6 Tips For First Time Home Buyers In Florida

Posted By on February 20, 2018

First time home buyers are often anxious because the purchase of their single family home or condominium will likely be the largest transaction of their lifetime. For this reason, a new home buyer may find this process less overwhelming when it is separated into 3 parts.

First, there is the contract for sale, which is where the buyer and seller agree to the essential terms of the transaction. This includes price, deposits, financing and the closing date.  Second, is the due diligence period where the buyer inspects the property and obtains mortgage financing. The last part is the closing of the transaction where ownership is transferred and the money is exchanged.

Below are 6 helpful tips for a first time home buyer as they go through each step in the home buying process.

Family in front of their home- Venice East, Florida (8865570965)
From Florida Memories, the American Dream of owning a family home here in sunny South Florida.

1. Financing the First Home Purchase

The first issue that most first time home buyers must overcome is gathering the money to buy the home.  That means saving enough money for the down payment, inspections, appraisal, loan application fee, credit report, closing costs, as well as the monthly mortgage payment (which includes property taxes and insurance premiums).

Additionally, there are expenses related to moving, new furnishings, window treatments, repairs, as well as condo assessments or HOA fees.

Fortunately, there are avenues that help first time home buyers get the money needed to become home owners.  Some are federal programs, like FHA Loans. Others are local programs right here in South Florida.

County Programs for First Time Home Buyers in South Florida

All three counties in the tri-county area offer incentive programs to assist first time home buyers with the purchase of their first home.  These include:

2. Know the Documents: Did The Seller Sign A Tax Proration Agreement?

The home buying process involves a lot of documents. There’s the contract for sale between the buyer and the seller, which in addition to the items we discussed above, contains other important terms, like:

  • who pays certain expenses,
  • what happens in the event of default by one or both parties (dispute resolution procedures), and
  • how title issues are resolved.

The contact also sets forth the documents the seller will have to provide to the buyer at the closing, including a bill of sale, affidavits as to liens and other issues that can affect title, a real estate taxes proration agreement, and, of course, the deed.

Additionally, there are the mortgage documents, which include:

  • the loan application,
  • the promissory note (the document where the buyer promises to repay the loan with interest and late fees),
  • the Loan Estimate and Closing Disclosure (they show the amount financed and the cost of loan), and
  • the mortgage itself (the document that is security for the repayment of the promissory note).

Note: Real estate agents and brokers are not lawyers and are not authorized to practice law.  They may tell you the documents you are signing are customary and no big deal, but if they offer you legal advice, you should be careful.

3.  Know the Seller: Are You Buying From A Bank, Probate Or Foreign Seller?

The seller is not always an individual person. The seller may be an Estate, where the owner of record has passed away. The seller may be a Trust where the Trustee will sign on behalf of the beneficial owners (the trust beneficiaries). Or, the seller may be a corporation, partnership, or the developer / builder who has just put up the new condominium.

A large number of sales in Florida consist of sellers that are not Florida residents. Or, they are a bank or condominium association who has taken ownership by way of foreclosure. This could mean the seller may live in another state or in another country.

In each of these scenarios, special requirements must be followed in order for the buyer to receive marketable title, like proper notarization of documents, corporate resolutions, trustee affidavits, and/or orders from the probate court authorizing the sale of the property.

See: How to Have a Deed Notarized if the Seller is in a Foreign Country

4. Know The Chain Of Title To The Property:  Are There Liens And Easements?

When you buy a home, you buy more than the house.  You buy the past history of the property, too.  The buyer may be purchasing encumbrances of the title which include easements (rights of way) for the utility company and/or the association.

The goal of the buyer is to get “clear title” to the property, which is also known as marketable title.  Marketable title is not perfect title, but it is title which is reasonably free from claims of other parties, including those in the chain of title.

This is why the closing agent, usually an attorney or title company, will perform a title search.

In a title search, the real estate records are carefully researched to see if there are any claims against the property or against anyone in the chain of title (i.e. a search is performed to see if there are judgments against any former or the current owner).

Liens can be filed by various taxing authorities as well as municipalities, houses, ex-spouses (child support), creditors, and contractors who have done work on the property but haven’t been paid.

If liens or other “clouds” are found on the title, then the home buyer should raise these title objections, in accordance with the contract, and demand these items be removed or satisfied before the closing takes place.

In situations where a title issue is found, a real estate lawyer is best suited to making sure that either the seller does what is necessary to clear up the title problem (like paying off a judgment creditor or other lienholder) or the transaction is terminated and the buyer receives a refund of the buyer’s earnest money deposits.

See:

5. Know The Condition Of The Property: Inspections and Surveys

Sellers are required to disclose issues and condition about the property that are not readily observable or discoverable by a buyer.  If there is a flooding issue or an issue with mold or the plumbing, including septic tank issues, that needs to be explained to the buyer.  Defects must be revealed by the seller under the law.   Termite inspections should be conducted and the results provided to the buyer, as well. A buyer should make the transaction contingent upon the seller providing a “Seller Disclosure Statement” to the buyer and the buyer approving the disclosure statement.

Additionally, there needs to be confirmation about the exact boundaries for the property as well as the location of any special circumstances that affect the home being purchased.  The boundaries will be provided as “metes and bounds” or as a “lot and block” in the legal description shown in the deed and other closing documents.

This is more than just the street address or MLS listing number.  These official property boundaries are provided in a “survey” that is prepared by a professional surveyor licensed by the State of Florida.

All other property inspections, likewise, should be performed by licensed professionals. When hiring an inspector, look at the language in their agreement as to their liability if they missed a condition during their inspection. Some inspections limit their liability to the cost of the inspection.

If a first time home buyer decides to hire an attorney, the attorney should review the inspection report as well as the survey.

See:

6. Know The Closing Process: Filing Documents In The Real Property Records

At closing, the seller delivers the keys, clickers, seller documents and the deed to the buyer.  At the moment the deed is delivered to the buyer, the home buyer becomes the property owner.

As a buyer, be careful to read the provisions in the real estate contract about the closing procedures, including escrow closing procedures. A buyer should be careful about closing a transaction in “escrow.”    Escrowed closings have their own set of issues that must be addressed before the transaction can close.

However, there’s still the matter of recording the deed.  The seller delivers the deed to the buyer but the buyer doesn’t get to get the original deed right away.  It needs to be recorded at the county courthouse, in the clerk’s office where the land records are kept.  Deeds need to be properly recorded in order to make sure that the buyer is recognized as owner of the home in the chain of title.

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

How Can A Florida Real Estate Lawyer Help?

There is nothing mandating that a home buyer have a lawyer’s counsel before going through with the purchase of his or her new home.  However, this purchase may be the biggest financial transaction of the home buyer’s lifetime.  It’s also one of the most complicated legal transactions most people ever experience.  Some closings can take hours to complete, with hundreds of pages of documents to review and sign.

Fortunately, hiring an experienced Florida real estate lawyer may be less expensive than most first time home buyers may think.  In fact, most real estate attorneys will work on a flat fee, and in a lot of instances having an attorney may end up saving the buyer a lot of money.

If you are buying your first home, a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights, including those related to inspections and title insurance. 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.

 

When Is A Landlord Liable For A Tenant Slip and Fall?

Posted By on February 6, 2018

Many apartment complex slip and fall accidents occur as a result of the landlord’s negligence. Often times, it is the landlord’s failure to maintain their property and address conditions that they knew about or should have known about that leads to these accidents occurring. Unfortunately, when an accident does happen, the tenant victim, or their guests, find themselves having to deal with the stress of recovery which comes from the pain of the accident as well as from the mounting medical bills and lost wages and having to deal with the landlord and his or her insurance company.

However, not every slip and fall injury results in a valid claim for damages. A tenant must be able to show that the landlord failed to use reasonable care in order to collect compensation for his or her damages.

In other words, in order to successfully recover compensation from the landlord, the tenant has to build a “prima facie” case of negligence.

 

Wooden floor

If you slip and fall on a common area wood floor freshly waxed, can you file a claim against your landlord?


 

Proving Fault And Negligence

Simply stated, a tenant must produce facts to show how the fall was caused by the landlord.  To do so, a tenant should gather evidence that the landlord/owner was negligent because the landlord had (1) a legal duty to the tenant that (2) was breached and this breach of duty (3) was the proximate cause of the (4) personal injuries sustained by the tenant in the slip and fall.

There are different types of evidence that a victim can use to prove the landlord is at fault for a slip and fall occurring on its premises. Some of which include:

  • Witness statements
  • Photos
  • Police reports
  • Store surveillance
  • Constructive knowledge
  • Foreseeability

Landlord’s Duty To Maintain the Property

Florida law requires landlords to maintain their rental property and protect their tenants and their guests from harm. This includes abiding any applicable housing codes.

If a landlord learns of a dangerous condition, or if a dangerous condition that the landlord should know about occurs, then the landlord has a duty to fix the issue in a reasonable amount of time.

Landlords are responsible for the repair and maintenance for matters that include leaky roofs, broken or missing handrails, adding anti-slip materials to steps and pool areas, properly affixing carpets, cracked sidewalk, parking lot wheel stops and speed bumps and addressing other common slip and fall hazards.

Can The Tenant Be At Fault?

Apartment falls are commonplace and result in all sorts of injuries, from minor sprains, to serious fractures to hands, wrists and hips, and even head trauma or death.  When a slip and fall accident happens in a rental property, one of the main issues is who was at-fault and does the tenant share in the fault.

Not all slip and fall accidents result in 100% liability for the landlord.  There are situations where the tenant is partially responsible for the accident.  In Florida, there is a legal doctrine known as comparative negligence. This doctrine apportions fault among the landlord and tenant. Thus, a tenant’s compensation will be impacted by the amount of negligence caused by the tenant. For example, if the tenant is determined to be 35 percent responsible, the tenant’s damage award will be reduced by that amount. Meaning, the tenant will receive 65 percent of the amount awarded by the jury.

In a rental home, some dangers that may result in a fall where the landlord or owner is not legally bound to pay damages include:

  • Floors with heavy amounts of wax on them
  • Debris on sidewalks
  • Fallen tree limbs
  • Hidden debris or conditions in un-mowed grass
  • Items impacting ingress and egress
  • Darkened stairs due to burned out bulbs
  • Oil leaked from vehicles onto the driveway or garage floor
  • Wet leaves accumulating on the sidewalk

Can Renter’s Insurance Cover Slip and Fall Damages?

Even though most tenants get rental insurance to cover theft or burglary, some policies may cover injuries caused by a landlord’s negligence, including slip and falls in areas where the landlord is obligated to maintain the premises.

What Damages Can A Victim Recover – Pain And Suffering?

If a tenant is hurt in a slip and fall at their apartment complex and the injuries are significant, then the tenant should be able to recover both economic and non-economic damages.

Economic damages include compensation for items such as:

  • Physical therapy bills
  • EMS
  • Hospital bills
  • Rental of medical equipment
  • Lost wages

Non-economic damages include:

  • Loss of the enjoyment of life
  • Pain and suffering
  • Disfigurement
  • Mental anguish

Statute of Limitations

In Florida, slip and fall claims have to be filed within a certain time before the claim is barred.  The Florida Legislature has set these deadlines in specific statutes, called statutes of limitations.

According to Florida Statute 95.11(3)(a), any action founded on negligence must be filed within 4 years from the date of the slip and fall.

If a victim does not file a lawsuit before that deadline, then the lawsuit will not be permitted to proceed. Meaning, a judge has the power to dismiss the lawsuit by granting a motion for summary judgment in favor of the defendant.

What Should You Do?

In Florida, when a tenant is hurt in a slip and fall at their apartment complex or other leased premises, the landlord and other parties, like a maintenance company, landscaper, cleaning service, delivery service, can be held legally responsible for their damages.  The tenant should, after seeking medical attention, should immediately report the accident and then review both their lease agreement as well as Florida’s negligence law to determine which parties are responsible for the tenant’s damages.  Then, the tenant should make a diary of the event, including how the injury has impacted his or her daily life, and gather as much evidence as possible to support his or her claim.  All of the steps are important to preserving a tenant’s rights and making sure the tenant has the best chance of recovering maximum compensation for his or her injuries.

Additionally, a good piece of advice is to speak with an experienced Florida lawyer to learn about your rights, including how most insurance companies respond to these claims. Most 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.

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.

256px-Deed_signed_H.H.M._Williams,_Public_Administrator_of_the_Estate_of_Mason_Frisell,_Cape_Girardeau_County,_September_1,_1866

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.

_______________

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.

 

Courtroom_U.S._Courthouse_Tallahassee_Florida_LCCN

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.

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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 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.

_______________

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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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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.

_______________

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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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.

_______________

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.

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? 

 

512px-Hurricane_Dennis_2005_damage
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.

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