Can You Collect Attorney Fees From a Bank Related To A Foreclosure?

Posted By on March 21, 2017

Residential foreclosures are still a problem for many home owners in Florida, particularly here in Broward County, Miami-Dade County, and Palm Beach County. To make matters worse, some banks are still committing wrongful acts during the foreclosure process which can result in the banks having to reimburse a homeowner their costs, including attorney’s fees, to defend themselves.

 

Florida Foreclosure Notice

 

When May A Bank Be Required To Pay the Borrower’s Legal Fees and Expenses in A Foreclosure Suit?

Whether or not the bank will be required to reimburse the borrower for any legal fees and expenses in the foreclosure action will depend upon the circumstances of their case. Here are 2 fact patterns where a bank can be required to pay a homeowner’s costs for their foreclosure defense.

1. Bank Voluntarily Dismisses the Foreclosure Lawsuit

In any civil case, if the party that brought the lawsuit decides to stop the proceedings, then they can do so by filing a “notice to dismiss.”

In Florida, if the bank voluntarily dismisses the foreclosure action, then the borrower may be able to recover the expenses to defend him or herself.

Why? The answer is explained in the case of Bis V. US Bank Nat. Ass’n, 172 So. 3d 971 (Fla. Dist. Ct. App. 2015).

 Bis v. U.S. Bank: Voluntary Dismissal of the Foreclosure, Fees and  Costs

In 2015, homeowners Steven and Eugenia Bis took their foreclosure case to the Florida Court of Appeals to appeal the trial judge’s denial of their request for the bank to pay their attorneys’ fees and court costs.

In part, their appeal was successful.  The court ruled that the couple could get the bank to cover the legal expenses they incurred in defending against the foreclosure.  However, the bank would not be forced to reimburse them for their attorneys’ fees.

Here’s what happened: Several years ago, the bank, U.S. Bank National Association (“the Bank”), filed a foreclosure lawsuit against the couple after they were unable to resolve their differences during settlement negotiations.  They hired a lawyer and fought the Bank over the foreclosure.

The case was progressing like most foreclosure lawsuits, including the discovery process.  Then, on the day of the foreclosure trial, the Bank arrived with a notice of voluntary dismissal of the foreclosure lawsuit.  The Bis’ were glad the case was dismissed, but they wanted to get their costs covered by the bank.

So, the Bis’ filed a request with the Florida judge that the Bank be forced to pay both their legal fees and costs.

  Florida Rule of Civil Procedure 1.420(d)

The appeals court found that the Bank had followed Florida Rule of Civil Procedure 1.420 which provides that costs are to be assessed in the action that is the subject of the voluntary dismissal. See, Wilson v. Rose Printing Co., 624 So.2d 257, 258 (Fla.1993).

Unfortunately, this rule does not provide for attorneys’ fees.  So, the borrowers could get their costs reimbursed by the Bank but not their legal fees.

2. Sanctions against the Mortgagor Bank

If the lender wrongfully files a foreclosure lawsuit against the borrower, then the mortgagee (bank or lender) may be forced to reimburse the borrower for their legal fees and court costs by way of the court assessing sanctions against the bank.

This scenario is explained in the case of Snow v. Rosse, 455 So.2d 615, 617 (Fla.Dist.Ct.App.1984).

 The Case of Snow v. Rosse:  Sanctions in a Foreclosure Lawsuit

In this case, the borrowers claimed they made their mortgage payments as was required under their promissory note, but the mortgagees filed for foreclosure anyway.  The borrowers provided proof that they had sent mortgage checks, but there was fraudulent activity on the part of the mortgagees. What happened was that the mortgagees didn’t cash the borrowers’ checks.

The trial court rules that under Florida Statute 57.105, the borrowers could be awarded their attorneys’ fees after they were victorious in defeating the foreclosure lawsuit filed against them. In this case, the award of attorneys’ fees and court costs was considered a sanction against a party who has undertaken wrongful actions; in this case, holding onto mortgage checks and then trying to foreclose was considered a wrongful act.

What Should You Do?

In Florida, there are instances where a homeowner can have their foreclosure defense costs, including legal fees, covered by the bank. Those situations are case specific. One such case is where the bank fails to properly deposit your mortgage payment checks, another is where the bank has voluntarily dismissed its lawsuit.

If you believe you have grounds to recover your foreclosure costs from a bank or other foreclosing party, a good piece of advice is to talk with an experienced Florida real estate lawyer to learn whether or not your facts qualify to have the bank reimburse your costs for defending yourself. 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:

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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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Residential Security Deposit Lawsuits in Florida

Posted By on March 7, 2017

For tenants moving out of apartments, condos, homes, or other residential dwellings here in Florida, they have the right to expect the return of their security deposit (provided they have not damaged the property and they themselves have followed the notice requirements (see below) required under the law). However, landlords routinely violate the law by keeping some, if not all, of that money.

What should a tenant do when a landlord wrongfully keeps their security deposit? Florida law allows a tenant to file a lawsuit against the landlord to recover his or her security deposit. The good news is that the law allows the tenant to recover their attorney fees for doing so. Which means, in many instances, the tenant will not have to pay any money to the lawyer, unless the lawyer wins the lawsuit.
 

South Palm Beach condominiums from lake

Image: Waterfront condominium buildings facing the lagoon, Lake Worth, in the Town of South Palm Beach, Florida; image by C.Z. Marlin

 

Florida Statute 83.49 Controls Security Deposits

Florida Statute 83.49 controls residential tenant security deposits. For details, including the definition of a “security deposit,” check out the discussion in our recently updated post, “How to Get a Refund of Your Security Deposit.”

When landlords fail to return the tenant’s security deposit, then the tenant has the option to sue the landlord for its return.  In fact, it’s one of the most common basis for a landlord-tenant lawsuit here in Florida.   For more, read “Top 13 Reasons to Sue a Florida Landlord.”

Security Deposit Lawsuits – Notice Requirements

Below we have provided two examples of tenants who sued their landlord for the return of their security deposit. Both deal with the issue of “notice.”

There is a duty placed on the residential landlord to provide notice to the tenant that a claim is being made against the tenant’s security deposit. There is also a duty on the tenant to give notice that he or she is moving out. The tenant loses in the first case; the tenant wins in the second one.

A. Plakhov v. Serova: Tenant Must Give Notice Before Vacating Rental Unit.

In Plakhov, the tenant did not give the required 7-day notice to the landlord before moving out, so the landlord’s legal duty to provide notice of intent to claim part of the security deposit was excused. The landlord was awarded damages for unpaid rent and was allowed to keep the security deposit.

Here’s what happened.

In this case, a condo owner leased a Florida condo unit to a tenant. They signed a written lease agreement which stated the monthly rent as $2200, and the beginning of the lease was in November 2008.

When the lease was signed, the tenant paid the owner / landlord the first and last month’s rent as well as another $2200 as a security deposit. The landlord deposited the security deposit with a real estate management company.

Afterwards, the tenant stopped paying rent. First, he only paid part of the rent in January ($900) and then stopped paying rent entirely.

Landlord-Owner Foreclosure and Unpaid Condo Fees

The tenant was worried because he had been sued by a bank in a foreclosure lawsuit against the condo owner. The tenant was also worried due to the fact that the condo association gave him notice that the condo owner was behind in paying the condo fees.

The owner and the bank negotiated a deal and the foreclosure lawsuit was then dismissed. The owner also paid all her past-due condo fees. The owner was in good standing with her lender and the condo board as of February 2009.

Two months later, the tenant moved out. The owner immediately listed the condo for rent, but it took several months to rent the condo again. A new tenant moved into the unit in November 2009.

Notice to Tenant

Meanwhile, the owner also sent a “Notice of Intention to Impose Claim against Security Deposit” to the tenant.  It was dated April 28, 2009, and sent in care of the tenant’s attorney.  It was sent certified mail, return receipt requested.

In the notice, the tenant was informed that if he did not object to the landlord’s imposition of a claim against the security deposit within fifteen (15) days from the date of receipt (April 29, 2009), then the owner was entitled to keep the deposit.

The tenant sued the landlord and lost.  The landlord was granted a final judgment for past unpaid rental payments as well as the full security deposit.

Why did the tenant lose the lawsuit?  The court explained:

  1. The foreclosure lawsuit against the owner / landlord did not mean that the tenant had the legal right to breach his lease agreement. The tenant had a legal duty to keep paying rent.
  2. The owner’s delinquency in paying condo fees likewise did not give the tenant the legal right to breach his lease agreement. The tenant had a legal duty to keep paying rent.
  3. Florida Statute 83.49(2) does have notice requirements for written notice to the tenant but that law only applies to landlords who own five or more rental units. Here, the owner was only renting the single condo.  So, she did not have to meet the notice requirements.
  4. Florida Statute 83.49(5) requires the tenant to give notice, too. Here, the tenant did not give notice to the landlord that he was moving out. This failure relieves any landlord of giving notice regarding keeping the security deposit. 

B.  Malagon v. Solari: Tenant’s Attorney’s Fees Paid by Landlord

In Malagon, the landlord did not give legal notice that he was keeping part of the tenant’s security deposit, he just kept it. The tenant sued for the entire deposit and won; the court held that the landlord forfeited any rights to the security deposit by failing to give notice.

On appeal, the landlord did get to keep some of the deposit.  However, the court also ruled that the tenant’s legal fees would be partially paid by the landlord as provided by law. 

Here’s what happened.

In this case, the tenant and the landlord sued each other.  The tenant filed a lawsuit for return of the security deposit and the landlord responded with a “counterclaim” against the tenant.

Prevailing Party Gets Legal Expenses Paid

On appeal, each side won a partial victory.  The tenant was considered the “prevailing party” in the case because he did recover something, even though he was awarded less than the total amount he was seeking in the case.

Since the tenant was held to be the “prevailing party,” then he could get his attorneys’ fees and court costs paid by the landlord.  This is allowed under Florida Statute 83.49(3)(c).

Why Were Only Partial Legal Fees Paid? 

The tenant could not get 100% of his legal expenses paid for by the landlord. The appellate court explained that when the tenant loses some claims to the landlord, (having “only limited success,”) then the tenant must only be awarded those attorneys’ fees and court costs that are reasonably related to his winning results.

In other words, the landlord did not have to pay the tenant’s attorney’s fees and court costs on the counterclaim arguments that the landlord won in the lawsuit.

The landlord had to pay only the legal expenses that pertained to the claims against the landlord that the tenant won in the case.

Do You Have a Security Deposit Issue With Your Former Landlord?

If you are moving out of your rental unit, then you have a right to the return of your security deposit.   That’s the law here in the State of Florida.  However, that does not mean that you won’t have to file a lawsuit to get that money returned to you by the landlord.

A good piece of advice if you are having a problem with your landlord returning your security deposit 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 the law. 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 landlord tenant issues, check out the following:

_______________

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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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Conditions a Bank Must Satisfy Before Filing a Foreclosure in Florida

Posted By on February 21, 2017

If a bank intends to file a foreclosure, there are steps (or conditions) the bank must take prior to filing a lawsuit. Some of these conditions are set forth in federal and state law and others can be contained within the mortgage itself.

Generally speaking, banks must closely adhere to these conditions. Otherwise, the bank is vulnerable to certain defenses to the foreclosure lawsuit which can result in a case being dismissed.

 

Balanced scale of Justice (blue)

 

What are Conditions Precedent?

According to Black’s Law Dictionary, eighth edition, a condition precedent is “an act or event, other than a lapse of time, that must exist or occur before a duty to perform something promised arises.”

In all Florida contracts, including mortgages, there are agreed upon tasks or duties that each party must perform called “conditions.” For example, before a lender, servicer or bank can take an action, such as foreclosing on the home, they have to perform those agreed upon tasks or duties stated in the contract.

The performance of these conditions must “precede” any action taken against the other party. They are tasks that a lender must perform before it can lawfully file a foreclosure action. 

What Does Florida Law Say About Conditions Precedent and Foreclosure Lawsuits?

Florida law is still evolving when comes to mortgage foreclosures.  In fact just recently, two Florida appellate courts issued new holdings on “conditions precedent” relating to Florida foreclosures.

Does HUD’s Conditions Precedent Apply to Florida FHA Foreclosures?

In the recent case of Palma v. J.P. Morgan (see below), the court held that Florida banks are subject to federal regulation 24 C.F.R. § 203.604  (when it comes to FHA foreclosures) even if the mortgage documents do not specifically say this regulation is applicable.

See:  Palma v. JP Morgan Chase Bank, Nat’l Ass’n, No. 5D15-3358 (Fla. Dist. Ct. App. Dec. 2, 2016) (“Palma”).

Face to Face Meeting Before Foreclosure

In Palma, the Fifth Court of Appeals ruled that a federal regulation issued by the Department of Housing and Urban Development (HUD) applies to Florida mortgages.  That regulation protects borrowers facing foreclosure by requiring banks to have a face-to-face interview with the borrower as another “condition precedent” to foreclosure.

The lender must show that it complied with 24 C.F.R. § 203.604. Specifically, this regulation mandates the bank either (1) meet with the borrower for a face-to-face interview; or (2) make a reasonable effort to have that face-to-face a meeting.  The meeting must take place, or good faith efforts to meet with the borrower must happen, before three full monthly mortgage payments go unpaid.

Does The Face-to-Face Meeting Mortgage Requirement Apply to All Mortgages?

The federal regulation 24 C.F.R. § 203.604 does not apply to all foreclosures.  It applies only where there is language in the mortgage stating that the HUD regulation is “incorporated” or included in the terms of the document.

1.  FHA Mortgages

All FHA loans incorporate the HUD regulation, so it has a bearing on a lot of Florida mortgages.

Meaning, if you have an FHA loan, then the bank must sit down and have a face-to-face meeting with you before they can start foreclosure proceedings.

2.  Standard Mortgages

Some “standard” mortgages may be impacted by this rule. The Palma court noted the language regarding a required face-to-face meeting is usually found in standard mortgage paragraph 22.  So, it’s important to know your documents before, during and after you borrow money from a bank.

How Was This Condition Precedent Used By the Borrower?

In Palma, the bank filed a foreclosure lawsuit and won; the borrower then appealed to the Fifth District Court of Appeals.

The borrower asserted the federal regulation as a “condition precedent” and as an affirmative defense to the foreclosure lawsuit. Meaning, the borrower asserted the mortgage incorporated the HUD requirement of bank being required to have a face-to-face meeting before a foreclosure can be filed.

The appellate court agreed with Mr. Palma and remanded the case to the trial court with instructions that the foreclosure action be involuntarily dismissed.

As the court stated, “… [the] Bank failed to meet its burden, providing no evidence that it engaged in a face-to-face interview before filing its foreclosure complaint.”

Is Substantial Compliance by the Bank Enough to Satisfy a Condition Precedent?

What does a bank have to do to satisfy a “condition precedent” under its mortgage documents?

This question was answered in another new Florida appellate court decision, Dixon v. Wells Fargo Bank, NA, No. 4D15-3974 (Fla. Dist. Ct. App. Jan. 4, 2017).

The Dixon court held that a bank’s substantial compliance is enough to satisfy a condition precedent. However, that doesn’t mean a bank can ignore the contract’s language.

What Must The Banks Do to Substantially Comply?

In Dixon, there was a standard mortgage given by the borrowers to Wells Fargo Bank, N.A. (“Bank”).  After the borrowers failed to make a mortgage payment, the Bank sent the homeowners a default letter.

That default letter stated:

  • it was being sent pursuant to the terms of the promissory Note and Mortgage;
  • that the Bank was accelerating all sums due and owing;
  • now the entire principal balance was due;
  • along with “all other sums recoverable under the terms of the promissory Note and Mortgage; and
  • the process of filing a foreclosure complaint had begun.

The letter also advised the borrowers that they should contact the Bank if that wanted to “bring their loan current” or pay it off.  And, the debt would be assumed valid unless they challenged it within 30 days.

Eight days after the Bank sent the default letter, it filed a foreclosure lawsuit.

How Did The Bank Fail?

In their standard mortgage, there was a paragraph that explained how the lender was to give any notice of default, should the borrower fail to pay the mortgage payment.  The contract language stated this had to be done before any foreclosure lawsuit could be filed.  (It was a “pre-suit requirement.”)

In paragraph 22 of the mortgage, the lender agreed to (1) give 30 days’ notice and (2) give the borrower an opportunity to cure the default before it filed a lawsuit.  The bank did not follow this language and therefore its lawsuit was dismissed.

The Dixon court simply ruled that the Bank had failed to comply with the conditions precedent of the mortgage.  Specifically, the bank had failed to substantially comply with paragraph 22.  It filed suit before the agreed-upon time period of 30 days allowed for the borrowers to cure their default (30 days is 30 days – 8 days won’t cut it!).

What Happened To These Lawsuits?

In Dixon, and in Palma, the borrowers’ motion for involuntary dismissal of the foreclosure action was granted.  Meaning, the lawsuits were dismissed and the banks had to refile their cases only after they followed the law (just like the rest of us).

What Should You Do?

If you are struggling with financial difficulties regarding your Florida home or condo, and have either stopped making your mortgage payment or you’re thinking you may have to stop paying your home loan soon, then a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights and to learn the different foreclosure defenses that may be 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.

Tenant Defenses to Residential Evictions in Florida

Posted By on February 7, 2017

In Florida, the portion of the landlord-tenant law relating to residential dwelling units (including, homes, apartments, mobile homes and condos) was written, in part, to protect tenants during the the eviction process. Under our statutory law, the eviction process is referred to as an action by the landlord for possession of the dwelling unit.

Most residential evictions in Florida occur over the issues of non-payment of rent or because the landlord alleges the tenant has violated some term of the lease (often times, that violation (breach) relates to pets, guests and/or noise issues).

Fortunately, a residential tenant in Florida has certain statutory defenses he or she can raise against a landlord that seeks to evict the tenant from their dwelling (under the law, a dwelling is defined, in part, as “a structure or part of a structure that is rented for use as a home, residence, or sleeping place by one person or by two or more persons who maintain a common household.”)

These defenses are available to a tenant no matter if the tenant is leasing for a long period of time (like an apartment lease covering a year or more) or if the tenant is renting from week to week or from month to month (like a summer vacation home or condo).
 

FEMA - 13988 - Photograph by Andrea Booher taken on 07-13-2005 in Florida

Eviction Notices Happen In Swanky Condos, Too.


 

Residential Landlord-Tenant Eviction Law in Florida

In Florida, we have a specific law that controls residential tenancies known as known as the “Florida Residential Landlord and Tenant Act.”

Our residential landlord-tenant law is found in this Florida Statute as well as in court case precedent, where courts have rendered legal opinions in past eviction cases.  The statutory laws that control residential tenant evictions in Florida are found in a sub-section of Chapter 83 of the Florida Civil Practice and Procedures Code.  See, Florida Statutes 83.40 – 83.683.

How Does The Eviction Process Begin in Florida?

So, how does the legal process between landlord and tenant begin? Here’s what usually happens:

A landlord normally begins the eviction process when the tenant stops paying the rent or continually fails to materially comply with the lease or the law relating to maintaining the dwelling.  Sure, sometimes the tenant doesn’t have the money to pay the rent on time that month.  Times can get tough.

However, there are times when a tenant has the money to pay the rent and decides not to do so.  Why?  The tenant may feel forced to stop sending the rent check because the landlord isn’t listening to their complaints or fulfilling his or her duty under the law to maintain the premises.

Notice of Termination of The Rental Agreement to the Tenant

Under the law, before a residential tenancy is terminated and the landlord is entitled to possession of the property, the landlord must deliver (defined under the law) a written notice to the tenant.  The type of notice to be used, and, if applicable, the amount of time the tenant has to correct the non-compliance, will depend on the reasons for termination the rental agreement (i.e. non payment of rent or a material failure to comply with Florida Statute 83.52 or material provisions of the rental agreement – See Florida Statute 83.56).

The notice must include specific language about the basis for terminating the rental agreement and the steps, if applicable, the tenant can take to avoid termination or being required to vacate and/or deliver possession of the premises. No matter which type of notice is delivered, it must substantially follow the form set forth in the statute or it will be considered defective.

After notice is delivered and the tenant fails to comply, then an eviction lawsuit is filed.

Defenses to Being Evicted By The Landlord

When the eviction process begins a tenant can assert a variety of defenses to the eviction lawsuit.  Here are some of the most common:

1.  Improper Notice by the Landlord

If the landlord does not provide proper notice of the eviction, then, simply stated, he or she has not followed the law.  In Florida, a tenant cannot be evicted if the landlord does not take the following steps:

  • provide written notice; and
  • include all of the statutorily required information in that notice.

Grace Period

For instance, if the tenant fails to pay rent when due and the default continues for 3 days after notice is delivered to the tenant, then the landlord may terminate the rental agreement and evict the tenant.  This 3 day period is called a “condition precedent” (meaning, this step must occur before the landlord can exercise his or her right to terminate the rental agreement).

If the landlord did not give the full 3 days before terminating the agreement, or filing a lawsuit,  then the condition has not been met.

The tenant can move to dismiss the eviction action because of a defective notice.  See, Clark v. Hiett, 495 So.2d 773 (Fla 2d DCA 1986).

What Days Count in the Notice? You May Be Surprised

A basic step here is that the three-day time period has to be counted correctly.  It cannot include legal holidays.

If the landlord’s count includes a Florida legal holiday, then the notice is improper giving the tenant a defense to the eviction lawsuit.

What are the legal holidays for the State of Florida?  They are listed in Florida Statute 683.01 and include the following:

  • Sunday, the first day of each week.
  • New Year’s Day, January 1.
  • Birthday of Martin Luther King, Jr., January 15.
  • Birthday of Robert E. Lee, January 19.
  • Lincoln’s Birthday, February 12.
  • Susan B. Anthony’s Birthday, February 15.
  • Washington’s Birthday, the third Monday in February.
  • Good Friday.
  • Pascua Florida Day, April 2.
  • Confederate Memorial Day, April 26.
  • Memorial Day, the last Monday in May.
  • Birthday of Jefferson Davis, June 3.
  • Flag Day, June 14.
  • Independence Day, July 4.
  • Labor Day, the first Monday in September.
  • Columbus Day and Farmers’ Day, the second Monday in October.
  • Veterans’ Day, November 11.
  • General Election Day.
  • Thanksgiving Day, the fourth Thursday in November.
  • Christmas Day, December 25.
  • Shrove Tuesday, sometimes also known as “Mardi Gras,” in counties where carnival associations are organized for the purpose of celebrating the same.
  • Whenever any legal holiday shall fall upon a Sunday, the Monday next following shall be deemed a public holiday for all and any of the purposes aforesaid.

Other Failures to Give Proper Notice of Eviction

The landlord’s notice must be correct under the law (as to substance and form).  Other examples of improper notice which can provide a tenant with a defense to eviction are:

  1. The lease is signed by both husband and wife, but the notice only lists one of them;
  2. The notice has the wrong amount listed for the rent; and
  3. The notice includes a late fee as different amount due than rent (only rent can be the basis of an eviction notice).

However, the landlord “must be given an opportunity to cure a deficiency in a notice or in the pleadings before dismissal of the action.

2.  “I Don’t Have the Money to Pay Right Now”

A lot of times, tenants will say they will have the money “soon” to pay the rent.  They may even have the evidence to support their claim.  Maybe their employer is late in paying them all of the commissions that are due to them.  Maybe their parents haven’t sent them the check yet or their student loan hasn’t been release to them.

These excuses may be valid, but insufficient funds on the date that the rent is due may not stop an eviction.  However, if the tenant pays rent in full during the three-day time period, then the landlord cannot proceed with the eviction.  If the landlord does proceed with the eviction, then the tenant can use “payment” as a defense.

3. Landlord Has Not Kept Up the Property

Under Florida 83.51, residential landlords have a statutory duty or obligation to repair and maintain their rental property.

Housing Regulations

Here, the landlord must comply with applicable housing regulations.  These are laws, rules, and regulations that may have been passed by federal, state, county, or city governments regarding the condition and upkeep of the property.

If the landlord does not obey, then the tenant is free to stop paying rent.  It is considered a “complete defense” to any eviction action.

Florida 83.60(1)(b) provides the legal defense.  In the Florida Code, this is called the “defense of a material noncompliance with Florida Statute 83.51.”

Seven Day Time Ticker

There is a time requirement:  7 days must have passed between (1) the delivery of written notice by the tenant to the landlord, specifying the noncompliance and indicating the intention of the tenant not to pay rent by reason thereof, and (2) the withholding of the rent payment.

Notice by the Tenant

The tenant’ notice can be given to (1) the landlord, (2) the landlord’s designated representative under Florida Statute 83.50, (3) a resident manager, or (4) the person or entity who collects the rent on behalf of the landlord.

Reduced Rent Can Be Awarded

The judge or jury may decide that not only was the landlord guilty of material noncompliance with the law requiring the landlord to maintain the property, but that the tenant can have their rent reduced “ …to reflect the diminution in value of the dwelling unit during the period of noncompliance.”

Tenant Must Comply With Rental Deposit Law

The tenant cannot simply hold the money that would otherwise go to the landlord as a rent payment.  The rent must be paid.  However, it just doesn’t go to the landlord. Instead, the tenant must pay the rent into the court registry.  See, K.D. Lewis Enterprises Corp. v. Smith, 445 So. 2d 1032 (Fla. 5th DCA 1984).

Warning:  you must follow this law to the letter, and deposit your rent in the court depository in order for this to be a viable tenant defense to eviction.

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

4. Waiver

In Florida, under Florida Statute 83.56(5), a tenant may argue the defense of “waiver” in an eviction lawsuit.  Here, the tenant must provide evidence that the landlord took a rent payment after the lawsuit was filed.

If the landlord accepts rent after starting an eviction proceeding, then he or she has waived his right to evict the tenant.

Note:  this defense may not work if the tenant’s actions that cause the eviction to begin are repeated again.  Continued or repeated violations by the tenant can work to block a waiver defense.

5. Retaliatory Conduct, Discrimination and Self-Help

Under Florida’s statutory law, there are several other defenses that a tenant may use to defend against a residential eviction.  These are referred to in the statutes as unlawful or prohibited practices (See Florida Statutes 83.64 and 83.67).

However, there are caveats to using some of these defenses, like “in order for the tenant to raise the defense of retaliatory conduct, the tenant must have acted in good faith.”

For details of what is considered an unlawful or prohibited practices (like changing the locks or interrupting your electricity), and to learn the consequences for doing so, read our prior post “Illegal Residential Evictions in Florida.”

What Should You Do?

A good piece of advice if your landlord is attempting to terminate your lease agreement and evict you from your home, is to speak with an experienced Florida real estate lawyer to learn about your rights and to learn the different defenses that may be available to you, including how landlords may be ordered to pay your legal fees if you win your 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.

Illegal Evictions in Florida

Posted By on January 24, 2017

Every day in Florida, there is a residential tenant dealing with a landlord who has committed an illegal act all in the name of the almighty dollar. Because landlords are still finding ways to harm tenants, the Florida legislature wrote and continues to write law to protect tenants from these illegal acts.

In fact, the “Florida Residential Landlord and Tenant Act” is so detailed as to what a landlord must do and shall not do that some have argued the law is one-sided in favor of the residential tenant.

One positive aspect of the act is that the most important protections relate to security deposits and illegal evictions and these laws are mandatory in nature; meaning, the landlord has to follow the law, otherwise he or she can be held to financially account to the tenant, including paying their attorney fees.

 

Broward County FL Sheriff 2010 Charger Hemi

In a Proper Florida Eviction, the County Sheriff Oversees the Landlord’s Actions: There’s No “Self-Help”


 

3 Florida Laws That Protect Residential Renter’s From Illegal Evictions

The three specific Florida Statutes that help to protect tenants from the bad acts of landlords are:

Florida Statute 83.60 – relating to defenses to a lawsuit for rent or possession of the tenant’s home or apartment;

Florida Statute 83.64 – relating to retaliatory conduct by a landlord; and

Florida Statute 83.67 – relating to prohibited practices by a landlord (see below).

All residential renters should be aware of these laws and the protections they give to tenants. A violation of any of these laws can subject a landlord to some type of financial hardship, including having to pay compensation to a tenant.

What is an Illegal Eviction or a Self-Help Eviction?

Simply stated, when a landlord engages in the behavior listed in Florida Statute 83.67, he or she is violating the law.

Violating certain provisions of this law (like locking out a tenant, removing their belongings or cutting off their utilities) is sometimes referred to as a “self-help” eviction. In those instances the landlord can be sued for damages.

What if the Tenant Hasn’t Paid Rent?

Landlords cannot simply do anything they want to remove a tenant from their home. Landlords must follow the very specific eviction procedures set forth in the law.

This is true even if the tenant is behind on paying his or her rent.

In Florida, tenants have a right to remain in their home until the landlord complies with the proper eviction process, including providing the tenant with a correct 3-day notice to pay rent or vacate the premises (there is a whole body of law related to defective 3-day notices).

Examples of Illegal Eviction in Florida

The law defines what a landlord can and cannot do in order to evict and move a tenant out of the rental unit before the end of the lease.

The law gives specific examples of acts by a landlord that are illegal and wrongful in Florida.  They are:

  • Terminating the tenant’s electricity;
  • Interrupting the tenant’s electricity;
  • Terminating the tenant’s gas;
  • Interrupting the tenant’s gas;
  • Terminating or interrupting any other utility service, such as garbage collection, elevator service, water, etc.;
  • Changing the locks on the rental unit;
  • Using a bootlock on the dwelling;
  • Preventing reasonable access to the rental unit in any way; and
  • Removing outside doors, locks, windows, roof, or walls except as needed for repair, maintenance, or replacement while the tenant still has possession of the rental unit.

Of course, having a law on the books is one thing.  It doesn’t stop bad landlords from trying to take advantage of renters and evicting them anyway.

Landlords ignore the law all of the time.  They know that most tenants won’t do anything about it. The unfortunate thing is that most tenants are unaware that many lawyers will represent a tenant who has been illegally evicted without requiring the tenant to pay any money to the attorney unless the attorney wins their case.

4 Things a Tenant Can Do If a Landlord Attempts an Illegal Eviction?

These situations can be emotional and even dangerous for tenants.  If a renter is able to communicate with their landlord without fear of harm or retaliation, then explaining that the Florida eviction laws have been violated can be helpful.  (A written notice is better than a phone call, because having written documentation may make it easier to defend against an eviction later on or to prove a claim for damages.)

1.  Give the Landlord the Law

Many times, landlords become reasonable and prudent people when they are informed of the law (especially when they realize the tenant is informed and the tenant has shared with the landlord that he or she can be liable to the tenant for damages).  Even though the landlord may still move forward to evict a renter, they will likely do so in accordance with the law.

2.  Call the Police

If the landlord does not remedy the violation, or if the renter is afraid to ask that the landlord obey the eviction laws, then the renter can always call the police.

Landlords are breaking the law when they turn off the utilities or change the locks.  The police can order them to comply with the law.  They can also help the tenant re-enter the home without being accused of “breaking and entering” the property.

The police officer will also file a police report of what has happened.  (This is more documentation for the tenant to use later, if needed.)

3.  Call the Utility Company

You have a right to basic utilities like electricity and gas.  If the landlord has turned them off, then call the utility company.  Ask that services be restored.  (You may have to pay a deposit.)

4.  Sue the Landlord for Damages

As stated above, if a landlord violates Florida Statute 83.67, he or she can be ordered to pay money to a tenant for a landlord’s bad behavior.  How much?

A violation of this statute can mean that a landlord can be ordered to pay his or her renter:

(1) Either (a) the tenant’s actual and consequential damages or (b) 3 months’ rent, whichever amount is greater;

(2) Costs of filing the lawsuit; and

(3) The attorneys’ fees of the tenant’s lawyer.

If the landlord repeatedly violates this law, then he or she can be required to pay the tenant each time the tenant is harmed.  (Note: in order for a tenant to be paid for each time this occurs, the repeated violations cannot have taken place at the same time as the initial violation.)

What is the Proper Florida Eviction Process?

What are the proper procedures a landlord must follow under Florida law to evict a tenant?  The law is clear.  These are the steps that a landlord should take when evicting a tenant:

  1. First, the landlord must give written notice to the tenant. This writing must be a 3 day notice to vacate or a notice of lease termination, and it should have a specific date or deadline for the tenant to vacate and all of the dates must be strictly adhered to;
  2. Second, if the tenant doesn’t move out by the deadline, then the landlord must file a lawsuit to evict the tenant (the landlord can also sue for damages – however, that can slow down the process unless the landlord follows certain rules related to civil procedure);
  3. Third, the landlord has to prove his or her right to evict the tenant to a judge and get an order signed by the judge allowing the eviction;
  4. Fourth, the landlord must obtain a writ of possession and then pay the County Sheriff to go to the home and post the writ on the door giving the tenant 24 hours to vacate the premises (some counties have special rules as to when the 24 hours begins). Once the 24 hours passes, and the tenant hasn’t moved out, the sheriff will then evict the tenant. At this time, any personal property left in the home will be removed by the sheriff, placed on the front lawn or in the street,  and the locks can then be legally changed.

What Can a Florida Tenant’s Rights Lawyer Do For You?

If you are renting your home here in Florida and are having trouble with your landlord, then a tenant’s rights lawyer can be very helpful to you even if it’s just explaining your rights.

For instance, it does not matter who pays for the electricity, gas, or water.  The landlord cannot interrupt these services to a tenant’s home even if the landlord pays for these services under the lease.  See Florida Statute 83.67.

Also, it is possible to go to court and get help fast.  A court order can be obtained from a judge to stop the landlord from committing any further bad acts.

How? Tenants can get priority help from judges because an illegal eviction is defined under the law as “constituting irreparable harm” which means a tenant can get “injunctive relief.”  (injunctive relief is where a judge specifically orders a landlord to stop acting in a harmful way) See Florida Statute 83.67.

A good piece of advice if you are being illegally evicted, is to speak with an experienced Florida real estate lawyer to learn about your rights, including how landlords can be ordered to pay a tenant’s legal fees if they win 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.
 
 
 
 
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Seller and Private Financing in Residential Real Estate Transactions under Dodd-Frank Act 

Posted By on January 10, 2017

Florida residential real estate transactions are governed by a variety of laws, rules, and regulations.  Unfortunately,  some real estate agents minimize or ignore these requirements in the name of getting the deal closed. They say they want to keep things simple for buyers and sellers.  After all, the standardized forms they use cover all of these requirements, right?

Wrong.  The reality is that these laws are complicated and they exist at the local, state, and federal levels.  They apply to the most basic real estate transactions (i.e. transactions where no federally insured mortgage is involved).

Anyone buying or selling a home or condo in Florida needs to understand how Dodd-Frank can impact their residential real estate transaction even when there’ no Fannie Mae loan or other government or quasi governmental loan involved in the transaction.

What is the Dodd-Frank Act?

The full name of the Dodd-Frank Act is the “Dodd-Frank Wall Street Reform and Consumer Protection Act.”  It was passed by Congress and signed into law by President Obama in 2008.  The Act is a massive piece of legislation (it’s over 2300 pages long) and it was designed to improve transparency in the financial system and protect consumers.

For residential buyers and sellers in Florida, the important thing to know about the Dodd-Frank Act is how it impacts residential real estate transactions relating t0 seller financing and private financing of these deals.

 

Moneysack
 

Why Care about the Dodd-Frank Act if you are selling a Florida Home?

The Dodd-Frank Act imposes all sorts of new financial regulations on the banking industry.  Specifically, it imposes rules on banks and other mortgage lenders related to how mortgage financing occurs in a real estate transaction.

But it does more than just deal with banks.  The Dodd-Frank Act imposes restrictions on seller’s who finance the sale of their residential property.

These are loans where the seller loans the buyer the money to buy the seller’s home or condominium.  In “seller financing”  deals, the closing occurs without any bank or other kind of institutional lender being involved.

Sometimes, it’s a good deal for sellers and buyers.  The seller can sell their property fast.  The buyer can get immediate access to financing without all the complications of a formal mortgage application process with the local bank.

However, after Dodd-Frank was passed, things got a lot more complicated for a seller financing the sale of his or her home.  Now, a home owner who negotiates seller financing with a buyer is considered a “mortgage loan originator” and is subject to the terms of the Act.

Dodd-Frank Act and Seller Financing of Residential Home Loans

The Dodd-Frank Act sets up rules for seller financing of residential property.  It also sets up rules for private loans made on residential property not owned by the person doing the financing.

Seller Financing

The Act creates new laws for anyone involved in making consumer home loans.  It controls and mandates things like licensing and the regulation of mortgage brokers and bank loan officers.

1.  The Loan Originator Rule

Under the Dodd-Frank Act, the Loan Originator Rule is the centerpiece of the legislation relating to residential real estate transactions.  The rule generally regulates how compensation is paid to a loan originator and sets out the qualifications of, and the registration or licensing of loan originators.  Basically, the rule states when a seller is financing the sale of his or her home with a purchase money mortgage, then, depending on the terms of the loan, the seller may be subject to the act.

Fortunately, there are exclusions under the law as to who is considered a loan originator.

2.  Exclusions from Loan Originator Rule

If you are a seller wanting to finance the sale of your residence, there are two exclusions from having to follow the Loan Originator Rule.  They are:

a. The One Property Exclusion

The Loan Originator Rule will not apply to a residential sale where a “natural person, estate or trust” provides seller financing for only one property in any 12-month period.

b. The Three Property Exclusion

The second exclusion to the Loan Originator Rule is called the “three property exclusion.”  Here, the Rule does not apply to a seller who is financing three or fewer properties in any 12-month period if certain financing terms are met (see below) and the seller is not a contractor or builder.

c.  Seller Must Be Owner and Not a Contractor or Builder

These exclusions to the Loan Originator Rule under the Act apply only if:

  1. The Seller is the owner of the property that is securing the loan.
  2. The Seller is not the contractor of the residence in the ordinary course of business.
  3. The Seller is not the builder of the property in the ordinary course of business.

Simply put, if you are a home builder or a contractor on a residential project, then you cannot be excluded by the rule (meaning, you will have to follow the financial requirements of residential home loans under the act).

And, the same is true if you don’t own the home.  If you do not own the residential property being sold, then none of the exclusions from the Loan Originator Rule apply to you.

d.  Financing Terms

Under each exclusion (one property; three property), there are special financing terms.  For instance, are you offering adjustable rate financing?  Then the Dodd-Frank Act and its Loan Originator Rule requires:

  • An annual rate increase of 2 percentage points or less be used;
  • There must be a lifetime limitation of an increase of 6 percentage points or less;
  • There cannot be any negative amortization;
  • Balloon mortgages are acceptable;
  • Fixed rate or an adjustable rate must reset after 5 years or more, subject to reasonable annual and lifetime limits;
  • The home loan must be fully amortizing;
  • There must be a good faith determination that the consumer has a reasonable ability to repay the home loan. (Want to know how that’s decided?  These criteria can be found online in Regulation Z §1026.43(c).)

Dodd-Frank Does Not Cover All Residential Sellers

The Loan Originator Rule does not apply to every residential property deal.  It does not apply to loans involving:

  1. Business credit;
  2. Commercial credit;
  3. Agricultural credit;
  4. Organizational credit, or
  5. Credit extended to other than a natural person.

Are You Being Asked To Sign A Contract Form in Violation of the Dodd-Frank Act?

Most residential real estate deals happen in Florida using standardized forms.  That’s fine; it saves time and money for everyone.

Thing is, it’s important that those who are presenting those forms for use as a binding contract know whether or not those forms are up-to-date and accurate.  Unfortunately, a lot of real estate agents, and lawyers, use outdated forms.

Rider C of the Residential Contract for Sale and Purchase Form

This means in a residential real estate transaction in Florida, the form for “Seller Financing” (as provided by the Florida Realtors/Florida Bar Residential Contract for Sale and Purchase) needs to be checked for compliance.

Every day, there are transactions occurring where the contract does not comply with Dodd Frank because the form is outdated.  Rider “C” of this contract, which has the heading “Seller Financing” should be checked to see if it meets the federal financial regulation requirements of Act.  This evaluation and alteration should not be done by a Florida real estate agent.

Why?  Real estate agents cannot practice law and some agents are just simply unaware of the requirements of the Act.

Read: When Is a Florida Real Estate Agent or Broker Guilty of the Unauthorized Practice of Law?

Help With Seller Residential Financing

If you are involved in a residential real estate transaction here in Florida and your buyer is having difficulty obtaining financing, then you may want to consider offering seller financing (this type of financing will become more popular as interest rates rise).  For some sellers and buyers, handling the financing between them and avoiding the bank down the street is a great idea.  It works for lots of people.

However, it’s very important for sellers and buyers to make sure that they are conforming to all of the laws that apply to their residential real estate transaction.  This includes all the financial requirements under the Dodd-Frank Act and its Loan Originator Rule.

If a Seller does not comply with the law and there is a default of the mortgage in the future, then will the Seller be legally protected by having the right to foreclose?  Maybe not.   If the buyer stops making payments, then the seller needs to know that he or she has the right to enforce the terms of the mortgage.  If the buyer pays off the loan, then he or she needs to know that the seller can be forced to turn over clear title to the property (including the requirement to issue a satisfaction of mortgage).

Sellers need to make sure that their residential real estate transaction complies with every law out there before they decide to hold a mortgage. The laws, especially new ones like Dodd-Frank, are constantly being amended and/or replaced.

If you are selling or buying real estate in Florida and are considering seller financing in Florida, a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights, including the requirements of Dodd-Frank (pre-contract and post-contract). 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.

Satisfaction of Mortgages in Florida

Posted By on December 27, 2016

Once you send in your final mortgage payment (or where you payoff your loan due to a refinance or the sale of your home), your lender has an obligation to act.  It’s the law.

The bank is supposed to prepare and record in the public records where the property is located a “satisfaction of mortgage.” 

Why?  So the public records can reflect the title to your home or condo is free from the bank’s mortgage lien.

Satisfaction of a Residential Mortgage in Florida

When a borrower pays his or her mortgage or home loan in full, it means he or she has satisfied the debt.

However, it doesn’t mean the property is free and clear – yet.  That lien from the mortgage is still reflected in the public records.

It’s a cloud on title.  The mortgage was originally recorded to protect the bank’s interests while the loan was being paid down.  It created a lien against the property for the entire world to see when searching the public records.

After receiving payment in full, the lender is required to prepare a document showing the lien has been removed from the property.  That document has to be recorded in the public records.  Over the years there has been so many issues with satisfactions of mortgages that our legislature passed a law outlining the steps a bank, or other lender, needs to take after the mortgage debt has been satisfied.
 

South Palm Beach-FL view north 2008

Condos in South Palm Beach, Florida


 

Florida Statute 701.04

Florida Statute 701.04, is the law the sets forth the the steps that a lender must take to remove and cancel their lien on your home or condo. The law is specific as to those steps (see below).  The lender doesn’t get to choose what to do.

First of all, the bank has to remove the lien by preparing a written document.  Especially important, the lender has to record the satisfaction of mortgage in the proper county public records.  This is called filing notice.   Then the notice has to be shared with the borrower.

And, all of this has to be done within a certain number of days.  The bank has a deadline.

Florida home owners should be aware of the legal requirements for cancelling a home loan or satisfying their mortgage.  Unless this is done properly, the lien will remain and the owner will not have clear title to his or her home – which can be problem later on when they try to sell the property or when they die and the property is transferred to his or her heirs.

Step 1.  Written Acknowledgment

The mortgagee or assignee who receives that final home loan payment must execute a written document that acknowledges the mortgage has been paid in full, or “satisfied.”

This written acknowledgment must be proven or acknowledged (i.e., signed before a notary public).

It must then be filed with the clerk responsible for the real estate records of the county where the property is located.

Step 2.  Notice Sent to Home Owner

After the bank files the documentation with the real estate clerk’s office, then the bank must let the borrower know that this has been done.  The lender must send notice to the borrower that the documentation has been filed with the clerk.

This is notice that the lien has been removed.  It confirms to the borrower that he or she now has full legal title to the property without the lender having any lien against it.

Step 3.  Meet Deadline

Under Florida law, the bank has to act within a reasonable time, which has been defined as sixty days (60 days) after the date of the full payoff of the mortgage or home loan.

Within this 2 month time period, the bank has to (1) file the proper notice in the county real estate records as well as (2) give proper notice to the home owner of this recorded satisfaction of the mortgage.

Are Attorney’s Fees Awarded to the Homeowner if a Lawsuit is Filed?

What happens if the home owner has to sue the bank because it failed to prepare and record a satisfaction of mortgage?  The bank will have to pay the home owner’s legal fees to bring the lawsuit.  That’s also stated in Florida Statute 701.04.

Exceptions to Discharge of the Mortgage Debt and Lien

Of course, there are times when bad things happen.  Sometimes, a Satisfaction of Mortgage in the public records does not remove the bank’s lien against the chain of title.

1.  Mistakes, Accidents, or Fraud

Mistakes can be made, for instance.  If a borrower gets a notice in the mail from the bank that there has been a Satisfaction of Mortgage filed in the real property records, but there is still a balance due on the home loan, then it’s obvious that an error has been made.

Under longstanding Florida law, the borrower doesn’t get a windfall here.  The bank will be able to fix that mistake in the public records.

It’s true that cancellation and discharge of a Florida mortgage in the formal county records is considered an absolute bar to collecting any more money from the borrower as well as an extinguishment of the mortgage.  However, if there has been a mistake, or an accident, or some kind of fraud, then Florida courts have held this general rule will not apply.    Biggs v. Smith, 134 Fla. 569, 184 So. 106 (1938).

2.  Foreclosure Judgment

Another big exception to the Satisfaction of Mortgage law happens when the lender forecloses on the property.  If the borrower stops paying on the home loan, then the bank can file a lawsuit to foreclose on the home or condo.

Once the foreclosure lawsuit ends, if the bank wins, then it gets a judgment of foreclosure signed by the judge.  That allows the lender to sell the home or condo in order to get money to pay off that unpaid mortgage balance.

Under Florida law, the lender (mortgagee) does not have to file a Satisfaction after the sale of mortgaged property pursuant to a final judgment of foreclosure.  The title is clear for the third party buyer at the foreclosure sale under the foreclosure laws, but the defaulting homeowner does not get documentation in the record that would suggest that his debt had been paid.  Lashinsky v. First Fed. S & L Ass’n, 434 So. 2d 38 (Fla. Dist. Ct. App. 1983).

Question about a Satisfaction of Mortgage and Release of Lien Florida Law?

When you pay off your home loan, it’s sometimes a cause for celebration.  You have achieved the American Dream of owning a home free and clear!  The thing is, that doesn’t happen unless the bank does its part to remove the lien it has on your property.

Unfortunately, because of the very same reasons which lead to foreclosure fiasco several years ago, bank often fail to record a satisfaction of mortgage. In some instances, a lawsuit may need to be filed against “your lender” before a satisfaction of mortgage is issued; meaning, you may need a judge’s signature on a court order to make sure your property is free and clear of the bank’s mortgage

If you are dealing with a lender who refuses to issue a satisfaction of mortgage in Florida, a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights, including the amount of time a lender has to issue and record a satisfaction. 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.

How Do You Terminate The Joint Tenancy of Florida Real Estate?  

Posted By on December 13, 2016

In Florida, there is more than one way to own an interest in real estate.  It’s important to understand these ways before “taking title” to the property at the closing table.

One key question in deciding how to own property:  is the owner able to convey complete ownership in the future to a third party without the need of having others join in to complete the transaction.  Most everyone understands that if they are the sole owner of their property, then its easy to transfer ownership by simply signing a deed to the new grantee.

However, what if you have a shared interest?  Lots of people here in South Florida own residential real estate as shared owners.  Maybe they are husband and wife.  Maybe they are investment partners; mother and son; or heirs who inherited the place.  In these scenarios, they are likely “joint tenants” who share ownership, possession and title.

 

Miami Beach beach, June 2004

Miami Beach, Florida


 

Co-Ownership of Florida Real Estate

There are several kinds of co-ownership here in Florida. The most popular undivided interests are:  “tenants by the entirety,” “tenants in common,” and “joint tenants with right of survivorship.”

1.  Tenants by the Entirety

Legally recognized married couples under Florida law are allowed to co-own residential real estate here as “tenants by the entirety.”  The title to the real estate is in both of their names.  Then, when either the husband or wife passes away, the surviving spouse automatically becomes full owner of the entire interest in the real estate.  There is no need to probate the deceased’s real estate interest here because his or her interest in the property transfers to his or her spouse by way of the right of survivorship, which is inherent in this form of property ownership.

2.  Tenants in Common

Anyone who can legally own real estate in Florida can have a co-ownership interest in the property.  Furthermore, there is no set legal limit on the number of co-owners real estate can have.

In Florida, “Tenants in common” is the default form of co-ownership in real estate.  A tenancy in common is a form of ownership in which each co-tenant owns a separate fractional share of undivided property.  It is characterized by each owner having the right to possession of the property.

The extent of each co-owners interest in the property generally depends upon how much they contributed to it.  For instance, if one owner of a Miami Beach oceanfront condo paid 50% of the sales price, he or she owns 50% of the undivided interest in the property (co-tenants are presumed to own equal undivided interests).

In this form of ownership there is no right of survivorship.  When a co-owner dies, their interest transfer to their heirs (by intestacy if there’s no will) or according to the co-owners wishes in their will.

3.  Joint Tenants with Right of Survivorship

Sometimes, the joint tenants may have a “right of survivorship.”  Generally, a joint tenancy with right of survivorship (JTWROS) means that the owners have equal rights to the real estate, share and share alike.  If one of them dies then their share is automatically transferred to the remaining living owners.

It’s a form of ownership that has been contemplated by the Florida Legislature.  In Florida Statute 689.15, land will not pass upon the death of an owner via a right of survivorship unless specific legal steps are taken.

The law requires “… the instrument creating the estate shall expressly provide for the right of survivorship.”  So if you want to take title as a joint tenant with right of survivorship, then you need to make sure that the documentation properly reflects that intent.

Furthermore, there are other legal concerns regarding holding property as joint tenants with rights of survivorship.  See our earlier discussion in our post, “In Florida, Shared (Joint) Ownership Can Be a Big Problem If a Creditor Stakes a Claim Against the Property in Joint Tenancy with Right of Survivorship.”

Ending Joint Tenancy or Co-Ownership of Florida Real Estate

Not everyone wants to have shared ownership in real estate.  This is especially true if the owners are a married couple going through a divorce.  Or, grand-kids who inherit Florida real estate.  It may not be financially prudent for them to share ownership in a piece of real estate, or maybe the co-owners just don’t get along.

3 ways to terminate a Florida joint tenancy.

For those interested in learning how to end joint ownership in Florida residential real estate, then Florida law offers the following ways to terminate a joint tenancy:

1.  Termination By Operation of Law.

By definition, “joint tenancies with right of survivorship” (JTWROS) exist for a limited time.  That’s because this form of ownership ends when one of the joint tenants dies. The dying party’s interest transfers to the surviving owner or co-owners at some point in the future.

The Case of Foreclosure on a Joint Tenant

In the Moring case, a Florida lender filed a foreclosure action against Mattie Moring for failure to pay on a mortgage.  As plaintiff, the lender joined Mr. and Mrs. Richard Roundtree in the foreclosure case because they were believed to have a shared interest in the property. DAD, INC. v. Moring, 218 So. 2d 451 (Fla. Dist. Ct. App. 1969).

They did.  The ownership here was as Joint Tenants with Right of Survivorship.  The deed to the property filed in the St. Lucie County real estate records specifically stated that Mattie Moring and Richard Roundtree were (1) joint tenants with right of survivorship and (2) on the death of either the estate would survive to the other tenant.  (Mrs. Roundtree had a legal interest as Mr. Roundtree’s spouse.)

Problems arose when Mattie Moring went and got a loan on the property without bothering to tell Mr. Roundtree.  Things got more complicated when Mattie passed away several months after the foreclosure lawsuit was filed.

Mr. Roundtree argued that he now owned the property free and clear.  The bank didn’t agree and wanted him to cover the unpaid mortgage.

What happens now?  Under Florida law, the court explained, the interest of the joint tenant terminates upon her death prior to the other joint tenant.

The mortgage on the joint tenant’s interest was a “defeasible interest” held by the lender.  When Mattie passed away then the lien terminated because the interest held by the mortgagor terminated by operation of law.

The bank lost.  The foreclosure action was dismissed by the trial court (and affirmed on appeal).

2.  Sell it to a stranger.

One way you can end a joint tenancy in Florida real estate is to sell your interest in the property to a stranger.  It is entirely permissible for someone who owns residential real estate in Florida to sell their interest to anyone of their choosing.  DAD, INC. v. Moring, 218 So. 2d 451 (Fla. Dist. Ct. App. 1969).

Additionally, in Florida, a joint tenant of residential real estate may sell his or her interest in the property to a total stranger without the consent of the other joint tenants.  Harelik v. Teshoney, 337 So. 2d 828 (Fla. Dist. Ct. App. 1976).

Mother Sells Her Joint Interest to a Stranger

In the case of Harelik v. Teshoney, Esther Lawrence conveyed some property in Volusia County to Charles Harelik and his mother, Stella Harelik.   Stella was a widow.  The deed was specific, conveying the tract to the mother and son as joint tenants with rights of survivorship and specifically not as tenants in common.

Sometime later, Mrs. Harelik conveyed her interest in the property to Lila Teshoney.  Mrs. Harelik kept a life estate in the transaction.  Charles wasn’t involved in this deal.

Stella Harelik died.  Charles claimed full ownership and Lila said no, she had an ownership interest too.   Charles filed a lawsuit to have the courts decide who held legal title to the land.

The court considered whether or not the Widow Harelik could gut that deed conveying the land as a joint tenancy with the right of survivorship all by herself.

Can someone who owns land as a JTWROS unilaterally terminate the right of survivorship?  Yes.

Citing to the Florida Supreme Court in explanation, the court held it is Florida law that a joint tenant can destroy the right of survivorship.  The requirement here is that when she does so, she must end her interest in a manner that prevents her from claiming by survivorship any interest in the subject matter of the joint tenancy.

Since Mother had transferred her interest in such a way that if her son had passed, she could not claim full title as JTWROS, she had ended the joint tenancy.  The court called this ending the “unity” between mother and son as co-owners in the land.

So, you can terminate a joint tenancy in Florida land if you transfer your interest to a stranger, because you have done what courts consider to have destroyed “the unity of title” with your joint tenants.

2.  Transfer it to another joint tenant.

Another way to terminate joint ownership of Florida real estate is for one co-owner to convey their ownership interest to another joint tenant (or tenants).  If there are several joint owners, then the ones who are not involved in the transaction do not have to know about the conveyance, much less approve of it.  Countrywide Funding Corp. v. Palmer, 589 So. 2d 994 (Fla. Dist. Ct. App. 1991).

The Case of Countrywide Funding Corp. v. Palmer

In the Countrywide case, Countrywide filed a foreclosure action against a piece of Florida real estate held in a deed jointly by a mother, Adelina Hentzschel, and her son, Jose Baca.

The deed was specific that mother and son owned the home as joint tenants with right of survivorship.   Originally, mother Adelina had bought the real estate and then filed the deed as JTWROS for herself and her son Jose.

Later, another deed was filed.  This was a quitclaim deed from mother and son to Jose Baca.

After this quitclaim to Jose was filed with the clerk’s office, Jose got a mortgage from Essex Mortgage Company and then refinanced with Bayside Federal Savings and Loan.  Bayside then assigned the mortgage to Countrywide.

Then Jose Baca died.  Mortgage payments didn’t get paid. The lender, Countrywide, foreclosed.

In the foreclosure action, it was proven that the quitclaim deed was forged.  Mother Adelina had never signed that deed.  However, Jose had done so.

By signing that deed, had Jose terminated the Joint Tenancy with Right of Survivorship with his mother?  Yes.

The quitclaim terminated the joint tenancy with right of survivorship.  Now, his mother owned the land as a tenant in common.

Jose had the power to convert that JTWROS to a tenancy in common, without his mother’s knowledge or consent.  He terminated the JTWROS by transferring his joint tenant interest to himself as grantee.

The lender had the right to foreclose on the son’s undivided one-half interest in the tenancy in common which resulted from his deed to himself.  As between the two innocents, the mother who had been the victim of forgery and the lender who had loaned money, the court sided with the lender.

(Other ways to end a joint tenancy include simply transferring the interest in the property to a family member.  Also, one co-owner can seek to partition the Florida real estate. Partition is where the court orders the property sold because one co-tenant has sued another to end the shared ownership of the property. This usually happens when the property is inherited or after a divorce.)

Do You Have a Problem with a Co-Owner of Jointly Owned Florida Real Estate?

Joint tenancies in Florida can be complicated, especially if the owners don’t get along or they can’t decide how the property should be managed (sell, rent, etc.).  Both statute and case law can impact how disputes get resolved.

If you are dealing with jointly owned real estate in Florida, a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights, including how the profits are to be divided and how the costs to operate the property are to be shared. 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.

Related: Is Sharing Ownership of Florida Real Estate Causing a Problem For You? – Partition Actions in Florida

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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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Bed Bug Claims by a Florida Tenant: Can You Sue the Landlord When Bed Bugs Are Found in an Apartment, Leased Home, Condo or Vacation Rental?

Posted By on December 8, 2016

In Florida, the obligation of a landlord to a tenant with regard to providing a clean and safe living condition when leasing and renting of residential real estate, is governed by Florida statute and Florida court opinions – this includes renting in a large apartment complex, single family home, vacation rental or condo.

Be aware, bed bugs bites can resemble spider bites and mosquito bites.  That’s why we recommend that you see a Doctor to determine the exact type of bite you have.  Often times, people learn that those innocent looking bites are in fact caused by bed bugs.

Bed Bugs and Landlord-Tenant Disputes

Most bed bug related landlord tenant disputes stem from the landlord’s lack of knowing how to deal with an infestation in an apartment and from not having a coherent bed bug policy as to proper cleaning, extermination and the hiring of certified experts to address an infestation. (Bombing bed bugs, if done incorrectly, can simply lead to the bed bugs spreading to other areas of the home or apartment units in the complex.)

Bed bugs have been found in high end apartment complexes and vacation resorts and their presence is not determined by the cleanliness of the living conditions where they are found.

According to Florida statute 83.51, unless agreed in writing, the landlord of an apartment complex is required to  exterminate for bedbugs.  Furthermore, Florida statute 83.56  states if a landlord materially fails to comply with  83.51 “… within 7 days after delivery of written notice by the tenant specifying the noncompliance and indicating the intention of the tenant to terminate the rental agreement by reason thereof, the tenant may terminate the rental agreement.” 

However, be aware, going down this road can lead to an issue with the landlord not returning your security deposit.

Bed Bug Claims – What About Insurance?

Unfortunately, most renters insurance don’t cover claims related to maintenance issues. That’s because the costs associated with eliminating bed bugs is considered part of standard home maintenance.

Thus, Florida landlords and property managers need to properly maintain their premises, including having a maintenance program that looks for and properly treats any bed bug infestation.

Can Bed Bugs Cause a Personal Injury Claim?

Due to the invasive nature of bed bugs (they can lay several eggs per day), an infestation can lead to personal injury claims against a property owner and/or other interested parties (i.e. leasing and rental agents and property management companies).

If a tenant, shows signs of a bite, from  a small bite mark, to a serious allergic reaction, then the landlord, property manager, or leasing agency, may be held liable for those injuries. In Florida, landlords have a duty to provide habitable living conditions (some duties can be contracted away – check your lease).

Further, a claim for damages in a bed bug lawsuit can be significant, particularly if the apartment tenant has engaged the help of a mental health professional for severe emotional distress.  Those damages are in addition to claims for pain and suffering, lost wages, reimbursement of medical expenses, relocation expenses, property damage and more.  To this end, be sure to take pictures or video of your bites and try to collect evidence of the infestation, including capturing a bed bug, if possible.

If you are dealing with a bed bug issue in your apartment, a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights, including what information you will need to make a claim and the amount of damages you may be able to recover. 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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How to Have a Deed Notarized if the Seller is in a Foreign Country

Posted By on November 29, 2016

The simplest reason that deeds have the seller’s signature sworn before a notary public is to prevent fraud.  This is particularly important in real estate transactions where the seller is foreign or is abroad.

In fact, our years of Foreclosure Fraud and Robosigning are prime examples of what happens in real estate when there is a failure in the notary process.  Learn more about that in our free 2011 e-book, “The Non-Lawyer’s Guide to Foreclosure Fraud 2011.”

Which is why there is a state law that addresses conveyances of real estate where the seller isn’t in the State or in the country.  A deed transferring Florida real estate must comply with our laws regarding execution and notarization.

 

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Notary Public and Florida Statute 117.107

What is a notary public?  A notary public is a recognized officer licensed by the State of Florida, with specific duties defined under Florida law.

Someone who acts as a notary public is serving as a public official.  It’s a position of integrity and respect.  “Notary publics” are officers who are commissioned by the State of Florida to provide specific notarial acts created in state statutes.

These include those outlined in Florida Statute 117.107(9), which states that a Florida notary public cannot notarize a signature on a document if “…the person is not in the presence of the notary public at the time the signature is notarized.

This brings us to the problem of having a seller who is in another country when you are buying a Florida home or condo.  How can you close with these legal notary requirements? And is this really a problem here in Florida?

Foreign Sellers and Florida Real Estate Closings

In South Florida, there are a great number of residential properties owned by foreign investors.   In fact, according to 2015 research by the National Association of Realtors, Miami and Fort Lauderdale alone account for fifty percent (50%) of statewide foreign real estate deals, which totaled $6.1 BILLION in total sales volume that year.

More and more, buyers looking for residential properties here in Florida are going to be dealing with owners who live in another country.  It’s pretty commonplace these days.

So what do you do if you are involved in a real estate deal where the owner of the home or condo is not in Florida, but in another country?

Surely you don’t have to pay for a Florida notary public to fly to Canada or Great Britain or China to insure compliance with the presence requirement?

No, you don’t.  The Florida Legislature has dealt with this situation already.

Florida Statute 693.03: Notarizing Documents for a Foreign Seller

If you have a document which ordinarily would be signed in front of a Florida notary public, but the person who needs to sign is in another country, then you follow the procedure of Florida Statute  695.03(3).

Under Florida Statute 695.03(3), there are several options for the foreign seller / signatory.  He or she may find one option more convenient than another, depending upon the laws of their nation and their personal circumstances. You can read the full text of Florida Statute 695.03 online here.

The County Records Clerk and Florida Statute 695.03

Under Florida Statute 695.03(01), before any real estate documentation can be recorded by a Florida county clerk’s office, that document must be properly executed and acknowledged.

The clerk will review the document for compliance with state law before accepting it. Each county in the State of Florida will have established guidelines for recording a deed in its jurisdiction (you record deeds in the county where the land is located).

If the deed you present to the county clerk’s office does not meet their approval, then the deed will not be entitled to be recorded.

For details on what various counties require for recording a deed, check out the online information provided by:

What will the Clerk look for in the Deed?

Under normal circumstances (where the seller is located within Florida), the seller’s signature on the document must be acknowledged by a notary and the notary acknowledgment should include the names being acknowledged, the date the acknowledgement was taken, the signature of the notary (name printed underneath), and the commission expiration date and seal.

Who Can Act as a Notary Public in A Foreign Country?

For those involved in a transaction with a foreign seller, the seller must execute (sign) the deed before any of the following:

1.  A Commissioner of Deeds

A commissioner of deeds is someone appointed by the Governor of the State of Florida to act in that foreign country.  His or her seal is acceptable under Florida Statute 695.03.

2.  Civil-Law Notary or Notary Public of That Country

Any notary public of the foreign country, or a civil-law notary of either (a) Florida or (b) that foreign country who has an official seal, can act as notary.

Either the foreign country’s own notary public or a civil-law notary can authenticate the foreign seller’s signature on the deed under Florida law.

3.  U.S. Representatives in that Nation (Envoys, Diplomats, etc.)

Many American citizens work in foreign countries on behalf of our nation.  It is permissible under Florida Statute 695.03 for an ambassador, envoy extraordinary, minister plenipotentiary, minister, commissioner, charge d’affaires, consul general, consul, vice consul, consular agent, or other diplomatic or consular officer of the United States appointed to reside in such country to acknowledge and authenticate the signature of a foreign seller on a deed transferring Florida real estate.

Here, federal regulations also come into play.  Under 22 C.F.R. 92.31, there are notarizing officers at all U.S. Embassies and Consulates.  Before they will confirm the seller’s signature on the real estate deed, they will need:

  1. the personal appearance of the seller requesting the notarial service;
  2. to establish their identity;
  3. to establish that the person understands the nature, language and consequences of the signing the deed;
  4. to establish that the person is not acting under duress; and
  5. to confirm that the act does not come within the exceptions where notary services must be refused under 22 C.F.R. 92.9.

4.  Officers with the United States Military

Finally, there are procedures in place to help our armed forces.  These are provided by Article 136 of the Uniform Code of Military Justice.

It is legal for a military or naval officer to perform the duties of notary public, with the officer’s seal being used as the certificate of acknowledgment, legalization, authentication, or proof of the foreign seller’s execution of the deed transferring Florida property.

What Should You Look For In a Deed That Was Notarized Abroad?

Under Florida Statute 695.03(3), there are certain items that must exist on any deed that is presented by a foreign seller in a residential real estate deal.  These are:

  1. The official seal of a civil-law notary or notary public.
  2. If there is an official seal on the deed from a civil law notary in the foreign nation, then you need to make sure that the seal has been given by an authority in the foreign jurisdiction who has an official seal and who has the power in their laws to make legal or lawful the execution of any document in that jurisdiction.

Are You Having An Issue Having a Florida Deed Signed Overseas?

If you are having an issue with a foreign seller getting a document notarized, a good piece of advice is to talk with an experienced Florida real estate lawyer. 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.

Florida lawyers have experience in dealing with international transactions and may be able to expedite the closing of your transaction in ways that other real estate professionals cannot.

_______________

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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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