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.

 

Ponderosa elevator

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.

 

Fort Lauderdale Beach (1)

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?

_______________

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.

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.

 

1211 PENNSYLVANIA AVENUE, SECOND FLOOR APARTMENT, BATHROOM - Miami Beach Art Deco Historic District, Miami, Miami-Dade County, FL HABS FLA,13-MIAM,5-57

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.

 

 

 

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

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

_______________

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? 

 

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.

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).
 

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.

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

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.
 

Kipling Arms Apartments
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.

Is Dyck O’Neal Trying To Garnish Your Bank Accounts and/or Wages?   

Posted By on August 22, 2017

Unfortunately, foreclosures are still a common occurrence in Florida. What’s worse is that the financial devastation does not end with losing a home. That’s because banks have the right to purse a “deficiency judgment” against the homeowner when the foreclosure sales proceeds are not sufficient to pay the bank all of the money it is owed under the mortgage.

Collecting on a Foreclosure Deficiency Judgment

When foreclosure sale proceeds are not enough to cover the remaining balance of the borrower’s debt to the bank, then the foreclosing bank or servicing company will likely seek a deficiency judgment against the homeowner. That’s especially true today with unemployment at a historically low rate.

Many years ago, the Florida legislature granted banks and other creditors the power to recover money owed to them by allowing the creditor to garnish the homeowner’s wages and seizing their assets.

 

Twenty dollar bills
 

Who is Dyck O’Neal?

Dyck O’Neal is a national company that makes its money as a debt collector.  Specifically, Dyck O’Neal’s business is to buy bank debt, which includes buying the right to seek a deficiency judgment against homeowners who did not fully repay their mortgage loans.

Over the past few years, Dyck O’Neal has purchased huge amounts of debt from banks all over Florida. Banks are happy to negotiate these deals because their main business purpose is to loan money, not debt collection.  (Dyck O’Neal is so good at their job that the federal government does a lot of business with them. For example. Dyck O’Neal is one of two authorized debt collectors for Fannie Mae.)

Even though banks and other mortgage holders receive less than the full value of the debt they own, they are happy to sell the debt to Dyck O’Neal. Debt collection is not an easy business.  Most of the debt cannot be collected for various reasons, including the debtor having filed bankruptcy.

One of the most common questions we receive about Dyck O’Neal is how are they able to purse a homeowner when they had nothing to do with the loan transaction.  Simply stated, mortgage debt is freely transferable.  Meaning, it can be sold just like any other financial instrument.  Essentially what happens is that Dyck O’Neal buys the mortgage debt, which places them in the shoes of the mortgage debt holder, including having the right to pursue a deficiency judgment and garnishment.

Read: 19 Articles About Florida Deficiency Judgments

Basics of Garnishment

Debt collectors usually first try to resolve debt repayment through negotiation with borrowers by offering payment plans and other similar repayment agreements.  However, if the debt collector can’t work out a deal with a borrower, state and federal law allows debt collectors to take additional actions to retrieve the money they are owed.

One of the harshest debt collection tools for the debt collector is garnishment.   Garnishment allows a debt collector to recover the money it is owed directly from wages or salary owed to the borrower by his or her employer or other third party (like an insurance company settlement check or money held in an investment company).

Under the terms of most garnishment orders, the debtor’s employer is legally required to pay a portion of each pay check to the debt collector instead of the employee.

1. What Does Florida Law Say About Garnishment?

Florida Statute 77.01 provides for a writ of garnishment as a right of every judgment creditor.  Moreover, Florida Statute 77.0305 allows the debt collector to get a “continuing writ of garnishment against salary or wages” of the borrower.

In Florida, this law provides that salary or wages can be taken to satisfy a judgment.  It’s done by the Florida court order called a “continuing writ of garnishment” that is served upon the employer of the person who lost their home in foreclosure and owes the deficiency balance.

This is a legal order signed by a judge.  These orders usually direct a debtor’s employer to make periodic payments of a portion of the salary (or wages) of the borrower to Dyck O’Neal.

This must continue until (1) until the judgment is satisfied or (2) until otherwise provided by court order.

2. Are there Federal Garnishment Laws?

In some situations, federal law does apply to garnishing wages and salary.  For instance, the Consumer Credit Protection Act limits Florida writs of garnishment.

Under the CCPA, Florida garnishments cannot exceed the lower amount of either:  (1) 25% of your disposable income, or (2) the amount that your income exceeds 30 times the federal minimum wage.  In July 2017, the minimum wage was $8.10 per hour (see this chart for updates).

Defenses to Garnishment:

The good news is that garnishment is not automatic and there are quite a few defenses to this type of debt collection effort. Some of which include:

1. Improper Notice of the Transfer of Debt to Dyck O’Neal

When the bank transfers the debt, including the deficiency judgment, to Dyck O’Neal (called an “assignment”), there are statutory requirements that must be followed to notify the borrower that this has occurred.  Under Florida Statute 559.715, Dyck O’Neal (“the assignee”) must give the borrower written notice of the assignment “as soon as practical” after the assignment is made, but “at least 30 days before any action to collect the debt. “

If the notice of the assignment is given past this deadline, then this is a defense against the garnishment. Moreover, if the notice of the assignment is sent before the actual date on the assignment, then this too is a defense to the garnishment action.

2.  Statutory Notice Requirements for Garnishment Are Not Followed

Under certain circumstances, a debtor may be able to argue that Dyck O’Neal did not follow proper procedure when it sought garnishment against the debtor.

For instances, under Florida Statute 77.055, the notice to the borrower must say that he or she must move to dissolve the writ of garnishment within 20 days after the date indicated on the certificate of service in the notice if any allegation in Dyck O’Neal’s motion for writ of garnishment is untrue.

If a debt collector does not strictly follow the letter of the law about notice, then the homeowner may be able to succeed in having the writ of garnishment “dissolved.”

3. Garnishment Action Does Not Apply

According to Florida law, Dyck O’Neal cannot garnish any and all income that comes into the debtor’s possession or control.  There are several revenue sources that are excluded from debt collection efforts, including writs of garnishment.  These are known as “exemptions” to garnishment. A complete list of exemptions are provided below.

4.  Statute of Limitations

In Florida, debt collectors have time limits to collect a debt (usually several years).  However, certain types of mortgage debt is subject to a specific law that makes the time limit to seek a deficiency judgment very short.

To learn more, read our article about the new time limit to collect a mortgage debt related to a residential foreclosure.

Exemptions to Garnishment

Some borrowers and certain types of assets are exempt from a writ of garnishment by Dyck O’Neal.  Some examples of those exemptions allowed under the law include:

1.  Head of Household

For instance, if a debtor provides more than half (51%+) of his or her child’s financial support, then those wages or salary cannot be garnished.  These borrowers are considered to be “head of household.”   However, if he or she makes over $500/week and agrees in writing, then their wages or salary can be garnished.

2.  Exempt Source

Some kinds of income are exempt by law from garnishment.  These include:

  • Social Security benefits
  • Supplemental Security Income benefits
  • Public assistance (welfare)
  • Workers Compensation
  • Unemployment Compensation
  • Veterans benefits
  • Retirement or profit-sharing benefits or pension money
  • Life insurance benefits or cash surrender value of a life insurance policy or proceeds of
  • annuity contract
  • Disability income benefits
  • Prepaid College Trust Fund
  • Medical Savings Account.

Wrongful Garnishment

Debt collectors often improperly seize assets that they are legally not entitled to garnish.  This happens because most debtors do nothing to challenge the garnishment.

It is up to the borrower to assert his or her legal rights to prevent these wrongful garnishment efforts, including:

1.  Answer the Writ of Garnishment

The borrower’s first line of defense is to fight the issuance of writ of garnishment.  The debtor will be served by the court with notice that Dyck O’Neal is seeking a writ of garnishment for the payment of the deficiency judgment.

Once served, there is a time frame within which the borrower should file his or her written answer to the action, which should include any defenses and/or exemption arguments.  If the defenses or exemptions are valid, the court will likely decline to issue the writ of garnishment.

2.  Dissolve the Writ and Seek Damages

If the court grants a Writ of Garnishment and Dyck O’Neal uses the writ to seize funds that are exempt or that are otherwise not appropriate, then the borrower must immediately ask the court for help.  For example, the borrower may be able to pursue a wrongful garnishment claim against Dyck O’Neal which can result in the writ being dissolved and the debtor being awarding damages, including attorney’s fees.

What Should You Do?

Anyone who has dealt with the stress of a home foreclosure understands how difficult and protracted these matters can be.  An experienced Florida Real Estate Attorney can be of great help in dealing with aggressive debt collectors like Dyck O’Neal – especially when you are facing their attempts to take away a part of your paycheck.

If you are facing a garnishment in Florida by Dyck O’Neal related to a foreclosure deficiency judgment, a good piece of advice is to talk with an experienced Florida real estate lawyer to learn about the legal defenses that are available to you. 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.

For more on Dyck O’Neal, see:

_______________

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.

Constructive Notice in a Florida Foreclosure – Archer v. US Bank

Posted By on August 8, 2017

Unfortunately in Florida, foreclosure lawsuits still fill the civil trial dockets and some homeowners are still fighting some of the same foreclosure issues that has plagued our real estate industry for years.  Fortunately, the appellate court has been helping homeowners with some of these issues by finding the banks have gone too far.

Read: Florida Foreclosure Appeal on The Issue of Standing
 
Florida-dca-map
 

An interesting case from the Fifth Circuit Court of Appeals on Service of Process

This brings us to a recent case out of the Fifth District Court of Appeals. The court’s ruling in this case is something that should concern all residential property owners in Florida, especially those fighting foreclosure or those fretting that they may fall behind in their mortgage payments.

This is because this case illustrates that without personal notice to the borrower, the bank could foreclose on the property.

March 31, 2017 Opinion in Archer v. U.S. Bank

In early 2017, the Fifth District Florida Court of Appeals decided that it could not review an order made by a trial court relating to US Bank failing to meet statutory prerequisites for notice.  The homeowner believed his rights were violated because the bank served him by publication rather than by personal service.

The result of the appeal was that the appeals court said it lacked jurisdiction to hear the issue related to a “nonfinal” order.

The full text of this Orange County case can be read online as Archer v. US Bank National Association, No. 5D16-1970 (Fla. Dist. Ct. App. Mar. 31, 2017).

Paul Archer fights foreclosure; there is a substituted bank

The case began when the lender filed a foreclosure lawsuit in Orange County naming Paul Archer as defendant.  Mr. Archer executed a mortgage with this lender and failed to make his required mortgage payments.

At some point, as happens in so many Florida foreclosures, one bank substituted for another. In this case, U.S. Bank National Association (US Bank) substituted in the lawsuit as the party plaintiff.

It wasn’t long before US Bank ran into problems with locating Mr. Archer personally, so US Bank opted to serve him with the requisite notice by publication.

Eventually, Mr. Archer learned of the foreclosure proceeding and hired a foreclosure defense lawyer.  Thereafter, a motion to quash the constructive service by publication was filed by Archer with the trial court.

Motion to Quash Notice as Failing Florida Statutory Requirements

In this motion, Archer argued that US Bank had not done enough to track him down and notify him of the foreclosure lawsuit filed against him.

Specifically, the borrower argued that the bank had failed to meet the notice requirements of Florida Statute  49.031 and Florida Statute 49.041.

The trial court denied the motion to quash the notice.  So, Mr. Archer appealed the trial court’s decision to deny his motion and the appeals court ruled against him, too.

The appellate court opinion was that:Because the nonfinal order did not determine personal jurisdiction over Archer, it is not appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i), and this Court lacks jurisdiction. We therefore dismiss the appeal.”

Constructive Notice and Service by Publication

When US Bank filed its foreclosure lawsuit, it was required to let the borrower know that the suit had been filed.

According to Florida law, every plaintiff must serve the defendant with an official notice that a lawsuit has been filed.  This is true for every case that is filed in Florida, not only for foreclosure actions.

There are different ways to accomplish this official notice to the defendant.  One of them is through “constructive service” or “constructive notice.”

“Service by publication” is a form of constructive service and is done in foreclosure cases as well as quiet title actions, paternity actions, and more.  See Florida Statute 49.011.

Basically, the Bank, as plaintiff, served the defendant, Archer, with the lawsuit by publishing the notice.

Personal Jurisdiction of the Court

Personal jurisdiction is the courts power, or authority, to bring a person before it to decide issues related to that person.

In order to exercise jurisdiction over a person, the law must be followed closely, including proper notice.

Of course, the requirement of personally serving someone creates a temptation for that person to hide from a lawsuit. That’s why there are procedural rules for service in ways other than personal service of a lawsuit on a party.

Can The Constructive Notice Procedure Be Abused By Banks?

There is a temptation to use constructive notice and move forward in a case without making every effort to track down a defendant in a foreclosure lawsuit.

That’s why there are all sorts of steps that need to be followed by a plaintiff who serves notice by publication. For example, a sworn statement is required under Florida Statute 49.041.  That sworn statement has to explain how a “diligent search” was made to try and locate the defendant in order to serve him or her with the complaint.

In many foreclosure cases, the property is abandoned.  The borrower has moved on, and has accepted that the bank will get a foreclosure judgment and repossess the home.  So, there is no defense to the lawsuit and thus, the borrower doesn’t hire a lawyer and fight against it.

In these cases, the bank often serves the homeowner using constructive notice simply because the borrower has moved outside the state and cannot be found.

The concern with the ruling in Archer v. U.S. Bank is this:  Mr. Archer wanted to defend against the foreclosure lawsuit. It didn’t matter that the bank didn’t use its best efforts to try and locate him.

In Rem versus Personal Jurisdiction

According to the appeals court in this decision, a distinction is made between jurisdiction over the borrower (Archer) and over the property itself.

The court ruled that constructive notice conferred “in rem” jurisdiction for the trial court over the property.  Not jurisdiction over the person of Mr. Archer. – See: Milanick v. State, 147 So. 3d 34, 35 (Fla. 5th DCA 2014); Bedford Computer Corp. v. Graphic Press, Inc., 484 So. 2d 1225, 1227 (Fla. 1986).

In Florida foreclosure lawsuits, the court held that the bank only needs “in rem” jurisdiction because the court only needs authority over the property to file a foreclosure lawsuit. See: NCNB Nat’l Bank of Fla. v. Pyramid Corp., 497 So. 2d 1353, 1355 (Fla. 4th DCA 1986); Also see: Florida Statute 49.011(1).

Can The Bank Get A Deficiency Judgment?

Personal jurisdiction is required by a bank in order to obtain a deficiency judgment against the homeowner.  However, constructive (published) notice is enough for a Bank to foreclose on real property. This was not a deficiency action to collect money owed by the homeowner, it was just an action to foreclose on real property.

What should You Do?

This appellate decision allows a substituted bank to foreclose on property despite a challenge on whether or not it followed the statutory requirements for personally notifying the homeowner of the filing of a foreclosure lawsuit.  After all, notice and the opportunity to be heard are fundamental rights that are enumerated in our constitution.

If you are facing a foreclosure in Florida and you believe you weren’t properly served with the foreclosure lawsuit, a good piece of advice is to talk with an experienced Florida real estate lawyer to learn about the legal defenses that are available to you. 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.

css.php