Quitclaim Deed Lawsuits

Posted By on January 1, 2018

In Florida, quitclaim deeds are one of the most common deeds to transfer real estate.  (Other common deeds include general warranty deeds, special warranty deeds and personal representative deeds.) This is because a large number of transactions involving quit claim deeds are interfamily transfers (marriage, divorce, probate, etc.)

The person signing a signing a quit claim deed (the “grantor”) transfers whatever interest he or she may have in the property to the grantee.  The grantor is simply releasing all title, interest, or claims he or she may have in the real estate.  For this reason, these deeds are often times examined more closely, which is why a large number of these deeds wind up being the basis of a quit claim deed lawsuit.

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Centuries old handwritten deeds going back to Spanish land grants are a part of the chain of title in Florida title records.

 

Quitclaim Deeds in Florida

Under the law in Florida, the grantor of a quitclaim deed does not claim that the title being transferred is legally valid.  The grantor is simply passing or releasing any interest he or she may have in the property to the grantee. Furthermore, a grantor in a quit claim deed does not give any warranties or covenants of title to the grantee, which is why these deeds are sometimes the basis for nefarious transactions.

A Florida “quitclaim deed” only conveys that interest in a property held by the grantor at the time of the conveyance. Nothing more.  Zurstrassen v. Stonier, 786 So. 2d 65, 71 (Fla. 4th Dist. Ct. App. 2001).

3 Common Quitclaim Deed Lawsuits

In Florida, real estate lawsuits involving quitclaim deeds usually boil down to 3 kinds of lawsuits. They are:

1. Quiet Title Lawsuits

For a buyer to purchase an insurable fee simple interest (or full title) to real estate in Florida, he or she needs to receive “clear title” to the property.  This means that the real estate records do not have any clouds on the title for things like liens, mortgages, or any other interest that creates an adverse claim of an ownership interest in the real estate.

If a property does not have clear title, then the only option may be to file a lawsuit in the civil court where the property is located, seeking a judge’s determination of title.  This determination of title comes in the form of an official written order that is recorded in the real estate records, which cleans up the controversy and “quiets the title”, or establish a party’s title to the real estate.

Quiet title lawsuits are filed in the county where the land is located and they need to include as defendants any and all parties that may have an interest in the property.  It does not matter if the parties being sued do not care about having an interest in the real estate.  If a party has any legal claim or interest, then they need to be a party to a quiet title lawsuit.

In a these lawsuits, the court enters a formal written Judgment that decides ownership of the property that prevents the parties being sued from making any subsequent claim to the property. Basically, the judge enters an order, which determines who has title to the property.

A common quiet title Lawsuit in Florida involves situations where someone has forged a quit claim deed that appears in the recorded chain of title.  In this situation, a quiet title lawsuit is filed seeking an order from a judge, which is later recorded in the county land records, confirming the quitclaim deed is forged, thereby removing the cloud on title caused by the document.

Another common quiet title lawsuit involving quit claim deeds is where there is a wild deed. Wild deeds are recorded documents that are not connected in the chain of title.

Read: 10 Things You Should Know About Quieting Title in Florida

2. Deed Reformation Actions

In Florida, “reformation” is an equitable remedy which a judge can order on behalf of the party that seeks to clear title to real estate.  (Equitable remedies are within the powers of Florida judges, and are not dependent of any statute or law.)

A deed reformation lawsuit fixes a mistake in a quit claim deed that appears in the chain of title.  This lawsuit is designed to correct a defective or erroneous deed so that it reflects the true terms of the transaction between the parties to the deed.

Here, the parties to the deed have a deal and there is no conflict as to their agreement regarding the transfer of the real estate.  However, the quit claim deed they used to memorialize their agreement is flawed in some way.

Examples of Reforming a Florida Quitclaim Deed

As explained above, a deed reformation lawsuit involves a judge fixing an error usually in a quit claim deed.  The judge changes or “reforms” the deed so it reflects the true intention of the parties. See: Losner v. HSBC Bank USA, N.A., 190 So. 3d 160 (Fla. 4th DCA 2016).

Here are two examples of mistakes that lead to a reformation lawsuit:

a.  Grantor’s Intent Missing In The Quitclaim Deed

A common example of a reformation lawsuit in Florida involving a quitclaim deed occurs when the deed fails to state the Grantor’s intention.   If there is no language that the owner (“grantor”) wants to sell, give, or otherwise transfer his or her interests in the land, then the judge can confirm the grantor’s intent by entering an order so stating.  Once the order, or judgment, is entered, the order is then recorded in the public records removing any cloud caused by the original recorded quit claim deed.

b.  Error In The Legal Description of the Property

In Florida, real estate records are indexed by official record books and page numbers in the county where the land is located, as well as by other types of information (plat books, legal description, party name, etc.) that identify the specific real estate and distinguish it from all others.

However, it is shocking how often quitclaim deeds contain errors in the legal description of the property that is being transferred.  Even the most minor error can cause the legal description to be incorrect and cause a cloud on title (naming the wrong county, leaving out a book number or page, transposing numbers, incorrect distances or directions, etc.)

Accordingly, when a quitclaim deed contains a mistake in the legal description of the property being transferred, often times a party is left with no option other than filing a reformation lawsuit in order to correct the chain of title.

3. Partition Lawsuits

When a quitclaim deed is the basis of ownership in real estate, it is often necessary to file a lawsuit in order to sever, or partition, the interests of the owners of the property.

In a Florida partition lawsuit, a judge signs a judgment forcing the sale of the property and dividing the proceeds among the owners according to their holdings or percentage interest in the property (subject to certain adjustments).

Often, partition lawsuits are filed when a marriage or business relationship ends, when a boyfriend and girlfriend end their relationship, or where family members inherit the family home and they cannot agree on the disposition of the property.

Read: Inherited Property and Partition: When Your Brother or Sister or Other Heir Won’t Agree to the Sale

Other Issues That Can Lead To Quitclaim Deed Related Lawsuits

There are other common real estate issues that give rise to quitclaim deed related lawsuits.  These include:

1. Does a Quitclaim Deed Mean The Grantor Had An Interest in The Property?

The quitclaim deed conveys only what the grantor legally has a right to convey.  The key characteristic of a Florida quitclaim deed, or red flag, is that the grantor may or may not have any legal title or interest in the property.

As the Florida Supreme Court explains in Goldtrap v. Bryan, 77 So.2d 446 (Fla. 1955),

”[A} conveyance, which was made by made by quitclaim deed, does not amount to a repudiation of the former deed. This is true because of the very nature of a quitclaim deed, whose execution, without more, does not necessarily import that the grantor possesses any interest at all.”

When a quit claim deed appears in the chain of title, and there is no connection to any other document in the chain of title, the deed should be examined closely and a determination should be made if a lawsuit, or other remedy, is needed to address the deed.

2. Recording A Quitclaim Deed After A Grantor Dies

Florida’s real estate records exist to document and provide notice of ownership of all land located within the state’s jurisdiction.  The focus here is to create a searchable index of county by county land records, which includes all kinds of documents like Spanish Land Grants, agreements related to mineral rights, easements, death certificates, etc.

When a grantor passes away, his or her death should not have any impact on any recorded document in these land records, as long as the grantor was not subject to duress, lack of capacity, or some other disability.

This is true even if an otherwise properly executed quitclaim deed is recorded after the grantor passes away.  That later recording of a quit claim deed does not impact the validity of the deed.  Sweat v. Yates, 463 So.2d 306 (Fla. 1st DCA 1985).

3. Alterations To The Quitclaim Deed

When a Florida quitclaim deed has more than one color or type of ink, items crossed through or added by hand, or have different signatures on the document, then those issues can create a red flag as to the validity of the deed.

In those situations, a lawsuit may be necessary to confirm that the deed alterations were not made as a result of fraudulent or illegal activity.

A judge may want to hear the reasons why those alterations occurred, or testimony regarding the circumstances that surrounded the changes.

If the quitclaim deed has alterations that are suspicious on its face, then the person who is claiming ownership under the quitclaim deed has the burden of providing evidence to the court that the quitclaim deed is legitimate and the reasons for the suspicious alternations on the document.

Furthermore, some alterations are void on their face.  For example, if the quitclaim deed alters the name of the person who is getting ownership (the grantee), then under Florida law that deed is void on its face.  See, Mann v. Mann, 677 So.2d 62 (Fla. 1st DCA 1996).

Are You Having An Issue With A Quitclaim Deed In The Chain Of Title?

If you are having a problem with a quit claim deed in the chain of title, then a good piece of advice is to speak with an experienced Florida real estate lawyer to learn whether or not a lawsuit is necessary to clear the cloud on title caused by the deed. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

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Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

If you found this information helpful, please share this article and bookmark it for your future reference.

Lease Agreement Lawsuits in Florida

Posted By on December 26, 2017

In Florida, the written lease agreement is the first place that most landlords and tenants reference when the parties have a dispute.  After all, the purpose of the document is to set forth the rights and obligations of the parties.

However, even though standard lease agreements address most common disputes between landlords and tenants, they can’t solve every problem nor do they address every dispute.  In those instances, the only option is for the parties to seek court intervention by filing a lawsuit and asking a judge to resolve the controversy.

 

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Image: Courtroom in Tallahassee, Florida

Common Lease Agreement Disputes That Are Resolved By Filing A Lawsuit

Residential lease agreement lawsuits are often filed over issues that have been fought many times before in other landlord-tenant disputes.

Here are some of the most common reasons why these lawsuits are filed:

1.  Is the money paid by tenant to landlord considered rent, advanced rent or a security deposit?

We’ve discussed controversies between a landlord and a tenant involving the return of a security deposit before.  See, Security Deposit Lawsuits in Florida and Can Your Landlord Keep Your Security Deposit?

However, the way issues are resolved change when the money being disputed does not involve a security deposit.  At the time of signing a lease, a Landlord will likely ask for advanced rent in addition to deposits to secure the condition of the property and the possibility of default.  After the tenant turns over this money to the landlord, issues may arise as to how and when that money is to be used by the landlord: was it rent, advanced rent, or a security deposit?

What is “rent” under Florida law?

The Florida Residential Landlord and Tenant Act has a specific definition for rent under a residential lease.  Under Florida Statute 83.43(6), “rent” is defined as the periodic payments due to the landlord by the tenant in payment for the occupancy of the rental property pursuant to the lease (rental agreement).  This includes any other payments due to the landlord from the tenant, as defined or designated in the written agreement as “rent.”

What is advanced rent?

Under the Florida the Florida Residential Landlord and Tenant Act, “advanced rent” is any money paid by the tenant to their landlord which is to be applied to a future rent payment period (week, month, annual).  It does not include any rent paid by the tenant that covers the current rent payment period.  See, Florida Statute 83.49.

An “advance rental” can also mean a promise by the tenant to make a rent payment for a future time period, whether the tenant actually uses the property for that period of time or not.  See, Paul v. Kanter, 172 So. 2d 26 (Fla. 3d DCA 1965).

What is a security deposit under a residential lease agreement?

Florida Statute 83.43(12) defines a “security deposit” as any money that is held by the landlord as security for the performance of something under the lease (rental agreement).  This may include things like monetary damage suffered by the landlord if the tenant breaches the lease before its expiration date.

Read: What is Normal Wear and Tear Relating to a Tenant Security Deposit?

2.  Lease Options to Purchase

Sometimes a lease agreement will include a provision that is called an “option to purchase.”  Here, the tenant has the option to buy the rental property from the landlord subject to certain conditions.   Both the landlord and the tenant agree that the tenant may purchase the rental property if the lease provisions regarding the “option to buy” are met. See, Chhabra v. Morales, 906 So. 2d 1261 (Fla. Dist. Ct. App. 2005).

This option to purchase is usually a part of the lease agreement.   When the lease expires, the option to purchase provision usually expires too.  As one court has stated, “… all rights to exercise the option to purchase expire when the lease terminates.” See, Arquette Development Corp. v. Hodges, citing Mr. Sign Sign Studios, Inc. v. Miguel, 877 So.2d 47, 50 (Fla. 4th DCA 2004).

In these controversies, the legal issues may involve whether or not the lease contained a valid “option to buy” as well as whether or not the tenant met its conditions in order to purchase the rental property.  In Chhabra, for example, the court found that the lease agreement had no valid “option to buy” because there was no landlord signature or landlord initials in the contract evidencing the landlord’s agreement that the tenant could buy his property.

 3.  Other Common Litigation Related to Residential Lease Agreements

Often, tenants will file lawsuits under Florida landlord-tenant law because of harm they have suffered by the landlord’s actions or failures to act.  While landlords are notorious for trying to limit their duties to the tenant and the property in the lease agreement, longstanding Florida law (statute and court precedent) exists to protect tenants from negligent and bad acting landlords.

Common controversies that result in tenants filing lawsuits as plaintiffs include:

a. Failure to Return Security Deposit – Security Deposit Disputes

Landlords are required to safeguard security deposit money.  The landlord does not own that money; it is still the tenant’s property.  The tenant has a right to its return at the end of the lease term unless otherwise provided for in Florida law.  If the landlord does not return the security deposit, then the tenant must sue to get his or her money back.  The landlord may try and defend that claim with arguments that he has a right to the deposit because of things the tenant has done or failed to do (like pay the  last month’s rent, for instance).

Read: How to Get a Refund of Your Security Deposit from your Landlord

b. Landlord’s Duty to Maintain and Repair

In Florida, the law protects residential tenants against “slumlord” behavior by landlords.  Residential tenants have a legal right to a rental home that is clean, safe from harm, and reasonably comfortable.  Under the law, this is known as habitability, which essentially means a landlord is obligated or has a duty to “warrant” that the property is, and will continue to be, livable while the tenant resides at the premises.

However, “habitability” does not mean luxury – it only covers the basics.  The landlord has a duty to provide basic utilities, for instances, but not satellite TV.  The rental unit must have things like functioning smoke detectors, but the landlord does not have to provide fire extinguishers (unless it is stated under the lease contract).  Additionally, the landlord has to have working locks on the doors but he or she is not required by law to pay for a security system (again, that may be added by a provision in the lease).

The landlord breaches this duty of “habitability” if the rental property is not livable for a variety of reasons.  For example, if the landlord fails to repair a leaky roof then the tenant can file a lawsuit, seek damages, and terminate the lease. Other issues that can lead to breach of habitability claim include things like mold; lead paint; electrical wiring problems; rats; sewage leaks; and failing heating units or air conditioners.

Read: Does a Landlord Have a Duty to Inspect and Make Repairs Before Leasing to a Tenant in Florida?

c. Breach of Quiet Enjoyment

When a homeowner rents their residential property in Florida, the tenant has the right to the “quiet enjoyment” of the premises. If the landlord acts in a way, or allows others to act in a way, that substantially impacts the tenant’s peaceful enjoyment of the premises, then the landlord is liable to the tenant for a breach of this right or covenant.

Under Florida law, when a breach like this occurs, a tenant can file a lawsuit against the landlord seeking damages and/or termination of the lease based upon a theory of “constructive eviction.” This is where a tenant is forced to leave because the premises are so altered by the landlord that is makes it uninhabitable.  See, Coral Wood Page, Inc. v. GRE Coral Wood, LP, 71 So. 3d 251 (Fla. 2d DCA 2011).

In fact, the courts find this covenant to be so important, that landlords have been held to have breached this right where a landlord was simply remodeling the building where the tenant resided. In the case of Carner v. Shapiro, the landlord was found to have breached the duty of quiet enjoyment to one of his first floor tenants when all the landlord was doing was remodeling the upper stories of the building.

However, each situation is different.  The key issue with this cause of action is the landlord’s control over the behavior that is impacting the tenant.  For example, if there is a crime wave in the area where the tenant resides, a tenant cannot hold the landlord responsible for a breach of this covenant (perhaps, for other causes of action, like negligence security, but not for failing to provide a peaceful and quiet home). See, Fountas v. Ziegler, 305 So. 2d 864 (Fla. 3d DCA 1974).

Attorney’s Fees

Landlords can no longer act badly, and with impunity, based upon the fact most residential tenants do not have money to hire a lawyer. This is because tenants now have the right under the landlord-tenant law to recover legal fees, should they prevail in their lease agreement lawsuit against their landlord.  When it comes to attorney fees and costs, tenants should also be aware of:

1. Provisions in Lease Agreements

Today, most residential lease agreements in Florida have provisions that allow for the recovery of legal fees for the prevailing party in a landlord-tenant lawsuit.  If not, a tenant should make sure their lease has an attorney provision that provides for the “prevailing party” to recover attorney fees and not just attorney fees for the landlord.

2. Recovery of Attorneys’ Fees if Lease is Silent

If the lease agreement does not have language regarding attorneys’ fees, then Florida law may nevertheless provide for the recovery of legal fees in a rental agreement lawsuit.  As discussed in Gaccione v. Damiano, there are circumstances under Florida Statute 83.48 that allow for the recovery of fees even if the lease is silent on the issue.  Under the statute, a prevailing party in a Florida civil lawsuit to enforce a rental agreement can recover “reasonable  attorney fees and court costs” even when the lease is missing language regarding payment of these fees, except for certain personal injury damages.

What Should You Do?

A good piece of advice if you intend to file a lawsuit against your landlord is to speak with an experienced Florida real estate lawyer to learn about your rights, because the law provides for the payment of attorney fees in the event the landlord is determined to have violated your lease agreement (which means, in many instances, the tenant will not have to pay any money to the lawyer, unless the lawyer wins the case).

Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

_______________

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 

 

 

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Does a Residential Landlord Need to Have Knowledge of a Dangerous Condition to Be Liable For A Tenant’s Injuries?

Posted By on December 12, 2017

In order for a tenant to hold a landlord liable for their damages resulting from an accident at the rental property, the tenant must be able to show evidence of the landlord’s knowledge of the dangerous condition.

Landlord Duty to Repair and Maintain the Rental Property

Generally speaking, landlords are obligated to know about the condition of their properties.  It is unlawful to rent an apartment to a tenant and then ignore the property until the lessee moves out.  Landlords have a continuing obligation to inspect their property and make necessary repairs.  Meaning, landlords have a duty to conduct regular maintenance, just like any other property or business owner.

 

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When is the landlord liable for your accident if you slip and fall in the elevator on the way to your apartment? This was the question in the Firth case.


 

What About The Tenant’s Right to Privacy?

Maintaining property does not mean that a landlord can invade a tenant’s privacy and continually inspect the premises and snoop around.  Tenants have the right to live in their homes without being harassed by the property owner or property management company. Florida law allows a landlord to inspect the premises and make repairs but only if the landlord gives the tenant reasonable notice and comes at a reasonable time. See Florida Statute 83.53 (2).

Read: 6 Tenant Rights That All Florida Tenants and Landlords Need to Know.

Accidents Caused by A Dangerous Condition on the Rental Property

There is a gap of information between the landlord’s duty to maintain the premises and the tenant’s right to privacy.  That gap can create a situation where the landlord becomes unaware of a dangerous condition.

It is because of this “gap” that tenants are hurt and personal injury lawsuits are filed against landlords.

How does a tenant win a personal injury case when a gap of information like this exists?  A tenant must prove that the landlord had “constructive knowledge” of the dangerous condition.

Actual Knowledge versus Constructive Knowledge

The Florida courts have defined constructive knowledge as a condition that “…occurred with regularity and consequently, was foreseeable.”  Firth v. Marhoefer, 406 So. 2d 521 (Fla. Dist. Ct. App. 1981).

In these situations, it may be true that the landlord had no actual knowledge of the cause of the accident.  The landlord may have a valid defense to a claim by arguing that he or she didn’t know about the condition, or that the tenant never told them about the dangerous condition.

However, under Florida law, the fact that the landlord did not have actual knowledge of the dangerous condition does not give a landlord an absolute shield from liability.

This is because Florida landlords must protect people who rent their homes from them by taking “reasonable precautions to maintain” those homes in a “safe and clean condition.”  Additionally, if the accident is caused by a dangerous condition that existed long enough for the landlord to have discovered and fixed it, then the landlord will be presumed to have known about it.

Meaning, the law will impose knowledge on a landlord or it will “construct” knowledge in order to hold the landlord liable for the harm that has occurred. The landlord could have discovered the dangerous condition had the landlord used reasonable care or diligence.

Proving Constructive Knowledge

There are two ways the tenant can prove the landlord’s constructive knowledge:

  1. Show that a condition was there for a long period of time:  i.e., evidence showing that the dangerous condition existed for such a length of time that the landlord should have discovered it, or
  2. Show that the condition happened often: i.e., evidence that the condition occurred with such regularity that its recurrence was foreseeable.

Kitsopoulos v. Mathers Bridge Restaurant, Inc., 627 So. 2d 68 (Fla. Dist. Ct. App. 1993).

What is an example of evidence that shows constructive knowledge on the part of a landlord?  In the case of Nance v. Winn Dixie, the tenant provided evidence that the store’s maintenance records showed that it had notice of an ongoing problem that was dangerous if left unattended.

The Case of the Oceanfront Apartment Building Elevator

Another example in which the courts have defined “constructive knowledge” in a landlord-tenant setting is in the case of Firth v. Marhoefer.

Back in May 1978, Floridian Hetty Firth lived in Fort Lauderdale, where she rented a place at the Royal Admiral Apartments on Galt Ocean Mile.  Mrs. Firth was 72 years old.   She had lived here since 1964, enjoying the view from her 16th floor apartment.

The building had three elevators:  one service elevator and two passenger elevators.  Tenants were to use the two passenger elevators, not the service elevator, unless they were coming from the pool or from the beach.

Apartment rules were that swimmers were to use the service elevator if they had been swimming and were dripping wet.

On May 16, 1978, elderly Mrs. Firth left her apartment to run some errands.  She carried her packages with her, down the 16th floor hallway to the passenger elevators.  The elevator pinged, the doors opened, and Mrs. Firth stepped inside.  She sat her packages down on the floor of the elevator, and turned to push the button for the lobby.

In doing so, Mrs. Firth slipped and fell on water that was standing on the passenger elevator floor.  She was severely injured as a result of her fall.

The landlord denied responsibility for her injuries, so she sued both the landlord and his insurance company that had denied her claim.

At trial, a former manager of the apartment building, Joanne Turner, took the stand.  Mrs. Turner told the jury that while everyone knew the swimmer’s rule about using the service elevator, no one obeyed it.  People came in from the pool or the beach all the time, using the passenger elevators to get back to their apartments.

Mrs. Turner explained it was a hard rule to enforce.  Plus, tenants often found the service elevator in use for various reasons and they had no option but to use the passenger elevators.  The service elevator was not always available for the tenants.

Mrs. Turner also testified that carpet had been put into the passenger elevators to try and help soak up the water dripped from the swimmers.  Each elevator had two sets of carpeting, so management could trade them out as they got soaked.

Additional testimony revealed that after Mrs. Turner left the job (she was terminated in 1977), the carpeting in the passenger elevators was removed.  All that was left on the passenger elevator floors was the underlying vinyl or linoleum flooring.

The Florida court found that Florida Statute 83.51 created a statutory duty for residential landlords in this state.  They are to take reasonable precautions to maintain apartment house common areas in a safe and clean condition, but they have to know about a problem before they can be held liable for failing to fix it.

Although the landlord of the Royal Admiral Apartments did not have actual knowledge of the water on the elevator floor when Mrs. Firth slipped and fell, the landlord did have “constructive knowledge” of it.

Constructive knowledge of a dangerous condition can be assigned to a landlord where it can be shown that the condition recurred with regularity and, consequently, was foreseeable.

The fact that carpeting had been placed in the passenger elevators at an earlier time to try and cope with the swimmers leaving puddles of water, which created a risk of someone slipping and falling, was held to be sufficient evidence of the landlord’s constructive knowledge.

What Should You Do?

Landlords cannot simply rent their property to a residential tenant and then forget about maintaining the property.  Landlords have to provide their residential tenants with safe living conditions and they have a duty to maintain and inspect their premises. Inspections serve many purposes, including learning about conditions on the property that may be dangerous and need repair.

If you have been hurt by a condition on your rental property, and the injury was caused by a condition that the landlord was aware of or should have been aware of, then a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

_______________

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 
 
 
 
If you found this information helpful, please share this article and bookmark it for your future reference.

Local Ordinances: Florida Landlords and Tenants

Posted By on November 28, 2017

It is interesting to consider how intricate Florida law can be when it comes to governing residential landlord-tenant disputes. Even the most basic disagreement between a tenant and a landlord can escalate very quickly.

When entering into a rental agreement in Florida, it is important to read every provision in the contract to avoid waiving any of your rights. It is equally important to know that local ordinances can protect a tenant against disputes with a landlord due to matters like negligence and even roof leaks.

 

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Oceanfront Homes on Fort Lauderdale Beach


 

What Laws Are Applicable to Landlord-Tenant Disputes?

There are several laws that apply to residential property disputes. These include:

  1. Contract law,
  2. Real estate law,
  3. Negligence, and
  4. Florida’s dog bite law.

Additionally, there are federal statutes (related to issues like fair housing and discrimination), specific state laws related to the residential landlord-tenant relationship (i.e. Florida Residential Landlord and Tenant Act – Florida Statute, Chapter 83), along with court opinions from past landlord-tenant lawsuits.

Finally, there are local administrative rules and regulations which have to be obeyed just like any other statute or state law. These local rules are also known as city and county ordinances and they apply to residential real estate within the jurisdictional boundaries of the governing bodies.

What is a Local Ordinance?

A local ordinance is a law that is passed by a county or municipality.  Street sign sizes and the allowable colors of signage are two common examples of a local ordinance.

Every county in South Florida has a set of ordinances that govern activity within their jurisdiction. Below are links to read the local ordinances of three South Florida counties:

Cities may also have their own set of ordinances that apply to the landlord-tenant relationship, too.  Consider the following examples from our local area:

What Local Ordinances Apply to Residential Landlords?

When a residential property owner leases their property to a tenant, that landlord has to comply with the applicable local city and county ordinances related to habitability.

However, habitably can vary depending upon the type of property that is being rented.  For example, in most parts of Florida, vacation rentals may be treated differently than long-term residential housing.

Besides habitability, which is common to all municipalities, each city and county has their own specific set of rules a landlord must follow.  Those rules can vary based upon a city or county’s priorities.

For example:

Do Tenants Have To Obey Local Ordinances?

City and county ordinances must be followed by tenants, as well.  For instance, most cities and counties have ordinances that control what tenants can and cannot do in the rental property.   For example, some laws state that tenants in some residential areas cannot operate businesses out of their homes, or may not be able to have chickens on the property.

Additionally, if a tenant is behaving in a way that constitute a “public nuisance,” then the landlord as well as law enforcement has the power to step in. See, City of Hallandale Beach Ordinance Section 15-3.

Local Ordinances Can Be Helpful In Resolving Landlord-Tenant Disputes

In any dispute between a landlord and a tenant, it’s imperative to consider if  local ordinances apply to the situation.

Understanding local requirements can help resolve a dispute, as well as clarify rights and duties between the parties.

For instance, if a landlord is procrastinating in making repairs to the leased premises, the tenant may get a faster response by reporting the violation to the local housing authority that governs the property.  Most building departments or code compliance departments have the power to issue citations to the property owner for failing to adhere to local ordinances.  A notice of violation issued by a housing inspector can lead to a daily fine being imposed by a local magistrate. Those fines can be up to a $100 per day and they can continue to accrue until such time the violation is corrected.

For example, if there is a roof leak in a Fort Lauderdale apartment complex and the landlord is slow to make repairs, then a reference to the Fort Lauderdale Building Code Ordinance may help move things along. According to that code:

“Sec. 9-308. – Minimum standards for roofs.

(a) All roofs shall be maintained in a safe, secure and watertight condition.”

Failing to fix that roof may not just be a breach of the landlord’s duty under the lease; he or she may also be violating a local ordinance by not fixing it.

Local Ordinances and Lease Agreements

Generally speaking, a lease agreement is the primary way to control the relationship between a landlord and tenant.  However, these contracts are often written in a way that one party or the other waives some of their legal rights.

For example, a tenant may waive his or her right to certain notices or to have certain repairs made by the landlord (often times this happens when a tenant agrees to make repairs in exchange for a lower monthly rent).

Read:

However, it is not possible for the landlord and tenant to contract around certain rules and regulations.  If a city or county has passed an ordinance governing property in its jurisdiction, then the ordinance overrules the rental contract.

For example, landlords and tenants cannot contract around issues like building code requirements, health and safety issues or emergency situations.  If a roof is unsafe, then the county will use its power to force a landlord to promote compliance with property maintenance standards, protect property values, and preserve the quality of neighborhoods and available housing.

What Should You Do?

When a landlord fails to provide a habitable housing, having evidence like a municipal code violation issues by a county or city agency can help a tenant when seeking court intervention. One example where a tenant can use a code violation to their advantage is when there is mold infestation.  Having a report from a city or county inspector can be invaluable when a tenant tries to prove the existence or mold and proving the landlord caused the mold.

If you are having a problem with a landlord and the landlord has failed to adhere to a local ordinance, then a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

You May Also Be Interested In: Mold Claims by a Florida Tenant: Can You Sue the Landlord?

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Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.
 
 
 
 
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Does a Landlord Have a Duty to Inspect and Make Repairs Before Leasing to a Tenant in Florida?

Posted By on November 14, 2017

Know your rights before you waive your right to have your landlord make repairs.

Renting a home is very popular here in South Florida.  In fact, so many people are renting rather than buying a home, that the cost to rent has risen dramatically in the past few years.

In this kind of market, anyone interested in renting a home in Broward County, Palm Beach County, or Miami-Dade County needs to know what Florida law says about a residential landlord’s obligations when it comes to repairs, inspection and maintenance of rental property.

Tenant’s need to know their rights before they sign a lease, including what a landlord is obligated to do both before and after a tenant moves in to an apartment or other multi-family dwelling. 

This is because some landlords may be tempted to sidestep their legal duties repairing and maintaining their rental units, given the high interest in residential rental properties right now.

 

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Bathroom of Miami Beach Apartment in Art Deco District

 

See – Miami is getting lots of new apartments, but you may not be able to afford them published on July 9, 2017, in the Miami Herald.

What Must a Landlord Do When Inspecting an Apartment?

Under Florida law, a residential landlord cannot lease a property without making sure it is safe to live in as a full-time dwelling.  Before a tenant moves in, Florida law mandates that the landlord “reasonably” inspect the conditions of the premises. This includes:

  • Ensure that plumbing and electric are working;
  • check for insects (including bed-bugs); and
  • inspect for mold.

As one Florida court explained, the “the landlord has a duty to reasonably inspect the premises, and to make necessary repairs to transfer a reasonably safe dwelling unit.”   Youngblood V. Pasadena at Pembroke Lakes, 882 So. 2d 1097 (Fla. Dist. Ct. App. 2004).

Landlords Don’t Have to Rent A Perfect Apartment

During the course of an inspection, a landlord may find problems or items that need to be repaired.  Some of repairs may be minor, and some may be major repairs that are dangerous if left unrepaired, like exposed wiring, mold infestation or a leaky roof.

Florida law does not require the landlord to spend money and time to make the rental unit perfect.  Minor damage may be ignored by a landlord with impunity (such as stained wallpaper or carpeting.)

However, conditions that put a renter or his or her guests in danger must be fixed.  The dwelling, in the language of the courts, must be “reasonably safe.”  For example, if there is a gas leak, then the landlord must repair that leak.  If there are rotten boards in the outdoor decking, then they need to be replaced.

Can A Tenant Waive The Duty of A Landlord To Make Repairs?

Under Florida’s residential landlord-tenant law, landlords can negotiate their duty to repair. They can do so for conditions that existed prior to possession and a tenant can waive the duty for a landlord to make repairs after a tenant takes possession.

In today’s marketplace, landlords have the upper hand and they may be able to use that advantage to get a tenant to accept a waiver of the landlord’s obligation to make repairs, especially if the tenant can save a little money on rent.

However, beware of these “deals.” A tenant may save money on rent but they may be assuming liabilities which are larger than the amount they save on rent (see below).

As the Florida Supreme Court states the law:  [T]he owner of a residential dwelling unit, who leases it to a tenant for residential purposes, has a duty to reasonably inspect the premises before allowing the tenant to take possession, and to make the repairs necessary to transfer a reasonably safe dwelling unit to the tenant unless defects are waived by the tenant ….   Mansur v. Eubanks, 401 So.2d 1328, 1329-30 (Fla. 1981).

What Is The Effect Of A Waiver?

When a tenant signs a waiver, and the tenant moves into a dwelling that has conditions which may be unsafe, it relieves the landlord of the obligation of repairing the unsafe conditions.  Thus, when a tenant signs a waiver and the tenant or a guest is hurt as a result of the known unsafe condition, then the landlord will likely be protected from liability for any damages caused by the unsafe condition.

No one thinks they will be hurt in an accident in their home, however, accidents happen every day.  When a landlord receives a waiver from a tenant they are simply reducing their costs by shifting the risk to the tenant. When landlord reduces his or her costs by more than the amount of rent reduction, the landlord wins.

The Case of the Exploding Gas Water Heater

This duty of the landlord was established by the Florida Supreme Court as the result of a gas explosion in a Florida apartment back in 1976.  Mansur v. Eubanks, 401 So. 2d 1328 (Fla. 1981).

Jean Barnett and Mary Eubanks owed a rental property that they leased to Marie Grisby.  Marie gave a deposit to her landlords, and they all agreed verbally that the lease started on August 1, 1976 (There wasn’t a written lease agreement.)

Marie started moving her stuff into her new apartment on July 31st.  Her new next-door neighbor, Michael Mansur, was nice enough to help her do so.  He was another tenant of Jean Barnett and Mary Eubanks.

Some of the appliances in the apartment ran on gas.  This meant that the gas had to be turned on for the stove and water heater to work.  One day, Marie and Michael went looking around for the gas line – and found it outside the apartment.   They turned it on.

Afterwards, they went back inside Marie’s apartment and they tried to light the stove.  They smelled gas while doing so but they went on to trying to light the water heater.

As soon as Michael struck the match to light the gas flame for the water heater, it exploded.

Michael was seriously injured in the explosion so much so that he sued the landlords for his injuries.

At the time that the lawsuit was first filed, Jean Barnett and Mary Eubanks offered up the defense of “caveat lessee,” which was a law held that residential landlords were not liable for injuries caused in accidents that happened on leased premises.

However, the Florida Supreme Court found this to be unjust.  It held that Florida law should be changed.

In this landmark case, it became the law of the state of Florida that any owner of residential property that leases it for residential purposes has a duty to reasonably inspect the place for dangers before allowing a new tenant to move into the rental unit.   Along with an inspection, a landlord has a duty to make repairs to items which are defective, unless the tenant waives that requirement.

The court explained, “We do not believe there are sufficient reasons to continue to completely insulate the landlord from liability. We live in an age when the complexities of housing construction place the landlord in much better position than the tenant to guard against dangerous conditions.”

Read more: Mansur v. Eubanks, 401 So. 2d at 1330.

What Was The Key Take Away From This Landlord Tenant Lawsuit?

The key holding in that case, and cases that have been decided since the ruling was made in Mansur, is that a landlord can escape liability for serious personal injury damages if the tenant waives the duty to repair.

This means that every Florida tenant should read every provision in their proposed lease agreement carefully.  A prospective tenant should focus on:

  • Language regarding the landlord’s duty to make repairs to the premises before the tenant takes possession; and
  • Language stating that the tenant waives the landlord’s duty to make repairs after the tenant moves-in

If waiver language appears in a tenant’s lease agreement, then the tenant needs to understand that they may be assuming the risk related to injuries caused by a defect or condition that was discovered during the pre-move-in inspection.  Furthermore, Florida law also says that a landlord has a continuing duty to exercise reasonable care in repairing dangerous and defective conditions upon the tenant giving notice of their existence, unless waived by the tenant.

For some tenants, these provisions may be fine – but even so, tenants should negotiate with the landlord on this issue.  If there is waiver language in the lease, then what is the tenant going to receive as compensation for granting the landlord this escape provision?

What Should You Do?

If you are looking to rent a new home in South Florida, then it is likely that an experienced landlord, especially those with an older property, will want to get a tenant’s waiver of the duty to make repairs before the tenant moves-in.

What should a tenant do if faced with one of these waivers in their lease?  Should they sign?  Should they walk away?  Should they negotiate?  What’s their risk here?

If you are concerned about signing a waiver of your rights as a tenant, then a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

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Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 

 

 

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Florida Real Estate Closings Don’t End At The Closing Table

Posted By on October 31, 2017

Real estate closings in Florida can be complicated and overwhelming to some sellers and buyers. With all of the effort that goes into buying a home, including reviewing the contract and addendum, negotiations, inspections, the loan application process, and the actual closing, it is important to know what to expect when the day comes to close the deal.  The closing itself has more than one part.  The time sitting at the closing table is just one of them.

Here are 5 tasks involved with a real estate closing that most buyers and sellers are familiar with:

  1. The mortgage lender sends their loan documents to the closing agent along with their closing instructions
  2. The closing agent gathers the documentation from both the buyer and the seller, including the Deed, Affidavits and a Bill of Sale and ensures they are all signed and notarized.
  3. The closing agent ensures that the funds are disbursed to the seller, real estate agents, insurance companies, inspection company, surveyor, and the lender.
  4. The closing agent will explain the documents being signed, and every charge on the disclosure form before any money is transferred and the transaction closes.
  5. Once the transaction closes, the closing agent will then send the Deed and Mortgage to recording in the Public records for the county in which the property is located.

Once the closing agent performs all of the preceding tasks, there’s still more to do after the closing, including issuing the title insurance policies.  Issuing the title insurance policies is often a forgotten element of a closing because to some, it’s a perfunctory task.  However, it should not be seen that way.  After all, these are policies of insurance.  They insure that title to your real estate is marketable, meaning that the property is clear of defects that could impact the title and the value of the land.

Read More

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Related Real Estate Closing Articles:

Can A Bank Lose The Right To Collect Taxes And Insurance From A Homeowner?

Posted By on October 17, 2017

In Florida, banks are governed by federal regulation as well as state law. This means that any Florida homeowner involved in a controversy with their mortgage lender needs to understand their rights and protections provided both by Washington, D.C. and Tallahassee.

One issue that is often a source of friction between a homeowner and his or her mortgage company is the collection, or the escrow, of ad valorem property taxes and insurance premiums that must be paid each year by a homeowner.

Property Taxes and Insurance Premiums

Mortgage companies are very concerned with the payment of ad valorem taxes and homeowner’s insurance policies for residential properties for 2 simple reasons:

  1. Not being insured means the property is at risk of hazards or harm without financial protection. That puts the lender at risk of loss regarding the home that secures the mortgage.
  2. The County taxing authority has a lien against all real estate located within its boundaries which is superior to the lien created by a mortgage. This means the bank has to make sure the property taxes are paid each year because if the ad valorem taxes are not paid, a third party may be able to take ownership of the property and wipe out the mortgage lien (this happens when the county sells a tax certificate and eventually issues a tax deed to a third party bidder).

For these reasons, the bank will include language in its mortgage that failure to pay the real estate taxes or the homeowner’s insurance will constitute an act of “default” under the agreement.  This default is so serious that the bank or mortgage company will foreclose upon a home even if the homeowner is current on their mortgage payments (meaning, the homeowner has paid the principal and interest due each month).

See: What Happens When You Stop Making Your Mortgage Payments?

Collecting Property Taxes and Insurance from a Florida Homeowner

What if a Florida mortgage lender is trying to collect property taxes and hazard insurance from a residential property owner?  What legal protections or defenses does that home owner have against the bank’s demands?

Both state and federal law are involved in the answer to this question.

Floridastateseal

1. Florida Statute on a Mortgage Lenders’ Duty For Escrowed Taxes and Insurance

State law governs the actions of mortgage lenders in Florida.  Florida Statute 501.137 sets forth specific duties for mortgage lenders regarding the taxes and insurance collected from a homeowner.

Here, the statute requires the bank to take several steps relating to its collection rights.

  1. In Florida, every mortgage lender who collects money in connection with a mortgage for property taxes and/or hazard insurance premiums must hold those funds in an escrow account.  Each year, at the end of the bank’s annual accounting period, it is legally mandated to issue to the property owner an annual statement of the escrow account.  This statement gives all the details of the money that has gone into this account, and the money that has been deducted from it.
  2. When the taxes or insurance premiums are due, the lender must pay these obligations so that (1) the maximum tax discount available may be obtained with regard to the taxable property, and (2) the insurance coverage on the property does not lapse.
  3. If, at the time payment is due, there isn’t enough money in the escrow account to cover the taxes due or the insurance premiums, then the lender is to notify the property owner within 15 days after the lender gets the official notice of the taxes due from the county tax collector, or receives the notification from the insurer that a premium is due.
  4. If that lender fails to pay the property taxes or insurance premium when it is due and there is enough money in the escrow account to cover them, the lender is liable for any losses sustained by the property owner. **note: the lender is not liable for any loss that exceeds the coverage limits of any insurance policy which has lapsed.
  5. If the lender doesn’t pay the insurance premium with the escrowed money and it is less than 90 days overdue, the insurer is legally bound to reinstate the insurance policy, retroactive to the date of cancellation.

The lender has to reimburse the property owner for any penalty or fees imposed by the insurer and paid by the property owner.

If the lender fails to pay the property taxes or insurance premium after they are 90 days overdue, then the lender must pay the difference between the cost of the previous insurance policy and a new, comparable insurance policy for a period of 2 years.  If the bank refuses to do this, then that lender is liable to the borrower under Florida law for both:

  1. his reasonable attorney’s fees and
  2. his costs incurred as a result of the lender’s violation of this legal duty.

More so, if the lender fails to pay the pay the property taxes or insurance premium after they are 90 days overdue, or if the insurer refuses to reinstate the insurance policy, the lender shall pay the difference between the cost of the previous insurance policy, and a new, comparable insurance policy for a period of 2 years.

If the lender refuses to pay this, then it is liable for the borrower’s reasonable attorney’s fees and incurred costs.

2.  Federal Law On Escrow Accounts

Federal law also provides guidance when a mortgage lender collects property taxes and hazard insurance.

Here’s a Florida court case that explains the issues.

Chase Manhattan: Southern District of Florida

In the case of  Chase Manhattan Mortgage Corp. v. Padgett, 268 B.R. 309 (S.D.Fla.2001), the homeowners had filed bankruptcy (Chapter 13) and their bankruptcy plan was confirmed.

As part of that Bankruptcy Plan, their mortgage payments were increased to cover their increased property taxes and their increased homeowner’s insurance premium.

Under their mortgage, they were required to not only pay principal and interest each month, but also pay taxes and insurance.  In the mortgage industry, this is known as “PITI” payment.   Essentially, the bank placed a portion of their monthly mortgage payment into a separate escrow account and when the taxes and insurance premiums were due, the bank would deduct the amounts from the escrow account and pay these bills.

However, the bank never notified the homeowners (bankruptcy “debtors”) about the increase in both the taxes and insurance.  The bank just paid the increase.

This went on for almost two years. The bank then sent out a formal notice to the homeowners seeking reimbursement for the excess money the bank had to pay for these items.  The homeowners hired a lawyer to resolve the issue.

The homeowners argued that the bank had waived its right to seek reimbursement from the homeowners for the increased tax and insurance payments because it didn’t give timely notice to the borrower that there had been a change in the amount due.

They argued that the bank’s behavior violated Federal and Florida law.  Fortunately, the court ruled in their favor even though the mortgage permitted the bank to make advances without prior notice to the homeowner.

The Florida Federal Court Ruled Against The Bank.

In the above case, the Federal court held that the bank waived its right to recover from the homeowner the increased amounts that it had paid for taxes and insurance because:

  1. Under the Bankruptcy Code’s automatic stay law, the bank was not barred from notifying the debtor of these changes. (Padgett, pp. 314-315.)
  2. Under the Real Estate Settlement Procedures Act of 1974 (§§ 10, 12 U.S.C.A. §§ 2609(b))(RESPA), the bank waived its right to recover those increased payments it paid on behalf of the home owner / borrower because it did not comply with RESPA notice provisions.

Even if the bank was correct and the mortgage and/or other mortgage related documents allowed it to pay those taxes and insurance premiums proactively and without approval or knowledge of its borrower, and even though the borrowers had filed bankruptcy, the RESPA notice provisions had to be followed.

So, the homeowners did not have to reimburse the lender for these taxes and insurance premium payments and the bank was left to adsorb those extra costs.

What Should You Do?

If you are involved in a conflict with your mortgage lender over property taxes or homeowners’ insurance premiums, then you need to know your legal rights under the law.  State or federal law may be able to provide some help.

If you are having a problem with a mortgage company about your escrow account, then a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

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Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 

 

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Landlord Tenant Disputes After A Major Storm (Hurricane)

Posted By on October 3, 2017

After a major storm or hurricane here in Florida, apartments and other rental properties are often damaged to the point where they need some level of repair to make them livable. In some instances, the property may be a total loss or the damage is so bad that repairs can take an extended period of time to complete.

This of course means tenants may not be able to access their homes for a while. Even worse, when they are finally able to return to their homes they may find that their personal property has been destroyed.  Glass may have blown out of windows, rugs and flooring may be wet, walls can be covered in mold, doors broken or missing, and even the roof may be damaged or destroyed.

Generally speaking, a residential tenant owns the furnishings they bring to the residence, but the fixtures and improvements (like the walls, carpets, windows, and appliances) are owned by the landlord.

Which brings us to a common question that is asked after a storm; What are a tenant’s rights and a landlord’s duties after a hurricane’s wind, rain, or flooding causes damage to rental property and its contents? 

 

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FEMA: Florida beach home after Hurricane Dennis (2008)

1.  What Happens If The Apartment or Rental Property is Uninhabitable?

Unfortunately, damage that Hurricanes can cause to real estate is well known to the insurance industry, legislators and property owners.  These casualty events are contemplated when insurance policies are written as well as when Florida law is adopted.

Fortunately, Florida law provides protection for tenants in these situations, due, in part, to landlords having taken advantage of tenants in the past when a hurricane or storm has hit Florida.

A.  Terminate The Lease (Rental Agreement)

Under Florida’s Residential Landlord and Tenant Act, if a residential tenant cannot live in their home because the damage caused by a Hurricane has rendered the property uninhabitable, then the tenant may have the grounds to terminate the lease.

According to Florida Statute 83.63, if the tenant’s home is “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 premises.”

Additionally, the language of the lease may also address this issue.  There may be a provision in the written lease agreement that terminates the lease if the property is destroyed due to natural disasters or acts of God, or other causes not resulting from the tenant’s actions.

Florida contract law allows the parties to agree among themselves to end the lease and terminate their relationship.  In most instances, the tenant will be required to give written notice as described in the lease that the agreement is terminated due to the hurricane’s destruction.

B.  Return of Security Deposit

Under the lease agreement, there may be language addressing the return of the security deposit to the tenant if the home is uninhabitable due to a hurricane or storm damage or other act of God (look for a Force Majeure clause in the agreement).

If the contract does not have any language on this issue, then Florida law provides that the landlord must return the tenant’s security deposit within fifteen (15) days after the proper termination of the tenancy.

If for any reason the landlord is not returning the deposit money, then the tenant must receive a letter of explanation within thirty (30) days.  This letter must be sent by certified mail to the tenant, and the tenant must respond within fifteen (15) days to this notice or waive his right to return of the security deposit.

The tenant needs to have proof that he or she has provided the landlord with a designated mailing address after the storm so that the landlord has a legal address for service or a mailing address for where the money should be sent.

As overwhelmed as a tenant may be in the aftermath of a catastrophic weather event like a hurricane, a tenant needs to have physical proof that he or she has given their landlord their new mailing address (even if it’s a temporary one or it’s a post office box or rental box at the nearest UPS store).

Read:  How to Get a Refund of Your Security Deposit from the Landlord When Renting a Home or Apartment

 2.  What Happens When The Tenant’s Property is Damaged in a Storm or Hurricane?

After hurricane force winds or storm surge recedes, a tenant may return to their home to find that their apartment or condo is still standing and habitable – with some repairs needed.  However, what happens when the wind or rain has destroyed some or all of the tenant’s belongings?

A. Renter’s Insurance

Most renter’s insurance policies cover losses related to storm damage.  A tenant should make a claim as soon as possible after the storm passes.  Receipts should be gathered and pictures and video should be taken of the damage.

B. Landlord’s Insurance

If the tenant does not have renter’s insurance, or if it fails to cover all of their personal property, then the landlord may have an insurance policy which provides coverage for any personal property located in the dwelling.

It is advised that you send a written request (with proof that you sent it, along with the time and date) to your landlord for this information.  You should ask for a copy of the policy or the policy number and the name of his or her adjuster.

C. FEMA

Finally, there are claims that can be made through FEMA and its Individual and Household Program (IHP) for some tenant property losses.  This will cover basic necessities like clothing, beds, tables, and appliances.

3.  What Happens If The Landlord Tries to Wrongfully Evict The Tenant After A Hurricane?

Unfortunately, after a major hurricane or superstorm here in Florida, many people find themselves without a place to live.  For landlords, this may be an opportunity for a landlord to evict a “problem” tenant.

However, a tenant cannot be simply forced out of their homes just because there has been a hurricane or major storm event.

Florida eviction statutes apply here just like in any other situation where a landlord wants a tenant to move out.  The landlord cannot change the locks or keep the electricity turned off for the apartment, even if there has been a major weather event (unless, there is legitimate life and safety reason for doing so).

If the landlord does engage in this behavior, then that behavior is considered a wrongful eviction and is illegal under Florida law.  The tenant not only has a legal right to live in their home as provided for in their lease agreement, but the tenant has a legal right to collect damages from the landlord who engages in this activity.

For details, read: Illegal Evictions in Florida

4.  Hurricane Preparations Before The Storm Hits

It may be surprising to some, but Florida law does not impose a legal duty on landlords to rush over to rental properties and board up the windows or otherwise secure the property against the hurricane or storm.

Does a Landlord Have a Statutory Duty to Protect the Property from the Storm?

Tenants may find themselves dealing with landlords that have no intention of making efforts to protect the rental property from harm or destruction from storm surges, flooding, high winds, fires, or debris.

Under Florida law, landlords must keep the premises safe and meet all housing and health codes that apply to the property.  The law also mandates that the home, condo, or apartment be in “good repair” and “capable of resisting normal forces and loads.”

Of course, hurricane force winds are not “normal forces” – they are unusual and catastrophic ones.  If a landlord chooses not to protect their rental property from storm damage, then a tenant has to live with the consequences. This is because under Florida statutes, landlords do not have an obligation to maintain their premises to withstand a hurricane.

Does The Lease Agreement Provide A Duty For The Landlord to Act?

If there are provisions in the lease agreement that mandate a duty upon the landlord, then the landlord must make hurricane or storm preparations on the property.  However, this duty exists only if it has been agreed upon by the landlord and the tenant under the lease agreement.

Can a Landlord Forbid a Tenant From Making Storm Preparations?

The duty to protect the real property falls upon the owner and his or her property manager.  If the owner declines to protect his property, then Florida law does not force him or her to do so.

The tenant has control only over his or her own property/ belongings.  These are the items that he or she moved into the residence, from clothing and computers to washers, dryers, and cars in the garage or car port.

If the lease agreement does not provide for the landlord to make storm preparations on the rental property, then he or she can legally ignore it.  The tenant must do whatever he or she is able to do in order to protect their own possessions.

In addition, the landlord can go so far as to forbid the tenant from taking steps to protect the dwelling itself from the storm.

See, for instance, the interviews with three Palm Beach tenants faced with landlords who planned to do no hurricane preparations on the rental properties before Hurricane Irma, in the Palm Beach Post story, “Hurricane Irma: Do you rent? You could be on your own for shutters.”   And even worse, the coverage in the Miami Herald where the landlord forbid tenants from taking matters into their own hands and boarding up windows, etc., on their apartment complex before Irma hit.

While the law may not require the landlord to take proactive steps to protect the property, rest assured the insurance adjuster will want to know what the landlord did to safeguard the covered apartment complex or condo unit.  (This is called “mitigation of damages” in the insurance industry.)

Read: 6 Tenant Rights That All Florida Tenants and Landlords Need to Know

What Should You Do?

After a major storm or hurricane, a tenant may find that having an experienced Florida tenant’s rights lawyer on their side can be tremendously helpful in negotiating with their landlord and their insurance adjuster (as well as the tenant’s adjuster on their auto insurance policy).

If you are having a problem with your landlord or an insurance adjuster after a hurricane, then a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

_______________

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 

 

If you found this information helpful, please share this article and bookmark it for your future reference.

Real Estate Damage Claims After A Major Storm (Hurricane) in Florida

Posted By on September 18, 2017

We all know that living in Florida means having to deal with real property damage claims caused by tropical storms, tornadoes and by the dreaded hurricane(Like 2017’s Category 4 Hurricane Irma).
 

Hurricane_andrew_fema_13657

FEMA: Hurricane Andrew Property Damage in Florida


 

Just like any other insurance claim, a claimant (homeowner) should ask themselves the following questions when deciding how to proceed after one of these casualty events occur:

  • Who is responsible to hire someone to repair my property?
  • Who handles the clean-up and removal of my property (including the debris)?
  • What are my coverage limits?
  • How much is my deductible?
  • What about losses from lack of services (water, electricity)?
  • Will insurance cover all of my out of pocket costs?

Other common issues the arise with storm and Hurricane related real estate damage claims include knowing what information to have when filing an insurance claim and how to proceed when the insurance company denies your claim.

Insurance Companies Are Well Oiled Machines

With so much practice, insurance companies have finely tuned systems and protocols in place for dealing with Florida hurricane and storm related real property damage claims.  Therefore, it is important for you to be just as prepared as they are especially when it comes time to deal with the insurance adjuster.

The insurance companies (especially Citizens) want to keep their claims payouts as low as possible because these storms impact their bottom line and, in some instances, impact their solvency.

So, be prepared by having your insurance policies readily available, along with copies of receipts and other evidence of ownership (like pictures and video of your belongings).

Filing An Insurance Claim

Here are a few quick pointers about filing an insurance claim:

You should file your storm damage claim with your insurance company as soon as you can.  Delays in filing a claim can create an issue with your carrier.  For example, if you wait to make a claim related to mold, the insurance adjuster may argue that you contributed to the damage because the delay in acting allowed the mold to spread which increased the damage to the property (meaning, you failed to mitigate the damage – see below).

Also, when filling out the company’s claim form, be sure to fill it out as accurately and as complete as possible. If you make mistakes, or fail to include an element of damage, or lie, then they may dispute their duty to pay your claim.

Additionally, it’s strongly recommended that you take photos of the storm or Hurricane damage when you are first allowed access to the property and are able to assess the damage.  Add these photos to your claim form and make sure they know the time and date that the photos were taken.

Most importantly, keep a copy of your completed claim form and its attachments for your records.  Also, keep evidence of the time and date that you submitted your claim, and how you did so (United States Postal Service, FedEx, hand delivery). Insurance adjusters get countless amounts of claims daily, and these numbers grow immediately following a hurricane. Don’t let the insurance company put your claim on the back burner.

What Damages Can Be Covered By A Florida Insurance Policy?

Residential property insurance is governed by Florida law. With Florida being at such a high risk of damage from a hurricane or tropical storm, insurance companies must offer coverage for damage to your residential property caused by high winds (hurricane windstorm coverage – Florida Statute 627.712) and flooding (banks and mortgage companies are required to make homeowner have this insurance for those in Flood Zones – See FEMA’s Flood Maps).

Wind Damage

Florida statutes mandate that insurance carriers offer home owners coverage for hurricane wind damage.

Citizens Property Insurance, is the state’s insurance company that offers coverage for wind damage for Florida property owners who are entitled to, but are unable to find property insurance coverage in the private market.

Flood Damage

Flooding poses a higher risk for those living in Florida than in other parts of the county. Accordingly, insurance carriers do not offer coverage for flooding and rising water damage under their basic property damage insurance policies.  (Citizens, for instance, does not include flooding in its property insurance policies.)

Florida home owners must get flood insurance coverage through an insurance company that offers flood insurance or through the National Flood Insurance Program, which is operated by the federal government (According to FEMA’s website “You can only purchase flood insurance through an insurance agent or an insurer participation in the NFIP. You cannot buy it directly from the National Flood Insurance Program”).

**Note that flood insurance policies do not begin coverage for 30 days after the policy is effective.

Additionally, those with flood insurance need to make sure that various kinds of water damage are covered in the event of a severe storm in Florida.  For instance, “storm surge” is a particular kind of flooding that happens after a hurricane.  The flood insurance policy language needs to include “storm surge” as part of its coverage. It is not safe to assume that it is covered in every flood insurance policy.

Mitigation Duties

The property owner has a duty to try and keep the damage to the home and residence as minimal as possible.  This “mitigation duty” extends to both before and after the Hurricane hits.

Before the storm,  the property owner has a duty to board up windows to shield them from the anticipated high wind speeds.  Additionally, to minimize the damage that flooding or high water may cause, it is wise for the owner to do things like shutting off the electricity at the breaker before water can come into contact with electrical outlets.

There is also the duty of mitigating damages after the storm hits. If there is property that poses a hazard to human health, then you have a duty to take care of that problem as soon as possible.  The same is true if there is damage that will grow or exacerbate harm to the house or residential property if left unattended.

When taking pictures of the storm, make sure to do so before making any repairs or cleaning up.  This is vital in situations where the home or condo has suffered flooding or has been exposed to the elements because of wind damage.

Timing of Repair

It is natural to want to begin repairs immediately following the storm. However, the insurance adjuster will want to inspect the property damage before repairs are made in order to make his or her own list of damages and to prepare an estimate of the cost to replace or repair the property.

Of course, after a big weather event, there may be some time that passes before the adjuster gets to your property.  If their delay causes additional property damage, then things can become complicated.

For instance, if the insurance adjuster delays going to the residence to assess the damage and mold begins to grow, then the insurance company may be a contributing cause of your damages (the adjuster’s delay allowed for the mold to grow causing additional damage to the property).   Here, you may have a claim against the insurance company for contributing to your damages, which may be a separate claim from the original claim made under your policy (however, don’t forget about your duty to mitigate damages).

Third Party Liability

Another issue with property damage after a major weather event like a hurricane here in Florida is who may be responsible for the damage.  For instance, if a huge tree is uprooted during the storm and falls onto your property, then the owner of the land where the tree fell may share liability for the debris removal and resulting repair.

Similarly, if you own a condo or duplex and your neighbor failed to shut off electricity, causing a fire in your home, then that property owner may be a third party who is liable for the damages to your real estate.

Litigation of Damage Claims

After a hurricane or serious storm, Florida home owners may be faced with the additional stress of the insurance company denying your damage claim.

For instance, whether or not your insurance policy covers flooding after a major weather event is a common issue that may need to be litigated here in Florida.  Was the damage to your property caused by rising flood waters or was it caused by water that entered your home through a damaged roof or broken window?  This is an issue that a trier of fact (either a judge or jury) may need to decide.

Most important information to know here: If your insurance company denies your claim, don’t let your claim it end there. Specific Florida laws were written to protect homeowners who are facing property loss or damage caused by severe weather.

What Should You Do?

If you are having a problem getting your insurance company to pay your home related hurricane damage claim, then a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

_______________

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 
 
 
 
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6 Tenant Rights That All Florida Tenants and Landlords Need to Know

Posted By on September 5, 2017

In Florida, residential tenancies are governed by (1) Chapter 83 of the Florida Statutes under what is commonly known as “Florida Residential Landlord and Tenant Act” (see Florida Statute 83.40) and (2) the language in the individual lease or rental agreement between the landlord and the tenant.

These two work together to define the duties of a landlord to a tenant and define the legal rights of a residential tenant here in Florida.  The interaction of this statute with a lease or rental agreement can sometimes make things complicated and costly for landlords.

A complication generally manifests itself when a landlord either ignores or is ignorant of the rights granted to a tenant under Florida’s statutory law.   In these situations, the cost to the landlord can include a variety of remedies for a tenant, including the landlord paying actual and consequential damages, injunctive relief and the payment of the tenant’s attorney fees.
 

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Kipling Arm Apartments: State Archives of Florida

 
Here are 6 common examples of rights that tenants have in Florida that landlords sometimes disrespect or disregard:

1.  Tenant Right to Have Residence in Reasonable Condition and Code-Compliant

Under Florida Statute 83.51, residential landlords have a legal duty to keep their residential property in a condition that complies with the requirements of the applicable building, housing, and health codes for that location.

Meaning, a Florida residential tenant has the right to hold a landlord responsible for failing to maintain the premises and keep its component in good repair and in reasonable working condition.

However, if the rental is a single-family home or a duplex, then the landlord may alter or modify some of its obligations in the lease agreement.  If the tenant agrees to the altered language, then the tenant has agreed that the landlord does not need to make provisions for things like extermination and garbage removal.

2. Tenant Right to Security Deposit With Statutory Interest

Florida Statute 83.49 is detailed on how a landlord must handle and protect a tenant’s security deposit, including its return.

The right to have security deposit held in a Florida Banking Institution

First and foremost, a tenant has a right to have their security deposit held in a bank account.  Under Florida Statute 83.49(1), the landlord must deposit the security deposit in a separate interest bearing or non-interest-bearing account in a Florida banking institution for the benefit of the tenant or tenants.

The tenant has a right to have the security deposit kept separately from any other assets of the landlord.  The landlord legally cannot commingle the security deposit with any other funds and cannot use the security deposit in any way.

For interest bearing accounts, the interest the tenant has a right to get on the security deposit is (1) at least 75% of the annualized average interest rate payable on such account or (2) interest at the rate of 5% per year, simple interest.

The right to prompt return of the security deposit

The law mandates that the tenant must get their security deposit back “no more than 15 days” after they move out. The tenant also has a right to be paid the interest on that security deposit for the time that it was with the landlord unless otherwise provided in the lease agreement.

If the landlord wants to keep some (or all) of the security deposit, then the landlord must comply with the detailed instructions of Florida Statute 83.49 which include providing the tenant with a notice that includes the following language pursuant to the statute:

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 receive this notice or I will be authorized to deduct my claim from your security deposit. Your objection must be sent to   (landlord’s address) .

Read: How to Get a Refund of Your Security Deposit from the Landlord When Renting a Home or Apartment

3. Tenant Right to Proper Written Notice from the Landlord

The tenant has the right to receive a notice in writing of the landlord’s desire to end the residential lease.  Usually, the landlord wants the tenant to leave because the tenant is behind on the rent.  However, there are times when the landlord wants to evict the tenant because the tenant has failed to perform other things listed in the lease.

Whatever the reason, the landlord has to give written notice to the tenant.  Moreover, that written notice must follow certain guidelines or it will not legally be considered proper and effective notice.

For instance, under Florida Statute 83.56(3),(4), the written notice to the tenant from the landlord:

  • Must be delivered by mail or by delivering a copy to the property.
  • Three days has to pass between the date of the notice and any filing of a lawsuit against the tenant by the landlord. Saturdays, Sundays and legal holidays are not counted here.

The written notice must also include specific language that is specified in Florida law. For instance, Florida Statute 83.56(3) provides the following paragraph has to be in the written notice for unpaid rent:

“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 (excluding Saturday, Sunday, and legal holidays) from the date of delivery of this notice, to wit: on or before the   day of  ,   (year)  .

Signed, (landlord’s name, address, phone number)”

Related: Tenant Defenses to Residential Evictions in Florida

4. Tenant Right to Proper Service of Any Lawsuit by the Landlord

If the landlord decides to sue the tenant, then the tenant has the right to proper service of that lawsuit.  Service of the lawsuit follows the Florida procedures rulesSee, e.g., Florida Rules of Civil Procedure 1.070 and Form 1.902.

Under Florida law, the tenant has the right to proper service of two things: (1) any lawsuit filed by the landlord for eviction and (2) any lawsuit filed to recover unpaid rent or damages.

This must be done via a summons issued by the clerk of the court where the residence is located.  The clerk must be asked by the landlord to issue the summons and to deliver that summons to the sheriff for the county where the residence is located.

Separate summonses are needed for (1) eviction and (2) claims for rent or damages (see below related to the amount of time a tenant has to file an answer to the complaint/lawsuit).  They are then delivered to the tenant along with the formal complaint (the document that initiates the lawsuit) filed by the landlord.

5. Tenant Right to Attorney’s Fees, Court Costs, and Damages

Additionally, it’s important for a tenant to know that Florida Statute 83.48 deals with attorneys’ fees and court costs in any lawsuit brought to enforce the rental agreement or for violation of the Act.

If the tenant sues for violation of his or her rights or is defending against a lawsuit brought by the landlord, and the tenant wins, then the landlord must pay both reasonable court costs and the tenant’s legal fees.  This tenant right cannot be waived by any language in the lease agreement.

Furthermore, under Florida statute 83.55, if the landlord fails to comply with the requirements of the lease agreement or any part of Florida Residential Landlord and Tenant Act, the tenant may recover the damages caused by the noncompliance.

6. Tenant’s Right to Stay in Place after Landlord Files a Lawsuit

Florida law also gives the residential tenant rights in defending against any lawsuit filed by the landlord.  The tenant, for instance, has five days (where the landlord asks for possession or asks to evict the tenant) to twenty days (where the landlord asks for rent damages) to file an answer to the complaint. The time starts on the day that the sheriff serves the summons on the tenant (or it is posted on the door).  Saturdays, Sundays, and legal holidays are not counted towards the deadline.

After Lawsuit for Unpaid Rents

The tenant has the right to assert defenses to the landlord’s allegations.  This can include a Motion to Determine the Amount of Rent to Be Paid into the Registry.  Here, the tenant has a right to remain in the rental until the court decides the matter.  Meanwhile, the rent money is entrusted to the clerk of the court (“placed into the registry”).

After Eviction Lawsuit

Once a tenant files an answer to an eviction lawsuit filed by the landlord, then he cannot be evicted until the civil lawsuit process has finalized.  The landlord cannot force the tenant to vacate the rental until the court renders its decision in the case.

What Should You Do?

If you rent a home, condo or apartment here in Florida and have concerns about your rights as a tenant, then a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights because the law provides for the payment of your attorney fees if the court rules in your favor (which means, in many instances, a tenant will not have to pay any money to a lawyer, unless the lawyer wins their case).

Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

_______________

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 
 
 
 
If you found this information helpful, please share this article and bookmark it for your future reference.

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