Posted By Larry Tolchinsky on August 14, 2018

In Florida, foreclosure defenses (for residential foreclosures) can be categorized into three different arguments.  Those arguments focus upon either (1) the validity of the mortgage; (2) whether or not there has been a “default” under the law; and (3) if the lender had a legal right to accelerate the debt under the circumstances of the case.
 

 

1.  Attacking The Validity Of The Mortgage

Foreclosure defendants are entitled to use any contractual defense that pertains to their circumstances. These defenses include issues like fraud, the statute of limitations and standing.

Fraud

If the borrower can demonstrate that the home loan was based upon fraud on the part of the lender or its agents, then the foreclosure action should fail.  However, proving fraud is not easy to do because the elements of fraud must be proven with particularity.

A successful fraud defense allows the home owner to obtain rescission of the mortgage or alternatively, affirm the deal and ask for money damages.  See, Meyerson v. Boyce, 97 So. 2d 488 (Fla. Dist. Ct. App. 1957).

Bank Fails to Meet Deadline in the Statute of Limitations

Every civil action filed in Florida has a deadline.  If a foreclosure lawsuit is filed after the deadline has passed, then it is barred by operation of law.  This deadline is set in our “statute of limitations.”

Under Florida Statute 95.11(2)(c), all mortgage foreclosure lawsuits must be filed within five (5) years. If the bank files the foreclosure lawsuit after five years have passed, then the borrower can assert a limitations defense asking that the case be dismissed as a matter of law.

Under Florida Statute 95.031, the time starts to run when the last element constituting the cause of action occurs.  In foreclosure lawsuits, this can be when there was a first written demand for payment, see Ruhl v. Perry, 390 So.2d 353 (Fla. 1980).  It may be the earlier of the date when acceleration clause is invoked or stated date of maturity. Smith v. Federal Deposit Ins. Corp., 61 F.3d 1552, 1561 (11th Cir. 1995).

Standing:  MERS Issue

In Florida, the Mortgage Electronic Registration Service, Inc. (MERS) was a notorious player in the rampant Foreclosure Fraud Crisis of the early 2000s.  See, e.g, Foreclosure Fraud Cases: Banks and Mortgage Servicers Have an Achilles Heel, Title Problems Related to MERS.

There are numerous issues for any foreclosure involving MERS.  For instance, it may well be that merely having MERS listed as a party on the mortgage as a “nominee” may be enough to defend against the foreclosure lawsuit.

Having MERS involved may in and of itself negate the standing of the lender attempting to foreclose on the defendant’s property.  Failure to have standing means the lender has no legal right to proceed with the cause of action.

2.  Has There Been A Legal Default?

Another collection of foreclosure defenses available to a borrower is determining whether or not there has been a legal default under the mortgage.

The entire loan package is investigated, reviewing paragraph by paragraph the closing documents and legal instruments to determine what obligations and promises were made by each side (the “covenants”).  The particular facts surrounding the inception of the loan as well as all of the mortgagor’s actions must be evaluated.  See, Spector v. Vent Vue Window Corporation, 115 So. 2d 570 (Fla. Dist. Ct. App. 1959).

Often, late payments are the basis of filing a foreclosure lawsuit.  This category of foreclosure defenses works to challenge the validity of that action.

Payment

There are times when the borrower has paid his or her monthly mortgage payments, but the lender does not accept or honor them.  If the lender proceeds to file a foreclosure lawsuit, the borrower has a valid foreclosure defense if he or she can demonstrate to the court that the borrower has met his or her pending obligations under the loan, insofar as they existed before the lender accelerated the debt.

The act of delivering a payment is sometimes called “tender,” and it can be a valid defense to a Florida foreclosure action.  For more, read Payment Defense to Foreclosure.

Bank Fails to Follow Federal Law Covering Home Loans

The home loan industry is heavily regulated, and many different federal laws have been passed by Congress not only to help borrowers get home loans but to oversee the actions of mortgage lenders.  The failure to follow any of these federal laws, rules, or regulations by the mortgage lender can become a valid foreclosure defense for the borrower in a Florida foreclosure lawsuit.  They include:

Home Ownership Equity Protection Act (HOEPA)

Here, if the first mortgage lien has an interest rate that is higher than an 8%, then it is a high rate loan covered by HOEPA.  Borrowers must get special disclosures for these kinds of mortgages.  The disclosures must be given at least 72 hours before closing on the loan.

Under the terms of HOEPA, if its provisions are not followed to the letter by the lender, then the borrower has a right to rescind the loan as well as a foreclosure defense.  (The state version of HOEPA, the Florida Fair Lending Act, is found in Florida Statutes 494.001 et seq.)

Real Estate Settlement Procedures Act (RESPA)

This federal law requires a specific and detailed closing statement form be completed by the lender as part of the closing.  If the detailed form is not complete, not correct, or not provided, then the borrower has specific legal remedies as defined in the statute.  See, Big Changes In Florida Real Estate Closings: The HUD-1 Settlement Form Replaced With TRID.

Home Affordable Modification Program (HAMP)

Under HAMP, lenders cannot file a foreclosure lawsuit (or take the next step in the foreclosure process) if the borrower is involved in a modification plan, or other loss mitigation procedure, as defined by the statute.  This law was passed as part of the Foreclosure Fraud bailout, to try and resolve the huge numbers of foreclosures that were being filed by lenders in Florida and elsewhere in the country.

Under the law, mortgages can be modified and mortgage payments are reduced to a ratio that corresponds to a borrower’s gross monthly income.  Foreclosure proceedings cannot continue once HAMP is in place.  To do so is to provide the borrower with a foreclosure defense defined by this Federal statute.

See:  HAMP Trial Period Plan Lawsuits: Borrowers Sue Banks for Failing to Do the Right Thing in TPP Loan Modification as Lenders Fail To Follow HAMP Requirements

3.  Was There A Legal Right To Accelerate The Debt?

The third category of foreclosure defenses is similar to the arguments against the legality of the default.  Here, longstanding principles of fairness (equity) are applied to the situation.

Over time, Florida courts have built legal principles consisting of equity defenses which apply both in standard contract cases as well as in foreclosure actions.  These include equitable estoppel, waiver, laches and unconscionability.  Here, the court will deny acceleration of the debt based upon equitable reasons.

For instance, if the facts show that there was reliance by the mortgagor on statements of acts of the mortgagee relative to the mortgage relationship, then there will not be a valid acceleration of the debt under equitable principles of estoppel and waiver.   See, Edelstein v. Peninsular Lumber Supply Co., 247 So. 2d 721 (Fla. Dist. Ct. App. 1971).

Unclean Hands Doctrine (Unconscionability)

In Florida, since mortgage foreclosure lawsuits are considered equitable proceedings, (See – Cross v. Federal Nat’l Mtg. Ass’n, 359 So.2d 464 (Fla. 4th DCA 1978)), one of the most common equitable defenses in Florida jurisprudence is the doctrine of “unclean hands.”  If the borrower (defendant) can provide admissible evidence that the lender (plaintiff) was involved in illegal or improper activity, which may or may not include fraud, then the action has been filed with “unclean hands.”

The defendant can successfully defend against a foreclosure action with an unclean hands defense.  See, e.g., Adam Smith Enterprises, Inc. v. Barnes, 539 So.2d 549 (Fla. 2d DCA 1989).

Procedural And Due Process Failures As A Valid Foreclosure Defense

In addition to the above substantive categories of defense in a residential foreclosure, the defendant may find a successful argument against the bank’s attempt to foreclose on their home based upon procedure and due process failures.

Foreclosure actions are lawsuits that must strictly comply with the procedural requirements established to protect the borrower against the bank.  Here, things like failure to give the requisite notice, or service of process, can result in the dismissal of the proceedings.  

Bank Failed to Provide Proper Legal Notice to Borrower

Under Florida law, statutes have been passed that contain very specific provisions on how the bank must give formal notice of default on the home loan.  For instance, there is a 30 day notice of default that must be given before the bank starts the foreclosure process.

Notice of default has to be given long before the lawsuit is filed. If the bank fails to meet that legal notice requirement, then the defendant can request that the foreclosure action be reversed or dismissed.  See, e.g., Rashid v. Newberry Fed. Sav. & Loan Assoc., 502 So. 2d 1316 (Fla. Dist. Ct. App. 1987), appeal after remand, 526 So.2d 772 (Fla. 3d DCA 1988).

Bank Fails To Provide Proper Service Of Process Of The Lawsuit

In a foreclosure action, the bank must follow all the legal formalities of any other civil plaintiff.  This includes meeting the procedural requirements for service of process upon the borrower as party defendant.

Under Rule 1.070 of the Florida Rules of Civil Procedure, the bank has 120 days to serve the borrower with a summons, and the time begins to run on the date that the lawsuit was filed with the clerk’s office.  The person who “serves” the borrower is called the “process server.”

This person has legal duties under Rule 1.070 and the Florida Statutes, including Florida Statutes 48.20, 48.031(5).  He or she must do things that include:

• Provide copies of the filing documents to the borrower-defendant;
• These copies must be true, correct, and complete;
• The borrower-defendant must be told what the documents are (what they contain);
• The server must give the borrower his official identification number as a process server in the State of Florida;
• Not try and serve the documents on a Sunday;
• Meet specific notice requirements if the borrower cannot be found and service is done by mail; and
• The server must initial the copies given (“served”) to the borrower.

If these procedural requirements for service of process in a foreclosure lawsuit are not followed, then the defendant can move the court to “quash” the service and dismiss the entire case based upon defective or insufficient service of process.

What If The Bank Files A Procedurally Flawed Complaint?

It is surprising how often lenders, with their staff of attorneys as well as outside counsel, have failed to file a proper pleading in a foreclosure lawsuit.  First of all, as in any civil matter, the pleading rules of the Florida Rules of Procedure must be met.

Under Rule 1.130, the lender must attach both the mortgage and the promissory note to the pleading asserting its foreclosure cause of action (the “complaint”).  If either of these documents is not attached to the document, or if they are incomplete in anyway, then the procedural rules have not been met.

Moreover, the plaintiff must affirm (“verify”) that the foreclosure complaint is based upon facts “alleged therein” that are “true and correct.”  Failure to have a duly authorized representative of the lender-plaintiff sign the complaint “under penalty of perjury” means that the complaint fails to meet the procedural requirements.  See, Florida Rules of Procedure 1.115(e).

All other provisions of Florida Rule of Procedure 1.115 must also be met, as the specific procedural rule governing mortgage foreclosures in Florida.  These include requirements that the complaint must:

• Contain affirmative allegations expressly made by the claimant at the time the proceeding is commenced that the claimant is the holder of the original note secured by the mortgage; or allege with specificity the factual basis by which the claimant is a person entitled to enforce the note under section 673.3011, Florida Statutes; and
• If the claimant seeks to enforce a lost, destroyed, or stolen instrument, an affidavit executed under penalty of perjury must be attached to the claim for relief.

Any failure of the foreclosure complaint to meet the procedural requirements under the Florida Rules of Procedure provides the borrower with a valid foreclosure defense and grounds to seek dismissal of the case.

Read: Lost Notes in Florida Foreclosure Cases: Banks Must Prove Their Case With Valid Legal Documents

Bank Failed To Properly Assign The Mortgage Or Endorse The Note

If the mortgage has changed hands between financial institutions (one bank sells the loan to another), then there needs to be proper corresponding assignments of the mortgage and endorsements to the note (or the Allonge).

Failure to follow these basic legal concepts can give the borrower facing foreclosure the defense of “standing.”  Here, the plaintiff’s standing in the foreclosure lawsuit is challenged because the bank cannot provide the correct and complete documentation of its legal right to foreclose at the time that the foreclosure action was filed.

See, e.g., our past success using this foreclosure defense against Bank of America in “Florida Foreclosure Appeal on The Issue of Standing; Victory Against Bank of America.”

What Should You Do?

There are other foreclosure defenses that may apply to someone facing a foreclosure lawsuit here in Florida.  Each case is unique and each case must be analyzed according to its specific circumstances, including the background paperwork and everything filed in both the civil lawsuit records and the real estate records for the property itself.

A good piece of advice if you are dealing with a foreclosure in Florida, is to speak with an experienced Florida real estate lawyer to learn about your rights, including learning if any of the above foreclosure defenses apply to your loan. 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, read Ocwen Filing Bad Foreclosure Lawsuits: Is Ocwen Servicing Your Mortgage?

 
 
 
 
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Posted By Larry Tolchinsky on May 15, 2018

Florida home buyers are not required by law to survey their residential property before they close on their new home. However, it’s a good idea to do so because any number of issues can materially affect the value of the property and the ability to sell it. 

What is a Survey?

A certified property boundary report, or “survey,” outlines and defines all of the unique characteristics of land and its improvements. The creation of a physical survey is done by a surveyor licensed to perform physical surveys by the State of Florida.   As part of the creation of the survey, a licensed surveyor will visit the property and record certain information about the location.  He or she will not rely solely on records or plats filed with the county recorder’s office, but those documents will be reviewed to aid in preparation of the final document.

The surveyor will make an independent, professional determination about the land and all improvements found thereon. He or she will use experience and professional expertise, as well as Global Positioning Systems (GPS),Computer Aided Drafting (CAD), Robotic Survey Systems (RSS), and Laser Scanning to create a boundary survey.

A buyer can expect to find the following information on a survey:

1. Details regarding the boundary lines for the land or lot;
2. Descriptions of where the improvements are located on the property including the distance between each improvement and the boundary lines; and
3. Disclosures of specific characteristics of the property, including:

• Location of all utilities
• Location of all easements
• Path of access for all easements
• Boundary line encroachments; and
• Location of the road right of way.

 

Ten Reasons Why Surveying Florida Property Is A Good Idea

From the perspective of an experienced Florida real estate attorney, there are several reasons that someone buying Florida residential real estate should have a survey before the closing of the transaction.

1. Determine The Visible Boundary Lines

Regardless of how long the property owner has lived in the home, or how established the neighborhood is, lawyers all too often negotiate boundary disputes between the owner and neighbors.   Here, property owners have been assuming that their property lines were in one place, when in actuality the legal description determines their boundaries in a different location.

This can be a serious problem for a new buyer who wants to put up a privacy fence, to tear down a pier, or to pave an access road or gravel driveway.  The new buyer may discover that his or her new neighbor disputes the right to do so because of confusion over their property boundaries.

The survey explains where the visible boundaries are for the lot that is being purchased and warns of potential property line disputes.

The certified survey itself provides admissible expert evidence regarding whether or not the legal description of the property contained in the sales contract and closing documents is correct. It gives the buyer something to show a neighbor after closing, and, if there are inaccuracies revealed in the legal description, it gives the buyer a basis to object to the title to the property before closing.

2. Locations And Dimensions Of Improvements

The survey will include details regarding everything that exists within or atop the land.  This includes buildings, fencing, and other improvements.

The surveyor will confirm whether or not the improvements on the property conform with applicable state or federal laws as well as other restrictions (county codes, city ordinances, etc.).  These can include regulation of things like the height of homes in a particular community (where the restrictions set homes at two or three stories), as well as parking restrictions, frontage requirements, and federal environmental agency regulations.

If the surveyor discovers the location, or the dimensions, of an improvement is in violation of any statute, law, code, or ordinance, then the surveyor puts the buyer on notice that the property is in violation (this information will be included on the survey under the surveyor’s notes).

3. Locations Of Utilities

Florida has particular requirements for the placement of residential utilities because of our state’s unique environmental characteristics.  For example, the Florida Division of Water Resource Management oversees the protection of the quality of Florida’s drinking water as well as its ground water and wetlands.  Buyers and sellers alike may be unaware of the particular regulations that apply to the location of utilities on the land.

Surveys will reveal the utilities existing on the land.  These include underground drains, sewer systems, power cables, and above-ground utility poles and wiring.

Buyers must understand that upon taking ownership, they are subject to the rules and regulation of these utilities.  If the Florida utility provider has the right of access to the site, then it may have the power to force the buyer to cut back trees as well as limit where additional improvements (like a swimming pool) can be built.

4. Location Of Obvious Easements

Easements are established under Florida Statute 704.01 as an implied grant of access on the land to another person or entity.  One common example is a utility pole or light fixture placed on the residential lot.

In a survey, easements will be shown and described insofar as who has the right of access on the property, the extent of the easement, and its basis.  The survey may also provide reference sources for the easement, including real estate records, municipal ordinances, and deed restrictions.

5. Location Of Hidden Easements

Hidden easements are not easily seen by a walk around the land itself.  These include underground utilities where the utility company may have an easement to access the land in order to repair or maintain buried pipes, drains, or cables.

6. Right Of Way

Right of way easements are recognized in Florida Statute 704.01 as an implied grant of access on the land tract to another person or entity.  These easements exist because there is no other reasonable way to access the other person’s land except by over the land owned by the seller.  Right of way easements may be owned by another person (like a neighbor) or by a legal entity (like the local electric utility company).

In a survey, these easements will be shown and described insofar as who has the right of access on the property, the extent of the easement, and its legal basis.  The survey may also provide reference sources for the easement, including land owner agreements filed in the real estate records or utility requirements found in municipal ordinances, county building codes, or deed restrictions established at or before the time that a residential division was platted.

7. Natural And Manufactured Objects Affecting The Property

The survey will include references to natural characteristics of the land that may impact its use.  This includes any ponds, creeks, or lakes as well as water wells.  Note:  the survey may not go so far as to delineate detailed environmental issues particular to Florida tracts, including underground springs or wetlands.  These are outside the scope of the standard land survey and must be evaluated by environmental engineers, etc.

Additionally if there are any manufactured objects impacting the use and enjoyment of the land, they will be identified in the survey. These include things like sheds, fences, and docks.

8. Discrepancies Between Recorded Instruments And Ground Itself

The surveyor will walk the property, looking for physical markers left on the property to identify the dividing lines of ownership.  He or she will then reference the instruments recorded in the county real estate records, which also identify the ownership lines for the parcel.

In Florida, there may be land records with surveys that are outdated and not as accurate as those done today with technological advances like CAD or GPS.  The land’s markers may have moved or traveled over time, as well.

The survey will identify any discrepancies between the recorded instruments and the ground itself.  The survey will not decide the ultimate property line of ownership.  However, the discrepancies will advise the property owner of the need to confirm the actual boundary lines before sale or transfer.

9. Elevations On The Land (Topography)

A topographic survey or a “topo” survey is a specific purpose survey.  It is generally performed to determine features of the property and any elevation changes, for use in new construction on raw land.

In Florida, government agencies, including city building departments, often require a specific survey before granting building permits and allowing construction to commence.

10. Setback Requirements

Restrictive covenants are found in the recorded real estate records for the property.  In Florida, these restrictions exist to protect the community or development over time, by prohibiting certain things from being built or used on the land.

Zoning laws also exist to define and prohibit certain uses of the property.

Setbacks are one type of zoning requirement which will be identified in a survey.   A common setback is a limitation on where any fence can be placed on the lot, or how far back from the street the dwelling (and any improvements) can be built.

Some communities do not allow fencing of front yards, for instance.  Fencing of back yards may be required to be placed a certain number of feet from the property line or alleyway.  Additionally, zoning laws may require mailboxes be placed at a certain location on the property.

The survey will also reveal if a violation of the setback exists on the land.  If so, then the issue will need to be corrected by the seller before the buyer closes on the transaction.

Florida Real Estate Attorney Can Help Home Buyers With Survey Concerns

There are many issues to be considered when buying residential property here in Florida.  Each home must be evaluated for own set of issues, including issues that may be found on a boundary survey of the property. Any one of the above issues can materially affect the value of the property and for the seller to find a ready, willing and able buyer.

Buyers can rectify survey issues before closing by requiring the seller to fix the problem (i.e. removing a fence or removing an other item encroaching into an easement).  After closing, any problems that a survey would have revealed likely will be the buyer’s problem. 

An experienced Florida Real Estate Lawyer can help a buyer in dealing with an issue found on a survey, including deciding whether or not to close the transaction.

The good news is that most Florida real estate lawyers, like Larry Tolchinsky, will offer a free initial consultation to answer any questions.

Related:

• 10 Reasons To Have A Home Inspection In South Florida
• Florida Title Company or Real Estate Lawyer: Who Should Handle Your Closing?

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Posted By Larry Tolchinsky on April 17, 2018

Under Florida Statute 468.8311, home inspection services are defined as “a limited visual examination of the following readily accessible installed systems and components of a home” performed by a licensed home inspector.  Those items include:

• The Structure of The Home
• Electrical System
• HVAC System
• Roof Covering
• Plumbing System
• Interior Components
• Exterior Components and Site Conditions that affect the Structure.

Anyone buying a home or condo in Florida should get a thorough inspection before their closing. In fact, every standard residential real contract in Florida has a provision giving the buyer an inspection period to determine if the property is acceptable to the buyer. The inclusion of this provision in every standard contract is invaluable to a buyer, but is only helpful if the buyer exercises his or her rights in a prudent manner.

The most common complaint we hear in our office from buyers about sellers after a closing is with regards to non-disclosure of an item which materially affects the value of the property (i.e. roof, plumbing, mold, etc.). The unfortunate part about a large amount of these complaints is that we are unable to help these buyers simply because they either failed to conduct an inspection, they used a questionable inspection company, or they did not get a property disclosure form from the seller at the time their real estate contract was signed (or their realtor failed to tell them they should require a seller to provide a seller disclosure form as part of the real estate contract).

 

Below are 10 reasons why a Florida home buyer, especially a buyer who is new to the area, should get a home inspection before purchasing a new home:

1. Written Opinion

Under Florida law, a home inspector must provide his or her written professional opinion of the condition of the home they are inspecting. All of the systems and components of the property (as listed above) are examined and the condition of each of these items is discussed, including an estimate of the cost to repair an item, in the written report.  This written inspection report is important to a buyer not only for purposes of learning the condition of these systems and components but also to negotiate repairs, or repair credits, with the seller.

2. Hidden Defects

Sellers, and their real estate agents, are legally required to disclose any issues with the home that they knew or should have known about, but this does not mean that the seller will comply with his or her legal duty to reveal hidden defects to the buyer.  Having a written home inspection is the best way to verify any information they buyer provides about the condition of the property and it helps the buyer to discover defects that the seller may not even be aware of at the time of contract.

See: Does A Home Buyer Have A Claim Because They Weren’t Told About A Problem With Their Home?

3. Home Inspections Are Not Expensive

Many buyers are concerned with keeping closing costs as low as possible.  Being financially prudent in a home purchase is smart.  So, potential buyers should know that hiring a professional home inspector here in Florida is not that expensive.

Of course, there is no one-size-fits-all cost for a valid home inspection. Buyers should be wary of any inspection service that offers a uniform price and buyers should ask the inspection company, before the inspection, what the inspection will cover and the limitations of their inspection services (ask to see a sample inspection report ahead of time).

The actual cost of the inspection will depend upon several factors.  The cost of an inspection can be based upon the age of the home, its location, and its size.  Improvements like docks, pools and pilings will likely increase the complexity of the inspection and its price.

In Florida, a basic home inspection, one which only inspects those items in Florida Statute 468.8311, should range between $200 and $500.  When balancing the cost against the information it verifies and can provide to a buyer about a home’s condition, a home inspection is worth its price.

4. Repairs Double-Checked

Prudent buyers can include provisions in their sales contract that mandate the seller make certain repairs on the property before the closing.  A home inspection not only confirms that the repairs are necessary, it can verify, upon reinspection (this service should be written into the contract with the inspection company) if the contracted repairs have been performed in an acceptable manner.

5. Professional Eyes

In Florida, home inspectors must be licensed by the State of Florida.  Under Florida law, they must

• Complete a department approved 120-hour course of study;
• Pass a department approved examination; and
• Pass a criminal background check.

Florida inspections must be done by someone who has taken an exam and proved their knowledge of common home related issues, including moisture intrusion, insulation and ventilation issues, electrical systems, septic systems, energy efficiency, etc.

6.  Mold Inspection

Mold is a real concern for homeowners in Florida because it can not only destroy the structure of the building, it can also bring many health issues to the people around it. Mold can cause various health issues including respiratory infections, skin irritation, eye irritation, as well as worsening a preexisting condition such as asthma. This is why it is extremely important for a buyer to ask their inspection company about having a mold inspection.

In Florida, there are specific licenses issued to professionals who inspect for mold and mold damage in residential property.  They are called “Mold Assessors” and they are educated in sampling for mold in the home or condo, as well as giving a written opinion on (1) whether or not any mold is present in the property; (2) the type of mold discovered; and (3) the level of mold existing there.

Florida home inspectors should not present themselves as being qualified to inspect for mold unless they are duly qualified under the Florida mold licensing law.  See, Florida Statute 468.8413.

7. Termite Inspection

Homeowners in Florida should be mindful of the destruction that termites can bring to a property, and be sure to ask their inspection company if they are qualified to inspect for termites. It is important to find a company that will diligently examine the property, and rid the property of the pests if needed, to avoid further damage to the structure of the home.

Under Florida law, a specific license is required for those who inspect for termites or “wood-destroying organisms.” These are WDO Inspectors licensed under Florida Statute 468.83.

The WDO inspector is qualified to search for a variety of things that can destroy the lumber and wood within the structure of the home.  They look for insects and fungi.

The inspector of the home’s structure is not legally required to look for termites.  Moreover, he is not qualified to do so.

WDO Inspectors must work for a licensed pest control company.  They should have a valid Florida identification card, with a state license number, stating they are certified as “a pest control operator.” See, Florida Statute 482.021.

8. Radon Inspection

Radon is invisible, and humans cannot smell or taste it.  However, it is deadly: radon is classified as a Class A carcinogen, and it is recognized as the second leading cause of lung cancer in the United States.

Radon is a tremendous health concern in Florida. The Department of Health reports that 20% of Florida homes have radon levels above the EPA safety level, and that elevated radon is a danger not only in single family homes but in high-rise condo towers and other types of Florida residential buildings.

This is because radium is naturally part of Florida’s soil.  As it breaks down, radon is released. It seeps into foundations and flooring, and becomes trapped inside dwellings where its concentration levels escalate.

Radon must be addressed as part of any Florida residential closing, but there is no legal duty placed upon the seller to do more than notify the buyer that it may be a concern.

Under Florida Statute 404.056(5), an inspection of the residence should be made for radon gas.  Often, it is only during the closing process that there will be testing for this toxin that is so common in Florida homes.

However, only a written notice or warning must be included in any residential real estate transaction “at time of, or prior to, contract for sale and purchase of any building.”   The notice must include the following language as mandated by Florida law:

“RADON GAS: Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county health department.”

It is up to the buyer to make sure that radon testing is done.  This may require an additional inspection.  Not all Florida home inspectors are qualified to inspect for radon.  Under both federal and state law, there are professionals who are “radon certified” to provide inspections for the toxin.

It is widely recommended that Florida home buyers pay for a radon inspection.  In some instances it may be a legal requirement under federal laws or regulations issued by the Environmental Protection Agency (EPA); the Federal Housing Administration (FHA); or the Department of Housing and Urban Development (HUD).

9. Flooding

In some parts of South Florida, there is a high risk of flooding due to the characteristics of the land itself.  For instance, Broward County is known for the danger of flooding especially during hurricanes or heavy storms.

Under Florida law, a flood elevation certificate can be prepared by a surveyor, engineer, or architect but not by a home inspector.  However, an inspector can uncover common signs of flooding like stains on the interior walls of a garage.

An elevation Certificate identifies the elevation level of the lot and the home and it is needed in order to obtain flood insurance. The rate of your flood insurance premium will depend upon the home’s flood elevation.

10. Added Protection From Professional Insurance

Florida law requires the licensed home inspector to maintain a $300,000.00 commercial general liability insurance policy.  This policy covers property damage caused by the home inspector.

However, many home inspection companies will also carry “error and omissions” coverage.  This is an insurance policy that covers a buyer from harm in the event the inspector fails to disclose or discover a major defect in the home which should have been reasonably detected by him or her during the inspection.

What is the importance in getting the added buyer protection of a home inspection if the home inspection company does not have professional malpractice insurance (E&O)?  Knowing that the inspection company has this insurance in place can give a buyer piece of mind if he or she discovers a serious problem with the property after closing.

**Please note, as stated above, a buyer should be familiar with the limitation language in an inspection company’s contract. Most inspection companies limit their liability to the cost of the inspection or some other nominal amount. A buyer should ask to review this information before hiring an inspector.

Mold Assessors in Florida must carry $1,000,000.00 in Errors & Omissions insurance under Florida law (it is a condition of their license).

A Florida Real Estate Lawyer Can Help With Inspection Issues

Before buying a home in South Florida, it is important to understand how unique residential real estate is in our part of the country as well as the risks associated with owning a home.

Buyers need to know that real estate agents and brokers, as well as general home inspectors, are often more interested in making a profit than in making sure the buyer is aware of a home’s issues.  Sellers may not know or they may not reveal issues like mold, flooding, or termites.

Having an experienced Florida Real Estate Lawyer to help with closing can be essential for a home buyer, particularly if they have already begun negotiations on the new purchase.  Without having an advocate on their side, the buyer runs a risk of being deceived or worse during the transaction.

Most Florida real estate lawyers, like Larry Tolchinsky, will offer a free initial consultation to answer your questions.

You May Also Be Interested In:
Home Inspectors and Real Estate Agents in Florida: Buyer Beware

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Posted By Larry Tolchinsky on March 20, 2018

Florida does not require an attorney to oversee a residential real estate transaction.  A buyer can purchase a home or condo in Florida and get a mortgage without getting legal advice from an attorney. A real estate agent can provide standardized contract forms, and a title company can issue title insurance and conduct the closing.

However, there are several important issues to consider when deciding whether or not to hire an attorney to conduct a real estate closing.

24 Issues To Consider When Choosing Between A Title Company or Real Estate Lawyer To Close Your Real Estate Transaction

When a buyer purchases a home or condo here in Florida, he or she will be dealing with a unique piece of real estate that has its own idiosyncrasies.  Not only do we have a large amount of waterfront properties for sale, but there is also an abundance of foreclosures or property that was once subject to a foreclosure lawsuit (particularly in South Florida).  Also, our area has a high percentage of condominiums which have their own legal peculiarities.

Below are some common legal issues that can arise in connection with a South Florida real estate closing, that only a Florida real estate attorney is authorized to address:

1. Seller’s Legal Duty To Disclose Defects

Under Florida law, the seller must disclose issues regarding the property that the seller knew about, or should have known about, which a buyer would not be able to discover even with an inspection.

A Florida lawyer can assist here in incorporating language in the real estate contract requiring the seller to meet their duty to disclose.

2. The Inspection (The inspection contract and the inspection report)

A Florida lawyer can read the inspection report and the inspection company’s contract to make sure the buyer is adequately protected.  Inspections companies like to limit their liability to the cost of the inspection report. Many inspection contracts will have language protecting the inspector against inaccurate information and failing to identify issues with the property.

3. There Are Risks In Buying A Foreclosure

Buying a foreclosure comes with its own set of risks, including defects in the underlying foreclosure lawsuit.

How will a defect in the underlying foreclosure lawsuit impact the buyer’s ownership rights? What happens if, for example, the prior owner challenges the foreclosure based upon the mortgage being fraudulent (the mortgage was obtained without the prior owner’s knowledge)?

4. Buying A Home Involved In Litigation Can Be Complicated

Sometimes, the single family home or condo is subject to a lawsuit other than a foreclosure proceeding.  The litigation may be a bankruptcy, partition action, divorce, or probate proceeding.

Each type of litigation comes with its own particular complications.  A real estate attorney can review the court file, including any outstanding court orders, to ensure compliance, and address any legal issues that can impact the marketability of the property.

5. The Lease Agreement

Sometimes, residential property is bought as an investment and the property is sold to a buyer who has no intention of renting the property.  A lawyer can review and answer questions about a lease agreement, prepare an assignment of lease, and facilitate an eviction.

6. Condominium Rights And Restrictions

There are extensive laws in Florida that relate specifically to condo unit owners and condominiums.  Anyone purchasing a Florida condo should know what their rights and duties will be as a condo owner. For instance:

• will they be able to rent the condo?  If so, how often and for how long?
• Is there an age requirement?
• Can you have pets?
• What about storage, parking, and dockage?
• Can the new owner transfer his or her interest in these elements and who is responsible for the cost to maintain them?

7. Waterfront Property

Florida is surrounded by the Atlantic Ocean and the Gulf of Mexico, as well as the inland waterways and our renowned wetland areas.  Some waterfront residential property is subject to restrictions.  Does the waterfront property have riparian rights? Can the buyer build into the waterway for a dock or other structure? These are just a few of the issues to consider when buying a waterfront property.

8. Buying Personal Property With The Real Estate

What happens if the buyer wants to purchase some of the seller’s personal property (like patio furniture, a chandelier, or dining room table)? An attorney can counsel on how to structure a real estate transaction when personal property is being purchased along with the real estate. How do you allocate the purchase price between personal property and real property and what are the tax ramifications related to capital gains taxes and sales tax? Is the personal property a fixture and not separate property subject to sales tax?

9. Code Violations

All residential property must comply with the applicable building and municipal codes.  A Florida lawyer can explain the ramifications of a building code violation (like for an illegal conversion or enclosure, or a non-permitted bathroom) or pending code enforcement liens for uncut grass or a broken fence.

10. Boundary Issues

Every residential property has legally defined boundary lines.  A Florida lawyer can give legal advice on any adverse matters shown on a survey, like easements encroachments, and other boundary issues such as fence lines and pool decks.

11. Different Ways To Own Real Estate; Different Deeds

In Florida, there are various ways to hold legal ownership of residential real estate.  A Florida lawyer can explain the pros and cons of these different forms of ownership (tenants in common, tenancy by the entirety, and joint tenants with the right of survivorship) and counsel on the different types of deeds, which include:

• Quit Claim Deed,
• Warranty Deed,
• Special Warranty Deed,
• Trustee Deed, and
• Personal Representative’s Deed.

12. Risks To Resolving Title Issues

A Florida lawyer can provide advice on the various methods to resolve common title issues and explain the related risks associated with each of the methods.

For example, if the buyer is purchasing a condominium, then the lawyer can explain the ramifications to a buyer of any litigation that may be pending against the association, or the ramifications of a construction related notice of commencements filed against the association.

13. Documents In The Chain Of Title

A real estate lawyer can explain the impact of agreements recorded in the public records which might affect the marketability of the title to the property. For example, restrictions and reservations found in deeds, like restrictions on the type of home that can be constructed on the property or the reservation of an easement for ingress and egress to a roadway or water access.

14. Closing With Open Title Issues

Some title companies are willing to close a transaction with issues in the chain of title simply because their title insurance underwriter is willing to issue a title insurance policy. However, there are risks of closing a deal with certain title issues pending against the property.

A lawyer can provide advice on the ramifications of closing a deal if, for example, a wild deed or an unsatisfied mortgage is found in the chain of title. Just because a title company issues a title insurance policy doesn’t mean there aren’t problems in the chain of title that a future buyer of the property can raise to terminate a deal.

15. Deed Requirements

A lawyer can give an opinion on the validity of a deed and on the requirements to record a deed in Florida. Was the deed executed in accordance with Florida Law? (See Fla Stat 689.01 & 695.26) What is the significance of the dates written on the deed? Which date matters?  Is it the date the deed is signed, delivered, acknowledged or recorded?

16. The Obligations Of A Real Estate Agent

A lawyer can provide advice on a real estate agent’s responsibilities during the closing process, like having the seller disclose facts about the property that they know will materially affect the value of the property and that are not readily observable or known by the Buyer.

17. When An Entity Is A Buyer Or Seller, The Closing Can Be More Complicated

If the buyer or seller is an entity, an attorney can review the governing instruments to determine who has the authority to act on behalf of the entity as well as determine what documents are needed to effectuate the transaction. Included here are trust agreements, shareholder agreements and operating agreements.

Are the documents provided by the entity legally sufficient to effectuate the transaction? Who created the documents? Have all of the statutory requirements provided for under Florida law been satisfied?

18. Foreign Sellers Of Florida Residential Real Estate

Many sellers of Florida residential real estate reside in other countries.  The IRS has withholding requirements related to certain foreign sellers that a buyer is obligated to follow.  A real estate lawyer can explain the notice requirements necessary to exempt a transaction from the FIRPTA withholding requirements.

19. Who Does The Title Company Answer To When It Conducts A Closing?

If you hire a Florida real estate lawyer, you create an attorney-client relationship and the lawyer is your fiduciary.  He or she answers to the party that has hired the lawyer.

If you rely upon a title company as closing agent, that title company acts as an agent for the title insurance company or title underwriter.  The title company answers to the underwriter.

20. Negotiating The Agreements

A lawyer can negotiate on behalf of the buyer and provide legal advice from the time the listing agreement or contract is signed to the time the deed is recorded and the title insurance policy is issued.

The lawyer can review, negotiate and create addendum, escrow agreements and any occupancy agreements (pre-closing and post-closing).

Furthermore, a lawyer can provide advice on issues and/or defects found during the final walk through inspection.

21. Affidavits

A Florida real estate attorney can explain the ramifications of signing, under penalties of perjury, any of the 100+ types of affidavits that are used to address common title issues.

22. Duties Related To The Mortgage Company

A real estate lawyer can explain both the lender’s duties to the buyer (borrower) as well as the borrower’s duty to disclose certain information to his or her lender like a change in circumstances before closing (such as changes in income, job status, marital status, etc.).

23. Changing Ownership After Closing

Often, a buyer will want to transfer the home or condo to someone else, or add a parent or other family member to the deed, after the transaction closes. Doing so may cause a breach of certain provisions in the mortgage, like a due on sale clause.

Look At The Bottom Line When Choosing Whether Or Not To Hire a Florida Real Estate Lawyer to Conduct A Residential Closing

So far, we have listed 23 reasons why having a Florida real estate lawyer working on your residential closing in lieu of a title company is a good idea.  Now, the reason that matters most:

24. While The Benefits Are Greater, The Expense Is Much The Same

Financially speaking, there is no difference between having a Florida real estate lawyer handle a residential closing and a title company closing the deal.  However, having an attorney at the closing ready to provide advice can be invaluable to a buyer, especially when any of the above issues arises during the residential closing process.

What Should You Do?

A good piece of advice if you are buying real estate in Florida, is to speak with an experienced Florida real estate lawyer to learn about your rights, including those related to disclosures, inspections and title insurance. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

Related: 19 Reasons To Hire A Real Estate Lawyer

 

 

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Posted By Larry Tolchinsky on February 20, 2018

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

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

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

From Florida Memories, the American Dream of owning a family home here in sunny South Florida.

1. Financing the First Home Purchase

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

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

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

County Programs for First Time Home Buyers in South Florida

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

• Broward County: down payment assistance
• Miami-Dade County: subsidized mortgage loan program
• Palm Beach County: favorable mortgage rates.

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

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

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

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

Additionally, there are the mortgage documents, which include:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

See:

• 3 Types of Title Issues Which Impact Florida Real Estate Closings
• How Do You Know If The Chain Of Title To Your Florida Real Estate Is Clear?

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

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

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

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

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

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

See:

• 19 Reasons To Hire A Real Estate Lawyer When Buying A Home
• Duty to Disclose for Sellers in Florida Residential Real Estate Transactions

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

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

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

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

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

How Can A Florida Real Estate Lawyer Help?

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

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

If you are buying your first home, a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights, including those related to inspections and title insurance. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

 

 

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Posted By Larry Tolchinsky on February 6, 2018

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

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

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

 

Proving Fault And Negligence

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

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

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

Landlord’s Duty To Maintain the Property

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

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

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

Can The Tenant Be At Fault?

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

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

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

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

Can Renter’s Insurance Cover Slip and Fall Damages?

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

What Damages Can A Victim Recover – Pain And Suffering?

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

Economic damages include compensation for items such as:

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

Non-economic damages include:

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

Statute of Limitations

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

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

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

What Should You Do?

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

Additionally, a good piece of advice is to speak with an experienced Florida lawyer to learn about your rights, including how most insurance companies respond to these claims. Most lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

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Posted By Larry Tolchinsky on January 1, 2018

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

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

 

Quitclaim Deeds in Florida

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

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

3 Common Quitclaim Deed Lawsuits

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

1. Quiet Title Lawsuits

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

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

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

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

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

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

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

2. Deed Reformation Actions

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

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

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

Examples of Reforming a Florida Quitclaim Deed

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

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

a.  Grantor’s Intent Missing In The Quitclaim Deed

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

b.  Error In The Legal Description of the Property

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

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

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

3. Partition Lawsuits

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

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

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

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

Other Issues That Can Lead To Quitclaim Deed Related Lawsuits

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

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

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

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

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

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

2. Recording A Quitclaim Deed After A Grantor Dies

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

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

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

3. Alterations To The Quitclaim Deed

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

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

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

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

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

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

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

 
 
 
 
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Posted By Larry Tolchinsky on December 26, 2017

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

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

 

Common Lease Agreement Disputes That Are Resolved By Filing A Lawsuit

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

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

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

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

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

What is “rent” under Florida law?

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

What is advanced rent?

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

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

What is a security deposit under a residential lease agreement?

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

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

2.  Lease Options to Purchase

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

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

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

 3.  Other Common Litigation Related to Residential Lease Agreements

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

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

a. Failure to Return Security Deposit – Security Deposit Disputes

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

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

b. Landlord’s Duty to Maintain and Repair

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

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

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

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

c. Breach of Quiet Enjoyment

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

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

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

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

Attorney’s Fees

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

1. Provisions in Lease Agreements

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

2. Recovery of Attorneys’ Fees if Lease is Silent

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

What Should You Do?

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

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

 

 

 

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Posted By Larry Tolchinsky 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.

 

 

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 16^th 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 16^th floor hallway to the passenger elevators.  The elevator pinged, the doors opened, and Mrs. Firth stepped inside.  She sat her packages down on the floor of the elevator, and turned to push the button for the lobby.

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

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

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

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

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

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

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

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

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

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

What Should You Do?

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

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

 
 
 
 
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Posted By Larry Tolchinsky 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.

 

 

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:

• Broward County
• Miami-Dade County
• Palm Beach County

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:

• The Code of Ordinances for Hallandale Beach, Florida;
• The Code of Ordinances for Fort Lauderdale, Florida;
• The Code of Ordinances for North Miami, Florida.

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:

• In Broward County, a landlord may have to register with the county before he or she rents their property to tenant.  See, Broward Ordinance Sec. 39-118. – Landlord registration of residential rental units required.
• In North Miami Beach, the landlord is required to “maintain a current tenant list at all times. The tenant list shall be available for inspection by the city upon reasonable notice. The contact person shall have possession of the current tenant list which shall be made available promptly in the case of a medical or law enforcement emergency.” See, North Miami Beach Ordinance Section 5-2.

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:

• What is Normal Wear and Tear Relating to a Tenant Security Deposit?
• Landlord Tenant Disputes After A Major Storm (Hurricane)
• 6 Tenant Rights That All Florida Tenants and Landlords Need to Know

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?

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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