COMMON QUESTIONS AND ANSWERS
Q: Regarding a Landlord/Tenant Dispute, What is a Defective 3 Day Notice?
A: Property-owners
must give tenants notice to vacate before carrying out an eviction. In Florida,
the three-day Notice is the most commonly applied method of serving formal
notice to evict when tenants have defaulted on their rent. Any number of things
can render a notice defective: if you are demanding an incorrect amount for
rent; if the notice includes late fees, but your lease agreement makes no
mention of such fees; or if the notice fails to give the tenant proper grace
period, your three-day notice is defective.
Recent legislation states that in cases involving a
defective notice, landlords may be granted leave to amend the notice and
continue eviction proceedings once the notice is revised. All the same, because
the burden falls to you (the owner), a faulty notice will delay your
case and may still end in dismissal, which can result in additional costs
exceeding three times the amount of the defaulted rent in damages and legal
fees payable to your tenant.
If you are a landlord struggling with a tenant refusing to
pay rent, it is wise to seek legal counsel prior to making any moves to evict
the tenant on your own. Though it may seem simple, drafting a document which
accurately protects your legal interests can be quite complex. Consulting with
an experienced attorney will ensure that your three-day notice is legally
precise and that your rights are adequately protected.
Q: Can a Landlord Change a Lease Before it Expires?
A: Florida law
dictates that your landlord cannot alter your lease before it expires without a
valid reason. Your lease is a legal, binding contract and save for special
circumstances, if that contract is valid and has not expired, your landlord
generally cannot force you to sign an agreement changing its current terms. As
an example, if utilities are included in your rent under the terms of your
original lease agreement, your landlord cannot charge additional money to cover
utilities while your lease is in effect.
Whether or not your landlord has standing to change your
contract may also depend on the nature of your lease. Under a month-to-month
agreement, for example, it may be possible for your landlord to amend the terms
of your agreement; however, your landlord may not change the terms of your
lease without first issuing at least 30 days’ notice. Whether annual or
month-to-month, your landlord is unable to make any substantial changes to your
lease agreement prior to the contract’s expiration date or without your express
consent.
If your landlord has unexpectedly altered the terms of your
lease without notice or consent, consult an experienced real estate attorney in
order to ensure that you’re being treated fairly and that your rights as a
tenant are protected.
Q: Can a Title Company Refuse to Release Funds if You have a
Cancellation of Contract Signed by Both the Buyer and Seller?
A: A title company
holding escrow cannot refuse to release your buyer’s deposit if the seller has
agreed to release and cancel the contract, and under the terms of that contract
it is clear that the buyer is entitled to retrieve it.
In real estate transactions, buyers are often expected to
include an earnest money deposit with their purchase offer in order to affirm
that they are serious about purchasing property. Once an offer is accepted and
the purchase contract is signed, the money is deposited in escrow or held by a
title company. If all goes well, the money is used for the down payment and
closing costs of the sale. Should the deal fall through, however, the title
company freezes the funds and then determines whether the buyer gets the
earnest deposit back under the terms of the purchase agreement.
If the title company is refusing to release your buyer’s
funds, consult with a real estate attorney in order to take legal action and
protect the interests of your buyer.
Q: Does a Quitclaim Deed Have to be Recorded to be Valid in
Florida?
A: A quitclaim deed
allows for the quick and easy transfer of ownership interest of real property
or land. While recording the quitclaim deed makes the transfer official in the
public record, it does not require recordation in order for it to be valid.
However, Florida statute does require notice of the transfer of ownership
interest to be recorded in the public record to maintain a proper chain of
title, otherwise you run the risk of forfeiting your rights and interests in
the real property.
Quitclaim deeds do not require and generally do not involve
exchange of money. Unlike a warranty deed, it offers no guarantee that the
grantor owns the property outright or that she has the legal right to transfer
ownership at all. That means that a quitclaim deed affords the grantee (buyer)
very little legal protection. This is why quitclaim deeds are typically used
for low-risk, simple transactions such as the transfer of property interests
into a trust, inter-family ownership transfers, or to make a gift of property.
For more on Florida conveyance and recording rules, consult
with an experienced real estate attorney to review the facts of your case and
ensure your interests are protected.
Q: If You Try to Buy a House from HUD and the Lending
Doesn’t Go Through, Are You Still Responsible for the Title, Lien and Survey
Search?
A: The answer is that
you pay for some pre-paid items and the title company will pay the rest of the
costs. So a few things you will have to pay for is the appraisal, any fees paid
to the lender for credit reports, and possibly the first year’s insurance
premium. Most relators won’t willingly bring up this conversation, so ask them
up front about it. If you had any misconceptions or just weren’t sure, they
would be able to clear everything up for you. Remember to ask early in the
process.
Q: Is There a Rule of Civil Procedure or Florida State
Statute That Allows an HOA to Pass on its Co-Defendant Legal Costs to a
Homeowner During the Foreclosure Process?
A: In Florida, whether through foreclosure or
deed-in-lieu, both the previous and the new owner are jointly and severally
liable for all unpaid assessments that come due prior to the transfer of title.
In a bank foreclosure, the statute’s “Safe Harbor” provision limits your
lender’s liability, requiring them to pay the association only up to one year’s
worth of past due assessments or 1% of the mortgage, whichever is less, when
the foreclosure is complete. When it comes to how and when money is collected
from homeowners, your HOA’s authority to make assessments is governed by the
HOA’s own declarations and bylaws as well as statutory rules imposed by the
state.
Florida statutes entitles HOA’s to collect any late fees,
interest accrued and attorney fees incurred as a result of past due
assessments; however, your HOA has no statutory basis to collect attorney fees
as a result of being a named defendant in your bank’s foreclosure suit. Because
associations can potentially file a lien for assessments at any time, lenders
routinely name HOA’s as defendants whether or not the association filed a lien
against you for past due assessments. There is no statutory law or rule of
civil procedure that entitles an HOA to pass on legal fees to a co-defendant.
Unless your HOA’s declaration and bylaws expressly state
otherwise, your association cannot legally pass on attorney costs for doing
business as usual—that is, being named in a foreclosure suit. If you are up to
date on your assessments, but your association has requested that you cover
legal costs pertaining to your foreclosure, consult with an experienced real
estate attorney in order to examine your association’s bylaws and ensure your
interests are being protected.
Q: When Buying a Foreclosure Auction Property, How Long
Does the Previous Home Owner Have to Vacate and What Can They Legally Take With
Them?
A: Purchasing a home
at auction can be a profitable investment, but many prospective buyers are not
aware that buying property is only the first step to possessing it. If you
recently purchased a property at a foreclosure auction, then you may be
surprised to find that the previous homeowners have not vacated the premises
since the foreclosure sale took place. That’s because under Florida law the
homeowner is now your tenant and is not required to move until you begin a
formal eviction process.
Ten business days after the foreclosure sale is successful
you will receive a certificate of title (which grants you title to the land,
the home and anything permanently attached to it), at that time can apply for a
writ of possession if you wish to evict the previous owner. Once the writ is
granted, a sheriff will notify the previous owner (now technically your tenant)
that they’ve been divested of the property and are expected to leave the
premises within 24 hours.
The tenants are not allowed to take with them anything that
is not considered a personal item from the property. That is, all items that
are affixed to the home such as built-in cabinets, permanently attached light
fixtures, etc., must remain with the property. Items such as movable furniture
and appliances, however, are considered personal property and may be removed by
the tenants upon eviction.
The former homeowners are not compelled to move until the
foreclosure is complete and proper procedure has been followed. After the
foreclosure sale takes place, the homeowner then automatically becomes a tenant
and the new owner must begin the standard eviction process for the state of
Florida. Eviction can be a delicate matter and it is important to follow the
legal process carefully in order to avoid complications.
Denise Lubliner, a Florida real estate attorney can assist
you through the legal process and determine a positive solution. Contact her at
813. 381.5670. dlubliner@lublinerlaw.com
The opinions listed above are those of the author. This is
offered for general information purposes and does not constitute legal advice.
