kids (O’s grandchild) by the time she died. That’s why B could be the measuring life: We don’t know if any of her kids would ever be-come a movie star, but since they’d have to do it by the time B died to get Blackacre, we could be certain one way or the other what was going to happen by the time B died.

This means that we would have to decide whether, at B’s death, G really was a movie star. (Clearly H wasn’t, yet.) If the answer is yes (above), then G owns Blackacre in fee simple. If the answer is no, then it goes to CLS in fee simple, and G will never get it (even if he became a movie star later in his life).

(3) Is Danielle (D) bound by the easement?

The easement across Whiteacre seems to be appurtenant to Blackacre because it benefits Blackacre. It makes it possible to get to Whiteacre Street, which is very convenient, because it doesn’t have a median. Appurtenant easements transfer with the title to the dominant estate. So G would get the easement along with Blackacre. And whoever owns the servient estate – Whiteacre – is bound by the easement. That would be Danielle (D). The easement is writing, which is another requirement. And the element of intent for the easement is clearly met even though there was no monetary transfer. Albert offered O the right to cross his lot.

Whether D is bound, though, also depends on the Cania recording statute, which provides for the notice element of easements. According to Cania statute §93.640(1), (a) “Every conveyance … which is not recorded as provided by law” (the 2011 A to O grant of the easement across Whiteacre), (b) “is void against subsequent purchaser in good faith and for valuable consideration” (D (if she’s a BFP), who got Whiteacre in 2016 from A), (c) that is first recorded.

On (a): the 2011 A to O grant wasn’t recorded, because O was tending her cats.

On (b): D is a subsequent purchaser – she got Whiteacre from A. But was D “in good faith”? She’d say yes, because she had no notice of the easement burdening Whiteacre. A never told her about it, and since it was never recorded, she had no constructive or record notice. Plus, when she visited the property, B was away and all of Whiteacre and Blackacre was covered in snow so there was no way she knew about it. G or whoever is the owner of Blackacre will argue, however, that she had a duty to inquire because the snow had begun to melt on the driveway, so it was 4 inches lower. She should have wondered what was going on and asked, and then she would have found out. This may be expecting people to infer a lot from snow levels, though.

Did D purchase for “valuable consideration”? The owner of Blackacre will argue she didn’t because the price was so far below the market value, a quarter of it. D will argue that she paid good money for Whiteacre. It just wasn’t the full market value because A was desperate. Also, if courts say that 25% of market value isn’t enough, then what about 30% or a third? She’d say the courts

Property (C2) Question I of III Fall 2016 Page 3 of 14

shouldn’t get into that kind of line-drawing. She’s right. Even though it may have been less than market value, it was not a gift and she shouldn’t be punished for making a good deal.

A court would probably find that D was a subsequent purchaser in good faith and valuable consideration because she did pay for the property. The legislature probably didn’t want people who get something for free to prevail over earlier purchasers, but she didn’t get it for free. And she should not be punished because O didn’t record.

On (c): Despite this, D may still have a problem. The statute requires that the subsequent purchaser record. While D took the deed to the clerk, it was shredded instead of being indexed. D will argue that this is not her fault and she did everything she was supposed to. D might also say that the statute actually says “first filed for record.” Does that mean, first filed by the grantee so it can be recorded? If so, then she did that. The owner of Blackacre will say that if it’s not in the index it’s not recorded. The court might probably find that D did not record her deed, because she should have gone back to check whether it was recorded properly.

As a result, the common law first-in-time rule will apply, and since the easement convey-ance (A to O) was first, it will prevail and D is bound by the easement.

Would E be entitled to go through with plans for driveway?

The scope of the easement is determined by the original intent of the parties that created the easement. Changes in traffic of the driveway are allowed so long as it does not add a new burden on the servient estate not contemplated in the original grant. D will argue that the easement was intend-ed to benefit only the mansion as a single-family residence, not a commercial use as a hotel. Having up to 10 extra cars using the driveway, is a huge burden for D because she will no longer be able to enjoy her property in peace. She might also say her safety is at risk. The original easement allowed the owners of Blackacre to cross but now there are random people that may cross her property.

E will argue he’s not even widening the driveway; a few more cars won’t make a difference. A 10 room hotel isn’t that big, and the house after all is a mansion, so the idea of10 people or cou-ples being there isn’t that much of a stretch. Besides, the deed says he has “the right to maintain a suitable driveway across Whiteacre ... for the benefit of Blackacre.” If A had intended it to be used by one family, he should’ve explicitly said so in the deed. Instead he granted it for the benefit of Blackacre, and this is benefitting Blackacre through greatly increased income.

D has the stronger argument, because having 10 cars as opposed to one or two is a huge bur-den that would impair the enjoyment of her property.

Is CLS entitled to follow through with their driveway plans?

CLS would argue they have the right to maintain the driveway, and thus, should be allowed to expand it if they please, and use it for the benefit of the hotel guests. D would have three replies. First, there’s no right make the easement wider. That’s literally expanding the easement. A might not have granted the driveway easement across his small lot if he’d known it could be widened.

Second, the burden is a lot greater. Instead of 10 cars, it will be 50 cars plus any cars coming from the vet t using the driveway. D would argue that this is an increased burden to the servient that would severely impair her use and enjoyment. This is her private property, not a public roadway.

Third, CLS can’t use the driveway because they have enlarged the dominant estate. The easement was only meant to benefit Blackacre and will not be able to benefit an added parcel. Cus-tomers of the animal hospital owned by CLS across the street from Blackacre would be allowed to use the driveway, which is prohibited because it is only meant to benefit those living on Blackacre.

Property (C2) Question II of III Fall 2016 Page 4 of 14


I don’t agree that the law governing involuntary transfers of property makes no sense, though it may not be perfect. Eminent domain is necessary for development and can be of eco-nomic benefit to society as a whole. Someone whose property is taken by eminent domain is never left “high and dry” because the constitution requires just compensation (market value). For people with sentimental attachments to property, that may not be enough, but there’s no practical legal test for measuring sentimental value, and anyway the market wouldn’t give it to them.

The taking also has to be for a public purpose, which the Court has interpreted broadly to mean public use. This does largely leave it to local and state governments to decide when it’s appropriate to use eminent domain. In Kelo, it wasn’t an issue of satisfying the developer’s greed but of attempting to lift a city out of a long cycle of recession. The court didn’t see any basis for a special set of extra requirements beyond public use when the property was transferred to a pri-vate developer after eminent domain.

There might be some risk of abuse if developers have undue influence over local gov-ernments. The main alternative to what Kelo held would be O’Connor’s dissent, which would have required that the property taken be blighted or that there be hold-out problems, or that some restrictions be put on what the developer could do with the property once they got it through em-inent domain. That might be useful, but it would also risk courts second-guessing legislative judgments about whether a proposed development is a good idea. And O’Connor’s idea wouldn’t apply when the property isn’t being transferred to another private owner.

It’s also wrong to say banks have it too good. The author thinks property rights should be treated as absolute. But a mortgage is a property right, too, so when banks foreclose they’re pro-tecting their property rights. Banks do have to conduct themselves diligently and in good faith. The good faith standard works well, because damages are the difference between the market val-ue what the bank sold the home for. But where the breach is just by lack of due diligence (e.g., not enough advertising) the “fair value” standard is too lenient – all the bank has to do is sell the house for a price that doesn’t shock the judicial conscience.

It’s not true that if someone doesn’t want a covenant enforced against them, all they have to do is cry “change in conditions.” Some courts will apply that doctrine only if there’s no sub-stantial benefit to the person claiming the benefit of the covenant. If the plaintiff won’t get any substantial benefit from enforcement, the covenant is more like a worthless property right, so why should the court enforce it? It’s a closer question when courts instead weigh the costs of en-forcing the covenant against the benefits of the covenant, because that’s awfully flexible. But covenants can last forever, and the dead hand problem is real, so there needs to be some flexibil-ity.

I disagree with the statement that if you’re good at fraud or forgery, you can make easy money selling other people’s property, pocketing the sales price. Yes, the law does protect a BFP where the seller had earlier obtained the property by fraud, but this rule isn’t to reward a thief, but to punish a careless property owner who doesn’t carefully read what he or she is signing. If a signature is forged, however, the deed is just void. It’s much harder for an owner to stop some thief out there from forging the owner’s signature on a deed than to be careful against falling for a fraud. In either case, moreover, either the original owner or the subsequent purchaser can ob-tain damages in court against the person who committed the forgery. Overall, this seems like a reasonable balance, though the difference between fraud and forgery can be hard to tell.


It is almost impossible to gain adverse possession of a border strip in Florida. Border strip possession is not going to be under color of title. If somehow A fences in part of B’s lot into A’s yard. That strip won’t be described in the deed to A’s lot. The statute requires someone claiming not under color of title to file a form with the property appraiser’s office, pay taxes on the strip, etc. This is unrealistic. It means that even if A has been continuously using a strip of land for 30 years, B could claim it back any time, and A could not transfer that strip over to C when C buys A’s lot. The Florida legislature may not like adverse possession, but this isn’t a case of theft. It’s a case where the border lines ought to be adjusted to reality, but they can’t.

Although there are problems, overall the law does a consistent job in protecting property rights. Thinking about property rights as claims to be denied or granted in light of some larger social good isn’t unfortunate, it’s what property law is about. Leaving all property issues to the market might hinder society’s advancement and individual rights. For example, where uneven bargaining power prevents the parties involved from truly bargaining, it’s the responsibility of society to step in and even out the odds with equitable considerations in mind. This not only promotes fairness, and good-faith dealings, but also forces builders and landlords to abide by a standard they otherwise may not be incentivized to respect. Injurious living conditions hurt so-ciety by causing great harm to individual health and wellbeing, the cost of which is often picked up by the state.

The policy of cheapest-cost-avoider is of great public utility. For example, if a person makes it known to the seller he does not want to live in a home where someone had HIV, and the seller knows the previous owner had HIV; the cheapest cost avoider to avoid any further litiga-tion is for the seller to be upfront. Further, in a duty to disclose state, the courts find that it is the cheapest cost avoider when the seller discloses all material defects in a home, including leaky roofs, mold, etc. Putting all the issues out on the table is much cheaper than the buyer finding out later his property is defective. This policy actually serves as protector of property rights. And it also places the burden on the person most apt to identify and fix the problem, but also protects the many who otherwise may have been vulnerable to abuse. Such social benefits are observed in cases involving buyer/seller, as well as landlord/tenant relationship. In Mianecki, an implied war-ranty of habitability was inferred to protect buyers from defects that would make their house un-inhabitable. In Hilder v. St. Peter, the court also inferred an implied warranty in a case where a tenant was greatly injured by the conditions of her rented apartment.

Finally, I disagree that compensation should be given whenever exceptions to property rights are made, or rights are modified. The law has to change over time. It’s not reasonable for a property owner to think that his rights will always be the same, unchanged. Ultimately, everyone benefits if property law can adjust to modern circumstances.



Arlene might make try to have all zoning declared unconstitutional in Cania. She would say that any zoning scheme arbitrarily restricts property rights, which are protected under Art. I § 10 of the Cania Constitution. Some of the possible aims of zoning, she would argue, are illegiti-mate – like aesthetics. If the aim is illegitimate, then any interference with property rights is arbi-trary and so unconstitutional. But mostly she’d argue that even if there are legitimate aims (like protecting public health, safety, etc.) zoning regulations are always overinclusive or underinclu-sive. For example, this one is underinclusive because it doesn’t prohibit liquor stores near schools, yet isn’t that the same evil as smoking, for youth? When a fundamental right like prop-erty is at stake, the legislation should have a perfect match between ends and means, and zoning regulations never achieve that.

Most likely, the court would reject this broad attack on zoning for the same reasons Eu-clid rejected it as an interpretation of the federal Constitution. Legislatures should have broad discretion to choose their aims, since they’re democratically elected; only a narrow class of aims (like harming minorities) should be held illegitimate. If a majority wants to regulate aesthetics, let them. If the majority doesn’t like those regulations, they can elect new officials who will change the zoning laws. All the courts should require is that the means – the legislative scheme – be rationally related to the end.

Under this standard, clearly sections 1 and 2 of the new zoning provision are constitu-tional. For example, maybe liquor stores aren’t included because the legislature thinks smoking is a bigger problem right now, or that under-age drinking is better enforced through criminal sanctions against sellers.Even if you didn’t agree with that, you wouldn’t have to think elected officials are crazy to want to target smoking in this ordinance. The ban on tobacco stores near schools is at least rationally related to the aim of protecting health.

Even if the ordinance is constitutional, though, is it authorized under Cania’s Zoning En-abling Act (ZEA)? The ZEA authorizes local zoning to “promote public health, safety, and wel-fare … and conservation of property values.” Arlene might argue the statute requires both pro-tection of public health etc. and conserving property values in each case. Section 1 of Cane City’s ordinance isn’t protecting property values. If anything it hurts store owners’ property val-ues by limiting their use. And even if it’s enough just to protect public health, this ordinance isn’t doing that, since it’s already illegal to sell tobacco to kids.

Cane City would also argue that the ZEA is intended to enable zoning, not restrict it, so it shouldn’t be read to allow zoning ordinances only if they protect property rights in every case. Public health should be enough. It would also argue that no law is perfectly enforceable, so they’re protecting public health by adding another layer of protection. This law makes sure kids aren’t near tobacco stores and avoids situations where illegal sales might take place. Also, just having a tobacco shop close to a school may influence children in starting smoking by making them think tobacco shops are normal.

Arlene could also argue that section 2 is beyond the ZEA. If the legislature wanted “aes-thetics” to be a permissible aim, it could have said so, but it didn’t. Some other state ZEA’s do mention aesthetics. She would also argue that even if the ZEA permits aesthetic zoning, section 2 is so vague (what is “unsightly” or “grotesque” or “unsuitable”?) that it violates Cania’s Art. 1 § 10 by being arbitrary. What’s “tacky” to one person is art to another.


Cane City would reply that aesthetics is clearly for the public “welfare.” Beauty makes people feel better. The legislature used a broad standard and the court should respect that. They might have a tougher time on the vagueness point, but their best argument would be that it’s not possible to give a more specific definition of aesthetics. Most people would consider a giant, 10 foot cigar “unsightly.” It may draw customers, but lots of attention-getting things can be ugly.

Arline would also attack Section 3. She would first argue that banning any pre-existing use violates Art. 1 § 10 unless there is full compensation of loss of property value. If complying with section 3 leaves her with less than full compensation it’s unconstitutional. That’s what the Pennsylvania case held. Cane City would reply that zoning needs to be flexible, and cities should have some power to change zoning on pre-existing uses, so long as there’s an adequate adjust-ment period. Pennsylvania holdings aren’t binding on Cania courts.

Arlene would also argue that even if amortization is permitted, section 3 gives too little time to be reasonable. This may be hard to show. In the Pennsylvania case the city gave the bookstore 90 days. A year is probably long enough to get some advertising benefit out of the gi-ant cigar. But even a year might be too short a time to change the business or move, if the econ-omy was bad. And it’s not reasonable to limit the period to a year because she’s not, after all, selling cigars to minors.

Cane City would reply that a year is definitely enough time to change the business. Also, the courts shouldn’t second guess how long the city makes the amortization period, since that involves difficult balancing issues, unless the period is clearly just way too short (like a month or two). That’s not the case here.



I mostly disagree with this statement. It’s very reductive in its interpretation of property law. There may be parts of property law that are just technicalities with no good purpose, but not so many as to make property law a nightmare. And while property law is paternalistic in some ways, it’s not entirely so, and anyway some paternalism can be good. I don’t see any basis for saying that courts create technicalities and paternalism while legislatures make good policy. The record for courts and legislatures is mixed.

Most of the examples of why the law is so full of technicalities are half-truths. It isn’t ar-bitrary to rule out negative prescriptive easements. A prescriptive easement allows someone who has been doing something for a very long period (the statutory period) to continue doing it. The classic example is someone walking across the property of another for many years and then gain-ing that right permanently because the owner was sleeping on her rights. An example of a nega-tive prescriptive easement would be: X owns a house next to Y. X’s house is small and Y can see over the house into the beautiful lake. A negative prescriptive easement would allow for Y to gain the right to look at the lake by preventing X from building any higher even though X was never on notice about Y’s “use.” This would allow Y to gain a right by essentially doing nothing, and without there being any way to put the owner (X) on any sort of notice.

Covenants and servitudes have problems, but the statement is too broad. Privity isn’t re-quired for an equitable servitude. But I agree that where it is required (covenants), it’s antiquat-ed. Why does it matter whether a landowner made the covenant right when he split the property? Why is there a different outcome if two neighbors come together to make an agreement? These questions are what make privity, especially horizontal, very arcane. The lack of horizontal privity prevents a party from getting damages even though the parties intended to be bound. The Re-statement (which is not binding) of property attempts to unite them to make uniform and logical requirements but courts have not adapted to the new system. That makes no sense to me. Courts have a perfect opportunity to become modernized but seem to be reluctant to do so.

RAP is another area where the statement is too broad. The RAP isn’t just a trap for the unwary; it’s an attempt to get rid of the dead hand problem, which is bad from a policy perspec-tive because it puts a clog in title. A lifetime plus 21 years after that lifetime’s death is a gener-ous amount of time to see if an interest will vest or not. Sure, some unwary people may make a mistake and draft a will that is subject to the RAP but that does not mean it’s a “trap.”

Abolishing it would be a big mistake. If it were, a conveyance like “O -> A & her heirs, but if the property ever ceases to be farmed, then to B & his heirs” could tie up land for ages. Suppose 250 years after O’s grant the property is no longer suitable for farming. Whoever owns will forfeit it if they use it for a better use than farming, which makes no sense.

Some reform does make sense, though. Cy Pres allows courts to construe the language to fit the drafter’s intent so that it is not invalid under the RAP. I will concede that the “wait and see” approach isn’t helpful, because it’s not clear how long to wait. The USRAP method is better because it sets the wait and see period at 90 years.

The distinction between fraud versus forgery in deeds isn’t always easy to tell, but it does serve a purpose. When someone blatantly forges someone else’s signature, the innocent party (the one whose signature was forged) had no opportunity to stop the forging. So it should just be void. It’s different where the victim (V) signed a deed out of fraud – at least then, V could’ve


been more careful. That’s why it’s only voidable, and might be valid against a subsequent BFP. V is the cheapest cost avoider; it’s easier for V to be cautious about signing a deed than for the BFP to know somehow that an earlier transaction was fraudulent.

I completely disagree that courts should allow anyone to eject a possessor with a title de-fect. All that will do is lead to a chain of ejections. Person X could sue Y who has a defect in their title and win even though X doesn’t have a valid title either. Then Z could sue X, repeating the same process. It would overrun the court system with schemes to steal title. The ability to eject someone should rest on the strength of the person attempting to eject and claim title, not the person who is currently residing in the property (as seen in Tapscott).

The claims about paternalism are overstated because sometimes it’s good. Not everyone has equal bargaining power and can protect themselves in the market. Making some rights un-waivable in L-T is a must. If the law allowed for waivable rights, there would be the possibility of having low-income neighborhoods without any rights. The “slum-lords” would require the tenants to waive all their rights. Similarly, the builder’s warranty of habitability (WoH) puts the burden of good worksmanship where it belongs – on the one with the greater expertise. Home-buyers often don’t know enough about homes to bargain effectively with the builder over war-ranties. The WoH is also a risk allocation device. To make up for the cost of having to repair some homes through the who, builders will charge somewhat higher prices. This serves the pur-pose of insurance. Each person pays a bit more, and everyone is covered by the WoH.

Rules like caveat emptor (CE) can seem simple. If someone lies, they are responsible. If they did not lie, they are not. However, CE has its own complexities (like, is a partial disclosure a lie?) And clarity does not make it a better system. It seems wrong to say nothing about a major defect in a house you’re selling someone. DTD is a preferred system because it makes home sales transparent and more efficient, which is something society should strive for considering that buying a home is a massive investment. Society wants honest sellers, not shady sellers who do not have to say anything about the problems in the house.

Finally, the statement about courts versus legislatures doesn’t hold up. It is true that the courts have created some doctrines that are quite technical, like the RAP, but statutes can be complex and technical, too, like the way the FL L-T statute gives a right to withhold rent if L violates duties under the housing code (83.51(1) but not under the statute itself (83.52(2). And while democracy is important, courts aren’t entirely undemocratic. Courts are often times in the best position to understand the concerns a society has at a given moment. A court can make a decision on a case that can change a law completely to better serve society. The legislature can do the same thing but drafting statutes and getting them passed takes much longer than it does for a judge to make a ruling.

An example of where the courts make law to provide relief is the Bean case. In the Bean case the court decided that one who enters an installment land contract should earn equity if they are very invested in it. The court provided relief for the injured party by granting him equity in the property, which went against the traditional notion of the contract that there is no equity until it is all paid off. Courts, as demonstrated in Bean, are better able to understand the position and merits of both sides and make a decision that is best in light of policy concerns.

Judges should be able to make and change the law because the legislature can always draft something to clear up the confusion. The judge’s decision does not necessarily stand forev-er and the legislature is perfectly able to change something if it does not agree.



The first question is whether J and D may go after P for not telling them about the noisy house. I would have to research whether Cania follows D2D or caveat emptor (CE).

J and D have their best chance in a D2D state. The first issue is what P knew. P would say she didn’t know about the party house next door. There is some hint that P may have a hear-ing problem, since she didn’t make out D’s question at first. So maybe P didn’t hear how bad the noise is. But J and D would point out that the neighbor said everyone in the neighborhood was up in arms about that house for the last year, and so P likely knew. The second issue is whether P disclosed. Here it’s clear P didn’t.

The third issue is whether the defect was obvious. J and D would say they couldn’t know about noisy neighbors who are only noisy at night. P would say that if they had talked to neigh-bors or just come at night they would’ve seen this defect. Or maybe J and D could have checked Airbnb themselves. J and D might say this was too onerous, but where the knowledge is availa-ble by an internet search why shouldn’t we expect the buyer to check it? Ultimately under D2D this was likely not obvious since a reasonable inspection wouldn’t have revealed it. There’s no point in having D2D if “obvious” is interpreted so broadly as to make it like caveat emptor. Airbnb may not be the service that people use, so how would J and D find out? And not all noisy neighbors are from rentals. It might just be the neighbors.

The fourth issue is whether the defect was material. J and D would argue it is because they wouldn’t have bought the house had they known of the defect. They would argue that they specifically asked if the house was noise because that is a big concern with Jules’ illness. P might first say this alleged defect is not with the house per se. It’s with the neighbor’s house. Only problems with the house per se should be covered. Also, P might claim that what makes it mate-rial to J is his bad health, and P had no way of knowing that. But J and D would reply that the purpose of D2D is to make the seller reveal everything she knows that a reasonable buyer would consider important and bad, and which adversely affects the value. Having an extremely noisy neighbor is one of those things for most people, not just people who are very ill.

The fifth issue would be reliance. I think the court will likely find there was injury in-curred in reliance on the failure to disclose the noise, here because J and D bought a house that was lacking an essential feature – peace and quiet – that they needed for J’s health.

Ultimately under D2D if you know it, disclose it. It costs nothing to reveal a defect, which means the seller is the cheapest cost avoider. I think in a D2D system J and D would have a case against P and their only hurdle would be the knowledge issue, which is a factual question.

If the state is CE, J and D may have a more difficult time. The first issue is whether P made a false statement of fact. P would say no; it’s true that the cemetery is quiet, and P said nothing about no other noisy neighbors. J and D would argue that this was partial disclosure of noise issues, and once the seller partially discloses an issue, he or she has to be make full disclo-sure on it under CE. Likely the court will find that partial disclosure does not save you under CE and you cannot avoid a question by partially disclosing information that may mislead purchasers.

Next we must consider whether P had knowledge that the statement about the cemetery was false or misleading, in effect lying about the noise level from next door. This is the same is-sue as under D2D. The defect that was lied about (the noise from next door) must be material. This would also be the same issue as under D2D. The same is true of the reliance issue.


Under CE I think P will still likely be responsible to J and D because of the partial disclo-sure she gave, which the court will likely find as a lie. I think, though, that courts should use D2D, and find for J and D on that basis. CE was adopted at a time when everyone knew every-one and houses were not as advanced as they are now. It may be unreasonable to expect buyers to ferret out all sorts of defects. Therefore I think there should be a duty to disclose defects the seller knows about. A seller would be the cheapest cost avoider.

Next we must consider what J and D can do to protect their interest in their house in case K wins a lawsuit against D. D is the one who’d be liable, not J and D, since it was D who hit K. But they don’t want K to be able to take D’s interest in the house.

We’d first need to know what kind of ownership J and D have. I would have to research Cania law to see whether it recognizes tenancy by the entirety (TE). If it does, then do J and D have a TE? The deed here only states “to J and D.” But states that have TE usually presume that if the couple is married, as J and D were, the deed gives it to them in TE.

If they have a TE would D’s interest be reachable by K? In many states the answer would be no. The creditor of one spouse can’t reach that spouse’s interest in a TE. It’s a way of protect-ing family properties like a house. So long as J and D are alive and the TE is in effect, K couldn’t get at it. Other states that have TE would allow K to attach D’s survivorship interest. If D out-lives J, then K could use the full value of the house to satisfy the tort judgment.

If Cania doesn’t have TE, then J and D would have either a tenancy in common (TIC) or joint tenancy (JT). Most states today assume a TIC unless the deed makes clear that it’s a JT. Some even require an express reference to survivorship. Here there’s nothing to indicate that in the deed. It would probably be a JT. It doesn’t really matter, though, because whether it’s a JT or TIC, the interest of one tenant can be sold or reached by the creditor of that tenant. K could force the sale of the house and take D’s share, which is probably half.

Should J and D go through with their plan to transfer their ownership to H? It depends on how they own the house. If it’s as JT or TIC, this transfer, for free, would be fraudulent. It would be after D had incurred liability (the accident) and would be an attempt to deprive K of assets he could go after to satisfy any judgment he got. It’d also be fraud if Cania’s one of those states that allow creditors to attach the survivorship interest of the debtor spouse. J and D would be attempt-ing to put an interest beyond K’s reach, after D had injured K and incurred liability.

On the other hand, if Cania is one of the states that say a creditor of one spouse can’t reach assets held in TE, then the transfer wouldn’t be fraudulent. They’d just be changing the ownership form of an asset that K had no right to reach in the first place. And it would be a good idea to make the transfer, because if J dies, D will own the house outright, and K could force the sale of it to satisfy any judgment.

I think the law shouldn’t allow the creditors of either spouse to go after the estate period. Family values are integral to society and this is a way to preserve them. Plus allowing creditors to go after the house could have an impact on children. If their parents lose their house it could have a negative impact on their children’s health, education, and well-being. I think any benefit creditors may claim by an alternate method does not weigh favorably against the interest of fami-ly life, especially children.

The one doubt about this is that J and D had no liability insurance. The whole issue about protecting the family might be resolved if everyone were required to have it. Then people like K who are injured would get compensation from people like D (through D’s insurance) without putting a family home at risk.

Property (C2) Question III of III Fall 2016 Page 12 of 14


We must first look to Chapter 83 of the Landlord and Tenant statute, and decide whether part II (residential tenancies) applies. In §83.41 we see that this part applies to the rental of a dwelling unit, which is defined as “A structure or part of a structure that is rented for use as a home, residence, or sleeping place by one person . . . “, and therefore applies to T’s situation. Further, T’s situation is not described by any of the exclusions enumerated in §83.42.

We must then look to §83.51 to define L’s obligation to maintain the premises. Firstly, according to §83.51(1)(a), L must comply with the requirements of the Cane County Housing Code in regards to the hot water and the windows.

As to the hot water, §17-24 of the housing code requires “water heating facilities which are . . . properly connected with the hot water lines and which are capable of heating water to such a temperature . . . .” According to the definitions in §17-1, hot water means a system capa-ble of supplying 140 degrees water temperature. Here the water system is only capable of 130 degrees. Since L is not in compliance with § 17-24, L is failing to maintain his obligation under § 83.51(1)(a) of the statute.

L will argue that T waived her right to hot water by initialing the provision in the rental agreement. T would have two responses to this. First, what she initialed just said water would be 130 degrees. It didn’t tell her she had right to water up to 140 degrees. How could this be a waiv-er of a right, if you don’t know you have the right? L might reply that he’s under no duty to tell Ts what their rights are, though this seems like a weak argument.

Second, T would argue that if it is a waiver, it’s void. § 83.51(a) allows waivers with re-spect to single-family homes or duplexes. That implicitly excludes multi-unit buildings like this. T could bolster this by pointing to § 83.47(1), which makes void any provision that “purports to waive or preclude the rights, remedies or requirements set forth in this part” or “liability of the landlord . . . arising under law.” Legislatures have an interest in making such provisions waiving tenant rights unenforceable because of the unequal bargaining power between landlords and ten-ants. L might also argue that T lived in, and continued to pay rent for, the dwelling throughout four months although she had actual knowledge of the water not being warm enough.

T might make a third argument, though she shouldn’t need to and it probably wouldn’t work. § 83.51(2)(a)(5) does require “hot water.” The problem is that this section only applies if there’s no housing code, which there is. Also, it can be waived, so if what she initialed was a waiver, she’d have waived this. Finally, § 83.51(2)(a) does not define what is “hot” water with the specificity of the housing code. She does have hot water, just not up to 140 degrees. And a violation of 83.51(2) isn’t a basis for rent withholding under § 83.60.

As to the windows, according to § 17-24 of Cane County’s housing code, there is a min-imum total window area which must provide light to each habitable room. T is going to argue that the shutters prevent light from reaching each habitable room, and therefore L is not in com-pliance. There is also a ventilation requirement, and since she can’t open the windows, making the apartment stuffy, there is a violation there, too.

L will reply by pointing to the provision in 17-24 that says a blockage of light is OK if it is “temporary, for purposes such as maintenance, repair or replacement.” The code doesn’t say hurricanes specifically, but talks about “purposes such as …” Here, it was “maintenance” (and


prevention of a need to repair) that justifies the shutters. L might have a tougher time with the ventilation, since there is no “maintenance etc.” exception, but L would argue it should be read into the housing code so as not to penalize landlords for repairs or protecting their Section 3 does mention “as set forth in subsection (2),” and that could be read to encompass the exceptions, too.

T would respond that that keeping shutters up for months isn’t “temporary.” Light and ventilation are important enough to be in the code, and a landlord shouldn’t be able to deprive tenants of it for so long just because he’s busy.

T took the right approach to rent withholding. She gave L about 9 days of notice to fix the conditions or else she wouldn’t pay rent. According to section 83.56, when a landlord fails to comply with section 83.51 (as discussed above), the tenant must give the landlord 7 days notice of the noncompliance and indicate their intentions. In this case, T gave L adequate notice of the noncompliance. And she paid rent into the registry when he sued.

The biggest problem she has under § 83.60 is that she can defend against conviction for a “material noncompliance” with § 83.51(1). The water heater capability falls 10 degrees short, but is that “material”? If T is right that it’s dangerous, then maybe it’s not. It’s not even 10 percent short of 140 degrees. T might reply that the legislature, through the code, has determined what it should be, and a court shouldn’t second guess it. If it were a tiny deviation, like 139.5 degrees, that wouldn’t be material, but here L himself is saying there’s a big difference between 130 and 140.

It might be harder for L to claim the non-compliance with the light and air isn’t material. It’s been going on for months. A few extra days after the hurricane might not be that big, but es-pecially where the excuse is “I’m busy,” it’s hard to see how that’s not material.

Assuming at least some violation is material – and the court should be protective of ten-ants because, as Hilder said, there is usually unequal bargaining power between landlords and tenant – then T can get the rent reduced by the amount the court determines would reflect the true value of the rental. A dark stuffy place would command less on the market. It’s actually not entirely clear if the water being not quite so scalding would hurt the rental value.

The other question is retaliatory eviction under § 83.64. T would argue that L was bring-ing an action for possession “primarily” in retaliation for her complaint pursuant to the landlord (83.64(c)). He overreacted to her complaint by saying she was hounding him and then saying he’d evict her (which he’s now trying to do). T must also have acted in good faith; she would say she was trying to have her rental agreement be kept fairly and in compliance with the housing codes, so that’s good faith.

L would have two replies. First, he would argue that § 83.64(1) says the L’s action must be discriminatory, which is defined in (4) as treating someone differently. He evicts all Ts who complain, he says, so how is this discriminatory? T would reply that that’s the wrong comparison group. She’s being treated differently from other tenants who haven’t complained. The whole point of 83.64 is that complaining to the L shouldn’t result in your being treated any differently than any other tenant. Plus accepting L’s interpretation would encourage Ls in general to evict everyone who complains. That would undermine all the protections of the statute. For that rea-son, I think T has the better argument on this point.

The other reply L could make is that the action is “for good cause” (3), which means it’s a good faith action for nonpayment of rent. L told her he’s a man of good faith, and that he was acting in good faith to protect her from a hurricane and scalding water. His reason for limiting


the water to 130 degrees wasn’t laziness or cheapness, but a passion for the environment and an interest in the safety of his tenants. Furthermore, L has shown good faith as a landlord by promptly responding to T’s request to put up the shutters despite the difficulty, and agreeing to take the shutters down (just at a reasonable time, which he believes is at the end of hurricane sea-son because of the difficulty of putting the shutters up and taking them down and the likelihood that more hurricanes will come). T would reply that good faith must be reasonable. L may not be malevolent (even though he seems a bit thin-skinned), but it’s not reasonable to seek to evict where there are these violations and the L has been given notice of intent to withhold rent, or to have a practice of always suing to evict whenever a T complains.

Overall, I think noncompliance with the housing code in terms of the shutters is L’s true “material” breach of the housing code. L may have a good case to say he was protecting tenants from being burnt and that the 10 degrees do not make much of a difference to cause this whole commotion. Given unequal bargaining power, the so-called waiver should not be given effect under 83.51(1). Also, the judge in this case would value T’s responsible actions in following the statute in terms of notifying the landlord and filing the correct actions such as paying rent to the court registry. L is filing for eviction instead of fixing the situation; he is “clogging up the courts.” And the lawsuit does look like retaliation under 83.64: she complained, he sought to evict. It’s just what the legislature wanted to stop Ls from doing.

UNIVERSITY OF MIAMI Property (A2)

Final Examination



I. EXAM FORMAT & TIMETABLE This is a four-hour closed book exam.

The times shown for the Questions reflect their weight in grading, so it’s important to keep them in mind.


Question Time (Minutes or Hours) Question I (answer either A or B, NOT both) 105 min. / 1 hour, 45 min. Question II (answer any ONE of A, B, C, or D, NOT all four) 60 min. / 1 hour Question III (answer either A or B, NOT both) 75 min. / 1 hour, 15 min. Total 240 min. / 4 hours

There is also a statutory supplement for Questions III(A) and III(B), being handed out separately.









Cottage

Dirt road

Text of Question I(A) begins on the next page →

Question I (Answer either I(A) or I(B), NOT both)

(105 minutes—1 hour, 45 min.) Handwriting: Please begin your answer in a bluebook marked “Question I(A)” or “Question I(B),” depending on which one you choose to answer. Please write your AGN on the cover of each bluebook. Please skip lines and write on one side of each page. Laptops : Please type “Question I(A)” or “Question I(B),” depending on which one you choose to answer, at the start of your answer.

Question I(A) (105 minutes) The following events take place in the hypothetical U.S. state of Cania. You may find the following timeline and layout helpful to consult as you read the Question. Note that the timeline and layout do not contain all the facts needed to answer the Question.

1985: O buys Blackacre 1995: O subdivides Blackacre into Westacre and Eastacre; sells Westacre to A. Recorded. 1996: (a) A O driveway easement across Westacre. (b) O A promise to maintain

well. Both recorded, but misindexed. 2000: O dies. Will leaves Eastacre to Paola. Recorded. 2010: County water service becomes available in the area. 2012: A Q (Westacre) (gift). Not recorded. 2014: Dam leaks; lake recedes; Cane County P (gift of strip of land) 2015: Well water contamination discovered

A _____ O

Q P

Westacre (A, Q) Eastacre (O, P)

Lake Cania

House

well

Oak

Stre

et

Blackacre (originally, O) Strip exposed after lake recedes


Question I(A) continues on the next page →

Olivia owned Blackacre, a heavily wooded two-acre tract, which she bought in 1985. The east side of Blackacre fronts on Lake Cania, a public lake. The Lake was created by damming a small river. On the west side of Blackacre was Oak Street. To the north of Blackacre was land owned by other people; to the south, a small dirt road. Blackacre had a large house on the eastern half, and a smaller cottage on the western half, which Olivia used for guests. There was a gravel driveway from Oak Street to the large house along the south side of Blackacre. There was also a well on Blackacre that supplied both the house and the cottage with water through underground pipes. There was no county water service in the area at that time.

In 1995, Olivia decided to subdivide Blacacre into two lots and sell the western half. She named the western half Westacre, and the eastern half Eastacre. The well was on Eastacre, near the property line. Albert bought Westacre that year, planning to use the cottage mainly as a weekend and vacation home. The deed, which was properly recorded and indexed, gave Albert fee simple title.

Olivia continued to use the driveway after the sale, and Albert had water supplied by the well. But when a friend asked Olivia one day how she could just drive across Albert’s property to get to her place, she decided she should formalize the arrangement. In 1996, she asked Albert to grant her a driveway easement across Westacre for the benefit of Eastacre. In return, she would promise on behalf of herself, her heirs, and assigns to maintain the well “in good working condition” for the benefit of Westacre. Albert agreed. Subsequently both deeds were recorded. Because it was a busy time for the county clerk’s office, however, the deed with the easement from Albert to Olivia was mistakenly recorded under “B” instead of “A” in the grantor index, and the deed from Olivia to Albert with Olivia’s promise regarding the well was mistakenly in-dexed under “D” instead of “O” in the grantor index.

In 2000, Olivia died. She left Eastacre to her good friend Paola. Paola had the will recorded and moved in. She continued to use the driveway; Olivia had mentioned to her before she died that there was an easement allowing her to use it.

In 2012, Albert won the Cania lottery and decided to move to New York. His daughter Quin-by had visited Albert at the cottage many times. She loved everything about it, though she was puzzled why there was a gravel driveway to the house on Eastacre—something she never got around to asking Albert about; she figured it was just there as a convenience for the house next door. She especially liked drinking the fresh well water; Albert told her Paola had to supply it to Westacre. Knowing how much she loved it, Albert made a gift of Westacre to Quinby. Delirious with joy at now having a wonderful weekend and vacation home, she forgot to record the deed.

In 2014, the dam developed a serious leak, and the lake began to drain. Before it was fixed, the lakefront receded significantly, leaving a narrow strip of dry land about 10 yards wide be-tween the lake and Eastacre. Cane County authorities determined that allowing the creek to flow a little more freely was better for the fish, and announced that the lake level would be permanent-ly lower, making the smaller size permanent. Having no use for the narrow band of newly ex-posed land, Cane County decided to give the land to each adjacent landowner for free. Paola re-ceived title to the strip of land adjoining Eastacre. Delighted to have some open land at edge of her heavily forested yard, she built a small gazebo there, with a path leading from the house. She spent many an evening in it enjoying the view.

In 2015, water testing revealed that the groundwater in the area was contaminated by waste runoff from a factory several miles away. County authorities pronounced the water “probably safe” to drink in limited quantities and for daily showers of no more than five minutes each. They also pointed out that since 2010, county water service had been available to people in the



area, with water drawn from a river that was uncontaminated; the average cost to connect a home to the water service was $10,000. Paola was fine with continuing to use the well water, but Quinby was not. She consulted an engineer who said that the problem could be solved by dig-ging the well 25 feet deeper, so it could draw on a deep underground stream that was not con-taminated. The cost would be $50,000.

Quinby approached Paola and asked her to have the well work done. “You know,” she said, “you’re obligated to keep the well in good working condition.” “Olivia never told me about that. Anyway, it is in good working condition – it’s pumping fine,” replied Paola. “I’d hardly call it ‘good’ if it’s pumping up contaminated water,” Quinby shot back. “I’m drinking it,” said Paola, “and I’m not spending all that money. Why should you care about the water so much? You’re only here on weekends and summers, and anyway you could just hook up to the water main.” Fuming, Quinby said, “I’ll see you in court! And in the meantime, you can say goodbye to that driveway.” “I have a legal right to use it!” said Paola. “I have no idea what you’re talking about,” said Quinby.

Quinby put up a fence blocking the driveway, forcing Paola to use the dirt road, which was much less convenient. Quinby then sued Paola, seeking an injunction requiring her to dig the well deeper to “put it back in good working condition,” or alternatively, if the court didn’t grant the injunction, for damages of $10,000. In addition to denying any liability on the well, Paola counterclaimed against Quinby, seeking an injunction requiring her to reopen the driveway and stop interfering with Paola’s use of it. To that counterclaim, Quinby responded that she wasn’t bound by any easement, and that even if she was, Paola was misusing it by expanding its scope, so either no relief should be given to Paola, or Paola should be enjoined from misusing it.

You are the law clerk to the judge who will preside over the trial. She asks you to write a memo evaluating (a) whether Paola has the right to use the driveway easement as she’d been do-ing and what kind of relief might be appropriate if so, and (b) whether Quinby can force Paola to fix the well to her liking or get damages as an alternative. She tells you to consider the strengths and weaknesses of each side’s arguments and give your views on the best resolution under the law. “I’m really interested in these issues,” she adds, “so I’d love to hear also what you think the law should be, if you think the law reaches the wrong result.”

You do some preliminary research and find that Cania has the following statute:

Cania Stat. § 101. A conveyance of an estate in fee simple or a grant of any lesser interest, or a lease for more than seven years from the making thereof, or an assignment of rents or profits from an estate or lease, shall not be valid as against any person, except the grantor or lessor, his heirs and devisees and persons having actual notice of it, unless it, or an office copy as provided in section thirteen of chapter thirty-six, or, with respect to such a lease or an assignment of rents or profits, a notice of lease or a notice of assignment of rents or profits, as hereinafter defined, is recorded in the registry of deeds for the county or district in which the land to which it relates lies.

There are no other relevant statutes. Cania generally follows the common law.

Write the memo.




The following events take place in the hypothetical U.S. state of Cania. You may find the timeline and chart helpful. Note that they do not contain all the facts needed to answer the Question. 1990: FO (Blackacre and Whiteacre). Recorded. 2014: O A&B, “as joint tenants not as tenants in common” (Blackacre). Misindexed.

O “X for life, then to the first of X’s children to graduate from college.” Misindexed. 10/2015 A dies from poisoning. A’s will leaves all to O. 11/2015: X C (Whiteacre). Recorded. X not aware it’s a deed.

OC (Whiteacre). Recorded. 11/2015: C W (Whiteacre). Not recorded.

Chart

Omar owned Blackacre and Whiteacre, two valuable one-acre tracts adjacent to each other in

Cane County. He bought both from Felicia in 1990, promptly recording the deeds. Blackacre was undeveloped; Whiteacre had a house on it.

Beset by money difficulties, Omar decided to sell both his properties to his kids in 2014. His children were grown and doing well financially. Omar sold Blackacre to “Albert & Beatrice, as joint tenants not as tenants in common.” Albert was his son; Beatrice was Albert’s wife. He sold Whiteacre to his daughter Xaviera. Xaviera wanted to give her son Yusef an incentive to study harder, so she asked for title in the form of “to Xaviera for life, then to the first of Xaviera’s chil-dren to graduate from college.” Yusef, a high school student, was Xaviera’s only child at the time, though she’d thought about having another one.

Albert & Beatrice and Xaviera made sure their deeds were promptly recorded, though unbe-knownst to them, both of them were misindexed in the grantor index under “D” rather than “O” (for Omar). Albert & Beatrice planned to build a house on Blackacre as soon as they could raise the money for it. Xaviera and Yusef moved into the house on Whiteacre.

In October 2015, Connie, having been released on parole after ten years in prison for fraud, arrived in Cane County. In need of money, she hatched a plan to get ownership of Blackacre. Unfortunately for her, Albert & Beatrice knew about her past, and refused to deal with her. An-gry with Albert & Beatrice, Connie sent them some poison cookies anonymously. Albert died after eating one of them; Beatrice, a vegan, refused to have any and so was unharmed. Albert’s will, which was properly recorded, left “all my property” to his father Omar.

Connie turned her attention to Whiteacre. In early November 2014 she told Xaviera about an inside tip on a great stock investment, and convinced her to buy it, which involved signing a stock purchase order. In reality there was no stock. The paper Connie wanted Xaviera to sign was a deed from Xaviera to Connie, conveying all her interest in Whiteacre to Connie. Xaviera said she didn’t need to read it, and that her hand was hurting too much to sign. She showed Connie a copy of her

Yusef (X’s son)

Wanda: developer

Connie: con artist Omar

Beatrice & Albert (Blackacre)

Xaviera (Whiteacre)

(siblings/ Omar’s children)


signature and watched as Connie copied it onto the deed. Having seen Omar’s deed to Xaviera and having learned a bit about property law in prison, Connie also forged Omar’s signature on a deed conveying all his rights to Whiteacre to Connie. Connie promptly recorded the deeds.

In late November 2015, Connie sold Whiteacre to Wanda, a developer, for $500,000. Connie then went to Vegas and gambled away the money. The deed conveyed full fee simple title to Wanda. Wanda was very happy with the price. She was familiar with the local real estate market and figured it could easily have gone for $1 million. She planned to make a lot of money tearing down the house and building an office building on Whiteacre. She felt a little bad about Xaviera and Yusef, whom she’d noticed at the house but hadn’t met. “I guess I’ll be the one to break the news to those tenants that they have to move,” she thought. Despondent, she forgot to record the deed.

In early December 2015, Omar showed up at Beatrice’s house on Blackacre. “Sorry Albert’s gone,” he said. “But enough small talk. I’ve consulted a lawyer, and he tells me I’m half owner of Blackacre. We need to talk about you buying my share out.”

That same day Wanda went to Whiteacre to tell Xaviera and Yusef to move out. “You’re the new owner of Whiteacre?!?” exclaimed Xaviera. “What are you talking about? I’m the owner, and Yusef will get it when I die, if he brings his grades up and gets into college,” she said. “Don’t make this any harder for me than it already is,” replied Wanda. She continued: “I have a deed. I paid good money for it. Whiteacre is mine.”

Discuss the claims of ownership interests that (a) Beatrice and Omar may have to Blackacre, and that (b) Xaviera, Yusef, Omar, and Wanda may have to Whiteacre. Evaluate the strengths and weaknesses of their claims, and give your views on what the best resolution would be. Cania generally follows the common law, and has the following statutes: Cania Stat. § 101. Every conveyance of real property or an estate for years therein, other than a lease for a term not exceeding on year, is void as against any subsequent purchaser or mortgagee of the same property, or any part thereof, in good faith and for a valuable consideration, unless the same be recorded according to law. Cania Stat. § 102. Estates by the entireties shall not exist in this state. Cania Stat. § 103. Estates by survivorship. The doctrine of the right of survivorship in cases of real estate and personal property held by joint tenants shall not prevail in this state; that is to say, a devise, transfer or conveyance heretofore or hereafter made to two or more shall create a ten-ancy in common, unless the instrument creating the estate shall expressly provide for the right of survivorship. Cania Stat. § 104. The Doctrine of Destructibility of Contingent Remainders shall not apply in Cania.



(Answer any ONE of Questions II(A), II(B), II(C), or II(D), NOT all four)

Handwriting: Please begin your answer in a new bluebook marked “Question II(A),” “Question II(B),” “Question II(C),” or “Question II(D),” depending on which one you choose to answer. Please write your AGN on the cover of each bluebook. Please skip lines and write on one side of each page. Laptops : Please type “Question II(A),” “Question II(B),” “Question II(C),” or “Ques-tion II(D),” depending on which one you choose to answer, at the start of your answer.


“At first glance, Kelo and Euclid look very similar. Both cases are pro-development. They show the same spirit the common law courts displayed in England when they fashioned the law of estates and future interests to promote development, and the California Supreme Court in Moore v. Regents of the University of California (the spleen case) when it shaped the law to promote the biotech industry. Kelo and Euclid are also similar in showing deference to local governments as to how best to achieve legitimate governmental aims. Still, there’s an important difference between the two cases. Kelo was decided in a context where it was assumed that individuals who are adversely affected by local gov-ernment planning and development decisions will receive compensation (because any taking of one’s property through eminent domain always requires just compensation). Zoning is different. Even when there’s a change in zoning that makes an existing use illegal, the courts never require compensation. This is wrong. Any change in zoning that has the effect of reducing the value of real property should be accompanied by compensation. Because Euclid didn’t impose such a rule, it was wrongly decided.” In what respects, if any, do you agree with this statement? In what respects, if any, do you disagree with it? Why? Be sure to include comment on each specific example mentioned in the Question; you may use additional examples from the course to illustrate your points if that is helpful.


“There are many ways that real property owners can try to control future land use and ownership. These include using the various options offered by the system of estates and future interests; putting restraints on alienation of the land; and employing easements, covenants, and servitudes. It’s good that owners have this power, but it also creates a ‘dead hand’ problem. That is, what someone thought was a good land use at one point may make little sense decades later, and efforts to control real property ownership over generations end up restricting land use too much. The courts (through their power to shape the common law) and legislatures (through statutes) have attempted to deal with this problem. But the limits they’ve placed on the dead hand vary greatly depending on the particular device the property owner used to restrict future land use or ownership. This is just too confusing. It would be best to have no such restrictions and leave it to the market. A second best would be to say that any kind of attempt to control land use or the future ownership of real property—in whatever form that attempt takes—is valid, but becomes void after 25 years.” In what respects, if any, do you agree with this statement? In what respects, if any, do you disagree with it? Why? Be sure to include comment on each specific example mentioned in the Question; you may use additional examples from the course to illustrate your points if that is helpful.

Questions II(C) and (D) are on the next page →



“The French philosopher Pierre-Joseph Proudhon famously said ‘Property is theft.’ He was talk-ing about the origins of property. But who would have thought that U.S. courts and legislatures would so consistently treat property law as the occasion for theft? The rules governing banks when they foreclose on property are so utterly one-sided in the banks’ favor that they amount to legalized theft of ordinary homeowners’ equity. And what about this whole rule on fraudulent deeds somehow being able to convey good title? Or the second purchaser of the same property prevailing over an earlier purchaser of the same property because of the recording acts? Isn’t that just the law putting a stamp of approval on theft? The doctrine of destructibility of contingent remainders essentially allows a developer to steal someone’s contingent remainder. And don’t get me started on Moore v. Regents of the University of California: Even your spleen isn’t safe from being stolen. Here and there, you do see glimmers of hope. Jacque v. Steenberg recognized an absolute right against trespass, and in the same spirit the law says that anyone who benefits from a restrictive covenant can enforce it without some weighing and balancing of whether con-ditions have changed to make the covenant unsuitable. We need to get back to a situation where courts and legislatures give property rights the ironclad protection they need to be meaningful.”

In what respects, if any, do you agree with this statement? In what respects, if any, do you disa-gree with it? Why? Be sure to include comment on each specific example mentioned in the Ques-tion; you may use additional examples from the course to illustrate your points if that is helpful.


“Property law doesn’t do enough to encourage individual responsibility. Sure, there are excep-tions, but even those are qualified. It’s good that the law doesn’t allow someone with fee simple title just to abandon ownership—how irresponsible can you get?—but then why allow easements to be abandoned? It makes no sense. Adverse possession does make land owners be careful—even the would-be adverse possessors need to be careful about what they do. But then it makes no sense that courts don’t allow prescriptive negative easements. Why shield property owners from responsibility in that one respect? And in general, there are too many areas where the law fails to promote individual responsibility. Most states have abandoned caveat emptor, and with that, the notion of any responsibility on the buyer’s part. The same is true with the builder’s war-ranty of habitability. It gets even more extreme with the idea that certain rights can’t be waived. Why not let people decide for themselves? Shielding married couples from their debts is the height of irresponsibility. Ensuring individual responsibility is an important task in a democracy. Courts really should leave most policy matters to the legislature. Since most people believe in individual responsibility, we’d get much better property rules that way.”


← Questions II(A) and (B) are on the previous page



(Answer either Question III(A) or III(B), NOT both)

Handwriting: Please begin your answer in a new bluebook marked “Question III(A)” or “Question III(B),” depending on which one you choose to answer. Please write your AGN on the cover of each bluebook. Please skip lines and write on one side of each page. Laptops : Please type “Question III(A)” or “Question III(B),” depending on which one you choose to answer, at the start of your answer.

Question III(A) (75 minutes) The following events take place in the hypothetical U.S. state of Cania. Cania generally follows the common law, and has an adverse possession statute identical to Fla. Stat. §§ 95.12-95.231 (in the Statutory Supplement). While the statute is identical to Florida’s, the Cania Supreme Court has made clear it doesn’t consider itself bound by Florida Supreme Court interpretations of the Florida statute.

Blackacre and Whiteacre are located next to each other. Blackacre is owned by Albert. It is vacant. Albert bought it in 2000 with the idea of building a home for retirement, but he’s still working and living in another city. Between 2000 and 2010, he checks on it every summer, but otherwise isn’t around.

Whiteacre is owned by Beatrice. It is immediately east of Blackacre and has a house on it. Beatrice bought it in 2005 and recorded the deed. Neither Blackacre nor Whiteacre was fenced when Beatrice bought Whiteacre. The house (which she lives in) is on the western part of Whiteacre, not too far from the edge of the property that abuts Blackacre. Blackacre is a larger lot than Whiteacre – both have the same depth back from the street, but Blackacre fronts about 160 feet along the street, whereas Whiteacre fronts about 100 feet along the street.

In Cania, leaves fall from the trees every autumn. There are a lot of trees in the neighborhood, and Beatrice, something of a neatness freak, makes sure to rake every single leaf from her property. Through a misreading of the land description in her deed, which was a little vague, she’s always been mistaken about the boundary of her lot, and believed that Whiteacre and Blackacre are equal in size. Consequent-ly, when she rakes the leaves, she’s always raked not only Whiteacre, her own lot, but about 30 feet over into Blackacre, ever since she first moved to Whiteacre. That 30 foot strip of Blackacre is utterly neat after she finishes raking, just like Whiteacre; the rest of Blackacre remains covered in leaves. By spring many of them have been scattered by the wind, though it generally looks less well kept. She also occa-sionally fertilizes “her yard” (including the 30 foot strip), which makes the grass greener.

In 2010, Beatrice decides to put an addition on her house. The addition extends over the property line into Blackacre. She also puts an expensive four-foot high stone wall around what she sees as her yard, with the wall situated 30 feet deep into Blackacre. Also in 2010, Albert is transferred to his com-pany’s office in London, where he remains for the next five years. Transatlantic fares are expensive on his salary, so he stops checking on Blackacre every summer.

In December 2015, Albert returns from London and decides to check on Blackacre. He is shocked to see the fence and the addition to Beatrice’s house. He confronts Beatrice and shows her a survey he happens to have with him. Shocked, she replies, “well, you should have told me about this a long time ago! It’s too late now to do anything about it.” “You’re wrong about that,” Albert shoots back. “I want that addition and wall off my property, now!”

Beatrice consults the lawyer for whom you are clerking, seeking advice. The lawyer asks you to write a memo analyzing whether she is entitled to keep the addition and wall where they are, and if not, what remedies Albert may have against her. The lawyer is a property buff and also asks you for your views on what the law should be in this area.

Write the memo.

Question III(B) starts on the next page →


Question III(B)

(75 minutes) The following hypothetical events take place in the City of Miami, Florida, which is part of Mi-ami-Dade County. You will find in the Statutory Supplement (1) selected excerpts from the City of Miami Minimum Housing Standards (which is part of the Code of Miami-Dade County), and (2) the pages from the Supplement containing the Florida Landlord Tenant Statute.

Tony Tenant, an animal behavior scientist, rents an apartment in a multi-unit building owned by Linda Landlord. He signs a one-year lease starting on June 1, 2015. Tony is too enchanted with the apartment to read the lease, and doesn’t notice that it contains these provisions, among others, which Linda insists on having in all her leases:

§ 21. For the convenience and safety of other tenants, the tenant is allowed to have no pets. § 22. Tenant will comply with all duties of an occupant under the housing code. § 23. Tenant waives all rights under Florida and local law regarding the condition, mainte-nance, and repair of apartments. Linda started including § 21 in leases after there were problems with barking dogs in some of

the apartments. She likes §§ 22 and 23 because she thinks tenants are a pain to deal with. Tony’s research involves behavioral experiments on lab mice. For many of these experiments

it is best to observe them in the middle of the night, so it’s very convenient for him to keep them at home. He has five mice in his apartment in a glass cage. He does have a fondness for small cute animals, and though scientific protocol doesn’t require it, he gives each one a name. He likes to let them run loose through the apartment occasionally. He’s glad to see them happy and he thinks the exercise makes them better lab subjects.

Though not slovenly, Tony isn’t the neatest person in the world. At times visitors to his apartment see some old pizza crusts strewn on his kitchen counter, and he likes to eat crackers and potato chips in bed. Fortunately, the apartment building is free of roaches, so there are none in his apartment. Unfortunately, when a new tenant moves in next door in October 2015, there are some roaches in the moving boxes and they get loose. Several squeeze through some small cracks in the wall under the kitchen sink into his apartment. Soon Tony’s apartment has a defi-nite roach problem, just like the one next door.

Linda is at the apartment building one day in early December, and Tony calls her into his unit. He shows her a roach on the kitchen counter and asks her to bring an exterminator in. She says, “not my problem, buddy.” As she starts to walk out she narrowly avoids stepping on a mouse scampering across the floor. “You almost killed Violeta!” says Tony, reproaching her. “You’ve got a pet mouse?!” Linda replies. “That’s a violation of the lease. Let’s see, violation #1: roaches. Violation #2: pet. Two strikes and you’re out. Here,” she continues, handing him a piece of paper. “This is a 7 day notice of termination of your lease, under § 83.56 of the statute. Bye-bye.”

Tony consults the lawyer for whom you are clerking, seeking advice. The lawyer asks you to write a memo analyzing whether Linda is responsible for exterminating the roaches, whether there’s any way for Tony to force her to do so assuming is responsible, and whether Linda can evict him for violating the lease. The lawyer is a property buff and also asks you for your views on what the law should be in this area.

Write the memo.

Property (A2) Final Exam Professor Schnably December 7, 2015

Statutory/Code Supplement (for Questions III(A) and (B)) For Question III(A): Fla. Stat. §§ 95.12-95.231 ..................................................................................... 1 For Question III(B): Miami-Dade Code, Art. III: City of Miami Minimum Housing Standards ......... 6 Fla. Stat. §§ 83.40-8..682 ...................................................................................... 7

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Fla. Stat. §§ 95.12-95.231 § 95.12. Real property actions No action to recover real property or its pos-session shall be maintained unless the per-son seeking recovery or the person’s ances-tor, predecessor, or grantor was seized or possessed of the property within 7 years be-fore the commencement of the action.

§ 95.13. Real property actions; possession by legal owner presumed In every action to recover real property or its possession, the person establishing legal title to the property shall be presumed to have been possessed of it within the time pre-scribed by law. The occupation of the prop-erty by any other person shall be in subordi-nation to the legal title unless the property was possessed adversely to the legal title for 7 years before the commencement of the action.

§ 95.14. Real property actions; limitation upon action founded upon title No cause of action or defense to an action founded on the title to real property, or to rents or service from it, shall be maintained unless:

(1) The person prosecuting the action or making the defense, or under whose title the action is prosecuted or the defense is made, or the ancestor, predecessor, or grantor of the person, was seized or possessed of the real property within 7 years before com-mencement of the action; or

(2) Title to the real property was derived from the United States or the state within 7 years before commencement of the action. The time under this subsection shall not begin to run until the conveyance of the title from the state or the United States.

§ 95.16. Real property actions; adverse possession under color of title (1) When the occupant, or those under whom the occupant claims, entered into pos-session of real property under a claim of title exclusive of any other right, founding the claim on a written instrument as being a conveyance of the property, or on a decree or judgment, and has for 7 years been in continued possession of the property includ-ed in the instrument, decree, or judgment, the property is held adversely. If the proper-ty is divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract. Adverse posses-sion commencing after December 31, 1945, shall not be deemed adverse possession un-der color of title until the instrument upon which the claim of title is founded is record-ed in the office of the clerk of the circuit court of the county where the property is located.

(2) For the purpose of this section, property is deemed possessed in any of the following cases:

(a) When it has been usually cultivated or improved.

(b) When it has been protected by a substan-tial enclosure. All land protected by the en-closure must be included within the descrip-tion of the property in the written instru-ment, judgment, or decree. If only a portion of the land protected by the enclosure is in-cluded within the description of the property in the written instrument, judgment, or de-cree, only that portion is deemed possessed.

(c) When, although not enclosed, it has been used for the supply of fuel or fencing timber for husbandry or for the ordinary use of the occupant.

For Question III(A)

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(d) When a known lot or single farm has been partly improved, the part that has not been cleared or enclosed according to the usual custom of the county is to be consid-ered as occupied for the same length of time as the part improved or cultivated.

§ 95.18. Real property actions; adverse possession without color of title (1) When the possessor has been in actual continued possession of real property for 7 years under a claim of title exclusive of any other right, but not founded on a written in-strument, judgment, or decree, or when those under whom the possessor claims meet these criteria, the property actually pos-sessed is held adversely if the person claim-ing adverse possession:

(a) Paid, subject to s. 197.3335, all outstand-ing taxes and matured installments of special improvement liens levied against the proper-ty by the state, county, and municipality within 1 year after entering into possession;

(b) Made a return, as required under subsec-tion (3), of the property by proper legal de-scription to the property appraiser of the county where it is located within 30 days after complying with paragraph (a); and

(c) Has subsequently paid, subject to s. 197.3335, all taxes and matured installments of special improvement liens levied against the property by the state, county, and munic-ipality for all remaining years necessary to establish a claim of adverse possession.

(2) For the purpose of this section, property is deemed to be possessed if the property has been: (a) Protected by substantial enclosure; or (b) Cultivated, maintained, or improved in a usual manner.

(3) A person claiming adverse possession under this section must make a return of the property by providing to the property ap-praiser a uniform return on a form provided

by the Department of Revenue. The return must include all of the following:

(a) The name and address of the person claiming adverse possession.

(b) The date that the person claiming ad-verse possession entered into possession of the property.

(c) A full and complete legal description of the property that is subject to the adverse possession claim.

(d) A notarized attestation clause that states:

UNDER PENALTY OF PERJURY, I DECLARE THAT I HAVE READ THE FOREGOING RETURN AND THAT THE FACTS STATED IN IT ARE TRUE AND CORRECT. I FURTHER ACKNOWLEDGE THAT THE RE-TURN DOES NOT CREATE ANY INTEREST ENFORCEABLE BY LAW IN THE DESCRIBED PROPERTY.

(e) A description of the use of the property by the person claiming adverse possession.

(f) A receipt to be completed by the proper-ty appraiser.

(g) Dates of payment by the possessor of all outstanding taxes and matured installments of special improvement liens levied against the property by the state, county, or munici-pality under paragraph (1)(a).

(h) The following notice provision at the top of the first page, printed in at least 12-point uppercase and boldfaced type:

THIS RETURN DOES NOT CREATE ANY INTEREST ENFORCEABLE BY LAW IN THE DESCRIBED PROPERTY.

The property appraiser shall refuse to accept a return if it does not comply with this sub-section. The executive director of the De-partment of Revenue is authorized, and all conditions are deemed met, to adopt emer-gency rules under ss. 120.536(1) and

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120.54(4) for the purpose of implementing this subsection. The emergency rules shall remain in effect for 6 months after adoption and may be renewed during the pendency of procedures to adopt rules addressing the subject of the emergency rules.

(4) Upon the submission of a return, the property appraiser shall:

(a) Send, via regular mail, a copy of the re-turn to the owner of record of the property that is subject to the adverse possession claim, as identified by the property apprais-er’s records.

(b) Inform the owner of record that, under s. 197.3335, any tax payment made by the owner of record before April 1 following the year in which the tax is assessed will have priority over any tax payment made by an adverse possessor.

(c) Add a notation at the beginning of the first line of the legal description on the tax roll that an adverse possession claim has been submitted.

(d) Maintain the return in the property ap-praiser’s records.

(5)(a) If a person makes a claim of adverse possession under this section against a por-tion of a parcel of property identified by a unique parcel identification number in the property appraiser’s records:

1. The person claiming adverse possession shall include in the return submitted under subsection (3) a full and complete legal de-scription of the property sufficient to enable the property appraiser to identify the portion of the property subject to the adverse pos-session claim.

2. The property appraiser may refuse to ac-cept the return if the portion of the property subject to the claim cannot be identified by the legal description provided in the return, and the person claiming adverse possession must obtain a survey of the portion of the

property subject to the claim in order to submit the return.

(b) Upon submission of the return, the prop-erty appraiser shall follow the procedures under subsection (4), and may not create a unique parcel identification number for the portion of property subject to the claim.

(c) The property appraiser shall assign a fair and just value to the portion of the property, as provided in s. 193.011, and provide this value to the tax collector to facilitate tax payment under s. 197.3335(3).

(6)(a) If a person makes a claim of adverse possession under this section against proper-ty to which the property appraiser has not assigned a parcel identification number:

1. The person claiming adverse possession must include in the return submitted under subsection (3) a full and complete legal de-scription of the property which is sufficient to enable the property appraiser to identify the property subject to the adverse posses-sion claim.

2. The property appraiser may refuse to ac-cept a return if the property subject to the claim cannot be identified by the legal de-scription provided in the return, and the per-son claiming adverse possession must obtain a survey of the property subject to the claim in order to submit the return.

(b) Upon submission of the return, the prop-erty appraiser shall:

1. Assign a parcel identification number to the property and assign a fair and just value to the property as provided in s. 193.011;

2. Add a notation at the beginning of the first line of the legal description on the tax roll that an adverse possession claim has been submitted; and

3. Maintain the return in the property ap-praiser’s records.

(7) A property appraiser must remove the

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notation to the legal description on the tax roll that an adverse possession claim has been submitted and shall remove the return from the property appraiser’s records if:

(a) The person claiming adverse possession notifies the property appraiser in writing that the adverse possession claim is withdrawn;

(b) The owner of record provides a certified copy of a court order, entered after the date the return was submitted to the property ap-praiser, establishing title in the owner of record;

(c) The property appraiser receives a certi-fied copy of a recorded deed, filed after the date of the submission of the return, from the person claiming adverse possession to the owner of record transferring title of property along with a legal description de-scribing the same property subject to the ad-verse possession claim; or

(d) The owner of record or the tax collector provides to the property appraiser a receipt demonstrating that the owner of record has paid the annual tax assessment for the prop-erty subject to the adverse possession claim during the period that the person is claiming adverse possession.

(8) The property appraiser shall include a clear and obvious notation in the legal de-scription of the parcel information of any public searchable property database main-tained by the property appraiser that an ad-verse possession return has been submitted to the property appraiser for a particular par-cel.

(9) A person who occupies or attempts to occupy a residential structure solely by claim of adverse possession under this sec-tion prior to making a return as required un-der subsection (3), commits trespass under s. 810.08.

(10) A person who occupies or attempts to occupy a residential structure solely by

claim of adverse possession under this sec-tion and offers the property for lease to an-other commits theft under s. 812.014.

§ 95.191. Limitations when tax deed holder in possession When the holder of a tax deed goes into ac-tual possession of the real property de-scribed in the tax deed, no action to recover possession of the property shall be main-tained by a former owner or other adverse claimant unless the action commenced is begun within 4 years after the holder of the tax deed has gone into actual possession. When the real property is adversely pos-sessed by any person, no action shall be brought by the tax deed holder unless the action is begun within 4 years from the date of the deed.

§ 95.192. Limitation upon acting against tax deeds (1) When a tax deed has been issued to any person under s. 197.552 for 4 years, no ac-tion shall be brought by the former owner of the property or any claimant under the for-mer owner.

(2) When a tax deed is issued conveying or attempting to convey real property before a patent has been issued thereon by the United States, or before a conveyance by the state, and thereafter a patent by the United States or a conveyance by the state is issued to the person to whom the property was assessed or a claimant under him or her, and the tax deed grantee or a claimant under the tax deed grantee has paid the taxes for 4 succes-sive years at any time after the issuance of the patent or conveyance, the patentee, or grantee, and any claimant under the patentee or grantee shall be presumed to have aban-doned the property and any right, title, and interest in it. Upon such abandonment, the tax deed grantee and any claimant under the tax deed grantee is the legal owner of the property described by the tax deed.

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(3) This statute applies whether the tax deed grantee or any claimant under the tax deed grantee has been in actual possession of the property described in the tax deed or not. If a tax deed has been issued to property in the actual possession of the legal owner and the legal owner or any claimant under him or her continues in actual possession 1 year after issuance of the tax deed and before an action to eject him or her is begun, subsec-tions (1) and (2) shall not apply.

§ 95.21. Adverse possession against lands purchased at sales made by executors The title of any purchaser, or the purchaser’s assigns, who has held possession for 3 years of any real or personal property purchased at a sale made by an executor, administrator, or guardian shall not be questioned because of any irregularity in the conveyance or any insufficiency or irregularity in the court pro-ceedings authorizing the sale, whether juris-dictional or not, nor shall it be questioned because the sale is made without court ap-proval or confirmation or under a will or codicil. The title shall not be questioned at any time by anyone who has received the money to which he or she was entitled from the sale. This section shall not bar an action for fraud or an action against the executor, administrator, or guardian for personal lia-bility to any heir, distributee, or ward.

§ 95.22. Limitation upon claims by re-maining heirs, when deed made by one or more (1) When any person owning real property or any interest in it dies and a conveyance is made by one or more of the person’s heirs or devisees, purporting to convey, either singly or in the aggregate, the entire interest of the decedent in the property or any part of it, then no person shall claim or recover the property conveyed after 7 years from the date of recording the conveyance in the county where the property is located.

(2) This section shall not apply to persons whose names appear of record as devisees under the will or as the heirs in proceedings brought to determine their identity in the office of the judge administering the estate of decedent.

§ 95.231. Limitations where deed or will on record (1) Five years after the recording of an in-strument required to be executed in accord-ance with s. 689.01; 5 years after the record-ing of a power of attorney accompanying and used for an instrument required to be executed in accordance with s. 689.01; or 5 years after the probate of a will purporting to convey real property, from which it appears that the person owning the property attempt-ed to convey, affect, or devise it, the instru-ment, power of attorney, or will shall be held to have its purported effect to convey, affect, or devise, the title to the real property of the person signing the instrument, as if there had been no lack of seal or seals, wit-ness or witnesses, defect in acknowledgment or relinquishment of dower, in the absence of fraud, adverse possession, or pending liti-gation. The instrument is admissible in evi-dence. A power of attorney validated under this subsection shall be valid only for the purpose of effectuating the instrument with which it was recorded.

(2) After 20 years from the recording of a deed or the probate of a will purporting to convey real property, no person shall assert any claim to the property against the claim-ants under the deed or will or their succes-sors in title. (3) This law is cumulative to all laws on the subject matter.

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Miami Dade Code

Article III. City of Miami Minimum Housing Standards

§ 17-63. Responsibilities of owners and occupants.

No person shall occupy, or let to another for occupancy, any dwelling or dwelling unit for the purpose of living therein, which does not comply with the following requirements:

…

(2) Every occupant of a dwelling or dwelling unit shall keep in a clean and sanitary condition that part of the dwelling, dwelling unit and premises thereof which he occupies and controls .…

…

(7) Every occupant of a dwelling containing a single dwelling unit shall be responsible for the extermination of any insects, rodents, vermin, or other pests therein or on the premises. Every occupant of a dwelling unit in a building containing more than one (1) dwelling unit shall be re-sponsible for such extermination whenever his dwelling unit is the only one infested, except that whenever such infestation is caused by the failure of the owner to carry out the provisions of this article, extermination shall be the responsibility of the owner. In every dwelling containing one (1) or more units, the owner shall exterminate all infestations of any insects, rodents, vermin or other pests therein or on the premises except where such pests are the responsibility of the occu-pant as provided in the preceding sentence.

For Question III(B)

See next page for start of Landlord Tenant Statute

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Chapter 83. Landlord and Tenant

LANDLORD AND TENANT PART II

RESIDENTIAL TENANCIES §§ 83.40-83.682

83.40 Short title. ............................................................................................................................8 83.41 Application. .........................................................................................................................8 83.42 Exclusions from application of part. ...................................................................................8 83.43 Definitions...........................................................................................................................8 83.44 Obligation of good faith. .....................................................................................................9 83.45 Unconscionable rental agreement or provision...................................................................9 83.46 Rent; duration of tenancies. ..............................................................................................10 83.47 Prohibited provisions in rental agreements. ......................................................................10 83.48 Attorney fees. ....................................................................................................................10 83.49 Deposit money or advance rent; duty of landlord and tenant. ..........................................10 83.50 Disclosure of landlord’s address. ......................................................................................14 83.51 Landlord’s obligation to maintain premises. ....................................................................14 83.52 Tenant’s obligation to maintain dwelling unit. .................................................................15 83.53 Landlord’s access to dwelling unit. ..................................................................................15 83.535 Flotation bedding system; restrictions on use. ................................................................15 83.54 Enforcement of rights and duties; civil action; criminal offenses. ...................................16 83.55 Right of action for damages. .............................................................................................16 83.56 Termination of rental agreement. ......................................................................................16 83.561 Termination of rental agreement upon foreclosure. ..........................................................18 83.57 Termination of tenancy without specific term. .................................................................18 83.575 Termination of tenancy with specific duration. ................................................................19 83.58 Remedies; tenant holding over..........................................................................................19 83.59 Right of action for possession. ..........................................................................................19 83.595 Choice of remedies upon breach or early termination by tenant. .....................................20 83.60 Defenses to action for rent or possession; procedure........................................................20 83.61 Disbursement of funds in registry of court; prompt final hearing. ...................................21 83.62 Restoration of possession to landlord. ..............................................................................21 83.625 Power to award possession and enter money judgment....................................................22 83.63 Casualty damage. ..............................................................................................................22 83.64 Retaliatory conduct. ..........................................................................................................22 83.67 Prohibited practices. ..........................................................................................................23 83.681 Orders to enjoin violations of this part. ..........................................................................24 83.682 Termination of rental agreement by a servicemember. ..................................................24

For Question III(B)

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83.40 Short title.—This part shall be

known as the “Florida Residential Landlord and Tenant Act.”

History.—s. 2, ch. 73-330.


History.—s. 2, ch. 73-330; ss. 2, 20, ch. 82-66.













furnished, with or without rent, as an incident

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of employment for use as a home, residence, or sleeping place by one or more persons.





















History.—s. 2, ch. 73-330.



(2) When it is claimed or appears to the court that the rental agreement or any provi-sion thereof may be unconscionable, the par-ties shall be afforded a reasonable opportunity

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to present evidence as to meaning, relationship of the parties, purpose, and effect to aid the court in making the determination.

History.—s. 2, ch. 73-330.











History.—s. 2, ch. 73-330.






(b) Hold the total amount of such money in a separate interest-bearing account in a Florida banking institution for the benefit of the tenant or tenants, in which case the tenant shall receive and collect interest in an amount


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of at least 75 percent of the annualized aver-age interest rate payable on such account or interest at the rate of 5 percent per year, sim-ple interest, whichever the landlord elects. The landlord shall not commingle such moneys with any other funds of the landlord or hy-pothecate, pledge, or in any other way make use of such moneys until such moneys are ac-tually due the landlord; or

(c) Post a surety bond, executed by the landlord as principal and a surety company authorized and licensed to do business in the state as surety, with the clerk of the circuit court in the county in which the dwelling unit is located in the total amount of the security deposits and advance rent he or she holds on behalf of the tenants or $50,000, whichever is less. The bond shall be conditioned upon the faithful compliance of the landlord with the provisions of this section and shall run to the Governor for the benefit of any tenant injured by the landlord’s violation of the provisions of this section. In addition to posting the surety bond, the landlord shall pay to the tenant in-terest at the rate of 5 percent per year, simple interest. A landlord, or the landlord’s agent, engaged in the renting of dwelling units in five or more counties, who holds deposit moneys or advance rent and who is otherwise subject to the provisions of this section, may, in lieu of posting a surety bond in each coun-ty, elect to post a surety bond in the form and manner provided in this paragraph with the office of the Secretary of State. The bond shall be in the total amount of the security deposit or advance rent held on behalf of tenants or in the amount of $250,000, whichever is less. The bond shall be conditioned upon the faith-ful compliance of the landlord with the provi-sions of this section and shall run to the Gov-ernor for the benefit of any tenant injured by the landlord’s violation of this section. In ad-dition to posting a surety bond, the landlord shall pay to the tenant interest on the security deposit or advance rent held on behalf of that

tenant at the rate of 5 percent per year simple interest.

(2) The landlord shall, in the lease agree-ment or within 30 days after receipt of ad-vance rent or a security deposit, give written notice to the tenant which includes disclosure of the advance rent or security deposit. Subse-quent to providing such written notice, if the landlord changes the manner or location in which he or she is holding the advance rent or security deposit, he or she must notify the ten-ant within 30 days after the change as provid-ed in paragraphs (a)-(d). The landlord is not required to give new or additional notice sole-ly because the depository has merged with an-other financial institution, changed its name, or transferred ownership to a different finan-cial institution. This subsection does not apply to any landlord who rents fewer than five in-dividual dwelling units. Failure to give this notice is not a defense to the payment of rent when due. The written notice must:




(d) Contain the following disclosure: YOUR LEASE REQUIRES PAYMENT OF CERTAIN DEPOSITS. THE LANDLORD MAY TRANSFER AD-VANCE RENTS TO THE LAND-LORD’S ACCOUNT AS THEY ARE DUE AND WITHOUT NOTICE. WHEN YOU MOVE OUT, YOU MUST GIVE THE LANDLORD YOUR NEW ADDRESS SO THAT THE LAND-LORD CAN SEND YOU NOTICES REGARDING YOUR DEPOSIT. THE LANDLORD MUST MAIL YOU NO-TICE, WITHIN 30 DAYS AFTER YOU MOVE OUT, OF THE LANDLORD’S INTENT TO IMPOSE A CLAIM

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AGAINST THE DEPOSIT. IF YOU DO NOT REPLY TO THE LANDLORD STATING YOUR OBJECTION TO THE CLAIM WITHIN 15 DAYS AF-TER RECEIPT OF THE LANDLORD’S NOTICE, THE LANDLORD WILL COLLECT THE CLAIM AND MUST MAIL YOU THE REMAINING DE-POSIT, IF ANY. IF THE LANDLORD FAILS TO TIME-LY MAIL YOU NOTICE, THE LAND-LORD MUST RETURN THE DEPOSIT BUT MAY LATER FILE A LAWSUIT AGAINST YOU FOR DAMAGES. IF YOU FAIL TO TIMELY OBJECT TO A CLAIM, THE LANDLORD MAY COLLECT FROM THE DEPOSIT, BUT YOU MAY LATER FILE A LAWSUIT CLAIMING A REFUND. YOU SHOULD ATTEMPT TO IN-FORMALLY RESOLVE ANY DIS-PUTE BEFORE FILING A LAWSUIT. GENERALLY, THE PARTY IN WHOSE FAVOR A JUDGMENT IS RENDERED WILL BE AWARDED COSTS AND ATTORNEY FEES PAY-ABLE BY THE LOSING PARTY. THIS DISCLOSURE IS BASIC. PLEASE REFER TO PART II OF CHAPTER 83, FLORIDA STATUTES, TO DETERMINE YOUR LEGAL RIGHTS AND OBLIGATIONS. (3) The landlord or the landlord’s agent


(a) Upon the vacating of the premises for termination of the lease, if the landlord does not intend to impose a claim on the security deposit, the landlord shall have 15 days to re-turn the security deposit together with interest if otherwise required, or the landlord shall have 30 days to give the tenant written notice by certified mail to the tenant’s last known mailing address of his or her intention to im-

pose a claim on the deposit and the reason for imposing the claim. The notice shall contain a statement in substantially the following form:




(d) Compliance with this section by an individual or business entity authorized to conduct business in this state, including Flori-da-licensed real estate brokers and sales asso-ciates, constitutes compliance with all other relevant Florida Statutes pertaining to security deposits held pursuant to a rental agreement or

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other landlord-tenant relationship. Enforce-ment personnel shall look solely to this section to determine compliance. This section prevails over any conflicting provisions in chapter 475 and in other sections of the Florida Statutes, and shall operate to permit licensed real estate brokers to disburse security deposits and de-posit money without having to comply with the notice and settlement procedures contained in s. 475.25(1)(d).



(6) For the purposes of this part, a renew-al of an existing rental agreement shall be considered a new rental agreement, and any

security deposit carried forward shall be con-sidered a new security deposit.

(7) Upon the sale or transfer of title of the rental property from one owner to another, or upon a change in the designated rental agent, any and all security deposits or advance rents being held for the benefit of the tenants shall be transferred to the new owner or agent, to-gether with any earned interest and with an accurate accounting showing the amounts to be credited to each tenant account. Upon the transfer of such funds and records to the new owner or agent, and upon transmittal of a writ-ten receipt therefor, the transferor is free from the obligation imposed in subsection (1) to hold such moneys on behalf of the tenant. There is a rebuttable presumption that any new owner or agent received the security de-posit from the previous owner or agent; how-ever, this presumption is limited to 1 month’s rent. This subsection does not excuse the land-lord or agent for a violation of other provi-sions of this section while in possession of such deposits.




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(b) Where there are no applicable build-ing, housing, or health codes, maintain the roofs, windows, doors, floors, steps, porches, exterior walls, foundations, and all other struc-tural components in good repair and capable of resisting normal forces and loads and the plumbing in reasonable working condition. The landlord, at commencement of the tenan-cy, must ensure that screens are installed in a reasonable condition. Thereafter, the landlord must repair damage to screens once annually, when necessary, until termination of the rental agreement. The landlord is not required to maintain a mo-bile home or other structure owned by the ten-ant. The landlord’s obligations under this sub-

section may be altered or modified in writing with respect to a single-family home or du-plex.










(e) Nothing contained in this subsection prohibits the landlord from providing in the rental agreement that the tenant is obligated to

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pay costs or charges for garbage removal, wa-ter, fuel, or utilities.












History.—s. 2, ch. 73-330; s. 445, ch. 95-147.


(1) The tenant shall not unreasonably withhold consent to the landlord to enter the dwelling unit from time to time in order to in-spect the premises; make necessary or agreed repairs, decorations, alterations, or improve-ments; supply agreed services; or exhibit the dwelling unit to prospective or actual purchas-ers, mortgagees, tenants, workers, or contrac-tors.







83.535 Flotation bedding system; re-strictions on use.—No landlord may prohibit a tenant from using a flotation bedding system in a dwelling unit, provided the flotation bed-ding system does not violate applicable build-ing codes. The tenant shall be required to car-ry in the tenant’s name flotation insurance as is standard in the industry in an amount deemed reasonable to protect the tenant and

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owner against personal injury and property damage to the dwelling units. In any case, the policy shall carry a loss payable clause to the owner of the building.

History.—s. 7, ch. 82-66; s. 5, ch. 93-255.


History.—s. 2, ch. 73-330; s. 7, ch. 2013-136.


History.—s. 2, ch. 73-330.




(b) If the landlord’s failure to comply does not render the dwelling unit untenantable and the tenant remains in occupancy, the rent for the period of noncompliance shall be re-

duced by an amount in proportion to the loss of rental value caused by the noncompliance.




(b) If such noncompliance is of a nature that the tenant should be given an opportunity to cure it, deliver a written notice to the tenant specifying the noncompliance, including a no-tice that, if the noncompliance is not corrected within 7 days from the date that the written notice is delivered, the landlord shall termi-nate the rental agreement by reason thereof. Examples of such noncompliance include, but are not limited to, activities in contravention of the lease or this part such as having or per-mitting unauthorized pets, guests, or vehicles; parking in an unauthorized manner or permit-

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ting such parking; or failing to keep the prem-ises clean and sanitary. If such noncompliance recurs within 12 months after notice, an evic-tion action may commence without delivering a subsequent notice pursuant to paragraph (a) or this paragraph. The notice shall be in sub-stantially the following form:





(4) The delivery of the written notices re-quired by subsections (1), (2), and (3) shall be by mailing or delivery of a true copy thereof or, if the tenant is absent from the premises, by leaving a copy thereof at the residence. The

notice requirements of subsections (1), (2), and (3) may not be waived in the lease.

(5)(a) If the landlord accepts rent with ac-tual knowledge of a noncompliance by the tenant or accepts performance by the tenant of any other provision of the rental agreement that is at variance with its provisions, or if the tenant pays rent with actual knowledge of a noncompliance by the landlord or accepts per-formance by the landlord of any other provi-sion of the rental agreement that is at variance with its provisions, the landlord or tenant waives his or her right to terminate the rental agreement or to bring a civil action for that noncompliance, but not for any subsequent or continuing noncompliance. However, a land-lord does not waive the right to terminate the rental agreement or to bring a civil action for that noncompliance by accepting partial rent for the period. If partial rent is accepted after posting the notice for nonpayment, the land-lord must:





(c) This subsection does not apply to that portion of rent subsidies received from a local, state, or national government or an agency of local, state, or national government; however,

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waiver will occur if an action has not been in-stituted within 45 days after the landlord ob-tains actual knowledge of the noncompliance.





premises that are the subject of a foreclosure sale, upon issuance of a certificate of title fol-lowing the sale, the purchaser named in the certificate of title takes title to the residential premises subject to the rights of the tenant un-der this section.

(a) The tenant may remain in possession of the premises for 30 days following the date of the purchaser’s delivery of a written 30-day notice of termination.

(b) The tenant is entitled to the protec-tions of s. 83.67.



You are hereby notified that your rental agreement is terminated on the date of delivery of this notice, that your occupancy is terminated 30 days following the date of the delivery of this notice, and that I demand possession of the premises on (date) . If you do not vacate the premises by that date, I will ask the court for an order allowing me to remove you and your be-longings from the premises. You are obligated to pay rent during the 30-day period for any amount that might accrue during that period. Your rent must be delivered to (landlord’s name and address) .


(2) The purchaser at the foreclosure sale may apply to the court for a writ of possession based upon a sworn affidavit that the 30-day notice of termination was delivered to the ten-

ant and the tenant has failed to vacate the premises at the conclusion of the 30-day peri-od. If the court awards a writ of possession, the writ must be served on the tenant. The writ of possession shall be governed by s. 83.62.


ject foreclosure or is the child, spouse, or par-ent of the mortgagor in the subject foreclo-sure.



(4) A purchaser at a foreclosure sale of a residential premises occupied by a tenant does not assume the obligations of a landlord, ex-cept as provided in paragraph (1)(b), unless or until the purchaser assumes an existing rental agreement with the tenant that has not ended or enters into a new rental agreement with the tenant.

History.—s. 1, ch. 2015-96.










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History.—s. 2, ch. 73-330; s. 10, ch. 2013-136.








(d) When the last remaining tenant of a dwelling unit is deceased, personal property remains on the premises, rent is unpaid, at least 60 days have elapsed following the date of death, and the landlord has not been noti-fied in writing of the existence of a probate estate or of the name and address of a personal representative. This paragraph does not apply to a dwelling unit used in connection with a federally administered or regulated housing program, including programs under s. 202, s.

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221(d)(3) and (4), s. 236, or s. 8 of the Na-tional Housing Act, as amended.





(2) Retake possession of the dwelling unit for the account of the tenant, holding the ten-ant liable for the difference between the rent stipulated to be paid under the rental agree-ment and what the landlord is able to recover from a reletting. If the landlord retakes pos-session, the landlord has a duty to exercise good faith in attempting to relet the premises, and any rent received by the landlord as a re-sult of the reletting must be deducted from the balance of rent due from the tenant. For pur-poses of this subsection, the term “good faith in attempting to relet the premises” means that the landlord uses at least the same efforts to relet the premises as were used in the initial rental or at least the same efforts as the land-lord uses in attempting to rent other similar rental units but does not require the landlord to give a preference in renting the premises over other vacant dwelling units that the land-lord owns or has the responsibility to rent;


(4) Charge liquidated damages, as provid-ed in the rental agreement, or an early termi-nation fee to the tenant if the landlord and ten-ant have agreed to liquidated damages or an early termination fee, if the amount does not exceed 2 months’ rent, and if, in the case of an

early termination fee, the tenant is required to give no more than 60 days’ notice, as provided in the rental agreement, prior to the proposed date of early termination. This remedy is available only if the tenant and the landlord, at the time the rental agreement was made, indi-cated acceptance of liquidated damages or an early termination fee. The tenant must indicate acceptance of liquidated damages or an early termination fee by signing a separate adden-dum to the rental agreement containing a pro-vision in substantially the following form: ☐ I agree, as provided in the rental agree-







(1)(a) In an action by the landlord for pos-session of a dwelling unit based upon non-payment of rent or in an action by the landlord under s. 83.55 seeking to recover unpaid rent, the tenant may defend upon the ground of a material noncompliance with s. 83.51(1), or may raise any other defense, whether legal or equitable, that he or she may have, including the defense of retaliatory conduct in accord-

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ance with s. 83.64. The landlord must be given an opportunity to cure a deficiency in a notice or in the pleadings before dismissal of the ac-tion.


(2) In an action by the landlord for pos-session of a dwelling unit, if the tenant inter-poses any defense other than payment, includ-ing, but not limited to, the defense of a defec-tive 3-day notice, the tenant shall pay into the registry of the court the accrued rent as al-leged in the complaint or as determined by the court and the rent that accrues during the pen-dency of the proceeding, when due. The clerk shall notify the tenant of such requirement in the summons. Failure of the tenant to pay the rent into the registry of the court or to file a motion to determine the amount of rent to be paid into the registry within 5 days, excluding Saturdays, Sundays, and legal holidays, after the date of service of process constitutes an absolute waiver of the tenant’s defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant with a writ of possession to issue

without further notice or hearing thereon. If a motion to determine rent is filed, documenta-tion in support of the allegation that the rent as alleged in the complaint is in error is required. Public housing tenants or tenants receiving rent subsidies are required to deposit only that portion of the full rent for which they are re-sponsible pursuant to the federal, state, or lo-cal program in which they are participating.



History.—s. 2, ch. 73-330; s. 2, ch. 74-146.



(2) At the time the sheriff executes the writ of possession or at any time thereafter, the landlord or the landlord’s agent may re-move any personal property found on the premises to or near the property line. Subse-quent to executing the writ of possession, the landlord may request the sheriff to stand by to keep the peace while the landlord changes the locks and removes the personal property from the premises. When such a request is made,

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the sheriff may charge a reasonable hourly rate, and the person requesting the sheriff to stand by to keep the peace shall be responsible for paying the reasonable hourly rate set by the sheriff. Neither the sheriff nor the landlord or the landlord’s agent shall be liable to the tenant or any other party for the loss, destruc-tion, or damage to the property after it has been removed.


83.625 Power to award possession and enter money judgment.—In an action by the landlord for possession of a dwelling unit based upon nonpayment of rent, if the court finds the rent is due, owing, and unpaid and by reason thereof the landlord is entitled to pos-session of the premises, the court, in addition to awarding possession of the premises to the landlord, shall direct, in an amount which is within its jurisdictional limitations, the entry of a money judgment with costs in favor of the landlord and against the tenant for the amount of money found due, owing, and unpaid by the tenant to the landlord. However, no money judgment shall be entered unless service of process has been effected by personal service or, where authorized by law, by certified or registered mail, return receipt, or in any other manner prescribed by law or the rules of the court; and no money judgment may be entered except in compliance with the Florida Rules of Civil Procedure. The prevailing party in the action may also be awarded attorney’s fees and costs.


83.63 Casualty damage.—If the premis-es are damaged or destroyed other than by the wrongful or negligent acts of the tenant so that the enjoyment of the premises is substantially impaired, the tenant may terminate the rental agreement and immediately vacate the prem-ises. The tenant may vacate the part of the premises rendered unusable by the casualty, in which case the tenant’s liability for rent shall be reduced by the fair rental value of that part of the premises damaged or destroyed. If the

rental agreement is terminated, the landlord shall comply with s. 83.49(3).












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(5) A landlord of any dwelling unit gov-erned by this part shall not remove the outside doors, locks, roof, walls, or windows of the unit except for purposes of maintenance, re-pair, or replacement; and the landlord shall not

remove the tenant’s personal property from the dwelling unit unless such action is taken after surrender, abandonment, recovery of possession of the dwelling unit due to the death of the last remaining tenant in accord-ance with s. 83.59(3)(d), or a lawful eviction. If provided in the rental agreement or a writ-ten agreement separate from the rental agree-ment, upon surrender or abandonment by the tenant, the landlord is not required to comply with s. 715.104 and is not liable or responsible for storage or disposition of the tenant’s per-sonal property; if provided in the rental agreement, there must be printed or clearly stamped on such rental agreement a legend in substantially the following form: BY SIGNING THIS RENTAL AGREE-MENT, THE TENANT AGREES THAT UPON SURRENDER, ABANDONMENT, OR RECOVERY OF POSSESSION OF THE DWELLING UNIT DUE TO THE DEATH OF THE LAST REMAINING TENANT, AS PROVIDED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT’S PERSONAL PROPERTY. For the purposes of this section, abandonment shall be as set forth in s. 83.59(3)(c).



(8) The remedies provided by this section are not exclusive and do not preclude the ten-ant from pursuing any other remedy at law or equity that the tenant may have. The remedies provided by this section shall also apply to a servicemember who is a prospective tenant

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who has been discriminated against under subsection (3).






History.—s. 8, ch. 93-255; s. 451, ch. 95-147.





(c) The servicemember is released from active duty or state active duty after having leased the rental premises while on active duty

or state active duty status and the rental prem-ises is 35 miles or more from the servicemem-ber’s home of record prior to entering active duty or state active duty;






(4) Upon termination of a rental agree-ment under this section, the tenant is liable for the rent due under the rental agreement prorat-ed to the effective date of the termination pay-able at such time as would have otherwise been required by the terms of the rental agreement. The tenant is not liable for any

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other rent or damages due to the early termi-nation of the tenancy as provided for in this section. Notwithstanding any provision of this section to the contrary, if a tenant terminates the rental agreement pursuant to this section 14 or more days prior to occupancy, no dam-ages or penalties of any kind will be assessa-ble.




PROPERTY (A2) Final Examination: Answers

Below are answers for each Question. Although the answers take a position in response to the Questions, those positions are not necessarily the only ones; generally what is most important is the analysis.


(a) Whether Paula (P) has the right to use the easement We must first look back to the agreement between O and A. The agreement had two parts, as

to the driveway and the well. The promise relating to the driveway is what determines P’s rights here. This promise is an express easement. It gave O the right to do something on someone else’s land: drive on a driveway across A’s land (Westacre) to get to Eastacre. Since it’s express there’s no need for P to claim that O somehow had an implied easement from prior use.

The easement is in writing. It probably is appurtenant. It might arguably be in gross, apply-ing to O alone, because O asked A to give “her” the easement. Because the driveway wasn’t the on-ly way to get to Eastacre, use of it could be seen as a matter of personal preference. On the other hand, because the dirt road is inconvenient, the driveway benefits Eastacre as a lot. And the drive-way promise was part of an agreement whereby O burdened her land with the well promise (on be-half of herself, her heirs, and assigns) for the benefit of Westacre. So it makes the most sense to treat the easement as appurtenant, with Eastacre the dominant estate. This means that P, as the own-er of Eastacre by O’s will, would normally get the benefit of the easement.

So long as A owned Westacre, he had to let the owner of Eastacre use the driveway, since Westacre is the servient estate. The question is what happens now that A has made a gift of Westacre to Q. Q would make two arguments as to why she isn’t bound.

First, she might say § 101 means the easement isn’t binding on her. “A conveyance” (A O for the easement) is “not valid against any person” (except those on the list that follows) “unless it … is recorded.” Q would argue the conveyance wasn’t recorded, and so won’t be valid against any person except those on the list. It was given to the clerk’s office but misindexed. Anyone doing a title search would look up A in the grantee index and find that he owned it as of 1995, but on the way back down in the search, checking in the grantor index from 1995 on to see if A had sold or encumbered it, they wouldn’t find the easement because it was misindexed under “B.” P would re-ply that the easement was in fact recorded. They took it there. It’s not her fault or O’s that the clerk’s office made a mistake. The statute talks about “recording” not “indexing.”

A court would probably find the easement wasn’t “recorded,” because no reasonable title search would find it. O was a victim of the mistake, too, but she was the cheapest cost avoider, be-cause she could’ve gone back later to check to see that everything had been properly recorded and indexed. (If the easement was recorded, Q would lose, because the statute wouldn’t invalidate it against anyone. Under the common law “first in time” approach, Q would be bound because by the time A gave Westacre to her, all he had to convey was ownership subject to the driveway easement.

Even if it wasn’t recorded, that doesn’t mean Q automatically wins. P would point out that an unrecorded conveyance is still valid against certain people. In most notice statutes, an unrecord-ed conveyance is valid against someone who got it for free. That’s because in general, we don’t want to privilege someone who gets land for free over someone who paid for it. Q got it for free, so it’s fair to bind her to the promise even if it wasn’t recorded.

Property (A2) Question I of III Fall 2015 Page 2 of 21

But P would probably lose this argument. The statute refers to “heirs and devisees” of the grantor as being bound by an unrecorded conveyance. Thus the unrecorded easement would be val-id against someone who got Westacre by a will or intestacy. Q doesn’t fall into this category: she got it by gift. She’d say that this part of the statute doesn’t make the unrecorded easement valid against her. P might reply that it makes no sense to distinguish between gifts and devises. It may not, but a court might say it’s for the legislature to change that, in a democracy; the court should just follow the language of the statute. Also, this is a contest between two people who got it for free.

P would have a second argument for saying Q is bound. The statute says that an unrecorded conveyance binds persons “having actual notice” of it. Before Q got Westacre, she’d seen the driveway and wondered what it was doing there. It obviously led straight to the house on Eastacre. Q did also know about the well promise. Knowing there was one promise between the two parcels, she might have asked whether the driveway was part of a promise, too. But Q would argue that whether or not that meant she should’ve known, the statute says “actual notice.” Q would say she didn’t have actual notice. A never told her about the easement, and she didn’t know about it. It’s not clear she saw O or P use the driveway.

A court might accept P’s argument, if it was willing to interpret “actual notice” broadly. In-terpreting it too narrowly would seem to reward ignorance. On the other hand, the court might say “actual” has to mean something, a higher standard than “know or should have known.” P has the stronger argument here, because people should be encouraged to check into property they’re buying or even getting by gift.

If the easement binds Q, then Q has no right to block the driveway as she’s doing. P would be entitled to an injunction against Q to remove the barrier; she might be entitled to damages as well, though it would be hard here to show significant damages from the inconvenience of having had to use the dirt road in the meantime.

Q might have one last defense. She’d claim that P is misusing the easement. She would ar-gue that P’s use of the easement to benefit the expansion of Eastacre to the land uncovered by the receding lake water is an abuse of the easement. The owner of a dominant estate, holding an appur-tenant easement, can only use that easement to benefit the dominant estate as it existed when the easement was created. You can’t add on parcels. Q would say this rule is absolute.

P could reply that injunctive relief (against P) is discretionary. Even if P is violating that rule, there should be no injunction. She would point out that the expansion of Eastacre is very small. It’s not going to cause any increased hardship on Westacre. Further, the addition was involuntary in a way. P didn’t cause the lake to recede, and even if P somehow could have turned down the gift of the strip from the county, that would make no sense. No one else could use that land. And an in-junction against P saying “don’t use the driveway unless it’s just for Eastacre” would mean in prac-tice either not using the driveway or giving up any access to the strip, or doing something totally unreasonable (like, whenever P wanted to use the gazebo, drive across the driveway back to Oak Street, then take the dirt road back to her property).

This case is like Brown v. Voss. Brown acquired another lot next door and built a house straddling the line between the dominant estate and the new lot, intending to use the driveway over Voss’s servient estate for both. The court agreed that the dominant estate holder can’t use an ease-ment for an adjacent lot, but held that the equities didn’t support an injunction because didn’t raise their claim about misuse until after the Browns had spent $10,000 starting to build the house. As in Brown v. Voss, Q has blocked the easement out of spite, not out of risk of any harm. Thus she is ef-fectively reneging on a promise on which her neighbor relied. I would predict that a court would look unfavorably on Q’s actions as it did on Voss’s actions.


(b) Whether Q can force P to fix the well When O promised A to keep the well on Eastacre in good working condition for the benefit

of Westacre, she may have made a real covenant to do so. Does the burden of the promise run to P? And does the benefit run to Q? For the burden and benefit to run there has to be writing and intent. The promise was in writing. From the grant, it appears that both O and A intended the promise or caveat to run with the land from the language “on behalf of herself, her heirs, and assigns.” Thus, intent is established.

The next step is to determine if the touch and concern requirement is met for both properties. The burden touches and concerns Eastacre, because it does affect how the land is used – the well has to be kept there and maintained. That might also negatively affect its value. As for the benefit, the promise seems to touch and concern Westacre. It may not affect how the land is physically used, but having water supplied to it does improve its use and value. And there are underground pipes, so in a way it physically affects the land.

There’s a problem, though. This is an affirmative promise to do something. Some courts say an affirmative promise doesn’t touch and concern the land. The general issue is that there’s no limit to how expensive an affirmative promise can be to fulfill. It could cost more than the value of the land itself. But that’s not so here, and it seems too limiting to rule out having all affirmative promis-es ever be binding. The kind of well agreement O and A made a lot of sense as a private land use planning arrangement, at least at the time.

There has to be notice to the burdened party. This would also be covered by § 101. There’d be the same issue about whether the covenant was recorded, because it too was misindexed. If it was recorded, then the statute wouldn’t invalidate the promise as to P; if it wasn’t recorded, then the rest of the statute would apply.

The unrecorded covenant would be valid against P if she had “actual notice” of it. All she saw was the well; the pipes to the cottage were underground. Except for one case we read where somehow people were supposed to notice underground sewage pipes, it seems far-fetched to say P had “actual notice” of a promise to maintain the well.

P’s problem is that § 101 says the unrecorded covenant is valid against someone who’s a devisee. P is a devisee. It seems unfair that on the driveway Q lucked out by being the recipient of a gift, where here P is bound because she got it by will, but that’s what the statute seems to provide.

P’s next defense would be lack of privity. She can’t claim lack of vertical privity – she got the whole of O’s estate, not a life estate. But there was no horizontal privity. The promise was made a year after the breakup of the big parcel and the sale to A. If it had been made at the same time there would have been horizontal privity. This means that Q can’t get damages against her, because in most jurisdictions lack of horizontal privity means no real covenant. Unfortunately for P, hori-zontal privity isn’t required for the burden to run in an equitable servitude. And that’s all Q needs for an injunction. (Q would not need to show that she was in vertical privity with A to get the in-junction either, but in fact there was vertical privity with A).

P would have two defenses left. Looking at the language of the original promise, it states “in good working condition.” A court would have to determine if P has actually breached the promise. The well still runs and draws water. There is no specification that the water must be perfectly un-contaminated. On the other hand, it was clearly intended for drinking, so maybe the water must be drinkable, not just supplied. As for whether it’s drinkable, there’s some ambiguity too, but “proba-bly safe in limited quantities” doesn’t sound very good.

P might also claim that when O and A made their arrangement there was no county water


service, so it may be that the conditions have changed, therefore terminating the easement. Why should P have to spend $50,000 to fix a well when there’s a perfectly good alternative for $10,000? It’s wasteful. Some states say, though, that as long as there’s any benefit to the person seeking en-forcement, you don’t do weighing and balancing. Here there’s a benefit. Q likes well water, plus enforcement would save her $10,000. Even if the law required a substantial benefit to the one seek-ing enforcement, $10,000 might be substantial. These facts present a good case for the court to modify the common law doctrine. For example, it might terminate the covenant in light of changing conditions so long as P covered the $10,000 connection cost, or keep the covenant going so long as Q paid for the repairs.



(a) Ownership of Blackacre The current ownership of Blackacre depends on the form in which Albert (A) and Beatrice

(B) took it from Omar (O). When O conveyed Blackacre to A&B he specified that it was as joint tenants and not as tenants in common. Although A&B were married, Cania forbids tenancy by the entirety so that option is not possible. The question is whether they held it at joint tenants or as tenants in common. This matters when A dies. His will left all his property to O. If A&B were tenants in common, then O got A’s share. O and B would then be tenants in common. B doesn’t have to buy out O, but she could, and that’s the only way she’d have sole ownership of Blackacre. If A&B were joint tenants, then A’s interest disappeared when he died, and B has full survivorship of Blackacre.

A long time ago the common law had a presumption of joint tenancy, but Cania has a statute. While § 103 states that the right of survivorship in joint tenants shall not prevail, and that a conveyance to two or more creates a tenancy in common, it goes on to say except in cases where it “expressly provides for the right of survivorship.”

O would claim the statute is clear and that even though the deed said “joint tenants,” there’s nothing in the deed expressly about survivorship. Therefore it was a tenancy in common, and with A’s death O and B are now tenants in common.

B would argue that the instrument does expressly provide for survivorship. She would say the statute doesn’t require any magic words. She would say the reference to “joint tenants” is an express reference to survivorship because it’s a term of art that means the kind of ownership where when one owner dies the other gets his/her share.

O would respond that “joint tenants” can also just refer to people who own property together, in whatever form. He would say the legislature wanted to make people be very clear about survivorship if they intended it. The fact that the statute does start out talking about the doctrine of the right of survivorship not prevailing in the state might suggest the legislature meant to disfavor it and allow only a narrow exception.

Also, courts themselves now tend to prefer tenancies in common, thinking that in general that’s what people prefer. However, a court might be sympathetic to the idea that it should be more willing to find express reference to survivorship when the takers are married, since married couples probably usually prefer survivorship.

There’s also the fact that the deed from O to A&B may not have been “recorded,” since it was misindexed. Whatever you might think about that in general, though, it’s not relevant here. Under § 101, failure to record doesn’t make a deed void in general. It can only possibly void a deed against subsequent purchasers. The only way O could conceivably be a subsequent purchaser would be if A&B were tenants in common and O got it by A’s will (“purchaser” just means that O got it by written instrument). So the court would have to decide that first. But even if a court thought O was a subsequent purchaser, he didn’t get it for valuable consideration, and he certainly had notice of the OA&B deed, since he wrote it.

(b) Ownership of Whiteacre The interests of Xaviera (X), Yusef (Y), and O must first be established. At the time of the

conveyance in 2014, X got a life estate, and the first child of X to graduate from college got a con-


tingent remainder in fee simple. The remainder is contingent because it follows a life estate, could vest immediately when X dies, and doesn’t cut X off. It’s not a remainder in Y, because the deed refers to the first child of X to graduate. It’s probably Y who’d get i, but it could be another child of X if she has one. Because there’s a contingent remainder here, O has a reversion.

The contingent remainder is subject to the rule against perpetuities (RAP). I assume Cania follows the traditional “what might happen” approach. Applying RAP, we’d have to figure out ex-actly what will cause the future interest to vest. It’s that some child of X, not necessarily one alive at the time of the grant, be the first to graduate from college, whenever that happens. If the DDCR had not been abolished (§ 104), then as a practical matter the requirement would have been that the graduation take place before X dies; otherwise it would be destroyed. Then we could say we’d know for sure whether or not the contingent remainder would ever vest by the time X died, and X could be the measuring life.

Without the DDCR, a court would probably interpret the grant to mean that if X dies and leaves a child who hasn’t yet graduated, Blackacre would go back to O in the meanwhile, in fee simple subject to the child’s executory interest, and then later either the child would graduate (and get Blackacre) or would die without ever having graduated, in which case O would have it in fee simple absolute. This would mean the future interest in the child is an executory interest.

This executory interest would be invalid under RAP. There is no person you could point to and say we’ll know one way or the other whether there’ll be a first child to graduate from college within that person’s lifetime (or lifetime + 21 years). You can’t use X as the measuring life because without the DDCR, some child of X might graduate 30 years after X’s death. You can’t use Y, be-cause the interest isn’t Y’s – it’s that of any child of X who is the first to graduate. For example, X might have another child tomorrow, Z. Then X, Y, O, etc. all die. Then 30 years after they all die, Z becomes the first child of X to graduate from college.

If Cania follows certain reforms of RAP, the interest might be valid. The court might wait to see if interest vests eventually. If Yusef is in high school, it’s certainly possible he’ll graduate from college in the next 10 years. How long a court would wait is unclear, but it could wait at least some time. If Cania has the USRAP, the waiting period could be 90 years.

Under the cy pres approach, the court might rewrite the grant. It could say, for example, that the child must graduate within X’s lifetime or within 21 years of her death. This would make it OK under RAP. Whatever the reform, O would still have a reversion in case no child of X gradu-ates from college.

It would be better to follow the reforms, because there’s too much frustration of intent in the traditional what might happen approach. The wait and see approach and cy pres show are better ways to reconcile flexibility for donors and avoid the problems of the dead hand.

The next question concerns the deed C got X to sign (X C) and what happened after-wards. Wanda (W) will claim she’s the owner of Whiteacre; X will say she is (as a life estate hold-er). C also forged an O C deed, trying to get C’s reversion. C probably figured the reversion plus X’s life estate would merge into fee simple. But unfortunately for W, since Cania has abolished the DDCR, the contingent remainder wouldn’t be destroyed.

W would argue that the deed from X C was procured by fraud. It may have been voidable by X, but not once the property was conveyed to a subsequent BFP. And she was a BFP, she would argue. However, X might argue that not only was the deed procured by fraud it was also forged, so the deed is void and C could convey nothing to W. X would argue that when C signed her (X’s)


signature on the deed, C committed forgery, making the deed void. W might reply that C had X’s permission so it is not forgery; forgery normally happens when someone writes your signature without your knowing it. X might reply that C had permission to sign a purchase order, not a deed, and therefore C’s act of signing her name was forgery. Overall, even if it did look more like forgery, which is unclear, there’s a strong policy reason for saying it’s a deed procured by fraud. A court might want to punish X, who was really being careless. She declined to read what she was signing, and coached C in how to sign her name. Calling it fraud makes X (the cheapest cost avoider) re-sponsible for her carelessness, at least as against a subsequent BFP (more on that below).

W might also make an argument based on § 101. She would say the conveyance (OX/Y) is not valid against a subsequent BFP (W) unless “the same” (OX/Y) is recorded. She would say the OX/Y deed wasn’t recorded, because it was misindexed in the grantor index under “D” rather than “O.”

X would have several arguments against this, though. First, she would say the deed was in fact recorded, just misindexed. It might turn on what § 101 means by “recorded according to law.” There could be some section somewhere else defining whether indexing is part of recording. The court wouldn’t blame X for the misindexing, but it might say that she should have double-checked after she recorded it to make sure it was done right.

Even if the deed isn’t recorded, X has arguments. This isn’t a case of two successive deeds from the same grantor – in effect two inconsistent chains of title, though from the same grantor. Even though literally the statute might seem to apply here, the result of holding the OX/Y deed “invalid” as against W would be invalidate a prior deed in her own chain of title.

Also, it’s hard to see how W didn’t have notice of the OX/Y deed, so how could she be a BFP? If she’d done a title search, she would’ve found X in the grantee index (the OX/Y deed), and then found O in the grantee index (FO in 1990); searching down, she wouldn’t have found the OX/Y deed through the grantor index, which should make her wonder what was going on. But it wouldn’t change the fact that she’d have found the OX/Y deed through the grantee index. Further, X & Y were living there. Under Waldorff, she had a duty to ask them why. She couldn’t just assume they were tenants. Another problem might be that she only paid half the market value. All the statute requires is “valuable consideration,” so she probably satisfies that, but the low price might have put her on notice there was something fishy.

If W isn’t a BFP under § 101, she’s probably also not a BFP under the fraud doctrine – there are just too many reasons why she should have been more suspicious. If she was somehow a BFP under the fraud doctrine, though, the most she’d have is X’s life estate (estate per autre vie). She wouldn’t have the executory interest because C never had it, and she wouldn’t have O’s interest, since that was “conveyed” to C by forgery.

Property (A2) Question II of III Fall 2015 Page 8 of 21


I agree that the common law courts were pretty clearly pro-development. They sought to improve development by discouraging dead-hand control of land. They did so by enacting sever-al reforms to limit the power of grantors who established future interests for their grantees. One example is the doctrine of destructibility of contingent remainders, which would destroy a con-tingent remainder if it did not vest at the time of the prior life estate ended. Another example was the Rule Against Perpetuities, which does not allow contingent or executory interests to remain unvested and uncertain for longer than the perpetuities period. Getting rid of future interests helps consolidate title in one person, and makes it easier to develop the land.

It’s true that there were some exceptions to this pattern. A possibility of reverter could remain in a family for generation after generation, because RAP was never extended to it. This could impede development as much as an executory interest. But overall, the common law courts pushed to make land as marketable as possible, as the rule against restraints on alienation of a fee simple also showed.

Kelo, Euclid, and Moore are harder to characterize. They all look pro-development at first glance. Kelo made it possible for state and local governments to plan major economic develop-ment that would improve the economy. Economic development is a “public purpose” under the 5th amendment, and if the project requires transferring private property from one private owner to another as a part of a comprehensive plan, that’s allowed.

Euclid also looks pro-development because by validating the constitutionality of zoning, it allows local governments to encourage commercial growth in some areas, yet preserve the val-ue of homeowners because they know what to expect when purchasing a home in a zoned-residential area.

Moore could also be thought of as pro-development. The California court was very con-cerned to avoid defining property rights in a way that would impede growth of the biotech indus-try. It thought that recognizing a property right for patients whose organs were removed in sur-gery would make researchers afraid to use cell lines from them, for fear of being sued for any profits they made from new medicines arising from their research.

On the other hand, these decisions may not be pro-development so much as pro-federalism and pro-local control, or deferential to elected legislatures. In Kelo and Euclid the plaintiffs asked the Supreme Court to prohibit state and local governments from undertaking measures that those governments thought would help develop the economy. The court itself didn’t rule that zoning necessarily promotes development or is a good thing, or that the plan pro-posed in Kelo would work. It just said the constitution didn’t prevent local governments from giving it a try. In Moore, the Court emphasized that policy decisions about who benefits from biotech research were complicated and should be made by the legislature, which is elected and which could draw on more information than a court can.

The statement is correct in saying that Kelo and Euclid are different when it comes to compensation. The only question at issue in Kelo was whether there was a “public use” or purpose that justified using eminent domain. It was a given that if eminent domain was exercised, Kelo would get market value for her house. That may not have satisfied her, because she just didn’t want to sell her house, but that’s no different from the more usual eminent domain case, like taking your house for a highway.


Compensation wasn’t really at issue in Euclid, even though Ambler alleged it had lost 3/4 of the value of its land thanks to the zoning. All that was before the court was whether zoning itself could ever be a legitimate exercise of the police power.

But it’s true that there isn’t necessarily compensation when zoning diminishes the value of real property. I don’t think there should always be compensation. I understand that everyone wants to have the value of the property that they thought they had. But there would be two problems with requiring compensation every time a zoning change drives down porperty values. First, while zoning may reduce the value of some land, it may also increase the value of other land. Why should the government have to pay when it lowers value, but not when it increases value? May the government could demand that property owners pay it for the increase, to help fund compensation when zoning changes lower property values. But this is problably unworkable.

Second, when people buy land or buildings they know that it’s subject to zoning, and they should know that zoning may change sometimes. Zoning is just one of many factors, including the state of the economy, how good or bad the public schools are becoming, or whether the traffic is getting better or worse, that can cause land value to change.

This is why some courts say there is no automatic compensation when a zoning change makes a property’s value go down. But even those courts require amortization, meaning some reasonable transition period. The idea is to give the owner of the nonconforming property time to receive a return on his investment. Some courts will factor into their consideration the amount of money the person has spent on the non-conforming use. One problem with this approach is that it’s hard to say how long the courts will require, but 30 days isn’t likely to be enough.

Other courts are more restrictive, and say there must always be compensation when the zoning is changed and it diminishes the property value, unless the property is grandfathered in. These courts don’t allow amortization. The problem in these cases can be figuring out how the grandfathering works. What if the owner who’s grandfathered in sells the land? What if the own-er changes to a completely different business, or expands it a lot? Does the grandfathering con-tinue?

I think the courts that allow amortization, but require the period to be reasonable, have the best approach. The whole message of Kelo and Euclid is that state and local governments need some flexibility in how they regulate land. Moore had this same approach in defining prop-erty rights in body parts. The one exception should be if a government completely takes away everything you have (like your whole house, in Kelo). Then there should be compensation, but if it’s a question of changing zoning, there shouldn’t be.


I agree that the various ways to control future land use and ownership can cause problems, due to the complexity of the system. The courts have taken several steps to change this, and ensure that future generations are not overly controlled by the “dead hand” of the past, because the world is constantly changing. A rigid 25 year rule wouldn’t work well.

The system of estates and future interests has a lot of flexibility. Current owners can, for example, place controls on future use (to A so long as the land is farmed, or to the City so long as the land is used for a park). They can also specify who will own it over time (e.g., to A for


life, then to B). They can also try to put incentives on people (e.g., to A for life, then to B if B graduates from law school). Current owners can create these conditions by a gift, a sale, or in their wills or in trusts.

Current owners can also use servitudes and easements to control future use and ownership. A servitude might restrict the height or size of houses on lots, or require owners to pay association dues. The owner of lot A could ensure that not only he or she, but all future owners of lot A, will have access to a road over adjacent parcel B by buying an easement appurtenant from the owner of lot B.

The statement is wrong about restraints on alienation. In general the courts don’t allow any restraint on alienating a fee simple, because they want to protect the marketability of land. Maybe some courts would allow “reasonable” restraints on alienation (like for a few years), and a restraint on alienating a life estate might be allowed. But these are pretty limited exceptions to the ban on restraints on alienation.

I agree with the statement that the flexibility that estates and future interests and servitudes give owners has to be reined in. That is why the courts and legislatures have recognized this, and have tried their best to implement rules and regulations that honor future interests while also cutting down on the “dead hand” problem.

One example is the Doctrine of Destructibility of Contingent Remainders (DDCR). It’s a little harsh and today is recognized in only a few states. The DDCR deals with the situation that occurs when a person with a life estate dies before the contingent remainder happens. The DDCR would destroy the contingent remainder, and the original granter would get a reversion back to them. This means that a contingent remainder (which can make it hard to sell property, especially if the CR is held by an unascertainable person) can’t remain up in the air any longer than the life of the estate holder.

Another rule limiting the dead hand problem is the Rule against Perpetuities. It provides that a future interest is void upon creation unless there’s someone (the measuring life) who was alive when the interest was created and we’ll know for sure during their lifetime (plus 21 years) whether the interest will ever vest. If there is no measuring life, the future interest is void. This limits how long future interests can last. For example, in “to A so long as the land is farmed, then to B,” RAP would strike B’s executory interest, because there’s no measuring life. This helps make sure the future interest doesn’t go on forever.

In servitudes and easements, there are also doctrines to deal with the dead hand problem. An easement might be extinguished by something like adverse possession (like blocking the driveway for 10 years) or by abandonment. Servitudes might become unenforceable by some doctrine of changed conditions. A court might decide, as to an old servitude, that the touch and concern requirement had never been met, and so invalidate it. Even requirements like horizontal and vertical privity can help counter the dead hand problem by causing a servitude to be invali-dated if they’re not met.

I agree that the law in these areas can be very confusing, and doesn’t always do much to help fight the dead hand problem. For example, in estates and future interests, the RAP has all sorts of exceptions. Future interests created in a grantor aren’t covered, for example. And figur-ing out whether there’s a measuring life can be tricky. There are different ways to apply the RAP – the classic “what might happen” approach versus the wait and see approach and cy pres.

In servitudes, the courts aren’t very clear about what constitutes changed conditions. Some of them have said that so long as there’s any non-trivial benefit to the person seeking en-


forcement, it will be enforced – without any inquiry into whether the covenant still makes sense. The Pocono case shows how a covenant to pay association dues can go on forever, and be a mill-stone around the property. And some parts of servitude don’t make any sense at all. Why should the fact that a promise was made between two neighbors, but not in connection with a transfer of land (so no “horizontal privity”) mean that no damages are available (since the burden of a cove-nant can’t run without HP), even though injunctive relief may be available as an equitable servi-tude (which doesn’t require HP)? As with the estates and future interests, a lot of the distinctions drawn can only be explained historically, not in any kind of sensible policy terms.

I don’t agree that all legal restrictions on servitudes and estates and future interests should be lifted, with everything left to the market. It’s true that the market would help limit them. If someone wants to sell land but put complicated future interests in the deed, or even something simple but possibly lasting forever (e.g., that the land will be used for farming forever), they might think twice about doing it, because they’ll discover that the condition drives down the sales price. But market incentives aren’t a complete answer to the problem. The market isn’t a factor when people put these restrictions in a will or make a gift. Even where land is sold, the market might not give the right signals. Restrictions that seem fine at one point to everyone, and so don’t drive the price down much, might pose a problem many decades later. The market can’t anticipate all future circumstances.

The market is even less of a solution to the dead hand problem in servitudes. A lot of ser-vitudes are imposed with the idea of enhancing land value. That’s what reciprocal servitudes are supposed to do. If every lot in a tract has a covenant to use it only for residential purposes, thus creating an attractive residential neighborhood, overall the covenants should increase value. There’s no market signal against burdening the property. The problem is that 75 years later, un-anticipated changes in the character of the area may transform the servitudes into a burden, if no one wants a suburban residential house there anymore.

The 25 year rule might work for some future interests, and it’s simple and easy to under-stand. But if it literally applied to all future interests, it would severely limit life estates. A con-tingent remainder would be destroyed if the life estate holder lived more than 25 years after the life estate was created. Then either A would have a fee simple, or maybe it would revert back to O after 25 years. It might be better to take the USRAP approach and have a flat time period, but 90 years, which is in the USRAP, is too long. Some in-between period like 50 years might make sense.

A 25-year period is also way too short for many servitudes, and we might want some (like homeowners’ association dues) go on indefinitely. It might be better to have a flexible, case-by-case test – courts can terminate a servitude (maybe with compensation) when continued application of it would be unreasonable.


I mostly disagree with the statement because the policy reasons behind many of the rules mentioned can explain why what might seem like “theft” really isn’t. Praising Jacque v. Steen-berg, the statement seems to assume that theft occurs whenever there’s anything less than “abso-lute” protection of property rights. But that’s simplistic, for two reasons.

First, property rights have to be defined by law. They aren’t just natural things. The writer’s criticism of Moore assumes that everyone’s spleen is their property, and then criticizes


Moore for allowing researchers to steal it. But Moore wasn’t about whether your property in your spleen is protected, but about whether your spleen can be property in the first place. The court decided that it wasn’t property because the law limits an individual’s control over it so se-verely. For example, you can’t sell it or leave it in your well. The court also thought that what-ever value the spleen (which was had to be removed) might have, that value was created by the researcher, not Moore. You could criticize Moore as being wrong in deciding that body organs that are removed shouldn’t be viewed as property. Other forms of property aren’t always mar-ketable, and people who inherit property still own it even if someone else (their parents) was re-sponsible for creating the value. But it’s just name-calling to turn a disagreement over how to define property in the first place into an accusation of theft.

Slamming Moore seems even less defensible when you consider that Moore was allowed to claim a breach of fiduciary duty against the doctor. While he didn’t have a property right in his spleen once it had been removed, the court still allowed him the chance to recover for the wrong done to him by the doctor by not informing him of the doctor’s financial interest in the research. Maybe the damages wouldn’t be much since his spleen really did need to be removed, but it was some recognition of a wrong, and wouldn’t interfere with future research.

Jacque v. Steenberg may have talked about an absolute right to exclude, but trespass is actually another good example of how there can be definitional questions as to what constitutes property in the first place. In State v. Shack, the New Jersey court held that the right to property simply doesn’t include the right to exclude those who are bringing vital (maybe governmental) services to a powerless population, one the legislature had declared was in need of assistance. You could disagree with how Shack defined property, but unless you think there’s some natural definition of property rights, it doesn’t make sense to say something was “stolen” from the far-mowner. A disagreement with how the court defines property rights is fine. Saying something’s been stolen doesn’t add anything.

Second, where the property rights are defined, they may conflict, and there has to be some kind of resolution. Property rights can’t be absolute in these circumstances, and someone – maybe someone who’s not so bad – is going to lose out. Where O sells land to A, and then to B, both A and B might be fairly innocent parties. Maybe A bought first, and didn’t move in, so A’s possession isn’t obvious, and then O deviously sells to B. If O has gambled the sales money away in Vegas, it’s going to come down to a decision over who it’s fairer or more efficient to allow to prevail: A or B. How it’s resolved may vary. With a notice statute, B might win out if A could have recorded it (and so given notice to B) but didn’t. But a race-notice would add the re-quirement that B recorded it. And neither is likely to let B prevail over A if B just got it for free. These results are designed to encourage responsible behavior, like recording. That’s not “theft.”

The same is true of a BFP who buys land from X, where X had earlier procured it from Y by fraud. The BFP wins out over Y, on the theory that Y was the cheapest cost avoider – it would’ve been easier for Y to protect herself against fraud than for the BFP to know that the Y X transaction was fraudulent. This seems right. Do we really want to incentivize people to not read contracts before signing them, and then punish a subsequent purchaser in good faith and for valuable consideration when they had no way of knowing that fraud was committed? The courts and the legislature don’t seem to think so. Fraud can be easily preventable if the original owner simply does some research into what they are signing. We should also bear in mind that the court carefully makes the distinction from forgery, so original owners need not be in constant vigilan-tes at the court house checking the recording deeds indexes. Forgery is always void against any-body, even BFPs. The courts and legislature understand that you cannot be held accountable for


someone forging your signature on a deed because you have no way of knowing if and when your signature has been forged. Therefore, the harm done to the original owner greatly outweighs the harm done to the BFP.

I agree with the statement’s criticism of some of the other rules, but it doesn’t add much to the criticism to say the rules amount to theft. Banks that foreclose on mortgages don’t have much of a duty to the homeowner, and that’s worrisome. It’s true that people are usually given months of missed mortgage payments before the banks initiate a foreclosure sale, and that if banks do a foreclosure sale, they have to act in good faith. If the bank does something really dis-honest, like sell the property for practically nothing to one of its own employees, that would be bad faith and it would be liable to the homeowner for the difference between the sales price and market value. But so long as it’s not dishonest, the bank’s only duty is to engage in due dili-gence. That duty just obligates it to get a “fair value,” and most courts read that to mean anything more than a price so low it shocks the conscience. This is way too lax, and allows banks to sell for little more than the amount of money owed them, which can deprive the homeowner of all of their equity.

The problem with calling this situation “theft,” though, is that rules that were too lax in favor of the homeowner could also be called theft. If the rules about foreclosure sales were so restrictive they discouraged foreclosure in the first place, that would effectively allow borrowers to keep property after not making payments for years. And that could be called theft by the bor-rowers. It’s better just to analyze what the best rule is instead of lobbing charges at rules you think don’t strike the right balance.

I also think the Doctrine of Destructibility of Contingent Remainders should be abolished everywhere (it has been abolished in most states). With the DDCR, a developer could buy A’s life estate and O’s reversion, and any contingent remainder (like to B if B marries C) would be destroyed, giving the developer a fee simple. If O wanted B to get the property after A died, so long as B had married C, why should we have a rule that allows the developer to destroy what is, after all, a property interest owned by B? The DDCR is supposed to help avoid the dead hand problem, but we have the RAP for that.

The statement praises servitude law for providing that anyone who benefits from a re-strictive covenant can enforce it without a court weighing and balancing whether the benefits to the party seeking enforcement outweigh the detriment to the defendant. This is the rule in some states, and there’s some justification for it. If parties bargain for some restriction (no house can be taller than one story), then the party trying to enforce it is trying to vindicate a property right. Just as the Jacques didn’t have to show that the benefit to them from enforcing trespass out-weighed the harm to Steenberg, why should a party who has the benefit of a covenant or servi-tude have to show that their benefit is greater than the detriment to the person they’re suing?

What the statement overlooks with its reference to ironclad protection is that as pointed out earlier there often needs to be some limit or balance. A servitude could potentially go on for-ever. Is it fair to make the burden run to the benefit of another when conditions have changed so severely that it doesn’t even make sense for the covenant to exist? No, and courts don’t seem to think so either by allowing the doctrine of changed conditions to destroy a restrictive covenant.

Allowing property ironclad protection would be unconscionable in many cases because of the changing nature of society. While in an older time the absolute right to bar people from trespassing served a good purpose, does it still do so when it would dehumanize a minority such as migrant farmworkers? Do we really want to protect the right to trespass for example, when it


means that other individuals will be barred access to basic human rights? Society’s values don’t seem to match that line of thinking; therefore, courts have made exceptions and limitations to the absolutism of property rights. U.S. courts and legislatures don’t use property law as the occasion for theft. They use it as a way to balance conflicting interests.


I disagree with the statement that property law doesn’t do enough to encourage individual responsibility. On the contrary, I think it strongly encourages individual responsibility in many areas. For example, the implied warranty of habitability in landlord tenant law requires the owner of the property to be a responsible landlord, and make sure that the housing is safe to live in. It makes sense to put this duty on landlords because they usually are better positioned to keep the place in good condition. They have a long-term interest in the properties they own, and especial-ly if they own a number of units they are likely to be good at making repairs or know of good repair persons. Also, in apartment buildings, many problems affect more than one unit, and you can’t expect one tenant to fix them. Tenants aren’t allowed to waive this right because there is unequal bargaining power between tenants and landlords, especially considering a limited supply of low income housing. This protection doesn’t mean the law is somehow encouraging people to act irresponsibly.

Most of the other claimed examples of failing to promote responsibility don’t hold up, ei-ther. Both caveat emptor and duty to disclose promote responsibility. Caveat emptor incentivizes the buyer to check carefully and ask questions. But it also promotes irresponsibility on the part of the seller – how can it be right to sell a house with a material defect you know about, and say nothing? The duty to disclose, on the other hand, promotes responsibility by sellers, but without making buyers irresponsible. The duty to disclose still encourages a buyer to have property in-spected because a seller must only disclose the defects he knows about, and even then only if they’re not patent or obvious. This leaves the buyer with a strong incentive to be responsible and look at and inspect the property.

For similar reasons I disagree that an implied warranty of habitability for builders fails to promote responsibility. I believe that it encourages responsibility – it makes the person who is profiting from the building of a house take care when building it. A builder has more expertise in the area and has the ability to spread costs by charging higher prices for houses that he builds in order to account for his liability should one of his houses fail to comply with the implied warran-ty of habitability. In contrast, a buyer has no means to make up for the costs of having purchased a house that is uninhabitable, and doesn’t have anywhere near the expertise the builder has.

There is some truth to the statement’s complaint about married couples’ debts. In states that recognize tenancy by the entireties, the creditors of one spouse can’t get at the share owned by the debtor spouse. If the husband runs someone down, or runs up debts in Las Vegas, the hus-band’s creditors are out of luck as far as being able to recover on a judgment against him by forc-ing him to sell his share in the house. This does seem to reward irresponsibility. This is especial-ly unfair to unintentional debtors, like tort creditors. They should be able to get at entireties property because they had no choice in becoming a creditor of the spouse. It’s true that shielding the property keeps the married couple from having to sell their house, but maybe the spouse who ran the debt up should have been more responsible in the first place. I do think it’s very different for voluntary creditors, like lenders or casinos, though. Before they lend to someone, they can


check to see what assets the would-be borrower has, and what form they’re held in. In these cas-es the law is actually giving the lenders an incentive to act responsibly.

The statement makes another claim about the property that I also disagree with. It says that there are cases where the law is just plain inconsistent about responsibility. But the examples it gives don’t really prove that.

The statement is right that adverse possession forces home property owners to be careful and not sleep on their rights. They need to take care of their land at least to the point of noticing if someone else is occupying or improving their land. Adverse possession law also gives incen-tives to adverse possessors to act responsibility. They must actually possess the land in an open and notorious way, in a way that gives notice. They also must continuously possess the land and maintain exclusive possession.

Where the statement goes wrong is saying that disallowing prescriptive negative ease-ments is inconsistent with adverse possession law and promotes irresponsibility. A negative easement is a right by A that B not do something on B’s land (like block a view). It’s fine if A and B want to negotiate that, although in many states there are severe limits on the kinds of nega-tive easements allowed – it might be better to use a servitude. And it’s also fine to have prescrip-tive easements, like where A walks across B’s property for many years without permission, and gets an easement by prescription. But to get a prescriptive negative easement would be unfair. If A is enjoying the view across B’s property, what is B supposed to do? Block it? It’s not even clear B would have the right to get an injunction against A to look across B’s property. So it’s not somehow promoting irresponsibility on B’s part to say that there’s no way that A could ever get a prescriptive negative easement to have the view across B’s lot left clear.

The statement is also right in saying that the law doesn’t allow someone with fee simple title to just abandon ownership. In Pocono Springs the law did not allow a family to abandon their utterly useless property. This had pretty harsh consequences for the family, but in general we do want someone to be responsible for each piece of land. If you could just abandon property, effectively the government would have to watch over the lot, and that would make the taxpayers responsible.

The statement is wrong in saying that allowing abandonment of easements is inconsistent with not allowing abandonment of fee simple. They’re very different. An easement is not full ownership of property. It’s the right to use someone else’s property in a particular way, like driv-ing across it. There are no undesired effects if an easement is abandoned because there is still a responsible owner of the property after the easement is abandoned – the owner of the servient estate.

Finally, although I agree that encouraging individual responsibility is an important task for any successful form of government, I doubt legislatures are more likely to promote individual responsibility than the judiciary is. It was the courts who decided that there is an implied warran-ty of inhabitability for rented property and for builders. It was the courts who developed adverse possession law, and the courts who created duty to disclose liability. Where the legislature has gotten involved, it’s tended to promote less responsibility. Statutes like the one in Florida have rendered the doctrine essentially powerless in some cases, like border strips.

Probably the one area where it’s clear legislatures have done more to promote responsi-bility is in those states that abolished entireties, leaving joint tenancy or tenancy in common as the way for married couples to own property. Creditors can easily get at a debtor spouse’s share in that case. But overall, there’s a good case to be made that judiciaries are at least as likely, and


maybe more, to promote responsibility.

The statement does have a point in saying that policy matters are best left to the legisla-ture. We live in a democracy, and the legislature is elected. Even here, the statement is wrong in one respect. When courts make policy decisions, they’re not usurping the legislature’s role. Leg-islatures always have the power to modify the common law by statute. Given this power, and given the better track record of courts on promoting responsibility, I think it’s best to leave many property issues to the courts, with the legislature only intervening where necessary.

Property (A2) Question III of III Fall 2015 Page 17 of 21

Question III(A) (90 minutes)

Beatrice could claim adverse possession under §§ 95.12-95.231. She could defend against a lawsuit by Albert to eject her. Under 95.12, his action to recover possession would fail if he couldn’t show he possessed the property within 7 years of the lawsuit. Or Beatrice could sue Al-bert to quiet title. Under § 95.14 she’d have to show she possessed the property within 7 years. Either way, she’d say she’s had it since 2005, which is more than 7 years.

She’d also have to meet the other requirements of the statute. Some of them are common to both color of title and not color of title. First, she’d have to show she had entered into posses-sion of the contested land. (95.18(1) says “actual” possession; 95.16(1) refers to entering into possession). She’d say that when she was raking and fertilizing she was possessing the strip. And when she built the addition and put the wall up, she was even more clearly possessing it. Albert wouldn’t really have any argument that she wasn’t in possession of it from 2010 on, when she built the addition. He might try to claim that her activities before then were too transient to be possession, but that would be hard to prove. Her activities would’ve been trespass.

Second, she’d have to show her possession was “hostile,” meaning she was acting like an owner (“a claim of title exclusive of any other right” in 95.16(1) and 95.18(1)). This just means that she was there without anyone else’s permission. That’s indisputably the case here.

Third, she’d have to show her possession was exclusive. This wouldn’t be hard on these facts. There’s no indication that anyone else in the neighborhood was using this strip. Once she put the wall around it she made it even harder for others to get in.

Fourth, she’d have to show her possession was open and notorious. Those words aren’t in the statute, but courts usually read AP statutes as incorporating them. This is how courts should read the statute, because the requirement ensures that the AP claimant’s activities give the title holder notice that someone else is staking out a claim to their property, which is only fair.

In 2010, Beatrice built an addition on the strip, and put a stone wall around what she saw as her yard, which included the strip. She would argue this was clear notice to the world that she was treating the strip as her own. It’s Albert’s problem that he didn’t see it because he was in London. He could have hired someone to check on his property. We want people to be responsi-ble landowners and not just ignore their property.

But this only gets her 5 years. The statute requires at least 7. She’d have to show that the period from 2005-2010 was also open and notorious. She would say that raking made the strip look clean and neat and like a part of her property, and it obviously didn’t just happen naturally. Fertilizing also made the strip look like it was part of her property, and so put Albert on notice.

Albert might say that raking wasn’t open and notorious. It was just moving leaves around, and by the spring there wasn’t such a stark contrast between the raked and unraked areas. Also, a neighbor might rake part way into someone else’s yard without intending to claim it as their own. How was he to know? The same is true of the fertilizer, which was even less obvious.

It’s important that this is a suburban neighborhood. For the property to be possessed, the statute mentions usually cultivating the property (95.16(2)(a) and 95.18(2)(a)). This is relevant to whether the possession is open and notorious. In most neighborhoods it’s usual for people to on-ly rake and fertilize their own yards, or maybe go a little over the line. 30 feet over is way more


than people would usually do. This might convince the court. Albert’s only hope on this element would be for the Cania courts to be hostile the idea of AP, in which case they might try to re-solve all doubts against it. They could say, “you’ve got to do more than rake some leaves to put the title holder on notice.”

Both 95.16 and 95.18 talk about continued possession, like the common law. As of 2010, continuity would be pretty easy for Beatrice to show. Her addition is permanent and she’s got a permanent wall.

The harder part is showing that her possession from 2005-2010 was continuous. Albert would argue it wasn’t. She just raked the leaves in the fall, so every year there was a break of many months. If she fertilized in the fall as well, then he’d say there was no continuity at all. If he’d checked on the land every spring, for instance, he wouldn’t have seen see her out on the strip. How could this put him on notice? Albert could also argue that this kind of seasonal at-tachment to the land isn’t the sort of putting down roots that AP seeks to protect.

Beatrice would argue it was continuous. It would help if she did the fertilizing in the spring or summer or both, so there wouldn’t be just one season when she was on the strip. If all her activities were in the fall, she might try to claim that it was the practice in the neighborhood to rake and fertilize and the fall, and that Albert should have thought to check at least some times in the fall when people tended to be out in their yards working on them. But this argument seems weak; people might be out in their yards in the spring or summer or winter, too.

A stronger argument for Beatrice might be that her possession was continuous because it was as if she put up a year-round sign on the strip year round, saying, “I’m treating this strip like it’s mine.” The “sign” is how different she made the strip look from the rest of Blackacre and how identical she made it look to Whiteacre. This should put Albert on notice. And by doing things that kept the strip looking the way she thinks lawns should throughout most of the year, she established the kind of bond with the property that AP law aims to protect.

Beatrice probably wouldn’t have to prove state of mind. Nothing in the language of the statute clearly requires the AP to (a) know the property is not theirs, or (b) mistakenly think the property is theirs. A few states do require one or the other. Some states figure it can’t really be adverse if you enter by mistake. Other states don’t want to reward theft. But state of mind can be hard to prove, and most states just view it as just plain irrelevant. The issue should be whether the AP developed strong ties to the land, made good use of it, and put the title holder on notice. Also, we don’t want to be litigating cases based on very old evidence, where memories have fad-ed or evidence disappeared, which is especially hard with state of mind.

Beatrice would also have to meet one other requirement in the statute – color of title ver-sus not. To establish a claim under color of title under 95.16(1), she’d have to show that (a) she “founded the claim on a written instrument” as a conveyance of the property, and (b) she record-ed the instrument. She did record her deed. But is her claim to the strip founded on it? The Flori-da courts say this means that the deed describes the land you adversely possessed. If the Cania courts agree, then her deed would’ve had to describe the strip. Here it’s unclear. The deed was a little vague – but also she misread it. That could make a big difference; the strictest approach would say, “tough luck” if she misread it, but maybe be different if the deed could possibly be construed to cover the strip. This is another area where the court’s general attitude to AP could matter.

Cania courts might read 95.16(1) differently from Florida. They might say so long as you


enter under a deed you recorded, it’s under color of title. This might be hard to defend, though. How would a deed that doesn’t include a description of the land give notice to the title holder?

Beatrice might point to the wall and say the strip was protected by a substantial enclo-sure. § 95.16(2)(b). But you don’t even get to (2) unless you can fulfill (1). And anyway (2)(b) specifically says that all the land in the enclosure must have been described in the written in-strument. That’s the same issue as to (1). She might also say she “usually cultivated” the strip, and so possessed it (95.16(2)(a)). But as with (2)(b), you only get to that section if you first ful-fill (1).

If Beatrice couldn’t make a claim under 95.16, she could try 95.18 (not color of title). There’s no requirement of a deed. But she would have had to in in fact paid all the taxes on the strip, after notifying the property appraiser in writing that she was claiming it. She didn’t do that.

I think Beatrice should lose. AP may have made sense earlier when property records weren’t very good, but now they’re much better. It’s better to just go with written instruments, especially with border strips. This doesn’t totally preclude AP in the case where O sells to A, and then O sells again to B, and B, who might otherwise lose out under the common law, is the one who actually enters. Maybe B’s deed wasn’t valid, but it was under color of title, and the deed would describe the lot.

If Albert did prevail on AP, he’d want an injunction to make her tear down the wall and get her addition off his property. That’s the best remedy for trespass, which this is.

Beatrice might invoke the improving trespasser doctrine to limit the relief that Albert could get. She would say she entered the land innocently – she didn’t know it wasn’t hers. The courts won’t allow the improving trespasser doctrine to be invoked if the person knowingly en-tered someone else’s land, because they don’t want to reward theft (at least until the statute of limitations has run!). She would have to show that she’d suffer great hardship from having to remove the addition and the wall – presumably it’d be very expensive. She’d ask for the right to buy the strip at market price. She’d have to counter any claim by Albert that what would be left of Blackacre would be so small as to be worthless or unsuitable for building a house. If she was successful, the court could limit Albert’s remedy to the market value of the 30 feet strip of land.

Question III(B) (75 minutes)

This question is governed by the Landlord-Tenant statute, which applies to “rental of a dwelling unit,” § 83.41. The apartment is a dwelling unit under 83.43(2), since it’s part of a structure rented for use as a home by one person. The fact that Tony also does some work there (research on lab mice) shouldn’t make the statute inapplicable since it’s primarily his home.

(a) Whether Linda is responsible for exterminating the roaches depends on two questions: (1) in the absence of any valid waiver by Tony, does she have a duty to do so, and (2) was there a valid waiver?

(1) § 83.51(1)(a) requires the landlord to comply with applicable housing codes. The apartment is in the City of Miami, so the City of Miami Housing Standards apply. § 17-63 for-bids a landlord from renting out an apartment unless it meets certain standards, one of which re-lates to roaches (subsection 7). Tony is renting a “dwelling unit in a building containing more than one (1)” unit. If his apartment were the only one infested, then he, not Linda, would have


the responsibility for exterminating roaches. (There is an exception to this – where it’s the land-lord’s fault that the infestation took place – but it doesn’t apply on these facts.) If somehow all the roaches from next door left that apartment and moved into Tony’s place, then it would be Tony’s problem, not Linda’s.

However, it seems more likely that they’re in both apartments. § 17-63(7) seems to say that if more than one unit is infested, it’s the landlord’s responsibility to exterminate. This makes sense, because in a multi-unit building, infestation in more than one unit is a sign that the roaches are probably spreading between units, and there’s no way any one tenant can stop that.

Tony may not need it, but he might also want to look at 83.51(2), since it has additional duties. It also says the landlord of a multi-unit building must provide for roach extermination (subsection 1).

Linda might try to say that she’s not responsible because Tony is a slob. As to her duty under the housing code and 83.51(1), she might say he violated § 17-63(2), which says the tenant is supposed to keep the unit clean and sanitary. He had pizza crusts in the kitchen and ate crack-ers in bed. While this isn’t the best conduct, it’s not that unusual, and it’d be overly harsh to say the tenant is violating the code. Even if it is a code violation, 17-63(7) doesn’t give the landlord an exemption where the tenant has violated 17-63(2).

As to any duties under 83.51(1) or (2), Linda might cite 83.51(4), which says the landlord isn’t responsible for duties under 83.51 if the problem was caused by “the negligent or wrongful act or omission of the tenant.” She might say that he omitted to keep the place clean and sanitary, as required by § 83.52(2) and (3). Again, though, it would be overly harsh to require tenants to keep their apartments squeaky clean at all times.

(2) Even assuming Linda has a duty to exterminate, Tony may have waived it. Tony did agree in the lease that he waived all his rights under Florida and local law on the condition of his apartment. Duties under 83.51(1) can be “altered or modified in writing,” but only as to a home or duplex. So if Linda has a duty under 83.51(1), any waiver of it is void. On the other hand, du-ties under 83.51(2) don’t apply if the tenant agrees otherwise in writing. The kind of very broad waiver in the lease might not be good enough; maybe a landlord should have to specifically say what rights are being waived. § 83.47 voids a provision that purports to waive the provisions of “this part,” which is all of Florida Landlord Tenant law. But even if the waiver worked under 83.51(2), the duty under 83.51(1) would still apply.

Overall, it seems like it should be the landlord’s responsibility in apartment buildings to exterminate roaches. The landlord is much better positioned to deal with the problem, given how easily they spread to more than one unit.

(b) Assuming Linda is responsible, Tony could try to force her to exterminate under 83.60. He would withhold rent, and then if she sued to evict him for failing to pay rent, he could interpose the defense of her failure to comply with 83.51. This could only be done if he could show that the duty was under 83.51(1), because that’s all 83.60 allows. If for some reason 83.51(1) didn’t apply and Tony was relying on 83.51(2), he’d be out of luck. To raise the de-fense, he’d need to give her 7 days written notice, giving her the opportunity to fix the problem. As soon as he was sued, he’d have to pay the rent due to the court registry. Ultimately the court might reduce the rent for the time when Linda failed in her duties § 83.60(1)(b).

Tony could also just seek an injunction or damages under § 83.54. What he couldn’t do is hire an exterminator and deduct the cost from the rent. Florida doesn’t have repair and deduct,


and the legislature seems to have meant to leave it out, since there’s a repair and deduct provi-sion in the model code the Florida statute was based on.

It makes sense for the law to give some way besides just suing the landlord to pressure the landlord to fix problems she’s responsible for. But the whole procedure under 83.60 is cum-bersome for the tenant. It would better if the statute had repair and deduct (after written notice to the landlord), because it would be more efficient to avoid pushing situations into court action. Under the Florida statute, the only practical way to press the landlord is to withhold rent and get yourself sued for non-payment of rent.

(c) Linda is also seeking evict Tony for violating the lease. The lease says no pets, so he’s in violation of that. He might be in violation of § 83.52. Having mice run free might violate housing or health codes (1), and might disturb the neighbors, if they manage to get out of his apartment.

One thing Tony couldn’t do if she sues him for violating the no pets provision is defend on the basis of her failure to comply with the housing code (because she’s not getting rid of the roaches). § 83.60(1) is clear that the landlord’s failure to comply with the housing code can only be raised as a defense in an action for non-payment of rent.

Tony might try to claim the mice aren’t pets, they’re lab mice. He does use them for experiments, but he also names them and lets them run around, which seems more pet-like. Unless there’s some clear public good in treating an animal as something other than a pet (like a service dog for people with disabilities), a court ought to read “pets” broadly, especially as to aimals that have the potential to disturb other tenants. Also, even if the mice weren’t in violation as “pets,” there’d still potentially be a violation of § 83.52(7).

§ 83.56 allows the landlord to evict tenants for having pets in violation of the lease. § 83.56(2)(b) mentions having unauthorized pets as a basis for eviction, and the violation is material because he’s been doing it a while. But Linda can’t just evict him immediately. Section (b) says he should be given a written notice with 7 days to cure the violation, and only if he doesn’t get rid of the pets could she evict him. That hasn’t happened here.

Linda is hoping to take advantage of one part of (2)(b), which allows the landlord to serve a notice of termination with no opportunity to cure if it’s the second time in 12 months. She says he has two strikes, roaches and pets. But the roaches may not be a violation on his part. And anyway the statute seems to refer to two instances of the same violation within 12 months – like having a pet, then getting rid of it, then a few months later getting another pet.

In theory Linda could point to 83.56(2(a), where there’s no opportunity to cure. There’s nothing about mice there but it’s clear the examples are just that (“examples of noncompliance include ….”) She might say letting mice run free in the apartment is “misuse” of the property “by intentional act.” But that would practically have the effect of converting all pet violations into a cause for immediate eviction with no opportunity to cure.

Linda has to give Tony the opportunity to get rid of the mice. She can’t just evict him immediately. This result makes sense because nothing in what Tony’s done shows the kind of recalcitrance or scoff-law attitude that the legislature had in mind.

UNIVERSITY OF MIAMI Property (B1) Final Examination



I. EXAM FORMAT & TIMETABLE This is a four-hour closed book exam. There is no separate reading period. Use the extra sixty minutes as you see fit. Keep in mind that you’ll need to spend some time reading the Questions to decide what to answer. And you’ll need to spend significant time outlining your answers.

Times shown for the Questions add up to 3 hours. The times shown for the Questions reflect their weight in grading, so it’s important to keep them in mind.


Question Time (minutes) Question I 30 Question II (answer A, B, or C, NOT all three) 90 Question III (answer A, B, or C, NOT all three) 60 Total 180








PROPERTY (B1) QUESTION I OF III Fall 2014 Page 2 of 31

Question I continues on the next page →


Handwriting: Please begin your answer in a bluebook marked “Question I.” Please write your AGN on the cover of each bluebook. Please skip lines and write on one side of each page. Laptops : Please type “Question I” at the start of your answer.

The following events take place in the hypothetical U.S. state of Cania, which generally follows the common law. You may find the following timeline helpful. Note that it does not contain all the facts needed to answer the Question. 2004: O writes will: (a) trust (local bank as trustee), with payments to A for life, then to

the first of A’s grandchildren to graduate from law school; (b) Blackacre to B “so long as all farming business on the land is conducted humanely, otherwise to the Church of Cania”; (c) any other property in O’s estate to Humane Society

2005: O dies. Will takes effect 2012: B starts puppy mill on Blackacre May 2014: F graduates from law school 10/2014: A dies in Haunted House Tour on Halloween

Family Tree

Olga was a wealthy farmer and businessperson. In her later years she had considerable hold-ings in stocks and bonds (worth about $10,000,000) and a farm called Blackacre. On the farm she raised pigs, cattle, and sheep. Olga was horrified by the way farm animals were treated in agribusinesses. Practices like caging pregnant pigs, confining calves in very small crates, or us-ing shearing equipment on sheep that inadvertently rips off bits of skin, all gave her nightmares. “Call me a softie,” she remarked to her lawyer when she signed her will in 2004, “but I hate any kind of cruelty to animals.”

When Olga in 2005, died she left behind a son and a daughter, Alberto and Beryl. Concerned about Alberto, who she feared was bad with money, she provided in her will for the creation of a trust to support him. The will placed all her stocks and bonds into the trust. It further provided

Alberto Beryl

Chris & wife Debby & husband

Ernesto

Florence

Olga

PROPERTY (B1) QUESTION I OF III Fall 2014 Page 3 of 31

that the income from the trust would be distributed to Alberto for his life, and then when he died, the trust would be liquidated and the stocks and bonds distributed “to the first of Alberto’s grandchildren to graduate from law school.”

In addition to setting up this trust, Olga’s will also left Blackacre to her daughter “Beryl, so long as all farming business on the land is conducted humanely, otherwise to the Church of Ca-nia,” which Olga had attended.

Finally, Olga’s will contained two other provisions: it provided that any other property in Ol-ga’s estate would go to the Humane Society of the United States, and it named a trustee (a local bank) to manage the trust.

When Olga died in 2005, Alberto was 60 years old, married, and had two children, Chris and Debby, each of whom was married. Chris and her wife had a son Ernesto in the 9th grade, and Debby and her husband had a daughter Florence in the 11th grade.

After Olga’s death, the trustee began to make regular payments of income to Alberto, funded by the interest and dividends on the stocks and bonds. Also in 2005, Beryl took over the farm on Blackacre.

By 2012, Beryl had grown tired of farming. She sold all the pigs, calves, and sheep to a slaughterhouse, and set up a puppy mill on Blackacre. The Humane Society defines a puppy mill as “an inhumane, commercial dog-breeding facility in which the health of the dogs is disregarded in order to maintain a low overhead and maximize profits.” Beryl believed there was a market niche in the US that had not been filled – Belgian sheepdogs, which are great at herding sheep – and that she would fill that niche. Within a year her puppy mill was up and running, selling thou-sands of Belgian sheepdog puppies to sheep farms, and making a lot of money for Beryl. She found the Humane Society’s regular exposés of horrific puppy mills to be a particularly useful source of ideas about how to cut costs and make even more money.

Florence graduated from law school in May 2014. To celebrate the news in September that she’d passed the bar exam, she invited Alberto to a haunted house tour on Halloween. Alberto suffered a heart attack and died when a mummy leapt out at him. “Too bad about Gramps,” Flor-ence told her mother Debby (Alberto’s daughter). “But maybe it’s better this way. I’ll have a lot more fun with the money than he ever did.” In the meantime, the Church of Cania has sent a let-ter to Beryl, stating that pursuant to the terms of Olivia’s will, Blackacre now belongs to the Church. And the Humane Society’s lawyer has advised it that it may be entitled to the stocks and bonds or Blackacre or both.

Discuss and evaluate the strengths and weakness of all the potential claims to the stocks and bonds, and to Blackacre. Assume you have just moved to Cania to practice law there, and have waived in without taking the bar, so you need to research what the relevant law is. Explain what you’d need to research, what you might find, and how it would affect your advice.

PROPERTY (B1) QUESTION II OF III Fall 2014 Page 4 of 31

Question II (90 minutes) (Answer any ONE of Questions II(A), II(B), or II(C), NOT all three)

Handwriting: Please begin your answer in a new bluebook marked “Question II(A),” “Ques-tion II(B),” or “Question II(C),” depending on which one you choose to answer. Please write your AGN on the cover of each bluebook. Please skip lines and write on one side of each page. Laptops : Please type “Question II(A),” “Question II(B),” or “Question II(C),” depending on which one you choose to answer, at the start of your answer.


The following hypothetical events take place in Cane Town, a hypothetical city in Florida. Cane Town has no housing code. The pages from the Supplement containing the Florida Landlord Tenant Statute are attached at the end of this exam, with a Table of Contents of the section num-bers indicating which page each section is found on.

On November 1, 2014, Tony Tenant moves into a two-bedroom, one-bathroom apartment in a 30-unit building in Cane Town, Florida. The entire building is owned by Leslie, who rents out the units to tenants. Tony plans to sleep in one bedroom and use the other as an office for his home-based business, sleeping in the apartment when he has to work late into the night (which happens once or twice a week). He signs a 2-year lease. Among other things the lease provides that “Tenant shall be responsible for all repairs and upkeep.”

After he moves in, Tony discovers that the toilet isn’t functioning properly, and won’t flush completely without using a plunger every time. He also discovers a severe bedbug infestation in the bedroom he’d been planning to use as his office. It mostly doesn’t seem to affect the other rooms, but it’s so bad in that bedroom that he ends up closing the door to it and never going in it. He runs his business from a desk in the living room.

Tony calls Leslie to complain about the bedbugs and the toilet and to ask her to fix them. “Stop wasting my time with all your whining,” she says. “Read the lease.” Irritated, Tony de-cides to call Leslie’s brother, the Very Rev. Kirk, who is well known for his ministry to the poor and downtrodden. Two years ago when Rev. Kirk learned that some Cane Town employers were paying less than minimum wage, he organized protests that resulted in upgraded enforcement of minimum wage laws by Cane Town officials. “Rev. Kirk’s a very effective guy,” he remarks to a friend. “And if it makes her look bad in her brother’s eyes, well, you know, the simple pleasures in life are the best. Two days later he calls Rev. Kirk and says, “You of all people should know what your sister’s up to.” Tony goes on to let him know about the bedbugs and toilet problem that Leslie refuses to fix.

Answer all the following subquestions. Treat each subquestion separately (i.e., ignore any facts in the preceding subquestion(s) when answering a given subquestion). Note that the subques-tions vary in complexity and thus in weight. As a rough guide, the times below give how many minutes you would spend on each if you spend a total of 90 minutes to answer them. (1) (35 min.) Suppose Tony comes to you for advice. He wants to know if he can call a plumber and an exterminator and get the toilet and bedbug problems fixed, and then deduct the cost from his next rent check on January 1, 2015. If he can’t do that, what if anything can he do to force Leslie to fix the toilet and get rid of the bedbugs? Can he get his rent reduced because he doesn’t

Question II(A) continues on the next page →


have full use of the apartment? He tells you he likes the location of the apartment and doesn’t want to move out. What advice do you give him? Explain.

(2) (15 min.) Suppose Tony decides to take matters into his own hands and thoroughly sprays the infested bedroom with an insecticide one of his friends recommends to him. Unfortunately, the insecticide severely stains the walls and the carpets. He also tries to repair the toilet but ends up damaging the pipes and bathroom wall. Leslie finds out about the damage when she happens to stop by one day. “That’s unacceptable,” she says. She tells him she’s going to serve him with a notice of eviction.

Tony comes to you for advice. He wants to know if Leslie can evict him. “Don’t I at least get a second chance?” he asks. What advice do you give him? Explain. (3) (15 min.) Suppose Rev. Kirk tells Leslie about his conversation with Tony, and Leslie then angrily calls Tony. “Bad-mouthing me to my own brother?” she asks. “That’s outrageous. And I told you to stop complaining about the bedbugs and toilet. I have half a mind to evict you now. I’ll let you know tomorrow what I’m going to do. But even if I don’t this time, let me tell you – if you ever do anything like this again, I’ll evict you so quick your head will spin.”

Tony comes to you for advice. He wants to know if Leslie could legally make these threats or even evict him. What advice do you give him? Explain. (4) (15 min.) Suppose Leslie has a change of heart and decides to fix the problems. A plumber tells her that the problem originates with some of the pipes, and fixing that will require turning off the water to the whole building for 6 hours. She gives the plumber the OK to do that, and one day when Tony is gone, the plumber shuts off the water and fixes the pipes.

Tony comes to you for advice. He says that a neighbor of his, irritated by losing water service for 6 hours, told him that anyone renting an apartment in the building during the shut off had a clear right under Florida Statutes § 83.67 (Supp. 172-173) to sue the landlord for three months’ rent as damages. “Is that right?” he asks you. “I could use the money.” What advice do you give him? Explain.

(5) (10 min.) Suppose Tony decides just to move out, figuring it’s a hassle dealing with bad land-lords. Tony comes to you for advice about what could happen if he does that. “I know Leslie will get mad, but what’s she gonna do? She’ll just have to find another tenant, and I’ll be off the hook … won’t I?” What advice do you give him? Explain.

Question II(B) starts on the next page →



The following events take place in the hypothetical U.S. state of Cania. You may find the following timeline helpful. Note that it does not contain all the facts needed to answer the Question.

2005: A buys house for $650,000. $550,000 loan/mortgage (BC). ARM. Initial rate: 2%. Recorded. Payments sent to SERVCO, servicing agent

2006: BC sells loan/mortgage to LB. Not recorded 2008: ARM rate rises to 8%. Market crash; housing prices fall 1/2013: A loses job 1/2014: House recovers value 6/2014: A stops paying mortgage 9/2014: Notice of foreclosure 10/31/14: Foreclosure sale; LB buys for $410,000 11/2/14: LB employee lists house with agent for $675,000

Alberto buys a house for $650,000 in Cane County in 2005. He uses an inheritance to cover $100,000 of the cost. To finance the rest of the purchase price he borrows $550,000 from the Bank of Cania (BC), giving BC a mortgage as security. Cania has a “statutory power of sale,” meaning that no prior judicial approval for a foreclosure sale is needed so long as the mortgage holder complies with all legal requirements. Thus in the mortgage document Alberto gives the mortgagee (BC) the power to sell the house if he defaults. The underlying loan is an adjustable rate mortgage loan (ARM) with an introductory rate of 2%, well below the average home loan rate of 6% at the time. This initial rate lasts 3 years, after which the rate is set by an index. If Alberto had had to pay 6% interest at the start, the monthly payments would have taken up about 60% of his monthly income.

The grant of the mortgage by Alberto to BC is duly recorded in the Cane County land records. Every month Alberto sends a check to SERVCO, a mortgage servicing agent that BC has hired to receive and process payments.

In 2006 BC sells the mortgage on Alberto’s house and the underlying loan note to Lemon Brothers (LB), an investment bank that buys mortgages and pools them into trusts that form the basis for mort-gage-backed securities to be sold to investors. The mortgage payments by the homeowners provide income to the trust; owners of the securities are entitled to periodic payments of income from the trust, which remains the owner of the mortgages themselves. The prospectus given to investors simply states that LB purchased “all mortgages acquired by the Bank of Cania on Cane County residential proper-ties in 2005,” but gives no detailed descriptions. LB’s purchase of Alberto’s mortgage is not recorded in the Cane County records.

Alberto continues to make payments to SERVCO, which LB has also designated as the mortgage servicing agent. By 2008, the balance on Alberto’s mortgage is $500,000. After the market crash that year, the value of his house falls to $400,000. Also, when the variable rate feature kicks in, the interest rate shoots to 8%. Alberto is barely able to continue making monthly payments on time, but he does so for a while.

In January 2013, Alberto loses his job. Unable to find other work, he runs through his cash savings to pay his monthly mortgage. By January 2014, fearing that he’s running out of cash and will soon be unable to continue to make payments, he consults several real estate agents about selling his house. They all tell him his house has recovered its value well, and is easily worth about $650,000; his mort-gage balance at this time is $400,000. They urge him to sell it to pay off the mortgage, but he has grown too attached to the house to consider doing so.

Question II(B) continues on the next page →


In June 2014, Alberto stops paying the mortgage, unable to find work and having run out of cash. LB decides to foreclose. LB sends a registered letter to Alberto stating that “LB as the mortgagee intends to exercise its power of sale under the mortgage.” He is depressed and busy looking for work, and does nothing. LB also places an ad in the legal section of the “Cane County Times” noticing a sale of the property on October 31, 2014 by LB as the mortgagee. The Cane County Times originated in Cane County, but today virtually all its printed circulation is in the much larger and more populated Palm County, where it is published. The Times’ slogan is “the paper of record for Palm and Cane Counties.” The paper also has a website with all the content of the printed version.

Bidding is to take place in LB’s Cane County office. LB does no other advertising and does not hire a real estate agent. It lists the property on a commercial website, “foreclosure.com”, frequented by buyers looking for great bargains.

On October 27, the National Hurricane Center predicts a significant chance that a hurricane will hit Cane County on October 31, 2014. LB considers postponing the sale, but on October 30 the hurricane takes a sharp turn north; Cane County suffers some strong winds and rain, but no hurricane the next day. LB goes ahead with the sale. The sole bidder is LB, which purchases Alberto’s house for $410,000 – the balance on the mortgage plus $10,000 in other costs.

Two days later, the LB employee who’d been in charge of the sale, and who sensed that Alberto’s house might be worth a fair amount of money, lists the house with her sister-in-law, a real estate agent, for $675,000. The house is featured on the agent’s website and placed on a multiple listing service; the agent also plans to arrange several open houses.

A friend tells Alberto about the listing. By the this time Alberto has found a job, and is angry over the foreclosure. He seeks your legal advice. “The whole mortgage stinks,” he adds. “Talk about bait-and-switch. I was barely able to keep current when the rate shot up, until I lost my job. And was that sale on Oct. 31 really OK? How can they just turn around and make a profit off my house? Plus, I also don’t get it: who is Lemon Brothers anyway? I was sending my checks to SERVCO, but I’d thought the Bank of Cania owned the mortgage. I checked the Cane County records yesterday and that’s what they still show: the Bank of Cania owns the mortgage. But even if they somehow could sell my house, wasn’t LB obligated to sell it for its market value?,” he asks. He concludes, “Tell me – is there any way to get an order voiding the sale on Oct. 31? Even if not, don’t they owe me at least $240,000 [the difference between $650,000 and the $410,000 sales price]? Or what about some relief in light of the outrageous terms of the mortgage in the first place?” What do you advise him? Consider what arguments he could make and what defenses LB might have, and evaluate them in the course of giving your opinion. Also, what should the law be in this area, in your view? Explain. Note: Cania generally follows the common law. It also has the following statutes: § 101: Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful. § 102: The mortgagee may, upon breach of the terms of the mortgage, exercise the power of sale without prior judicial approval; provided, however, that no sale under such power shall be effectual to foreclose a mortgage, unless, previous to such sale, the mortgagee has sent notice of the sale by regis-tered mail to the owner of record of the equity of redemption prior to the date of sale, and notice of the sale has been published at least once in a newspaper published or circulated in the county where the land lies. The notice to the owner of record and the notice published in the newspaper must identify the property and the mortgagee of record.

Question II(C) starts on the next page →



The following events take place in the hypothetical U.S. state of Cania. You may find the following timeline helpful. Note that it does not contain all the facts needed to answer the subquestions.

1995: Wild boar attack 2011: O A. Whiteacre. Includes easement across Whiteacre and use restrictions on

Blackacre. Recorded 2012: A NC. Not recorded 2013: A X&Y jointly not as T-i-C. Not recorded Early 2014: X&Y build luxury cabin on Whiteacre 11/2014: X is gored to death 12/2014: X’s funeral; Z shows up and makes claim. NC shows up and makes claim.

Odile owns Blackacre, a lot on the southern shore of Lake Cania. She lives in a one story house on the lot. The area is rather hilly, and the back part of Blackacre, away from the lake, is 20 feet higher than the part of Blackacre on the lakeshore. The back half of Blackacre is heavily wooded, largely in its natural state. Directly east of Blackacre, next to it, is Greenacre, also un-developed.

In 2011, Odile subdivides Blackacre, creating a new lot on the southern half of Blackacre (away from the lake, and fronting on the road). She names the new lot “Whiteacre.” She sells Whiteacre to Amanda. In the deed to Amanda, which is recorded, Odile promises on behalf of herself, her heirs and assigns for the benefit of Whiteacre, never to have a structure on Blackacre higher than one story, so as not to block the view of the lake from Whiteacre. In the deed, Odile also reserves for herself an easement for a driveway from the road to Blackacre; otherwise, Blackacre would be landlocked, accessible only by the lake. Odile has a gravel driveway put in and puts a small sign on it saying “Boar Lane.”

Amanda, who is 80, looks forward to spending her retirement on Whiteacre with its beau-tiful view of the lake after she builds a house on it. She’s alarmed one day in 2012, though, when Odile mentions to her that in 1995, wild boars gored some picnickers to death on what’s now Whiteacre. “I love boars and all that,” Odile says. “I mean, who doesn’t? But this was horrible. There was blood everywhere. It was in the papers for days. I didn’t know the picnickers – they were just trespassing – but still, it was messy. The county officials tracked down all the boars and killed them all, they say. Haven’t seen any for sure since, but I wonder sometimes.”

Horrified, Amanda immediately sells Whiteacre to the Nature Conservancy (NC), telling her friends, “I just don’t want anything to do with Whiteacre, it’s so awful.” The NC is a non-profit group that acquires land to keep in its natural state. It plans to leave Whiteacre untouched; because it’s such a small parcel, it pays very little attention to it, and its recording department never gets around to having the deed recorded. They do put a “The Nature Conservancy” sign on Whiteacre near the road.

A year later, in 2013, Amanda is shocked when the NC enters into a partnership with the oil company BP, in which the NC will advise BP on the environmental effects of its drilling pro-jects. “Oil companies are the enemy!” she exclaims. She decides to get back at NC, which she sees has paid little attention to Whiteacre. Her plan is to give it to someone else. She offers it for free to Xavier and Yolanda, an unmarried couple whom she met in her yoga class. “For free”?

Question II(C) continues on the next page →


says Xavier. “That’s awfully generous.” “Well, it’ll cost you some real money to build a house there if you want to live on it.” “That’s just what we’ll do if we take it,” says Yolanda. “We’ll use our life savings.”

When Xavier and Yolanda come to look at Whiteacre they fall in love with it. “We love the lakeview,” says Xavier. Yolanda asks, “what’s this about ‘Boar Lane’? Odd name.” “It’s a driveway for Odile, who lives on Blackacre next door,” replies Amanda. “She loves boars. The driveway’s part of some deed provisions in the record. Odile can’t block your lakeview, either.”

Xavier and Yolanda decide to buy Whiteacre. At closing in December 2013, Amanda gives them a deed conveying Whiteacre “to Xavier and Yolanda jointly not as tenants in com-mon.” Enchanted by Whiteacre’s beauty, Xavier and Yolanda forget to record the deed.

Xavier and Yolanda quickly build a luxury cabin on Whiteacre in early 2014, using all their life savings. They greatly enjoy the lakeview from the cabin. In late November 2014, Xavi-er is gored to death by a wild boar, the first confirmed goring in the area since 1995. Xavier’s will leaves “all my property” to Zelda, his ex-wife. Xavier had meant to change his will when he met Yolanda, but it never made it to the top of his to-do list.

Neighbors tell Yolanda about the 1995 incident. “I can’t believe Amanda said nothing about that,” she exclaims. “We never would have accepted this place and spent all our savings building a cabin on it if we’d known that. Who’d want to live on place like this?!”

The next day when Yolanda returns from Xavier’s funeral, she notices that construction is beginning on Blackacre. “What are you doing?” Yolanda asks Odile. “Building a second story on my house, and some guest cabins on Greenacre, which I just bought. I’m going to run a bed and breakfast on the second floor of my house and in the guest cabins,” replies Odile. “I’ll be paving and widening the driveway to handle the traffic.” “I don’t want a stream of cars back and forth,” says Yolanda, “and I don’t like you blocking my lakeview!” “You mean our lakeview, don’t you,” says Zelda, who has just arrived. “I own half this place.” A day later an official from the NC arrives at Whiteacre. She happens to be passing through town, and decides to check on Whiteacre. “Whiteacre is ours, you know,” she tells Yolanda and Zelda.

Note: Cania generally follows the common law. It has the following statutes. The questions you need to answer are on the next page, following the statutes. § 101. The doctrine of the right of survivorship in cases of real estate and personal property held by joint tenants shall not prevail in this state; that is to say, except in cases of estates by entirety, a devise, transfer or conveyance heretofore or hereafter made to two or more shall create a ten-ancy in common, unless the instrument creating the estate shall expressly provide for the right of survivorship. § 102. The doctrine of tenancy by the entirety in cases of real estate and personal property shall not prevail in this state. § 103. A conveyance of an estate in fee simple, fee tail or for life, or a lease for more than seven years from the making thereof, or an assignment of rents or profits from an estate or lease, shall not be valid as against any person, except the grantor or lessor, his heirs and devisees and per-sons having actual notice of it, unless it, or an office copy as provided in section thirteen of chap-ter thirty-six, or, with respect to such a lease or an assignment of rents or profits, a notice of lease or a notice of assignment of rents or profits, as hereinafter defined, is recorded in the registry of deeds for the county or district in which the land to which it relates lies.

Question II(C) continues on the next page →


Answer all the following subquestions related to the above set of facts. Note that the subquestions vary in complexity and thus in weight. As a rough guide, the times below give how many minutes you would spend on each if you spend a total of 90 minutes to answer them. (1) (30 min.) Discuss and evaluate the strengths and weakness of the claims to own Whiteacre on the part of Yolanda, Zelda, and the NC. (2) (20 min.) Suppose that instead of § 103, Cania had the following statute:

§ 104. Every conveyance of real property or an estate for years therein, other than a lease for a term not exceeding one year, is void as against any subsequent purchaser or mortgagee of the same property, or any part thereof, in good faith and for a valuable consideration, whose conveyance is first duly recorded, and as against any judgment affecting the title, unless the conveyance shall have been duly recorded prior to the record of notice of action.

Would that matter to your answer to (1)? If you were a legislator, which statute would you want to see enacted? Explain. (3) (20 min.) Assume, solely for the sake of simplicity and for this subquestion, that Yolanda owns Whiteacre. Can Yolanda stop Odile from building the second story of her house on Black-acre? Can she stop Odile or her guests from using Boar Lane or limit the use of it? From paving and widening the driveway? Explain. (4) (20 min.) Is there any basis on which Yolanda might hold Amanda liable for damages for all or part of the money spent on building the luxury cabin she and Xavier built on Whiteacre?

PROPERTY (B1) QUESTION III OF III Fall 2014 Page 11 of 31


(Answer any ONE of Questions III(A), III(B), or III(C), NOT all three)

Handwriting: Please begin your answer in a new bluebook marked “Question III(A),” “Question III(B),” or “Question III(C),” depending on which one you choose to answer. Please write your AGN on the cover of each bluebook. Please skip lines and write on one side of each page. Laptops : Please type “Question III(A),” “Question III(B),” or “Question III(C),” de-pending on which one you choose to answer, at the start of your answer to this Question.


“Property law is full of arcane rules that serve no purpose. For instance, society would be better off without the RAP. But at the very least, its scope definitely shouldn’t be extended to cover options and preemptive rights. In fact, no future interest created in the course of a sale of real property should ever be subject to the RAP; the RAP should apply only to future interests created in the course of a making a gift or devise (will). When people are forced to think about the long-term consequences of their actions, as the market will force them to do when they sell property, that’s enough to deal with potential dead hand problems.

“Forgery and fraud in deeds is another meaningless distinction. Who on earth can tell the differ-ence in any given case? And anyway, a bad deed is a bad deed. How it happened shouldn’t mat-ter. The deed should just be void, period.

“Covenants and servitudes is yet another area where the law is full of meaningless distinctions. The requirement of horizontal privity to get any enforcement of a covenant or servitude makes no sense. The same is true of the touch and concern requirement – it’s no more than a senseless technicality. What’s even worse is that once a covenant or servitude is created, there’s no way to end it. Thank goodness there aren’t any of those meaningless technicalities in easements!”


Questions III(B) and (C) are on the next page →

PROPERTY (B1) QUESTION III OF III Fall 2014 Page 12 of 31


“In some instances courts simply attempt to match legal rules to what parties would expect, as in the case of equitable conversion, the presumption in favor of a fee simple, and the presumption of a tenancy in common. Another thing courts do is apply rules in a way that is intended to force people to communicate their intentions, or information they have, in a very clear fashion. But there are cases where the courts are much more intrusive. Sometimes they make substantive judgments about how land or other property is most appropriately used (as in adverse possession or other areas), or counter the natural bargaining power the market has given private actors.

“Courts should stick to trying to match legal rules to people’s ordinary expectations and trying to force actors to be clear about their intentions and information. When they go beyond that, they invade what is properly the legislature’s provenance, which is policy. That’s why it was clearly right in Moore v. Regents of California for the court to leave the whole question of property rights in one’s spleen to the legislature. A bodily organ can’t possibly be property, but if we’re somehow going to try going down the road of commoditizing everything that should be the legis-lature’s choice. Once a court changes the law, there’s no going back.”


Question III(C) (60 minutes)

“The courts’ track record in protecting property rights is atrocious. They’ve been consistently hostile to property rights. Just look at State v. Shack, an all-too-typical case where the court changed property law to let strangers go onto a farm owner’s property. And how about what happened to poor Susette Kelo? She lost her home to development that just benefitted a big pharmaceutical company, all through a local government’s abuse of eminent domain that the Su-preme Court thought was such a great idea, notwithstanding clear constitutional language to the contrary. Speaking of eminent domain, it makes no sense that when the government condemns property that’s subject to a possibility of reverter (like O’s interest in “O to A so long as the land is farmed”), the courts can’t even be bothered to require compensation for the future interest. Hellooo? What happened to compensation for taking property interests? Even Kelo got the mar-ket value of her house. And don’t get me started on zoning. Local governments pretty much have a free hand there as far as the courts are concerned. Aesthetic zoning gets a once-over-lightly from the courts. And if a local government changes the zoning on a piece of property in a way that makes it unusable for its current purpose, courts will let the government get away with it so long as the ordinance provides for so-called amortization – basically, just a short period to bring the property into compliance.” In what respects, if any, do you agree with this statement? In what respects, if any, do you disa-gree with it? Why? Be sure to include comment on each specific example mentioned in the Ques-tion; you may use additional examples from the course to illustrate your points if that is helpful.

← Question III(A) is on the previous page

End of Examination

151

Chapter 83. Landlord and Tenant LANDLORD AND TENANT


(ss. 83.001-83.251) PART II



(ss. 83.801-83.809) PART I

NONRESIDENTIAL TENANCIES 83.001 Application. 83.01 Unwritten lease tenancy at will; dura-tion. 83.02 Certain written leases tenancies at will; duration. 83.03 Termination of tenancy at will; length of notice. 83.04 Holding over after term, tenancy at sufferance, etc. 83.05 Right of possession upon default in rent; determination of right of possession in action or surrender or abandonment of prem-ises. 83.06 Right to demand double rent upon re-fusal to deliver possession. 83.07 Action for use and occupation. 83.08 Landlord’s lien for rent. 83.09 Exemptions from liens for rent. 83.10 Landlord’s lien for advances. 83.11 Distress for rent; complaint. 83.12 Distress writ. 83.13 Levy of writ. 83.135 Dissolution of writ. 83.14 Replevy of distrained property. 83.15 Claims by third persons. 83.18 Distress for rent; trial; verdict; judg-ment. 83.19 Sale of property distrained. 83.20 Causes for removal of tenants. 83.201 Notice to landlord of failure to main-tain or repair, rendering premises wholly un-tenantable; right to withhold rent.

83.202 Waiver of right to proceed with evic-tion claim. 83.21 Removal of tenant. 83.22 Removal of tenant; service. 83.231 Removal of tenant; judgment. 83.232 Rent paid into registry of court. 83.241 Removal of tenant; process. 83.251 Removal of tenant; costs.


History.—s. 1, ch. 73-330.

83.01 Unwritten lease tenancy at will; duration.—Any lease of lands and tenements, or either, made shall be deemed and held to be a tenancy at will unless it shall be in writing signed by the lessor. Such tenancy shall be from year to year, or quarter to quarter, or month to month, or week to week, to be de-termined by the periods at which the rent is payable. If the rent is payable weekly, then the tenancy shall be from week to week; if paya-ble monthly, then from month to month; if payable quarterly, then from quarter to quar-ter; if payable yearly, then from year to year.


83.02 Certain written leases tenancies at will; duration.—Where any tenancy has been created by an instrument in writing from year to year, or quarter to quarter, or month to month, or week to week, to be determined by

For Question II(A)

157

scribed by law or the rules of the court, and no money judgment may be entered except in compliance with the Florida Rules of Civil Procedure. Where otherwise authorized by law, the plaintiff in the judgment for posses-sion and money damages may also be awarded attorney’s fees and costs. If the issues are found for defendant, judgment shall be entered dismissing the action.


83.232 Rent paid into registry of court.—

(1) In an action by the landlord which in-cludes a claim for possession of real property, the tenant shall pay into the court registry the amount alleged in the complaint as unpaid, or if such amount is contested, such amount as is determined by the court, and any rent accruing during the pendency of the action, when due, unless the tenant has interposed the defense of payment or satisfaction of the rent in the amount the complaint alleges as unpaid. Un-less the tenant disputes the amount of accrued rent, the tenant must pay the amount alleged in the complaint into the court registry on or be-fore the date on which his or her answer to the claim for possession is due. If the tenant con-tests the amount of accrued rent, the tenant must pay the amount determined by the court into the court registry on the day that the court makes its determination. The court may, how-ever, extend these time periods to allow for later payment, upon good cause shown. Even though the defense of payment or satisfaction has been asserted, the court, in its discretion, may order the tenant to pay into the court reg-istry the rent that accrues during the pendency of the action, the time of accrual being as set forth in the lease. If the landlord is in actual danger of loss of the premises or other hard-ship resulting from the loss of rental income from the premises, the landlord may apply to the court for disbursement of all or part of the funds so held in the court registry.

(2) If the tenant contests the amount of money to be placed into the court registry, any

hearing regarding such dispute shall be limited to only the factual or legal issues concerning:




(4) The filing of a counterclaim for mon-ey damages does not relieve the tenant from depositing rent due into the registry of the court.

(5) Failure of the tenant to pay the rent in-to the court registry pursuant to court order shall be deemed an absolute waiver of the ten-ant’s defenses. In such case, the landlord is entitled to an immediate default for possession without further notice or hearing thereon.

83.241 Removal of tenant; process.—After entry of judgment in favor of plaintiff the clerk shall issue a writ to the sheriff de-scribing the premises and commanding the sheriff to put plaintiff in possession.

83.251 Removal of tenant; costs.—The prevailing party shall have judgment for costs and execution shall issue therefor.

PART II RESIDENTIAL TENANCIES 83.40 Short title. 83.41 Application. 83.42 Exclusions from application of part. 83.43 Definitions. 83.44 Obligation of good faith. 83.45 Unconscionable rental agreement or provision.

PART II RESIDENTIAL TENANCIES 83.40 Short title. ...............................................................................................158 83.41 Application. ............................................................................................158 83.42 Exclusions from application of part. ......................................................158 83.43 Definitions..............................................................................................158 83.44 Obligation of good faith. ........................................................................159 83.45 Unconscionable rental agreement or provision......................................159 83.46 Rent; duration of tenancies. ...................................................................160 83.47 Prohibited provisions in rental agreements. ...........................................160 83.48 Attorney fees. .........................................................................................160 83.49 Deposit money or advance rent; duty of landlord and tenant. ...............160 83.50 Disclosure of landlord’s address. ...........................................................164 83.51 Landlord’s obligation to maintain premises. .........................................164 83.52 Tenant’s obligation to maintain dwelling unit. ......................................165 83.53 Landlord’s access to dwelling unit. .......................................................165 83.535 Flotation bedding system; restrictions on use. .......................................165 83.54 Enforcement of rights and duties; civil action; criminal offenses. ........165 83.55 Right of action for damages. ..................................................................166 83.56 Termination of rental agreement. ...........................................................166 83.57 Termination of tenancy without specific term. ......................................168 83.575 Termination of tenancy with specific duration. .....................................168 83.58 Remedies; tenant holding over...............................................................168 83.59 Right of action for possession. ...............................................................168 83.595 Choice of remedies upon breach or early termination by tenant. ..........169 83.60 Defenses to action for rent or possession; procedure.............................170 83.61 Disbursement of funds in registry of court; prompt final hearing. ........170 83.62 Restoration of possession to landlord. ...................................................170 83.625 Power to award possession and enter money judgment.........................171 83.63 Casualty damage. ...................................................................................171 83.64 Retaliatory conduct. ...............................................................................171 83.67 Prohibited practices. ...............................................................................172 83.681 Orders to enjoin violations of this part. .................................................173 83.682 Termination of rental agreement by a servicemember. .........................173

Note: pp. 152-156 of the Supplement omitted.

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83.46 Rent; duration of tenancies. 83.47 Prohibited provisions in rental agree-ments. 83.48 Attorney fees. 83.49 Deposit money or advance rent; duty of landlord and tenant. 83.50 Disclosure of landlord’s address. 83.51 Landlord’s obligation to maintain premises. 83.52 Tenant’s obligation to maintain dwell-ing unit. 83.53 Landlord’s access to dwelling unit. 83.535 Flotation bedding system; re-strictions on use. 83.54 Enforcement of rights and duties; civil action; criminal offenses. 83.55 Right of action for damages. 83.56 Termination of rental agreement. 83.57 Termination of tenancy without spe-cific term. 83.575 Termination of tenancy with specific duration. 83.58 Remedies; tenant holding over. 83.59 Right of action for possession. 83.595 Choice of remedies upon breach or early termination by tenant. 83.60 Defenses to action for rent or posses-sion; procedure. 83.61 Disbursement of funds in registry of court; prompt final hearing. 83.62 Restoration of possession to landlord. 83.625 Power to award possession and enter money judgment. 83.63 Casualty damage. 83.64 Retaliatory conduct. 83.67 Prohibited practices. 83.681 Orders to enjoin violations of this part. 83.682 Termination of rental agreement by a servicemember.


History.—s. 2, ch. 73-330.


History.—s. 2, ch. 73-330; ss. 2, 20, ch. 82-66.














159












(14) “Servicemember” shall have the

same meaning as provided in s. 250.01. (15) “Active duty” shall have the same

meaning as provided in s. 250.01. (16) “State active duty” shall have the

same meaning as provided in s. 250.01. (17) “Early termination fee” means any

charge, fee, or forfeiture that is provided for in a written rental agreement and is assessed to a tenant when a tenant elects to terminate the rental agreement, as provided in the agree-ment, and vacates a dwelling unit before the end of the rental agreement. An early termina-tion fee does not include:






History.—s. 2, ch. 73-330.



(2) When it is claimed or appears to the court that the rental agreement or any provi-sion thereof may be unconscionable, the par-ties shall be afforded a reasonable opportunity to present evidence as to meaning, relationship of the parties, purpose, and effect to aid the court in making the determination.

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History.—s. 2, ch. 73-330.









(b) Purports to limit or preclude any lia-bility of the landlord to the tenant or of the

tenant to the landlord, arising under law. (2) If such a void and unenforceable pro-

vision is included in a rental agreement en-tered into, extended, or renewed after the ef-fective date of this part and either party suffers actual damages as a result of the inclusion, the aggrieved party may recover those damages sustained after the effective date of this part.

History.—s. 2, ch. 73-330.






(b) Hold the total amount of such money in a separate interest-bearing account in a Florida banking institution for the benefit of the tenant or tenants, in which case the tenant shall receive and collect interest in an amount of at least 75 percent of the annualized aver-age interest rate payable on such account or interest at the rate of 5 percent per year, sim-ple interest, whichever the landlord elects. The landlord shall not commingle such moneys


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with any other funds of the landlord or hy-pothecate, pledge, or in any other way make use of such moneys until such moneys are ac-tually due the landlord; or

(c) Post a surety bond, executed by the landlord as principal and a surety company authorized and licensed to do business in the state as surety, with the clerk of the circuit court in the county in which the dwelling unit is located in the total amount of the security deposits and advance rent he or she holds on behalf of the tenants or $50,000, whichever is less. The bond shall be conditioned upon the faithful compliance of the landlord with the provisions of this section and shall run to the Governor for the benefit of any tenant injured by the landlord’s violation of the provisions of this section. In addition to posting the surety bond, the landlord shall pay to the tenant in-terest at the rate of 5 percent per year, simple interest. A landlord, or the landlord’s agent, engaged in the renting of dwelling units in five or more counties, who holds deposit moneys or advance rent and who is otherwise subject to the provisions of this section, may, in lieu of posting a surety bond in each coun-ty, elect to post a surety bond in the form and manner provided in this paragraph with the office of the Secretary of State. The bond shall be in the total amount of the security deposit or advance rent held on behalf of tenants or in the amount of $250,000, whichever is less. The bond shall be conditioned upon the faith-ful compliance of the landlord with the provi-sions of this section and shall run to the Gov-ernor for the benefit of any tenant injured by the landlord’s violation of this section. In ad-dition to posting a surety bond, the landlord shall pay to the tenant interest on the security deposit or advance rent held on behalf of that tenant at the rate of 5 percent per year simple interest.

(2) The landlord shall, in the lease agree-ment or within 30 days after receipt of ad-vance rent or a security deposit, give written notice to the tenant which includes disclosure

of the advance rent or security deposit. Subse-quent to providing such written notice, if the landlord changes the manner or location in which he or she is holding the advance rent or security deposit, he or she must notify the ten-ant within 30 days after the change as provid-ed in paragraphs (a)-(d). The landlord is not required to give new or additional notice sole-ly because the depository has merged with an-other financial institution, changed its name, or transferred ownership to a different finan-cial institution. This subsection does not apply to any landlord who rents fewer than five in-dividual dwelling units. Failure to give this notice is not a defense to the payment of rent when due. The written notice must:




(d) Contain the following disclosure: YOUR LEASE REQUIRES PAYMENT OF CERTAIN DEPOSITS. THE LANDLORD MAY TRANSFER AD-VANCE RENTS TO THE LAND-LORD’S ACCOUNT AS THEY ARE DUE AND WITHOUT NOTICE. WHEN YOU MOVE OUT, YOU MUST GIVE THE LANDLORD YOUR NEW ADDRESS SO THAT THE LAND-LORD CAN SEND YOU NOTICES REGARDING YOUR DEPOSIT. THE LANDLORD MUST MAIL YOU NO-TICE, WITHIN 30 DAYS AFTER YOU MOVE OUT, OF THE LANDLORD’S INTENT TO IMPOSE A CLAIM AGAINST THE DEPOSIT. IF YOU DO NOT REPLY TO THE LANDLORD STATING YOUR OBJECTION TO THE CLAIM WITHIN 15 DAYS AF-TER RECEIPT OF THE LANDLORD’S

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NOTICE, THE LANDLORD WILL COLLECT THE CLAIM AND MUST MAIL YOU THE REMAINING DE-POSIT, IF ANY. IF THE LANDLORD FAILS TO TIME-LY MAIL YOU NOTICE, THE LAND-LORD MUST RETURN THE DEPOSIT BUT MAY LATER FILE A LAWSUIT AGAINST YOU FOR DAMAGES. IF YOU FAIL TO TIMELY OBJECT TO A CLAIM, THE LANDLORD MAY COLLECT FROM THE DEPOSIT, BUT YOU MAY LATER FILE A LAWSUIT CLAIMING A REFUND. YOU SHOULD ATTEMPT TO IN-FORMALLY RESOLVE ANY DIS-PUTE BEFORE FILING A LAWSUIT. GENERALLY, THE PARTY IN WHOSE FAVOR A JUDGMENT IS RENDERED WILL BE AWARDED COSTS AND ATTORNEY FEES PAY-ABLE BY THE LOSING PARTY. THIS DISCLOSURE IS BASIC. PLEASE REFER TO PART II OF CHAPTER 83, FLORIDA STATUTES, TO DETERMINE YOUR LEGAL RIGHTS AND OBLIGATIONS. (3) The landlord or the landlord’s agent


(a) Upon the vacating of the premises for termination of the lease, if the landlord does not intend to impose a claim on the security deposit, the landlord shall have 15 days to re-turn the security deposit together with interest if otherwise required, or the landlord shall have 30 days to give the tenant written notice by certified mail to the tenant’s last known mailing address of his or her intention to im-pose a claim on the deposit and the reason for imposing the claim. The notice shall contain a statement in substantially the following form:

This is a notice of my intention to impose a claim for damages in the amount of upon

your security deposit, due to . It is sent to you as required by s. 83.49(3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you re-ceive this notice or I will be authorized to de-duct my claim from your security deposit. Your objection must be sent to (landlord’s address) . If the landlord fails to give the required notice within the 30-day period, he or she forfeits the right to impose a claim upon the security de-posit and may not seek a setoff against the de-posit but may file an action for damages after return of the deposit.



(d) Compliance with this section by an individual or business entity authorized to conduct business in this state, including Flori-da-licensed real estate brokers and sales asso-ciates, constitutes compliance with all other relevant Florida Statutes pertaining to security deposits held pursuant to a rental agreement or other landlord-tenant relationship. Enforce-ment personnel shall look solely to this section to determine compliance. This section prevails over any conflicting provisions in chapter 475 and in other sections of the Florida Statutes,

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and shall operate to permit licensed real estate brokers to disburse security deposits and de-posit money without having to comply with the notice and settlement procedures contained in s. 475.25(1)(d).



(6) For the purposes of this part, a renew-al of an existing rental agreement shall be considered a new rental agreement, and any security deposit carried forward shall be con-sidered a new security deposit.

(7) Upon the sale or transfer of title of the rental property from one owner to another, or upon a change in the designated rental agent, any and all security deposits or advance rents

being held for the benefit of the tenants shall be transferred to the new owner or agent, to-gether with any earned interest and with an accurate accounting showing the amounts to be credited to each tenant account. Upon the transfer of such funds and records to the new owner or agent, and upon transmittal of a writ-ten receipt therefor, the transferor is free from the obligation imposed in subsection (1) to hold such moneys on behalf of the tenant. There is a rebuttable presumption that any new owner or agent received the security de-posit from the previous owner or agent; how-ever, this presumption is limited to 1 month’s rent. This subsection does not excuse the land-lord or agent for a violation of other provi-sions of this section while in possession of such deposits.





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83.50 Disclosure of landlord’s ad-dress.—In addition to any other disclosure required by law, the landlord, or a person au-thorized to enter into a rental agreement on the landlord’s behalf, shall disclose in writing to the tenant, at or before the commencement of the tenancy, the name and address of the land-lord or a person authorized to receive notices and demands in the landlord’s behalf. The person so authorized to receive notices and demands retains authority until the tenant is notified otherwise. All notices of such names and addresses or changes thereto shall be de-livered to the tenant’s residence or, if speci-fied in writing by the tenant, to any other ad-dress.





(b) Where there are no applicable build-ing, housing, or health codes, maintain the roofs, windows, doors, floors, steps, porches, exterior walls, foundations, and all other struc-tural components in good repair and capable of resisting normal forces and loads and the plumbing in reasonable working condition. The landlord, at commencement of the tenan-cy, must ensure that screens are installed in a reasonable condition. Thereafter, the landlord must repair damage to screens once annually, when necessary, until termination of the rental agreement. The landlord is not required to maintain a mo-bile home or other structure owned by the ten-ant. The landlord’s obligations under this sub-section may be altered or modified in writing with respect to a single-family home or du-plex.

(2)(a) Unless otherwise agreed in writing, in addition to the requirements of subsection (1), the landlord of a dwelling unit other than a single-family home or duplex shall, at all

times during the tenancy, make reasonable provisions for:











(4) The landlord is not responsible to the

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tenant under this section for conditions created or caused by the negligent or wrongful act or omission of the tenant, a member of the ten-ant’s family, or other person on the premises with the tenant’s consent.










History.—s. 2, ch. 73-330; s. 445, ch. 95-147.


(1) The tenant shall not unreasonably withhold consent to the landlord to enter the dwelling unit from time to time in order to in-spect the premises; make necessary or agreed repairs, decorations, alterations, or improve-ments; supply agreed services; or exhibit the dwelling unit to prospective or actual purchas-ers, mortgagees, tenants, workers, or contrac-

tors. (2) The landlord may enter the dwelling

unit at any time for the protection or preserva-tion of the premises. The landlord may enter the dwelling unit upon reasonable notice to the tenant and at a reasonable time for the purpose of repair of the premises. “Reasonable notice” for the purpose of repair is notice given at least 12 hours prior to the entry, and reasona-ble time for the purpose of repair shall be be-tween the hours of 7:30 a.m. and 8:00 p.m. The landlord may enter the dwelling unit when necessary for the further purposes set forth in subsection (1) under any of the fol-lowing circumstances:






83.535 Flotation bedding system; re-strictions on use.—No landlord may prohibit a tenant from using a flotation bedding system in a dwelling unit, provided the flotation bed-ding system does not violate applicable build-ing codes. The tenant shall be required to car-ry in the tenant’s name flotation insurance as is standard in the industry in an amount deemed reasonable to protect the tenant and owner against personal injury and property damage to the dwelling units. In any case, the policy shall carry a loss payable clause to the owner of the building.

History.—s. 7, ch. 82-66; s. 5, ch. 93-255.

83.54 Enforcement of rights and duties; civil action; criminal offenses.—Any right or

166

duty declared in this part is enforceable by civil action. A right or duty enforced by civil action under this section does not preclude prosecution for a criminal offense related to the lease or leased property.

History.—s. 2, ch. 73-330; s. 7, ch. 2013-136.


History.—s. 2, ch. 73-330.




(b) If the landlord’s failure to comply does not render the dwelling unit untenantable and the tenant remains in occupancy, the rent for the period of noncompliance shall be re-duced by an amount in proportion to the loss of rental value caused by the noncompliance.


(a) If such noncompliance is of a nature

that the tenant should not be given an oppor-tunity to cure it or if the noncompliance con-stitutes a subsequent or continuing noncom-pliance within 12 months of a written warning by the landlord of a similar violation, deliver a written notice to the tenant specifying the noncompliance and the landlord’s intent to terminate the rental agreement by reason thereof. Examples of noncompliance which are of a nature that the tenant should not be given an opportunity to cure include, but are not limited to, destruction, damage, or misuse of the landlord’s or other tenants’ property by intentional act or a subsequent or continued unreasonable disturbance. In such event, the landlord may terminate the rental agreement, and the tenant shall have 7 days from the date that the notice is delivered to vacate the prem-ises. The notice shall be in substantially the following form:


(b) If such noncompliance is of a nature that the tenant should be given an opportunity to cure it, deliver a written notice to the tenant specifying the noncompliance, including a no-tice that, if the noncompliance is not corrected within 7 days from the date that the written notice is delivered, the landlord shall termi-nate the rental agreement by reason thereof. Examples of such noncompliance include, but are not limited to, activities in contravention of the lease or this part such as having or per-mitting unauthorized pets, guests, or vehicles; parking in an unauthorized manner or permit-ting such parking; or failing to keep the prem-ises clean and sanitary. If such noncompliance recurs within 12 months after notice, an evic-tion action may commence without delivering a subsequent notice pursuant to paragraph (a) or this paragraph. The notice shall be in sub-stantially the following form:

You are hereby notified that (cite the non-

167

compliance) . Demand is hereby made that you remedy the noncompliance within 7 days of receipt of this notice or your lease shall be deemed terminated and you shall vacate the premises upon such termination. If this same conduct or conduct of a similar nature is re-peated within 12 months, your tenancy is sub-ject to termination without further warning and without your being given an opportunity to cure the noncompliance.




(4) The delivery of the written notices re-quired by subsections (1), (2), and (3) shall be by mailing or delivery of a true copy thereof or, if the tenant is absent from the premises, by leaving a copy thereof at the residence. The notice requirements of subsections (1), (2), and (3) may not be waived in the lease.

(5)(a) If the landlord accepts rent with ac-tual knowledge of a noncompliance by the tenant or accepts performance by the tenant of any other provision of the rental agreement that is at variance with its provisions, or if the tenant pays rent with actual knowledge of a noncompliance by the landlord or accepts per-

formance by the landlord of any other provi-sion of the rental agreement that is at variance with its provisions, the landlord or tenant waives his or her right to terminate the rental agreement or to bring a civil action for that noncompliance, but not for any subsequent or continuing noncompliance. However, a land-lord does not waive the right to terminate the rental agreement or to bring a civil action for that noncompliance by accepting partial rent for the period. If partial rent is accepted after posting the notice for nonpayment, the land-lord must:








168













History.—s. 2, ch. 73-330; s. 10, ch. 2013-136.







(c) When the tenant has abandoned the dwelling unit. In the absence of actual knowledge of abandonment, it shall be pre-

169

sumed that the tenant has abandoned the dwelling unit if he or she is absent from the premises for a period of time equal to one-half the time for periodic rental payments. Howev-er, this presumption does not apply if the rent is current or the tenant has notified the land-lord, in writing, of an intended absence; or

(d) When the last remaining tenant of a dwelling unit is deceased, personal property remains on the premises, rent is unpaid, at least 60 days have elapsed following the date of death, and the landlord has not been noti-fied in writing of the existence of a probate estate or of the name and address of a personal representative. This paragraph does not apply to a dwelling unit used in connection with a federally administered or regulated housing program, including programs under s. 202, s. 221(d)(3) and (4), s. 236, or s. 8 of the Na-tional Housing Act, as amended.





(2) Retake possession of the dwelling unit for the account of the tenant, holding the ten-ant liable for the difference between the rent stipulated to be paid under the rental agree-ment and what the landlord is able to recover from a reletting. If the landlord retakes pos-session, the landlord has a duty to exercise good faith in attempting to relet the premises, and any rent received by the landlord as a re-sult of the reletting must be deducted from the balance of rent due from the tenant. For pur-

poses of this subsection, the term “good faith in attempting to relet the premises” means that the landlord uses at least the same efforts to relet the premises as were used in the initial rental or at least the same efforts as the land-lord uses in attempting to rent other similar rental units but does not require the landlord to give a preference in renting the premises over other vacant dwelling units that the land-lord owns or has the responsibility to rent;


(4) Charge liquidated damages, as provid-ed in the rental agreement, or an early termi-nation fee to the tenant if the landlord and ten-ant have agreed to liquidated damages or an early termination fee, if the amount does not exceed 2 months’ rent, and if, in the case of an early termination fee, the tenant is required to give no more than 60 days’ notice, as provided in the rental agreement, prior to the proposed date of early termination. This remedy is available only if the tenant and the landlord, at the time the rental agreement was made, indi-cated acceptance of liquidated damages or an early termination fee. The tenant must indicate acceptance of liquidated damages or an early termination fee by signing a separate adden-dum to the rental agreement containing a pro-vision in substantially the following form: ☐ I agree, as provided in the rental agree-



(a) In addition to liquidated damages or an early termination fee, the landlord is enti-tled to the rent and other charges accrued through the end of the month in which the

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landlord retakes possession of the dwelling unit and charges for damages to the dwelling unit.




(1)(a) In an action by the landlord for pos-session of a dwelling unit based upon non-payment of rent or in an action by the landlord under s. 83.55 seeking to recover unpaid rent, the tenant may defend upon the ground of a material noncompliance with s. 83.51(1), or may raise any other defense, whether legal or equitable, that he or she may have, including the defense of retaliatory conduct in accord-ance with s. 83.64. The landlord must be given an opportunity to cure a deficiency in a notice or in the pleadings before dismissal of the ac-tion.


(2) In an action by the landlord for pos-session of a dwelling unit, if the tenant inter-

poses any defense other than payment, includ-ing, but not limited to, the defense of a defec-tive 3-day notice, the tenant shall pay into the registry of the court the accrued rent as al-leged in the complaint or as determined by the court and the rent that accrues during the pen-dency of the proceeding, when due. The clerk shall notify the tenant of such requirement in the summons. Failure of the tenant to pay the rent into the registry of the court or to file a motion to determine the amount of rent to be paid into the registry within 5 days, excluding Saturdays, Sundays, and legal holidays, after the date of service of process constitutes an absolute waiver of the tenant’s defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant with a writ of possession to issue without further notice or hearing thereon. If a motion to determine rent is filed, documenta-tion in support of the allegation that the rent as alleged in the complaint is in error is required. Public housing tenants or tenants receiving rent subsidies are required to deposit only that portion of the full rent for which they are re-sponsible pursuant to the federal, state, or lo-cal program in which they are participating.



History.—s. 2, ch. 73-330; s. 2, ch. 74-146.


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(2) At the time the sheriff executes the writ of possession or at any time thereafter, the landlord or the landlord’s agent may re-move any personal property found on the premises to or near the property line. Subse-quent to executing the writ of possession, the landlord may request the sheriff to stand by to keep the peace while the landlord changes the locks and removes the personal property from the premises. When such a request is made, the sheriff may charge a reasonable hourly rate, and the person requesting the sheriff to stand by to keep the peace shall be responsible for paying the reasonable hourly rate set by the sheriff. Neither the sheriff nor the landlord or the landlord’s agent shall be liable to the tenant or any other party for the loss, destruc-tion, or damage to the property after it has been removed.


83.625 Power to award possession and enter money judgment.—In an action by the landlord for possession of a dwelling unit based upon nonpayment of rent, if the court finds the rent is due, owing, and unpaid and by reason thereof the landlord is entitled to pos-session of the premises, the court, in addition to awarding possession of the premises to the landlord, shall direct, in an amount which is within its jurisdictional limitations, the entry of a money judgment with costs in favor of the landlord and against the tenant for the amount of money found due, owing, and unpaid by the tenant to the landlord. However, no money judgment shall be entered unless service of process has been effected by personal service or, where authorized by law, by certified or registered mail, return receipt, or in any other

manner prescribed by law or the rules of the court; and no money judgment may be entered except in compliance with the Florida Rules of Civil Procedure. The prevailing party in the action may also be awarded attorney’s fees and costs.


83.63 Casualty damage.—If the premis-es are damaged or destroyed other than by the wrongful or negligent acts of the tenant so that the enjoyment of the premises is substantially impaired, the tenant may terminate the rental agreement and immediately vacate the prem-ises. The tenant may vacate the part of the premises rendered unusable by the casualty, in which case the tenant’s liability for rent shall be reduced by the fair rental value of that part of the premises damaged or destroyed. If the rental agreement is terminated, the landlord shall comply with s. 83.49(3).








(e) The tenant has paid rent to a condo-

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minium, cooperative, or homeowners’ asso-ciation after demand from the association in order to pay the landlord’s obligation to the association; or










(4) A landlord shall not prohibit a tenant

from displaying one portable, removable, cloth or plastic United States flag, not larger than 4 and 1/2 feet by 6 feet, in a respectful manner in or on the dwelling unit regardless of any provision in the rental agreement deal-ing with flags or decorations. The United States flag shall be displayed in accordance with s. 83.52(6). The landlord is not liable for damages caused by a United States flag dis-played by a tenant. Any United States flag may not infringe upon the space rented by any other tenant.

(5) A landlord of any dwelling unit gov-erned by this part shall not remove the outside doors, locks, roof, walls, or windows of the unit except for purposes of maintenance, re-pair, or replacement; and the landlord shall not remove the tenant’s personal property from the dwelling unit unless such action is taken after surrender, abandonment, recovery of possession of the dwelling unit due to the death of the last remaining tenant in accord-ance with s. 83.59(3)(d), or a lawful eviction. If provided in the rental agreement or a writ-ten agreement separate from the rental agree-ment, upon surrender or abandonment by the tenant, the landlord is not required to comply with s. 715.104 and is not liable or responsible for storage or disposition of the tenant’s per-sonal property; if provided in the rental agreement, there must be printed or clearly stamped on such rental agreement a legend in substantially the following form: BY SIGNING THIS RENTAL AGREE-MENT, THE TENANT AGREES THAT UPON SURRENDER, ABANDONMENT, OR RECOVERY OF POSSESSION OF THE DWELLING UNIT DUE TO THE DEATH OF THE LAST REMAINING TENANT, AS PROVIDED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT’S PERSONAL PROPERTY. For the purposes of this section, abandonment shall be as set forth in s. 83.59(3)(c).

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(8) The remedies provided by this section are not exclusive and do not preclude the ten-ant from pursuing any other remedy at law or equity that the tenant may have. The remedies provided by this section shall also apply to a servicemember who is a prospective tenant who has been discriminated against under subsection (3).






History.—s. 8, ch. 93-255; s. 451, ch. 95-147.










(3) In the event a servicemember dies dur-ing active duty, an adult member of his or her

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immediate family may terminate the service-member’s rental agreement by providing the landlord with a written notice of termination to be effective on the date stated in the notice that is at least 30 days after the landlord’s re-ceipt of the notice. The notice to the landlord must be accompanied by either a copy of the official military orders showing the service-member was on active duty or a written verifi-cation signed by the servicemember’s com-manding officer and a copy of the service-member’s death certificate.

(4) Upon termination of a rental agree-ment under this section, the tenant is liable for the rent due under the rental agreement prorat-ed to the effective date of the termination pay-able at such time as would have otherwise been required by the terms of the rental agreement. The tenant is not liable for any other rent or damages due to the early termi-nation of the tenancy as provided for in this section. Notwithstanding any provision of this section to the contrary, if a tenant terminates the rental agreement pursuant to this section 14 or more days prior to occupancy, no dam-ages or penalties of any kind will be assessa-ble.



Chapter 83. Landlord and Tenant LANDLORD AND TENANT


(ss. 83.001-83.251) PART II



(ss. 83.801-83.809) PART I

NONRESIDENTIAL TENANCIES 83.001 Application. 83.01 Unwritten lease tenancy at will; dura-tion. 83.02 Certain written leases tenancies at will; duration. 83.03 Termination of tenancy at will; length of notice. 83.04 Holding over after term, tenancy at sufferance, etc. 83.05 Right of possession upon default in rent; determination of right of possession in action or surrender or abandonment of prem-ises. 83.06 Right to demand double rent upon re-fusal to deliver possession. 83.07 Action for use and occupation. 83.08 Landlord’s lien for rent. 83.09 Exemptions from liens for rent. 83.10 Landlord’s lien for advances. 83.11 Distress for rent; complaint. 83.12 Distress writ. 83.13 Levy of writ. 83.135 Dissolution of writ. 83.14 Replevy of distrained property. 83.15 Claims by third persons. 83.18 Distress for rent; trial; verdict; judg-ment. 83.19 Sale of property distrained. 83.20 Causes for removal of tenants. 83.201 Notice to landlord of failure to main-tain or repair, rendering premises wholly un-tenantable; right to withhold rent.

83.202 Waiver of right to proceed with evic-tion claim. 83.21 Removal of tenant. 83.22 Removal of tenant; service. 83.231 Removal of tenant; judgment. 83.232 Rent paid into registry of court. 83.241 Removal of tenant; process. 83.251 Removal of tenant; costs.


History.—s. 1, ch. 73-330.

83.01 Unwritten lease tenancy at will; duration.—Any lease of lands and tenements, or either, made shall be deemed and held to be a tenancy at will unless it shall be in writing signed by the lessor. Such tenancy shall be from year to year, or quarter to quarter, or month to month, or week to week, to be de-termined by the periods at which the rent is payable. If the rent is payable weekly, then the tenancy shall be from week to week; if paya-ble monthly, then from month to month; if payable quarterly, then from quarter to quar-ter; if payable yearly, then from year to year.


83.02 Certain written leases tenancies at will; duration.—Where any tenancy has been created by an instrument in writing from year to year, or quarter to quarter, or month to month, or week to week, to be determined by

the periods at which the rent is payable, and the term of which tenancy is unlimited, the tenancy shall be a tenancy at will. If the rent is payable weekly, then the tenancy shall be from week to week; if payable monthly, then the tenancy shall be from month to month; if payable quarterly, then from quarter to quar-ter; if payable yearly, then from year to year.


83.03 Termination of tenancy at will; length of notice.—A tenancy at will may be terminated by either party giving notice as fol-lows:

(1) Where the tenancy is from year to year, by giving not less than 3 months’ notice prior to the end of any annual period;

(2) Where the tenancy is from quarter to quarter, by giving not less than 45 days’ notice prior to the end of any quarter;

(3) Where the tenancy is from month to month, by giving not less than 15 days’ notice prior to the end of any monthly period; and

(4) Where the tenancy is from week to week, by giving not less than 7 days’ notice prior to the end of any weekly period.

History.—s. 3, ch. 5441, 1905; RGS 3569; CGL 5433; s. 34, ch. 67-254; s. 3, ch. 2003-5.

83.04 Holding over after term, tenancy at sufferance, etc.—When any tenancy creat-ed by an instrument in writing, the term of which is limited, has expired and the tenant holds over in the possession of said premises without renewing the lease by some further instrument in writing then such holding over shall be construed to be a tenancy at suffer-ance. The mere payment or acceptance of rent shall not be construed to be a renewal of the term, but if the holding over be continued with the written consent of the lessor then the ten-ancy shall become a tenancy at will under the provisions of this law.


83.05 Right of possession upon default in rent; determination of right of possession in action or surrender or abandonment of premises.—

(1) If any person leasing or renting any land or premises other than a dwelling unit fails to pay the rent at the time it becomes due, the lessor has the right to obtain possession of the premises as provided by law.

(2) The landlord shall recover possession of rented premises only:

(a) In an action for possession under s. 83.20, or other civil action in which the issue of right of possession is determined;

(b) When the tenant has surrendered pos-session of the rented premises to the landlord; or

(c) When the tenant has abandoned the rented premises.

(3) In the absence of actual knowledge of abandonment, it shall be presumed for purpos-es of paragraph (2)(c) that the tenant has abandoned the rented premises if:

(a) The landlord reasonably believes that the tenant has been absent from the rented premises for a period of 30 consecutive days;

(b) The rent is not current; and (c) A notice pursuant to s. 83.20(2) has

been served and 10 days have elapsed since service of such notice. However, this presumption does not apply if the rent is current or the tenant has notified the landlord in writing of an intended absence.


83.06 Right to demand double rent up-on refusal to deliver possession.—

(1) When any tenant refuses to give up possession of the premises at the end of the tenant’s lease, the landlord, the landlord’s agent, attorney, or legal representatives, may demand of such tenant double the monthly rent, and may recover the same at the expira-tion of every month, or in the same proportion for a longer or shorter time by distress, in the manner pointed out hereinafter.

(2) All contracts for rent, verbal or in writing, shall bear interest from the time the rent becomes due, any law, usage or custom to the contrary notwithstanding.

History.—ss. 4, 6, Nov. 21, 1828; RS 1759; GS 2235; RGS 3554; CGL 5418; s. 34, ch. 67-254; s. 427, ch. 95-147.

83.07 Action for use and occupation.—Any landlord, the landlord’s heirs, executors, administrators or assigns may recover reason-able damages for any house, lands, tenements, or hereditaments held or occupied by any per-son by the landlord’s permission in an action on the case for the use and occupation of the lands, tenements, or hereditaments when they are not held, occupied by or under agreement or demise by deed; and if on trial of any ac-tion, any demise or agreement (not being by deed) whereby a certain rent was reserved is given in evidence, the plaintiff shall not be dismissed but may make use thereof as an ev-idence of the quantum of damages to be re-covered.


83.08 Landlord’s lien for rent.—Every person to whom rent may be due, the person’s heirs, executors, administrators or assigns, shall have a lien for such rent upon the proper-ty found upon or off the premises leased or rented, and in the possession of any person, as follows:

(1) Upon agricultural products raised on the land leased or rented for the current year. This lien shall be superior to all other liens, though of older date.

(2) Upon all other property of the lessee or his or her sublessee or assigns, usually kept on the premises. This lien shall be superior to any lien acquired subsequent to the bringing of the property on the premises leased.

(3) Upon all other property of the defend-ant. This lien shall date from the levy of the distress warrant hereinafter provided.

History.—ss. 1, 9, 10, ch. 3131, 1879; RS 1761; GS 2237; RGS 3556; CGL 5420; s. 34, ch. 67-254; s. 429, ch. 95-147.

83.09 Exemptions from liens for rent.—No property of any tenant or lessee shall be exempt from distress and sale for rent, except beds, bedclothes and wearing apparel.

History.—s. 6, Feb. 14, 1835; RS 1762; GS 2238; RGS 3557; CGL 5421; s. 34, ch. 67-254.

83.10 Landlord’s lien for advances.—Landlords shall have a lien on the crop grown on rented land for advances made in money or

other things of value, whether made directly by them or at their instance and requested by another person, or for which they have as-sumed a legal responsibility, at or before the time at which such advances were made, for the sustenance or well-being of the tenant or the tenant’s family, or for preparing the ground for cultivation, or for cultivating, gath-ering, saving, handling, or preparing the crop for market. They shall have a lien also upon each and every article advanced, and upon all property purchased with money advanced, or obtained, by barter or exchange for any arti-cles advanced, for the aggregate value or price of all the property or articles so advanced. The liens upon the crop shall be of equal dignity with liens for rent, and upon the articles ad-vanced shall be paramount to all other liens.

History.—s. 2, ch. 3247, 1879; RS 1763; GS 2239; RGS 3558; CGL 5422; s. 34, ch. 67-254; s. 430, ch. 95-147.

83.11 Distress for rent; complaint.—Any person to whom any rent or money for advances is due or the person’s agent or attor-ney may file an action in the court in the coun-ty where the land lies having jurisdiction of the amount claimed, and the court shall have jurisdiction to order the relief provided in this part. The complaint shall be verified and shall allege the name and relationship of the de-fendant to the plaintiff, how the obligation for rent arose, the amount or quality and value of the rent due for such land, or the advances, and whether payable in money, an agricultural product, or any other thing of value.


83.12 Distress writ.—A distress writ shall be issued by a judge of the court which has jurisdiction of the amount claimed. The writ shall enjoin the defendant from damag-ing, disposing of, secreting, or removing any property liable to distress from the rented real property after the time of service of the writ until the sheriff levies on the property, the writ is vacated, or the court otherwise orders. A violation of the command of the writ may be punished as a contempt of court. If the de-

fendant does not move for dissolution of the writ as provided in s. 83.135, the sheriff shall, pursuant to a further order of the court, levy on the property liable to distress forthwith af-ter the time for answering the complaint has expired. Before the writ issues, the plaintiff or the plaintiff’s agent or attorney shall file a bond with surety to be approved by the clerk payable to defendant in at least double the sum demanded or, if property, in double the value of the property sought to be levied on, conditioned to pay all costs and damages which defendant sustains in consequence of plaintiff’s improperly suing out the distress.

History.—s. 2, ch. 3131, 1879; RS 1765; GS 2241; s. 10, ch. 7838, 1919; RGS 3560; CGL 5424; s. 34, ch. 67-254; s. 2, ch. 80-282; s. 432, ch. 95-147.

83.13 Levy of writ.—The sheriff shall execute the writ by service on defendant and, upon the order of the court, by levy on proper-ty distrainable for rent or advances, if found in the sheriff’s jurisdiction. If the property is in another jurisdiction, the party who had the writ issued shall deliver the writ to the sheriff in the other jurisdiction; and that sheriff shall execute the writ, upon order of the court, by levying on the property and delivering it to the sheriff of the county in which the action is pending, to be disposed of according to law, unless he or she is ordered by the court from which the writ emanated to hold the property and dispose of it in his or her jurisdiction ac-cording to law. If the plaintiff shows by a sworn statement that the defendant cannot be found within the state, the levy on the property suffices as service on the defendant.

History.—s. 3, ch. 3721, 1887; RS 1765; GS 2241; RGS 3560; CGL 5424; s. 34, ch. 67-254; s. 3, ch. 80-282; s. 15, ch. 82-66; s. 8, ch. 83-255; s. 433, ch. 95-147; s. 5, ch. 2004-273.

83.135 Dissolution of writ.—The de-fendant may move for dissolution of a distress writ at any time. The court shall hear the mo-tion not later than the day on which the sheriff is authorized under the writ to levy on proper-ty liable under distress. If the plaintiff proves a prima facie case, or if the defendant defaults, the court shall order the sheriff to proceed with the levy.

History.—s. 4, ch. 80-282.

83.14 Replevy of distrained property.—The property distrained may be restored to the defendant at any time on the defendant’s giv-ing bond with surety to the sheriff levying the writ. The bond shall be approved by such sheriff; made payable to plaintiff in double the value of the property levied on, with the value to be fixed by the sheriff; and conditioned for the forthcoming of the property restored to abide the final order of the court. It may be also restored to defendant on defendant’s giv-ing bond with surety to be approved by the sheriff making the levy conditioned to pay the plaintiff the amount or value of the rental or advances which may be adjudicated to be pay-able to plaintiff. Judgment may be entered against the surety on such bonds in the manner and with like effect as provided in s. 76.31.

History.—s. 3, ch. 3131, 1879; RS 1766; s. 1, ch. 4408, 1895; RGS 3561; CGL 5425; s. 34, ch. 67-254; s. 16, ch. 82-66; s. 9, ch. 83-255; s. 434, ch. 95-147.

83.15 Claims by third persons.—Any third person claiming any property so dis-trained may interpose and prosecute his or her claim for it in the same manner as is provided in similar cases of claim to property levied on under execution.


83.18 Distress for rent; trial; verdict; judgment.—If the verdict or the finding of the court is for plaintiff, judgment shall be rendered against defendant for the amount or value of the rental or advances, including in-terest and costs, and against the surety on de-fendant’s bond as provided for in s. 83.14, if the property has been restored to defendant, and execution shall issue. If the verdict or the finding of the court is for defendant, the action shall be dismissed and defendant shall have judgment and execution against plaintiff for costs.

History.—RS 1768; s. 3, ch. 4408, 1895; GS 2244; RGS 3563; CGL 5427; s. 14, ch. 63-559; s. 34, ch. 67-254; s. 18, ch. 82-66.

83.19 Sale of property distrained.— (1) If the judgment is for plaintiff and the

property in whole or in part has not been re-

plevied, it, or the part not restored to the de-fendant, shall be sold and the proceeds applied on the payment of the execution. If the rental or any part of it is due in agricultural products and the property distrained, or any part of it, is of a similar kind to that claimed in the com-plaint, the property up to a quantity to be ad-judged of by the officer holding the execution (not exceeding that claimed), may be deliv-ered to the plaintiff as a payment on the plain-tiff’s execution at his or her request.

(2) When any property levied on is sold, it shall be advertised two times, the first adver-tisement being at least 10 days before the sale. All property so levied on shall be sold at the location advertised in the notice of sheriff’s sale.

(3) Before the sale if defendant appeals and obtains supersedeas and pays all costs ac-crued up to the time that the supersedeas be-comes operative, the property shall be restored to defendant and there shall be no sale.

(4) In case any property is sold to satisfy any rent payable in cotton or other agricultural product or thing, the officer shall settle with the plaintiff at the value of the rental at the time it became due.

History.—ss. 5, 6, ch. 3131, 1879; RS 1769; GS 2245; RGS 3564; CGL 5428; s. 34, ch. 67-254; s. 19, ch. 82-66; s. 10, ch. 83-255; s. 436, ch. 95-147.

83.20 Causes for removal of tenants.—Any tenant or lessee at will or sufferance, or for part of the year, or for one or more years, of any houses, lands or tenements, and the as-signs, under tenants or legal representatives of such tenant or lessee, may be removed from the premises in the manner hereinafter provid-ed in the following cases:

(1) Where such person holds over and continues in the possession of the demised premises, or any part thereof, after the expira-tion of the person’s time, without the permis-sion of the person’s landlord.

(2) Where such person holds over without permission as aforesaid, after any default in the payment of rent pursuant to the agreement under which the premises are held, and 3

days’ notice in writing requiring the payment of the rent or the possession of the premises has been served by the person entitled to the rent on the person owing the same. The ser-vice of the notice shall be by delivery of a true copy thereof, or, if the tenant is absent from the rented premises, by leaving a copy thereof at such place.

(3) Where such person holds over without permission after failing to cure a material breach of the lease or oral agreement, other than nonpayment of rent, and when 15 days’ written notice requiring the cure of such breach or the possession of the premises has been served on the tenant. This subsection ap-plies only when the lease is silent on the mat-ter or when the tenancy is an oral one at will. The notice may give a longer time period for cure of the breach or surrender of the premis-es. In the absence of a lease provision pre-scribing the method for serving notices, ser-vice must be by mail, hand delivery, or, if the tenant is absent from the rental premises or the address designated by the lease, by posting.

History.—s. 1, ch. 3248, 1881; RS 1751; GS 2227; RGS 3535; CGL 5399; s. 34, ch. 67-254; s. 20, ch. 77-104; s. 2, ch. 88-379; s. 1, ch. 93-70; s. 437, ch. 95-147.

83.201 Notice to landlord of failure to maintain or repair, rendering premises wholly untenantable; right to withhold rent.—When the lease is silent on the proce-dure to be followed to effect repair or mainte-nance and the payment of rent relating thereto, yet affirmatively and expressly places the ob-ligation for same upon the landlord, and the landlord has failed or refused to do so, render-ing the leased premises wholly untenantable, the tenant may withhold rent after notice to the landlord. The tenant shall serve the land-lord, in the manner prescribed by s. 83.20(3), with a written notice declaring the premises to be wholly untenantable, giving the landlord at least 20 days to make the specifically de-scribed repair or maintenance, and stating that the tenant will withhold the rent for the next rental period and thereafter until the repair or maintenance has been performed. The lease

may provide for a longer period of time for repair or maintenance. Once the landlord has completed the repair or maintenance, the ten-ant shall pay the landlord the amounts of rent withheld. If the landlord does not complete the repair or maintenance in the allotted time, the parties may extend the time by written agree-ment or the tenant may abandon the premises, retain the amounts of rent withheld, terminate the lease, and avoid any liability for future rent or charges under the lease. This section is cumulative to other existing remedies, and this section does not prevent any tenant from exer-cising his or her other remedies.

History.—s. 2, ch. 93-70; s. 438, ch. 95-147.

83.202 Waiver of right to proceed with eviction claim.—The landlord’s acceptance of the full amount of rent past due, with knowledge of the tenant’s breach of the lease by nonpayment, shall be considered a waiver of the landlord’s right to proceed with an evic-tion claim for nonpayment of that rent. Ac-ceptance of the rent includes conduct by the landlord concerning any tender of the rent by the tenant which is inconsistent with reasona-bly prompt return of the payment to the tenant.

History.—s. 3, ch. 93-70.

83.21 Removal of tenant.—The landlord, the landlord’s attorney or agent, applying for the removal of any tenant, shall file a com-plaint stating the facts which authorize the re-moval of the tenant, and describing the prem-ises in the proper court of the county where the premises are situated and is entitled to the summary procedure provided in s. 51.011.


83.22 Removal of tenant; service.— (1) After at least two attempts to obtain

service as provided by law, if the defendant cannot be found in the county in which the action is pending and either the defendant has no usual place of abode in the county or there is no person 15 years of age or older residing at the defendant’s usual place of abode in the county, the sheriff shall serve the summons by attaching it to some part of the premises in-

volved in the proceeding. The minimum time delay between the two attempts to obtain ser-vice shall be 6 hours.

(2) If a landlord causes, or anticipates causing, a defendant to be served with a sum-mons and complaint solely by attaching them to some conspicuous part of the premises in-volved in the proceeding, the landlord shall provide the clerk of the court with two addi-tional copies of the complaint and two pres-tamped envelopes addressed to the defendant. One envelope shall be addressed to such ad-dress or location as has been designated by the tenant for receipt of notice in a written lease or other agreement or, if none has been designat-ed, to the residence of the tenant, if known. The second envelope shall be addressed to the last known business address of the tenant. The clerk of the court shall immediately mail the copies of the summons and complaint by first-class mail, note the fact of mailing in the docket, and file a certificate in the court file of the fact and date of mailing. Service shall be effective on the date of posting or mailing, whichever occurs later; and at least 5 days from the date of service must have elapsed before a judgment for final removal of the de-fendant may be entered.

History.—s. 2, ch. 3248, 1881; RS 1753; GS 2229; RGS 3537; CGL 5401; s. 1, ch. 22731, 1945; s. 34, ch. 67-254; s. 2, ch. 83-151; s. 3, ch. 84-339; s. 440, ch. 95-147.

83.231 Removal of tenant; judgment.—If the issues are found for plaintiff, judgment shall be entered that plaintiff recover posses-sion of the premises. If the plaintiff expressly and specifically sought money damages in the complaint, in addition to awarding possession of the premises to the plaintiff, the court shall also direct, in an amount which is within its jurisdictional limitations, the entry of a money judgment in favor of the plaintiff and against the defendant for the amount of money found due, owing, and unpaid by the defendant, with costs. However, no money judgment shall be entered unless service of process has been ef-fected by personal service or, where author-ized by law, by certified or registered mail,

return receipt, or in any other manner pre-scribed by law or the rules of the court, and no money judgment may be entered except in compliance with the Florida Rules of Civil Procedure. Where otherwise authorized by law, the plaintiff in the judgment for posses-sion and money damages may also be awarded attorney’s fees and costs. If the issues are found for defendant, judgment shall be entered dismissing the action.


Note.—Former s. 83.34. 83.232 Rent paid into registry of

court.— (1) In an action by the landlord which in-

cludes a claim for possession of real property, the tenant shall pay into the court registry the amount alleged in the complaint as unpaid, or if such amount is contested, such amount as is determined by the court, and any rent accruing during the pendency of the action, when due, unless the tenant has interposed the defense of payment or satisfaction of the rent in the amount the complaint alleges as unpaid. Un-less the tenant disputes the amount of accrued rent, the tenant must pay the amount alleged in the complaint into the court registry on or be-fore the date on which his or her answer to the claim for possession is due. If the tenant con-tests the amount of accrued rent, the tenant must pay the amount determined by the court into the court registry on the day that the court makes its determination. The court may, how-ever, extend these time periods to allow for later payment, upon good cause shown. Even though the defense of payment or satisfaction has been asserted, the court, in its discretion, may order the tenant to pay into the court reg-istry the rent that accrues during the pendency of the action, the time of accrual being as set forth in the lease. If the landlord is in actual danger of loss of the premises or other hard-ship resulting from the loss of rental income from the premises, the landlord may apply to the court for disbursement of all or part of the funds so held in the court registry.

(2) If the tenant contests the amount of money to be placed into the court registry, any hearing regarding such dispute shall be limited to only the factual or legal issues concerning:




(4) The filing of a counterclaim for mon-ey damages does not relieve the tenant from depositing rent due into the registry of the court.

(5) Failure of the tenant to pay the rent in-to the court registry pursuant to court order shall be deemed an absolute waiver of the ten-ant’s defenses. In such case, the landlord is entitled to an immediate default for possession without further notice or hearing thereon.

History.—s. 5, ch. 93-70; s. 442, ch. 95-147.

83.241 Removal of tenant; process.—After entry of judgment in favor of plaintiff the clerk shall issue a writ to the sheriff de-scribing the premises and commanding the sheriff to put plaintiff in possession.


Note.—Former s. 83.35. 83.251 Removal of tenant; costs.—The

prevailing party shall have judgment for costs and execution shall issue therefor.

History.—s. 11, ch. 6463, 1913; RGS 3552; CGL 5416; s. 34, ch. 67-254.

Note.—Former s. 83.37. PART II RESIDENTIAL TENANCIES 83.40 Short title. 83.41 Application. 83.42 Exclusions from application of part. 83.43 Definitions. 83.44 Obligation of good faith. 83.45 Unconscionable rental agreement or provision.

83.46 Rent; duration of tenancies. 83.47 Prohibited provisions in rental agree-ments. 83.48 Attorney fees. 83.49 Deposit money or advance rent; duty of landlord and tenant. 83.50 Disclosure of landlord’s address. 83.51 Landlord’s obligation to maintain premises. 83.52 Tenant’s obligation to maintain dwell-ing unit. 83.53 Landlord’s access to dwelling unit. 83.535 Flotation bedding system; re-strictions on use. 83.54 Enforcement of rights and duties; civil action; criminal offenses. 83.55 Right of action for damages. 83.56 Termination of rental agreement. 83.57 Termination of tenancy without spe-cific term. 83.575 Termination of tenancy with specific duration. 83.58 Remedies; tenant holding over. 83.59 Right of action for possession. 83.595 Choice of remedies upon breach or early termination by tenant. 83.60 Defenses to action for rent or posses-sion; procedure. 83.61 Disbursement of funds in registry of court; prompt final hearing. 83.62 Restoration of possession to landlord. 83.625 Power to award possession and enter money judgment. 83.63 Casualty damage. 83.64 Retaliatory conduct. 83.67 Prohibited practices. 83.681 Orders to enjoin violations of this part. 83.682 Termination of rental agreement by a servicemember.


History.—s. 2, ch. 73-330.


History.—s. 2, ch. 73-330; ss. 2, 20, ch. 82-66.


































History.—s. 2, ch. 73-330.



(2) When it is claimed or appears to the court that the rental agreement or any provi-sion thereof may be unconscionable, the par-ties shall be afforded a reasonable opportunity to present evidence as to meaning, relationship

of the parties, purpose, and effect to aid the court in making the determination.

History.—s. 2, ch. 73-330.











History.—s. 2, ch. 73-330.






(b) Hold the total amount of such money in a separate interest-bearing account in a Florida banking institution for the benefit of the tenant or tenants, in which case the tenant shall receive and collect interest in an amount of at least 75 percent of the annualized aver-age interest rate payable on such account or interest at the rate of 5 percent per year, sim-


ple interest, whichever the landlord elects. The landlord shall not commingle such moneys with any other funds of the landlord or hy-pothecate, pledge, or in any other way make use of such moneys until such moneys are ac-tually due the landlord; or

(c) Post a surety bond, executed by the landlord as principal and a surety company authorized and licensed to do business in the state as surety, with the clerk of the circuit court in the county in which the dwelling unit is located in the total amount of the security deposits and advance rent he or she holds on behalf of the tenants or $50,000, whichever is less. The bond shall be conditioned upon the faithful compliance of the landlord with the provisions of this section and shall run to the Governor for the benefit of any tenant injured by the landlord’s violation of the provisions of this section. In addition to posting the surety bond, the landlord shall pay to the tenant in-terest at the rate of 5 percent per year, simple interest. A landlord, or the landlord’s agent, engaged in the renting of dwelling units in five or more counties, who holds deposit moneys or advance rent and who is otherwise subject to the provisions of this section, may, in lieu of posting a surety bond in each coun-ty, elect to post a surety bond in the form and manner provided in this paragraph with the office of the Secretary of State. The bond shall be in the total amount of the security deposit or advance rent held on behalf of tenants or in the amount of $250,000, whichever is less. The bond shall be conditioned upon the faith-ful compliance of the landlord with the provi-sions of this section and shall run to the Gov-ernor for the benefit of any tenant injured by the landlord’s violation of this section. In ad-dition to posting a surety bond, the landlord shall pay to the tenant interest on the security deposit or advance rent held on behalf of that tenant at the rate of 5 percent per year simple interest.

(2) The landlord shall, in the lease agree-ment or within 30 days after receipt of ad-

vance rent or a security deposit, give written notice to the tenant which includes disclosure of the advance rent or security deposit. Subse-quent to providing such written notice, if the landlord changes the manner or location in which he or she is holding the advance rent or security deposit, he or she must notify the ten-ant within 30 days after the change as provid-ed in paragraphs (a)-(d). The landlord is not required to give new or additional notice sole-ly because the depository has merged with an-other financial institution, changed its name, or transferred ownership to a different finan-cial institution. This subsection does not apply to any landlord who rents fewer than five in-dividual dwelling units. Failure to give this notice is not a defense to the payment of rent when due. The written notice must:




(d) Contain the following disclosure: YOUR LEASE REQUIRES PAYMENT OF CERTAIN DEPOSITS. THE LANDLORD MAY TRANSFER AD-VANCE RENTS TO THE LAND-LORD’S ACCOUNT AS THEY ARE DUE AND WITHOUT NOTICE. WHEN YOU MOVE OUT, YOU MUST GIVE THE LANDLORD YOUR NEW ADDRESS SO THAT THE LAND-LORD CAN SEND YOU NOTICES REGARDING YOUR DEPOSIT. THE LANDLORD MUST MAIL YOU NO-TICE, WITHIN 30 DAYS AFTER YOU MOVE OUT, OF THE LANDLORD’S INTENT TO IMPOSE A CLAIM AGAINST THE DEPOSIT. IF YOU DO NOT REPLY TO THE LANDLORD STATING YOUR OBJECTION TO THE CLAIM WITHIN 15 DAYS AF-

TER RECEIPT OF THE LANDLORD’S NOTICE, THE LANDLORD WILL COLLECT THE CLAIM AND MUST MAIL YOU THE REMAINING DE-POSIT, IF ANY. IF THE LANDLORD FAILS TO TIME-LY MAIL YOU NOTICE, THE LAND-LORD MUST RETURN THE DEPOSIT BUT MAY LATER FILE A LAWSUIT AGAINST YOU FOR DAMAGES. IF YOU FAIL TO TIMELY OBJECT TO A CLAIM, THE LANDLORD MAY COLLECT FROM THE DEPOSIT, BUT YOU MAY LATER FILE A LAWSUIT CLAIMING A REFUND. YOU SHOULD ATTEMPT TO IN-FORMALLY RESOLVE ANY DIS-PUTE BEFORE FILING A LAWSUIT. GENERALLY, THE PARTY IN WHOSE FAVOR A JUDGMENT IS RENDERED WILL BE AWARDED COSTS AND ATTORNEY FEES PAY-ABLE BY THE LOSING PARTY. THIS DISCLOSURE IS BASIC. PLEASE REFER TO PART II OF CHAPTER 83, FLORIDA STATUTES, TO DETERMINE YOUR LEGAL RIGHTS AND OBLIGATIONS. (3) The landlord or the landlord’s agent


(a) Upon the vacating of the premises for termination of the lease, if the landlord does not intend to impose a claim on the security deposit, the landlord shall have 15 days to re-turn the security deposit together with interest if otherwise required, or the landlord shall have 30 days to give the tenant written notice by certified mail to the tenant’s last known mailing address of his or her intention to im-pose a claim on the deposit and the reason for imposing the claim. The notice shall contain a statement in substantially the following form:




(d) Compliance with this section by an individual or business entity authorized to conduct business in this state, including Flori-da-licensed real estate brokers and sales asso-ciates, constitutes compliance with all other relevant Florida Statutes pertaining to security deposits held pursuant to a rental agreement or other landlord-tenant relationship. Enforce-ment personnel shall look solely to this section to determine compliance. This section prevails

over any conflicting provisions in chapter 475 and in other sections of the Florida Statutes, and shall operate to permit licensed real estate brokers to disburse security deposits and de-posit money without having to comply with the notice and settlement procedures contained in s. 475.25(1)(d).



(6) For the purposes of this part, a renew-al of an existing rental agreement shall be considered a new rental agreement, and any security deposit carried forward shall be con-sidered a new security deposit.

(7) Upon the sale or transfer of title of the rental property from one owner to another, or

upon a change in the designated rental agent, any and all security deposits or advance rents being held for the benefit of the tenants shall be transferred to the new owner or agent, to-gether with any earned interest and with an accurate accounting showing the amounts to be credited to each tenant account. Upon the transfer of such funds and records to the new owner or agent, and upon transmittal of a writ-ten receipt therefor, the transferor is free from the obligation imposed in subsection (1) to hold such moneys on behalf of the tenant. There is a rebuttable presumption that any new owner or agent received the security de-posit from the previous owner or agent; how-ever, this presumption is limited to 1 month’s rent. This subsection does not excuse the land-lord or agent for a violation of other provi-sions of this section while in possession of such deposits.




1Note.—Section 4, ch. 2013-136, provides that “[t]he Legislature recognizes that landlords may have stocks of preprinted lease forms that comply with the notice requirements of current law. Accordingly, for leases entered into on or before December 31, 2013, a landlord may give notice that contains the disclosure required in the changes made by this act to s. 83.49, Florida Statutes, or the former notice required in s. 83.49, Florida Statutes 2012. In any event, the disclo-

sure required by this act is only required for all leases entered into under this part on or after January 1, 2014.”







(b) Where there are no applicable build-ing, housing, or health codes, maintain the roofs, windows, doors, floors, steps, porches, exterior walls, foundations, and all other struc-tural components in good repair and capable of resisting normal forces and loads and the plumbing in reasonable working condition. The landlord, at commencement of the tenan-cy, must ensure that screens are installed in a reasonable condition. Thereafter, the landlord must repair damage to screens once annually, when necessary, until termination of the rental agreement. The landlord is not required to maintain a mo-bile home or other structure owned by the ten-ant. The landlord’s obligations under this sub-section may be altered or modified in writing with respect to a single-family home or du-plex.

(2)(a) Unless otherwise agreed in writing, in addition to the requirements of subsection

(1), the landlord of a dwelling unit other than a single-family home or duplex shall, at all times during the tenancy, make reasonable provisions for:










(3) If the duty imposed by subsection (1) is the same or greater than any duty imposed

by subsection (2), the landlord’s duty is de-termined by subsection (1).











History.—s. 2, ch. 73-330; s. 445, ch. 95-147.


(1) The tenant shall not unreasonably withhold consent to the landlord to enter the dwelling unit from time to time in order to in-spect the premises; make necessary or agreed repairs, decorations, alterations, or improve-

ments; supply agreed services; or exhibit the dwelling unit to prospective or actual purchas-ers, mortgagees, tenants, workers, or contrac-tors.







83.535 Flotation bedding system; re-strictions on use.—No landlord may prohibit a tenant from using a flotation bedding system in a dwelling unit, provided the flotation bed-ding system does not violate applicable build-ing codes. The tenant shall be required to car-ry in the tenant’s name flotation insurance as is standard in the industry in an amount deemed reasonable to protect the tenant and owner against personal injury and property damage to the dwelling units. In any case, the policy shall carry a loss payable clause to the owner of the building.

History.—s. 7, ch. 82-66; s. 5, ch. 93-255.


History.—s. 2, ch. 73-330; s. 7, ch. 2013-136.


History.—s. 2, ch. 73-330.




(b) If the landlord’s failure to comply does not render the dwelling unit untenantable and the tenant remains in occupancy, the rent for the period of noncompliance shall be re-duced by an amount in proportion to the loss of rental value caused by the noncompliance.

(2) If the tenant materially fails to comply with s. 83.52 or material provisions of the rental agreement, other than a failure to pay

rent, or reasonable rules or regulations, the landlord may:



(b) If such noncompliance is of a nature that the tenant should be given an opportunity to cure it, deliver a written notice to the tenant specifying the noncompliance, including a no-tice that, if the noncompliance is not corrected within 7 days from the date that the written notice is delivered, the landlord shall termi-nate the rental agreement by reason thereof. Examples of such noncompliance include, but are not limited to, activities in contravention of the lease or this part such as having or per-mitting unauthorized pets, guests, or vehicles; parking in an unauthorized manner or permit-ting such parking; or failing to keep the prem-ises clean and sanitary. If such noncompliance recurs within 12 months after notice, an evic-tion action may commence without delivering a subsequent notice pursuant to paragraph (a)

or this paragraph. The notice shall be in sub-stantially the following form:





(4) The delivery of the written notices re-quired by subsections (1), (2), and (3) shall be by mailing or delivery of a true copy thereof or, if the tenant is absent from the premises, by leaving a copy thereof at the residence. The notice requirements of subsections (1), (2), and (3) may not be waived in the lease.

(5)(a) If the landlord accepts rent with ac-tual knowledge of a noncompliance by the tenant or accepts performance by the tenant of any other provision of the rental agreement

that is at variance with its provisions, or if the tenant pays rent with actual knowledge of a noncompliance by the landlord or accepts per-formance by the landlord of any other provi-sion of the rental agreement that is at variance with its provisions, the landlord or tenant waives his or her right to terminate the rental agreement or to bring a civil action for that noncompliance, but not for any subsequent or continuing noncompliance. However, a land-lord does not waive the right to terminate the rental agreement or to bring a civil action for that noncompliance by accepting partial rent for the period. If partial rent is accepted after posting the notice for nonpayment, the land-lord must:
















(2) A rental agreement with a specific du-ration may provide that if a tenant fails to give the required notice before vacating the prem-ises at the end of the rental agreement, the tenant may be liable for liquidated damages as specified in the rental agreement if the land-lord provides written notice to the tenant spec-ifying the tenant’s obligations under the noti-fication provision contained in the lease and the date the rental agreement is terminated. The landlord must provide such written notice to the tenant within 15 days before the start of the notification period contained in the lease.

The written notice shall list all fees, penalties, and other charges applicable to the tenant un-der this subsection.




History.—s. 2, ch. 73-330; s. 10, ch. 2013-136.








(d) When the last remaining tenant of a dwelling unit is deceased, personal property remains on the premises, rent is unpaid, at least 60 days have elapsed following the date of death, and the landlord has not been noti-fied in writing of the existence of a probate estate or of the name and address of a personal representative. This paragraph does not apply to a dwelling unit used in connection with a federally administered or regulated housing program, including programs under s. 202, s. 221(d)(3) and (4), s. 236, or s. 8 of the Na-tional Housing Act, as amended.





(2) Retake possession of the dwelling unit for the account of the tenant, holding the ten-ant liable for the difference between the rent stipulated to be paid under the rental agree-ment and what the landlord is able to recover from a reletting. If the landlord retakes pos-session, the landlord has a duty to exercise good faith in attempting to relet the premises,

and any rent received by the landlord as a re-sult of the reletting must be deducted from the balance of rent due from the tenant. For pur-poses of this subsection, the term “good faith in attempting to relet the premises” means that the landlord uses at least the same efforts to relet the premises as were used in the initial rental or at least the same efforts as the land-lord uses in attempting to rent other similar rental units but does not require the landlord to give a preference in renting the premises over other vacant dwelling units that the land-lord owns or has the responsibility to rent;


(4) Charge liquidated damages, as provid-ed in the rental agreement, or an early termi-nation fee to the tenant if the landlord and ten-ant have agreed to liquidated damages or an early termination fee, if the amount does not exceed 2 months’ rent, and if, in the case of an early termination fee, the tenant is required to give no more than 60 days’ notice, as provided in the rental agreement, prior to the proposed date of early termination. This remedy is available only if the tenant and the landlord, at the time the rental agreement was made, indi-cated acceptance of liquidated damages or an early termination fee. The tenant must indicate acceptance of liquidated damages or an early termination fee by signing a separate adden-dum to the rental agreement containing a pro-vision in substantially the following form: ☐ I agree, as provided in the rental agree-







(1)(a) In an action by the landlord for pos-session of a dwelling unit based upon non-payment of rent or in an action by the landlord under s. 83.55 seeking to recover unpaid rent, the tenant may defend upon the ground of a material noncompliance with s. 83.51(1), or may raise any other defense, whether legal or equitable, that he or she may have, including the defense of retaliatory conduct in accord-ance with s. 83.64. The landlord must be given an opportunity to cure a deficiency in a notice or in the pleadings before dismissal of the ac-tion.

(b) The defense of a material noncompli-ance with s. 83.51(1) may be raised by the tenant if 7 days have elapsed after the delivery of written notice by the tenant to the landlord, specifying the noncompliance and indicating the intention of the tenant not to pay rent by reason thereof. Such notice by the tenant may be given to the landlord, the landlord’s repre-sentative as designated pursuant to s. 83.50, a resident manager, or the person or entity who collects the rent on behalf of the landlord. A material noncompliance with s. 83.51(1) by the landlord is a complete defense to an action for possession based upon nonpayment of rent, and, upon hearing, the court or the jury, as the case may be, shall determine the amount, if any, by which the rent is to be re-duced to reflect the diminution in value of the dwelling unit during the period of noncompli-ance with s. 83.51(1). After consideration of

all other relevant issues, the court shall enter appropriate judgment.

(2) In an action by the landlord for pos-session of a dwelling unit, if the tenant inter-poses any defense other than payment, includ-ing, but not limited to, the defense of a defec-tive 3-day notice, the tenant shall pay into the registry of the court the accrued rent as al-leged in the complaint or as determined by the court and the rent that accrues during the pen-dency of the proceeding, when due. The clerk shall notify the tenant of such requirement in the summons. Failure of the tenant to pay the rent into the registry of the court or to file a motion to determine the amount of rent to be paid into the registry within 5 days, excluding Saturdays, Sundays, and legal holidays, after the date of service of process constitutes an absolute waiver of the tenant’s defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant with a writ of possession to issue without further notice or hearing thereon. If a motion to determine rent is filed, documenta-tion in support of the allegation that the rent as alleged in the complaint is in error is required. Public housing tenants or tenants receiving rent subsidies are required to deposit only that portion of the full rent for which they are re-sponsible pursuant to the federal, state, or lo-cal program in which they are participating.


83.61 Disbursement of funds in registry of court; prompt final hearing.—When the tenant has deposited funds into the registry of the court in accordance with the provisions of s. 83.60(2) and the landlord is in actual danger of loss of the premises or other personal hard-ship resulting from the loss of rental income from the premises, the landlord may apply to the court for disbursement of all or part of the funds or for prompt final hearing. The court shall advance the cause on the calendar. The court, after preliminary hearing, may award all or any portion of the funds on deposit to the

landlord or may proceed immediately to a fi-nal resolution of the cause.

History.—s. 2, ch. 73-330; s. 2, ch. 74-146.



(2) At the time the sheriff executes the writ of possession or at any time thereafter, the landlord or the landlord’s agent may re-move any personal property found on the premises to or near the property line. Subse-quent to executing the writ of possession, the landlord may request the sheriff to stand by to keep the peace while the landlord changes the locks and removes the personal property from the premises. When such a request is made, the sheriff may charge a reasonable hourly rate, and the person requesting the sheriff to stand by to keep the peace shall be responsible for paying the reasonable hourly rate set by the sheriff. Neither the sheriff nor the landlord or the landlord’s agent shall be liable to the tenant or any other party for the loss, destruc-tion, or damage to the property after it has been removed.


83.625 Power to award possession and enter money judgment.—In an action by the landlord for possession of a dwelling unit based upon nonpayment of rent, if the court finds the rent is due, owing, and unpaid and by reason thereof the landlord is entitled to pos-session of the premises, the court, in addition to awarding possession of the premises to the landlord, shall direct, in an amount which is within its jurisdictional limitations, the entry of a money judgment with costs in favor of the landlord and against the tenant for the amount of money found due, owing, and unpaid by the

tenant to the landlord. However, no money judgment shall be entered unless service of process has been effected by personal service or, where authorized by law, by certified or registered mail, return receipt, or in any other manner prescribed by law or the rules of the court; and no money judgment may be entered except in compliance with the Florida Rules of Civil Procedure. The prevailing party in the action may also be awarded attorney’s fees and costs.


83.63 Casualty damage.—If the premis-es are damaged or destroyed other than by the wrongful or negligent acts of the tenant so that the enjoyment of the premises is substantially impaired, the tenant may terminate the rental agreement and immediately vacate the prem-ises. The tenant may vacate the part of the premises rendered unusable by the casualty, in which case the tenant’s liability for rent shall be reduced by the fair rental value of that part of the premises damaged or destroyed. If the rental agreement is terminated, the landlord shall comply with s. 83.49(3).



















(5) A landlord of any dwelling unit gov-erned by this part shall not remove the outside doors, locks, roof, walls, or windows of the unit except for purposes of maintenance, re-pair, or replacement; and the landlord shall not remove the tenant’s personal property from the dwelling unit unless such action is taken after surrender, abandonment, recovery of possession of the dwelling unit due to the death of the last remaining tenant in accord-ance with s. 83.59(3)(d), or a lawful eviction. If provided in the rental agreement or a writ-ten agreement separate from the rental agree-ment, upon surrender or abandonment by the tenant, the landlord is not required to comply with s. 715.104 and is not liable or responsible for storage or disposition of the tenant’s per-sonal property; if provided in the rental agreement, there must be printed or clearly stamped on such rental agreement a legend in substantially the following form: BY SIGNING THIS RENTAL AGREE-MENT, THE TENANT AGREES THAT UPON SURRENDER, ABANDONMENT, OR RECOVERY OF POSSESSION OF THE DWELLING UNIT DUE TO THE DEATH OF THE LAST REMAINING TENANT, AS PROVIDED BY CHAPTER 83, FLORIDA

STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT’S PERSONAL PROPERTY. For the purposes of this section, abandonment shall be as set forth in s. 83.59(3)(c).



(8) The remedies provided by this section are not exclusive and do not preclude the ten-ant from pursuing any other remedy at law or equity that the tenant may have. The remedies provided by this section shall also apply to a servicemember who is a prospective tenant who has been discriminated against under subsection (3).





(3) Evidence of a tenant’s intentional de-struction, damage, or misuse of the landlord’s property in an amount greater than twice the value of money deposited with the landlord

pursuant to s. 83.49 or $300, whichever is greater, shall constitute irreparable harm for the purposes of injunctive relief.

History.—s. 8, ch. 93-255; s. 451, ch. 95-147.









(2) The notice to the landlord must be ac-companied by either a copy of the official mil-

itary orders or a written verification signed by the servicemember’s commanding officer.


(4) Upon termination of a rental agree-ment under this section, the tenant is liable for the rent due under the rental agreement prorat-ed to the effective date of the termination pay-able at such time as would have otherwise been required by the terms of the rental agreement. The tenant is not liable for any other rent or damages due to the early termi-nation of the tenancy as provided for in this section. Notwithstanding any provision of this section to the contrary, if a tenant terminates the rental agreement pursuant to this section 14 or more days prior to occupancy, no dam-ages or penalties of any kind will be assessa-ble.



UNIVERSITY OF MIAMI Property (B) Final Examination


MANDATORY Write your Anonymous Grading No. (AGN) here ______________________________ and turn in this exam.


This is a four-hour closed book exam. Times shown for the Questions add up to 3-1/2 hours. There is no separate reading period. Use the extra thirty minutes as you see fit. The times shown for the Questions reflect their weight in grading, so it’s important to keep them in mind. You may answer the Questions in any order you wish.

Question Time (minutes) Question I (answer either A or B, NOT both) 60 Question II (answer either A or B, NOT both) 60 Question III (answer either A or B, NOT both) 90 Total 210

II. APPLICABLE LAW

Where there are fact hypotheticals, the events take place in the hypothetical U.S. state of Cania. Courts in Cania follow the common law as well as its statutes.

III. WRITING INSTRUCTIONS


Writing Instructions for … Handwriting Laptop Write your AGN on this copy of the exam (see below) and turn it in with your bluebook(s).

Write your AGN on this copy of the exam itself (see below) and turn it in when you’re done with the exam.

Write your AGN on the cover of each bluebook. Follow the Registrar’s instructions about input-ting the AGN into your answer, etc. Write on every other line – i.e., skip lines.



PROPERTY (B) QUESTION I OF III Fall 2012 Page 2 of 10


(Answer either Question I(A) or I(B), NOT both)

Handwriting: Please begin your answer in a bluebook marked “Question I(A)” or “Ques-tion I(B),” depending on which one you choose to answer. Please write your AGN on the cover of each bluebook. Please skip lines and write on one side of each page. Laptops : Please type “Question I(A)” or “Question I(B),” depending on which one you choose to answer, at the start of your answer.

Question I(A) (60 minutes) (Answer either Question I(A) or I(B), NOT both)

On Jan. 1, 2012, Lorenzo rents a warehouse in Cania to Tanya, who owns a small business that imports wicker furniture. The lease is for two years, to end on December 31, 2013. The lease in-cludes a provision that “Tenant may not assign the lease without the permission of the Landlord. Premises to be returned to landlord at end of lease in same condition as start of lease, subject to reasonable wear and tear. Tenant waives any tenants’ rights provided by law.” Tanya uses the warehouse to store her wicker inventory.

On December 1, 2012, concerned that the Mayan calendar predicts the end of the world on De-cember 21, Tanya liquidates her wicker business. On December 5, she signs an agreement with PrepCo, which specializes in survival supplies. The agreement states, “PrepCo will assume the remainder of the Lorenzo-Tanya lease, through December 31, 2013, and pay all rent due under that lease and conform to any other obligations under it. Tanya reserves the right to reenter and retake possession if PrepCo fails to do so, and to inspect the premises on December 31, 2013.”

On December 6, Lorenzo discovers the arrangement when visiting the warehouse and talking to one of PrepCo’s employees. He tells Tanya, “you need my permission to do that.”

“Really?” replies Tanya. “But even if you’re right, surely it’s OK with you. I did a thorough cred-it and background check on PrepCo. It has an impeccable record as a tenant and an excellent credit rating. By the way, there’s a bad leak in the roof. It really needs to be fixed.”

“Not sure why you’re telling me about the roof,” responds Lorenzo. “Anyway, that’s great about PrepCo. I believe you. But there’s one thing. I want PrepCo to agree now to continue renting the warehouse for three more years after December 31, 2013, when your lease expires.” Lorenzo wants this extension because, like a number of real estate experts, he believes that economic conditions in Cania will cause commercial rents to drop precipitously in the next few years. He’d like to lock in the current rent for as long as possible.

PrepCo is unwilling to commit itself to the longer period. When Lorenzo finds out on December 7, he explodes with anger. He tells Tanya, “I’m refusing to give my permission. You’re still on the hook. I want PrepCo out of there.”

May PrepCo stay in the warehouse for the rest of Tanya’s lease even though Lorenzo is opposed to it? Why or why not? If PrepCo does stay and defaults on the rent, what remedies would Lo-renzo have? Explain. Does Lorenzo have to fix the roof leak? Does Tanya? Explain. Make sure you address what legal or factual issues you might need to research and why.

Question I(B) is on the next page →

PROPERTY (B) QUESTION I OF III Fall 2012 Page 3 of 10


(Answer either Question I(A) or I(B), NOT both)

Oscar is a wealthy, long-time senior editor at a major U.S. publishing company. In 2010 he asks his long-time lawyer to draft a will for him. In the will Oscar leaves Blackacre, an organic farm, “to William for life, then to the first of William’s children to become a published au-thor.” Also good friends for many years with Alberto and Beatrice, a married couple, his will leaves everything else in his estate to “Alberto and Beatrice together, so each is provided for to the end of their days.” Upon signing his will he remarks to his lawyer, “I love books. They in-spire, educate, entertain – they even sequester carbon! I hope to induce the younger generation to continue the honorable tradition of fresh and creative published work it’s been my life’s mission to foster.” “Oh God, not the book spiel again,” thinks Oscar’s lawyer to herself. “You’re so right,” she tells him.

In 2011 Oscar dies and the will takes effect. William, a widower who loves locally grown or-ganic food, has two children, Xavier, 11 and Zelda, 13. Xavier spends all his time playing vid-eo games. In 2012, Zelda becomes enamored of the Japanese practice of “Twitter novels,” in which chapters of no more than 140 characters are tweeted in succession. She tweets the first installment of her own novel, “Fifty Shades of Gravy:” “Totally vulnerable, I moan loudly and writhe convulsively. The Porc with Sauce Charcutière is beyond exquisite. #twnovel.” Food Network chef Paula Deen retweets it with the comment, “Trashy but sooo good. Like my reci-pes. More tasty morsels ahead from this young new food novelist?”

A number of tweets later, Zelda has 890,000 followers. Alarmed by the language of the tweets and the association with Paula Deen, William orders Zelda to shut down her account. “You can tweet whatever you want when you turn 18, young lady, but not now,” he says. Zelda is unhap-py, but tells her friends, “At least I’m an author now.”

William dies the next day when some mushrooms harvested from Blackacre turn out to be poi-sonous. Xavier and Zelda’s appointed guardian tells Zelda, “I’ve consulted with a lawyer. Zelda, you now own Blackacre. Think about that next time you get out your Xbox, Xavier! Anyway, Zelda, I’ll manage all your property until you turn 18, but you are the owner.” “Well, your lawyer is wrong!,” says Alberto, who along with his wife Beatrice has stopped by to offer condolences. “Blackacre is ours,” he exults. The excitement is too much for his weak heart and he keels over dead. Because Beatrice is independently wealthy, Alberto’s will leaves every-thing to the Natural Farming Foundation (NFF).

Who owns Blackacre? Explain. Make sure you consider what you would need to know about Cania law to answer this question.

← Question I(A) is on the previous page

PROPERTY (B) QUESTION II OF III Fall 2012 Page 4 of 10

Question II (60 minutes) (Answer either Question II(A) or II(B), NOT both)

Handwriting: Please begin your answer in a new bluebook marked “Question II(A)” or “Question II(B),” depending on which one you choose to answer. Please write your AGN on the cover of each bluebook. Please skip lines and write on one side of each page. Laptops : Please type “Question II(A)” or “Question II(B),” depending on which one you choose to answer, at the start of your answer.

Question II(A) (60 minutes) (Answer either Question II(A) or II(B), NOT both)

Comment on the statement below, noting the extent to which you agree or disagree with it. Be sure to take note of and comment on all the assumptions and assertions in the statement. In addi-tion to addressing the example mentioned in the quote, use at least three more concrete examples to illustrate your points. At the end of the question are some suggestions for areas from which to draw those examples, though you may use areas of your own choosing if you think they will pro-vide better examples.

“Property law is full of judge-made rules that make no sense – just plain illogical or at odds with sensible policy objectives. Here and there courts get it right. But let’s face it: Most issues today are better dealt by the legislature than the courts, which should just stick to applying the rules the legislature has set down (or which are found in the constitution). And when they’re applying the rules, courts need to be careful not to make a mish-mash of them, as they’ve done with the “pub-lic use” requirement in eminent domain.”

o Forgery versus fraud in deeds o Horizontal privity and the availabil-

ity of damages o Tenancy by the entireties and debts

owed by one spouse o Access to migrant farms o Property in body parts

o The distinction between assignment and sublease o The distinction between contingent remainders and

executory interests o The distinction between negative easements and

restrictive covenants o The threshold test versus balancing in nuisance o The warranty of habitability in landlord-tenant law

Question II(B) (60 minutes) (Answer either Question II(A) or II(B), NOT both)

Comment on the statement below, noting the extent to which you agree or disagree with it. Be sure to take note of and comment on all the assumptions and assertions in the statement.

“Mortgage law is a mess. That’s always been the case: whatever duties banks have to borrowers when they sell a foreclosed house are just totally unclear. But the situation is even worse today. Lots of mortgages are underwater (i.e., the balance due exceeds the value of the home), but there’s really nothing legislatures can do about it. Even worse, when the private sector undertook a sensible reform of our antiquated recording system, creating MERS, courts (at least in Oregon) just gratuitously struck it down.”

Note: To answer this question you need to address more than Niday v. GMAC Mortgage, LLC, but for your convenience I attach a copy of the case from the Supplement.

PROPERTY (B) QUESTION III OF III Fall 2012 Page 5 of 10


Handwriting: Please begin your answer in a new bluebook marked “Question III(A)” or “Question III(B),” depending on which one you choose to answer. Please write your AGN on the cover of each bluebook. Please skip lines and write on one side of each page. Laptops : Please type “Question III(A)” or “Question III(B),” depending on which one you choose to answer, at the start of your answer to this Question.


Answer either Question III(A) or Question III(B), NOT both.

Andrea lived in a small “Prairie style” house on a one-acre lot next to a man-made public lake in Cania. The house was owned by her grandmother, who let her live there rent-free. In September 2009, Andrea met Barry, a truck driver, and they began da-ting. In September 2010 they married, and Barry moved in with Andrea. In October 2010, Andrea’s grandmother died, leaving the house to Andrea.

That same month, Andrea started a Masters in Architecture program at the University of Cania. Barry’s salary would cover Andrea’s tuition and their living expenses, leaving her free to devote as much time as she needed to her studies.

The house was not in very good condition when Barry moved in: it had some serious roof leaks, mold, and wiring problems, among other things. But Barry was handy, and with a little help from Andrea he managed to put it back in good condition. In December 2011, a realtor friend of Andrea’s remarked to her that all that work had transformed what most people in the area had thought of as a worthless dump into a nice little house on a great lot, “probably worth $500,000.”

Curious about the house, Andrea researched its history in January 2012, and discovered it had been built by Frank Lloyd Wright (1867-1959) at the start of his career. Wright was a major American architect with a highly distinctive style. Andrea published an article in a local paper in March describing the house and comparing it to other Wright houses. Andrea’s realtor friend congratulated her, telling her that a Wright house is worth more than an ordinary house. “I hear the county may even want to give it some kind of special status,” she added.

The day after her graduation May 2012, Andrea texted Barry while he was on the road, “Let’s face it. You’re just a truck driver, always will be. Me – I’m a professional now. I am so done with you.” Stunned, Barry signed up for extra driving routes to keep his mind occupied, and vowed never to return to the house. Andrea was too busy with her job search at the time to file formal divorce papers.

In August 2012 Andrea accepted a job offer with a prestigious Cania architecture firm which was impressed not only by how well she did in her Masters program, but also by her research into the house and the high quality of the restoration done on it, which she’d bragged about. “Andrea’s going to be a star – a real money maker,” the hiring partner told the other members of the firm.

Question III(A) continues on the next page →


On October 1, 2012, Andrea put the house on the market for $750,000. The next day at an open house a number of people came to look at it. One of them was Chantal, a developer who had re-cently moved to Cania from Idaho. “This is an original Wright,” Andrea said proudly. “Who? What?” replied Chantal, knowing nothing about architecture. “OMG, talking to one of the local yokels. Eewww,” tweeted Andrea to her firm partners. “Ahh, it’s nothing,” she said to Chantal.

Eager to buy the house before anyone else got it, Chantal offered to buy it for $1,000,000. Sur-prised, Andrea concluded that instead of being dumb maybe Chantal was joking with her “who? what?” response. Delighted that its status as a Frank Lloyd Wright house had apparently made it even more valuable than she realized, Andrea accepted the offer and signed a contract to sell the house, with closing scheduled for January 2, 2013.

In fact, Chantal was eager to sign a contract because she planned to tear down what to her was “that weird old house” and build two upscale modern houses on the lot. “It’s a nice lot,” Chantal thought, “with a great view of the lake. I can sell the two new houses for at least a million a piece.”

After they signed the contract Andrea gave Chantal the keys to the place and moved her furniture out. “No need to make you wait until closing,” she said. “I’ve already bought a condo downtown that I’m moving into.” Chantal had no desire to live in the house, but she did move her heirloom potato collection in there for temporary storage.

In November, the county designated the house a protected architectural monument. County offi-cials had begun planning for the designation as soon as they read Andrea’s article back in March. With this designation the house could still be bought and sold and used as a residence, but now had to be maintained in its original form, and definitely could not be torn down. That same month, a storm caused a dam to break, draining the lake next to the lot. The state, which had maintained the dam, quickly announced that for environmental reasons it had decided never to restore it.

Chantal was dismayed. “I know nothing about architecture,” she told a friend. “Why didn’t An-drea tell me about this whole Frank Lloyd Wright business? And now I’m supposed to buy a house worth half what I thought it would be?” “Actually, it’s worse than you think,” her friend (a professional real estate appraiser) replied. “People don’t like the hassles of dealing with protected status. Between that and the lake view being gone, it’s probably worth $500,000 at most.”

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Subquestions (1) and (2) of Question III(A) are on the following page →


Answer both subquestions (1) and (2). You do not need to start subquestion (2) in a new bluebook or new page.

(1) In early December, Chantal files suit against Andrea, seeking to rescind the contract. As alterna-tive relief, if the court denies that relief, the complaint requests that the sales price be adjusted from $1,000,000 to $500,000.

You are the law clerk to the judge in Chantal v. Andrea. The judge asks you to write a memorandum setting out the issues in the case and analyzing them. The judge also asks you for your views on what the law should be. The judge says she knows Andrea is still married to Barry but, the judge adds, she’s not interested in any possible ownership issues related to Barry. “Just assume for your memo that Andrea was the proper seller. Also, I already researched the validity of the order designating the house a protected architectural monument and the state’s decision not to rebuild the dam. They’re entirely valid and constitutional. So just tell me about this lawsuit.”

Write the memo. Note that Cania has the following statute:

Cania Statutes § Section 1. Vendor and Purchaser Risk Act.

a. When neither the legal title nor the possession of the subject matter of a contract for the purchase and sale of realty has been transferred to the purchaser: (1) if the realty is de-stroyed or materially damaged, the vendor cannot enforce the contract; (2) if the realty has been subject to a loss that is not material, there shall be, to the extent of the damage, an abatement of the price.

b. When either the legal title or the possession of the subject matter of a contract for the pur-chase and sale of realty has been transferred to the purchaser, the fact of destruction or damage to the realty shall not relieve the purchaser of the duty to pay the contract price.

(2) Assume, solely for purposes of this subquestion (2), that in Chantal v. Andrea, the court ultimate-ly orders Chantal to go through with the closing, so Andrea is now sitting on a pile of a cash. Sick of driving extra routes, Barry has decided it’s time for legal action. “I put Andrea through her Masters program, and now she’s got this great future,” he figures. “And all the time I put into the house – that’s the only reason it was worth anything.” He retains a lawyer to file for divorce, and requests that Andrea’s Masters in Architecture degree and the proceeds from the sale of the house be treated as marital property subject to equitable division.

You are the law clerk to the judge in Barry v. Andrea. The judge ask you to write a memorandum analyzing Barry’s claims about marital property. He also asks you for your views on what the law should be.

Write the memo. Note that Cania has the following statute:

Cania Statutes § 2. Dissolution of Marriage. a. In granting dissolution of marriage, the court shall divide marital property without regard to mari-

tal misconduct, in such proportions as the court deems just after considering all relevant factors. b. For purposes of this section, “marital property” means all property acquired by either spouse

after the marriage, except: (i) Property acquired by gift, bequest, devise, or descent; (ii) Property acquired in exchange for property acquired prior to marriage or in exchange

for property acquired by gift, bequest, devise, or descent; (iii) Property acquired by a spouse after a decree of legal separation; and (iv) Property excluded by valid agreement of the parties.

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Question III(B) starts on the next page →



Answer either Question III(A) or Question III(B), NOT both.

Keep in mind that the following diagram, which is not to scale, as well as the abstract of transac-tions and events, do not contain all the facts you need to write an answer. The narrative begins on the next page.

1998: Lorenzo buys Blackacre. 2000: Lorenzo builds planned golf community. 2001: Lorenzo Andrea (#310). Includes plan promises. Recorded. 2004: Lorenzo GolfCo. 4/2012: Andrea Barry (#310). Recorded, but misindexed in grantor index under “Drea” (D). Barry

leaves for long tour of golf courses in Europe. 9/2012: Andrea Chantal. Not recorded. 12/1/2012: Barry claims ownership of #310. 12/2/2012: GolfCo announces plans to put hedge around golf course

Pinehaven Golf Villas

Other houses, not part of Pinehaven Golf Villas

Pinehaven Golf Course

Main Street

310

309

Question III(B) continues on the next page →


In 2000, Lorenzo, a developer, builds a new residential golf community on Blackacre, which he purchased in 1998. He calls the development “Pinehaven Golf Villas.” At the center of the com-munity is a small, 9-hole golf course surrounded by 20 houses. To help fund the costs of main-taining the course, it will be open for play by non-residents, who will have to pay a fee. In his ads Lorenzo touts the beautiful vista that all residents of the relatively modest homes will have in their backyards. “But there’s more to life than golf,” his ads continue. “As a Pinehavian you’ll not only be able to play golf for free on the course, you’ll be part of a vibrant community of neighbors working together to maintain this beautiful asset.” His plan is to include the following “plan promises” in each deed to the buyers of the residences:

• Golf course: Lorenzo promises on behalf of himself, his successors and assigns, for the benefit of the owners of the residences in Pinehaven Golf Villas, to maintain the land as a golf course,

• Residents’ use of golf course: On behalf of himself, his successors and assigns, Lorenzo grants the residents of the adjacent houses and their heirs, successors, and assigns an easement to play for free on the golf course.

• Single family residence/annual maintenance requirement: Buyers of the house promise on behalf of themselves and their heirs, successors, or assigns, for the benefit of Lorenzo and his heirs, successors, and assigns, and other Villas residents, that the property will be used for a single family residence only, and that at least one member of the household will contribute 25 hours a year to maintaining the golf course.

In 2001, Andrea buys #310 Main Street from Lorenzo, the first one to be sold. Her deed, which is properly recorded and indexed, includes all the plan promises listed above.

In 2004, Lorenzo, who wants to devote all his time to other new development projects, sells the Pinehaven Golf Course to GolfCo.

Andrea runs into some financial difficulties in April 2012 and sells #310 to Barry, a famous golf pro. The deed is recorded but misindexed in the grantor index under “D” for “Drea.” Barry does not move in right way. On the living room wall he hangs his portrait with his name, showing him standing in front of #310; the house is otherwise empty. He then leaves for a long tour of golf courses in Europe.

In September 2012, Andrea, noticing that Barry hasn’t moved in, and still short on money, sells the house again, this time to Chantal. Chantal is too busy to record her deed. Before closing she noticed the portrait, and wondered what it was doing there, but figured that Andrea must really admire Barry.

Chantal also owns #309 Main Street, across the street (and not part of the Villas). #309 is a group home for developmentally disabled adults, run as a for-profit enterprise by Chantal. Chantal plans to make the same use of #310, treating the two houses as a unit. She herself will not live in either house. Chantal has the kitchen and laundry room taken out of #310 and made into another bedroom: the residents of #309 and #310 will dine together in #309 and do their laundry in #309. She has loves the idea of the Pinehaven Golf Villas lifestyle, and thinks that the residents of #310 will enjoy playing golf there. She doubts any of the residents will be interested in the 25-hour annual maintenance aspect, though, and tells them they don’t have to do it.

Question III(B) continues on the next page →

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On December 1, 2012, Barry returns from Europe and tells Chantal, “What’s going on here? #310 is mine. I want everyone out. Now!”

On December 2, GolfCo announces that it will renovate Pinehaven Golf Course to make it more upscale. “The modest homes surrounding the course, while quaint, do not square with the refined image we seek to project,” a spokesperson announces. “Accordingly, we will be planting an eight-foot tall hedge around the course.” The neighbors are upset, saying it violates the plan promises. A spokesman for GolfCo responds, “We never signed any promises about the course. In fact we could shut it down tomorrow if we wanted.”

Answer subquestions (1) through (4). You may cross-reference any discussion in one subquestion to your answer in another as appropriate. You do not need to start each subquestion in a new bluebook or new page.

(1) Who owns the house at #310: Barry or Chantal? Explain. Note that Cania has the following statute:

Cania § 1. Every conveyance or transfer of real property or any interest therein, other than a lease not exceeding one year, is void as against any subsequent purchaser of the same property, or any interest in or part thereof, in good faith and for a valuable consideration, whose conveyance is first duly recorded, unless the same shall have been duly recorded.

(2) Assuming (solely for the sake of this subquestion (2)) that Chantal owns #310, could GolfCo stop her from using it as a group home? Could it force compliance with the 25-hour per year maintenance requirement?

(3) Assuming (solely for the sake of this subquestion (3)) that Chantal owns #310, and that the use as a group home is permitted, would the residents have the right to play golf on the course?

(4) Assuming (solely for the sake of this subquestion (4)) that Barry owns #310, can he stop GolfCo from going ahead with its plans for a hedge? Is there any other relief he might be able to get? Explain.

End of Examination

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Property (B) Final Exam Supplementary Materials for Question II(B) December 11, 2012

Before Schuman, Presiding Judge, and Woll-heim, Judge, and Nakamoto, Judge.

NAKAMOTO, J. This case, one of first impression in the Oregon appellate courts . . . Since 1959, the Oregon Trust Deed Act has authorized the use of trust deeds as security for home loans and allowed foreclosure of a defaulting homeowner’s interest by means of a privately-conducted, advertised trustee’s sale of the home rather than pursuant to a court-ordered, judicial foreclosure—provided, how-ever, that certain statutory requirements are met. One of those requirements is that “any assignments of the trust deed by the trustee or the beneficiary” must be “recorded in the mortgage records in the counties in which the property described in the deed is situated.” ORS 86.735(1). . . .

The question before us—and one that homeowners and MERS are litigating throughout the country under similar state laws—is whether MERS and its members can avail themselves of Oregon’s statutory, nonju-dicial foreclosure process for trust deeds. Plaintiff is a homeowner who, like many other borrowers, executed a trust deed that named MERS as the “beneficiary.” After plaintiff de-faulted on her loan repayment obligation, she received a notice of trustee’s sale that identi-fied MERS as the “beneficiary” of the sale and that asserted a power of sale under the trust deed. Plaintiff then filed this declaratory judgment and injunctive relief action to stop the trustee’s sale, arguing that, notwithstand-ing the labels used in the trust deed, MERS is not the “beneficiary” of the trust deed for pur-poses of Oregon’s nonjudicial foreclosure laws.

The trial court granted summary judgment in favor of MERS and the other defendants

(the loan servicer and the trustee) . . . . Plain-tiff now appeals . . .. We . . . hold that . . .the trial court erred in granting summary judgment in favor of defendants. I. BACKGROUND A. Real Estate Financing in Oregon

For the first hundred years of statehood, real estate loans in Oregon were typically se-cured by mortgages. . . . [A] mortgage creates a lien on the property that can be foreclosed, like other liens, only by way of judicial action, after a lawsuit has been filed. And, as is the case with other liens, the judicial foreclosure process includes a statutory right to redemp-tion. That is, once a court issues a decree of foreclosure in favor of the mortgagee, thereby ordering the mortgaged property to be sold, the mortgagor nonetheless retains the right to satisfy the debt and redeem the property for a period of time after the sale.

By the late 1950s, there was a movement afoot to streamline certain features of Ore-gon’s mortgage laws—particularly, judicial involvement and the statutory right to redemp-tion by borrowers and junior lienholders. In 1959, the legislature responded by enacting what is known as the Oregon Trust Deed Act (OTDA), ORS 86.705 to 86.795, as an alterna-tive to the judicial foreclosure process. The OTDA authorizes the use of “[t]ransfers in trust of an interest in real property”—i.e., transfers by trust deeds, “to secure the per-formance of an obligation of a grantor, or any other person named in the deed, to a benefi-ciary.” ORS 86.710; see also ORS 86.705(5) (defining a “trust deed” as a deed executed in conformity with the OTDA that conveys “an interest in real property to a trustee in trust to secure the performance of an obligation owed by the grantor or other person named in the

Niday v. GMAC Mortgage, LLC, 2012 Ore. App. LEXIS 893 (No. A147430 Ore. App. 7/1812)


deed to a beneficiary”). Under the OTDA, a trust deed is “deemed

to be a mortgage on real property” and is gen-erally “subject to all laws relating to mortgag-es on real property”— except where particular differences are spelled out in the OTDA. ORS 86.715. The most significant difference, of course, is that the trustee may “foreclose a trust deed by advertisement or sale” without judicial involvement. Under ORS 86.735, four requirements must be satisfied in order for the trustee to initiate a nonjudicial foreclosure:

“(1) The trust deed, any assignments of the trust deed by the trustee or the benefi-ciary and any appointment of a successor trustee are recorded in the mortgage records in the counties in which the property de-scribed in the deed is situated; and

“(2) There is a default by the grantor or other person owing an obligation, the per-formance of which is secured by the trust deed, or by their successors in interest with respect to any provision in the deed which authorizes sale in the event of default of such provision; and

“(3) The trustee or beneficiary has filed for record in the county clerk’s office in each county where the trust property, or some part of it, is situated, a notice of de-fault containing the information required by ORS 86.745 and containing the trustee’s or beneficiary’s election to sell the property to satisfy the obligation; and

“(4) No action has been instituted to re-cover the debt or any part of it then remain-ing secured by the trust deed, or, if such ac-tion has been instituted, the action has been dismissed, [with limited exceptions].”

If each of those requirements is met, the trus-tee can then provide the grantor and others with notice of the intended sale; that notice likewise must meet various statutory criteria. . . . If the trustee provides the required notice of the sale to the proper parties, and otherwise

conducts the sale according to the statutory requirements, the trust deed grantor—unlike a traditional mortgagor—has no statutory right to redeem the property after the trustee’s sale. . . . B. Oregon’s Recording Laws

Operating in the background of the OTDA are Oregon’s recording laws. Like every other state, Oregon has enacted recording statutes that govern priorities with respect to interests in real property. Those statutes generally serve two related purposes: They protect bona fide purchasers who acquire interests in real prop-erty for consideration and without notice of prior interests. E.g., ORS 93.640 (“Every con-veyance, deed, land sale contract, assignment of all or any portion of a seller’s or purchas-er’s interest in a land sale contract or other agreement or memorandum thereof affecting the title of real property within this state [in-cluding mortgages and trust deeds] which is not recorded as provided by law is void as against any subsequent purchaser in good faith and for a valuable consideration of the same real property * * *.”). Conversely, they allow prospective purchasers to consult the public records and discover prior claims that might affect their interests, and they protect record-ers by putting prospective purchasers on no-tice of those prior claims.

Oregon’s recording laws require the coun-ty clerk to keep a separate book and index for recorded mortgages. And, as later discussed in more detail, there are also specific recording requirements for discharging a mortgage. If the mortgage is discharged in accordance with those recording requirements, “the land de-scribed in the mortgage [is free] from the lien of the mortgage as against all subsequent pur-chasers and incumbrances for value and with-out notice.”

Since at least the late 1800s, Oregon law has also expressly permitted the recording of assignments of mortgages. . . . Recording an assignment of a mortgage is not (and never


has been) necessary under Oregon law to transfer a beneficial interest in the security in-strument. Rather, by recording the assignment, the assignee gains a measure of protection against subsequent purchasers who are not otherwise aware of the assignment. The rec-orded assignment also protects the assignee in the event that the original mortgagor and mortgagee enter into a purported discharge of the mortgage after the assignment.

Those recording laws for mortgages were in place in 1959 when the legislature enacted the OTDA and, as later discussed in more de-tail, generally apply equally to the recording of trust deeds. For now, suffice it to say that the trustee may foreclose a trust deed under the OTDA if certain public recording require-ments are satisfied—namely, that “[t]he trust deed, any assignments of the trust deed by the trustee or the beneficiary * * * are recorded in the mortgage records in the counties in which the property described in the deed is situated.” ORS 86.735(1). C. MERS

In the first few decades after the OTDA was enacted, real estate loans in Oregon fit neatly into its scheme: A lender originated a home loan; as security for the loan, a borrower executed a trust deed that named the lender as the beneficiary; and assignments of the trust deed from the lender-beneficiary, if any, were recorded in the mortgage records of the county in which the home was located. That changed, however, with the growth of the market for mortgage-backed securities and the conse-quent development of MERS. . . .

When a MERS member originates a home loan, the loan is assigned an 18 digit “Mort-gage Identification Number” in the MERS da-tabase. If, as is often the case, the loan obliga-tion is secured by a trust deed, MERS is des-ignated in that trust deed as the “nominee” for the member and for the member’s successors and assigns. MERS is also named as the “ben-eficiary” of the trust deed. If the MERS mem-

ber sells or assigns the beneficial interest in the loan obligation to another member, that transfer is tracked in the MERS database (by the loan’s Mortgage Identification Number). The transfer is not recorded in the county rec-ords, and MERS continues to act as “benefi-ciary” of the trust deed. D. Plaintiff’s Trust Deed, Default, and Trus-tee’s Notice of Sale

In August 2006, plaintiff entered into a home loan agreement with GreenPoint, a MERS member. In exchange for the loan, plaintiff signed a promissory note in which she promised to pay $236,000, plus interest, to GreenPoint. Plaintiff also executed a “Deed of Trust,” which was subsequently recorded in Clackamas County. The trust deed states that “Mortgage Electronic Registration Systems, Inc. (MERS) is the Grantee of this Security Instrument,” and it includes various “defini-tions”:

“(C) ‘Lender’ is GreenPoint Mortgage Funding, Inc. * * *

“(D) ‘Trustee’ is FIRST AMERICAN TITLE INSURANCE COMP

“(E) ‘MERS’ is Mortgage Electronic Systems, Inc. MERS is a separate corpora-tion that is acting solely as a nominee for Lender and Lender’s successors and assigns. MERS is the beneficiary under this Security Instrument. * * *

“(F) ‘Note’ means the promissory note signed by Borrower and dated August 15, 2006. The Note states that borrower owes Lender [$236,000] plus interest. Borrower has promised to pay this debt in regular Pe-riodic Payments and to pay the debt in full not later than September 1, 2036.”

(Uppercase in original; emphasis added.) The trust deed also provides:

“TRANSFER OF RIGHTS IN THE PROPERTY

“The beneficiary of this Security In-strument is MERS (solely as nominee for


Lender and Lender’s successors and as-signs) and the successors and assigns of MERS. This Security Instrument secures to Lender: (i) the repayment of the Loan, and all renewals, extensions and modifications of the Note, and (ii) the performance of Borrower’s covenants and agreements un-der this Security Instrument and the Note. For this purpose, Borrower irrevocably grants and conveys to Trustee, in trust, with power of sale, the following described property located in the [Clackamas Coun-ty].

“* * * * * “TOGETHER WITH all the improve-

ments now or hereafter erected on the property, and all easements, appurtenances, and fixtures now or hereafter a part of the property. All replacements and additions shall also be covered by this Security In-strument. All of the foregoing is referred to in this Security Instrument as the ‘Proper-ty.’ Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security In-strument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender’s successors and as-signs) has the right to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Prop-erty, and to take any action required of Lender, including, but not limited to, re-leasing and canceling this Security Instru-ment.”

(Uppercase in original; emphasis added.) On April 17, 2009, MERS recorded a doc-

ument appointing a successor trustee, LSI Ti-tle Company of Oregon, LLC. Sometime after that date, plaintiff received a “Trustee’s Notice of Sale” from Defendant Executive Trustee Services, Inc., agent for LSI Title Company. That notice of sale identified “‘MERS’ MORTGAGE ELECTRONIC REGISTRA-TION SYSTEMS, INC., SOLELY AS NOM-

INEE FOR LENDER GREENPOINT MORTGAGE FUNDING, INC., as Benefi-ciary[.]” (Uppercase in original.) It further stated that plaintiff was in default and that “[b]oth the beneficiary and trustee have elect-ed to sell the said real property to satisfy the obligations secured by said trust deed and no-tice has been recorded pursuant to [ORS] 86.735(3) * * *.” The sale was scheduled for September 2, 2009.

Plaintiff, upon receiving the notice of trus-tee’s sale, sent a letter, by way of her attorney, to Executive Trustee Services. In the letter, plaintiff demanded that the sale be canceled and requested that Executive Trustee Services provide various documents, including docu-ments establishing the “entire chain of title to the Deed of Trust and note.” Plaintiff contends that she never heard back from Executive Trustee Services in response to that letter or her follow-up letter, but the trustee’s sale was apparently canceled and rescheduled for Feb-ruary 1, 2010. E. Declaratory and Injunctive Relief Proceed-ings

On February 1, the supposed date of the trustee’s sale, plaintiff filed this action for de-claratory relief and injunctive relief against Executive Trustee Services, MERS, and GMAC Mortgage, LLC (GMACM), the com-pany that was servicing the loan. Plaintiff al-leged that defendants were “attempting to conduct a Trustee’s Sale of the Plaintiff’s res-idential real property by rescheduling a Trus-tee’s Sale without notice to the Plaintiff and where the Defendants have not only failed to provide any evidence that they have any legal interest in either the Note or the Deed of Trust but have also specifically ignored and refused Plaintiff’s multiple prior requests for specific information * * * including but not limited to the history of the chain of title to the Note and Deed of Trust.”

Defendants moved for summary judgment on plaintiff’s claims, arguing that plaintiff was


in default on the note and that GMACM—the “holder of the Note”—and MERS—the “bene-ficiary of the Deed of Trust”—were entitled, as a matter of law, to foreclose the trust deed. Specifically, defendants explained:

“It is indisputable that plaintiff was in default of her loan. As such, it cannot be contested that the holder of the Note and the beneficiary of the Deed of Trust were entitled to foreclose the Deed of Trust. De-fendants have put forth conclusive evi-dence that GMACM, as the holder of the original note and servicer of plaintiff’s loan, properly initiated the foreclosure of the Deed of Trust on behalf of MERS, the beneficiary of the Deed of Trust, as the nominee of the original lender’s assignee, Aurora Bank. LSI, the duly appointed suc-cessor trustee, properly executed the non-judicial foreclosure.”

Defendants represented in their summary judgment motion that “GMACM’s counsel has the original note and will bring the same to the hearing on this motion.”

In response, plaintiff argued, among other contentions, that MERS “is not the ‘benefi-ciary’ of anything despite boilerplate lan-guage in Deeds of Trust.” The beneficiary un-der the OTDA, plaintiff explained, is the per-son who benefits from the trust deed—i.e., “the one that lends the money.” The identity of the “beneficiary” matters, plaintiff contended, because nonjudicial foreclosure is only availa-ble if “any assignments of the trust deed by the trustee or the beneficiary and any appointment of a successor trustee are recorded in the mortgage records in the counties in which the property described in the deed is situated.” ORS 86.735(1). “[W]hat that’s telling us in that statute,” plaintiff’s counsel argued, “is that if there are any assignments which are necessary because the original lender is not the one that’s seeking to foreclose, that assign-ment would have to be recorded, as I’m read-ing this.” . . .

“The language in that statute that says, ‘And any assignments,’ is put there for a reason, and I would proffer to the Court that the reason is, if you’ve got a stranger to the transaction, a third party who is not the original lender, who is trying to foreclose, you have to show that you, the third party, have the right to do so by a valid recorded assignment, and they don’t have one.”

Ultimately, the trial court . . . granted de-fendants’ motion and entered judgment against plaintiff. II. ANALYSIS

Plaintiff now appeals that judgment, re-prising her argument that MERS is not actual-ly the “beneficiary” of the trust deed under the OTDA. . . . She urges us to conclude . . . that the statutory “beneficiary” of the trust deed is the original lender, not MERS.

Defendants, for their part, submit that plaintiff contractually agreed that MERS would be the beneficiary of the trust deed, and that nothing in the text of the OTDA prevents a nominee or agent from serving as the “bene-ficiary” in this particular context. . . .

We turn, then, to the primary issue before us: the meaning of the term “beneficiary” in ORS 86.735(1), which we discern from the text, context, and helpful legislative history of the statute. For purposes of the OTDA, “bene-ficiary” is a defined term; ORS 86.705 pro-vides:

“As used in ORS 86.705 to 86.795, unless the context requires otherwise:

“(1) ‘Beneficiary’ means the person named or otherwise designated in a trust deed as the person for whose benefit a trust deed is given, or the person’s successor in interest, and who shall not be the trustee un-less the beneficiary is qualified to be a trus-tee under ORS 86.790(1)(d).” As noted above, the trust deed in this case

stated, “MERS is the beneficiary under this Security Instrument.” According to defend-


ants, that is the end of the debate. MERS, un-der the plain language of the trust deed, is the person named and designated in the trust deed as the beneficiary, and nothing in the OTDA expressly prohibits the parties from contractu-ally agreeing to designate MERS in that way. In other words, absent some express prohibi-tion on this type of arrangement, the person “for whose benefit a trust deed is given” is whoever the trust deed says it is.1

We are not persuaded that the legislature intended circularity and redundancy in defin-ing beneficiary. The legislature could have simply defined “beneficiary” as the person named or otherwise designated in a trust deed as the beneficiary. Instead, the legislature used the phrase “the person for whose benefit a trust deed is given[.]” We presume that the legislature used that different language for a reason. That is, we presume that the legisla-ture intended the phrase “person for whose benefit a trust deed is given” to add some con-tent to the definition of beneficiary.

Considering the statutory and historical context of the OTDA, we are persuaded, fur-ther, that the legislature understood the “per-son for whose benefit a trust deed is given” to refer to a particular person—namely, the per-

1 Defendants also suggest that, because plaintiff agreed that MERS would act as the “beneficiary” of the trust deed, she “must prove there is a clear and ‘overpowering’ Oregon rule of law that the Deed of Trust violates before this Court may inter-fere with the parties freedom of contract.” How-ever, this case is not about the parties’ freedom of contract or their intent; it is about legislative in-tent. That is, the OTDA authorizes nonjudicial foreclosure only when certain statutory require-ments are met, regardless of what the parties might have believed when they executed the trust deed. Thus, the fact that plaintiff “contractually agreed that MERS was the beneficiary in its ca-pacity as agent (nominee) for the lender, its suc-cessors and assigns” does not determine whether MERS is the beneficiary for purposes of the OTDA.

son to whom the underlying, secured obliga-tion is owed. As previously discussed, the OTDA was enacted with the express under-standing that trust deeds would function as a species of mortgage. ORS 86.715 (“A trust deed is deemed a mortgage * * *.”). The “ben-efit” of the trust deed, like a mortgage, is secu-rity for an underlying obligation. Indeed, that understanding of the “benefit” of the trust deed—security of an obligation owed to the beneficiary—permeates the statutory scheme. It is present in the definition of “trust deed”: “a deed executed in conformity with ORS 86.705 to 86.795, and conveying an interest in real property to a trustee in trust to secure the performance of an obligation owed by the grantor or other person named in the deed to a beneficiary,” ORS 86.705(5); in the defini-tion of “grantor”: “the person conveying an interest in real property by a trust deed as se-curity for the performance of an obligation,” ORS 86.705(2); in the statute authorizing trust deeds: “Transfers in trust of an interest in real property may be made to secure the perfor-mance of an obligation of a grantor, or any other person named in the deed, to a benefi-ciary,” ORS 86.710; and in the statute deem-ing trust deeds to be mortgages: “the benefi-ciary is deemed the mortgagee,” ORS 86.715.

Nothing in the text, context, or legislative history of the OTDA suggests that the legisla-ture intended the “person for whose benefit a trust deed is given” to refer to anyone other than the party to whom the secured obligation was originally owed. ORS 86.705(1). And, as a matter of historical context, defendants’ con-struction of the statute is not consistent with how security instruments in the nature of mortgages functioned. By the time the OTDA was enacted in 1959, it was well established that the mortgage was merely an incident to the underlying debt. In other words, the under-lying debt and the security for that debt were not separately transferrable; the party who benefitted from the mortgage and the party to whom the obligation was owed were one and


the same. Defendants, although acknowledging that

mortgages were historically considered an “in-cident to the debt,” argue that the legislature nonetheless would have intended to allow nominees or agents to hold “legal title” on behalf of the party to whom the underlying obligation is owed—in other words, to allow someone other than the beneficial owner of the trust deed to serve as the beneficiary. For textual support, defendants point to the lan-guage that precedes the definitions in ORS 86.705 and states those definitions apply “[a]s used in ORS 86.705 to 86.795, unless the con-text requires otherwise[.]” (Emphasis added.) That emphasized language, defendants argue, opens the door to a “modified definition” of beneficiary because the “Oregon Legislature expressly contemplated that agents may be used in real estate transactions.” As additional context, defendants point to ORS 86.720(3), which states that, before issuance and record-ing of a release of the trust deed, “the title in-surance company or insurance producer shall give notice of the intention to record a release of trust deed to the beneficiary of record and, if different, the party to whom the full satisfac-tion payment was made.” (Emphasis added.) According to defendants, that statute is an “expressed recognition that the beneficiary and the note owner are not always the same party. So contrary to [plaintiff’s] reading of ORS 86.705(1), the Oregon Legislature has not restricted parties from appointing an agent to serve as beneficiary of record.”

Defendants have conflated two issues: (1) who is the “beneficiary” under ORS 86.705(1); and (2) who can act on behalf of that beneficiary. The former is the statutory construction question before us, and, in our view, neither agency nor nominee law pro-vides relevant context as to that question, let alone context that demands a modified statuto-ry definition. Moreover, defendant’s sugges-tion that a nominee or agent might hold “legal title” as the “beneficiary” of a trust deed finds

no support in the OTDA or Oregon case law. It is true that “Oregon has recognized since 1862 that one person may hold legal title to property and that another person may hold eq-uitable title to that property.” But, if anything, that body of law suggests that the holder of legal title under OTDA would be the trustee, not a separate “nominee” or “agent” acting on behalf of the beneficiary.2

Defendants’ reliance on ORS 86.720(3) is also misplaced. That statute, which involves the release of a trust deed, recognizes that the “beneficiary of record” might be different from the party to whom the full satisfaction payment is made. ORS 86.720(3) (emphasis added). The language defendants omit makes all the difference. By distinguishing between the “beneficiary” and the “beneficiary of rec-ord,” the OTDA recognizes that the benefi-ciary of a trust deed might not be reflected in the public records, because the note has been transferred by indorsement without a recorded assignment. . . . So, not only does the statutory distinction between “the beneficiary of rec- 2 Even that proposition is dubious, considering that trust deeds operate like mortgages rather than conveying legal or equitable title. In Kerr v. Mil-ler, 159 Ore. App. 613, 621, 977 P.2d 438, rev den, 329 Ore. 287, 994 P.2d 122 (1999), we ex-plained:

“A trust deed securing the sale of property is deemed a mortgage. With respect to mortgages, Oregon is a ‘lien theory’ state, meaning that a mortgage on real estate does not convey legal or equitable title or interest to the holder of the mortgage (mortgagee). Instead, the mortgagee has only a lien on the property. As a result, if the debtor (the mortgagor) defaults on the obli-gations secured by the mortgage (e.g., payments on the debt or insuring and maintaining the property), the mortgagee does not gain an im-mediate right of possession but must instead first foreclose the secured interest. Until fore-closure, the mortgagee lawfully may take pos-session only if the mortgagor voluntarily relin-quishes possession.”


ord” and “party to whom the full satisfaction payment was made” fail to support defend-ants’ contention that the trust deed and under-lying obligation can be severed and held by separate parties; it actually cuts against de-fendants’ position, suggesting instead that the beneficial interest passes with the note but might not be reflected in the county mortgage records.

In sum, we are persuaded that the “bene-fit” of the trust deed is security for the under-lying obligation, and that “the person named or otherwise designated in a trust deed as the person for whose benefit a trust deed is given” refers to the person named or designated in the trust deed as the party to whom the underly-ing, secured obligation is owed. We turn, then, to the trust deed at issue.

As described above, the trust deed states that GreenPoint Mortgage Funding, Inc. is the “lender.” It further states that “MERS is a sep-arate corporation that is acting solely as a nominee for Lender and Lender’s successors and assigns. MERS is the beneficiary under this Security Instrument.” In a later section, the trust deed explains that the beneficiary of the trust deed is “MERS (solely as nominee for Lender and Lender’s successors and as-signs) and the successors and assigns of MERS.”

Despite referring to MERS as the benefi-ciary, the trust deed designates GreenPoint as the party to whom plaintiff, the borrower, owes the obligation secured by the trust deed. The trust deed explicitly “secures to Lender: (i) the repayment of the Loan * * * and (ii) the performance of Borrower’s covenants and agreements * * *.” For the reasons discussed above, GreenPoint, the lender, is therefore the “beneficiary” of the trust deed within the meaning of ORS 86.705(1), whereas MERS is designated as an agent or nominee of Green-Point.

Consequently, we conclude that the trial court erred in granting summary judgment in

favor of defendants in this case. The trial court, with MERS in mind as the “benefi-ciary,” examined the requirements of ORS 86.735, including the requirement in subsec-tion (1) that “any assignments of the trust deed by the trustee or the beneficiary * * * are rec-orded in the mortgage records * * *.” There was no genuine issue of material fact regard-ing the requirement in ORS 86.735(1), the court concluded, because MERS had never assigned the trust deed. The same cannot be said with respect to GreenPoint as beneficiary.

There is evidence in the summary judg-ment record that GreenPoint transferred its interest in the promissory note, the obligation secured by the trust deed. Transfer of the promissory note was one of the ways that a mortgage was “assigned” when the OTDA was enacted; the other was by a separate writ-ten document. We have no reason to believe that the legislature intended Oregon law re-garding the “assignment” of trust deeds to be any different from mortgages. Trust deeds are “deemed to be a mortgage” unless inconsistent with the OTDA, and nothing in the OTDA prescribes any other method of assignment. Thus, like a mortgage, a trust deed may be as-signed (1) by a separate writing or (2) by the assignment of the underlying promissory note.

The OTDA, as previously discussed, re-quires that “any assignments” be “recorded in the mortgage records” before a trustee may proceed with nonjudicial foreclosure. ORS 86.735(1) (emphasis added). According to de-fendants, though, “assignment” refers only to formal, written assignments rather than as-signment by transfer of the note. In support of that reading of the statute, defendants argue, first, that a written assignment “is capable of recording” but “a transfer of a note is not.” Second, defendants argue that, if “assignment” were to include the transfer of an interest by operation of law, it would create a conflict with ORS 86.110.

Neither argument is persuasive. First, the


text of the OTDA, which refers broadly to “any assignment,” does not suggest any dis-tinction between those assignments that are readily recordable and those that are not. But, in any event—and contrary to defendants’ as-sertion—an assignment by “transfer of a note” is, in fact, capable of being recorded. Nothing prevents parties from recording a copy of the indorsed note or a separate writing memorial-izing that transfer.

Second, ORS 86.110(1), as it read when the OTDA was enacted and as it still reads today, refers to the discharge of a mortgage that has been transferred by indorsement “without a formal assignment” of the mort-gage. ORS 86.110(1) (emphasis added). That statutory language is consistent with the un-derstanding, well established at the time the OTDA was enacted, that there were two methods of assignment, one “formal” and the other by indorsement. As noted above, the text of the OTDA—”any assignments”—is broad enough to encompass both. Moreover, we do not perceive a conflict between, on the one hand, a requirement that “any assignment” be recorded before proceeding with nonjudicial foreclosure, and, on the other hand, a statutory procedure that governs proof of satisfaction where a mortgage is transferred without a “formal assignment.” The statutes address dif-ferent subjects and use different language.

In this summary judgment record, there is evidence that GreenPoint assigned its interest in the promissory note and no longer has any beneficial interest in the trust deed; however, there is no evidence that the county mortgage records actually reflect an assignment by GreenPoint. Thus, the trial court erred in granting defendants’ summary judgment mo-tion, because there are genuine issues of mate-rial fact as to whether one of the requirements for nonjudicial foreclosure, ORS 86.735(1), has been satisfied.

In sum, we conclude that the “beneficiary” of a trust deed for purposes of the OTDA is

the person named or otherwise designated in the trust deed as the person to whom the se-cured obligation is owed—in this case, the original lender. We further conclude that, be-cause there is evidence that the beneficiary assigned its interest in the trust deed without recording that assignment, there is a genuine issue of material fact on this summary judg-ment record as to whether ORS 86.735(1), a predicate to nonjudicial foreclosure, has been satisfied. We emphasize, however, that our holding concerns only the requirements for nonjudicial foreclosure. Cf. ORS 86.710 (ben-eficiary of the trust deed retains the option of judicial foreclosure). And the import of our holding is this: A beneficiary that uses MERS to avoid publicly recording assignments of a trust deed cannot avail itself of a nonjudicial foreclosure process that requires that very thing— publicly recorded assignments.

Reversed and remanded.


PROPERTY (B) Final Examination: Sample Answers

Below are the best answers for each Question. Note that although the answers take a position in response to the Questions, those answers are not necessarily the only ones; generally what is most important is the analysis. Not every aspect of the analysis in each of the Sample Answers is necessarily correct, because it is possible to obtain significant partial credit for an issue even if the analysis is not perfect.


First Sample Answer

1. May PrepCo stay in the warehouse for the rest of T’s lease even though Lorenzo is op-posed to it? Why or why not?

At common law a tenancy is a property interest that is alienable, so T might be able to convey all or part of her interest to PrepCo (PC). But the common law also allowed the parties to agree otherwise, even though that is a restraint on alienation.

Here there was an explicit provision in the lease between Lorenzo (L) and Tanya (T) that T could not “assign” the lease without L’s permission. Courts will likely enforce this provi-sion. But we must therefore determine whether the conveyance of T to PC was an assignment or a sublease. If it is considered a sublease, then the provision will not apply and it is likely that there is no issue regarding L’s permission and PC can remain in possession.

Courts generally decide for themselves whether a conveyance by a tenant to a sub-tenant of some sort is an “assignment” or “sublease,” based on its characteristics. Courts consider whether the original tenant retains an interest in the property or not. If so, it will likely be deemed a sub-lease; if the original tenant conveys all its interest, it will be considered an as-signment. Furthermore, the traditional rule generally does not consider the intent of the parties. Here, the T to PC agreement says that PC will assume the “remainder” of the lease. This lan-guage suggests that it is an assignment. Further, the agreement says that PC will assume all of the covenants, including the responsibility to pay rent. Again, this sounds like PC will be “tak-ing over” the remainder of the lease.

On the other hand, there is also language in the agreement that suggests that T is retain-ing an interest in the lease: “T reserves the right to renter and retakes possession” and to “in-spect the premises.” This language might lead the court to think that it is a sub-lease agreement because T retains the right to retake possession and therefore has perhaps a reversionary inter-est in the property.

It’s hard to say how this would come out because the whole assignment-sublease dis-tinction doesn’t have any obvious purpose. Whether the new tenant is liable for rent to the land-lord shouldn’t really depend on whether the old tenant retained any interest. In any event, in the absence of clear language, or even in the face of clear language, a few courts look at the intent of the parties. Here, if the Cania decided to follow this minority approach, the court would look at T’s intent in her conveyance of the lease to PC. Given the fact that she thinks the world is

Property (B) Question I of III Fall 2012 Page 2 of 35

coming to an end and therefore there is no evidence of her intent to return to the property at any point in time, the court could deem the agreement an assignment. This means that L’s consent would be required. (If the court classified the agreement as a sub-lease, on the other hand, then as mentioned the lease restriction would not apply.)

Here, T clearly failed to get L’s permission, so she breached the covenant. If that’s the end of the matter, then T would be in breach of the lease and PC would have no right to be there. L would have the remedy of eviction against PC, and could also continue to hold T re-sponsible for rent under privity of contract.

Some courts have held in commercial lease settings that a landlord cannot arbitrarily re-fuse permission for an assignment, but can object if it is commercially reasonable to object. They reason that a lease is a contract, and contracts should be carried out in good faith. Just ar-bitrarily saying “no” isn’t good faith.

If Cania follows this approach, T might have an argument for saying that the permission had been unreasonably withheld, and that the assignment is valid. The court in the case we read in class concerning this issue looked at specific factors in considering whether a landlord’s ob-jection to an assignor was commercially reasonable. Some of the factors include: the suitability of the location for the assignee’s purpose, the assignee’s financials, the legality of assignee’s business, whether the premise will have to be altered by the assignee. Here, the facts suggest that PC would be a commercial reasonable assignee. Here, the facts suggest that PC would be a commercial reasonable assignor. The premise is a warehouse and is likely suitable for survival supplies. PC appears to be a good tenant with an impeccable record, the sort of record that land-lords in general would like. L even agrees that PC would be a good tenant.

However, we don’t know if PC would need to alter the premise in anyway—we would need to do more research on this point. If the survival supplies are going to be manufactured here, it may be a different story. If the supplies will only be stored in the warehouse then that would likely be suitable and not require alteration. Moreover, L has what might seem like a rea-sonable commercial basis for his objection, namely that he wants to extend the term of the lease to prevent negative effects of the economic crisis. Since landlords are in the business of making money, why isn’t that reasonable? In the case we read, though, the court said it wasn’t com-mercially reasonable to try to get a higher monthly rent out of the assignee than the T had been paying. Trying to extend the term in light of a predicted downturn in rents might seem the same way. That wouldn’t seem fair, because if the assignment had not taken place, L would not have had the opportunity to extend the term of the lease until December 2013, more than a year from today. It doesn’t seem reasonable for L to object to PC’s assignment purely because he wants to protect him-self against a contingency that he failed to protected himself against in the original lease. Thus, un-der the commercially reasonable rule, the court would likely conclude that PC is a reasonable tenant and that he should not have to vacate.

2. If PepCo (PC) does stay and defaults on the rent, what remedies would Lorenzo have? Explain.

First, there’s always the remedy of eviction. If there is rent owed and not paid, L can evict whoever is occupying the warehouse. The question then is who can L go after for any unpaid back rent or future rent.

This question mainly revolves around privity. There are two kinds of privity, privity of


contract and privity of estate. Privity of contract generally only exists between the parties that actually contracted the lease. T has privity of contract with L, and owes the rent as it comes due for the entire lease period, no matter what (unless L breaches). So L always has the remedy of going after T for any unpaid rent, however that happens. Moreover, in many states L wouldn’t have any duty to “mitigate” – that is, if (say) PC moved out, L could just hold T liable for the rent as it came due without trying to find another tenant. If Cania is one of those states that re-quires reasonableness in withholding permission to assign/sublease, though, it might also be one of the states that requires mitigation, since both doctrines in effect restrict a landlord’s dis-cretion about who to rent to.

Privity of estate exists in some but not all cases between the landlord and the person oc-cupying the premises. Basically, there is privity of estate between T1 and L if the transfer from T to T1 was an assignment, but not if it was a sublease. If there’s a policy behind privity of es-tate it’s that an assignee pretty much has the same interest in the estate that T had and should therefore be held to all of the covenants in the original lease, including the payment of rent. On the other hand, sub-lessees are not in privity of estate because they do not have the full interest that the tenant has. Therefore, they are not held the covenants in the original lease. The problem with this distinction, though, is that it doesn’t make much sense to say to the L that L can’t col-lect rent directly against T1 if no rent is paid while T1 occupies the place. After all, T1 is getting the benefit of occupancy, whether T1 is an assignee or sublessee. If we think of PC’s default as a risk of a cost, then T (not L) is the cheapest cost avoider, since it was T who picked PC as a sub-tenant. (This is especially so if it was a sub-lease, since under the L-T lease L had no right to stop it, as mentioned earlier.)

Still, courts generally follow this distinction in a pretty rigid way. If we assume that the transfer between T and PC is an assignment, then in addition to going after T for any unpaid rent (T is still in privity of contract) L can go after PC for any unpaid rent during the time PC occupies the warehouse since PC is in privity of estate with L. If PC moves out, it would no longer be in privity of estate with L, and so owe no rent to L. But if we assume it is a sublease, then again, T will still be in privity of contract and liable, but PC will not be in privity of estate with L and so will not be liable to L for any defaulted rent. Of course, if T gets stuck paying the rent that PC agreed to pay, T can come after PC for the rent after she has to pay L, assuming PC is still around.

3. Does Lorenzo have to fix the roof leak? Does T? Explain

The common law rule regarding defects in leased property is caveat lessee, that the lessee takes the premises as is, and also has a duty to keep the premises in repair (at least to prevent waste). The parties could modify this rule. There isn’t any promise by L to repair, though, and if anything it seems to say that T has the duty, since T promises in the lease to return the premises to L in the same condition subject to reasonable wear and tear.

In the residential context the default has been essentially replaced by a landlords implied warranty of habitability (WH). An implied warranty of habitability generally means that a landlord must provide premises to a lessee in a safe, and habitable condition. It also means that if damage occurs during the course of the lease that likely presents breach of the warranty, the landlord is un-der a duty to repair. If the landlord does not repay, the lessee is generally entitled to relief.

However, this implied warranty of habitability has generally not been extended to commer-cial leases. The reason for this is that commercial premises are not habitations. No one lives there


and therefore, defects in the premises do not present severe health and safety issue to people. Also, it does not apply to commercial leases, because unlike residential leases, the bargaining power be-tween the two parties is generally more equal. Furthermore, a commercial tenant may in fact have the resources to repair on of the problems, whereas residential tenants may not.

Assuming Cania doesn’t impose a warranty of habitability on commercial landlords, L has no duty to T to fix it. Would T have a duty? If the leak isn’t too bad, maybe not, if T (or PC) can put up with it. But usually leaks cause damage. A bad leak in the roof is likely not reasona-ble wear and tear. Reasonable wear and tear is likely the natural consequences of tenants’ be-havior such as scratches on the wall, or perhaps cracks in the floor. A leak that wasn’t there at the start, especially if it causes more than ‘reasonable wear and tear” by the end of the lease, would breach T’s obligations. Thus the failure to fix it could be a breach of T’s obligations.

If there is some sort of warranty of habitability or suitability in Cania in commercial leases, then it’s questionable whether the lease waives it. Waiving “all rights provided by law” is awfully broad, and would probably be unconscionable. If any waiver of an imposed term like is allowed, it ought to be in specific language (e.g., T waives the warranty of habitabil-ity/suitability”) not part of a blanket waiver.

Second Sample Answer

If Cania follows the common law rules, Tanya (T) has created a sublease for PrepCo (P). A sublease allows the tenant to reserve some interest for himself in the possessory rights, while in an assignment the tenant conveys away all his interest to the sub lessor. The agreement between T and P states that P will assume the remainder of the Lorenzo-T lease, which might suggest that T wished to draft an assignment. The agreement, however, goes on to specify that T reserves a right to re-enter and retake the possession if P fails to fulfill his obligations. When ambiguous or contra-dictory language exists in an instrument, the court will consider the intent of the grantor, and the common law holds that in a commercial lease, the law presumes the parties to be sophisticated enough to understand the terms of their bargaining. Because T is a presumably sophisticated party in a commercial lease, we might assume she did purposely intend to create the sublease rather than the assignment. If so, there is an argument that the lease restriction doesn’t apply at all because it refers only to “assign.” If this is an assignment, or if the court reads the restrictive provision more broadly as covering any transfer by T, then there’s a question whether L has to be reasonable, and if so, whether L’s being reasonable.

Common law allows a tenant to convey his interest to someone else if the parties haven’t agreed otherwise. The policy behind this rule is to encourage the alienability of property. This is especially important given that commercial leases can last a long time, like 25 years (though not in this particular case). But the common law also allows landlords to include an approval provision in the lease, even though it restricts alienability.

Whether the approval/disapproval must be “reasonable” is not so clear. If the lease express-ly states that L’s approval shall not be unreasonably withheld, that will settle the matter. But what if just says that approval is required—as happened here? Is reasonableness implied as a require-ment? It should be. When commercial tenants lease land, they want assurance that they will be able to reasonably use it as they please. If landlords could shoot down tenants’ use arbitrarily, commer-cial tenants would have little incentive to lease property.

Assuming that reasonableness is required, if L’s objections to the T-P sublease are reasona-


ble, then P will be forced out. The courts have held that reasonable objections to an assignment or sublease include, but aren’t limited to: the assignee/sub lessor is financially risky, the proposed use is not suited to the property, or the proposed use would require the landlord to make alterations.

According to T, P is not a financially risky tenant, and P’s supply storage business sounds reasonably suited to the property (which was used as furniture storage). Now, if L researches for himself and finds that P is a dead beat tenant or plans on storing explosives in the warehouse, he may have a case for refusing the sublease. Anyway, L even says “I believe” T that P is a good ten-ant overall.

In this case, however, L wants to preclude T from subleasing to P simply because L cannot lock P into a longer contract. L wants to change the terms of the agreement he made with T and impose them on P. L’s motives are purely financial; he fears that unless he snags a tenant with a long contract now, in the coming years he will lose money as rates drop. L’s objections will severe-ly impair T’s ability to find a sub lessor. The Pestana case offers similar facts. The landlord denied the tenant permission to sublease because the landlord wanted the tenant to hold out for a sub les-sor willing to pay more. The court ruled that this pure economic objection was not reasonable. In our case, a court would likely do the same because L is objecting solely to secure himself financial-ly. P should be able to stay in the warehouse.

L could argue that his original lease to T stipulated that T waived all her tenants’ rights un-der the law. He would argue this includes T’s right to demand a reasonable objection to her pro-posed sub lessor. We need to know Cania’s rule on this issue. Common law holds that residential tenants cannot waive their rights, and though the common law traditionally offers less protection to sophisticated commercial tenants; it is unlikely that a court would allow even a commercial tenant to waive her rights completely. This waiver or rights will likely be struck from the lease.

If P defaults on his rent, L can go after T. Traditionally under common law, if the tenant created an assignment, the landlord could go after the tenant, thanks to privity of contract, and the assignee, thanks to privity of estate. In a sublease, the landlord only has a remedy against the tenant because the landlord has no privity of contract or estate with the sub lessor. Because T created a sublease (as analyzed previously), she remains both in privity of contract and privity of estate with L. T is ultimately responsible that L receives his rent.

In a commercial lease, common law holds that the tenant has a duty to repair, but not re-build. This rule evolved because commercial tenants are typically more capable of repairing than residential tenants, and so landlords can demand more of them. If the leak in the roof is severe and requires major work, perhaps the roof job qualifies as “rebuilding” in which case it could be L’s responsibility. If, however, the leak is minor, the job could fall under “repair,” and be left to T. P is the current possessor, and T could argue that P is the one with the duty to repair, but ultimately, the argument will boil down to L against T.

Plus, P has only been in possession of the warehouse for one day. L has no remedy against P, and T is responsible to L in both contract and estate. If the leak is a major problem requiring re-building, before we assign responsibility to L, we have to make sure T reported this problem in a timely manner. If T noticed the leak months before and failed to say anything, she may have exac-erbated the problem, unfairly turning it from a repair job (her responsibility) to a rebuild job (L’s responsibility).



First Sample Answer

First, in deciding who owns Blackacre, we need to figure out what Oscar devised. First W has a life estate, which was created by the term “to William for life.” Next the first child to be a published author would have a contingent remainder. We know that it is a contingent re-mainder because it follows a life estate, and the remainder would go to an unascertained person (it could be X or Z or even other children W might have later). Also, it’s upon a condition that the child be the first of W’s to become a published author. A and B hold “everything else in his estate,” with the possibility of reversion in Blackacre if the contingent remainder never vests. A and B would hold this in tenancy in common, joint tenancy or tenancy by the entirety, which we will discuss later.

Since this is a contingent remainder issue, first we will analyze whether the remainder is valid under the RAP. The RAP is a method of avoiding the dead hand issue, which means that they do not want the deceased or past owners to limit the alienability of land.

The validity of the contingent remainder under the RAP would depend on whether or not Cania had adopted the DDCR. If it has the DDCR, one of W’s children needs to become a published author by the time of W’s death; otherwise, the interest lapses. That means we can use W as the measuring life, because we will know without a shadow of a doubt whether or not one of his children would become a published author at or before his death. In fact by the time W dies, Z has become an accomplished twitter novelist, which may or may not satisfy the con-dition; X does not have the possibility of anything under the DDCR because W has died and he did nothing that could be construed as being a published author. But under the RAP as classi-cally applied, you ask what might happen as of the time of the creation of the interest (2011, when W dies). And because of the DDCR, we could point to W and say, “we’ll know one way or the other by the time W dies whether a child of W has become a published author.”

Next we will see what would happen if Cania does not follow the DDCR. This makes it impossible to find a measuring life. Z and X cannot be considered measuring lives for the RAP analysis because they are not the only ones who might get the remainder. Rather, it is left to the first of W’s children to become a published author. Nor can we use W. Some child of W, whether Z or X or some child born after 2011 when the remainder was created might be the first to become a published author, and it could be 50 years later. So the Rule against perpetui-ties would invalidate the contingent remainder because we would not know with certainty whether or not it will vest within 21 years after the death of someone alive when the interest was created.

However, Cania may have some RAP reforms in place which would not invalidate her interest in Blackacre. If Cania has a wait and see approach, all interested parties would just wait for some period to see if the interest vests. What that period might be is not easy to say, but here if Z is a published author we can say in fact it vested in a year or so after its creation, which would be fine. It is also possible that Cania follows the USRAP, which needs to vest within 90 years of the creation of the interest. Note that if Cania has the wait and see approach or follows USRAP, X may still be able to get Blackacre if he cleans up his acts, puts down the video game controller, and Z’s interest has not vested by her being a twitter novelist.


Finally, Cania courts could follow Cy Pres, and just amend the devise in accordance to what Oscar intended, making the devise valid under the rule against perpetuities. They must assume his intent because he is dead. One way the court could possibly write this is instead of using “first of William’s children” he could write it to state “First of Z or X”. This would create a valid measuring life because we would know within 21 years of x or z’s death whether or not they became published authors. It is likely that this is what O meant to say because he knew w was a widower, and unlikely to have children again, thus if the court followed Cy Pres, this would be a reasonable amendment to allow the interest to vest in accordance with the Rule Against Perpetuities.

Next we will decide whether or not Z became a “published author. Because O is dead, the court would have to determine what O’s intent was in granting the interest, and whether or not being a twitter novelist would fulfill the “published author” requirement. Is one an author when they write twitter novels? Are tweeted novels “published” when they’re on twitter and have 890,000 followers? The couple, A and B, would say that O was a long time senior editor at a major U.S. publishing company, and would not consider the twitter novel to an author much less a published work. A and B would also assert that it is not published as O would see it, because O was owner of a publishing company and probably meant for the material to be published by his standards, which would mean thru a company. A and B would also say it’s clear he intended this to mean an author of books, not online tweets. In his talk with his lawyer, he said how much he loves books, and how the even sequester carbon, where the internet tweet is not a book, and is digital. He’d obviously said this many times. A and B would also assert that Z is not a published author at the time the interest vested, because she was not allowed to tweet by orders of her father until she was 18.

Z, or at least Z’s guardian because she is under the age of 18, would assert that the twitter novel is a published work. She in fact is an author penning 140 characters, and has 890,000 followers on twitter, and even got re-tweeted by a famous on air food personality, Paula Dean. Z’s lawyer would assert that it is published on the internet for everyone to see it. If the court decided on whether or not this was actually what he intended when he drew up the will, Z’s lawyer would assert that if he only meant an author of books, he should have written it down. He was a likely intelligent due to the fact that he was a senior editor at a major U.S publishing company, and he, along with his lawyer, would have said books specifically if that was his intent. Furthermore, Z’s tweet inspired, educated and entertained because it was re-tweeted by Paula Dean, just like what O said to his lawyer. She would assert that this was “creative published work” as well. Z would also assert that she is a published author at the time the interest vested, because she would state once a published author, always a published author. She even still considerers herself a published author, as evident in her dialoged to her friends.

Regardless of both sides’ positions, it is probably more likely that the court would decide that Z being a twitter novelist was not within the realm of a published author, and that if they looked into O’s intentions a twitter novelist published on twitter would not suffice as to what he most likely intended to say in the will.

If Blackacre goes to A and B there may be an issue in whether or not A and B hold the reversion based on the language “everything else.” Maybe O specifically did not want them to get this, but this is unlikely because it does not mention that specifically. Also, the will does not name any other possible heirs, so the court would likely interpret to allow A and B to hold the reversion.


If A and B got the land, and Cania did not follow the wait and see approach, or USRAP, who gets the property when A dies? The will states that blackacre goes to “Alberto and Beatrice, a married couple”. This creates either a tenancy by the entirety, tenancy in common, or a joint tenancy. The interests to A and B are within the same title, both have equal interest, and each has the same possessory rights, so any requirements about unity of title would be satisfied. If Cania has entireties (not all states do), it would be presumed to be a tenancy by the entirety because they are married. If Cania doesn’t have entireties, whether it is a joint tenancy or a tenancy in common depends on what the presumption is. Usually there’s a presumption in favor of tenancy in common, unless survivorship or joint tenancy is made clear. Here, it did say “together, to the end of their days,” which is somewhat explicit. If that’s enough for the court, it would be a joint tenancy, which is probably what O intended. If it’s a joint tenancy or tenancyby entireties, the right of survivorship would mean that the property would go to B once a dies and NFF would have nothing. If it was a tenancy in common, on the other hand, when A dies his share would go to NFF, and NFF would be a tenant in common with B.


O intends to grant W a life estate (to W for life). The 1st of W’s children to become a published author has a contingent remainder, which the child may get when becoming the 1st of W’s children to become a published author. O’s estate has a reversion. This reversion would go the married couple A and B since everything else of the estate (including the reversion) goes to them.

Since the grant to the 1st of W’s children is a contingent remainder we must consider the RAP. At the time of O’s death, W is alive and has two children. If Cania follows the tradi-tional common law RAP and does not have the DDCR, then that contingent remainder is inva-lid. To determine if it is valid under the RAP we look for a measuring life within whose life plus 21 years we could know for sure whether the interest will vest. In this example there is no such person. Think about the following situation: if W has a third child and that third child is the first one to become a published author in 50 years that would be a situation where there is no valid measuring life. X and Z can’t be the measuring lives because of that possibility that W could have another child. If the RAP is violated because there’s no measuring life; the interest in the 1st child who becomes a published author would be void. If the whole interest is struck out then after W’s life the interest would revert back to the estate and A and B will get the in-terest. (I will discuss the possibilities of what type of an interest later). It wouldn’t matter whether tweeted novels are “published” or not.

Some states still follow the Doctrine of Destructibility of Contingent remainders. If Ca-nia follows the DDCR this would affect how the RAP applies. If the DDCR applies, W may be used as the measuring life in the RAP analysis. We would know by W’s death whether or not the contingent remainder would ever vest. That’s because if the DDCR is in force, the contin-gent remainder will be destroyed if it hasn’t vested by within W’s life – that is, if one of W’s children hasn’t become a published author by the time W dies. This means that under RAP (with DDCR) the interest would be valid.

However, many states have enacted reforms to make the RAP less harsh. Some states either have a wait and see reform, a CyPres, reform, or some combination such as the one Florida has. Under the wait and see approach many states choose a period of year they wait to see if the in-terest will vest. If Cania has such a reform than the interest will likely go to Z because she probably


fulfilled the requirement within an appropriate amount of years. Whether the interest vested at the time Z began writing tweeting her “twitter novels” is based on the arguments made above. If the in-terest didn’t vest at that time, it is likely that the will is still a part of the wait and see time frame. If so, A and B will currently own the property since the interest reverts back to O’s estate until the time when the W’s child becomes a published author. However, according to the arguments above, if Cania has a wait and see reform, I believe Z is likely to have the property in fee simple.

If Cania has a CyPres reform a court may reform the will to reflect the grantors intent but re-form it in such a way that it no longer violates the RAP. The judge could write in that “then to the 1st of X or Z to become a published author.” That wouldn’t violate the RAP and it would closely reflect the grantors intent. Lastly, there could be some combination under which the court would wait and see a period to see if the interest vests and if it does not than the court would rewrite the grant in a way that it does not violate the RAP.

Suppose the interest is valid under RAP, whether because of DDCR or RAP reforms. If that is the case we must consider what “to become a published author” means. Oscar was an editor of a major publishing company and spoke about how he loves books and how they inspire and educate. He also spoke of his wish for the younger generation to continue the honorable tradition of fresh and creative publishing work. If we strictly interpret the words of the will “to become a published author” it is likely that Z fulfilled that requirement within W’s lifetime. She tweeted her “twitter novels,” which became pretty well known and re-twitted. Accordingly, they were “published” virtually via twitter. But what about O’s intent? He loved books and clearly Z didn’t publish a book or any tangible writing. He also wanted to continue his honorable tradition, and one could argue that Z’s tweets were less than honorable since they were slightly scandalous and her father was disapproving of them. However, O also said that he wanted to inspire the younger generation to pursue “fresh and creative publishing works,” The twitter novels are certainly fresh and creative so maybe they do indeed follow his intent. I’d say all things considered a court would likely consider Z the rightful owner if Cania follows the classic RAP and the DDCR.

Lastly, we must consider the type of interest that the will grants to the couple A and B. There are three possibilities. The three possibilities are a joint tenancy, a TIC, and a Tenancy in the entirety. If Cania is a state that has Tenancy in the entirety that the grant most likely will be a tenancy in the entirety. Courts presume this where there’s a married couple, because it’s so advantageous for married couples (for example, usually immune from creditors of just one spouse). If Cania has Tenancy in the entirety then neither the husband nor the wife can leave his or her interest in a will. After the husband dies, the interest will not go to NF’F, it would go to B. (The same is true if A and B have a joint tenancy.)

If Cania does not have Tenancy in the entirety, the interest is one of the other two possi-bilities. From the language it seems like O intended for the couple to share the property togeth-er as husband and wife; however, there is no language about survivorship. When not explicitly written as a joint tenancy, most courts interpret the interest as a TIC, thus I believe this will likely we interpreted as a TIC if Cania does not have tenancy in the entirety. If the will created a TIC, the husband can leave the interest in his will. So the Wife would have half of the interest and NFF would have the other half of the interest and they would own it as TIC.

Following this analysis I believe Z is the most likely to own the property however there are other possibilities as outlined above.

Property (B) Question II of III Fall 2012 Page 10 of 35


First Sample Answer

The idea that judge-made rules are usually wrong and that issues are better dealt with by the legislature is very bad. For example, consider migrant workers. In State v. Shack, the Courts said that the right to exclude is not absolute. Migrant workers could not be denied visitation by public health and legal aid workers. In that particular case, Tedesco the owner of the migrant farm allowed the legal and health workers access, he just wanted to sit in on the meeting. The courts said that he must allow visits by medical and legal workers without Tedesco constraining them.

This was a good decision by the courts, and something the legislature hadn’t done. And maybe wouldn’t, at least on its own initiative. MWs are poor, a lot of them can’t vote, and the ones that could don’t end up doing it. MWs in a nutshell have no political muscle. So if we follow the authors view that “property law is at odds with sensible objective policies then the MW would never get helped.

The funny thing is that after the Shack case many state legislatures all over the country passed laws to protect MWs. This probably would not have happened had it not been for judge-made laws. The author seems to assume that judge made law makes no sense and legislature made law does make sense. Does this mean that after the legislature adopted the Shack rule granting access that now magically the law makes sense? I think a better way to judge whether a law fits sensible policy objectives is to look at the law and not who passed it.

Also, the whole judge versus legislature distinction is overdrawn. Even in Shack, the court took some cues from the state legislature and Congress. It made a big deal of the fact that they had expressed a general policy of wanting to improve MW’s lives.

Of course, it’s true there are rules that judges make that do not make sense, at least at first glance. One example is the distinction between forgery and fraud in deeds. The current law is that if a deed is procured through fraud, the subsequent buyer who did not know about the fraud would possibly defeat the true title holder that was defrauded. Of course, the true title holder would have an action against the person that committed the fraud, bur good luck finding him; he is in Tahiti reading “Fifty shades of Gravy”. The law in Forgery cases is that the true title holder would be able to defeat a subsequent purchaser, even one who did not know about the forgery. This discrepancy is what the author might be referring to as illogical. After all, why should it make a difference if it is a fraud or forgery, bottom line the true owner lost his title?

Upon further examination however, this is not as illogical as it may seem. While we want to protect people from fraud, we must consider the fraud perpetrated on the subsequent buyer. He paid money for land that the seller did not own. Why should the law protect the true owner more than the subsequent buyer? Who should we put the burden on? If the subsequent buyer did all that he was supposed to, i.e. check the grantee and the grantor index he might find that this sale is a fraud, but more likely he will not find anything wrong because the swindler will record the deed that he fraudulently got. So what was this purchaser to do, he did all he could. The true owner, however, should have been smart/more careful not to get defrauded. He is the true cheap-est cost avoider; therefore the court will punish him rather than the truly innocent subsequent buyer.


If however there was a forgery, who is the cheapest cost avoider, and who can avoid the fraud? The true owner would say what I was supposed to do; no amount of care would stop a forgery. It is true that the subsequent buyer could say the same thing, but he could check the property itself ask the neighbors and etc. Even though these are minor reasons to stick him with the loss, compared to the true owner’s “negligence” they are significant.

Another example, where judge made law is sound in policy objectives is property in body parts. Common sense says you “own” your body. But in Moore, the judges did not allow an action in conversion for the spleen that created a cell line that could cure cancer and was worth millions of dollars. Even though, as we noted in class there are property rights in non-transferable things—prescriptions, things that terminate at death-life estates, and intellectual achievements—the court would not grant property rights in body parts. The policy behind this is sound, even if it seems to go against common sense. We do not want to create a body part superstore (Thanksgiving sale buy 2 livers get a kidney free!). And the court was still sensitive to the Moore’s right, leaving him with an action for breach of fiduciary duty. Even though the dissent says that this action is not much because Moore would not be able to go after the deep pockets, it is still something.

This balancing of Moore’s need without giving him a conversion right shows an important aspect of the judiciary. The judges are all scholars at law, and even though there is an argument that legislature has accountability because we can vote them out of office, there is accountability for judges too- the appeal process. Another accountability the judges have is the legislature, in the Moore case if the decision was “at odds with sensible policy objectives” than the legislature can pass a statute that strike the judge made law. Interestingly, the legislature did not and according to the author that must mean that judiciary got it right!

So again just like the forgery and the fraud, even though this might be a law that makes no common sense, there is some policy behind it and I disagree that it is totally illogical. I would have to agree, though, that there are some distinctions that make no sense. For example, in covenants, why should the absence of horizontal privity between the original covenanting parties preclude an award of damages when one later party violates the promise? The fact that the covenant wasn’t made in connection with the transfer or subdivision of land is just irrelevant to whether there should be damages.

The author then gives a specific example of public use and eminent domain. I think the results of the cases are fairly consistent, but Justice O’Connor’s position is something of a mishmash. There are three eminent domain cases that we covered: Kelo, Midkiff and Berman.

In Kelo, the Court allowed a transfer from private citizens to Pfizer in order to better the New London economy. Private to private land transfer as eminent domain is a very unsettling idea. Under the constitution you need a “public use”. The Kelo court reasoned that the overall economic benefit (which never happened) was sufficient to meet the public use test (which it read to mean “public benefit”). In Berman, blighted areas were condemned in order to improve a neighborhood in Washington DC. But some non-blighted buildings were swept up with the urban redevelopment plan, and like the blighted properties, sold to private developers after the government condemned them. In Midkiff, in order to stop oligarchy and put more land in the hands of the people, private land was condemned and redistributed to new owners.

In her dissent in Kelo O’Connor agreed with Berman and Midkiff but not with the Kelo majority. Her distinction was that Kelo does not fit with her definition of public use which were


economic blight, true public use-roads and etc. This position is really a mish mash. Why is the economic blight in Berman good enough but not the economic hardships in Kelo? The blight in Kelo was serious, even if it wasn’t physical—buildings deteriorating. Yes you might have prettier buildings in Washing-ton after Berman was decided, but that’s true in Kelo, too – not only prettier but making for a more robust economy, which would improve people’s lives. So I’d agree that Justice O’Connor’s position was a mish mash. But there is consistency in the majority rulings, so I wouldn’t say the judges have misapplied the rules.

In conclusion I agree partially with the eminent domain statement and I disagree with the first statement that I quoted above.


I agree that property law at first glance might appear to full of crazy judge made laws, but when we get down to the details there lie very important reasons why these seemingly absurd rules have been created. The problem with the legislature is that they are elected officials who engage in long battles with each other only to come out with laws that are either too broad so as not to offend anyone, or too late to deal with the problem. The courts are able to deal with a wide variety of cases that explore avenues of the law that the legislature may not have thought of yet, or exceptions that should be applied in order to promote the safety and wellbeing of our citizens. The courts can also spur the legislature to act.

When we look at forgery versus fraud in deeds, it may seem strange that forged deeds are always invalid while deeds created through fraud can be valid if a bona fide purchaser (“BFP”) is involved. But there’s a reason for the different treatment. Forged deeds could be created by anyone and sold off without the knowledge of the true owner. In fraud, the owner needs to at least be signing the deed themselves. In either case we are left with two innocent parties who are being harmed – the original owner and the BFP. In the case of fraud, the courts have found that the more innocent party is the BFP because the owner who got taken in by the fraud needs to be more careful about what they are doing. This promotes awareness in proper-ty owners, a theme that runs throughout judge made law in property law. We don’t want to re-ward people for being careless, even though they can be considered innocent and a victim to a crime. They are the least cost avoider in preventing the whole ordeal from unfolding. In contrast, where there’s forgery, the owner couldn’t stop it – he may not have even known about it.

So on closer examination this distinction makes sense. It puts owners on notice that they have to be alert, and should do research before diving into an agreement. The judge-made rule makes sense after all. The one exception to this conclusion might be how well the rule is applied. There are a lot of situations that could probably be characterized either as fraud or forgery (e.g., someone tricked into signing something harmless, so the forgerer can copy the signature onto a deed). If the courts are mechanical about how they apply the distinction that wouldn’t be good. They need to apply it in a way that promotes the whole least cost avoider idea.

Another area of law that may seem at odds with common sense is access to migrant farms. In State v. Shack, a migrant farm owner wanted to exercise his property rights to deny government workers from accessing his farm and reaching the migrant workers. He claimed the government workers were trespassing on his land. The court ruled that we have a “bundle of rights” in our property that is not all-encompassing and does not include the right to deny the mi-grant workers from getting basic necessities and care.

This might seem counter-intuitive – as in the Steenberg case, doesn’t the fact that you


own property mean that you get to decide who can enter it? But I agree that it would be wrong to make others suffer and prevent them from access to human needs, even if that means not hav-ing the broadest property rights possible. Also, when the legislature wrote the trespass stat-ute, it couldn’t run through every possible scenario that might arise – that’s why courts are needed, to interpret laws differently in particular cases, and provide exceptions when it is both necessary and promotes the wellbeing of others. In State v. Shack, the farm owner did not really get harmed, and the migrant workers were able to benefit greatly from this deci-sion.

The warranty of habitability in the landlord tenant setting has evolved from old laws set in place. Originally, the old rule was caveat lessee, a similar idea to caveat emptor. No matter the condition of the leased land, they would have to move in. Then came the rule that if the place was truly uninhabitable, they could be free of the lease only if they left the prop-erty and did not continue living there (constructive eviction). Our latest judge-made law has now moved in the direction of giving the lessee the most protection possible.

Under the implied warranty of habitability, tenants are able to recover damages or withhold rent if repairs are not made. This is not to say that any repair needed can simply be deducted off the rent due, but repairs that are necessary to a reasonable person inhabiting the premises and only if the landlord is put on notice. The reason for this is the imbalance of power the landlord has over the tenant. In a case we read in class, a woman rented a house from a man and found out the house was basically inhabitable, but she had no other choice but to live there because of her income. Even after telling the landlord of all the problems, he refused to fix them and when she withheld rent, he wanted to eject her.

The courts, and in my view, rightfully ruled in her favor. In a world where we are no longer a community of builders but now city dwelling folk, most of us are pretty useless when it comes to making any repairs and have absolutely no idea how to even go about fix-ing things. The landlord today is in the best position to make these repairs. They are more equipped with expertise and knowledge of how to go about making these repairs, and they have a duty to keep the premises safe. Even when the lease specifically says the landlord is under no duty to make repairs, courts have ruled for the tenants when the habitability of the home would be necessary to continue living there. While the legislature could also create a warranty of habitability, there’s no reason why a court shouldn’t if the need arises. If the leg-islature doesn’t like what the court does, after all, it can always enact a new statute that changes what the court’s done.

States that follow tenancy by the entireties have had courts promote the wellbeing of the family as a whole. In the case where the Hawaiian man got into a car accident, the creditors were trying to go after the tenancy by the entirety the man held with his wife. The court found that their interest was held as a whole and could not be separated or taken by creditors because of a wrong the spouse committed. In a joint tenancy, creditors could reach the husband’s share whether this meant dividing the land up or selling it all and splitting the profits between the spouses where the husband’s would go to the creditors. Again, I find this to be a very good policy rule because we don’t want to break up a family because of a husband’s gambling addiction and losing the property that both the husband and wife have gained. The court here also promotes the idea of unity which protects the whole property so that the spouse can feel at ease that their share cannot be taken if they had committed no wrong. The idea of protecting the innocent also arises here.


In many cases, then, judge-made law makes sense. However, there are some areas of property law that I do agree with the statement more. It is strange to me that there is a distinction between executory interests and contingent remainders and how DDCR could only reach one of them when they can be essentially the same. Let’s say the only difference between the con-tingent remainder and executory interest at hand is that there is a one day gap that prevents the contingent remainder from vesting immediately after the natural expiration of the life estate so that it is now an executory interest. Why should different rules be then applied? I can see wanting to promote alienability of land, but we also need to remember to keep prin-cipals consistent so as to provide people with a guide of how they should act.

I also feel that while the use of eminent domain is beneficial to our society and we have gained a lot of good out of its use, the courts have tended to be unclear about this and made a “mish-mash” of the rules. In Kelo, the area was not blighted, physically at least, and yet the government wanted to take an elderly couple’s house away, even though they had lived there for many years. Their compensation was just fair market value even though they’d had it a lifetime. This might be OK or tolerable if it was for a genuine public use. But their property was essentially going straight to another private owner, a developer. I do not agree with this case because I feel the courts have made non-sense of “public use” as re-quired by the constitution, through turning it into “public benefit.” While I do understand that promoting the economy is important, anything can be argued to be a “public benefit.” There might be some problems in deciding what is an actual “use” (what about military bases or CIA offices where the public is excluded, for example?), it would be better to deal with those questions than to make a mishmash of the constitutional requirement of public use by letting the legislature decide with almost no constraints what constitutes a public benefit.

Still, for the most part I feel like the courts handle issues well, even though they may ap-pear wild and crazy, there is usually a very logical purpose within the law that upholds the rea-soning for such an exception. The legislature simply cannot come up with every possible solu-tion, and it is up to the courts to intervene and adopt rules when the old ones become out of date, or when people’s rights clash and innocent people are harmed.


First Sample Answer

“...whatever duties banks have to borrowers when they sell a foreclosed house are just total-ly unclear.”

I disagree. Sure, the duties aren’t entirely clear-cut, but they follow the somewhat omnipresent standard of reasonableness, and there is a good reason for their existence. In a foreclosure sale, a bank has two duties. First, the bank must exercise due diligence in selling the foreclosed house. This means that the bank must make reasonable efforts to advertise the auction, and hold the auction at a time and place that is reasonably convenient for potential buyers. All this is meant to protect the borrower - the mortgagor - because in the majority of foreclosure cases the foreclosed house is a home, and there is a public policy to carefully protect a person’s homestead and the owner’s equity in their home. This is intuitively understandable - after all, the bank is at most at risk of suffering monetary damages from having to foreclose, while the mortgagor no longer has a place to live. The protections are a bit limited, though. If


there’s a breach of this duty, the damages are the different between the “fair price” and the actual sale price. The fair price isn’t fair market value, but the price due diligence efforts would get ver-sus the price the bank actually got. A fair value might be a pretty small fraction of the fair market value.

The bank’s second duty is to exercise good faith. This precludes things like arranging fa-vorable sales for friends of the bank manager, for instance. The penalties for exercising bad faith are higher than those that come with lack of due diligence. Courts are so wary of banks exercis-ing bad faith in the sale of a foreclosed home that they award damages to the mortgagor in the amount of the difference between the fair-market-value, often more than what would be taken in at a foreclosure sale, and what the house was actually sold for.

Why this concern with the exercise of good faith and due diligence? The bank, in some way, has no reason to care how much the house is sold for, because if it is sold for less than the outstanding mortgage amount, it will simply go after the mortgagor for the remainder. The bank also has no incentive to sell the house for more than the outstanding amount, because whatever excess is taken in at the mortgage sale goes to the mortgagor. And again, courts are very con-cerned with a person’s homestead, as is evidenced by the equity of redemption, the right of a de-faulting mortgagor to make late payments. In fact, the legislature seems to share the courts’ con-cern, expressing this by creating a statutory right of redemption, which allows a defaulting mort-gagor to buy back his home from the buyer after a foreclosure sale.

“... but the situation is worse today...”

I will have to agree there. Certainly, the situation on today’s mortgage market is bad. It is bad not only for homeowners, who find themselves facing foreclosure and potential homeless-ness, but also for businesses and banks. The core of the issue is that many houses are worth less now than what they were when the bank and the mortgagor entered into the mortgage agreement. This means not only that it is impossible for the mortgagor to refinance, but also that the mortga-gee has not good way to ensure that all of the lent money will be paid back. Even in the unlikely event that a foreclosure sale of the house for full fair market value will occur, fair market value may well not be enough to cover the outstanding mortgage. And the chances of recovering the outstanding debt for the person who defaulted on the mortgage are slim. Thus, the situation is bad for banks and businesses, too, because they have to write off loans.

There is, of course, the question of blame. Many will be inclined to argue that people who default on their mortgages should have never taken up these mortgages in the first place. There is much populist anger directed at the idea of having to spend one’s hard earned and conservatively managed money on someone who wanted a second garage spot or an extra floor in the house that he was not able to afford. This is understandable, and if I paid taxes, it would probably empathize even more. There is also the problem of moral hazard, where courts are reluctant to “bail out” defaulting homeowners because it creates wrong incentives. One should not be able to take up a mortgage out of one’s league and then rely on the courts to fix the situation when one is no long-er able to pay. Absolving people from the consequences of their unwise actions may well make it more likely for future people to make the same unwise choices.

But homeowners aren’t the only ones to blame. The Fremont case is a good example of a court analyzing lending practices and determining that they were predatory - i.e. intentionally de-signed to attract people that were not able to afford them. In Fremont, the court considered three factors to determine whether a mortgage was predatory. First, if there was a short (three years


counted as short) introductory period in an adjustable rate mortgage during which the interest rate was below the national index that was a sign for predatory lending. Second, the court looked at the loan-to-value ratio. The closer this ratio approached 100%, at which point the house was worth exactly the amount of the loan, the more likely it was that the loan was predatory. Lastly, the court looked at the income-to-debt ratio, which denotes the relation between the income of the mortgagor and the amount of the mortgage, and gives insight into how likely it is that the mortgage can actually be repaid.

The Fremont decision was that the bank had engaged in predatory lending. The bank’s claims that the court was trying to impose a new standard on the bank fell on deaf ears, as the bank had been warned of this practice by the FDIC. And the fact that the whole industry, according to the bank, engaged in this practice was not an absolute defense, either.

If a court finds that a bank engaged in predatory lending practices, it still has to con-sider moral hazard. An injunction preventing the bank from foreclosure may be granted, and the court may order the bank and the mortgagor to work out a new financing plan. However, it is important to note that finding that lending practices were predatory does not absolve the mortgagor of his obligation to make payments. It simply constitutes a judicial effort to protect a person’s homestead by mandating the exhaustion of all possibilities before allowing for fore-closure.

“...when the private sector undertook a sensible reform of our antiquated record system...”

The recording system is antiquated by any standard. County clerks offices, the place where deeds are recorded, in some counties are years behind recording deeds. Computerization involves at best the transferring of the identical system into digital files, but does provide the ad-vantages that modern digital databases do. The whole system is borderline unworkable in a time where mortgages are sold and bought constantly, often immediately after entering into an agree-ment. Thus, there is little to say in the defense of the current system, other than that it is publicly accessible.

And therein lays the rub in MERS. The Mortgage Electronic Registration System is effi-cient, fast, and feels like something from this century. But its flaw is that it is a private database, accessible only by those who have a license, and owned by a corporation. The current recording system is flawed, but the privatization of these records that comes with MERS goes, in my opin-ion, too far and is undesirable. There is no regulation of this important public function or chance for the public to have any say in how it’s designed. And in fact MERS wasn’t always doing a good job; its records aren’t necessarily accurate. Also, until recently, homeowners weren’t al-lowed to search its records, even though that could be the only way they’d find out who actually owned their loan. This is important because if the homeowner ran into financial problems, they ought to be able to contact the bank to try to work something out. They can’t just contact whoev-er they’ve been sending the monthly payments to, because a lot of times banks have those sent to a servicing agent.

“... just gratuitously struck it down...”

I do not think that this is true. The problem in Niday was that MERS was named as the beneficiary of a deed of trust. A trust deed is an instrument that lets the bank get around judicial supervision when foreclosing on a house. The Oregon court did not just strike down MERS as a whole, but interpreted a relevant statute to say that the beneficiary of a deed of trust must be the person who is intended to benefit from the deed – i.e., the person to whom the mortgage pay-


ments are actually owed. Thus, it must be the lender, or the entity the original lender sold the loan to. In the Niday deed, MERS was put in as the beneficiary, even though it didn’t lend any money—it was intended just to keep track of who the current owner of the loan was. This meant that the Oregon law requirement that the current owner of the mortgage (whatever bank or finan-cial institution bought the loan from the original lender) be publicly recorded in the appropriate county court records. The court used this fact to declare that MERS was not allowed to foreclose on the home. Nothing stopped the lender/successor to the original lender from going to court and getting a judicially supervised foreclosure – or from recording the transfer of the mortgage in the county records and then going for a trust deed foreclosure without judicial supervision.

The concerns behind letting MERS foreclose on homes is that the people who entered in-to the mortgage agreements never actually dealt with MERS. Mark Mortgagor might have gone to “Your Friendly Neighborhood Bank” to deal with his old pal Lenny Lendor, and he may well have the expectation to deal with Lenny again if he runs into any trouble. While it is certainly within Lenny’s rights to turn around and sell the mortgage to someone else, Mark ought to at least know who the current owner of the mortgage is. The MERS system largely prevented that. A search of the public records would just show MERS, but MERS has no authority to deal with Mark if he has a problem making his payments.


I would completely agree with the first statement suggesting that mortgage law is a mess. However, I would not agree that legislatures are completely inept at helping to fix the situa-tion, nor do I agree that the MERS system, undertaken by the private sector, was neither sen-sible nor worthy of fixing the problem.

Let’s tackle the first issue at hand: the duty banks owe do borrowers they sell fore-closed houses. The statement suggests that the duty is unclear and ambiguous at best. In fact it’s reasonably clear. A mortgagee, upon foreclosure, must exhibit due diligence. In one case we read, the mortgagee bought the property back from the borrower at an auction the mort-gagee (the bank) arranged, and then sold it the next day for a higher price. The court held that the mortgagee must make a diligent effort to advertise the sale and attract bidders in or-der to give any residual balance from the sale back to the borrower. There, the court differ-entiated between what was Fair Market Value (FMV) and what was the adequate pricing the mortgagee could get. The court did not feel FMV was the remedy in case of breach of due diligence, but rather what was acceptable to for that time, area, and the banks willingness to advertise etc. It sent the case back to the trial court to see if due diligence had been exer-cised. The court also said that if there was bad faith, then the damages should be determined by FMV. Mostly this seems fairly clear, and refutes the idea that judge-made rules are al-ways bad.

I agree that the mortgage situation is bad. In Fremont, the court found that many mort-gages had been given on terms that virtually ensured a default. It ordered a remedy – namely, that holders of that kind of mortgage always had to get prior approval to foreclose, after first trying to negotiate with the homeowner. But equally important the court’s rulings gave the legislature a “leg up” on what the problems are. This is important because the legislature is not inept at fixing these problems. The legislature has the ability to modify foreclose rules in order to help their constituencies.

This was best shown in the Blaisdell case. During the Great Depression, the Minnesota


legislature had found there was a great need to modify contracts for borrowers. During this time borrowers were unable to pay back their mortgages because they no longer had income. The legislature took action and instituted a solution. They allowed for an extension to help borrowers be able to pay back their mortgages and not get foreclosed on. Instead of having to pay their full mortgage the borrowers would instead pay a fraction (a rent of sorts) to the mortgagee for a year (as I recall). This allowed the home owner to stay in their home, and it allowed for the banks to continue getting money. The legislature noticed that if such a large number of people were left homeless, then the entire structure of the United States’ economic structure would be in further disrepair.

Of course, upon the passing of this legislation, banks sued because they did not like the state government taking action. The Supreme Court ultimately sided with the state to allow it to modify contracts even though the Constitution limits a States’ ability to modify contracts between private individuals. The Court did not look at the original intent of the Framers, which arguably was to prevent states from modifying contracts to help debtors in over their heads. Instead it found such a catastrophic need for reform that the survival of the nation depended on the outcome of millions keeping their homes. The Court itself didn’t say that Minnesota’s statute was necessarily the best solution (or even an effective one), just that the state had the power to try to deal with the crisis as best it sought fit. This is a great example of how I disagree with the statement that legislatures cannot do anything to fix the problem. Blaisdell proves that when the legislature sees a problem, it has the ability to fix it. When times are so bad, the legislature, along with the courts, has the ability to fix problems.

Now, to tackle MERS and Niday v. GMAC Mortgange, LLC. MERS is a mess. MERS is an electronic recording system that allows mortgagees to help keep track of ownership between individuals. Upon the signing of a mortgage, a trust deed is signed, whereby the beneficiary is listed as MERS instead of the original lender. This allows for MERS to keep track of ownership if there is a foreclosure or sale. However, it didn’t work. MERS is private, open until recently only to banks and lenders, which means that homeowners can’t find out who holds their mortgage. Good luck trying to figure out who to talk to if you start falling behind in your monthly payments because you got laid off. Also, MERS did not even keep track of the ownerships of mortgages accurately.

Niday deals with whether MERS rather than the lender could force foreclosure on an individual homeowner. The court found that although the boilerplate language in the contract made MERS the “beneficiary” of the mortgage, the legislative intent was that the original lender or the financial institution that subsequently bought the mortgage was the beneficiary. The statute required that the current owner of the mortgage (the bank) be listed in the county records as the beneficiary, not MERS. MERS doesn’t lend money and isn’t owed any mortgage payments – it just keeps track in a private database of who does currently own the mortgage.

In Niday the legislature’s requirements played a huge role in protecting the rights of homeowners. Yes, the legislature needs to be more clear in certain situations, but it would be unfair to conclude that they are ineffective in helping with mortgages. Legislatures are people, and all people have intentions when they actively do something. MFRS was attempting to continue with a no judicial foreclosure that would circumvent the legislative and judicial requirements of foreclosure. However, the court found the legislative intent was different and protect constituencies. Another problem with MERS is that it completely


removes the public sector from the process. If the loan obligation was transferred (i.e. sold to a new institution etc.), then MERS would have the obligation to keep track. MERS is not obligated to record in the county records office.

MRS was not an adequate solution to the mortgage crisis. The private sector looks at the most cost efficient way to solving a problem. Although this is good in most situations, it is not solely the right thing. As we’ve seen in Fremont, Blaisdell, and Niday, the mortgagee is looking out for its best interests. However, the role of the legislature (theoretically) is to look out for the best interests of the people. This duty is seen not only in the legislative intent of laws, but also the ability of the legislature to step in when necessary. Such a large crisis cannot be solved by one sector, but both public and private. The legislature has the ability to make sweeping reform when there is a problem and the private sector is able to make efficient cost beneficial reforms. Without either one, the problem would not be solved.

As we have seen with Fannie Mae and Freddy Mac, the loosening of regulations, and the ability of business to hide and sell toxic mortgage backed securities, the ability of the government to oversee is in the best interest of the people.

Property (B) Question III of III Fall 2012 Page 20 of 35


First Sample Answer

(1) In dealing with this issue it will be necessary to determine whether Cania is a Caveat Emptor state or imposes a duty to disclose.

Caveat Emptor

If Cania is a Caveat Emptor (CE) state then the buyer has a duty to discover any defects or pertinent information about the property. The seller cannot make any misrepresentations about the property and induce the seller to buy based on those misrepresentations. CE is preferable in some instances because it makes a buyer be prudent and inspect the property before purchasing. CE also is a bright line rule that (at least in theory) reduces the number of cases a court must de-cide on and decreases litigation.

Was there some violation of CE related to the Frank Lloyd Wright aspect (“FLW”) origin of the property? A will argue that she did not make a misrepresentation about the house because she did not lie about the house being a FLW. She said it was an original Wright. C will argue that there was a misrepresentation because when A told her it was a FLW she said “who” and “what” and clearly did not understand what a FLW meant. And in response to those questions A just said, it’s nothing, which isn’t true – it would be a big deal to many or most buyers. A will coun-ter that she thought C knew that it was a FLW and was just joking about the situation, so there was no intent to mislead. (Her tweet about yokels might undermine that—she seems to have understood C was confused.) A will also say that the fact that C wanted to purchase the house for a considerable premium over the asking price made it look like C knew about the FLW status of the house. This is probably an iffy case at best for breach of CE, since at least A did say it’s an original Wright.

There can be exceptions to CE. One is where no amount of due diligence by the buy-er would make the problem apparent. C will argue that she was from Idaho and so she did not read the local newspapers and would have found out about the house’s FLW status. C will make the further argument that A did not even know that the house was a FLW until she did extensive research on the property so it is unlikely that a normal buyer would have been able to find out this information. A would probably respond that if C is looking for a house in a cer-tain area it’s not too much to read the local papers.

I think that this is a difficult situation because under CE we want a buyer to be prudent but I am unsure that the buyer would have been able to find out this information regardless. This case is similar to Stambovsky because in that case an owner had published articles in the newspa-per that said that the property was haunted. Stambovsky held the seller liable even though it oc-curred in NY which followed CE at that time. The court found the seller liable because that was something material that the buyer wouldn’t find by a normal property inspection—and because the seller had created that condition. In this case even C wouldn’t normally find out the FLW sta-tus on her own, did A create the condition? In one sense, no – FLW created the condition. But it was A’s research that uncovered this seemingly forgotten fact, so in a practical sense A did create it.


Of course, any exception to CE (or any breach to the duty not to lie) requires a material fact. C will argue that it is something a reasonable buyer would want to know because she was planning on tearing the house down and building two other houses on the property. C was plan-ning on purchasing the property for the lot and not necessarily for the house that was on the lot.

Overall this is a tough situation to analyze but I believe in this case if Cania follows CE then we should allow rescission of the contract because we do not want to punish an innocent buyer who asked in good faith about the house and got a fairly misleading answer. Also, it seems like this would be a case for an exception to CE even if Cania is a CE state, as in Stambovsky. I also think this case shows the flaws of the CE system and it is another reason that many states are moving to a duty to disclose approach. At the least it shows that CE is not such a simple system to administer – it’s far from open and shut in practice.

Duty to Disclose

In a duty to disclose state the seller would be obligated to disclose any material facts about the property that a reasonable buyer would want to know, unless they’re really obvi-ous. States often favor a duty to disclose approach because it puts the responsibility on the right person: sellers are in a better position to offer information they know about than buyers are to ferret it out with inspections. In other words sellers are usually the least cost avoider because it does not take much for them to disclose the information. Duty to disclose allow gives buyers a more realistic price because the seller cannot stand behind the shield of CE which leads to a more efficient property market. It’s inefficient to have sales where the par-ties don’t have full knowledge of what they’re getting into.

In DTD a seller is only responsible to disclose the conditions of the property that he knows about. The seller isn’t a guarantor. Here there are two material facts A might have disclosed.

The first is the FLW status of the house. A knew about that and so would be respon-sible to disclose that information. One question is whether she in fact disclosed it. For the same reasons I think A ought to lose if Cania’s a CE state (above), the court should find she didn’t disclose it.

The second is the possibility of historic designation. C will argue that it was material because it affected the overall value of the property and if she would have known what it was she would not have purchased the property. A will argue that she didn’t know the state was going to place a restriction on the house that it could not be torn down. But this is pretty unconvincing. A knew about the information because someone else in the realty business told her that the city was looking to give it a special status. It is not clear whether or not this was an adequate notice that the city was going to place the restriction on the property but it think that A should have at least disclosed the possibility of the special status to C because she was the least cost avoider in that situation and it ultimately could have affected Cs deci-sion in the property.

A will also argue that in DTD states, sellers are only required to disclose material in-formation about the property that isn’t obvious. A might argue the FLW status of the house was obvious—all you had to do was read the local papers. This seems like a stretch of “ob-vious,” though—it’s not like noticing that the house is missing part of its roof, for example.


Overall I think C should be granted rescission of the contract because C could have easily disclosed that it was an FLW house and also that it could receive special status in the future. I believe that courts should do whatever they can to protect innocent buyers because they are likely not able to find out certain information of their own. In fact, because DTD leads to a more fair market many states are adopting this approach in relation to property.

Risk of Loss/Equitable Conversion

The next task is to determine who should be responsible for the damage that resulted from the dam bursting and the lake disappearing (and the state’s decision not to rebuild the dam).

The common law had an answer for this – the buyer assumed the risk of loss in the period from signing the contract to closing – but here, Cania statute section 1 governs. Sec-tion (a) applies if neither title or possession has been transferred the property to the purchas-er. In this case the legal title has not been transferred – closing hasn’t happened yet.

But it is debatable whether or not possession of the subject matter has been trans-ferred. A will argue that the property has been transferred because she gave the keys to C and because she decided not to make C wait until closing to move in. A C acted like an owner, moving some valuable possessions (heirloom potatoes) in. C will counter that she has not taken actual possession of the property because she’s only that collection in there tempo-rarily, and hasn’t yet moved in. This is somewhat weak – it was really C’s choice what she did or didn’t move in.

If the court decides C has not taken possession of the property then we will need to look at (1) and (2) of section (a) of the statute. (1) says that the vendor cannot enforce the contract if the realty has been destroyed or materially damaged. It is not clear what is mate-rial in this case. C will argue that the property being on a lakefront was a material fact since it matters so much to the value, and she would not have bought the property if the lake was not there. A lot of that value’s been destroyed. C will counter that “destroyed” and “dam-aged” are words that connote physical damage, not a drop in price, and that in any event nothing happened to the house or the land – it’s just the lake next to it that was affected.

If the court finds the damage is not material we can look to (2) of the statute. (2) Says that if the damage is not material then there should be an abatement of the purchase price to the extent of the “loss.” I think in this case C has a strong argument that the property has been subject to a “loss” that is not material and should be subject to a reduction in the pur-chase price. A loss is a term that can include financial losses. One thing that’s odd about this reading, though, is that a 50% drop in market value would seem material to most buyers.

We must also analyze the outcome if it is deemed that the property was transferred because C moved her potatoes into the property. Then section (2) applies. In that case A will benefit because C will be forced to pay the full purchase price on the house.

In this case I think that according to the statute that C should be liable for the full purchase price because she was using the property for her purposes even though she was not living there. C did not buy the property to live there and so it is not likely that she could have done anything more with the property that would have constituted a transfer. I think that the most fair situation in this whole case would be to reduce the purchase price of the house to


500k. In this scenario both parties would benefit and C could still turn around and sell the house because it is a FLW and A would still be able to make money off of the property.

(2) In this case it will be necessary to determine what is considered marital property in the state of Cania. This is because Cania statutes section (2) says that all marital property is to be equitably divided. Is the money from selling the house marital property? Is the Masters or the enhanced value of A’s career marital property?

The sale proceeds as marital property

Section (2)(b) says marital property is all property acquired after the marriage, and clearly the cash at closing would qualify – it would be acquired some time after A and B’s marriage. (The fact that their marriage is on the rocks doesn’t matter in the statute. They’re still married until the court divorces them.)

There is one big problem with this conclusion, though: the money is from the house. If the money is from a house that is not marital property, then it would fall under the excep-tion in (b)(ii).

So was the house marital property? It certainly is “property.” But while A moved into the house before the marriage she got ownership of it only after she married B, when her grandmother died. So the house would seem to be marital property under 2(a) – property ac-quired after the marriage. However, A will likely point to (2)(b)(i) and say that B would not have any interest in the property because the house was acquired a devise to A specifically. And then the exception in (b)(ii) would apply – the sale money is money in exchange for the house.

B might have an argument, though. Most of the value of the house is from its FLW status and the restoration work (especially now that the lake’s gone forever.) While it was A who uncovered the FLW status, it was B who put all of the labor and time into improving the property – after they married. The house may have been acquired before but the value from the restoration was “acquired” after they were married. I think that in this case B should be entitled to the increase in property value from the improvements. This may be dif-ficult to calculate but I think that courts should reward useful labor and it does not seem that A would have fixed the house up in this situation. I think by rewarding part of the proceeds to B the court would be acting in a fair manner for both of the parties.

Whether the Master’s degree or A’s career Is Marital Property

The court will next need to decide whether or not the master’s degree should be treat-ed as marital property. In In re Graham the court ruled that an MBA was not marital proper-ty. The spouse in that case put the other spouse through school by paying for the majority of the expenses including tuition. The court found that an MBA was not marital property be-cause it takes a lot of hard work and dedication to get a professional degree and not just money. A will say the same about her degree.

I think that this case will depend on the laws of Cania. Other states have recognized degrees as marital property that can be divided. Graham’s rationale wasn’t all that convinc-ing – that a degree couldn’t possibly be property because it can’t be sold, devised, etc. That’s true, but it’s also true (as the dissent in Moore showed) that there are lots of types of proper-


ty that have very serious restrictions on sale.

B may try and show the Elkus case supports him getting some of the value of A’s ca-reer as “marital property.” There one spouse led to increased earnings for the other spouse and the court ruled that the money was marital property. B may argue he played a large role in her career because he fixed the house up and this was a big reason A got the job – the company liked the improvements of the house and he was responsible to that. A bragged about the quality of the restoration on the house, which B will say showed she was taking advantage of his improvements and even leading people to believe that she had restored it. Also she wouldn’t have the career without the degree, and he played a big role in supporting her on that.

In this case I do not think that B should be entitled to the future earnings of A or the value of her degree, because she was the one that put in the hard work to get the master’s degree and even if she got the job because of his improvement she could leave and get a job elsewhere. I do not think that degrees should be considered marital property because it then forces the person with the degree to continue working in that job even if they don’t like be-cause they have to give part of their earnings to their former spouse. I think that we do not want people to be stuck in jobs that they hate and should not allow a degree to be considered marital property for that reason.


(1) With regard to the risk of loss, at common law, from the signing of the contract, the purchaser was viewed as the owner and the seller held only the legal title as a trustee for the purchaser until closing. This meant the risk of loss fell on the buyer unless the parties otherwise agreed (which they did not here). In fact, though, Cania has a statute that changes the common law. Thus the biggest issue will be whether or not Andrea transferred the possession of the Real Estate to Chantal when she gave Chantal the keys to the house. If possession had been transferred to Chantal (C), then according to the Vendor and Purchaser Risk Act, any destruction or damage to the Real Estate, whether material or not, would not relieve C of her duty to pay the $1 million she contracted to buy the property for. (Under the Act if title had been transferred, so would risk, but closing isn’t scheduled until January.)

Does Chantal’s decision to use the house as temporary storage for her heirloom potato col-lection constitute “possession of the subject matter” and subject her to section 1(b) of the VPRA? Because Andrea had already bought herself a condo elsewhere, she had no reason to continue in possession of the property and so offered to transfer possession of the property to Chantal. Although Chantal did not “desire to live in the house” she nonetheless accepted the keys from Andrea and proceeded to move in her personal property. Andrea presumably did not have any of her personal property still in the house, as she had already moved her furniture out. All this might suggest pos-session had been transferred.

On the other hand, everything was done very informally. As far as we know, there was no formal document in which possession of the property was turned over to Chantal and in which she could acknowledge or accept a simultaneous conveyance of Risk of Loss. C merely accepted a verbal offer, stating that there was “no need to make [her] wait until closing.” Because Chantal herself was not living in the house and because there was presumably no formal, written agreement by Chantal to get possession of the house, the law should not punish her with the Risk of Loss. In-


stead, the court should consider her intentions, which were not to move into the house, and should decide that she had not taken possession of the property.

If Chantal is not deemed as having taken possession, then under section 1(a), A will not be able to enforce the contract against her if the court finds that the loss of the lake and the desig-nation of the property as an architectural monument constitute destruction or material damage. If those events are not deemed material then if there was a “loss” price of the house should be abated to the extent of the damage.

It will be hard to determine whether the disappearance of the lake and the designation of the property as an architectural monument constitute destruction or material damage, especially when you consider that C was buying the property to tear it down anyway. It might be reasonable to say that the loss of the lake is damage, but was it relevant damage? That is, the lake must have been “the subject matter” of the contract for C to rely on it and to be able to possibly rescind from the contract. Because the lake is next to home and it has public access, the lake was not likely part of the subject matter of the contract, because Andrea does not have the power to convey that lake to Chantal. However, Chantal will argue that it is the subject matter of the contract because the “great view of the lake” was one of her main reasons for purchasing the property. In keeping with the law, any loss that might constitute “damage” to the lake should not be considered relevant damage for purposes of rescission. Yet, should the court disagree, it would also need to consider whether the draining of the lake was really “damage”. Although the city is not going to rebuild the dam, that does not mean that the lake may not be refilled-- after all, it is manmade. Thus, any “damage” the court might find in the loss of the lake will be ameliorated by the possibility of fixing it at the city’s cost, not C’s. Further, was it “material” to a reasonable buyer that the lake re-mains intact? Based on C’s interest in it, it likely is of materiality to the reasonable buyer.

That the property’s designation as an architectural monument (AM) constitutes damage will also be hard for C to prove. It would be odd to say that a government designation “damages” a house or land. It’s true it can drive down the market value, but so can a lot of other things, like a bad economy. It can’t be the Cania legislature’s intention to let buyers out whenever there’s a downturn in the economy.

As for whether the lake drainage and the designation could be a “loss that is not material,” here, too, it’s hard to know how to apply the statute. In one sense C has definitely had a loss – she’ll lose half a million dollars on the purchase if she has to honor the contract. But the term “loss” is again tied to the term “damage” (“to the extent of the damage”) so it’s not clear it applies. If it does, though, C could get an abatement of price down to $500,000.

I think 1(a) should apply and that neither the designation nor the drainage should be consid-ered material damage to the property. Historic status shouldn’t be regarded as damage, and if the C wanted to make the lake crucial to the contract, she should have insisted on something in the con-tract to that effect.

Even if C would lose on risk of loss, though, she might be able to get rescission on other grounds. If the court decides that Cania is a caveat emptor state, which would make buyer re-sponsible for finding everything except that which a reasonable inspection would not found, C may have two arguments.

First, A lied (C might say) when she was asked to clarify the Wright remark. It may be hard to


call this a lie, though. To hold her liable, A would have had to have made a false statement of fact about an issue material to the reasonable buyer that the buyer actually relied on and that was in-tended to induce. C may argue that A did in fact make a false statement of fact when she told C “Ahh, it’s nothing” in response to C’s asking who Wright was. But A did after all say “it’s a Wright house.” That’s true and accurate. A caveat emptor state probably should expect someone like C to fol-low up more vigorously when her question (who? what?) is brushed off.

Second, C might argue that the policy of CE is to promote prior inspection by the buyer. But she would argue that a reasonable inspection of the property would not have found out about house’s special status. In Stambovsky (which took place in a Caveat Emptor state), the court held that where the seller had effectuated a condition on the property that lowered its market value and potential for resale and was not readily observable to a buyer, the buyer was able to rescind from the contract. In that case, the seller had published accounts about the Real Estate being haunted by poltergeists in Readers Digest and the condition of the home as “haunted” was well-known in the community. Although the buyer in that case may have just as easily gone on-line or picked up a copy of Reader’s Digest, the court did not hold her accountable for not knowing of the house’s condition. Similarly, although C could have read A’s article in the local paper or googled the house online, the court should not hold her accountable for not knowing what a reasonable inspection of the house would not have shown. Do we really want to impose a duty on buyers to google potential homes before contracting to buy them? If you do that then the duty of a buyer would be unreason-ably extended. The costs to inspect the physical property and to investigate the property’s general public reputation would hinder the buying process and ultimately prevent land from reaching its most valuable and efficient use! (See Posner). When it comes to arcane facts, even a caveat emptor state should recognize that the seller is the cheapest cost avoider in situations like this-- it would have been much easier for Andrea to have just explained to C when C did not seem to know who Wright was that the house was special because of it.

If the court decides that Cania is a duty to disclose state, C will have more of a chance. The fact that the house is a Wright and the prospect of historic monument designation should have been disclosed, C would say. Any reasonable buyer would consider that important. One problem is that, again, A might say, “I did disclose the origin of the house – I said it’s an original Wright! It was kind of a murky disclosure, though. Instead of tweeting about yokels, why didn’t A give C a straight answer?

As for the designation, it may be harder to hold A liable when she may not have necessarily known at that point that the fact that the house was going to be deemed an AM. Thus, she may ar-gue, she could not failed to disclose this material fact. However, C could point out that A’s realtor friend told her about the possibility, and A should have said something about that. But then A might also argue that this kind of thing needn’t be disclosed – it’s obvious. All C had to do was check government records to see if there were any actions being contemplated. Duty to disclose doesn’t and shouldn’t apply when the problem if obvious. In this regard Waldorff might be relevant. There the court imposed a tough standard on buyers by imposing a duty to inquire when certain acts put you on constructive notice. There, a bank had a duty to inquire whether a condominium’s tenants held title to their units because the tenants’ actual possession of the property put them on constructive notice. Although the matter at issue is not whether Andrea has title, A might be able to invoke the duty to inquire where there has been some action that puts a buyer on construc-tive notice.


Overall, the court should rule in favor of Chantal on the disclosure/caveat emptor issues. In a way it doesn’t matter whether the court decides Cania is duty to disclose or caveat emptor. Either way, as in Stambovsky, the house’s special status was not readily observable (if Cania is duty to disclose) and was not something that a reasonable inspection could have found (if Cania is caveat emptor). Thus, Chantal should be able to rescind for the contract even if the subject matter has not been materially damaged per se.

(2) Barry seeks to treat the money Andrea gets for selling the house, and her Master’s Degree, as marital property. He has a stronger case with the degree than with the house, though they’re both close cases.

The Dissolution of Marriage statute of Cania clearly provides property acquired by one spouse by devise does not constitute marital property. Barry (B) married A one month before A’s grandmother died and gave A the house, presumably through a devise. So even though it was acquired after the marriage, the house is not marital property. But no one is arguing over the house – it’s the money from the sale, and the sale took place while they were married (though informally sepa-rated). If the house does not constitute marital property, then any money acquired by the sale of that property is also not marital property subject to division between the parties. So B would lose.

B might say the house was marital property (and so the sale proceeds) because it was in fact “acquired by either spouse after the marriage.” Most of the value was created after they mar-ried – B restored it and A discovered its architectural value after they married. B could ask the court to determine what the extra value of those actions, which turned a “worthless dump” into a $500,000 property. Of course they didn’t improve the land value, so that would still be A’s, but maybe the enhanced value of the house is marital property. It’s unclear, though, whether the leg-islature meant to split up the value of a home that way. If the idea is to say that (for example) the house a mother gives her daughter should always be her daughter’s, and not get divvied up with the soon-to-be ex in a divorce, then trying to figure how much the ex contributed to the current value of the house isn’t a good idea.

Whether A’s Master’s Degree (MS) should be seen as marital property is the matter of an-alyzing what constitutes property. Some of the characteristics that the court used to find that a Master’s degree was not marital property in In re Graham in Colorado included the transferability, assignability, pledgability, and termination of the article. Here, the Master’s degree is not assignable, nor is it transferrable. However, the spendthrift trusts are not transferrable either yet they consti-tute property. Similarly, the degree here terminates upon the death of the holder, but then again so do life estates and yet people with life estates have a property interest in them. In In re Graham, the court decided that although the wife had worked and contributed more substantially to the fi-nancial earnings of the couple than her husband while he studied to obtain his master’s in busi-ness administration, the masters was still not marital property because it was a reflection of the man’s hard academic work and not her own contributions directly. Although she supported him through school, her contributions would really only help the court in determining maintenance, particularly reimbursement alimony, but did not entitle her to the husband’s degree, or to his poten-tial future earnings.

However, in Elkus v. Elkus in NY, the court held that the operatic singer of the wife was marital property to the extent that the husband had helped create her career. In that case, he quit his own job to help his wife with her career, and the court ultimately decided that his contributions


were enough to make the wife’s career marital property. He was given money based on the wife’s future potential earnings as a celebrity, which constricted her decisions for work in the future and which allowed him to benefit from what may really have been an innate talent and not the result of any of his contributions in particular.

In this case, A will argue that Barry is first not entitled to the proceeds from the property be-cause she was separated from him. However, she should have likely taken the time to file for divorce because that will not likely help her in a legal proceeding. The fact is, they were still married. An-drea will likely argue that the house was innately special to no doing of Barry’s, like the operatic singer’s talent in Elkus was, but, as in Elkus, that argument maybe should not prevail.

With regard to the Master’s degree, she will argue that although Barry helped with the house as a handyman and paid her way through school while she didn’t work, she still did help out. The facts do say that she was only of “a little help”, though, so that means that Barry’s con-tributions were likely very paramount to hers. However, facts are missing because maybe she helped around the house. However, the Master’s degree was a result of her own hard work. Barry didn’t directly affect her grades. Further, Barry’s contributions-- weren’t they done out of love (hopefully)?? To rule that his contributions make her degree subject to marital property would be to undermine the partnership of marriage. It would unnecessarily commodity one’s contributions to their spouse.


First Sample Answer

(1) Who owns 310: B or C?

First we want to look at the language of Cania’s recording statute. “Every conveyance” (B’s conveyance) “is void against any subsequent purchaser” (C is the subsequent purchaser) “of the same property” (#310) “in good faith and for valuable consideration (C paid an was in good in good faith)” – so far it looks good for C. But there are two problems: the statute goes on, “whose conveyance is first duly recorded” (C may be a subsequent BFP, but C did not record), “unless the same” (B’s conveyance) “shall be duly recorded.” (B did record, but it was then mis-indexed).

So it appears that C is out of luck for one or maybe two reasons. First, the statute will in-validate B’s conveyance against certain subsequent BFPs only if B’s conveyance was not record-ed. Does B’s recording count as “duly recorded”? The recording statute was probably aimed at giving the purchaser notice, which the misindexing prevented. When C went to look at the gran-tor/grantee index there was no conveyance to B because A’s card was misindex under D. If C asked, where did A get it, she’d look up A in the grantee index and find 2001 L A. Then where did L get it – look up L in the grantee index, etc., up to the sovereign. Then check the grantor index on the way back down. For example, did between 2001 (when A got the property) and 2012, did A sell it or encumber it? In fact she did in 4/2012, but looking in the “A” index wouldn’t turn up A B, because in the grantor index it was indexed under D.

On the one hand, B did everything he could to record, so we might not want to penalize B for the county’s error. But what was C supposed to do? Look in all the indexes? That’s unreason-


able. Also, B could have checked a few days after he recorded to make sure it was properly in-dexed. So maybe we say it wasn’t. There are still a couple of problems.

First, even if the L B couldn’t be found by a title search, and so wasn’t recorded, may-be C did have some notice (and so wasn’t a BFP) because there was a picture of B on the wall in front of the #310. C’s reason was she thought A liked B a lot, but why would A have a pic with B in front of her house? Also, there was no furniture in #310, suggesting A had moved out. C owned house across the street, and even though C didn’t live in #309, C ran the group home so C must have known that A lived across the street. Most reasonable people would think there was a problem when buying their neighbor’s house when it had no furniture in it. So maybe C is not a BFP.

The other problem, though, is that even if B’s deed is not recorded, and even if C is a BFP, C didn’t record. That means the Cania statute doesn’t give C priority, and it goes back to the common law, which is first in time. So B would win. C’s recourse will be to go after A. A seems to always have financial difficulties so C might not be able to recover from A. In any case, B is not the loser here.

(2) (a) Can GolfCo. (GC) stop C from using #310 as a group home?

Assuming first that it’s enforceable, would the covenant be violated? The covenant was that “the property will be used as a single family residence.” C proposes to use #309 as the kitchen/laundry for all of the residents of #310 and turn the kitchen/laundry in #310 into another bedroom. In terms of use, if the residents have common activities and act in at least some ways as a unit, there’s an argument it wouldn’t be violated. But structurally, a single family residence (SFR) would usually have a kitchen and a laundry room. Going across the street to another house to use laundry is probably not the typical way a SFR is used. So if a structural test is used, there’s a problem. Also, #310 will be used for profit; this might not be in line with the intent of a single family residence restriction. On the other hand, it can’t be the case that any rental of house makes it not a SFR. And in fact some people operate side-businesses out of their homes and yet presumably still use their home as a SFR. Tough call, but a for-profit group home is probably not used as a SFR.

Is the covenant enforceable?

GC wants an injunction so GC will pursue showing the agreement was an equitable servitude because it is easier to prove and the only relief that can be granted is an injunction (as opposed to damages).

Written: Yes, written and recorded.

Intent to run with land: Specific language, like “heirs, successors, and assigns” (used here) is sufficient to show intent for the creators for the covenant to run with the land.

Touch and concern: This is a negative covenant because it restricts land use. Generally, courts find that negative covenants touch and concern the land because the covenant restricts the home-owner’s use of the land. Here, the restriction is as a SFR. There’s really no particular policy rea-son to reject the enforceability of the covenant – unless, maybe it’s interpreted as being against disabled people.

(2) (b) Can GC force compliance of the 25 hour per year maintenance requirement?


The covenant was that “at least one member of the household will contribute 25 hours per year to maintaining the golf course.” This is an affirmative covenant, and that can be a problem for touch and concern. Courts are generally do not like to enforce affirmative covenants because they require the owner to actively do something Generally, this is frowned upon because the orig-inal parties may be placing an burden on future owners that they could not have foreseen or ap-preciated. These restrictions were feared to affect the marketability of land. Here, some buyers may not want to maintain the course, but they burden is measurable in hours (not dollars) and might be viewed as a fair price to pay to use the course for free. After all, one kind of affirmative covenant courts do enforce is to pay association fees. This is like association fees in kind rather than in dollars. Just because it involves action by the burdened party shouldn’t mean it’s not en-forceable. Presumably a restriction requiring an owner to maintain his own property could be en-forceable, so why not enforce the maintenance of the golf course that a resident benefits from since the resident doesn’t pay green fees too? Probably, enforceable by GC.

(3) Would the residents of #310 have the right to play golf?

The easement for residents to use the golf course was for the benefit of #310. In other words, it was appurtenant to the lot, so later owners get it. And GC is subject to it because it owns the servient estate.

However, like the case we read (Brown v. Voss), where one owner purchases adjacent properties, the benefit of the easement cannot run to the parcel that did not benefit originally. There, the same house was built on the two parcels so they occupants could not help using parcel C.

Here it may be different. The residents of #310 only use the laundry/kitchen facilities at #309. So why not let the #310 residents play? Even if C regards the two as a unit, they’re kind of separable. And in any case, doing laundry and eating can be done outside of the home, whether or not there’s a kitchen or laundry room in it. So it would be like saying that residents of #310 could not use the golf course if, say, C owned a Laundromat which they used instead of the laun-dry room at home (if they had one).

On the other hand, courts have tended to be pretty strict about combining parcels. In a very realistic sense, #309 (no right to play) and #310 (benefited by the easement) are really one unit, in terms of how C runs things; how the residents regard themselves; and how the houses are structured – common laundry and kitchen. Note that without the laundry and kitchen in #310, C’s even been able to add another bedroom. Courts might want to decide that a blanket rule, which is clear, is better than case by case parsing of the facts.

(4) Can B stop GC from putting in a hedge?

L promised to maintain the golf course for the benefit of the owners of the residences. Adding a hedge would probably be to the detriment of the owners because they’d lose their view of the course. B might claim that because L marketed the development as having a “beautiful vista,” it was implied in the covenants that the view would be maintained as part of the bargain. But, the beautiful vista part doesn’t appear in any of the covenants. Many things are said in ad-vertising that do not come to fruition. Still, B could say the ads clearly state beautiful vista.

If the promise is interpreted to include the vista, then the question would be whether the burden runs to GC.


Writing: Yes, written and recorded.

Intent: As stated above, the specific language “successors, heirs, and assigns” is likely sufficient to show intent.

Notice: Properly recorded, so yes.

Touch and concern: If the covenant is overall viewed as a covenant to maintain a golf course, then the covenant is affirmative, and the courts might have policy issues with enforcing it be-cause it might be expensive for GC to maintain the golf course; I assume golf courses are expen-sive to run. Maybe L didn’t really think about how much a golf course costs to run when he cre-ated the covenant. This might make the land non-marketable, which would be contrary to policy.

But if there’s a promise in there somewhere, somehow, to maintain the vista, the court might separate this out and call it negative. This promise would relate to the use of the land and affect the value somewhat, and so could touch and concern it.

Horizontal Privity: Yes, the original conveyance was all out of one common plot, Blackacre. Vertical Privity: Yes. L conveyed to GC in 2004 from fee simple to fee simple, so also part of a conveyance.

Restatement: The RTT drops horizontal and vertical privity in lieu of notice. Should find out what laws in the area that Pinehaven is located uses.

Relief: If B showed that the burden ran to GC, then B could seek either an injunction or damag-es. B probably just wants the view, so the injunction is probably exactly what B wants anyway.

Other relief: B might claim that he had a negative easement for the view of the golf course. But generally courts are apprehensive about granting negative easements when in doubt because there is no way for a buyer to know about negative easements when buying a property if not recorded.


(1) Who owns the house at #310?

In determining who owns the house at 310, whether it be Barry (B) or Chantal (C), we must first look to the statute in Cania. Under that statute, any subsequent bona fide purchaser may gain superior title to a prior unrecorded deed if they were the first to record the deed. Therefore, we must look to the facts to see who recorded first, and whether C had any notice of B’s title.

B purchased the home from A and recorded the deed; however, the deed was misindexed in the grantee index under the name Drea. Even if C were to have searched the index in order to determine if there was a prior interest in the property she would have been unable to find it. So we might say B’s deed was not recorded. But B would say, “I did all I could – I’m not the one who indexes things.” Still, C would argue that it would have been easier for him to double-check the proper indexing of a deed he knew existed (AB) than for her to find a deed she didn’t know existed and which was misindexed.

C still has a problem, though. Even if she’s a BFP (and she did pay valuable consideration, as the facts indicate), she herself didn’t record, as the statute requires. Also, is she even a BFP? Maybe she was on notice of B’s claim. Here the facts are tricky, as B had not yet moved in any furniture, etc. to put C on any type of inquiry notice when she moved in. However, B


did place his picture on the wall. Whether this is sufficient for notice is questionable, and most likely weak, as the community is specifically for those interested in golfing, and B is a professional golfer (maybe A really did just admire him!).

If the court decides that C had inquiry notice from the picture (which, after all, was taken in front of #310) and that is is enough to satisfy the legislative intent behind the statute, then C may not be able to gain title, even if she records first and B would recover the property. However, if it is determined that C did not have any notice, it is a race to the finish, and the first of either B or C to record properly will receive ownership of #310.

(2) Can GolfCo (GC) stop C from using it as a group home, and force compliance with the 25-hour per year maintenance requirement?

Assuming that C does in fact own #310, and proceeds with her home for developmentally disabled adults, GC may be able to stop her from continuing her intended purpose due to the restrictive covenants set forth in the deed. In order to win an injunction in order to enforce the covenants (both the single family residence and the annual maintenance requirement) the promises could either be a real covenant or an equitable servitude, and since the factors are similar, I will address them together.

In order for GC to enforce the covenants as a real covenant (RC) or equitable servitude (ES), the RC and ES must satisfy several elements:

Writing: As the promises are contained explicitly within each deed to the buyers of the residences, this first requirement is met.

Intent: In order to satisfy the intent requirement, GC must show that Lorenzo intended the covenant to run (both the burden and the benefit). This is apparent from the language of the plan promises, as it states the buyers of the houses promise on “behalf of their heirs, successors, or assigns” for the benefit of Lorenzo and “his heirs, successors, or assigns and other Villa residents”, which shows that both the burden and the benefit of the covenant in question was intended to run.

Notice (required for the burden): As the promises are contained explicitly in the deed any purchaser who read the deed should have actual notice of the covenants, and if they did not read, notice may also be satisfied by either constructive notice (checking the index and finding the recorded deed) or by inquiry notice (all the homes are single-family dwellings and the maintenance requirement may be talked about by neighbors or it may be apparent if one of the neighbors or residents is out doing maintenance on the golf course).

Touch and Concern: Because the covenant is restricting the type of residence, it can certainly be said to touch the land, and as the maintenance requirement is for the upkeep the golf course, that covenant (although it doesn’t technically “touch”) concerns the residential community. The ultimate test however is whether or not the covenants are appropriate for a private land use scheme, which should be satisfied without any contention as the regulation of dwellings is very common, and the maintenance requirement is similar to paying HOA fees (see Neponsit, where HOA fees were deemed to touch and concern the land). The only real question might be about the requirement to do annual maintenance; some courts don’t like affirmative covenants, on the theory they’re too burdensome. But that’s really pushing it here – it’s just 25 hours a year.


Privity: Here is where the analysis for RC and ES differs. For an RC, GC would have to show both horizontal and vertical privity (RP & VP) for the burden to run to C (unless Cania is a 3rd Restatement state, in which case both may be dispensed with and instead of VP the court would look to the type of promise, affirmative or negative, made as to whether it could be enforced, however I will proceed as though the privity requirements are necessary).

For the RC, HP is met as the covenants came into creation with the development of Pine Haven Golf Villas, and was contained in the deed explicitly when conveyed from Lorenzo to A, the original parties.

VP is also met here for the burden to run, as C has taken on an equal estate (not a life interest or lease) from A, and as such the parties are in vertical privity, which requires C to uphold the covenants in the contract.

Because both HP and VP exist, there is no need to address ES here, because GC will be able to obtain an injunction based on the burden of the RC running to C.

However, in order to obtain an injunction, GC must show that C has actually violated the single family residence requirement (GC should be able to force compliance of the maintenance requirement based on the burden running, and could satisfy this by either asking C nicely (only one member of the household has to perform the work (although it is unclear whether C could be considered a member of the household), or if C refuses they could obtain an injunction as the facts state that C has told the residents they don’t have to comply).

However, for an injunction in regard to the single family dwelling, GC must first convince a court that the property is no longer being used as a single family dwelling. It is not too abstract to consider the developmentally disabled adults living together as a family; if they do things together and give each other some emotional support or comradeship, it’s like a family. However, because C removed the kitchen and laundry from #310, runs the enterprise jointly with property #309, dines and does laundry in #309, and she herself does not actually live in either house.

Therefore, a court will most likely decide that the use of #310 as a for-profit enterprise is not in conformity with the single-family residence requirement, along with the lack of performance of maintenance by the residents, is a violation of both covenants, and if GC so desires it may obtain an injunction to enforce both of the plan promises.

(3) If C owns #310, and the group home is permitted, do the residents have the right to play golf?

If the group home is permitted, the residents actually living in #310 would have no problem using the golf course (as Lorenzo included that promise in the deed for properties adjacent to the golf-course). As the analysis above shows the promises contained all satisfy writing, intent (here the benefit is intended to run based on same language of “and their heirs, successors and assigns” contained in the grant). The differences in this promise however, is that the use of the golf course is an easement, rather than a covenant. It is typically easier to gain access to or enforcement of an easement however.

Here, the easement is appurtenant (as it concerns the adjacent houses to the golf course) and as #310 is an adjacent property the benefit and burden of the easement will run to both the dominant and servant estates, and their successors in interest. Therefore, GC (as successor to the


servant estate) must allow the residents of #310 (as successors to the dominant estate) to continue to play golf as per the plan promise.

However, the question asks whether the residents may be able to use the golf course. Some of the residents live in #309, across the street and not adjacent to the golf course. This being the case, the residents who live in #309 may not gain access to the golf course under the easement (for they are not successors to the dominant estate and thus have no right to access). (Of course, the golf course is also open for play by non-residents, and so those living in #309 could use the golf-course so long as they pay a fee.)

The one potential problem here is that if #310 and #309 are treated as a unit, they may run into the problem that you can’t combine one piece of land not benefited by an easement with another that is. That’s generally viewed as unfair to the servient estate, because it’s more of a burden than they bargained for.

(4) If B owns #310, can he stop GolfCo from putting in the hedge? Is there any other relief he may be able to get?

Assuming that B owns #310, whether or not he may stop GC from going forward with their plan to build a hedge will depend on whether or not the benefit of the view of the course is one of the “plan promises” which may run with the property. In order to stop GC, B will need at least a ES (or a negative easement, but courts is the U.S. tend to construe them as an ES anyway).

For an ES, B must show similar elements as the RC above. However, according to Sanborn, B may not need to satisfy the element of writing to satisfy the burden or benefit running (B will have to show both though, as he and GC are successors to the original conveyance). As in Sanborn, B may be able to show that the ES was implied by the common plan of the residential community, in which modest homes have access to a “beautiful asset” in their backyard that they all work together to maintain. If the court perceives it as such, the implication will be enough for the burden to run to GC, even without the explicit writing preventing a hedge being present in the deed (this may be more difficult for a RC, which is why B may have to stick with an injunction for an ES).

The implied plan may also satisfy notice (which will not be required for the benefit to run, but may be for the burden). The plan promises in the deed concerning the burden of maintaining the land as a golf course for the benefit of the residential owners is evidence of constructive notice to GC, and the presence of modest homes surrounding the golf course and the fact that the owners of the residences themselves put in labor to maintain the premises is most likely sufficient for inquiry notice to GC of the promise to maintain the beautiful asset free of a hedge.

Next, B will have to show that L intended the ES to run, and will likely have a strong case based on the advertisements put forth by Lorenzo, which tout the “beautiful asset” in the resident’s backyard. The advertisements, along with the first plan promise, which places the burden of maintaining the land as a golf course on Lorenzo, his heirs, successors and assigns, and the reliance on the part of the purchasers of the home to this beautiful view (which is strong for B as he is a pro golfer, and likely relied on direct access to the course as well as the pleasant view) is most likely enough to convince a court that the burden and benefit was intended to run.


Rather than show horizontal or vertical privity, for an injunction based on an ES, B will only have to show that GC is “occupying the land” and that B is an appropriate party to enforce the restrictive covenant. As GC bought the golf course from L, they are occupying the land burdened by the ES requiring a view of the golf course from the backyards of the residences, and as B is the owner of lot #310, he is certainly an appropriate party to seek enforcement of the ES.

Therefore, B will likely be able to obtain an injunction preventing GC from going ahead with their plans to build the hedge (it only takes one landowner! see Rick v. West) as it would violate the ES. B will likely not be obtain damages through a RC due to the lack of explicit mention of the covenant in the deed, as well as a possible lack of HIP between Lorenzo and GC when he conveyed the golf course (were the same plan promises contained in the deed for the just the course?). However, B wouldn’t have a claim for damages yet anyway as GC has only announced the plan. B may have the option (after the injunction is granted) to negotiate (along with the other residential owners) for some monetary sum that would be sufficient to allow GC to go forward with their plan to build the hedge, if the property owners were so inclined (as Pine Haven however, it is likely they will take pride in their golf course and reject the hedge!).


Property (C)(2)

Final Examination



This is a four-hour closed book exam. Times shown for the Questions add up to 3-1/2 hours. You can use the extra half hour either for reading the Questions, or to give yourself a little extra time for writing your answer to each Question. There is no separate reading period. The times shown for the Questions reflect their weight in grading, so it’s important to keep them in mind. You may answer the Questions in any order you wish.

Question Time (minutes) Question I (answer EITHER A or B) 75 Question II (answer ANY ONE of A, B, or C) 60 Question III (answer ANY ONE of A, B, or C) 75 Total 210

II. WRITING INSTRUCTIONS: IMPORTANT–READ THESE BEFORE YOU BEGIN


Writing Instructions for … Handwriting Laptop Write your AGN on this copy of the exam (see below) and turn it in with your bluebook(s).

Write your AGN on this copy of the exam itself (see below) and turn it in when you’re done with the exam.

Write your AGN on the cover of each bluebook. Write on every other line – i.e., skip lines.

Follow the Registrar’s instructions about input-ting the AGN into your answer, etc.



PROPERTY (C)(2) QUESTION I OF III FALL 2010 PAGE 2 OF 11


Answer either Question I(A) or Question I(B), but NOT both.

Handwriting: Please begin Question I in a bluebook marked “Question I(A) or “Ques-tion I(B),” depending on which Question you choose to answer. Please write your AGN on the cover of each bluebook. Please skip lines and write on one side of each page. Laptops : Please type “Question I(A)” or “Question I(B),” depending on which Question you choose to answer, at the start of your answer to this Question.



The following events take place in the hypothetical U.S. state of Cania; courts in Cania follow the common law as well as any statutes that may have been enacted.

You may find the following abstract of transactions and certain related events useful in reading the Question, but keep in mind that it does not contain all the facts necessary to answer it.

2000: O ==> A (Greenacre) so long as no artificial agricultural methods are used on Greenacre, otherwise to my second cousin X to live on and not to sell. I leave everything else to my niece Y.

2004: F opens maraschino cherry factory on Whiteacre. 2009: A’s bees discover syrup on Whiteacre. 2010: Dispute arises.

Omar lives in Cane County in a house on Greenacre, a 10-acre lot with a mango orchard. Cane County is fairly undeveloped. Many of the lots are residential, but there are also a good number of mango orchards as well as some light industry (all uses allowed by zoning). Omar keeps bees on Greenacre. They get nectar from the mango trees in his orchard (with some side trips to other mango orchards nearby), making delicious natural honey. Omar sells the mango honey to cus-tomers at the local farmers market. He prides himself on his exclusive use of organic fertilizer for the orchard and on the natural honey his bees produce.

In 2000, Omar dies. Omar’s will says, “I leave Greenacre to my cousin Andrea so long as no artificial agricultural methods are used on Greenacre, otherwise to my second cousin Xavier to live on and not to sell. I leave everything else to my niece Yolanda.”

Andrea is delighted. “I can finally have a place to live on during my retirement,” she says. She decides to keep the bees on Greenacre as a sideline to supplement her retirement income. An-drea runs the whole honey operation pretty much herself, hiring only 1 or 2 part-time employees at peak season to help bottle the honey. “I don’t know how I’d get along without my honey money,” she tells a friend. “My pension and social security checks are pretty small.”


PROPERTY (C)(2) QUESTION I OF III FALL 2010 PAGE 3 OF 11 ← Question I(A) begins on the previous page

In 2004, Frank opens a maraschino cherry factory on Whiteacre, which is about 2 miles away from Greenacre. The factory makes the red cherries used in cocktails and ice cream sundaes. Frank’s factory employs 75 people year round. The manufacturing process involves lots of red syrup made of high fructose corn syrup (manufactured from corn) and large quantities of red dye no. 40 (a commonly used artificial dye). The red syrup is stored in big vats outside the plant. The pipes leading from the vats to the factory are leaky, so when the syrup is pumped into the factory, some of it drips on the ground. At first, the leaks are small, but over the years, there is much more runoff. Frank doesn’t care because syrup is cheap, and pipes are not.

In 2009 honey season, Andrea’s bees discover the syrup outside the factory and start flying there instead of going to the mango trees. They swarm on the ground where the leaked syrup has pooled, and drink the syrup. Though the bees stay away from people unless they’re disturbed during feeding, Frank is scared of them because he got stung by bees as a child.

The honey Andrea sells in 2009 is red and full of red dye no. 40, plus it doesn’t taste very good. “I managed to sell the maraschino honey,” Andrea tells her friend at the end of the season, “but it’s not as good as mango honey and sells for a lot less.”

When this whole problem arises again in 2010, Andrea approaches Frank to demand that Frank replace the pipes to get rid of the leaks. “Or if not that, at least compensate me – I can go on making maraschino honey if you make up the income I lose from not selling mango honey,” she says. Frank responds, “Are you kidding? Replacing all those pipes would be expensive – it’s not worth it, given how cheap the syrup is. And it’s not my fault your bees keep coming onto my lot. In fact, they’re making me nervous on my own property.”

Xavier suddenly barges in and, brandishing a jar of maraschino honey, tells Andrea, “Time for you to move out. Greenacre is mine.” He continues, speaking to Frank, “I’m fine with the bees drinking your syrup.” [*]

If you answer Question I(A), make sure you answer both these subquestions:

(1) Who owns Greenacre? Explain. How should the courts resolve the dispute, in your view? (2) Assume, solely, for the sake of this subquestion (2), that Andrea owns Greenacre. What remedies might she have against Frank? How should the courts resolve the dispute, in your view?

Question I(B) starts on the next page →

* [Cf. French Beekeepers in Ribeauville Abuzz over Blue Honey, BBC News, 4 Oct. 2012, http://www.bbc.co.uk/news/world-europe-19835847.]

http://www.bbc.co.uk/news/world-europe-19835847

PROPERTY (C)(2) QUESTION I OF III FALL 2010 PAGE 4 OF 11 ← Question I(A) is on the previous page




You may find the following diagram and abstract of transactions and certain related events use-ful in reading the Question, but keep in mind that they do not contain all the facts necessary to answer it.

2000: O ==> A for life, then to the first of A’s children to graduate from law school (SeaAcre). Also creates easement across SeaAcre from the street to the beach in favor of the owner of Greenacre and its heirs, successors, or assigns. All else to O’s friend B. Beach

SeaAcre

Street

Greenacre SchoolAcre

(other lots)

Path

2004: C graduates from law school 2009: C barred from taking bar exam. 9/5/10: C X (interest in SeaAcre) 9/15/10: X Y (interest in SeaAcre) 9/16/10: O’s 2000 will is recorded. A dies. Oct. 2010: KNC BES (Greenacre)

SeaAcre is a vacant beachfront lot in Cania owned by Oliver. Greenacre is across the street from SeaAcre. Greenacre is owned by the Kids Nature Center (KNC), a non-profit group. Children in urban schools take field trips to the KNC to explore Greenacre’s natural habitat. Adjacent to Greenacre is SchoolAcre, on which Beach Elementary School (BES), a private school, is lo-cated. Every once in a while parents of kids from BES enroll their kids in KNC’s natural habitat programs, but mostly KNC serves city children.

In 2000, Oliver, who never got around to building on SeaAcre, dies. His will leaves SeaAcre to his daughter Ana for life, then to the first of Ana’s children to graduate from law school. “I’ve always wanted one of my grandchildren to become a lawyer,” his will states. The will also cre-ates an easement across SeaAcre from the street to the beach in favor of the owner of Greenacre and its heirs, successors, or assigns. Oliver had become convinced in recent years that city chil-dren suffer from “nature deficit disorder,” brought on by insufficient contact with nature, and wanted to do whatever he could to help. The easement makes it easier for kids in the KNC to get to the beach. Oliver’s will leaves “everything else” to his friend Beatrice.

Ana puts a note saying “record the will!!” on top of the “to do” pile of papers on her desk, but the reminder soon disappears deep into the pile and she forgets about it, leaving the will unre-corded.

In 2004, Ana’s child Charlene graduates from law school. Unfortunately, she repeatedly flunks the bar exam, and after her sixth failed attempt she is barred in 2009 from further attempts.

Depressed by her failure to become a lawyer, Charlene falls victim in September 2010 to the scam artist Xavier. Xavier tells Charlene that he knows the Cania Chief Justice, who can get her


PROPERTY (C)(2) QUESTION I OF III FALL 2010 PAGE 5 OF 11 ← Question I(B) starts on the previous page

into the bar if she demonstrates that she knows how to draw up a legal document – “just a hypo-thetical one,” he assures her. “For example, how would you convey all your interest in SeaAcre to me?” he asks. “I know exactly how to do that!” Charlene exclaims. On September 5, 2010, she proudly draws up a quitclaim deed with all the proper formalities conveying all her right, title, and interest in SeaAcre to Xavier. Before handing it over to him she signs it; the pen was running out of ink, and her signature is very hard to read. Xavier later traces over it to make it more legible. He records the deed without telling her.

Xavier then tells Yolanda, an acquaintance of his, that he can sell her a great beachfront prop-erty. He shows her SeaAcre. “Why are those kids walking across the lot?” she asks when she spots the KNC kids going to the beach. “Who knows?” replies Xavier. “Do you want to buy it or not?” She agrees to buy it. At closing on September 15, she pays him $300,000, happy be-cause a friend told her the lot was probably worth at least $750,000. Xavier gives Yolanda a deed (phrased like the one he got from Charlene). An anarchist, Yolanda refuses to record the deed.

On September 16, a strong wind blows through an open window, scattering the papers on Ana’s desk. Picking them up off the floor, she finds the note about the will and promptly goes to the county clerk’s office downtown to record it. On her way back from the office she’s hit by a bus and killed.

In October 2010, KNC sells Greenacre to Beach Elementary School (BES), which takes over the nature center and its programs. For the nature center activities, the BES now actively caters not only to city kids but also to its own students, greatly increasing the number of children who use the easement.

Yolanda plans to build a large house (consistent with local zoning) that will cover most of the lot and block the easement. One day when she has architects and engineers out there looking over the lot, Charlene and David (the principal of BES) both happen to stop by at the same time. David says, “you can’t block our easement!” Yolanda says, “What easement? I don’t know what you’re talking about!” “What on earth is going on here?” interjects Charlene. “SeaAcre is mine!” “Surprise!” says Beatrice, emerging from the ocean after her daily swim. “SeaAcre be-longs to me!”

Who owns SeaAcre? If Charlene or Beatrice owns SeaAcre, does she have to let the kids cross it to get to the beach? If Yolanda owns SeaAcre, does she have to let the kids cross it to get to the beach? Explain. How should the courts resolve the disputes, in your view?

Note: Cania has the following statute:

Cania Statute § 1. A devise or conveyance of an estate in fee simple, fee tail or for life, or any other interest in property, shall not be valid as against any person, except the grantor or les-sor, his heirs and devisees and persons having actual notice of it, unless it, or an office copy as provided in section [in a separate section of Cania law], is recorded in the registry of deeds and wills for the county or district in which the land to which it relates lies.

PROPERTY (C)(2) QUESTION II OF III Fall 2010 Page 6 of 11

Question II (60 minutes) Answer any ONE of Question II(A), Question II(B), or Question II(C).

Handwriting: Please begin Question II in a new bluebook marked “Question II(A),” “Question II(B),” or “Question II(C),” depending on which Question you choose to answer. Please write your AGN on the cover of each bluebook. Please skip lines and write on one side of each page. Laptops : Please type “Question II(A),” “Question II(B),” or “Question II(C),” depending on which Question you choose to answer, at the start of your answer.


Comment on the statement below, noting the extent to which you agree or disagree with it. Be sure to take note of and comment on all the assumptions and assertions in the statement. In addition, use at least three concrete examples to illustrate your points. At the end of the question are suggestions for areas from which to draw examples, though you may also use areas of your own choosing if you think they will provide better examples.

“Property law is as much about how people define themselves and their relations to others as it is about the ownership, transfer, or use of property. That’s one reason why there’s such an emphasis on giving clear notice – it helps people understand each others’ intentions and plans. The problem is that in practice, property law’s wide domain allows the courts to end up deciding basic issues of social policy, a function that is properly the role of the legislature.”

o Adverse possession o The body as property o “Mother Hubbard” clauses in re-

corded deeds o The use of presumptions in interpreting grants o Whether a degree or license is marital property

o Right of access to land o Zoning and covenants o Tenancy by the entireties



“The law always seeks to promote the most productive use of property, which is why the key to the courts’ reaction to any assertion or defense of a property right is always whether the person claim-ing the right is acting reasonably. But even though productive use of property is important, the law never goes so far as to take a property right away from one private individual and give it to another just because that would improve the overall efficiency of property use. Even with compensation, that would be wrong.”

o Assignment/sublease o Nuisance o Change in circumstances in covenants and servitudes o Restraints on alienation o Eminent domain o The law of waste o Equitable conversion o Trespass

Question II(C) is on the next page → Question II(C) (60 minutes)

PROPERTY (H) QUESTION II OF III Fall 2009 Page 7 of 11 ← Questions II(A) and II(B) are on the previous page

Answer any ONE of Question II(A), Question II(B), or Question II(C).


“The whole area of access to migrant farms shows that legislatures handle issues better than courts. It’s not that legislatures are great – it’s that courts are so bad. For example, the courts sometimes reason ‘backwards’: Instead of determining whether a certain observable fact or con-dition is present and then reaching a conclusion in light of a rule, they decide how they want to come out in light of policy concerns and then declare the fact or condition appropriate to that conclusion. This kind of backward reasoning is always bad, but what’s even worse is when the courts draw distinctions or apply rules that simply make no sense.”

o “Constructive possession” o The distinction between contingent remainders and executory interests o Forgery versus fraud in deeds

o Horizontal privity and the availabil-ity of damages

o The distinction between negative easements and restrictive covenants

o The distinction between assignment and sublease

o The rule limiting use of an easement to benefit only the original dominant estate

o Touch and concern in servitudes

PROPERTY (C)(2) QUESTION III OF III Fall 2010 Page 8 of 11


Answer any ONE of Question III(A), Question III(B), or Question III(C).

Handwriting: Please begin Question III in a bluebook marked “Question III(A),” “Question III(B),” or “Question III(C),” depending on which Question you choose to answer. Please write your AGN on the cover of each bluebook. Please skip lines and write on one side of each page. Laptops : Please type “Question III(A),” “Question III(B),” or “Question III(C),” depending on which Question you choose to answer, at the start of your answer to this Question.



In August 2005 Alberto contracts with Bob the Builder to build him a house in Cania. Alberto, a firm believer in “buy American,” tells Bob he wants “nothing but American products for me.” Bob replies he’ll try his best at that, which is fine with Alberto. In building the house Bob en-counters a serious shortage of U.S.-made drywall. One of his suppliers offers him Chinese-made drywall. “It’s never been used or tested here,” the supplier says, “but what are you gonna do?” Bob buys the Chinese drywall and lets Alberto know he’s using it in the new house.

Once the house is completed in August 2006, Alberto closes on the contract and moves in. Al-most from the outset, gases given off by the drywall begin to erode the pipes and wires in the walls of the house, though not in a way that’s easily noticeable. Alberto notices a peculiar and distinctly unpleasant odor, but figures it’s just a “new house smell.” Alberto constantly feels a little sick. He complains to his doctor, who does a thorough workup. “Interesting that your symptoms started when you bought your new house,” the doctor says. He prescribes anti-allergy medicine which helps Alberto a little.

In July 2008, Alberto takes a new, high-paying job two hours from his house, and decides to move closer to work. He puts his house on the market, listing it on the Internet. Xaviera, living in New York, sees the listing, and with Albert’s help uses Skype technology to do a live “virtual tour” of the inside and outside of the house from her computer. When the tour begins, Xaviera says to Alberto, “How are you and your lovely house?” Alberto replies, “Fine. Never been bet-ter!” By this time, there have been some news reports about Chinese drywall, mainly in other states. Xaviera, who follows the news in general quite avidly on the Internet, has read the re-ports about the fumes (Alberto hasn’t). She asks Alberto if the house was built with any Chinese products. Fearing she has the same kind of “buy American” ethos he does, he just answers, “I told Bob the Builder, nothing but American products for me.”

Xaviera agrees to buy the house for $500,000, but tells Alberto her credit is shot. Instead of seeking bank financing, she signs an agreement with Alberto promising to pay him $4,000 a month for 15 years, with Alberto retaining title to the house while Xaviera lives in it. If all pay-ments are timely made, Alberto will give the deed to Xaviera at the end of the 15 years. The con-

Question III(A) continues on the next page →

PROPERTY (C)(2) QUESTION III OF III Fall 2010 Page 9 of 11 ← Question III(A) begins on the previous page

tract also permits Alberto to retake the house and keep all the money Xaviera has paid if she misses three payments in a row, with neither one owing any further obligation to each other.

Xaviera moves from New York into the house in September 2008. She notices the smell and soon begins to feel sick. By this time there are lots of news stories everywhere about the ill ef-fects of fumes from Chinese drywall, but she doesn’t immediately associate her illness with what she thinks is her all-American house. In August 2010, a doctor strongly advises Xaviera to get her house tested, which she does. The Chinese drywall that Bob put in is discovered, along with extensive damage (caused by the fumes) to the pipes, air conditioning ducts, and wiring. Repair-ing the damage will cost at least $200,000.

Outraged, Xaviera stops paying Alberto as of September 1, 2010. At this point she’s made a to-tal of $96,000 in payments to Alberto; if she’d taken out a conventional 15-year mortgage from a bank to finance the purchase of the house, about $50,000 of that would have been credited as in-terest payments and the other $46,000 as repayment of the loan.

Xaviera moves out and immediately feels better. When Alberto calls to ask what’s going on, she replies, “You misled me about this smelly, sick house! I’m not paying you another dime until you give me the money to fix everything – or you can just buy the house back from me!” After she misses the next two months’ payments, Alberto invokes his rights under the contract, retakes the house on December 1, and sells it the next day to a friend for $25,000 just to get the whole thing off his hands.

Xaviera comes to you for advice on December 6. She wants to know what her rights are against Alberto and against Bob. An avid fan of the new “Law & Order: Special Property Unit” TV series, she’s also interested in your views of what the law should be.

What do you tell her? Explain.

Question III(B) is on the next page →

PROPERTY (C)(2) QUESTION III OF III Fall 2010 Page 10 of 11 ← Question III(A) is on the previous page

Question III(B) (75 minutes) Answer any ONE of Question III(A), Question III(B), or Question III(C).

The following events take place in the hypothetical U.S. state of Cania; courts in Cania follow the com-mon law, any statutes that may have been enacted, and the U.S. and Cania constitutions. A member of the Cane City Council plans to propose a new zoning ordinance intended to beautify the residential sections of Cane City and make them more livable. The Preamble to the proposed ordinance asserts that beautifying Cane City and making it more livable will help maintain property values. Section 1 aims to use the City’s zoning power to create an identifiable Mediterranean “look” in the residential parts of the City within a reasonable period of time. It provides that:

o All residential roofs must be covered with Mediterranean barrel tile, not with asphalt shingles, cedar shingles, concrete shingles, copper roofs, or any other type of roof covering.

o The section applies to all residences without exception, not just to the construction of new houses or the installation of replacement roofs on existing houses. Thus existing non-tile roofs must be re-placed. There is an amortization period, under which any homeowner with an existing noncon-forming roof covering is given five years from the effective date of the ordinance to replace the roof with Mediterranean barrel tile. [Mediterranean barrel tile, concrete shingles and most other roof coverings can all normally last for 15-20 years, sometimes longer.]

Section 2 provides for the addition of parkland in residential areas through use of the City’s eminent domain power. Cane City doesn’t have the funds to buy more land for parks because its property tax revenues have declined in recent years. Instead, section 2 provides that Cane City residents living in a neighborhood covering at least five city blocks can form a private Neighborhood Park Association (NPA). An NPA can ask the City to use eminent domain to acquire a vacant lot in its neighborhood; the City will then take it, giving the owner fair market value, and immediately sell it to the NPA for the same amount. The NPA will get its funding from membership contributions and dues. The NPA will be required to maintain the park for the next 25 years (during which time it can limit access to the park to its dues-paying association members); after 25 years (or earlier, if the NPA fails to maintain the park), the City will take over maintenance of the park, which will then be open to the public. You are the Cane City Attorney. The Council member asks you to write a memo setting out your legal opinion on any legal issues raised by the proposed ordinance. He says he’s interested not only in your views of how those issues would be resolved, but how they should be resolved. Write the memo. Note: The state of Cania has the following statutes: § 89.020. Cities in Cania may regulate lot size, height, size, spacing, use of buildings, and population density for the purposes of promoting health, safety, and welfare. § 89.040. All local zoning ordinances must be designed to promote health and the general welfare. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, with a view to conserving the values of build-ings and encouraging the most appropriate use of land throughout such municipality. § 112. Cities in Cania shall have the power of eminent domain, subject to the limits set out in the U.S. Cania and constitutions.

Question III(C) is on the next page →

PROPERTY (C)(2) QUESTION III OF III Fall 2010 Page 11 of 11

← Question III(B) is on the previous page

Question III(C) (75 minutes) Answer any ONE of Question III(A), Question III(B), or Question III(C).


In January 1995, Ana buys a house in Cania for $400,000, financing it with a $50,000 down pay-ment from her own funds and a $350,000 mortgage from the Bank of Cania. In September 2008, Ana loses her job. She struggles for some time thereafter to make the payments on her mortgage, but as of September 2009 she begins to fall behind, and in January 2010 she stops making payments completely. At this point because of the financial crisis the house is probably now worth about $250,000 at best, and the remaining mortgage balance is about $250,000.

In June 2010, the Bank of Cania goes to court to invoke its right under Cania law to sell the prop-erty and thereby extinguish Ana’s equity of redemption. The Bank puts a notice of the sale in the “court notices” section of the local newspaper, but makes no other efforts to advertise it. On the date of the sale one person, Larry, shows up and bids $100,000, which the Bank accepts. The Bank sends Ana a notice of deficiency of $150,000, and its lawyers begin hounding her for payment.

As for Larry, he’s delighted. “What a steal!,” he remarks to his lawyer friend. “It’s even better than you think,” replies his friend – who knows Cania law very well. “Cania’s one of those states that don’t have a statutory right of redemption that comes into play after the borrower’s equity of redemption is extinguished in a judicially supervised sale. So the house really is yours to keep!”

Larry rents the house out to Teresa for 2 years starting in July 2010. The lease says that the house is rented “as is,” and that any repairs are the responsibility of the tenant. The lease also says that the tenant may not assign or sublease the house without the landlord’s written consent. Teresa moves in.

Teresa discovers that Ana, angry at the Bank, had deliberately sabotaged the air conditioning so it doesn’t work very well, and had also vandalized a third of the electrical outlets in the house so they don’t work. Also, Ana had flushed washcloths down the toilet in two of the three bathrooms, and they’re now stuck in the pipes so those bathrooms can’t be used without expensive repairs.

In December 2010, Teresa asks Larry to fix the problems. Larry refuses, pointing to the lease. Teresa then tells Larry she’s desperate to get out of there and that she’s thinking of subletting the place to her friend Sam, who she knows is kind of a slob and won’t care if the place is in bad shape. “Sam has great credit and great history with landlords – I can help you verify that,” Teresa says. Larry replies, “No way am I giving you permission. I’m too busy bidding on other houses in fore-closure to deal with checking out a new tenant.”

If you answer Question III(C), make sure you answer all three subquestions:

(1) What remedies, if any, does Ana have against the Bank? How should the law resolve this question, in your view? (You may assume that whatever remedies Ana may have against the Bank don’t include getting back ownership of the house.) What should the law be in this area? Explain. (2) What remedies, if any, does Teresa have vis-à-vis Larry regarding the condition of the house? What should the law be in this area? Explain. (3) Would Teresa be able to sublease to Sam? Why or why not? If the answer is no, is there any-thing else Teresa could do? What should the law be in this area? Explain.

End of Examination


PROPERTY (C)(2) Final Examination: Sample Answers



First Sample Answer (1) O granted A a fee simple subject to an executory interest. X then has an executory inter-

est in fee simple. We must apply the RAP to determine whether or not X’s interest is valid. If an interest can vest after one lifetime, plus 21, then it is not valid under the RAP. Here we can use A as the guiding life. When A dies, is there a possible situation where artificial agricultural methods can be used on Greenacre over 21 years later? The answer is yes, as perhaps artificial agricultural meth-ods will be used 22, 30, or even 50 years later. There is no way of knowing when this interest would vest and would be stricken under the classic RAP. We would then have to find out if Cania had a wait and see approach to the RAP, in which case we would wait the required statutory period to see if the interest vested. In this case the interest arguably could have vested within 10 years of the grant, thus it may satisfy the Cania statute (depending on the X number of years Cania may sub-scribe to). Another note on the grant is the language to X, “to live on and not to sell.” This attempt to restrict the land goes against public policy to keep land alienable, and would be considered void. If X does get the land it would be in fee simple. Y has no interest in Greenacre.

Even if Cania has a wait and see approach, X should not be counting his bees just yet. What restriction did O actually intend to put on the land? O prided himself on his green ways; the organic fertilizer and the natural honey were things he was obviously proud of. The intent of O was most likely to continue with this legacy, as he would be upset if honey that came from his farm became known as not natural. Notice he does not say that A has to continue bee keeping, or even producing anything at all. The restriction is just so that no artificial agricultural methods are used IF there is to be production. This further strengthens that O was concerned with the legacy of any product from his farm. A made the choice to continue producing honey, as she liked the income that the honey provided. She made the choice to continue with O’s legacy, and thus she is bound to the restriction set forth concerning the production standard. The court would see this conscious choice as A ac-cepting the responsibility of the restriction. If she didn’t want to worry about the agricultural meth-ods used, maybe she should have just gotten rid of the bees altogether and opened a nice picnic area under the mango trees.

Unfortunately for A, she did accept the responsibility and she did violate the restriction. Or did she? “As long as no artificial agricultural methods are used ON Greenacre.” Does the act of a bee drinking constitute an agricultural method? Even if it does, the bees drank the syrup on Whiteacre. Not Greenacre. X, eager to get his land, would argue that the intent of the restriction was to protect the legacy of the honey, and a broad interpretation should be enforced. Unnatural honey was produced and so O’s legacy, and restriction, are violated. X would want the court to look at the intent of the grant. A seems to be ok if there is a strictly literal translation of the restriction, as the bees did not drink the syrup on her property. A could also strengthen her point by arguing that it is

Property (C)(2) Question I of III Fall 2010 Page 2 of 40

in the nature of bees to fly off and she cannot be held responsible for the decisions of the hive. When O ran the farm the bees made side trips to other mango orchards nearby. For all we know, these other mango orchards could have used artificial agricultural methods and so O’s honey wasn’t fully natural even when he owned it.

This comes down to how much responsibility we want to put on A as a property owner to enforce an ambiguous restriction. A did complain to F about the conditions the year after the honey came out different. She abided by the restriction as best she could and tried to fix the problem when it arose. Do we want to reward her for that? Then again, X would argue that she knew there was light industry around and it was her responsibility as a vigilant property owner to look after any changing conditions and do her best to protect against them (perhaps put up a bee screen of sorts? At what cost? Do we really expect her to do this?). The way a court should decide this depends on what we want to reward as public policy. The court should side with A, as she really didn’t do any-thing wrong. The restriction is quite vague, and she never actively went against it. If anything, she went to lengths to try to secure her interest by complaining to F (even if it was a year later) and try-ing to get the pipes fixed. The only thing she can be blamed for on this issue is not keeping her bees in her bonnet.

(2) A would claim F has created a nuisance that is interfering with her property rights. Her remedies thus are going to be seeking damages, and possibly an injunction against future harm. To prove that there is a nuisance A would have to prove the syrup on the ground is something a reason-able person would consider it a nuisance and that it was an intentional, harmful, or abnormally dan-gerous trespass on her property right. A may be able to prove the syrup is negligent, as F was aware that his pipes were leaking and decided to ignore the problem since it was cheaper than fixing it. It is doubtful that ground syrup is abnormally dangerous (except perhaps to a diabetic bee). Is it harm-ful to her property? A would argue that it is as it has interfered with her business. She cannot make as much money off the honey and F should be responsible for this disparity, as it was his leaking pipes that caused it. It can be argued that any reasonable person in A’s situation would feel the same way, but we must distinguish whether A’s situation is reasonable.

Does A have the property right to make money off her land if it is zoned in a largely resi-dential area? We would have to find out what A’s specific property is zoned for. If it strictly resi-dential, then A might not have as many remedies as she hoped. A court would reason A has no right to make money off her land as it is a residential area. What if B is zoned as industrial and A is not? Maybe the courts would give more weight to B’ s interest as he was acting within his zoning restric-tions, where A was not. If O had originally gotten a permit to sell produce, then A may have a valid case. Or A could argue that nobody objected to O selling honey for years, and so it can be assumed that even if the land is residential then there is an implied industrial use. We will assume for this purpose that both A and F are within their reasonable zoning purposes. At this point a court would have to weigh the equities.

A could argue that she moved in first, and so any subsequent businesses should be mindful of the surrounding area. Though there is no covenant or restriction against a cherry factory, perhaps one opening in the area should make sure they do not interfere with any previous residential areas. The problem with this is the area was zoned for light industry and trends may be changing. If within the past 6 years, many businesses have opened up around Greenacre then it may be harder for A to prove that F is actually being a nuisance. Or, even more of a twist, what if A is being the nuisance? Perhaps F is a big name in the cherry industry and brought a much needed service to an area that was demanding maraschino cherries for their cocktails. Could F argue that A is causing a nuisance on his property by negligently allowing bees on it? They are harmful and they may be abnormally dangerous if someone is allergic. A reasonable person would find swarms of bees on their property


as a nuisance. F seems to have just as strong of a case as A does, so it is unlikely a court would just tell F to close up shop and bring his cherries elsewhere. If F employs 75 people and A only employs 2, will the court look at this? Most likely not, as courts do not take economic disparity into account when weighing equities. They would look at the public utility of both. Unless this city really likes to drink their Manhattans with extra cherries, then it seems that both A and F are of equal public utility since they both produce the same type of product. So do we promote cherries or honey? If the court found a nuisance they could easily award damages to A and threaten F with an injunction if he didn’t fix his pipes. Unfortunately, this particular case doesn’t seem so easy. In light of pending liti-gation, would it be smart for F to just offer A the difference in income as she originally asked?

A court should look for a resolution that would encourage both parties to seek a settlement. If A could hypothetically build a screened in area around her property for 10k, but it would cost F 20k to fix his pipes, would the court look for the cheapest cost avoider and side with F? It is obvi-ous that both sides are infringing on each other’s property interests. Maybe the court should find the cheapest solution (such as the screened in area around A’s property) and have both sides pay for it. But then is it fair to F to make him pay for improvements on A’s property? If it raises the value of his own property by more than he would pay, then perhaps he would be wise to help pay. The im-portant thing to note is a court should not swoop in and destroy either side’s interest. They should take a small step in either direction to nudge the parties into taking their own corrective actions.


(1) When O devises Greenacre to A, A has a fee simple determinable (noted by the words “so long as”). Assuming no artificial agriculture methods are ever used on Greenacre, A will have Greenacre and so will A’s heirs once A dies.

What happens after A dies is in an assumption of fee simple being the default if “to A’s heirs” is not specified. The will does not say “to A for life” so the interest is not a life estate. Only in the past was the interest presumed to be a life estate. Now the presumption is in favor of a fee simple. The reasoning behind this new presumption is that life estates are highly unmarketable and overall less favored than the fee simple. There are two problems with the clause that concerns X in the will. The first concerns the interest X has in Greenacre. X has an executory interest. Since this is not a contingent remainder, DDCR will not be applied. Since A does not have a life estate, it will never naturally terminate, unless agricultural methods are used on Greenacre. Since X has an execu-tory interest, it is subject to the Rules Against Perpetuity (RAP). X would need to find a measuring life in the will, where it could be definitely said that within 21 years of the measuring life at time of the grant, the interest will have certainly vested. Since A could die and leave to heirs and the heirs run farm and never use artificial agricultural methods, there is no telling when the interest X has will vest, since it could potentially be forever before artificial agricultural methods are used. For this reason, the interest to X should be struck from the will. The second problem with the interest in X is that it includes “not to sell.” This is a forfeiture restraint, so that if X sells, he will give up his right to the property. These can be frowned upon since they have an effect on alienability. But this is not the major concern here, since those are sometimes upheld, and because X has already been struck from the will for reasons concerning the RAP.

Since X is struck from the will, if artificial agricultural methods are ever used, the land would go back to 0 or O’s devises or heirs. This is because 0 has a possibility of reverter (not rever-sion since he transferred his entire interest in Greenacre to A). His niece Y, since she has everything else left to her, would acquire this possibility of reverter from grantor O and therefore, if the no arti-ficial agricultural methods provision is violated, she would receive Greenacre .


The question now is to decide whether the provision was violated, in other words if artificial agricultural methods were used on Greenacre.

There is ambiguity in the will, because the will states “so long as no artificial agriculture methods are used on Greenacre.” Technically, The bees making honey out of artificial ingredients is a method that is not taking place on Greenacre; it is taking place on Whiteacre. A runs the honey operation from Greenacre, so the bottling of the honey is taking place on Greenacre, but she is not technically using artificial agriculture methods (of purposefully providing the red syrup versus natu-ral nectars to the bees)on Greenacre. Also if she follows O’s lead, she will be selling the honey at the local farmers market, so not even the sales of the tainted honey would he taking place directly on Greenacre.

However, The courts would probably look to the intent of 0, who prided hin1self on his natural honey and his exclusive use of organic fertilizer for the orchard and whose customers were based in a local farmers market, where organic is encouraged and most likely expected. O most likely intended that the words “methods on Greenacre” would cover any alterations to his organic and natural honey whether or not the “methods” literally took place on Greenacre. For these reasons the courts would probably say that A did use an artificial agriculture method on Greenacre (espe-cially since she did not remedy the situation and she tried to continue the artificial honey sales through F compensating her).

Since the courts would probably say that A did violate O’s intent for her not to use artificial agricultural methods, Greenacre would then go to niece Y, because she holds the possibility of re-verter. X is out of luck since his interest violated the RAP.

(2) Assuming A owns Greenacre, she may have some remedies against F. First of all, she could ask for damages in the difference between what her honey used to sell

for and what the honey sells for now because of the effect the red dye has on the flavor of the honey. She also has damages She may also try to get an injunction against F, so that he will fix his piping and the bees will no longer want to go over and drink his syrup.

Courts first need to consider whether the fact that F’s factory is leaking red syrup is actually a nuisance or not. Since the area is zoned for some light industrial purposes and the leaking red syrup is not going to cause substantial damage to the land onto which it’s leaking, there is not a great public harm occurring here. Under the threshold test, the leaking red honey is not absolutely a nuisance. However, in some ways, the leaking red syrup is infringing on property right of A, to her bees and honey, which is a nuisance to A. However, all of the harm is occurring on F’s property, on Whiteacre. Perhaps A has some responsibility in the matter and the most control over the situation. She could be the cheapest cost avoider, since setting up nets could be a much cheaper alternative to fixing expensive piping that is really not bothering anyone else besides A (not even F who is losing syrup because of the leaks). However, putting up nets may harm A’s business even more, since the bees probably benefit from pollen from other orchards and freedom to move where they please. However, by allowing the bees to roam free, A is taking the risk that they may become affected by outside influences. Whiteacre is two miles away, which is enough of a distance that A should be able to control the bees from going that far. Also, F is afraid of the bees, perhaps allowing the bees to invade F’s property is a nuisance to F that could be avoided if A would just take certain measures to contain her bees.

The court should also balance the economic impact on both A and F. It may not be fair to force F to fix his pipes, because he may be paying more to do just that then A is even losing in the red dye being in her honey (of course with the fact that A may lose the income that will support her in her retirement concerns the honey, to A the economic impacts appears very large). However, F employs 75 people, all of whom will be greatly impacted if the factory loses money, some may even


have to have their jobs terminated to make up for the economic impact of fixing the pipes, whereas A only employs herself and one to two other people who are only part-time.

Overall, A’s bees on F’s property may be a nuisance in itself and A is most likely the cheap-est cost avoider in the situation to remedy the problem of the bees and the red dye. For these rea-sons, the courts should most likely not impose harsh fines or injunctions on F and require A to find a way to keep the bees in a more reasonable proximity to Greenacre.


First Sample Answer

To determine which one of C, B, or Y owns SeaAcre, we must first identify the different property interests created by O’s will. A is given a life estate, since the will specifies “for life”. The first of A’s children to graduate from law school has a contingent remainder in fee simple, with the condition being that they graduate from law school (the ambiguity of which is discussed later). B gets whatever other property interest O had at his death, including a reversion for SeaAcre if A does not have a child who graduates from law school.

The contingent remainder to the first of A’s children must be analyzed to see whether it sat-isfies the Rule Against Perpetuities (RAP). The RAP applies to contingent remainders and execu-tory interests, and states that the future interest is extinguished unless it vests within 21 years of the death of any party alive at the time of the grant. The purpose behind the RAP is to prevent dead hand control of property by the prior, granting owners; this is in line with the courts’ dislike of any unreasonable restraints on the alienation of property. Since we are dealing with a contingent re-mainder here, we first analyze if the future interest would be valid if Cania had a Doctrine of De-structibility of Contingent Remainders. Under the DDCR, a contingent remainder will be extin-guished unless it is sure to vest during the lifetime of the previous interest-holder. Here, the future interest is valid under the DDCR because we will know one way or another who the first of A’s children to graduate law school will be by the time that A dies.

If Cania does not have a DDCR, we employ the “what can happen” approach to determine whether there is any scenario in which the interest can vest long after the death of any party alive at the time of the grant, plus 21 years. Here, there exists such a scenario, so there is no measuring life, and the future interest is invalid under the RAP. The scenario is that A could have a child near the end of her life, who could foreseeably become the first of her children to graduate from law school, 30 or 40 years after her death. Even though A’s child, C, graduated from law school four years after the grant, it still violates the RAP, because looked at from the time of the grant, there was no guar-antee that C would graduate from law school, and the possibility is there that C could have had a future sibling that graduated from law school long after every party alive at the time of the grant had died, including C herself. C may still be able to claim her contingent remainder if Cania has implemented any of the reforms to the RAP, such as the “wait and see” approach. Under this ap-proach, the court could have set a time limit to see whether the future interest would vest within it. Since C did graduate from law school a mere four years after the grant, it is likely that her interest would be valid under this approach. another reform is where the court rewrites the part of the grant which violates the RAP, making the grant valid. An example here would have been to rewrite the will to say “the first of A’s children to graduate from law school during the life of A”.

If the contingent remainder in the will is found to be not valid because Cania does not have a I)DCR or any RAP reform, then SeaAcre belongs to B. This is because C’s interest would be ruled invalid, so this would invalidate Y’S interest, who bought it from X, who got it fron1 C.


B would get SeaAcre due to her reversion interest from the will. If we assume that C’s contingent remainder is valid under the RAP, there is another problem

with it. Although the will stated that the first of A’s children to “graduate” from law school could claim their interest, it can be argued that O intended the interest to vest only when the first of A’s children became a lawyer. The intent of O can be determined through his statement in the will that “I’ve always wanted one of my grandchildren to become a lawyer”. Since C never could pass the bar, and therefore never became a lawyer, if a court looked to O’s intent behind the will instead of just the strict language, C will probably not be able to claim her interest in SeaAcre. Under this sce-nario, SeaAcre would also got to B, since if C never had an interest in the first place, Y could not have one either.

Besides the previous reasons why C’s interest in SeaAcre may be doubtful, assuming that C did have a valid interest, the conveyance to X provides some provides some problems. Under common law, a deed acquired through fraud is voidable, whereas a deed acquired through forgery is always considered void. This means that a bona fide purchaser may be able to assert a valid deed against the original owner, even if that deed was acquired through fraud. The rationale behind this rule is that the original owner is in a much better position to prevent be defrauded as opposed to be-ing a victim of forgery. This follows the court’s continuing adherence to the “cheapest cost avoider” analysis: the original owner can more cheaply avoid a fraudulent deed than the bona fide purchaser who purchases it. Here, the court could characterize C’s conveyance to X as either fraud or forgery. The part where X convinces C to draw up a legal document conveying all her interest as a test of her legal knowledge seems like fraud. But, when X later traces over C’s signature to make it more legible, can be construed as forgery. If the court considers this forgery, then the conveyance is void, as is the conveyance from X to Y. Therefore, y would have no interest in SeaAcre. If the court de-termines that this is fraud, then Y’s interest may stand, as long as she had no knowledge, or did not participate in, the fraud. Under this scenario, C would no longer have any interest in SeaAcre.

After deciding who owns SeaAcre, the next issue is whether they have to let the kids cross the property to get to the beach. Easements can be affirmative or negative. here the easement is af-firmative, since it is allowing the owner of Greenacre to do something on someone else’s property (SeaAcre). Easements are also appurtenant (run with the land, creating a dominant and servient es-tate), or “in gross” (specific to one person). The easement here seems to be appurtenant, since the language creating it specifies that the grant of the easement is to the owner of Greenacre “and its heirs, successors, or assigns”. This language likely creates an affirmative easement to run with the land.

If it is determined that either C or B owns SeaAcre, the main issue determining whether they have to let the kids cross is the intent of O when he granted the easement. When O created the easement to the owner of Greenacre, it was owned by KNC, a non-profit benefitting urban schools and city kids. O specifically stated that he granted the will to relieve the “nature deficit disorder” which he thought “city kids” suffered from. Therefore, it seems likely that O did not intend for the easement to be used by the private school kids of BES, who are mostly not from the city, and who therefore do not likely suffer from nature deficit disorder. C and B will argue that O did not intend for the easement to be used by anybody else other than city kids. They will argue that there is a clear difference between the city kids of KNC, who were intended to derive the benefit of the ease-ment, and the private school, largely non-urban, students of BES who are currently trying to use the easement. Also, they will argue that it is clear why there is a difference, as only city kids suffer from nature deficit disorder, the original reason the easement was granted. Lastly, B or C will argue that the use of the easement has also changed because a lot more kids are now using it, and O did not intend for such large groups to use it because a lot high density use of the easement will impair


the enjoyment of SeaAcre as a beautiful, natural property. Therefore, C or B will argue the ease-ment is currently not being used for its intended purpose or by its intended parties, so they should not have to let the kids from BES cross SeaAcre.

On the other hand, SeaAcre will say that the courts must take into account all “reasonable uses” for the easement at the time of its grant, not just the strict language it was granted under. Un-der that interpretation, it is reasonable to allow non-urban, private school kids access to the ease-ment in the same way that city kids were allowed access earlier. BES will also argue that non-urban kids can also suffer from nature deficit disorder, and are not significantly different in their use of the easement than the city kids are. Also, it was reasonable for O to think that the easement may be one day used by BES, since they owned the land adjacent to Greenacre, and Greenacre was unde-veloped at the time of the grant. In addition, BES will argue that if O really intended that the ease-ment only be used by KNC’s city kids, the easement would have been granted in gross to K.NC, rather than appurtenant, to run with the land.

If it is determined that Y owns SeaAcre, Y can argue the same reasons as B or C above for not allowing access to the easement. In addition, Y has another argument of her own relating to the late recording of the will. Under Cania Statute § 1, the will would not be valid against anybody, with some exceptions stated. next, unless it is recorded in the registry of deeds and wills. The ex-ceptions are that an unrecorded deed would be valid against the grantor (O), his heirs or devisees (A and C), and persons having actual notice of the will. Y will argue that the will was not recorded un-til Sept. 16, a day after she purchased SeaAcre, so therefore she could not have had any notice of its existence, and it cannot be enforced against her. She will argue that, because the will was recorded after she bought the property, she would not have noticed the grant of the easement when doing a title search in the grantor/grantee index. Also, Y is not an heir or devisee of O, nor did she have ac-tual notice of the will, so she does not fall into the exception class where the will can be enforced even if it is unrecorded. Since she had no notice of the easement when she purchased the property, Y will argue that it cannot be enforced against her and she does not have to let the kids cross.

BES will argue that even though it was not recorded, y had inquiry notice of the easement. First, she noticed the kids walking across the lot when she was first shown SeaAcre. Second, she paid a much lower price than what her friend told her it was probably worth, most likely due to the burden of the easement. Y did not thoroughly inquire as to the reasons for either the reduced price or the kids walking across the property, and BES will argue that she should have. They will argue that these facts put her on inquiry notice about the easement, and that is why it should be enforced. Y’ s response to this may be that the Cania statute calls for actual notice, and inquiry notice is not actual. I do not think the courts will see this argument as valid, because if “actual notice” only means actual, then the court will be rewarding people for not asking thorough questions, being dili-gent about their purchase, and will instead incentivize ignorance by the purchaser. In conclusion, I think that B should be determined the owner to SeaAcre, and that the easement should be enforced on the property. The court has traditionally liked to honor the intent of the gran-tor, and I think this is right because it is a way of honoring the free choice that we have when it comes to what happens to our property rights. Here, I do not think it was the intent of O for C to get it even if she never became a lawyer. This would abolish CIS interest, and Y’s interest as well. In addition, I believe that the easement should be enforced because I see no clear reason for why the easement should only benefit certain kids and not others. It was reasonable for BES to purchase the land, and reasonable for more kids to use over time. I think the court should again honor O’s origi-nal intent to foster a love of nature in children, and not bar access to kids because of strict adher-ence to the language of the will.



Who owns SeaAcre? In order to ascertain who owns SeaAcre, a number of factors must be taken into account.

First, it must be determined what interests were passed to whom by the will (if any) and whether those interests would be valid in light of the laws, doctrines and policies which Cania mayor may not recognize.

Oliver's will, if recognized in light of recording requirements, would have passed a life es-tate to A, with a contingent remainder in the first A’s children to graduate from law school. This remainder was contingent, of course, upon that child graduating from law school. First it must be determined if Cania recognizes the doctrine of destructibility of contingent remainders. If so, the court will look to see if the remainder has vested at the end of the proceeding life estate (A’s). If so, the contingent remainder will be valid. If not, it will be destroyed.

At this point it is critical to see if the remainder would have been vested at the end of the life estate and what the requirement would be for same. The wording of Q’s will, strictly interpreted, reads “to the first of Ana’s children to graduate from law school”. Looking at this plain language, Charlene did graduate from law school in 2004 and if strictly interpreted this would allow the re-mainder to vest in her, terminating Ana’s life estate.

However, courts often attempt to give force to the true intent of the grantor. Because Q ex-pressly said “he always wanted one of my grand children to become a lawyer”, it appears evident that he intended the interest to vest when the child actually became a lawyer, but unfortunately may not have understood the difference between graduating from law school and passing a bar exam, or he may have thought it was implicit. Looking at the intent of the grantor is sound public policy in my opinion, because I do not believe someone should be punished for their failure to understand technicalities when the true intent could not have been more obvious. If the court reads the wording of the will strictly and believes that the only requirement was that the child “graduate”, then the in-terest will have vested in Charlene in 2004, thus terminating A’s life estate. This interest would be valid and nothing would need to be destroyed. Charlene owns SeaAcre in this scenario. However, if the court reads the true intention of the grantor, nothing had vested as far as the fact pattern tells us in any of A’s children, as none of them had become lawyers. When Ana died in 2010, the remainder would have been destroyed. When the life estate ended, O was holding a reversion interest (al-though he is dead) which would have passed to Beatrice in the will by leaving her “everything else”. Beatrice would own Sea Acre.

Regardless of whether the court observes the DDCR, it may or may not have a rule against perpetuities in place. If the RAP is in place/observed, it will be necessary to look at the interests and determine if at the time they were created (Oliver’s death), the contingent interest was certain to vest (or not vest) within the life of someone alive at the time of the grant or within 21 years thereaf-ter.

Looking at the grant, if the DDCR was in place, it would have destroyed the CR and all that would be left is the life estate. Because the life estate is sure to end within A’s life, this would not violate the RAP and the grant would thus be valid.

However the more complex scenario is if there is no DDCR. If this is the situation, we must look to see not what will happen but rather what MIGHT happen. The rule will be invalid because there is a possible course of events that could stretch the vesting out past life+ 21. Because the class of A’s children remains open, we would have to use A as the measuring life. Here is what could happen: A could have a child in 2001 (Lucky). All of A’s other children could get swallowed by a whale while swimming outside of Sea Acre. Lucky could decide to take a few years off after under-


graduate studies and return to law school when he is 30. He could then go graduate from law school and pass the bar when he is 33. This is certainly longer than Ana’s life plus 21 years. Thus the grant would be invalid under the RAP.

It is important to note that instead of invalidating the interest, the court could do one of sev-eral things. First, it could take a “lets wait and see approach” and wait to see if one of the children actual graduates from law school (or becomes a lawyer depending on interpretation). If it happens within life of Ana+ 21 years it will be valid and that child will get SeaAcre. If not it will be de-stroyed and the court may allow the entire estate to revert to Beatrice.

The court could also take the uniform approach in place in some jurisdictions and allow a 90 year waiting period. Finally, the court could decide to use a Cy Pres approach and rewrite the grant to be valid under the RAP while still respecting the true interests of the grantor.

Recording: In Cania, the plain language of the statute reads that no conveyance shall be valid unless re-

corded, with limited exceptions. This is essentially a race statute, in that it seems that the first to record will “win”. So now its important to determine what would happen: The will was not re-corded by Ana until September 16, 2010. The state probably doesn’t want people sleeping on con-veyances and not recording them because it would be difficult to ascertained who owned what at a given time and thus would make it difficult to convey real estate, leading to a depressed market and little confidence by buyers.

However, even though she took her time, Ana is still the first to record. The problem is, she recorded after Yolanda purchased the property, and because she was a BFP, this would work an in-justice upon her if Ana’s recording meant that Yolanda’s conveyance was invalid. It is unclear how the court would handle this situation, but it seems completely unjust to be able to record after some-body else things they had bought the land and an individual had slept on the conveyance for 10 years.

Because Yolanda refuses to record whatever deed she did receive, she will thus not be able to enforce it against anyone.

Fraud/Forgery: The other imbedded issue here is that assuming that the interest had vested in Charlene

(meaning the DDCR had allowed the interest to vest in her at the termination of A’s life es-tate(because graduating was enough) and there was no RAP in place, it must be ascertained if the deed obtained by Xavier was forgery or fraud. Looking it this from a fairness perspective, I believe this should be understood as fraud. Charlene was silly enough to draw up a quit claim deed (which wouldn’t contain any warranties but rather just quits claim to whatever interest she may have had), it should not play into her favor that the pen ran out of ink as she signed her name. She was clearly the” cheapest cost avoider” in this case as it would have been much simpler for her to catch on to the scam and not fill out this ridiculous conveyance than it would have been for Yolanda to go back and investigate same thoroughly.

The difference is this: if the court decides it was obtained through fraud, the deed will be voidable only against Xavier. In other words it will be too late Charlene to do anything about it by the time it gets to Yolanda. However, if obtained by forgery, Ana would most likely get lucky be-cause a deed obtained by forgery is generally voidable against everyone, including BFP’s. Even though Yolanda got a steep discount on the lot, we only have the words of her friend, people get bargains all the time and 300k is certainly valuable consideration. At this point, for simplification, I shall assume that a DDCR allowed the interest to vest in Charlene, that her graduating was enough, and that the deed was obtained through fraud rather than forgery and is thus not voidable against Yolanda.


However, because Yolanda’s deed has not been recorded at all, the court may have a strong policy in favor of punishing this behavior and say that her deed is unenforceable against anyone, in which case it seems likely that Charlene would be the luckiest idiot in the world and still own Sea-Acre.

Does owner have to let the kids cross Sea-Acre to get to the beach? F or an easement to be valid, it must generally be in writing (signed by the grantor )and in-

tended to run with the land. Clearly in this case, the easement was appurtenant (meaning that it was granted to whoever owned Greenacre) and the plain wording lets you know that it was intended to be transferable to heir, successors, and assigns.

If Charlene owns it: Next, it is important to determine whether or not Charlene/or any sub-sequent owner had notice of the easement. Because the will containing the easement probably should have given C notice, she should probably, for fairness, be deemed to have notice. Also be-cause even the recording statute says the will would be valid against “heirs and devisees and per-sons having actual notice” I believe Charlene should be deemed to have notice. If Yolanda owns it: Even if Yolanda owns the lot, she should be deen1ed to have inquiry notice because she saw the children crossing the lot and this probably should have at least given her the inclination to go across the street and ask why. However, because nothing was recorded and it is not all that uncommon to see children crossing a street to go to the beach, the court may rule that she didn’t have any notice, actual or constructive and thus may not have to honor the easement.

Even assuming notice is established, there are two more concerns, the first of which is inten-sity in nature of the use:

Because the fact pattern lets us know that Oliver was concerned about the city children and the disorders they may suffer as a result of a disconnect from nature, it seems clear that he granted the easement for the benefit of the city kids, and probably envisioned the school remaining at its current size and thus counted on the size staying the same and thus the amount of trips across his lot being fairly steady. IT is also important to note that the KNC was a field trip spot, thus it was most likely not used every day, or even every week.

Once BES acquired KNC, both the nature of the use and the intensity of the use are destined to change. First, the people crossing the lot will no longer be just city children that are presumably under privileged, but also the bratty private school children enrolled at BES who will now be trying to cross the lot with their I-Phones and Abercrombie popped collar shirts. Additionally, there will be many more of them and more importantly, they will be using it a lot more since the BES children are there full time. While easements are supposed to accommodate changing circumstances as a re-sult of changing times, this is a completely unnatural change.

On these facts alone I would say that the easement probably doesn’t have to be honored, but there is an even greater factor weighing in favor of the owner of Sea-Acre:

When an easement is granted to the owner of a lot, it is intended to be used for the benefit of that lot only and specifically not other lots, even adjacent lots, even if under the same ownership as the dominant lot. Some courts however depart from this traditional rule, as was demonstrated in Brown v. Voss. The case before us is distinguishable though in that in Brown, the owner of the dominant lot had simply moved the house onto a boundary and had not added anything or anyone more to it. Thus the intensity, nature, and frequency of the use/burden on the servient lot did not change and the court allowed the use of the easement by the dominant estate holder, even though it had now essentially been combined with an adjacent estate.

Here however, that is not the case, the nature, frequency and intensity of the use are all go-ing to change dramatically and thus I believe that the owner of Sea-Acre can make a strong argu-


ment that the easement should either be eliminated (because of no notice in Yolanda’s Case) or re-stricted to the use just the K.NC grounds for just the inner city kids. Clearly, there are major public policy issues at play regarding each of the above issues and I believe the courts should always settle by looking at the true intent of the parties to the grant whenever it is readily ascertainable.



First Sample Answer

I agree with portions of this statement and disagree with others. It is stated that “property law is about how people define themselves and their relations to others.” Property is not an abso-lute concept, it is relative and this means that it is relative to other people and time. When two people seek to unite in marriage, they are declaring to the world that they have joined in a single union and constitute a single legal union under the law. The concept of a tenancy by the entirety supports this notion. It allows the married couple to hold their property as single legal union and allows for the protections of their interests. In Elkus v. Elkus, the court interpreted the relation of a famous spouse to the efforts her husband put into her career and determined that he was enti-tled to a share. Property law governed and defined the relationship the two were deemed to have had in regards to division of her career earnings. In Jacques v. Steenberg, owners were awarded nominal and punitive damages after a mobile home was moved across their property without permission. The Jacques attempted to isolate their relation to the moving company and to ex-clude them from their land and when their wish was ignored, property law placed exclusionary rights as essential stick in the bundle of rights. Property law does, of course, concern itself with the ownership, transfer, or use of property. The concept of adverse possession illustrates all of these. It questions ownership of owners who have slept on their rights. It also protects a Lockean theory of labor mixing with the land in that it rewards adverse possessors for good use of the land under the earning theory. AP claims allow for the transfer of land if the AP elements are met. Nuisance theory concerns itself with the use of property, stating that one owner may not use its property to the offense of another. Title relativity deduces ownership of property by individu-als that may not even hold clear title to the land.

However, the concept of the body as property, as interpreted by the courts, is contradic-tory to this statement. In the Moore case, the court held that cells removed from the body are not property. Any average person with no legal background would likely disagree with this state-ment and would believe that they do indeed own their body and its products once removed. A cell of their body would be defined as under their ownership, but the courts have disagreed. Courts have also held that a Masters degree is not marital property, although the spouse provided the means for the husband to achieve that degree. In defining her relation to her ex-husband, Mrs. Graham clearly would have liked her relation defined as contributory so that she would be entitled to proceeds from the Master’s degree and not merely alimony in In re Marriage of Gra-ham.

The excerpt also states that “there’s such an emphasis on giving clear notice--it helps people understand each others’ intentions and plans.” I agree that property law does place a large emphasis on notice. The elements of adverse possession include that the AP be adverse and hos-tile and open and notorious. These elements are required to give proper notice to the actual title holder. It would be unfair to deprive them of their land if they had no notice at all. If the adverse possessor makes use of the land that provides notice, including using it at the same time a rea-sonable owner would or by making improvements to the land, then the owner will have an un-derstanding that the adverse possessor intends to procure the land. Zoning regulations also pro-vide notice to individuals of collective determinations of social policy. By channeling desires for social policy, such as benefitting the public health and safety, individuals are given notice as to the desires of the community. They are given notice that they must conform with the use and if they are exercising a non-conforming use, that they will be phased out within a reasonable time


or allowed to continue as a per-se rule depending on the jurisdiction. The collective will of the people can be seen through zoning since it is enacted by elected officials through enabling stat-utes. Jurisdictions imposing a duty to disclose upon sellers require that they provide clear notice of a material defect that is not readily observable upon inspection. This stipulates that the seller or builder provide notice of defect to a subsequent purchaser because they are the cheapest cost avoider. It also does help each party to “understand” the other’s “intentions and plans.” It helps provide equal bargaining power for each party and promotes open communication between both buyer and seller. Courts have invalidated “Mother Hubbard” in deed conveyances because they do not give adequate notice to subsequent purchasers. When a deed conveys “O to X, and any other land I own in Dade county to B,” such a blanket conveyance could be missed by a subse-quent bona fide purchaser because he would have no notice of the conveyance. However, this contradicts the latter portion of the statement that notice helps parties understand intentions. In the illustration above, O fully intended for X to receive all of O’s property. The court will likely ignore this blanket intention to protect the right of a subsequent purchaser without notice, de-pending upon the state’s recording statute.

There are times when property law does not place an emphasis on giving clear notice at all. For instance, in jurisdictions that provide race statutes, it does not matter that a subsequent bona fide purchaser had no notice of a prior conveyance or that a person who had the first con-veyance had notice that someone else received it. It only matters who records first and inquiries into notice will not be entertained. Additionally, in jurisdictions that practice Caveat Emptor, subsequent purchasers may actually be deprived of notice concerning a defect in the house they are going to purchase if they don’t exercise prudence and conduct a thorough examination of the property. If a seller knows there is a problem and does not say anything about it at all and the buyer fails to inspect the premises, then he can’t hold the buyer liable for not giving notice. New York courts have created an exception to this in that the seller must actually give notice for a de-fect that he created and that is not discoverable upon inspection.

The third portion of the statement provides that “in practice, property law’s wide domain allows the courts to end up deciding basic issues of social policy, a function that is properly the role of the legislature.” Courts do, to some degree, determine social policy. For instance, in State v. Shack, the court limited an owner’s right of exclusion for entrance of health and legal workers to access migrant farm workers as a matter of social policy. The court held that an owner should not be allowed to limit access to these individuals for the material health and welfare of such an underprivileged class as migrant farm workers. As evidenced by the FL statute, legislatures did indeed respond to this question by enacting statutes concerning exclusionary rights of farm own-ers that employ migrant workers. Perhaps the legislature, as the collective expression of the peo-ples’ will, is entitled to determine this issue better than the courts may. The courts’ traditional role is one of interpretation and the legislature has more tools to employ that a court may not. They are able to call expert testimony, to provide expenditures for further research, to modify the bill at any time, etc. However, the Court in Shack was interpreting an area where the legislature had remained silent. If the legislature has failed to act, the court may actually be deciding social policy, but it does so to protect the interests of citizens.

On the contrary, in Moore v. Regents, the court actually deferred to the legislature’s judgment and noted that interpretations of whether removed body parts are property are essen-tially a legislative function because of overwhelming policy considerations. The court looked to current legislation from California for guidance on current social policy. In Home Building Assn. v. Blaisdell, the court found that an extension of an emergency payment provision allowing pur-chasers additional time for mortgage payments during the Great Depression did not violate the


contract clause of the Constitution. Although the bank and the mortgagee had agreed upon a specified time frame for payment through the mortgage, the fact that a state modified this and allowed for additional payment due to an emergency was allowed. The court was not deciding social policy in this instance. Rather, the legislature had already determined it. The legislature saw a need for the extensions due to the exceptional emergency circumstances imposed by the Great Depression and the court merely interpreted that action as being constitutionally condu-cive. Also, in the eminent domain case Kelo v. New London, the court noted an assumption of legislative validity and exercised a very deferential view of the legislature’s desire. Since the leg-islature is closest to the people through election, clearly the court was not deciding basic social policy here.


Defining Self and Relations to Others/ Ownership, Transfer and Use

I agree with the statement that property law is as much about how “people define themselves and their relations to others as it is about the ownership, transfer, or use of property.” This state-ment is clear regarding tenancy by the entireties, degrees as marital property, the body as prop-erty, adverse possession, and zoning.

Having a tenancy by the entirety is a way people define their relationships as a unity that should not be split up, sold to others, or subject to faults of one that the other of which the other is not aware or did not participate (see Sawada, attempting to go after husband’s part of the ten-ancy because of debt, but cannot since wife was not a part of the husband’s debt). This unity is about how people define family and marriage just as much as it is about owning the property and protecting the property under the law.

Also in relation to marriage, property law wants to define what can be divided up if there is ever a divorce. But on the other side of that consideration, the degree is also how the people de-fine themselves as a couple (see Elkus, where the husband gives up his career to coach his now famous wife).

The reason parts of the body cannot be considered a commodity is rooted just as strongly in wanting the best use for the property (research, as with cells from a man’s spleen) as it is in peo-ple not wanting to seen as a good that can be purchased and bargained over. Property law is there to promote the best use of the “property” of the body as it is to secure a more elevated view of human life as more than just “property.”

Property law concerning adverse possession is rooted just as strongly in the want for cer-tainty in who owns the land as it is in the reliance interest a person has in what they see as their home. A person wants to define themselves as secure in their person and possessions, and the law wants to know who owns what for more efficient records and uses of land.

Finally, zoning, especially in cases regarding aesthetic zoning, is a way people protect how they want to express themselves through the places they live. Not only does zoning concern use of property, as with regulating areas for industry, commercial, and residential (see Euclid), but it also fosters a sense of community and expression (as in a neighborhood that wants to promote couples living together, married or not, but not fraternity brothers or other situations with multi-ple unrelated people). Giving Clear Notice, Helping Understand Intentions and Plans

I also agree with the second statement that giving clear notice will help people understand each others’ intentions and plans. As with the Sawadas, the creditors seeking to get husband’s


debt are put on notice that the intention is for the property not to be divided up because the ten-ancy is in the entirety.

By making a license or degree indivisible as marital property in most states, this will put hus-band and wife on notice that they should have reasonable expectations about what they will re-ceive if there is ever a divorce. This notice will help the spouse better plan how they want to sup-port the other spouse throughout their marriage. Concerning the body as property, if it is illegal to sell one’s own body parts, it will put people on notice that they should not expect to be able to sell body parts (as in case where corneas were stolen and sold, but were property to the hospital for research purposes). The plan behind this is to promote research and protect the body from being seen as a commodity.

Adverse possession is all about notice. When possessing the property, the adverse possessor (AP) must be aware if they are being open and notorious and putting a reasonable title holder on notice. Their open and notorious possession gives the title holder full awareness of the AP’s in-tentions and plans.

Finally, when a zoning ordinance describes or limits the types of property that can be present in a certain area, that is immediately notice of the intention and plans for that particular property. If the zoning ordinance does not allow strange houses to be built or stores that sell unmention-ables, the person will be on actual notice by the ordinance itself or on inquiry notice from ob-serving the other houses or properties around theirs. Problem: Courts Deciding Social Policy When Role Belongs to Legislature

I somewhat agree to the final statement. In regards to courts deferring to the legislature, the legislature is the best branch of the government to understand the local needs of people. The leg-islature is also an elected body, and therefore it gets its powers directly from the people, unlike the courts where justices are appointed.

However, there are many positives to the courts power to decide basic issues of social policy. First of all, the legislature enacts statutes and laws that are usually broad in scope, so that the courts may decide on an individual case-by-case basis how the law applies to particular circum-stances. This is not to say that the justices have the expertise needed to decide every case that the legislature could have prevented by being more specific; it is more to say that are advantages to not having the laws and statutes be rigid and narrow.

The largest advantage of these is protection where the laws of the land do not give such pro-tection. Although this was in many ways a larger concern during the Civil Rights Movement, there will still be situations where the law will not enforce someone’s rights, but that person can find refuge in the courts. A case example of this from the casebook regards zoning. In Shelley v. Kraemer, the person attempted to eliminate the possibility that African Americans could come into possession of the land. If courts were not there to find the unconstitutionality in this, the laws may not have caught or prevented that discrimination from happening.

For those reasons, I do agree with deference to local legislature, but I see benefits in al-lowing the courts to decide some issues of social policy.


First Sample Answer


While the goal of most laws, and the judiciary’s attempt to enforce those laws, may be to promote the best and most productive use of property, sometimes the common law or the judges administering that law fail to do so.

First and foremost, I agree that, in general, the law seeks to promote the most productive use of the property. This is evident in so many of the common law traditions. Looking simply to the law governing waste, I believe it’s clear that judges aim to protect future interests in the property. While the owner/possessor at the time might have a right to enjoy the property, there are future interests in another party for the court to protect. The court is looking to protect the best uses of the property by protecting the future interest of that land. The waste laws protect against destruction of the value of the property. The best use of the land is not to waste its future potential. For example, when a property has a commercial building and the current possessor wants to use the property for farming, there would be waste created by the tearing down of the building in exchange for a soy bean farm. However, because there is a future interest lingering in another person, the court can protect against the tearing down of the building. Allowing such an action would be wasteful. One might also think about zoning as a means to achieve the most valuable, efficient and productive use of property. While the courts give great deference to local legislatures about the ability of Euclidean zoning to achieve goals, there is also some oversight. The court will look to see if the zoning is rationally related to the promotion of the health, safety and general welfare of the community. While it might not judge the efficacy/how much it will benefit the community, there is still a role for the judiciary to play in exercising digression when they find zoning ordinances that are not rational. In this way, the courts can weed out ineffective and inefficient uses of property. Another example is the court’s use of adverse possession. When a piece of property is not efficiently used by the real owner, the courts will allow another posses-sor to come onto that property and take it as their own. By” sleeping on their rights,” the previ-ous owner has made inefficient use of the property. The courts, in an attempt to benefit a cultiva-tor and surrounding properties, allow for the use of adverse possession. It is clear to me that the policy goals of the courts are to promote the most productive use of property, however, some-times the courts fall short of those goals.

One way in which the judiciary falls short of making the most productive use of the prop-erty is through landlord/tenant law. Specifically, through assignment and sublease, the common law provides some tools for both the landlord and tenant to achieve their goals of getting paid and having housing. However, when looking to the most efficient uses of the property, the courts fail to address certain problems. For example, in a commercial context, a lessor cannot restrain a lessee from assigning or subletting the premises for commercially unreasonable standards. This protection is great for lessees because it allows them access to potential sublettors/assignees. However, in a residential context, a landlord may “unreasonably” deny an assignee or sublettor and do so without cause. The most efficient use of the property would be to allow the tenant to find a sublettor to take over his rights and responsibilities. However, the right to deny this effi-cient use of property still exists in residential landlords. If the courts were to extend the “com-mercially unreasonable” standard to residential leases, it would be a much more efficient alloca-tion of property uses. In addition, from a residential prospective, in many states, including the Sunshine State, the L does not have the” duty to mitigate damages.” This means that if a Tenant abandons the property without the Landlord taking possession, he/she is still on the hook for the remainder of the rent. Instead of having an individual filling the empty property and paying the rent in mitigation, the Landlord can rest, doing nothing, knowing that he/she can get paid without doing anything to benefit the property. This is inarguably an inefficient use of the property even if there is an excess of housing and a glut of demand. Even in a poor economy for those who rent


residences, if they decrease their rent they will be able to find a tenant who will at least mitigate some of the damages. An efficient use would be a tenant to every open residence, but this rule against the “duty to mitigate” creates an inefficient use of rentable residencies.

I also disagree that a court’s initial reaction to any assertion or defense of property rights is always whether the person claiming the right is acting reasonably. In many cases, especially in nuisance cases, the court is evaluating a wholly different subject matter. Take, for example, the nuisance case involving a steel mill surrounded by a residential area. The mill was causing vibra-tions, loud noises, smoke and soot, and destroying the peace and quiet enjoyment of the sur-rounding residential property. When the residents of the town brought suit, they were clearly act-ing reasonably in trying to protect their property rights.

This was not the issue to the court. The issue was whether the individual’s property rights could somehow be aligned with the steel mill’s utility of use. Especially in this case, it can be argued that both the steel mill and the residents were acting reasonably to protect their property. Instead, the court had to address the utility of the uses. The court administered a balancing stan-dard of the utility of the use of the steel mill vs. the gravity of the harm caused by the same. The court determined that they could not grant injunctive relief to stop the mill from continuing its work because it provided jobs, created products, stimulated the local economy as well as a num-ber of other uses. In this way, similar to the arguments provided above, the mill was providing a productive use of the property. By comparison, the harms caused to the homes were negligible in comparison to the benefits bequeathed by the mill. Instead of allowing an injunction against the production in steel which would ultimately cost hundreds of millions of dollars to both the com-pany and the town, the court ordered the company to pay the nearby residents for the devaluation of the property. In essence, the company was making up for the lost value it caused and created an equilibrium. Whatever harm was caused by the mill was paid back and the value of the steel mill remained intact.

Another case is State v. Shack where Tedesco tried to argue that his property right to ex-clude visitors were being violated by the state. Undoubtedly, Tedesco was reasonably worried about visitors coming onto his property. Again, the court did not address this fact. Instead, the court weighed the right to exclude and the necessity of the state to allow medical and legal care to be given to migrant workers. The court eventually decided that the needs of the migrant work-ers overcame that right of Tedesco to disallow anyone from coming onto the property. This, again, goes to the arguments articulated above that the most efficient use of the property was be-ing protected by the courts. In this scenario, efficiency dictates that the rights of the migrant workers are being protected, not at ends with property rights, but in harmony.. The law eventu-ally provided for additional protections of the property rights by providing time and place re-strictions on who could visit the workers and when. This protected the farm-owner’s ability to get work accomplished without having visitors interrupt that work and it protected the worker’s ability to get medical care and treatment For these reasons, I disagree that the primary reaction by the courts to defense of property rights is always whether the person claiming the right is act-ing reasonable.

Finally, I disagree wholly with the last sentences. I disagree that the law never goes so far as to take a property right away from one private individual and give it to another just because that would improve the overall efficiency of use even with compensation. I disagree both as a matter of fact and of policy. While some might argue that Adverse Possession is a means by which courts can take property from one and give it to another, in some cases the courts require payment. I would also argue that if someone is “sleeping on their” property rights, this is effec-


tively not their property right. It is not a right of property to all real estate to go unkept and ad-versely affect the property values of those surround it. It is wasteful.

In addition, as the Kelo v. City New London demonstrates, it is not only possible that a government will take private property and give it to another with just compensation. In this case, Suzette Kelo’s property, a single-family residence, was taken from her not because it was blighted or run-down or inefficient. Instead, it was taken to bestow a public benefit for the city of New London. Indeed, it was taken with just compensation. Was this wrong? While there is some argument to be made that this type of taking of private property doesn’t feel right, the aims of the legislation to provide a public benefit overcome that. Kelo was paid a reasonable, fair-market sum for her home and in return, the city was going to provide a brand new downtown shopping area that would better the city. With the compensation, Kelo could purchase a similar home in a similar area. And, instead of a blighted downtown district, the plan called for commercial prop-erties, residencies and other uses that would benefit the tax base and bring New London out of its recession. To make the use of the property more efficient, it required the government to take ac-tion. If it did not take Ke1o’s property, it could have faced a holdout problem where Kelo waited for far more money than her house would be worth this would create an inefficient use of the property. While the plan required the sacrifice of Kelo’s home, the aims were to make the prop-erty more efficient and productive for society as a whole.

The same could be said for State v. Shack. While Tedesco’s right to exclude people might have been taken, the more productive use for society was to let medical workers (among others) have access to the property. In the steel mill, while the residential owner’s might have had their right to avoid a nuisance taken away, the more effective use for society was to allow the mill to continue to operate given they pay just compensation. In all these ways, the court’s aim to pro-mote the most effective use of property can be successful and might even be necessary. Govern-ment takings and just compensation are simply tools for the government and the courts to use to ensure that the most effective use of the property is satisfied.


I believe this statement can be divided into three parts. The first part is that the law al-ways seeks to promote the most productive use of property. I do not necessarily agree with this statement because it is subjective in that different people could have different views of what is a more productive use of land. This can be seen through a change of circumstances example in a neighborhood, in which a covenant or servitude could be extinguished. This could help to pro-mote a more productive use of land to one and not to another. For example, the covenant requires single story residential homes, but the area has turned into a red light district with whorehouses and dirty video stores. The courts abolish the covenant and allow the landowner to build more whorehouses (lets say its in Nevada). This could be seen as the courts promoting the most pro-ductive use of property because there will be increased tax revenues from these places. However, someone else could see this as a step down, in that residential housing for a family could be seen as the most productive use of a small piece of property.

The Subjectivity could also show its face in Adverse Possession, where the one who up-keeps the use of land is rewarded (given all other requirements are satisfied), while the owner who is sleeping on his rights is punished. This promotes the use of land, but does it promote the most productive use of land? Let’ say that the owner sleeping on his rights had left the piece of properly undeveloped in an urban area where there is no open land for children to play. Can one really say that this is a less productive use of land than putting another Starbucks on the corner.


Yes, it would increase tax revenue, but that can’t be all that’s important to us as citizens in this great country.

The second part of the statement I agree with (Which is why the key .... acting reasona-bly), but it is not entirely true in many situations. For example, the Adverse possessor in Lutz seemed to be acting reasonably and satisfied almost all requirements to get title to the land ex-cept his state of mind. I believe the court in this case did not promote he most productive use of land by looking at whether or not Lutz was reasonable. He admitted that he knew the land wasn’t his so he didn’t deserve title to it. Whereas a person, knowingly trying to steal land would have deserved it. I see no reasonability in that defense.

Lastly, there are the last two sentences, which I completely disagree with. I do wish that this were the case that this would be viewed as wrong in the eyes of the law. However, there are a couple situations that prove this assertion as false.

The first example deals with Eminent Domain. This is the Gov.’s right to take one’s property for public use, with just compensation, in the fifth amendment of the constitution, made applicable to the states by the fourteenth amendment. However, courts have taken this seemingly innocent provision of the constitution and expanded it, unreasonably, to a point where one’s property can be taken and given to another just to improve the overall efficiency of property use. This can be clearly seen in Kelo, where a woman’s home was taken by the city and handed over to a private company to promote the economic use of the land. Not only was a property right taken by the law, but her entire property was taken. The court deemed this as allowable because of their deference to the legislature in the matter. Just because there had been a comprehensive plan and the taking of land ,vas rationally related to the final outcome (increase tax reve-nue/economic development through a more efficient use of property), it was deemed constitu-tional. This must be seen as completely contradicting the final two sentences of that statement.

The second example could invoke nuisance law, where two parties are acting within their legal rights on their own, but in some way, their acts conflict with each other. This has been compared to a pig in a parlor shop. There’s nothing wrong with a pig and nothing wrong with the parlor shop, but when the two are combined, problems arise that the courts have to solve. Hence the creation of nuisance law. Here, one party can be required to pay damages and/or be stopped from doing the problematic action as way of an injunction. The court would usually balance the equities and decide whose actions are heavier and more important( with regards to public utility, the gravity of the harm, the extent of the burden to fix the problem, etc.) Then the court could give the right to one party to continue to do what is in their legal right, while the other party is estopped from continuing there actions. In a sense, the court is taking the property right away from one individual and giving it to another, without just compensation to make things worse.


First Sample Answer

The major assertion in this statement is that courts do not work as well as legislatures be-cause they often “reason backwards.” I think that courts often work better (or certainly no worse) than legislatures. I agree that courts do often reason backwards, but I don’t see this as a giant problem.

To evaluate this assertion, let’s consider the distinction between forgery and fraud in deeds. A forged deed is always void, but a deed obtained through fraud is only voidable. We


have read cases where courts have called something a forgery even though it is clearly a case of fraud (or at least, not a technical instance of forgery). I think it’s clear that these cases are the result of a court reasoning backwards. The court may consider things such as how artful the fraud was, whether the defrauded party had the capacity to understand the fraud, whether calling the deed forged rather than fraudulent will harm other innocent parties, etc. If the court finds the defrauded party relatively blameless, the perpetrator of the fraud particularly despicable, and de-termines that a void deed will not harm other innocent parties, they will declare the fraud a for-gery because that seems to be the 1nost reasonable and just thing to do. One may argue that when judges fail to follow rules precisely as written, it becomes difficult to predict the outcome of legal decisions. This uncertainty is bad for public policy as people won’t know what the law is. But, if the courts do properly explain their reasoning (even if omitting that they reasoned backwards), some degree of predictability can be maintained. One may also argue that courts should simply “follow the law.” I think that argument is silly. Court’s should, within the law, create the best possible outcome for all affected parties. If this requires some artful backward reasoning, or some creative distinction drawing, I don’t see what harm sterns from that.

I do agree that it’s bad when court’s apply “awkward rules” or “apply rules that make no sense.” However, that seems to be more of a problem related to the historical baggage carried by 1nodem courts than it is a problem of courts engaging in backward reasoning. For example, con-sider the horizontal privity requirement of real covenants. If one wishes to collect damages for the violation of a restrictive covenant, one must have a real covenant and not an equitable servi-tude. If there is no horizontal privity between the estates, there is no real covenant and, therefore, no ability to recover damages. (Horizontal privity means that the covenant was included in a conveyance of property). Similarly, I don’t think there is a practical difference between contin-gent remainders and executory interests. However, DDCR will extinguish contingent remainders while leaving executory interests untouched. I agree that these strict, formulaic rules are silly and archaic. With regards to restrictive covenants, I think courts should focus solely on doing justice to the intent of the parties. With regards to future interests, I think that since there is so little ac-tual difference between the different sorts of interests, all future interests should be treated the same.

Notice that neither of these 2 awkward rules stem from “backward reasoning.” However, they do share certain characteristics that explain their awkwardness. Both rules reflect areas of law that the people wanted to change but that judges were reluctant to change. Land owners had struggled to find ways to make restrictive covenants enforceable against future title holders while the courts feared that properties would become overly burdened. Eventually the courts compromised with this awkward system of restrictive covenants. While awkward, it does by and large allow land owners to give expression to their intent. Much the same can be said about fu-ture interests. Land owners had wanted to control the use of their land well into the future but courts were reluctant to allow such long reaching encumbrances. They compromised with the current system of future interests.

Many of these strange rules are simply historical leftovers. They are themselves the prod-uct of courts attempting to reach the most equitable result. While many could and should be dis-carded, I think it’s ok that courts have been slow to change. The important thing is the evolution that has occurred over time, as courts have become less dictatorial and more concerned with eq-uity.

The statement seems to believe that hard and fast rules are always preferable and that leg-islatures are better than courts because legislatures write rules. I think both of these assumptions are false. Strict rules often lead to bad results. In the area of access to migrant farm workers,


would a strict rule that the right to exclude is absolute have been the best outcome? I don’t think so; it would have made the farm owner a lord over the migrant workers. Legislatures often draft rules without fully anticipating every potential case. Turning again to the migrant farm worker issue, consider the following scenario. A statute says that a farm owner cannot restrict the access of “doctors, religious workers, lawyers and govt. employees” to migrant workers that live on their property. Is this meant to exclude nurse practitioners? Probably not. It is often the job of the courts to deal with scenarios that the legislature simply didn’t think through.

Yes, it’s true that courts might not always be engaged in a strict consideration of what the law is. They may often take policy concerns into consideration and then reason backwards to achieve the best outcome. However, I think that this is precisely what courts should do. They should look at the rules in context and act in the best interest of society.


I disagree with the part of the statement so far as it asserts that legislatures handle issues better than courts. I also disagree with the idea that the reasons of courts is backwards. I do agree in part that sometimes the distinctions and rules courts apply make no sense, however having concrete rules and distinctions that are in place allows for a greater sense of predictability than a certain determination of what is right ‘and wrong and also takes a lot of subjectivity out of play in defining rights.

First, I think the issue of access to migrant farms was properly decided by the court in the only case I have read regarding same, Shack. In this case, the law of trespass was clearly defined in a black and white sense, but the justices in this case allowed be to realize something that I was not completely aware of before I read it, the idea that legal rights are not absolute and just be-cause a black and white rule dictates one outcome, does not mean that social policy and concerns will not be overriding. When I first began answering questions in law school, I was far too con-clusory and didn’t pay any consideration to the idea that a rule is not necessarily concrete, but simply the best measure of predictability available. I did not give enough credit to the idea that even when rules are in place, they must flex to accommodate exceptional circumstances and harmony with social policy. In the Shack case I realized that just because there was an absolute right to exclude others from your property, does not mean that you have the right to control the lives of those who are on your property and also harm these third parties in the process.

I believe that the court in the shack case demonstrated that every right has a limit, and the courts can be just as effective as legislatures in determining just where those limits are. I believe the courts are just as competent, if not more competent than a legislature to make rules to help promote a just society. I say this because I believe legislatures tend to be very reactive and often don’t respond to an issue until their hand is “forced”. Legislatures are comprised of elected indi-viduals, who are weary making change. These individuals may have allegiance to parties who’s interest are counter to good public policy, or the elected individuals may just not understand a situation well enough to act upon it.

Courts are forced to make decisions every day. This is because when a case comes before a court, that justice is charged in adjudicating it in a way which comports with societal notions of justice. If courts truly just determined whether or not a fact was present and then reached a con-clusion in light of the rule, Tejeras and his accomplice would have been guilty of trespass, and the law would have implied that migrant workers to not have a right to legal aid or medical care, because the owner of the farms right to exclude others was paramount to the health and welfare of human beings. This outcome simply would have been unjust. Had social policy concerns not


come into play to determine how the issue should come out, predictability and bright line rules may have prevailed to the detriment of justice and human rights.

The idea that courts draw distinctions which make no sense is at times valid, but it seems that as society evolves, arbitrary rules are being abolished all the time and replaced with more sensible, meaningful rules. For example- the rule was probably not always that forged deeds are void and fraudulently obtained deeds are only voidable against the grantee and perhaps someone who is not a BFP. At some point, possibly a legislature but most likely courts began to see a pat-tern of injustice and realized that other considerations, such as notice, ignorance and risk taking were in play.

At some point a rule was drawn which at first glance may seem arbitrary and capricious but when you consider social policies and which outcomes will be the most fair, the rule makes perfect sense. Forged deeds should be void against everyone, because the” grantee” was proba-bly never-in a position to prevent this forgery. If someone goes in secret, draws up a document and signs your name to it, there is nothing you could do to prevent it. Nobody should be pun-ished because their signature was forged without their knowledge.

Contrast the above fact pattern with the actions of stupid Charlene in question lB. Here, Charlene was the “cheapest cost avoider”. She was in a much better position to make sure that SHE didn’t sign something she shouldn’t have signed than Yolanda was to investigate the deed for traces of forgery. The expense to Yolanda of having to hire handwriting experts, hunt down Charlene etc would far outweigh the expense to Charlene of having to expend a few brain cells to realize that signing a “sample deed” and believing this insane story was a bad idea. It is possi-ble that this brain cell expense to Charlene would have been significant in light of the fact that she may not have many Brain cells to spare, having failed the bar exam 6 times.

At this point it should be clear that reasoning backwards is not inappropriate, but rather necessary to determine how the law should evolve in light of seeking justice.

When studying for this exam, it seemed unclear to me why horizontal privity needed to be established in order to obtain damages by showing that a real covenant was in place and bro-ken. After more thoroughly exploring the issue however, it became quite clear that this was the case for a reason. The person who says the distinctions and rules make no sense in this case probably hasn’t considered the policy reasons for requiring HP.

In this country, there is a fundamental belief that nobody should be deprived of life, lib-erty or property without due process of law. If two individuals make an agreement regarding land that imposes some sort of burden on one or both, and the individuals take action in reliance on the idea that the covenant will not be broken, and then one of the individuals who was party to that agreement breaks the promise, it may be appropriate to penalize the wrong doer by awarding damages to the promisee. The just policy behind this idea is that if you are party to an agreement and break it, you should be punished. We want to ensure that people keep their prom-ises.

I believe society as a whole however is less inclined to penalize an individual in the form of monetary damages (deprivation of property), for failing to uphold a promise that SOMEONE else made, which he was not party to, but simply became obliged uphold as a result of a land transfer (through which I am assuming he had notice of the promise). In this later scenario, it makes more sense to force this third individual who was not party to the promise, didn’t have any input in same, and didn’t induce anyone to take action because of same, to STOP whatever they are or aren’t doing via an injunction. This will ensure that the original promisee is not harmed, but at the same time will prevent him from being, in my opinion, unjustly enriched be-cause a stranger to the initial promise didn’t uphold it.


Finally, I believe that the rule limiting use of an easement is another example to counter the idea of the author of the quote, which implied that it many rules put in place by a court do not draw distinctions and simply make no sense. This is also another example of why it is necessary for court to look at what is best for society and parties to an agreement before applying a bright line rule that may be counter to social logic. Also, we see departures from that rule, such a Brown v. Voss, which take into account the fact that there may be cases in which the black letter rule makes no sense and if it was to be applied, someone would suffer harm for no justifiable reason.

The traditional rule is that the easement is limited to the benefit of the original dominant estate. This makes perfect sense at first glance, when you think of a scenario where an individual grants an easement for the benefit of one lot, and that person then allows individuals in the house behind him to cross over the easement as the neighborhood expands, and instead of just the ini-tial owner of the dominant estate crossing the easement, the entire neighborhood is using it be-cause its more scenic than other routes.

Where it would not make sense to apply this bright line rule however, is in a case like Brown v. Voss. In that case, the owner of the dominant estate acquired an adjacent parcel and constructed a new single family home on the boundary of the two lots. The dominant lot was used for single family purposes before, and was being used for the same purpose and intensity after. The only change was that the lot was now larger and had more grass. This fact alone should not have deprived the owner of the servient estate from being able to get to his home (even though it wasn’t actually landlocked), just because he acquired more property and was us-ing the easement in the exact same was as it had been imagined when first created. In this case, the court departed from the bright line rule and said there where the use is exactly the same and the owner of the servient estate is no more burdened than he was before, the owner of the domi-nant estate should be able to use the easement even though his house now sits on the boundary of the dominant estate and the newly acquired adjacent lot. The court hear considered public policy and what was logically right to arrive at a solution which didn’t unjustly enrich the owner of the servient estate or allow him to escape from an obligation based on a technicality.

Clearly, the above examples are instances where rules may seem arbitrary at first glance but upon further analysis which takes into account what is socially desirable and fair, make sense. The courts would not have been able to come up with/apply these rules had it not been for the fact that they are able to take public policy concerns into account when deciding a case.

I am by no means asserting that the legislature is inept or unable to come up with these rules on its own but rather that there may sometimes be political forces blocking same. Further, even is equally able to protect societies rights, I don’t see how anybody could argue that “getting a second bite at the apple” via the judicial system could be a bad thing.



First Sample Answer

X v. B There is a implied warranty of habitability in the builder-vendor. The builder-vender

should be liable for the defects in a new house if the buyer discover the problem within a reason-able time and the problem is so material that it affect the basic human needs. The first question here is that B may be responsible for A, who is the buyer for the house, not X, because X is not the immediate purchaser. However, A only took the house for 2 years, which is a pretty short period. X may argue that B is still liable for him because she is the subsequent buyer who actu-ally suffer the harm because of B’ s action.

Although it is not a new home, either, it is substantially equal to a new home. Moreover, X may argue that the transaction of a primary residence is so crucial to a person that the court may want to protect her right and hold B liable. Considering the house is $500,000, this is really a big transaction. So although the law requires that X should be the immediate buyer of a new home, it should allow X to claim under the warranty of habitability.

Next we examine whether the defects are the problem that affect human’s habitability. X would have a strong argument that it is because the wall has generated strange smell, which makes her sick and can no longer live in the house.

Next, we should ask, whether this is discovered in a reasonable time? Here, B would have a strong argument that 4 years have passed and the failure to report the defect would defeat the reasonable time argument. Moreover, when X moves in, she already notice and smell and soon feel sick. She waited until 2010, 2 years later than her transaction to see the doctor. This is not a prudent buyer would normally do.

Moreover, B fails to comply with A’s instruction, which is building the house using all American products. This is not complied with X’s expectation, either. Thus, X may argue that B should be responsible for her.

B may have an argument that A has waived the requirement of the all American product by agreeing that the Chinese product can be constructed. However, this argument is weak. Al-though A agrees to use the Chinese product, X did not know about it. Even the requirement is waived, the warranty of habitability is not waivable. One can waive the which product can be used, B should still be liable for the warranty. The court may probably hold B should be partly responsible for the implied warranty of habitability.

X v. A Firstly, A is not a builder. Thus, A may not be liable under the implied warranty of habi-

tability. Next, we should examine whether A should be liable when she told X that the home was

great. We don’t know whether Cania is in caveat emptor or duty to disclose jurisdiction. Thus, we do both analysis.

Under caveat emptor, the principle is that let buyer be aware. The seller has no responsi-bility to tell the buyer the defects of the house in an arms length transaction. However, the seller is liable when he made some active concealment or affirmative representation regarding the ma-


terial facts of the house, which intending to induce the reliance on the buyer and the harm is caused by the reliance.

The first question is whether the A’s statement is misrepresentation of a fact. There are two statements. First, A said it is fine after X asked her whether the house is lovely. A may argue that this is opinion because he just said the house is OK~, which is a subjective statement. How-ever, A actually knows that she is not fine. She went to see the doctor and the doctor told her that her illness is from the time she bought the house. Thus, a question would be arisen although this may be subjective statement, it is still a lying because she actually feels it is not fine and become sick. The next statement is that she said that she instructed B to buy nothing but American prod-uct. This is about the facts that she actually asked B to buy the American product. However, in making this statement, she actively avoid the fact that there was Chinese product in the house, which is the concern of X. Thus, this also equal to a lie because she avoid answer the question and mislead X to believe that there is no Chinese product in the house.

The next question is whether this is a material facts. Again X would argue this is. The standard is the defects would be material to a reasonable person. A may argue that a reasonable person would not think which product to use is material in a house as long as it is functional. However, the personal taste is one factor that should be considered. Just like A, X has the taste to use all American product, this is material to X. Moreover, X actually ask this question. Thus, this would be an important thing from the view of X. Thus, X would have a strong argun1ent that this is a material fact to her.

We should also examine whether there is an intent to induce the reliance. X would argue that A has the intend to trick her because A was afraid that X has the same taste of her when she answer X. Thus, A’s intend is to let X believe that all the products are from the U.S. and then buy the house. A would argue that the intend was not to trick X, but to let her feel comfortable with the whole house regarding the materials it is used. However, it seems X would have a stronger argument considering A conceal the fact that X wants to know.

Next, there is no problem to say that A knows the problem and the harm is caused by the reliance. Thus, X may still have a strong claim that A made a misrepresentation to her. However, the idea behind Caveat emptor is that h encourage the buyer to be prudent and to do thorough inspection before they buy houses. Here, X has read some news about the harm of Chinese dry-wall. Although she asked A questions about her concern, she did not do any inspection or re-search herself. The court may not want to reward the ignorant people during the transaction be-cause the idea of caveat emptor is to prevent law suits, which would be frustrated due to X’s carelessness.

Under duty to disclose, the seller should disclose the known material facts that substan-tially affect the value of the house which is not readily observable to the buyer. Since we have examine that there probably are a misrepresentation of material facts, we look at whether the value of the house is affected. Here, with the damage of fumes, the house has a damage of $200,000. Comparing to the value of the house, $500,000, this is surely a injury that substan-tially change the value of the house.

Is the defect readily observable? Since X is not the expert, and the there is no way to see whether the wall is made from the U.S. and China, this would be not easily observable. More-over, the fact X asked A would reveal that the defect is not observable to X. Thus, A would probably held liable under duty to disclose.

Which way is the better way to determine the liability? I would say duty to disclose is a better way because it would save a lot of cost for the society. The seller is a cheapest cost


avoider. If A just tell X about the defects and X cure it, the harm to the house would be pre-vented. Thus, seller is in the better position to prevent the harm. Moreover, if X has to employ expert to examine the problem, as suggested by caveat emptor, it would be waste of money be-cause A already knows it Thus, I think duty to disclose is a better way.

The liability of A When we look at the contracts between A and X, it could be construed as an installment

contract to land because X has to pay certain amount of rent till she pays off. A would hold legal title to it and gets it back at the time of default. However, this contract is very unfair to X and it may shock the conscience.

Firstly, X has to pay a high amount of rent. She has to pay $4000 a month for the house. Moreover, X may also lose the house when he defaults because she has no legal title. This is very unfair because X would actually be the equitable owner when she took possession of the house.

In addition, it is not clear what “a row” means. It may mean a series of payment. How-ever, is 2 months payment constitute a row? It is very ambiguous. It may be a great leak to XIS right and A actually claim the house back after 2 months’ nonpayment.

Thus, the court would probably construe this as a mortgagor-mortgagee relationship since the terms are so harsh to X. However, A may argue that unlike the case where the court granted the mortgage relationship to a installment contract to land, X did not pay a substantial payment as the plaintiff did in that case. X only paid $96,000, which was less than 1/5 of the whole pay-ment. Moreover, if it is a mortgage, it would be only $46,000 as a repayment of a loan, which would constitute 1/10 of the whole payment. However, what amounts to substantial is still needed interpretation. I would say 1/20 of the whole payment is not substantial. But 1/5 is a am-biguous number (we should look at how much X actually pay, so I argue the 1/5 instead of 1/10). Considering the payment is so high in this transaction, I would say 96,000 is already a substan-tial payment, compared to nominal payment. Moreover, X already made the payment for 2 years, which is a long time.

If the relationship is construed as mortgage, A could foreclose the house, but at least she should work with X to solve the problem before foreclosure. However, she failed to do so but sold the house to a friend after 2 months’ default.

A may argue that she did the foreclosure sale under the mortgagee’s liability. In the fore-closure sale, she should execute as a due diligent person and do so in a good faith. Here, X would argue that A was not acting in good faith because she sold the house immediately to a friend, with 25,000. First, if she knew there is an immediate buyer of the house, this would vio-late the good faith requirement because she actually intended to harm XIs interest in the house without complying any statutory requirement. X would further argue that A is not acting in good faith because the price she sold was significantly lower than the fair market value, which would be around $500,000.

A also failed to foreclose under due diligence. Under the due diligence requirement, one has to execute like a reasonable seller to try every method to find a willing buyer, like doing ad-vertisement. However, without doing anything, A sold it immediately next day. X would also argue $25,000 was not a fair price either. It was so low that none of the transaction would sell a house only 25K. Thus, A’s action would be deemed violate the mortgagee’s liability.


In resolving this problem, considering X may still like the house although it has some de-fects, the court may consider to hold X is not liable for the original payment of $500,000, but abate the damage of $200,000. The court may also consider to revise the contract so that X would not have to give up the house on default. Although the Constitution requires that the court should not interfere with people’s contract rights, the court may do so if there is a legitimate ends, which is to do justice for the buyer here.


X would be able to go after B under the Warranty of Habitability. Under the Warranty of Habitability, a owner may go after the builder if there are defects to the building. Although many courts were very careful about letting subsequent purchasers go after builders because of privity,

many courts have shifted and allowed it. Additionally, under Lempke, a subsequent pur-chaser can go after a builder for Warranty of Habitability as long as the damage was not easily obervab1e. (WH). In determining whether or not a subsequent owner can go after a builder for WH, you must look at the bargaining power and cheapest cost avoider. X would argue that B knew the Chinese drywall had not been used or tested in the U.S., and that even though using the American drywall would be more expensive, it would be the cheapest cost avoider.

That means that using it in the beginning would of been cheaper than having to replace all the damage from the Chinese drywall. However, B would argue that he didn’t think it would cause this much harm, and that he thought that using it in the beginning would of been the cheapest cost avoider.

Also, the fact that it was not easily observable plays a large role. When she purchased it, she could not of known that the pipes and drywall were eroding because of the gases from the drywall.

Assuming X is the owner of the house, I think that under the Warranty of Habitability, X would be able to collect damages from B. B knew the drywall had not been used or tested in the U.S., and the damage was not easily observable to her at the time of purchase.

I think that it is the responsibility of the builder to make sure they are not putting in de-fective products. If they are unaware of the possibility of harm a product might cause, then they should use a product that they are sure of. This is the cheapest cost avoider. They are helping to minimize future damages and higher costs from defective products. If they choose to use a prod-uct they are unsure of, they should be held to future damages (under the Warranty of Habitabil-ity). This helps to hold them accountable, and to insure the safety of the purchaser.

Rights Against A: The next issue is what X’s rights are over A. This would depend on whether or not Cania follows the duty of caveat emptor, or the duty to disclose.

A caveat emptor state puts the burden on the buyer. It is often referred to as “buyers be-ware” because it is much more difficult for the buyer to collect damages. X relied on A’s state-ment “I told Bob the Builder, nothing but American products for me”, in order determine that the property had no Chinese drywall, and thus the house would not suffer from the fumes. The first element of a caveat emptor state is a false statement. X would argue that A’s statement “I told Bob the Builder, nothing but American products for me”, was a false statement about the Chi-nese drywall. This is a fact, and not a matter of opinion. Also X will argue that it is material. Knowing whether or not the house was made with Chinese drywall affected her choice to pur-chase it. If she would of known it was made with Chinese drywall, she probably would not have purchased it because of the fumes. Next, she would have to prove that the seller knew it was false. Because the builder made A aware that he was using Chinese drywall in the house, and


because he feared the X had the same kind of “buy American” ethos that he did, it would not be difficult to prove this. A knew the statement was false. Lastly, in a caveat emptor state, you must proved the reliance on the statement caused injury. Because X was aware of the fumes from the Chinese drywall, she asked the question for her own safety. By relying on the statement that it was “nothing but American products for him”, she relied that there would be no Chinese drywall. Therefore, because the Chinese drywall caused the harm, her reliance on the statement caused injury.

However, A could argue his statement “I told Bob the Builder nothing but American products for me”, was not a false statement. He could say this statement was exactly what he told Bob the Builder, and thus it is not false. However, I think the courts in a caveat emptor state would rule in favor of X because it was a false statement, that the seller knew was false, and ul-timately the reliance on the statement caused injury.

Under the duty to disclose, the state puts the burden on the seller. First, there n1ust be a n1aterial fact that the seller knows but didn’t disclose. In this situation, X would argue that A knew of the Chinese drywall, but didn’t disclose it to X. He told her that it was “nothing but American products,” even though he knew the Chinese drywall was used. Next, the defect must not be readily observable. X could prove this, because the drywall was eroding in the pipes and wires inside the walls, and would not be easy for her to see. It would be very difficult to get in-side the walls and see the damage. Next, it must affect the desirability or value of the home. The defect does both of these. It affects the desirability because when one lives in it, it makes them sick. Also, the pipes and wires are eroding, and the house becomes less valuable.

A would argue that he was not aware of the harm the Chinese walls were causing. Al-though A told X that it was “nothing but American products” for him, he was not aware of the damage it was causing. He had not followed the news reports on the Internet about the affects of Chinese drywall. Also, although he noticed the smell, he figured it was just a “new house smell”. However, X could argue that when the doctor noted that his “symptoms started when he bought the new house”, A should of thought about what could be causing it. But because A had not been aware of the effects of the drywall, he wasn’t aware of the defect in the house.

I think that because A was not aware of the damages the Chinese drywall was causing, he would not be held liable under a duty to disclose state. He didn’t disclose it, because he was not aware of the defects. If Cania was a duty to disclose state, and the court found in favor of A. However, X could then go after the builder and collect damages under the Warranty of Habita-bility.

I think the law should follow the duty to disclose. The seller is more aware of the defects of the house. Most times they know if there is damage or not. However, if there seller does not know there is a defect, they aren’t held reliable. This is a good balance between the seller and buyer. The buyer is made aware of any defects the seller knows of, but the seller is not held ac-countable for things they did not know. Unlike caveat emptor, where the seller is given more weight, both parties are well balanced.

Mortgage issue: The next issue is what happens in terms of the mortgage. Although X signed an agreement with A instead of seeking bank financing in terms of a mortgage, courts have said that it should still be treated with the same provisions of a mortgage. If you do not pay the money and default, the bank has a right to seize the property from you. Additionally, if these is viewed as a mortgage A would have to act in due diligence and in good faith.

The first issue is the provision in the contract. The contract permitted A to retake the house and keep all the money X has paid if she misses three payments in a row, with neither one


owing any further obligation. If you stick to the provision in the contract, A would be able to re-take the house. She missed three payments in a row, and thus under the contract A has the right to retake the house and not pay her a dime.

However, if the agreement is treated with the same provisions of a mortgage, X could ar-gue that A did not act in good faith, or with due diligence. First, A sold his property to a friend a day after the third payment was due X would argue that he did not act with due diligence to try to get other people to buy the house. He sold it to a friend right away, and not at a reasonable amount. He simply wanted to get the whole thing off his hands. The price and way he sold the house was not in due diligence or good faith.

I think it is questionable whether X made A aware of the damage. Even though she had the house tested, she did not make A aware of this. She stopped paying A. When A calls X after she misses one payment, she doesn’t specify the problems with the house. But A could argue that she told him she needed money to fix everything. Also, because he sells the house a day after the get the whole thing off his hands, shows that he knew there were major issues. Therefore, she should be able to get some of her money back because he acted in bad faith, and not with due diligence.

I think that the law is correct in this situation. If you default on the loan, the bank can foreclose on your house. But the bank has to act in good faith and with due diligence. Also, courts have given leniency to home owners in times of economic disparity. So if they miss their payments because of economic hardship, the banks have to work with the homeowners before they can foreclose on the house. I think this is the best policy. It holds the bank to the standard of due diligence and good faith, but also helps out the homeowners in economic hardships. This is another tests of balancing; it looks out for the best interest of the homeowner, as well as the best interest of the bank.


First Sample Answer

Whether Zoning ordinance is constitutional? In general, zoning has be found to be a constitutional exercise of a state’s police power.

However, the specific details of zoning plans have not always been found to be constitutional (For example Nectow). Courts, when examining zoning ordinances, look into the purpose behind the zoning ordinance, and perform a determination of whether the current ordinance is rationally related to this conceivable public purpose. A factor examined in doing so is does a comprehen-sive plan exist. The review process is a very deferential, with courts taking the opinion that it is local governments who have the understanding of the local conditions and who have experts to determine what the best plan is.

In the instant case, Cane city has been given the authority to perform zoning ordinances through §89.020 which provides limitations on what cities may regulate. The plan that is pro-posed by the Cane City Council(CCC) states its purpose as maintaining property values. In the preamble it states that it will do so generally by beautifying the residential sections of Cane City and making them more livable. Examined under a deferential standard, both beautifying the resi-


dential section and making them more livable seem rationally related to the purpose of maintain-ing property values.

However, there is no mention of a comprehensive plan or experts who were consulted in process. It just says one member of the council is proposing a new zoning ordinance. Without knowledge of the qualifications and or experts consulted, it would provide a serious doubt as the whether he was the best person to come up with such a plan. However, it is conceivable that re-gardless, the ordinance will first be examined by experts and then would have to be approved by the entirety of the CCC and not just this one member.

Are Aesthetic Zoning ordinances constitutional? Is this one? Aesthetic Zoning ordinances have been found to be constitutional when they are ration-

ally related to the general welfare and maintain property values. However, the standards of such ordinances cannot be so vague as to leave someone submitting a proposal with no clue as to whether or not the proposal will be accepted.

Aesthetic zoning is not specifically listed under §89.020 as things that cities in Cania may regulate. However, the list provided is likely not an exhaustive list of things that could be done to promote the health, safety, and welfare of the people. Aesthetic zoning would have to be argued to be something that would be promoting the welfare of the people. §89.040 classifies that ordinances must be made with reasonable consideration to the character of the district. Aes-thetic zoning ordinances could and have been used to ensure that the buildings or the city are consistent with the character of the district. Furthermore, aesthetic zoning can be argued to con-serve and enhance the value of buildings in a city, another requirement of §89.040.

Here, the only thing given in the facts is that the aesthetic aim is to create a Mediterra-nean look in the residential parts of the city. There are no details provided about how it is going to be determined whether or not something fits into a Mediterranean look, other than the re-quirement that roofs be made with Mediterranean barrel tile. Specific requirements must be set forth that would allow a proposer an idea as to what has to be included in a proposal.

Also, some sort of review board must also be created. This review board should be com-posed of architects and other qualified persons, who shall be responsible for examining the spe-cific plans of a proposal and providing feedback to the person making it. This feedback must be more than it just does not have a Mediterranean feel to it, or other like vague phrases.

Roof Tile Requirement Courts are unlikely to examine with great detail the specifics of a plan. However, if

raised in an as applied nature they will look at the requirements to see if they are rationally re-lated to the purpose. The ordinance calls for all roofs to be of Mediterranean barrel tile. Whether or not this will be found to be rationally related depends on if other roofing methods could fall under the Mediterranean look or if a house without a Mediterranean barrel tile roof could still fall under the classification of a Mediterranean look. Again, further details of the plan would have to be provided to provide a concrete answer to these questions.

If found to be rationally related, courts would most likely find that all new roofs and re-placement roofs must comport to the Mediterranean roof requirement. However, houses that al-ready have roofs and are not in need of a new roof face a serious economic burden to have to re-place their current, most likely fully functional, roof with another roof. The ordinance allows for an amortization period of five years. Whether or not this is valid depends on what the court will hold. Some courts have found that an amortization period is per se unconstitutional, claiming


that the burden on the individual is too great. This approach seems to go to far, suggesting that even a time period of hundreds of years could not be enough. This seems like an unreasonable restraint on the government and is against public policy to allow governments to make their best effort to improve the city. Applying to the roof situation, the five year period, and any time pe-riod would be unconstitutional, and only if the people decided to replace their roofs. Further-more, even if individuals decided to get a new roof, the law of changes to nonconforming uses might allow them to replace with a roof that was not Mediterranean.

Other courts judge the amortization period using a reasonableness test. These examined the burden on the individual, the harm to the public if the nonconforming use is allowed to stand, the money invested by the individual, the time required to amortize the value, etc. This approach seems to be the correct approach in that it balances the burdens and comes up with a fair me-dium.

Here, the five year amortization period would be weighed using this reasonableness test. The harm to the public would conceived as being against the plan to maintain property values. The harm to the individual would be having to replace a roof that might not be due to be re-placed for another 15-20 years. Some may have even just bought a new roof and now be required to go through the expense of another. It is unlikely the five year period will be allowed, since to get the full out of the current roof would allow them as much as 20 more years.

A time period of 15 years for the mandatory requirement seems to be more reasonable. This would allow the owner to come close to amortize his investment in his old roof. The re-quirement that all new and replacement roofs would have to be Mediterranean would start the process of creating the Mediterranean look.

Parkland Requirement This requirement is a method for initializing eminent domain to provide parkland. By not

specifically planning out where parks would be, it is hard to see this as a zoning requirement which would require a more comprehensive plan. The purpose behind the desire to increase parkland seems to fit however under an exercise of the zoning power or eminent domain. This calls for taking vacant lots in neighborhoods and turning them into parkland. This fits under §89.020 regulation of population density since a park will be seen as rationally related to such a purpose.

However, although the purpose is beneficial, the method requires some investigation. The ordinance calls for private residents to form NPAs who will ask the city to acquire the property through eminent domain. The city will then sell the property to the NP A for the same amount. This seems to take eminent domain to a whole new level. Public use has been defined as being rationally related to a public purpose. Public ownership is not the only method of meeting this public purpose. Private ownership can also do this. In Kelo, a plan called for private homes to be taken by the government and then given to private businesses and other private individuals. This was held to be constitutional since it meet the public purpose of economic development.

Here, private land is going to be taken for a park that can be used only by members of the NP A. The government cannot afford to buy the parkland themselves, but just because it cannot afford does not mean it is constitutional to do it. The public benefit here of decreased population density seems to not create as much of a benefit for the public as a whole as did increased eco-nomic development in a struggling city. If the government was keeping the parks, that would ob-viously be a public benefit. However, the possibility of the government getting the park for pub-lic parkland either after 25 years or sooner if the NP A does not maintain the park, provides a


great public benefit. Essentially, they could be getting public parkland for free, while at the same time providing compensation to the individual whose land is being taken.

It is not certain how the court will rule on this issue, but with the expanding definition of public purpose since Kelo, it seems likely that this too would be valid under the claim of eminent domain.

Much more specificity is required for this zoning ordinance and potential exercise of eminent domain to be found constitutional. The plan must be shown to be more than the compi-lation of one city counsel member’s ideas. Otherwise, it would go against the reason for being deferential to local governments. There needs to be a zoning review board, and clearer restric-tions on the aesthetic zoning regulations.


The first thing that would be necessary for the proposed zoning ordinance to be consid-ered is that Cane City needs to have the authority to do zoning in accord with the Standard State Zoning Enabling Act of the state of Cania. They do because Section 89.040 state of Cania statute says that all zoning ordinances must be designed to promote health and the general welfare, in-cluding conserving the values of the buildings and encouraging the most appropriate use of the land. Today, aesthetic zoning is typically upheld.

Section 1 of the proposed zoning ordinance aims to regulate the look of the residences of the City. This would most likely be considered in the best interest of the public welfare because the Section 1 of the ordinance will not only beautiful residential areas, but also maintain property values. In zoning (because there is no suspect class involved here), the fairly debatable standard from Euclid should be employed. This means, the zoning ordinance should bear a rational rela-tion to its aims. Here, the ordinance does just that because it is intended to maintain property val-ues and create a certain feel through aesthetic zoning and with all the residences appearing the same way, the goal will likely be accomplished. Additionally, the best and most appropriate use of the land will be accomplished through the Mediterranean tiles because they last 15-20 years, sometimes longer. Other types of roofs (that current owners have) would deteriorate more quickly and require replacement more frequently.

However, some of the residents will challenge Section 1 as being a deprivation of their first amendment right to freedom of speech. They may say that they moved into the area because they were allowed to have any type of roof they liked and the way they can express themselves is through the exterior of their home. If they become a suspect class, the basis of review would be-come strict scrutiny, which would be more difficult for the city. While this seems like a good ar-gument, the city will likely have a better one. The city will argue that the residents are equally burdened and benefitted by the statute and that it will maintain the property values overall. Be-cause of the rational relationship of legitimate police power aims of maintaining property values and the overall beauty of the neighborhoods, the zoning would be upheld as constitutional even if it was challenged either facially or as-applied to particular owners.

The statute not only applies to new residential developments, but to existing ones as well. Non-conforming roofs are given five years to be replaced with those that are Mediterranean bar-rel tile. While in the case where three month amortization period of the non-conforming adult bookstore was found Unconstitutional, here five years seems like a long enough time to prevent the amortization clause from being found unconstitutional. Non-conforming uses are not uncon-stitutional, but the time that people are given to comply can be. Here that does not seem like an issue because owners with non-conforming roofs are given more than ample time to install con-


forming roofs and raise the money to do so; although, owners who do not wish to conform would argue that they should never have to conform. This is a weak argument because their property value and overa1 feeling when they are in their neighborhood is legitimate.

Typically, in zoning cases the court will defer to the legislature because it has more ex-pertise, knowledge, and is more democratic as the will of the people. If section one was adopted, the courts will most likely uphold the statute as Constitutional. Statute 89.020 says that cities in Cania may regulate lot size, height, size, spacing, use of buildings, and population density for the purposes of promoting health, safety, and welfare. The residents who do not wish to have con-forming Mediterranean roofs will argue that the cities are not allowed to regulate that because it is not something listed in the statute. However, section 89.040 applies to this situation and they would still have no valid claim.

As to section 2 of the statute, the city may encounter more problems in getting it enacted. According to statute 89.040 (mentioned above), all zoning ordinances must be designed to pro-mote health and general welfare. According to the 5th amendment of the Constitution that is made applicable to the states by the 14th amendment, “nor shall private property be taken for public use without just compensation.” The two limits on the power of the government to take private property are public use and just compensation.

In Justice O’Connor’s dissent in Kelo, she says purely private-private takings are Uncon-stitutional. The majority, however, found that economic development is a public use. While the majority in Kelo found that economic development served a public purpose, here there is no blight (such as in Berman) or a land oligopoly (such as in Midkiff). The city government has no money to pay for more land, and thus the park that is being created can be seen as furthering fu-ture economic growth by the city. Here, the city is going to acquire a vacant lot through eminent domain and then turn it over to a private group, the NPA, immediately. While the government is going to pay just compensation for the land, the park will likely not be considered public use.

Public use used to mean use by the public, but this definition was expanded in Kelo to mean public purpose. While the city can argue that the park does serve a public purpose, a pri-vate organization will be collecting dues in order for people to be granted access to the park. The city will likely have a weak argument because if the park was for a public purpose, the entire public should be able to access it. Here, however, people who cannot afford to drive to the park or pay the dues will not have access to it and this does not seem to satisfy the public use re-quirement of eminent domain (particularly because the park is not a necessity). The city will combat this by saying that in 25 years the park will be open to the public, but that still does not seem to satisfy public use because they cannot use it or benefit from it now. This may be a dif-ferent situation if the money acquired by the NP A was then given to the city, but the statute says nothing about that.

Additionally, statute 89.040 says zoning ordinances must conserve the values of build-ings and encourage the most appropriate use of the land. If many people in society are unable to access the park, it may not be the best use. The city would have a good argument here, however, because they are acquiring a previously vacant lot through eminent domain. The land wasn’t be-ing used at all before and now it is being utilized for recreational purposes, which is the best use. This seems like a good argument also, however the city needs to make use of the land that was benefit the public or allow the public access in order to exercise its eminent domain power.

As previously mentioned, the means ends test does not seem to hold up well here. Al-though section two says that it intends to provide for the additional parkland in residential areas and this is a legitimate means, the end is that only some of the residents in the city will be able to


access and reap the full benefits of the park. Remaining residents who live beyond the five blocks that comprise the NPA will not even have a say in the park or the fee that is charged to enter. Additionally, while more parkland is created, it is likely not going to be enjoyed by more people. The city will have a difficult time with satisfying the public use requirement. Addition-ally, the NPA is to be composed of members covering only 5 city blocks. This may be a segment of society that disproportionately would be representing the rest of it by governing this park for 25 years. It would not have the best interests of the entire city, necessarily, but the best interest of themselves and their kids while the entire community (the public) would not be benefitted at all.

The issues have been set forth above and because of that Section 1 will likely be passed with some variations. Aesthetic zoning is typically upheld if the city is validly exercising its po-lice power, which it is for the maintenance of all the property values and for maintaining the overall feel of the neighborhoods. However, the section that says that the zoning ordinance is intended to make the area more livable may not survive if attacked because people currently liv-ing in the area without the Mediterranean tile roof have chosen to live there. Because the term livable isn’t directly included in the Sections, the preamble should be re-written to say that the aims are to maintain or increase the property values and the general feel of the area. The aim of the area being livable should be taken out because people who may not like the roofs can chal-lenge the ordinance as not being a legitimate means to desirable ends.

Additionally, the amortization period seems Constitutional because it gives enough time for people to cure, however because five years may not be enough time for people who come from disadvantaged segments of society, the city should provide some form of aid to help these people conform, or limit the zoning to particular residential areas. Additionally, the city could increase the period to 15-20 years to prevent waste for the people who have recently installed new roofs that may be of different materials than those permitted. This would prevent people from having to pay for the same cost twice and the amortization clause would sustain less chal-lenges.

Section 2 should be changed so that when the city exercises Eminent Domain, the public use requirement is satisfied. It could do this through a few things. The park could be held open to all and donations could be welcomed instead of only allowing those dues paying members. Not all people would want to pay dues if they didn’t have the money or the desire to go to the park frequently. Additionally, the city itself may want to consider keeping the park instead of handing it over to a private party. Conversely, if the city is doing this to make money, it should think of an alternative such as opening the park to public and leasing space to vendors who could sell snacks, drinks, and water, instead of turning the property over to a private group, who will only allow dues paying members who live in their areas into the park. The aim of providing additional parkland in residential areas needs to be a good one, but the aim also needs to serve the entire community. The current statute (Section 2) does not do this because while the increased parkland is occurring, not all residents have access to it.

Ultimately, courts typically defer to the legislature who writes the statutes because of their knowledge and expertise. They also are more democratic because they are elected by the people. This being said, if the statute addresses all the issues discussed here, and is revised in such a way that these issues are addressed, the ordinance should have no problem passing.


Question III(C) (75 minutes)

First Sample Answer

1 )Does Ana have any remedies against the bank? In this case, Ana fell behind on her mortgage payments and then stopped paying all together in January 2010 because she lost her job and the financial crisis in the country. The bank then gave her a 6 month period, from Janu-ary to June 2010, to repay what she owed or at least start making payments again. This six month period embodies Ana’s equitable right of redemption period, a period during which she can re-pay what she owns and regain possession of her home. In June 2010 when she had not made anymore payments the bank foreclosed on her equitable right of redemption and held a foreclo-sure sale. Furthermore, Cania does not provide a statutory right of redemption, a period of time during which Ana could recover her home post the foreclosure sale. Up to this point Ana has no claims she can possibly make against the bank and so it is not possible for Ana to regain posses-sion of her home, at all.

However, there is both a duty of due diligence and good faith in foreclosure sales and this is where Ana may have a viable remedy against the bank. In this case it is unlikely that the court will find a breach of good faith duty because there was no questionable behavior involved. How-ever there may be an argument that the bank acted in bad faith because they took a bid that they knew would not satisfy their own debt in order to keep Ana from being released from her debt. The bank could have easily rescheduled the sale and advertised better. The bank did not care that it was not getting fully repaid because they knew they could still hold Ana accountable for the remaining debt, but it seems very unfair for Ana to be liable for this debt when it is as a result of the banks breach of due diligence that the bank gained so little, this is discussed below. On the other hand, it is very likely that the court will find a breach of due diligence.

The duty of due diligence holds that the bank must act like any reasonable person in the process of a foreclosure sale and make the same efforts a regular person would make in their at-tempt to sell a home. In this case, the bank could be found to have breached this duty. All the bank did was put an announcement in the “court notices,” section of the local newspaper. It is quite clear that a reasonable person would do much more than that in attempting to sell their home. The court notices section of the newspaper is hardly ever read and when it is read its by people who are looking for something pertaining to them. The bank could have easily put ads in the classifieds or posted signs announcing the sale in public areas. The turn out of the foreclosure sale, one person, is proof that the efforts made by the bank in advertising the sale were poor. Fur-thermore the original value of the home was over $450,000 dollars and due to depreciation and the market the house was now worth $250,000. Ana paid over $100,000 to the bank before she defaulted, but the value of the home decreased so much that the loan-value ratio of the house is now 100% preventing her from refinancing. The court may find this argument very persuasive especially because Ana probably signed a subprime mortgage not knowing that it would have such negative impacts on her in the future.

It is very likely that the court will find that the bank breached the duty of due diligence and there are remedies available to Ana if that is the case. The remedy for due diligence is dam-ages measured by the fair value of the home subtracted from the auction value for the home. Ana could get the lawyers to leave her alone through this claim because if the bank is found to have


breached the duty of due diligence it will be because of their own actions that they did not get full repayment of the loan through the foreclosure sale.

In my opinion the law in this area is fair and allows for multiple opportunities for a de-faulting borrower to regain possession of their home. The court should find here that the bank breached the duty of due diligence and make them pay damages to deter other banks from acting the same way. The equitable right of redemption has policy reasons behind it and these policy reasons are legitimate. The main concern is fairness to the borrower especially when financial circumstances change outside of a persons control. The mortgagor is given the opportunity to regain possession of their home because it is public policy to give the most protection possible to a persons homestead. It would be unfair for a bank of to apply strict foreclosure in situations like the current one where the main thrust of the problem is the deteriorating financial situation of the country and outside of Ana’s control. Furthermore, Ana and the bank are not on even ground, the bank has a lot of power and influence over Ana since she is depending on them for her home-stead, the banks should be deterred from acting solely with their interest in mind. Especially when the state of the economy is as it is now, people are even more desperate to refinance their homes or pull mortgages and will accept terms that are very unfavorable in the long run. Just be-cause the banks are taking advantage of people and no-one is stopping them

does not mean that the courts shou1d acquiesce and allow banks to abuse the weaknesses of other people, Therefore, Ana should get damages or at least be released of her debt.

2) Does Teresa have any remedies against Larry? Teresa has a reliable remedy against

Larry, breach of warranty of habitability. The warranty of habitability is read into every lease and no matter what the contract says this warranty cannot be waived and the tenant cannot bear the risk this warranty covers all material defects and these defects are determined through the test of materiality; 1) would a reasonable person attach significant importance to this defect? 2) does it affect the use of the property? 3) does it lower the market value of the property? 4) was there reliance on this warranty that because of its breach led to injury? In this case all four of those elements are satisfied. A reasonable person would attach a lot of importance to existence of air conditioning units, electricity, and a sewage system. The lack of these severely affects the use of the property since it would seem Ana could not even use the restrooms in her home. The Jack of these also severely affects the value of the home, making it very undesirable to live there. Lastly, Teresa was reasonable in relying on this warranty when moving into the house and be-cause of this reliance she has suffered both monetary and emotional injuries. Furthermore none of the damage to the home was a result of Teresa’s actions. Teresa notified Larry of these prob-lems and he failed to repair the issues claiming that the clause in the contract released him of the warranty making Teresa bear the risk. As stated earlier Larry was wrong, no contractua1 lan-guage could waive the warranty of habitability and although the problems all are a result Ana defacing the property that has nothing to do with Teresa. While Larry could sue Ana for the costs of repair that would be a separate issue altogether. The remedies available to Teresa would be varied, she could get rescission of the contract, damages (rent money returned), or specific per-formance amongst others. The court will likely sympathize with Teresa because all of the defects to the home make it inhabitable and were independent of her actions.

The law in this area is what it should be. A warranty of habitability is crucial in a ever more urbanized world where tenants are becoming less and less capable of fixing problems within the home on their own. In any event, the landlord is almost always the cheapest cost avoider and would be in the best position to remediate the issue. Before urbanization started


there was no warranty of habitability because it was assumed that those who rented land would have the skills needed to fix problems within the home. As people moved into urban centers and into buildings the purpose of a lease transformed and stopped being about use of the actual land to living within a specified space. In light of these changes it is most appropriate for the landlord to be responsible for repairs especially since they are the most familiar with the apartment or house. Even more so because there can be multiple tenants to one apartment or house in a year or two and it would be unreasonable to require one of those tenants to pay for something which will ultimately benefit all subsequent tenants and the landlord more than the tenant him/herself.

3) Would Teresa be able to sublease to Sam? In this case, there was a sublease approval

clause written into the lease which would make it very hard for Teresa to sublease to Sam le-gally. However, some jurisdictions have restricted the power of a landlord to reject subleases that are commercially reasonable. These jurisdictions argue that the reasons for rejecting a sublease cannot be arbitrary or subjective and must be based on financial reasons or commercial reason-ability. Other courts say that the right of a landlord to reject a sublease is unrestricted and that they may reject it if they please for any reason they choose. It is unclear if Cania has a statute that writes in the reasonability requirement but it if does not, it should. Teresa can take Larry to court and argue that withholding approval is an unnecessary.

Especially in situations like the one at hand were Teresa has been placed between a rock and a hard place. Larry refuses to fix the problems with the house that make it uninhabitable for Teresa and when Teresa attempts to remediate the situation by finding someone who is not so concerned about the houses issues he prevents her from doing so because he is “busy.” There is no financial reason why Teresa should not be able to sublease the house to Sam, he has good credit and is willing to take the house as is. Teresa is put in a position where her fate is dictated by her landlord and that alone is against public policy. Tenants should not be at the mercy of their landlords. In a jurisdiction where there is a reasonableness requirement the court will probably be especially sympathetic because of Teresa’s situation and lack of options.

In my opinion it is very unreasonable for Larry to be withholding approval for the sub-lease and the law should provide remedies to those who are subject to unreasonable rejections of subleases. In this case specifically Teresa should take Larry to court and the court should find that Larry was acting unreasonably in rejecting the sublease and order him to allow it or to re-lease Teresa from her lease especially when considered with the breach of warranty of habitabil-ity.


What remedies, if any, does Ana have against the Bank? At the time of the foreclosure sale, A’s house is worth about $250,000, and her remaining

mortgage balance is about the same, $250,000. In June 2010, the Bank of Cania (B) put up a no-tice of the sale of A’s house in the “court notice” of the local newspaper, but failed to make any other effort to advertise it. A can argue that as the lender, B had an obligation to act with due diligence and good faith in the sale of her home, including the advertising of it. B had to every-thing in its power to advertise the sale of the home so that more people would become aware of it and attend the sale, giving A a greater chance in getting a higher sale value for the house. A can argue that B did not do everything in its power to advertise for the foreclosure sale of A’s home


because all B did was simply place an ad in the “court notice” section of the local newspaper and stopped there.

There was a case discussed in class that relates to this situation. In the case, the court ruled that the lend or had an obligation of acting in good faith and diligently when advertising and conducting the foreclosure of the home. The foreclosure had one other person present be-sides the people initially involved in the foreclosure, which the court ruled was a result of inade-quate advertising.

A can use this case as precedent for her argument that B did not act responsibly and thus the foreclosure of the home was not necessarily valid. Larry made a bid on the home for $100,000, which B accepted. A can argue that the sale of the home for $100,000 was far below the fair market value of it, which was approximately $250,000. A can argue that the sale was un-conscionable and may even” shock the conscience.” B can argue that it did its part in regards to providing notice of the foreclosure to others. B placed an advertisement announcing the foreclo-sure in the local newspaper. B can argue that this satisfies the responsibility it had in providing notice and advertising for the foreclosure. B can also argue that the foreclosure sale price of the home, $100,000, does not “shock the conscience.” Yes, it is lower than the estimated fair market value, but B can argue that this was the best offer available. B can argue that although the fair market value of the house was around $250,000, the fair value of the house was far less, espe-cially because it was being foreclosed on. B can also argue that the house was worth about $250,000 “at best,” which makes $250,000 the highest possible market value. Thus, this is fur-ther proof that $100,000 would not “shock the conscience” as A may argue.

A court can lean in each direction, but it will probably lean more towards B because it did put the notice in the newspaper, arguably satisfying its good faith requirement in providing notice, and the foreclosure price is actually does not” shock the conscience” and can be seen as the fair value of the house. This is a situation, however, in which the court may lean towards A’s side if it feels sympathetic towards A because B did not do more in advertising the sale, and the foreclosure sale was low in comparison to the projected fair market value (even “at best”). A will argue that there is nothing barring A from possibly obtaining the best fair market value of her house. In addition, it states that during the time of the foreclosure there was a “financial crisis” at bay.

In one case discussed in class, the court ruled that the contracts regarding mortgages were allowed to be extended as a result of the financial crisis, the Depression, which was declared a state of emergency. This ruling gave people more time to pay off their mortgages before an ac-tual foreclosure. A can argue that this financial crisis is similar to the one of the case and that a statute, similar to the one described in the case, should be enacted giving her, and others in simi-lar situations, more time to make payments on a mortgage. This is obviously at the discretion of the legislature, which has the power to enact such a statute. The legislature has the means to re-search and decide whether a statute such as the one in the case mentioned would be appropriate in the situation.

What remedies, if any, does Teresa have vis-à-vis Larry regarding the condition of the house?

The lease between T and L is for two years and is “as is,” meaning T is accepting the house exactly as it is, faults and all. Furthermore, the lease states that the tenant is responsible for any repairs, voiding the Warranty of Habitability that is implied with housing. T signed this lease knowing all of the above. Thus, she cannot obtain damages against L. However, if there is a provision in the state’s statute dealing with unconscionable living situations, even under an “as


is” tenancy, she can use the statute lo enforce remedies. All housing has an implied Warranty of Habitability, so if T can use the statute to enforce the Warranty of Habitability, she can enforce certain remedies. Under a Warranty of Habitability, a landlord must keep housing in a livable state of being in which a reasonable person can live. The various problems that T discovers do not comply with the Warranty Habitability. A reasonable individual wou1d not live in a home without proper air conditioning, especially if he or she lives in a hot climate, inoperable electri-cal outlets, and inoperable toilets. The implied Warranty Habitability originally was initiated be-cause people today have more specialized skills rather than a broad range of skills, which was what more people had in the past. Today, people are specialized in one trade or one profession. Thus, people are not as capable of fixing housing problems as they were many years ago. The landlord has more knowledge in fixing the problems related to his house and has 1I10re knowl-edge about the house itself. I believe that the Warranty of Habitability should apply to all hous-ing, so a state should invoke a provision in their statute to allow the Warranty of Habitability to apply to all housing, even “as is” housing. Hopefully, the state of Cania has some way that T can apply the Warranty of Habitability to her “as is” tenancy. Now, if she can apply it, T has a cou-ple options. She can let the landlord know about the problems and allow a reasonable amount of time to pass before taking any further action, continue to live there and withhold rent, or fix the problem herself and deduct the amount of repairs from the rent. T has used the first option with no avail. The second option will probably result in L taking T to court, upon which T may be liable for the cost of housing “as is” subtracted from the cost of habitable housing. L may be li-able for damages resulting from annoyance and/or frustration due to the living conditions, which the court ruled was allowed in Hilder v. St. Peter. The third option would probably again result in L taking T to court. The court may rule in favor of T because she let L know.

Would Teresa be able to sublease to Sam? T should be able to sublease to S. The lease requires that a tenant may not assign or sub-

lease the house without the landlord’s written consent. L is refusing to give consent to T without a good enough reason. There is a case in which the court has ruled that in commercial leases, a landlord can withhold consent to sublease when there is a commercially reasonable reason to do so. T can use this to her advantage because the ruling in that case, although applied to a different lease, can be used to show that withholding consent requires an adequate reason. In this case, the reason that L gives of being “too busy” does not seem to suffice. However, the case mentioned deals with a commercial lease, which L can say is not the situation here and thus does not apply. L will argue that he can withhold for any reason. As the landlord, he has the final say in who can sublease and be assigned to his property. In response, T can argue that L is not acting in accor-dance with landlord duties and he is furthering restraints on alienation by not allowing her to sublease. T can argue that S will be a great tenant for L, and there is no real reason that L should decline. S will not bother L, unlike T. L can argue that S is a “slob,” and he does not want a slob as a tenant, although this argument has barely any merit behind it because the L’s apartment is not very clean. However, L can further argue that he has the final say in who is allowed to oc-cupy his property, and if he doesn’t want slobs, he is not going to sublease to slobs. All of L’s arguments seem to be faulty in light of his remarks to T stating that he is too busy. T can argue that she will even help verify that S will be a good tenant. A court using a strict standard will probably rule in favor of L mainly due to the written lease that states the requirement for written consent from L. A court may also rule in favor of T, because of the unequal bargaining power


between a tenant and landlord and that the particular case portrays a lack of fairness between the two. 1fT cannot sublease to S, she may continue living there, enduring the few problems of her home for the duration of the lease. There are a couple other options depending on the type of lease she has. Some types of leases include a tenancy of years, a periodic tenancy, a tenancy at will, and a tenancy at sufferance. If this lease is for a tenancy of years, and is for a tenancy of two years, she must stay there until the end of the two years. If this is a periodic tenancy, which is being renewed monthly or yearly, T has an option to not renew until the halfway point of the duration. If it is renewed monthly, she can notify L that she will not be renewing anytime until the middle of the current month. If this is a tenancy at will for two years, she can choose not to continue her lease at any point in time. Finally, this is not an example of the fourth type, a ten-ancy at sufferance, which involves a holdover.


Property (H)

Final Examination



This is a four-hour closed book exam. There is a supplement attached to this exam. It has mate-rial relating to Questions II(C), III(A), and III(B). Feel free to pull the Supplement apart from the exam if it makes it easier to use the Supplement, but make sure you turn it in along with your copy of the exam.

Times shown for the Questions add up to 3-1/2 hours. You can use the extra half hour either for reading the Questions, or to give yourself a little extra time for writing your answer to each Question. There is no separate reading period. The times shown for the Questions reflect their weight in grading, so it’s important to keep them in mind. You may answer the Questions in any order you wish.

Question Minutes

Question I (choose A or B) 75 Question II (choose ANY ONE of A, B, or C) 60 Question III (choose A or B) 75 Total 210

II. WRITING INSTRUCTIONS: IMPORTANT–READ THESE BEFORE YOU BEGIN


Writing Instructions for … Handwriting Laptop

o Write your AGN on the cover of each bluebook. o Begin your answer by indicating the Ques-tion and subpart [e.g., “Question II(A)”]. o Start each Question in a new bluebook.

o Write the Question and subpart [e.g., “Ques-tion II(A)”] on the cover of each bluebook.

o Page breaks: Start each answer in a new answer tab so that page breaks between Questions will be automatically inserted when the Registrar prints your answers.

o Write on every other line – i.e., skip lines. o Write on one side of each page

o You may type single-space, as the Regis-trar will print out the answers double-space.


PROPERTY (H) QUESTION I OF III FALL 2009 PAGE 2 OF 9


Answer either Question I(A) or Question I(B) but NOT both.

Handwriting: Please begin Question I in a bluebook marked “Question I(A)” or “Question I(B),” depending on which Question you choose to answer. Please write your AGN on the cover of each bluebook. Please skip lines and write on one side of each page. Laptops : Please type “Question I(A)” or “Question I(B),” depending on which Question you choose to answer, at the start of your answer to this Question.


Answer either Question I(A) or Question I(B) but NOT both.

The following events take place in the hypothetical U.S. state of Cania. You may find the follow-ing diagram and schematic history useful in reading the Question. Note, however, that they do not contain all the information needed to answer the Question.

Bonnie

Whiteacre

Alex/Danielle

Greenacre

1995: O —> A (Greenacre). Recorded. 1996: X —> B (Whiteacre). Recorded. 1996: A —> B (Greenacre). Promise regarding height/trees. Recorded; misindexed. 2009: A —> D (Greenacre). Not recorded.

In 1995, Alex bought Greenacre from Otto. Greenacre was a half-acre parcel of land in Cania with a small one-story house on it. Alex recorded his deed. He also wrote a will leaving Greenacre to his niece, Danielle, an artist.

In 1996 Bonnie bought Whiteacre, an undeveloped parcel immediately to the east of Greenacre, from Xaviera. Bonnie was a busy executive in California, but her plan was to retire to Cania years later and build her dream house on Whiteacre. Bonnie liked the natural feel of the area, and when she bought Whiteacre she sought a restriction from Alex on the development of his property. In exchange for a substantial sum, Alex agreed in writing, “on behalf of his heirs and assigns, for the benefit of Bonnie and her heirs and assigns, that no house higher than one story shall be built on Greenacre, and that no trees on Greenacre shall be cut down.” Bonnie had the agreement recorded; the county official in charge of recording it unfortunately accidentally misindexed it in the grantor index under “Z” (instead of “A” for “Alex”).

Over the next 13 years, the land in the neighborhood around Greenacre and Whiteacre became increasingly valuable. People built bigger and bigger houses (almost all of them two stories) on the lots near Greenacre and Whiteacre.


PROPERTY (H) QUESTION I OF III FALL 2009 PAGE 3 OF 9 ← Question I(A) begins on the previous page

In 2009, Alex decided to become a monk and dispose of his material possessions. “My will has always said you’d get Greenacre,” he told niece, “but why make you wait until I die? You can have it for $2,500, which should just cover my new monk’s wardrobe.” Danielle agreed and gave him the money a few days later. “Here,” he said, handing her a piece of paper. “What’s this?,” she replied, “a receipt?” “No,” he said, “it’s a deed granting you Greenacre – basically just the kind of legal mumbo-jumbo you hate, saying Greenacre is yours. I think there might have been some other agreements about what can be do with Greenacre, but I might be wrong – I’ve become too other-worldly to bother with such things now.” “Whatever,” said Dan-ielle, her eyes glazing over. A free spirit, she refused to do anything so bureaucratic as record the deed.

Danielle decided to stage a piece of performance art in which everything on Greenacre – the house and all the trees – was burned to the ground to dramatize the passion of her art. Af-terwards she built a two-story structure on Greenacre, which she used as her artist’s studio. She mostly slept in a nearby apartment, but sometimes, working late in to the night at the studio, she stayed at Greenacre overnight in the small bedroom in the building, which also had a small kitchen and bathroom.

Bonnie retired recently and flew to Cania to meet with her architect to begin planning her dream house on Whiteacre. When they inspected Whiteacre, she discovered the two-story struc-ture next door on Greenacre. She knocked on the door. When Danielle answered, Bonnie screamed, “How dare you violate the deed restrictions to Greenacre! It’s not even a house you’ve got there. Tear it down! At the very least, get rid of the second story. And getting rid of all those trees was a crime – it’s made my property worth a lot less. You’ve going to have to pay me for that.”

“No one appreciates great art,” sighed Danielle.

Danielle comes to you for advice. Can Bonnie really make her get rid of her studio or remove the second story? And is she going to have to pay Bonnie any money?

What advice do you give her? What should the law provide, in your view?

Note: Cania generally follows the common law. It has the following statute:

Cania Stat. § 1. A conveyance of any interest in property shall not be valid as against any person, except the grantor, his heirs, devisees, and donees, and per-sons having actual notice of it, unless it is recorded in the registry of deeds.


PROPERTY (H) QUESTION I OF III FALL 2009 PAGE 4 OF 9

← Question I(A) is on the previous page

Question I(B) (75 minutes) Answer either Question I(A) or Question I(B) but NOT both.

The following events take place in the hypothetical U.S. state of Cania. You may find the follow-ing diagram and schematic history useful in reading the Question. Note, however, that they do not contain all the information needed to answer the Question.

2000: O ==> “Xaviera for life, and then if Cane turtles are no longer endangered, to that wonderful couple, Alex and Bonnie, to have and to hold together, otherwise to the World Wildlife Fund (WWF)” (Blackacre)

2000: O ==> Yolanda (easement cross Blackacre) 2006: Y —> Z (Whiteacre) 2007: Z buys Greenacre 2008: Government removes Cane turtles from endangered species list upon extinction 2009: X dies

Otto, an environmentalist who particularly loved Cane turtles, owned and lived in a house on Blackacre, beachfront property in Cania. Across the street from him was his good friend Yolanda, who lived on Whiteacre.

Otto worried constantly about the adverse impact of humans on endangered Cane turtles that laid eggs on the beach. Cane turtles were on the government’s endangered species list. Otto hoped very much for the day when conservation efforts took them off that list.

In 2000, Otto died and left Blackacre left “to Xaviera for life, and then if Cane turtles are no longer endangered, to that wonderful couple, Alex and Bonnie, to have and to hold together, otherwise to the World Wildlife Fund (WWF).” Alex and Bonnie were married at the time the will was written and when Otto died. Otto’s will also granted an easement over Blackacre “to Yolanda and her heirs and assigns for access to the beach.” Afterwards Yolanda walked across a path on Blackacre to the beach every morning.

In 2006, Yolanda sold Whiteacre to Zelda. In 2007, Zelda bought Greenacre, an empty parcel right next to her lot. She left it vacant, and even kept the small picket fence between Whiteacre and Greenacre in place. Ensuring that Greenacre remained vacant, she figured, would guarantee that she’d have an unobstructed view of the park that abutted Greenacre. Ever since she’d bought Whiteacre, Zelda had sat on her porch in the mornings, gazing out at the beautiful tree-covered park. She also figured that having this view would greatly raise the value of Whiteacre. And sometimes when friends visited she let them camp out on Greenacre, and then she’d walk with them across Blackacre to the beach.

Bea

ch

Blackacre Street

Stre

et

Path Whiteacre Greenacre Park


PROPERTY (H) QUESTION I OF III FALL 2009 PAGE 5 OF 9 ← Question I(B) begins on the previous page

In 2008, the government removed Cane turtles from the endangered species list when the last known Cane turtle died, leaving the species extinct.

In 2009, Xaviera died, leaving everything in her will to Virginie. Alex and Bonnie, how-ever, immediately moved into Blackacre. They also put up a fence blocking Zelda’s access to the beach.

Zelda seeks access to the beach over the path. Alex has big gambling debts that he incurred on his trip to Las Vegas last year; the casinos got a judgment against him (though not against Bon-nie, who didn’t go on the trip and doesn’t gamble). Hearing that Alex and Bonnie are now living on Blackacre, Alex’s creditors seek to attach his share of it. The WWF says that it is the owner of Blackacre.

Who owns Blackacre? Can Alex’s creditors get at his share if Alex and Bonnie own Blackacre? Is there anything Alex and Bonnie can ethically do to keep their property safe from creditors? On what might basis might Alex and Bonnie or the WWF (depending on who owns Blackacre) block Zelda’s access? Would they succeed? Explain.

Note: Cania generally follows the common law, including among other things the doctrine of de-structibility of contingent remainders.

PROPERTY (H) QUESTION II OF III Fall 2009 Page 6 of 9


Answer ANY ONE of Question II(A), Question II(B), or Question II(C).

Handwriting: Please begin Question II in a new bluebook marked “Question II(A),” “Question II(B),” or “Question II(C),” depending on which Question you choose to answer. Please write your AGN on the cover of each bluebook. Please skip lines and write on one side of each page. Laptops : Please type “Question II(A),” “Question II(B),” or “Question II(C),” depending on which Question you choose to answer, at the start of your answer to this Question.



“Sometimes the law simply regulates the process by which people make decisions and interact with each other in the market, leaving the substance of their dealings with one another to the in-dividuals involved. Other times the law imposes substantive terms or limits on what people can do. And sometimes the law does things that don’t further any process or substance goals, draw-ing distinctions or imposing rules or creates elements of rules that make no sense at all. The dis-tinction between executory interests and contingent remainders makes no sense, for example, nor does it make sense to apply the rule against perpetuities to options and preemptive rights.

“Where the law simply regulates processes, it’s fine for the court to fashion the rules or change them. But where the law imposes substantive constraints and requirements, it’s better for de-mocracy if the legislature takes primary responsibility. Courts, though, should take the lead in eliminating legal rules or distinctions that make no sense.”

To what extent do you agree or disagree with this statement? Comment on all the observations and assumptions in the statement. Illustrate your arguments with at least four additional exam-ples from the course, choosing from among the issues below as appropriate:

o presumptions of intent in determining which kind of estate is created o rules regarding restraints on alienation o the requirement of touch and concern in servitudes o the requirement of horizontal privity in covenants o the requirement of continuity in adverse possession o the requirement of delivery in gifts o disclosure requirements in the sale of real property o the implied warranty of habitability in landlord-tenant law o the distinction between assignment and sublease o the distinction between lost and mislaid property o the distinction between fraud and forgery in determining whether a deed is void

or voidable.

Questions II(B) and II(C) are on the next page →

PROPERTY (H) QUESTION II OF III FALL 2009 PAGE 7 OF 9 ← Question II(A) is on the previous page ← Question II(A) is on the previous page



The following events take place in the hypothetical U.S. state of Cania, which generally follows the common law.

Bonnie is a medical researcher who, together with her son Colin, has devoted her life to find-ing a cure for cancer. In 1999, she and Colin won a Nobel prize for their research. Otto, who lived on a house on Blackacre, which he owns, was a friend of Bonnie’s who’d always greatly admired Bonnie’s work. In 2000 he wrote a will leaving Blackacre “to my daughter Alex for life, then if Bonnie or her son conquers cancer, to Bonnie so long as the land is used for single-family residential purposes, otherwise to my sister Yolanda. I leave everything else I own to the National Cancer Society (NCS).”

In 2003, Otto died and his will took effect. Alex moved into the house on Blackacre.

In January 2004, Bonnie was diagnosed with cancer. After an intensive course of chemo-therapy, Bonnie’s doctors told her in September 2004 that the disease had gone into remission. If it did not return in the next five years, they said, they would consider her cured, though there could be no absolute guarantees.

In September 2009, Bonnie celebrated five years of no recurrence of the cancer. “I’m done with research for now,” she thought. “I want to enjoy life.”

In November 2009, Alex was killed in an automobile accident.

Who owns what interests now in Blackacre? Explain.



Consider the following dialogue, and then give your own verdict on the cases, explaining your reasons. Note: The attached Supplement has copies of Blaisdell (p. 1), Kelo (p. 9), and State v. Shack (p.17).

Earl: “Kelo v. City of New London, Home Building & Loan Ass’n v. Blaisdell, and State v. Shack were all egregious examples of activist, undemocratic courts ignoring basic rights to achieve social goals.”

Fiona: “They were indeed egregious, but you’re wrong about why: their flaws lay in too much deference to state and local governments in the face of blatant disregard for constituttional rights.”

Gaston: “You’re both wrong: Kelo, Blaisdell, and Shack are exactly right. We’d never be able to solve important economic and social problems if those cases had been decided other-wise.”

PROPERTY (H) QUESTION III OF III Fall 2009 Page 8 of 9


Answer either Question III(A) or Question III(B) but NOT both.

Handwriting: Please begin Question III in a new bluebook marked “Question III(A)” or “Question III(B),” depending on which Question you choose to answer. Please write your AGN on the cover of each bluebook. Please skip lines and write on one side of each page. Laptops : Please type “Question III(A)” or “Question III(B),” depending on which Question you choose to answer, at the start of your answer to this Question.

Question III(A) (75 minutes) Answer either Question III(A) or Question III(B) but NOT both.

The following events take place in Cane County, in the hypothetical U.S. state of Cania. Cania generally follows the common law. It has a landlord-tenant statute identical to Florida’s (in attached Supplement, pp. 20-43).

Lisa owns an apartment building in Cane County. On November 1, 2009, she rents an apartment to Tomas. “It’s a wonderful old apartment with real plaster walls, not drywall,” she says. “Be careful not to damage them.” The lease provides that “Tenant waives all rights under Cania landlord-tenant law and agrees to accept electronic communications as written communications. Rent is due by the first of the month.”

When Tomas moves in, he is unhappy to discover that there are no smoke detectors in the apartment. In mid-November he e-mails Lisa to complain. “You can’t rent a place out without smoke detectors,” he says. “Oh, yes, I can,” she replies. “Stop bothering me.”

Worried because he likes to smoke in bed, Tomas goes to a store and purchases two smoke detectors to install in his apartment. Standing in the checkout line at the store, he uses his Twitter account to express his displeasure at having to spend his own money on the smoke detectors. He tweets his followers, “Lisa Landlord? More like Lisa Slumlord, I’d say!! She nixed smoke detectors in my apt. What am I, fire fodder? Installing them myself 2nite.” When he gets home he installs the smoke detectors on the kitchen wall and on the wall in the hallway outside his bedroom. To make sure they’re installed securely, he nails them into the walls. When he hits the nails into the walls, he uses a little too much force and causes cracks of a few inches.

When Tomas mails his rent check to Lisa on November 30, he deducts the cost of the smoke detectors and includes a note explaining the deduction. Right after Lisa reads the note, which she gets on December 1, her phone rings. It’s her good friend Alex calling. “Hey, slumlord,” says Alex when Lisa answers.

“What are you talking about?”, she replies. “Don’t you follow Tomas on Twitter?”, Alex answers. “I thought everyone in Cane County read his

tweets.” After Alex reads her the full tweet over the phone, Lisa is beside herself with anger. Lisa calls Tomas immediately. “Did you use nails to install those smoke detectors?”, she asks. “Of course,” say Tomas. “By the way, sorry about the cracks they caused. But I feel a lot safer.” “You’ve damaged my beautiful plaster walls!,” responds Lisa, slamming the phone down. Lisa then

sends Tomas a formal e-mail terminating the lease and demanding that he vacate the apartment immediately, citing his failure to pay rent in full and the damage he did to the apartment.

Tomas comes to you for advice. “Meeting with A-1 lawyer this pm,” he tweets on his way to your of-fice. He asks you, “Can Lisa really throw me out like this? Don’t I have any defenses? And didn’t she violate the law by not putting in smoke detectors?”

What advice do you give him? Explain. Question III(B) is on the next page →

PROPERTY (H) QUESTION III OF III Fall 2009 Page 9 of 9

← Question III(A) is on the previous page


Answer either Question III(A) or Question III(B) but NOT both.

The following events take place in the hypothetical U.S. state of Cania. Cania generally follows the common law, and also has a statute, the Cania Vendor and Purchaser Risk Act (in attached Supplement, p. 44).

Alex had a house in Cania, which is prime hurricane country. On November 1, 2009, Alex took a job in Montana effective in about three weeks, and put the house up for sale. When Bonnie came to look at it a week later, on November 8, 2009, she fell in love with it. She re-marked that she was a little worried about hurricanes. She didn’t make a big point of it, though, because she was comforted when she noticed metal tracks around the windows – the kind used to hold hurricane shutters in place. “Looks like you believe in being prepared,” remarked Bonnie as she eyed the tracks. Alex, a man of few words, replied that he’d always felt safe in the house.

That same day, after Bonnie had taken a look through the house, they signed a contract in which Alex agreed to sell the house to Bonnie for $400,000, with closing scheduled for Decem-ber 15, 2009.

Alex moved out early in the morning on November 20, 2009. Bonnie happened to stop by while he was moving out, and she asked if he’d mind if she moved in before closing. He said, “why not?” and gave her the keys to the house. Bonnie arranged for movers to bring her furni-ture on November 23. Bonnie arrived at the house on November 23 expecting to supervise the moving in of her furniture. At the last minute, however, the movers told her that their truck had broken down with all her furniture in it, and the move would have to be delayed a week, unless she paid them an extra $1,000, which she was unwilling to do. Alex had left behind an old sofa and a TV, so Bonnie spent some time in the house that day. She decided to do a little cleaning, and found a diamond ring on top of a dusty old curtain rod. “This is my lucky day – it looks really valuable,” she thought. Then she went to a motel that night.

Early in the morning of November 24, weather forecasters announced that a hurricane was headed for Cania in two days. Bonnie rushed over to the house. She did her best to prepare it for the hurricane, but although there were tracks around the windows for holding hurricane shutters, Alex had never gotten around to buying the shutters themselves, so there was not much she could really do. On November 26, hurricane Walter hit Cania. The house suffered some damage after a few of the windows shattered. When she talked to Alex after the hurricane, com-plaining about the lack of shutters, she also mentioned the ring. “Did you leave it behind?” she asked. “I never knew it was there,” he responded. “But I’m the one entitled to it. Just mail it to me.” “No way,” replied Bonnie. “It’s mine.”

Bonnie comes to you for legal advice. She asks you whether Alex can force her to go through with the closing. If so, under what conditions? And, she asks, isn’t the ring hers?

What do you tell her? What should the law provide, in your view? Why?

End of Examination


PROPERTY (H) Final Examination: Sample Answers



The agreement between Bonnie (B) and Alex (A) was either a Real Covenant (RC) or an Equitable Servitude (ES). D may want damages for the diminished value of her lot due to the fact that there are fewer trees nearby; that would require an RC. But for injunctive relief (that the second story be taken down, and/or maybe that the trees be replanted), it would be sufficient to show an ES, which is usually easier. Since most elements of RC and ES overlap I’ll cover them together.

The first question is whether the covenant was in writing. The answer is yes because the facts say that A “agreed in writing.”

Next, was there intent that the burden run with Greenacre? It certainly appears so since A agreed “on behalf of his heirs and assigns.” Since the original promisee was B, and she’s the one seeking to enforce it, it’s not strictly necessary to show that the benefit runs, but it does look like the benefit was intended to run, since the agreement was “for the benefit of B and her heirs and as-signs.” Moreover, B paid a hefty sum for the covenant, so I think it would be hard to say that the intent for the burden and benefit to run is missing here.

What about notice to D? At first reading, B might be out of luck. According to the Cania Statute, “a conveyance is invalid ... unless it is recorded.” B attempted to record the deed, but the clerk indexed it under the wrong name. This misindexing would make it impossible for someone buying Greenacre from A to find the recorded covenant. Even if D had gone down to the records office to look up the deed, she would have been unable to find it doing a reasonable search – she can’t be expected to search through other names presuming that a mistake may have been made.

On the other hand, B would point out that really did attempt to record the deed, and would say that it’s not fair to hold her liable for a mistake that the clerk made. B was diligent in recording and it should be deemed “recorded” under the statute. Yet the courts might disagree. In this case, B was the cheapest cost avoider: she was in the best position to double check that the deed was re-corded properly. All she had to do was check a few days after she brought the deed in for recording to make sure everything was fine. So, the courts might well say that the deed was not “recorded.”

But even if it’s not recorded, that’s not the end of the matter. The statute doesn’t invalidate unrecorded deeds against everyone. It invalidates them only against the people listed in the “ex-cept” clause. If D is one of those people, then B’s unrecorded deed would be valid as against D.

Is D one of those people? She’s not the “grantor;” A is the one who granted the covenant. Is she an “heir, devisee, or donee” of A? She did succeed to A’s interest in Greenacre. Strictly speaking she can’t be the heir or devisee of A, since A is still alive, though she was named in the will he wrote. She might be a donee, since A basically said he was giving Greenacre to her. What

Property (H) Question I of III Fall 2009 Page 2 of 17

complicates it is that A asked for $2,500 to cover his wardrobe. Does this mean Greenacre wasn’t a gift? B would argue that in D really is a donee, in light of the fact that (a) the price is so low as to be practically nominal; (b) the price is unrelated to the value of the land; and (c) D was originally going to get it for free in his will. It’s not fair, B would argue, for the covenant for which she paid a “substantial sum” to be invalidated against someone (D) who got it practically for free, and in that spirit. D would reply, though, that $2,500 is not nothing, and if the courts start getting into what motivated a particular price it’ll be unworkable. What about a seller who gives a friend buying the house a little bit of a discount? Still, I think B has the better argument because it really did seem in substance to be a gift.

Even if B failed on that argument, she might say that “persons having actual notice” are also on the list of people bound by an unrecorded deed. This would be a much harder argument for B, though. Would D have had some kind of inquiry notice? B would argue that almost all of them [houses] were 2 stories near Greenacre and Whiteacre”; seeing that the Greenacre house was so dif-ferent, she should have asked why. But this is a little week. A house might be one story only in a neighborhood of bigger houses just because the owner likes smaller houses.

B has a stronger argument that D had inquiry notice when A told her that he thought there might have been some other agreements about what can be done with Greenacre, in which case D replies “whatever.” A made a specific statement that what can be done to here property may be lim-ited, and D decided not to inquire further. Bad move on her part because it looks like she was at least on inquiry notice that there were restraints on Greenacre. Of course, D might say that A told her that he might have been wrong about the limitations, but this would not be enough to counter the fact that she was put on at least some notice of the covenant.

The final question on notice, though, is whether inquiry notice is enough. The statute says “actual notice.” If it means D has to actually have the restriction in mind, that would not be met here. That kind of standard, however, would promote ignorance rather than diligence. The court shouldn’t assume that that’s what the legislature intended.

Does the covenant touch and concern the land as far as the trees are concerned? There are many things that a court might look to in order to answer that question properly. First, does the bur-den physically touch the land? Yes, it appears so because on the one hand you have trees that are physically connected to the land. Does the burden affect the value of the land? In this case, it appar-ently does affect the value of B’s land, since she says that with the trees gone, the value of her house has gone down; having trees on the lot might affect the value of D’s land. Moreover, it’s not as if the benefit is in gross and doesn’t affect the surrounding lands, which courts will be more apt to uphold since it’s not just used for benefiting a particular person. So, it appears in the value sense that it does touch and concern the property.

Does it touch and concern in regards to the height limitation? Yes, it appears so since D may have to refrain from building two-story houses. D might say that the house can be taken down and there isn’t any intrinsic physical connection, but generally a house would seem to physically touch the land. And B would point out that not being able to build two stories affects the value of D’s land.

Most importantly though for touch and concern, the courts will want to know whether the covenant makes sense as an underlying policy for that land. The size of houses and the degree to which the area is forested would seem to be something that makes sense as part of a land use re-gime. They both affect the look and feel of a neighborhood. The main countervailing considera-


tion might be that good policy is to allow for development of one’s property, so as to make it more marketable (who wants land in which you can’t build?). Also, if D were allowed to cut her trees down so as to provide for more development, then this would also be in favor of god policy.

Assuming all these requirements are met, then B could show an ES. For an ES, there doesn’t need to be privity, so as long as the others elements aforementioned are satisfied, B will be able to force an injunction on D. The only thing B would need to show is that she, the person seek-ing enforcement of the ES, is an appropriate person to do so, and that D is in possession. Di is clearly in possession of the land, B is not a busybody interfering with someone else’s land use ar-rangement. She’s the neighbor being affected and she was a party to the initial covenant.

If there is privity and the other elements are satisfied, then B can get either damages or an injunction or both. The covenant between A and B was done as if it were neighbors talking over a fence to each other, so there is no horizontal privity (HP). For HP, the covenant must be done along with the conveyance of land, and is usually accompanied by a subplotting of land. Here, there does-n’t seem to be any of that. B bought her land around the same time as the promise, but they really are two separate transactions and there is nothing to note that A sold B Whiteacre, so no HP. For there to be vertical privity (VP), there must be a full conveyance of one’s interest. Here, D picked up A’s deed in full (there is nothing that says it’s a life estate or any other limits) and so the burden would run via VP.

Many jurisdictions require HP and VP for the burden to run. If so, B can’t get damages. Others might dispense with HP but require VP, in which case B can get damages.

Finally, even if the burden runs there is a question of whether the promise was in fact vio-lated here. The deed’s wording is of course ambiguous so it is difficult to tell if D did in fact vio-late the promise.

As far as the trees go, the promise says that “no trees on Greenacre shall be cut down. “ D will say that she didn’t cut any trees down and so there is no violation. B will strike back and say that her intentions were to keep the trees in place, and she couldn’t have expected to account for every strange instance such as arson.

Courts like to stick with the intentions of grantors, and of those who make initial promises, and it seems reasonable that they might find in favor of B here because, although the deed doesn’t say anything about trees not allowed to be burned down, that seems unfair to B who just wanted them to be in place to add to her property value. So, the court will probably find that the promise here was violated.

Was the covenant about the house violated? B doesn’t even think that D’s pad is a house much less a one-story house. Here again, the deed is ambiguous and states that no house higher than one story can be built. But it doesn’t say that D can’t build other things such as a studio higher than one-story. So B’s argument actually works against her here. Moreover, D’s place does seem to be a house of sorts since she sleeps there occasionally and it has a bedroom (albeit small) and a small kitchen and bathroom. Regardless of what D calls it, it sounds like a house and the court will proba-bly say that it is a house.

Even if it’s a studio and not a house, D is still probably violating the promise here because if the court looks to the original promisors intentions, they will find that it’s the height restriction that is important, and not the nature of the structure on the land.


Therefore, no matter how you look at it, it appears that the covenant has been violated. If B has a chance to recover or get an injunction, that will depend on whether the court finds that the burden runs with the land (the previous analysis). As far as policy goes, the court might find for D since although she is acting like a lunatic with her art displays, the covenant seems a bit arbitrary unless it really does have an impact on B’s property (or value thereof). Other than B’s mention that it affects the value of her land, one might not be able to infer that it does. However, who would want to purchase B’s land when you’ve got a crazy arsonist living next door?


Who owns Blackacre?

When Otto (O) dies, he gives Xaviera(X) a life estate in Blackacre (BA). He also gives Alex (A) and Bonnie (B) a contingent remainder in BA in fee simple. The contingency is that “Cane tur-tles are no longer endangered.” If that condition isn’t fulfilled, then it goes to the World Wildlife Fund (WWF) in fee simple. O’s will also grants an easement to “to Yolanda (Y) and her heirs and assigns for access to the beach.” When Y sells Whiteacre to Zelda (Z), who also purchases the adja-cent Greenacre, a question arises whether Z has a right to use the easement. (discussed further later)

When X dies her interest in the land ends. Her heir Virginie has no right to the land because X only had a life estate. The dispute in ownership of BA arises between A and B (and potentially A’s creditors), and WWF.

In examining the validity of the grant it is important to notice that there is an ambiguity in the condition for ownership, “if Cane turtles are no longer endangered.” A and B would argue that when the Cane turtles went extinct the plain meaning of the grant would convey the land to them. Their status changed from “endangered,” which it no longer was, to “extinct.” However, WWF would argue that O’s intent in the grant as an avid turtle lover was more likely construed to mean that he wanted the turtles to be taken off the list by a population increase, not by extinction. “No longer endangered” meant thriving, not gone forever.

It would seem most clear to assume that the grant actually was supposed to be given to A and B when the condition of the turtles improved, and not when they were extinct. It’s hard to be-lieve O was indifferent to how the turtles stopped being endangered. Maybe he meant to give A and B an incentive to volunteer to help the turtles.

On the other hand, since it’s WWF that would get it if the “no longer endangered” condition was unfulfilled, and since WWF might reasonably be expected to help the turtles, it might be that he envisioned BA going to the WWF if and only if the turtles needed help – that is, that they were still alive, but endangered. When they went extinct, they could no longer benefit from the WWF’s help.

If a court decides that “no longer endangered” includes extinction, then by the will A and B would get it. But before we can reach that conclusion, we have to see if A and B’s interest is valid under the Rule against Perpetuities (RAP). The RAP requires that in order for future interest to be valid, and to help protect against extended dead hand control from the grantor, the condition must be certain to either vest or forever fail within 21 years of the lives of the people alive at the grant. Under the classic “what might happen” approach, we have to ask this as of the time the grant was made (when O died), ignoring what happened later.


Before we can ask what might have happened, we have to ask whether Cania follows the Doctrine of Destructibility of Contingent Remainders. Under the DDCR, if a contingent remainder hasn’t become vested by the time the previous life estate holder (here, X) dies, then it’s just de-stroyed. What this means is that we could say is that as of 2000 (when O died and his will took ef-fect), we could point to X as the measuring life. We wouldn’t know as of 2000 whether or not tur-tles would ever be off the endangered species list; but what we could say is that if that condition weren’t fulfilled by the time X died, A and B would never get BA, whereas if it was fulfilled by the time X died, A and B would get it (assuming it was interpreted to include extinction). This means we can use X as a measuring life: we’ll know one way or the other by the time of her death whether A and B’s interest will ever become vested. Therefore their interest would not violate the RAP.

If Cania did not subscribe to the DDCR, the result would be different. We could no longer be certain we’d know by the time the X died. Suppose X died and there were still turtles, but en-dangered. Then BA would go back to O’s estate, and whoever held his other property would get BA in fee simple subject to an executory limitation. If at some point in the future turtles were no longer endangered, then B and A would bet it. (If B and A died and the interest was still unre-solved, their heirs/devisees would get it when turtles were no longer endangered.) It could be many centuries from now before the turtle question was resolved. There’s no one we could point to and say, “we’ll know by their death (or within 21 years of their death) what the status of Cane turtles will be.” Since there’s no measuring life, RAP would strike it.

Even if Cania has no DDCR, there might be hope for A and B. Cania might have adopted some reforms. If Cania had a wait and see approach, A and B might win, since we knew within 8 years of the creation of the interest what happened to the turtles. Or the court might modify the lan-guage of the will to something like “if Cane turtles are no longer endangered when X dies.” But if the court didn’t do this, then A and B’s interest would be struck. Would this mean that WWF would get it? The problem is that if they have an alternative contingent remainder, you run into the same problem – there’s no measuring life. BA could end up back in O’s estate.

Can Alex’s creditors get his share if A and B own the property? Is there anything else A and B can ethically do to keep the property away from creditors?

Assuming that A and B end up being the owners of BA, whether or not Alex’s creditor can get use BA as a repayment for his debts depends on what type of ownership A and B have. In the deed, O grants, upon the satisfaction of the condition, to A and B “to have an to hold together, oth-erwise to the WWF.” At the time of the grant A and B were married. This could be a joint tenancy, a tenancy in common, or a tenancy by the entirety. It could be entireties only if Cania has that form of ownership, which not all states do. If it does, then because they were married when they got the interest, it’d likely be in entireties. That seems to be what A had in mind, since he probably knew they were married and the language “to have and to hold” sounds like a wedding vow.

If there’s no entireties in Cania, it could be joint tenancy or tenancy in common. Joint ten-ancy has rights of survivorship. It would make more sense for A and B, as H&W, since they’d likely expect the survivor to get full ownership. The problem is that in many states you have to be explicit about the survivorship to create a joint tenancy here. Here the will really wasn’t, unless you read it as referring to their status as a married couple with the assumption of survivorship, but that’s really stretching it. If there’s no entireties, it’s likely a tenancy in common.

If Cania is a jurisdiction where tenancy by the entirety is recognized, then creditors probably cannot attach the BA to satisfy the individual debts of B or A. The idea is to protect the family.


The theory is that lenders shouldn’t count on land by the entireties as security for a loan unless they get both spouses to sign, so it’s not unfair to creditors. The casino should’ve done research into A’s finances before letting him run up a big tab. There are some entireties jurisdictions where they would let A’s survivorship interest be attached. This means that if he outlives B, the casino could go after BA for the judgment. It’s conceivable that some states would let the casino have posses-sion of BA, but subject to B’s survivorship interest; if she outlived A, then she’d get it free and clear, but if A outlived B, the casino could keep it.

If Cania doesn’t have entireties, it really doesn’t matter whether BA is held in joint tenancy or tenancy in common. Either way, A’s interest can be attached by the casino. If it was a joint ten-ancy, then it would sever the survivorship aspect.

If Cania does recognize entireties, one ethical way to keep the creditors away for sure would be for A and B to convey the property to their children, if they have any (assuming the kids will still let them live there). That way, if B dies before A, it won’t end up in A’s hands and vulnerable to the casino.

On what basis might A and B or the WWF ( depending on who owns BA) block Zelda’s ac-cess? Would they succeed?

If the owner of BA (either A and B or WWF) wanted to restrict Z’s access to the easement depends both on what type of easement Z owns.

O originally granted the easement to Y “and her heirs and assigns for access to the beach”. The owner of BA would argue that the easement was an easement appurtenant, for the use of Y and her heirs, assigns, etc., so it ran with the land. The language of the deed suggests this, plus it would make Y’s land more valuable, so it probably is appurtenant. This means that Z gets to enforce it as the owner of the dominant estate. And A and B (or WWF) is burdened by it as the owner of the ser-vient estate.

The owner of BA could argue, though, that Z is wrongly trying to use the easement to bene-fit not only Whiteacre (WA) but Greenacre (GA). She sits on her porch on WA and enjoys the view over GA. There’s an absolute rule against using an easement benefiting one piece of land to benefit another as well. That’s true even if you combine the parcels. Applying this rule here, though, is really stretching the idea of “use.” Mostly she’s kept the parcels separate; it’s not like she built an extension to the house on GA, or drives across GA to get to WA. There’s even a small fence be-tween them.

What’s more serious is that she lets guests camp on GA, and then use the easement across BA. This might sound like trying to use the easement for the benefit of GA, which isn’t allowed. The main thing that might save Z here is that the use isn’t that often – “sometimes” she lets friends camp there. It’s possible, though, that A&B/WWF could get an injunction against that particular use.

What they couldn’t do, though, is block access entirely. Z has the dominant estate, and blocking access over BA like this is entirely incompatible with Z’s rights as the owner of the domi-nant estate.

Property (H) Question II of III Fall 2009 Page 7 of 17


I agree with parts of this statement and disagree with others. It’s true that sometimes the law just regulates the process of decision-making, and other times, the substantive terms of the decisions. For example, the law presumes that people mean a fee simple unless they make abso-lutely clear they mean something less, like a life estate. This is because people usually do mean fee simple, and there complications from having life estates. But the law doesn’t forbid people from creating life estates – it just says, “you need to be clear about what you’re doing.” The same thing is true with delivery in gifts. If you want to make gift, you can; the law doesn’t make you do it or forbid you from doing it. But the delivery requirement makes you focus on the fact that you are after all making gift, and giving something up. These are examples of regulating the process of decision-making.

On the other hand, the law doesn’t allow to put a restraint on alienation in a deed. The worry is that allowing these would tie up the land market. It doesn’t matter what process you use; you just can’t do it. The same is true of touch and concern. The courts just won’t enforce some private covenants if they think it makes no sense to do so. These are examples of regulat-ing the substance of decision-making.

There are also cases where rules don’t make any sense, either in process or substance terms. The horizontal privity requirement is one example. There’s no reason why courts should refuse to enforce something as a real covenant just because it wasn’t made in connection with some transfer of the land. Why should enforceability of an agreement as a covenant be auto-matically ruled out just because it was made by two neighbors talking over a fence who decide to create the agreement (in writing, with notice, etc.)? Executory interests and contingent remain-ders are basically the same, too – future interests held by third parties, with some contingency. So why should the DDCR destroy one and not the other?

I disagree with the rest of the assertions of the statement, though. First, it’s not true that courts should be in charge of laws regulating processes, whereas legislatures should be in charge of laws regulating substance. There’s no reason to think that one branch is going to be better at substantive or procedural laws than the other.

Also, the claim that it’s bad for democracy if courts change substantive laws is too broad. If courts just disregard a statute, that is undemocratic. The legislature is elected, and the courts should respect the statutes the legislature passes. But there will always be ambiguity and room for interpretation when it comes to statutes, specifically because they are so broad in nature (by necessity). Therefore, judges (imperfectly) attempt to ascertain the intent of the legislation at is-sue to arrive at a just decision. This invariably means that judges must shape the law to conform with the intent of the legislation in specific cases.

Moreover, there are many common law rules created by courts. If the courts created them, why shouldn’t they modify them? While some may call this “judicial activism,” I believe they are doing exactly what they should be doing. If we didn’t want judges to use their expertise, experience, and their acute sense of fair play and substantial justice in their decision-making process, we might as well use computers to adjudicate cases” If all that is needed is to follow “the law,” we could simply created algorithms to handle the dispositions of cases and save a lot of money in the process.


For example, courts created the distinction between assignment and sublease. If they want to abolish that distinction, and hold that a subtenant of a sublease is responsible to the L for rent, why shouldn’t they? If the legislature doesn’t like that, it can always pass a statute.

Courts may not be quite as good as legislatures in dealing with complex issues, but even here there’s a role for them. One example is the warranty of habitability. Faced with poor ten-ants with unequal bargaining power, why shouldn’t the court modify the old common law rule that made the T responsible for repairs? It’s true that this might have some bad effects (like pric-ing poor T’s out of the market), and it’s hard for the courts to predict them. But even so, there’s nothing to stop the legislature from enacting a new L/T statute of its own liking, even after the court rules.

The same would be true of options and preemptive rights and the RAP. Here the state-ment saying they’re the same is wrong. Options are very problematic if they last forever because they’re at a fixed price. A holder of an option in gross has a personal right to buy the land at a specific price. This is a huge disincentive for the owner of the land to improve the land or main-tain the property because the holder can exercise his option at any time and benefit from the owner’s improvements, leading to an unjust enrichment issue. Also, the holder in gross may be difficult to locate. So from society’s point of view there are real problems with them.

Preemptive rights are less worrisome because they’re at market price. Preemptive rights do not create disincentives to develop the land or maintain the building in good order because the holder still must pay a fair price for the property should he or she choose to exercise their pre-emptive right.

Here, too, if the courts want to decide, say, to apply the RAP to options but not preemp-tive rights, why shouldn’t they make that substantive decision? It’s not undemocratic, because if the legislature disagrees, it can just enact a statute changing the rule the court adopted.

Finally, courts are insulated from the emotional, reactive nature of our political process. While the legislature can be described as more “democratic” than the judiciary because of elec-tions, it can also be argued that it can at times be less fair, especially when the legislature exer-cises its “tyranny of the majority” on the minority. Additionally, the courts provide an opportu-nity for social change that may otherwise never occur. One example is State v. Shack, where the court protected the rights of migrant farm workers who have very little influence in politics. It may have been decisions like that one (in NJ) that spurred some legislatures (like FL) to finally enact statutes protecting migrant farm workers.


O’s will gave Alex a life estate. Bonnie has a contingent remainder in fee simple subject to an executory interest. The contingency is that Bonnie or “her son” conquer cancer. If that contingency is fulfilled, B gets it, but subject to the limitation that it be used for single-family residential purposes. Y has the executory interest, which means she’d get it if B got it and then didn’t use it for single-family residential purposes. O’s estate could have a reversion, which would take effect if B’s interest never vested. That reversion is held by the NCS.

The first question is whether Bonnie’s interest violates RAP. If the state of Cania follows the DDCR, then there will be no RAP violation. This is the case because we will know whether the contingent remainder will vest, or not, no later than the death of Alex (the life estate holder).


Under DDCR, if the contingent remainder has vested by the time when A dies, then B gets Blackacre. But if it hasn’t vested by then, then B’s interest is destroyed – she’ll never get it even if she or her son conquers cancer later. This means that we’ll know by the time of A’s death what will happen, so A is the measuring life. This is important, because it prevents interest from vesting too remotely which restrains alienation. Such restraint would discourage investment in land and clog title. That would lead to land possibly not being put to its best use, which is a great interest of society.

If Cania does not follow the DDCR, then this grant will certainly violate the RAP, unless the RAP has been reformed. When looking at the language of the grant, it does not say Colin in particular, but rather, a son of Bonnie. This is probably a mistake on O’s part, but it’s the reason the RAP is violated. This is what might happen (as of 2003 when the will took effect): Bonnie has another child D and her current son Colin dies before either B or C conquers cancer (what-ever that means). Shortly after Bonnie has another son, she also dies. BA goes back to O’s es-tate (and so NCS) with an executory interest in B’s estate, waiting to see whether “her son” con-quers cancer. D grows up, and at age 50 conquers cancer. This is many more than 21 years after the death of anyone alive at the time of the grant. There is no one you can point to as a measur-ing life, and consequently, this violates the RAP. This is exactly the type of remote vesting sce-nario that Cania would want to prevent because of its effect on alienation.

It might be possible to interpret the reference to “her son” to mean Colin. Normally, you don’t want to exclude after born children from taking part in a gift. For example, if there was a life estate in A with a contingent remainder in “B’s son,” and B had no son at the time, you wouldn’t want to read it as excluding a son born after the will took effect. But here, it’s impor-tant to remember that B’s son wasn’t supposed to get anything – it was a question of whether B or her son conquered cancer. And O knew that B and C were doing research together. On the other hand, if O really meant C in particular, why didn’t he refer to C? He referred to B by her name.

If the court reads “B’s son” not to mean C specifically, and there’s no DDCR, then it’ll strike out B’s interest. That means that after A died, it would revert back to NCS. NCS would have fee simple, because the single-family restriction would apply only if B or her heirs/devisees ever got it. Y would have nothing.

However, Cania may take a try to work their way around RAP. They may use a wait and see approach. They might wait to see if a B or a son of hers conquered cancer within 21 years of the death of someone alive in 2003 when the will took effect. Additionally, they may use the Cy Pres approach where the court rewrites the grant so it actually does follow the RAP. In this case, a good way to rewrite the grant would be to put Colin’s name in place of “son” because it was probably meant to mean Colin in the first place, considering both Bonnie and Colin won the No-bel prize.

It is also important to note that the executory interest in Y is also invalid, even if some-how B’s interest is OK. Under RAP, this limitation could vest many decades after the death of anyone alive in 2003. It could be centuries before the condition was violated. So it’s possible that B, if she got it, would get it in fee simple. However, if the court is willing to use wait and see or cy pres for B, it would probably do that for Y as well. It might say, “let’s wait and see if the condition is violated in the perpetuities period,” or rewrite the grant to say that B forfeits it if B uses it for something other than single-family residential uses.


Assuming that RAP doesn’t stand in the way, the court is going to have to interpret what “conquering cancer” actually meant. In this case, Bonnie is going to want to hire a good lawyer with her Nobel prize money. She will probably argue that because she got cancer and fought it into remission, which the doctors seemed to pronounce a cure (which she celebrated a little early, but the five-year mark does look like it came before A died), she has “conquered” cancer.

NCS, which stands to gain if the condition wasn’t met, will attempt to combat this inter-pretation by looking to the language of the grant complimented by the implicit grantor’s intent. It will say that the reason O put Bonnie and her son into the grant in the first place is because of his admiration for their work regarding cancer research, not for their potential to personally beat cancer that they might get. NCS will argue that this was meant to incentivize their hard work to-wards the aim of finding a cure, and thus conquering, the disease of cancer. Thus, this intent, NCS will argue, will mean that conquer cancer has to do with finding a cure for the diseases and not personally beating it after finding being diagnosed. The very fact that O left all his other property (including the reversion) to NCS is evidence that he was really interested in a general cure, not in heartening individual stories.


Under the Fifth Amendment Takings Clause, property may not be taken for something other than a public use. Susette Kelo lost her home when it was taken via eminent domain so that the City of New London could revitalize the area in question. She objected to the City’s plan to immediately sell her house to a private developer as part of a comprehensive development scheme.

Earl states that Kelo was an “egregious” example of “activist, undemocratic courts ignor-ing basic rights to achieve social goals.” To even properly address this portion of Earl’s argu-ment, one would need to define what an “activist court” is. Under general circumstances, the term may refer to a judge who departs from the precedent set forth by case law or who is too quick to overrule the laws or intentions of the legislature.

I’d have to disagree that Kelo was activist this way. The Court was following its prior cases. The question was whether or not the City’s action satisfied the “public use” requirement. The Court has interpreted this to be satisfied by a public purpose, as it had done in earlier cases. Trying to decide what constitutes public use would lead to arbitrary distinctions as to how much public access would justify the taking and transfer to another private party.

Was this a public purpose? Ms. Kelo’s home itself was not blighted, nor was her neighbor’s, who had lived in her home for her whole life, almost a century, and for about six decades with her husband in that home. So there was no public purpose in removing a blight as far as her own house was concerned. But the taking was part of an effort to promote economic development of an area that had been economically blighted for a long time. Previous cases like Berman had upheld that kind of taking, even if it involved transferring property to another pri-vate party, so the Court, instead of being activist, was just following precedent. served a public purpose arises.

Justice O’Connor dissented, citing the possibility that this outcome will give government an almost unrestricted ability to take and destroy lower revenue-producing property for replace-ment with higher tax producing commercial properties, thereby endangering the innocent private


homeowner. She likened her argument to the possibility that churches could be destroyed for mega retail stores, or even a Motel 6 being taken and destroyed to be replaced by a Ritz-Carlton. Her position has some merit, but it would involve overruling Midkiff and Berman – why wouldn’t her dissent be the one that was “activist”?

Both Earl and Fiona also say that the outcome was just a flat violation of property rights. Property rights aren’t absolute, though. The bundle of sticks allows the owner to exclude others, convey/ transfer, and possess and use their property. But, as stated above, the Constitution doesn’t give absolute protection to all the sticks in the bundle – it allows for some takings. If the government were to be completely prohibited from ever taking any private property for the pub-lic benefit, there may not be any railroads, military bases, highways, commercial enterprises, or other establishments serving a public good in any given community. If the government were prohibited from then transferring to developers any property it’s condemned via eminent domain, it would mean that all redevelopment schemes would have to be either entirely government-owned or entirely privately done. Why can’t a community decide to do something that’s mixed?

Earl and Fiona also take opposite sides on how deferential the courts should be. Earl thinks the Court was undemocratic; Fiona says it was too deferential to local elected govern-ments. Perhaps Earl’s concern relies on his perception of how bad the situation has to be for a local government to oversee redevelopment that includes private developers has to be. How do we draw the line between a true need for a comprehensive development plan and a taking that’s just there to be benefit one private party? I agree with Earl that democracy is important, and dis-agree with Fiona that the Court was too deferential to local government. The legislature, elected by and representing the people, made a determination after a lot of consideration that this was a good plan for economic redevelopment of the area, and that Kelo’s house was necessary as part of the plan. If legislatures can’t do this, even with just compensation, Gaston might have a point – local legislatures would be prevented from addressing real problems.

Earl may have a point in one sense, though – the local government backed down from the plan even after it won. The area in question in New London still has not been redeveloped ac-cording to the NLDC plan based on political backlash from private property rights proponents. That’s just an example, though, of the court letting the political process decide things.

In Blaisdell, the Minnesota legislature had declared the Depression as an emergency, thereby allowing mortgage foreclosure sales to be postponed, while extending the periods of re-demption. This protected the homeowner who could not make their mortgage payments. How-ever, here we come to Fiona’s argument that a “blatant” constitutional violation was involved. Article I § 10 provides that “No State shall ... pass any Bill ... impairing the Obligation of Con-tracts.” The bank argued that this legislation did just that. Also, it’s the kind of legislation the framers seemed to have in mind when they included this provision in the constitution.

The Court’s response to this is that the constitution can’t just mean whatever the framers intended, but has to take into account changing needs over time. This might make it seem “activ-ist” in the sense above, if the courts are saying they don’t care what the framers intended. If it was just a question of the justices saying they thought homeowners needed relief, that would sound activist. But Fiona’s criticism of the decision as being too deferential to local authorities is actually what saved the decision from this criticism. Chief Justice Hughes found the economic needs of the state to justify such exercise of that power, and realized that even still at the end of the day, the legislature was better equipped to make such decisions on how to exercise that power would be effective in meeting public needs or not. As per Gaston’s argument, these social


ills of declining homeownership in the Depression era may not have been offset if the mortga-gors weren’t given a break. The Supreme Court’s deference to the legislature only re-enforces the democratic nature of our legislative and judicial systems.

It’s also wrong to say that there was a blatant violation or impairment of contract rights here. Without this kind of intervention by the legislature, contract rights might be worthless. The Depression imposed extreme hardship on many people. It is not usually to the benefit of the banks to have most borrowers defaulting on their loans. And the more borrowers who defaulted, the worse off the economy would be, making it harder for everyone to pay off their mortgages. Banks would be better served with borrowers getting some temporary relief to stop this kind of downward spiral.

Lastly, Earl and Fiona must both understand that property rights are not absolute. In State v. Shack, there remained a principal interest in the protection of human welfare. Though Tedesco, the property owner in this case, held the bundle of sticks in property ownership men-tioned above, it’s there’s no stick in the bundle for right to trample over the health and well-being of migrant farm worker employees. This wasn’t a case of taking away a property right, but of defining what the contours should be. Tedesco had opened his farm up to a lot of strangers (the employees), so he couldn’t claim a privacy interest here. His only interest seems to have to keep the employees under his control by controlling their access to medical care and legal repre-sentation. There’s nothing that says property ownership intrinsically has to include that power.

However, Gaston may be going too far in his argument that “we’d never be able to solve important economic and social problems if [these] cases have been decided otherwise.” In Shack, it was the New Jersey Supreme Court that decided the case. Courts aren’t perfectly suited to solve these problems, though. Some of the contours of the decision are unclear, and maybe a legislature could handle them better. That’s what happened in Florida – the legislature passed a statute giving access to migrant farms. The court system is not the sole resource for solving eco-nomic and social problems.



Whether L can terminate the lease and throw T out depends on L’s duties to T to main-tain the premises. 83.51(1)(a) provides that L must “comply at all times with the requirements of applicable building, housing, and health codes.” Failing to install a smoke detector seems as though it would be a violation of these type of codes. However, it is unclear whether Cane County has such an applicable housing code. 83.51(1)(b) requires L, in the absence of a housing code, to keep the place in sound structural condition. It’s probably not likely that smoke detec-tors would fall under this section.

If Cane County does have a housing code that requires smoke detectors, the duty is not waivable. 83.51(1) states that landlord’s obligations may be altered or modified by writing with respect to a single family home. Since T’s in an apartment, this waiver section doesn’t apply.

If there’s no Cane County housing code, T might look to 83.51(2). Under (b) of that sec-tion, L should have installed the smoke detector. This section is ambiguous, though, since it re-fers to the commencement of a tenancy of a single-family home or duplex. It sounds like it’s saying that the duty applies only to homes and duplexes. It’s possible that that reference applies only to the waiver provision that begins the subsection. So one possibility is that L has to install a smoke detector only in a home/duplex (unless otherwise agreed in writing), in which case L had no duty here. Alternatively, L might have a duty to install them, but the duty could be waived for a house/duplex. It would be better to adopt the second interpretation. Landlords have unequal bargaining power and reasonably priced housing may be difficult to find.

So L may have had a duty under 83.51(1)(a) (depending on the housing code) or 83.51(2)(b). If the duty is under 83.51(1)(a), then under 83.60(1), T could withhold rent and pay it into the registry if he gave 7 days written notice to the L of the problem and his intention to withhold rent. It doesn’t sound like he did that here. If his Tweet was 7 days earlier, he might argue he gave electronic notice. Since the lease says T has to accept e-mail as writing, the court might read it the other way around, too. Even so, it wasn’t really directed to L. She didn’t read his tweets.

If the duty was under 83.51(2)(b), then the rent withholding wouldn’t even be allowed. 83.60(1) applies only to claims the L has breached a duty under 83.51(1). (If the duty is under both, T is OK. Under §83.51(2)(3), if the duty imposed in (2) is the same or greater than the duty imposed in (2), L’s duty is determined under (1).

One problem, however, could be the fact that T damaged the walls while attempting to fix the problem with the smoke detector himself, and also that he withheld the cost of the smoke detectors. Under the Cania statute, there is no repair and deduct clause. So, L could argue under §83.52(6), that T defaced or damaged the premises, in his attempt to install the smoke detectors. L would then argue that under §83.56(2) T materially failed to comply with 83.51(2) (by failing to pay full rent), so L has the right to terminate the rental agreement. The problem here is that the L needs to give 3 day written notice of intent to evict. She did send him an e-mail, which might be “written.” (The lease says T accepts e-mail as written.) But she can’t terminate it im-mediately as she said.


L might also say the nail holes are damage to the apartment that allows her to terminate the lease. However, a few holes in the wall from the installation of a smoke detector does not seem like a material failure to comply with T’S obligations. Furthermore, under §83.56(2)(a) the nail holes are not a noncompliance that the tenant should not be given an opportunity to cure -the examples listed include destruction, damage or misuse by an intentional act. It might be arguable that T was upset about the lack of smoke detectors and may not have been very careful installing the smoke detectors. However, there is no evidence to suggest that it was intentional. The non-compliance is of the nature that the tenant should be able to cure it under §83.56(2)(b). Therefore L would have to provide T written notice specifying noncompliance and give him the opportu-nity to correct within 7 days before L can terminate the agreement. The portion of the lease where T agreed to accept electronic communications, would permit L, to send T an email notifi-cation regarding the specific noncompliance, giving him 7 days to fix the holes in the walls.

Finally, in addition to T’s previously mentioned defense to L’s action for possession, T can also raise the defense of retaliatory conduct under §83.64(1). L received notice of both the letter regarding the rent reduction and the phone call informing her of the negative comments T made about her on Twitter; there is a strong argument that she was retaliating against T for the comments. Tweets aren’t specifically mentioned under 83.64(1), but that list is illustrative, not exhaustive. Under §83.64(1) to raise this defense T must have acted in good faith. Tweeting about L might not be such good faith, since he didn’t try to resolve it with her first. §83.43 de-fines “good faith as honesty in fact in the conduct or transaction concerned.” And he was basi-cally honest in the fact he asserted – that she wouldn’t pay for the smoke detectors – and the rest is probably just opinion.

In her defense L might point to §83.64(1)(3), which says this section does not apply if the landlord proves that the eviction is for good cause. The landlord arguably could have terminated because T failed to pay the full amount of the rent by the first of the month. Again, Cania does not have a repair and deduct clause, so T should have paid the full rent.


Answer either Question III(A) or Question III(B) but NOT both

At common law, after the signing of a contract, the seller only has the legal title to the property; the buyer has the equitable title and is the “real” owner because he can force the sale to go through. The buyer therefore has then traditionally been liable for any damages that may oc-cur between the signing of the contract and closing. However, this principle has been changed by statute in most states.

In this instance, the Cania Vendor and Purchaser Risk Act (CA), has established statutory guidelines changing the common law. The subsections of the CA give B different rights depend-ing on whether she has been transferred legal title or possession of the house. If she has neither legal title nor possession, she will be covered by §1(a), but if she has either legal title or posses-sion, she will be guided be §l(b). Ideally, B would like to fall under § 1(a) which will not allow the vendor to enforce the contract under § 1 (a)(1).

As noted, under the common law, B would have title to equitable property after signing the contract. She wouldn’t get legal title until closing, so she didn’t have legal title at the time of


the damage. The question is whether she had possession at that time. B would argue that she was not in possession of the residence. She has not moved any of her furniture into the house. She did not stay there at night, either, though it’s a little unclear on the facts where she slept after the 23d. It looks, though, like she was just there part of that one day.

However, A is likely to respond that he had given her the keys to the house. This may be viewed as a symbolic gift, fully transferring possession to B. He had the intent to give the keys to her and continue on with the transaction. There is no way to physically hand over a house, so the delivery of the keys to it should be sufficient. This is similar to Gruen where the father did not have to physically deliver the painting to his son, but that his intentions were well met and satis-fyingly delivered based on letters saying he was giving his son the painting. Further, A moved almost all of this things out of the house an arguably abandoned the sofa and TV. Finally, B had tried to move all of her furniture in on November 23; the only reason she didn’t was because the movers truck broke down and it was going to cost too much.

One way to resolve this is to ask who was the cheapest cost avoider – who could have best avoided the damage to the house. This is hard to tell. A may have been in Montana when it struck. What could he do? It was B who was around, had the keys, etc. On the other hand, with no shutters, what could B do? If anyone was going to purchase them, it had to be done earlier, and that would mean A could have avoided the problem if he’d actually gotten them.

In the end, it seems the B asking if she may move in before closing and accepting the keys to the house seem to suggest that B was in possession. She might have tried to find some shutters or plywood quickly or done some other last-minute thing to protect the house. Most likely, she falls under Section 1(b).

Under 1(b), if all or any part is destroyed, then the buyer still has to go through with clos-ing and pay full price. The loss is B’s. But the statute says that this duty applies only if the de-struction is “without fault of the vendor.” She might say it was A’s fault, since he didn’t have shutters, or that it was A’s fault because he kind of misled her by his remark and by having tracks. This would raise the question of caveat emptor or duty to disclose (below).

If the court decided B was not in possession, then 1(a) applies. What would happen would depend on whether the damage was material or not. If it was material, then B could get out of the contract and get her deposit back. If it wasn’t material, then B has to go through with the closing, but with an adjustment for the damage.

The house suffered some damage to the windows that shattered. Is this enough to con-sider being all or a material part of the house?

A will argue that it wasn’t. The windows are easily replaceable. They do not cost that much money and are hardly material to the house. Something material would be a large part of the structure such as the roof, chimney or even front door.

B might try to counter that the house may have had extremely nice windows and they faced a beautiful street (though the facts do not tell us this). Or if there was extensive interior rain damage, mold, etc., after the windows were broken, then maybe it’s material. But if it’s just some windows, that’s probably not material. So if B was not in possession, then B would proba-bly have to close, but get an adjustment to the price. This is all subject to the other question, though – whether A is guilty of lying or failing to disclose.


We don’t know if Cania is a caveat emptor (CE) or duty to disclose (DTD) state. In a CE state, as the name suggests, “let the buyer beware.” The seller is under no duty to disclose any-thing, but may not lie which is considered a false representation of fact that the seller knew about that is material to a reasonable person, it was said to induce reliance from the buyer and the buyer was damaged.

B may try to argue that A misrepresented the security of the home by answering after she said “looks like you believe in being prepared” that he had always felt safe. But this might have been an opinion, not a lie. Or maybe he was misleading her by having just metal tracks, which strongly suggested he had shutters.

However, the main principal behind a CE state is the ease of administrability. CE states do not want to litigate countless hours over what is a lie versus what is opinion or a misrepresen-tation. The point of a CE state is for buyers to be prudent and ask specific questions that they care about. It is up to the buyer to find what may be wrong, the seller just can’t lie. She could have just asked to see the shutters, at which point she would have discovered he had none.

There can be an exception, as illustrated in Stambovski (ghost case), under which a seller who creates a condition that the seller knew about and which was not reasonably discoverable can be liable. It is not likely to apply here. A may have “created” this condition and may have known about it – we don’t know who put the tracks up – but it is arguably discoverable by a rea-sonable inspection.

Therefore, it is not likely that A was under any obligation in a CE state to say anything different about the preparedness of the home.

In A DTD state, on the other hand, the seller is required to disclose any fact or defect that he knew about that is material to a reasonable person and not easily discoverable. The basis be-hind this is that the seller is the cheapest cost avoider; it is the most efficient way of conducting business; and it is more fair to the buyers who may not be as prudent as they used to be when CE was more dominant.

B would argue that A knew he had no shutters. There is no indication that he did or didn’t, so there could be a factual question here.

B would also argue that the absence of shutters would be material to a reasonable person. In particular, B has a strong argument that a reasonable person would not just want he metal tracks but would want the shutters too. She even made a point to bring up the hurricane protec-tion of the house. B might also argue that she didn’t know much about hurricanes and it didn’t occur to her that someone might have tracks but not shutters. A would respond that the absence of shutters was “patent.” Overall, though, it would have been very easy for A, in response to her question, to say he had no shutters. This is the point of cheapest cost avoider – he could have disclosed the information with no cost. Further, DTD rests on the idea that it’s not nice, even among strangers, to conceal material information.

In my view Cania should adopt DTD over CE. It’s better overall if people disclose eve-rything they know about a house that a buyer might reasonably consider to be important. People can hire professional inspectors, but professionals aren’t perfect. In this instance, it’s true, an inspector would notice there were no shutters, but there’s no good reason why A couldn’t have


just said something. So B has a pretty good chance of getting out of the contract on this basis, or maybe getting damages if she wants to keep it.

The final issue concerns the ring. At common law a finder’s claim is good to all the world but the true owner. This is based on the belief on trying as best as possible to return items to the original owner and keeping items in productive use.

However, things that are found in someone’s private house tend to be viewed as probably for the homeowner to keep. Most people figure that if they own a house, and a guest finds some-thing in it, it should be theirs (the homeowner’s). If the property is open to the public (like a store), then lost property goes to the finder and mislaid, to the landowner. This falls in line with the rationale of the best person able to return the item to the original owner. If something was mislaid, the owner may be more likely to come back there looking for it, at least in theory.

B’s trump card might be that she actually is the landowner now. If she’s the owner for purposes of getting stuck with the risk of loss, she ought to be the owner of the ring (except as against the true owner). But if she’s not the owner now under equitable conversion, it’s not so clear what should happen. Nobody is really, in effect, in possession of the house. Maybe it’s like stores – it’s no one’s private place. If so, then the question might be whether it was lost or mislaid. If it was mislaid, the landowner should keep it, since the true owner might return there looking for it. If A is still the owner of the house, he should get it now. It looks like the ring was mislaid, since the only way it’d get up there would be on purpose.

What seems strange about this is that it’s unlikely the ring’s true owner is going to ever return. Why not give it to B, who found it, regardless of what happens to ownership of the house? We want to encourage finding things, plus if the law gives it to A here, future people in B’s position might just lie about having found it. This is like Hanna. There, when a brooch was found in an old house, despite the finder not being the landowner, the brooch went to the finder.

PROPERTY (D2) - University of Miami

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