Why Miami-Dade landlords should be worried about their tenants’ dogs, cats, and ferrets

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The Code of Miami-Dade County. Sec. 5-6 (d)(1)  provides that  it is a code violation  to fail to timely vaccinate or re-vaccinate Dogs, Cats, and Ferrets each year and provide proof thereof to the County.  This requirement applies not only to the pet’s owner,  but to the owner of any real property where the animal is maintained. i.e. the landlord ! [Sec. 5-2 (b). Notice is not a prerequisite to enforcement [Sec. 5-6 (d)(1)].  A finding of violation by a court is punishable by a fine of up to $500 or six month’s imprisonment [Sec. 5-2(e)].   A finding of violation by Code Enforcement faces a $50 fine [Sec. 8CC-10].   An order imposing a fine constitutes a lien on all real property owned by the violator [Sec. 8CC-7].

You may want to put a clause in your lease about proof of vaccination…

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Restoration of the Protecting Tenants at Foreclosure Act

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CA 18-4: 

BOARD OF GOVERNORS

OF THE FEDERAL RESERVE SYSTEM
WASHINGTON, D.C. 20551

DIVISION OF CONSUMER
AND COMMUNITY AFFAIRS

CA 18-4
June 22, 2018

TO THE OFFICERS AND MANAGERS IN CHARGE OF CONSUMER AFFAIRS SECTIONS

SUBJECT:

Restoration of the Protecting Tenants at Foreclosure Act

Applicability to Community Banking Organizations: This guidance applies to all institutions supervised by the Federal Reserve, including those with total consolidated assets of $10 billion or less.

This letter provides background information about the recently restored Protecting Tenants at Foreclosure Act of 2009,1 which became effective on June 23, 2018. The law protects tenants from immediate eviction by persons or entities that become owners of residential property through the foreclosure process, and extends additional protections for tenants with U.S. Department of Housing and Urban Development Section 8 vouchers. The law is self-executing; no federal agency has authority to issue regulations implementing the law or to interpret the law.

The fundamental purpose of the law is to ensure that tenants facing eviction from a foreclosed property have adequate time to find alternative housing. To that end, the law establishes a minimum time period that a tenant can remain in a foreclosed property before eviction. The law does not affect any state or local law that provides longer time periods or other additional protections for tenants.

Under the law, the immediate successor in interest at foreclosure must: (a) provide bona fide tenants with 90 days’ notice prior to eviction; and, (b) allow bona fide tenants with leases to occupy property until the end of the lease term, except the lease can be terminated on 90 days’ notice if the unit is sold to a purchaser who will occupy the property. A lease or tenancy is bona fide if the tenant is not the mortgagor or the parent, spouse, or child of the mortgagor, the lease or tenancy is the result of an arms-length transaction, and the lease or tenancy requires rent that is not substantially lower than fair market rent or that is reduced or subsidized due to a Federal, State, or local subsidy. The law does not cover tenants facing eviction in a non-foreclosed property, tenants with a fraudulent lease, tenants who enter in lease agreements after a foreclosure sale, or homeowners in foreclosure. Additionally, the law does not affect the requirements of any State or local law that provides for longer time periods or extends additional protections to tenants.

Consumer compliance examiners will employ risk-focused consumer compliance supervision principles to determine if they should include a review of compliance with the Protecting Tenants at Foreclosure Act in an examination. If compliance with this law is included in the examination scope, examiners will use the attached examination procedures to evaluate an institution’s awareness of the law, its compliance efforts, and its responsiveness to addressing implementation deficiencies.2

Reserve Banks are asked to distribute this letter to supervised institutions in their districts, consumer compliance examiners, and other appropriate supervisory staff. If you have any questions, please contact Amal Patel, Senior Supervisory Consumer Financial Services Analyst, at (202) 912-7879, or Tim Robertson, Manager, at (202) 452-2565. In addition, questions may be sent via the Board’s public website.3

 

signed by
Carol A. Evans
Associate Director
Division of Consumer
and Community Affairs

Supersedes:

CA 15-4 “Expiration of the Protecting Tenants at Foreclosure Act” (June 10, 2015)

Cross References:

SR 12-5/CA-12-3 “Policy Statement on Rental of Residential Other Real Estate Owned (OREO) Properties” (April 5, 2012)

Notes:

1. Section 304 of the Economic Growth, Regulatory Relief, and Consumer Protection Act of 2018 (Public Law 115-174) restored sections 701-703, and repealed section 704, of the Protecting Tenants at Foreclosure Act of 2009 (Title VII of the Helping Families Save Their Homes Act of 2009, Public Law 111-22), which expired on December 31, 2014. Section 704 contained the Protecting Tenants at Foreclosure Act of 2009’s sunset provisions; the restored act does not include an expiration date. Return to text

2. These are the same examination procedures that consumer compliance examiners used previously to conduct Protecting Tenants at Foreclosure Act of 2009 reviews. Return to text

3. See http://www.federalreserve.gov/apps/contactus/feedback.aspxReturn to text

Tenant Tips: How to Read the Lease Before Signing

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Nearly everyone is guilty of signing something they didn’t take the time to read at some point in their life. While it’s a somewhat common practice, it is usually best for a person to be aware of what they’re giving their consent to — and this is especially true for renters. For those getting ready to sign their first or fiftieth lease, protection starts with reading the fine print. The leasing contract lays out terms, conditions, and expectations that renters need to understand before they put their signature on the dotted line.

Fees and Deposits

The lease should spell out how much the rent will be for each month, but the rent isn’t the only charge that tenants should be aware of. The lease should contain the following:

  • Rent: The lease should say how much the rent is each month and the acceptable forms of payment. It should state the date upon which the rent is due, and if there’s a grace period for late payments. It should also state how much late fees will be.
  • Deposits: The most common forms of deposit are security and pet deposits, but each landlord will have their own policies. Ensure the lease states the details of the deposit, including if and how tenants can get their deposit back.
  • Additional Charges: Any additional charges should be listed in the agreement, so tenants need to be sure they understand each line item. For example, the landlord may charge a processing fee for certain forms of payment, or a monthly wear-and-tear fee is the tenant has pets.

Utilities and Repairs

The lease should state which utilities are included in the rent, if any. From electric to water to cable services, landlords may choose to cover certain utilities as a perk of renting with them. Renters need to know that they need to cover so they can plan their budgets accordingly. Additionally, not all leases state that landlords pay for all the maintenance and repairs to the property. In some cases, tenants will be responsible for smaller projects that keep the home in good shape like tending to the lawn or replacing the air filters. What a tenant is responsible for will often change how they will budget money or time month-to-month, meaning it is important to understand these things before signing. If a tenant has questions about any financial matters on the lease, they should speak with their potential landlord to understand what is needed from them.

Rules and Other Details

This section of the lease should give the landlord’s policies for how they tenant issues will be handled over time. Tenants need to understand the renewal policies, including rent increases, so they can make better long-term plans. This should also include when the lease starts, when it ends, and what’s included. If a refrigerator and a dishwasher come with the unit, this should be spelled out in the agreement. Tenants should also have the address of the property as well as the address and contact information of the landlord and/or property managers and caretakers.

The rest of the lease should give details about what the tenant can and cannot do. This may include information about the types of pets allowed, what fees are associated with potential damage, and whether or not tenants will be subject to routine inspection. It should state quiet hours of the property and if there are storage facilities available. Finally, the lease should set the terms for who is allowed to stay in the property, where the tenant is allowed to park, and if there are any insurance requirements.

Reading a lease over may take some time and brain power, but tenants who make the effort will usually have an easier time while living on the property. Once a person knows what they can expect, they can plan their time and money accordingly.

Anthony Gilbert REALTOR® ABR®

The REALFX Group – Washington
7829 Center Blvd Suite 309
Snoqualmie, WA 98065

The REALFX Group – Texas
2303 Ranch Road 620 S Suite 135
Austin, TX 78734

Dont ignore the boilerplate

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Our group has frequently discussed the value of using a contract to lease before signing an actual lease.    While a contract to lease may serve the purpose of setting out what happens if  the application is declined by the HOA  or the tenant fails the background check,  it can also be abused by realtors  for their  own personal gains.

A client used a realtor to obtain a tenant, and after six months the tenant offered to purchase the leased premises.  About a week before closing the realtor popped up and demanded a 6% commission on the sale.

It turns out that in the boilerplate of the contract to lease was the following provision:

SALES: In the event that the subject property is sold to any tenant or occupant identified in the Lease or any member of their immediate family or any entity in which they have an interest during the term of the Lease (or any renewal, extension or new lease term), Landlord shall pay the Brokers (to be split equally) a sales commission equal to the greater of  6% of the sales price or the amount set forth in Landlord’s listing or other brokerage agreement with Listing Broker. This provision shall survive any subsequent agreement between Landlord and Tenant.

This appears to give the realtor a perpetual right to claim additional commissions  every time the tenant  renews the lease or purchases the property.

I have seen other versions of this same form bearing the Florida Realtors logo and copyright from Form Simplicity  that do not have this clause,  so it remains to be determined  if this clause is an actual part of the copyrighted form or was added in by this particular realtor.   Nevertheless, this highlights the point that realtors generally have no fiduciary duty to their clients.   This means that they can legally advance their own interests to the detriment of their clients,  as was the case with this life time commission agreement.

Bottom line:   you have to read every word of a contract, even the “boilerplate,”   or have an attorney review  any contract before you sign it.

Broward County, Florida landlord-tenant ordinances

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Chapter 20, Article 9-a:  LANDLORD-TENANT WALKTHROUGH INSPECTIONS. 1978.

This ordinances makes it a criminal misdemeanor for the landlord to accept any deposit money from a tenant without having conducted a joint walkthrough inspection of the premises and making a written list of the defects signed by both parties.

Chapter 39, ARTICLE IX½. – LANDLORD REGISTRATION AND RESIDENTIAL RENTAL PROPERTY INSPECTIONS PROGRAM. 2013

Landlords of residential property located in unincorporated Broward County are required to obtain a certificate for $75.00 annually, for each property,  disclosing the name and contact information of the owner and landlord, and after the property has been inspected by code enforcement.

SECTION16.5 – 35 DISCRIMINATORY PRACTICES IN REAL ESTATE TRANSACTIONS.

Protected categories:  race, color, religion, sex, national origin, age, marital status, political affiliation, familial status, disability, sexual orientation, pregnancy, gender identity or expression, veteran or service member status, lawful source of income, or being the victim of dating violence, domestic violence, or stalking,

Prohibited conduct:  to refuse to sell or rent, or negotiate therefore,  or to publish any restriction, based on a protected category.

Condo assn faces liability for conversation after placing evicted owner’s possessions in storage

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A condo owner acquired title subject to an existing mortgage foreclosure, which he apparently was unaware of,  as he was surprised to find a writ of possession on his door on April 10, 2012.  Also surprising,  the Dade Sheriff executed the writ a mere two days later,  catching the owner with many of his possessions still at the premises.  Rather than let the sheriff remove the owner’s personal possessions to the curb,  the associations property manager took it upon himself to have the property placed in the building’s parking garage,  where he placed yellow barricade tape around it, purportedly to deter theft.

Thereafter the owner’s key card was deactivated and he was refused entry to the condominium to recover his possessions.  Later, the association manager called the owner stating that his possessions had been disposed of.   Subsequently the associations security guard asked if he could have the contents of the owner’s storage unit, and upon the owner’s refusal, he was refused the return of his property.

The owner filed suit for conversion and bailment and it was dismissed on motion of defendant.  On appeal,  the 3rd DCA ruled that bailment was inapplicable as the owner had not entrusted his property to the association.  But conversion was applicable, as conversion “constitutes the exercise of wrongful dominion and control over property to the detriment of the rights of the actual owner.

The associations defense of immunity under §83.62(2) of the landlord tenant statute was rejected as a landlord tenant relationship did not exist between the association and the owner.

Editors note:  §83.62(2) states “neither the sheriff nor the landlord or the landlord’s agent shall be liable to the tenant or any other party for the loss, destruction, or damage to the property after it has been removed.”   Thus,  there may not be immunity in the event that the tenant’s property is not removed upon execution of the writ of possession.

The appellate court also noted that they were not suggesting the owner would prevail,  only that he had a cause of action for conversion of his property.

Ice v. The Cosmopolitan Residences on South Beach  No. 3D15-2787,  Third District Court of Appeal State of Florida December 13, 2017

Scam Alert: Rash of Section 8 law suits filed against South Florida Realtors

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Broward County added source of income to its list of protected categories  in the County’s human rights ordinance last December to very little fanfare.    This had the consequence of making the refusal to accept section 8 vouchers a putative violation of the ordinance.   A lawyer who had allegedly filed 60 cookie cutter disability lawsuits in the Tampa area, has now struck in Broward with 46 lawsuits, according to The Real Deal,  against realtors and landlords who stated that section 8 vouchers were not accepted in their listings.  The realtors claim they aren’t the ones discriminating,  it is their clients who state that they don’t take section 8.   Nevertheless, the ordinance appears to make it a violation for publishing a discriminatory listing.   All of the lawsuits have the same plaintiff, Christopher Benjamin.  ABC News reported that all of the Tampa Cases settled, with the lawyer raking in $5000  per complaint.  The realtors in Broward said they consider this be be a shakedown at an emergency meeting at the Board today.

The Greater Fort Lauderdale Board of Realtors has updated its listing service to prohibit any commentary regarding section 8 and plans to urge the County Commission to revisit the ordinance.  Apparently, only one law firm ,  Kaye, Bender and Rembaum, saw this coming,  advising in their blog on February 7, 2018 ”

Of particular note in all of the foregoing is the extension of a protected classification to recipients of Section 8 Housing vouchers. As “financial condition” and/or “source of income” has not previously been a protected classification (and is still not one under State and Federal laws), it now has such protection in Broward County.  Board members in Broward County reviewing prospective leasing applications which were previously denied will need to be mindful of this change. If there is ever a question regarding the status of a protected classification, or whether or not the board may disapprove an application for sale or lease, the board should consult with its qualified counsel before making a decision.”

In the meantime at least 46 realtors have 20 days to respond to the law suits and they are not happy.

CS/HB 631: Possession of Real Property passes changing Ejectments, Unlawful Detainers, and restricting local goverments from determining public access to beaches

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After a lot of fighting over public access to beaches in St. John’s, Volusia, and Walton Counties, the legislature has stepped in doing some housekeeping to the ejectment and unlawful detainer statutes and prohibiting local government from determining the right of the public to have beach access without court approval with the passage of SB/HB 631Here is the staff analysis

Changes to the ejectment statute 66.021:

Provides that Plaintiff may not be required to provide any pre-suit notice, such as a demand for possession.  66.021(3)

Provides for joint or several writs of possession and damages. 66.021(6)

Copies of instruments referenced in the chain of title shall be attached 66.021.(7)

 

Changes to  unlawful entry and detainer statute 82.01

Does not apply to residential tenancies under chapter 83, part II [ 82.02(1)] or to possession under Chapters 513 or 723 (Mobile Homes).

Eliminates any pre-suit notice, such as a demand for possession. 83.03(1)

Requires award of double rental value on a finding that entry was “willful and knowingly wrongful” 82.03(2)

Allows for summary procedure on bifurcated possession count,  eliminates three year limitation. 83.03(4)

Allows for service by posting,  adds requirement to mail service to both defendants residential and business address.  82.05

Provides for damages and cost to prevailing plaintiff, and only cost to prevailing Defendant. 82.091 (1)(2).

 

Creates  Section 163.035″Recreational Customary Use.”  Prohibiting local governments from any enacting or enforcing any rule based on customary  use of the beach ( i.e. public access to the beach) above the mean high tide line unless based on judicial declaration affirming recreational customary use.

Provides for procedure, notice, public hearing.  Requires judicial determination in circuit court.  Decrees that the proceeding shall be de novo.  Provides that the government has the burden of proof.

Does not apply to any ordinance enacted before 1-1-2016

 

Dispossession does not moot an appeal

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Fact that tenant was no longer in possession of premises did not render tenant’s appeal of eviction moot.  Trial court erred failing to construe Tenant’s answer and motion as a motion to determine rent and in granting judgment of possession and costs without conducting a rent determination hearing.

Tenant notified the landlord of a rodent infestation.  When the landlord failed to act, tenant spent $50.00  on rodent treatment and deducted the amount from his February rent, paying $450.00  out of the $500 rent due.  The landlord accepted the payment and notified the tenant he was short $50.00.    Then on February 5th, the landlord filed an eviction for holdover alleging he had served the tenant a notice of non-renewal on January 13, effective January 31, despite having accepted a February rent payment.

On February 11,  the tenant filed an “Answer/Request Hearing”  requesting  that the court deny the eviction and argued that “the management company should not be able to hold my security deposit funds, and rent funds in contempt with the court system.” The Tenant  deposited $500 for his March rent in the court registry. On March 19,  the trial court entered an Order Striking Answer and Entry of Default, and judgment for possession and $225 costs, which was “[b]ased upon Defendant’s failure to pay necessary monies into the Court Registry or to file an appropriate motion to determine the amount of rent to be paid into the Court Registry . . . .” The tenant appealed.

The landlord argued the appeal should be dismissed as moot because the tenant had, by then, been evicted. The appellate court ruled that ‘[m]ootness does not destroy an appellate court’s jurisdiction . . . if ‘collateral legal consequences that affect the rights of a party flow from the issue to be determined.’ ” Id. (quoting Godwin, 193 So. 2d at 212) (alteration added). A recent opinion from another Eleventh Judicial Circuit appellate panel determined that “ceasing to reside in [an] apartment does not moot an appeal from an eviction judgment,” since an eviction judgment “may cause collateral consequences such as a negative credit history.” Daniels v. Miami Beverly, Case No. 14-283 AP (Fla. 11th Cir. Ct. Aug. 25, 2017) [25 Fla. L. Weekly Supp. 587c].   In Schweickert, the Fifth DCA found that a case was not rendered moot when a request for attorney’s fees remained pending. Schweickert, 193 So. 3d at 1079. Likewise, the instant case is not moot while the Appellant remains liable for the $225 cost award.

The appellate court noted that §83.60 Florida Statutes “Defenses to action for rent or possession”  provides the tenant has three options to avoid a default: “[a] tenant may: (1) assert payment as a defense; (2) deposit the accrued rent as alleged in the Complaint; or (3) file a motion to determine the amount of rent.” Green v. Liberty City Cmty. Economic Dev. Corp., 21 Fla. L. Weekly Supp. 122a (Fla. 11th Cir. Ct. Nov. 21, 2013).

In the instant case,  the tenant timely filed a pro se “Answer/Request Hearing” asserting that he paid $450 out of $500 for his February rent and that he deducted $50 to cover the rodent control costs. Although the document was not a formal motion to determine the amount of rent, a portion of its title is labeled “Request Hearing,” it states in part that “This letter is to request trial,” it states that “I look forward to the fair trial and hearings to determine this situation,” it argues that the Appellant “should not be financially obligated for this eviction.”

The appellate court noted that it would review requests by tenants liberally as motions to determine rent, including requests included in an answer instead of being filed as a separate pleading. See Daniels v Miami Beverly, Case No. 14-283 AP (Fla. 11th Cir. Ct. Aug. 25, 2017) [25 Fla. L. Weekly Supp. 587c]; Harvey v. Campton Assoc., 22 Fla. L. Weekly Supp. 48a (Fla. 11th Cir. Ct. Apr. 15, 2013). In the instant case, like in the Daniels case, the tenant  placed his request in writing, stated the reasons why he challenged the rent amount, and indicated that he wanted a hearing. In Daniels, the court found that such a request was sufficient for an unrepresented tenant to satisfy the condition that the tenant may file a motion to determine rent in order to avoid a default. Likewise, the tenant in the instant case, who was unrepresented at the time that he filed his “Answer/Request Hearing,” adequately moved to determine rent, so that default should not have been entered against him.   Thus the appellate court reversed the trial courts order striking tenant’s answer granting the eviction and judgment for costs, and further awarded tenant costs and fees for the appeal.  The case was remanded to the trial court to conduct a rent determination hearing.

MICHAEL AARON CALLAHAN, Appellant, v. DAVID OM, LLC, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 16-127 AP. L.T. Case No. 16-2360 CC 05. December 11, 2017. On Appeal from the County Court in and for Miami-Dade County, Florida, Online Reference: FLWSUPP 2511CALL

The grass is always greener on the other side.

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Security deposit — Claim on security deposit denied where landlord failed to present evidence that the property was undamaged at the beginning of the tenancy or prove that tenants breached their duty to maintain.

On April 6, 2016, tenants sued for the return of their $2200.00 security deposit.  Landlord filed a counterclaim for the cost of resodding the lawn,  alleging tenants failed to maintain it.

Paragraph 13 of the lease provided that tenants shall maintain the lawn, but if  landlord is not satisfied with tenants maintenance, landlord may maintain the lawn his self at tenants’ expense.

Paragraph 25 of the lease provided that Tenant shall  surrender the premises in as good condition as at the start of this lease.”

The earliest photograph of the law was taken seven months after the lease began and showed extensive brown spots.  There was further evidence  that the landlord and dug up the lawn to replace the sewer line,  of salt water intrusion, and of  failures of the sprinkler system. The court found that tenants did not breach their duty to maintain the lawn and that landlord had not proven that the lawn was in worse condition at the end of the tenancy than at the beginning.

The court ordered the return of $2100 of the security deposit and denied the landlord’s counterclaim in its entirety.    Landlord appealed.

The Appellate Court noted that the standard of review of the trial court’s finding of facts were that will not be disturbed unless they are clearly erroneous.” State Tr. Realty, LLC v. Deutsche Bank Nat. Tr. Co. Ams., 207 So. 3d 923, 925 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D2328a]; Tampa HCP, LLC v. Bachor, 72 So. 3d 323, 326 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D2350b]; Universal Beverages Holdings, Inc. v. Merkin, 902 So. 2d 288, 290 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D1338b]; see Thorpe v. Myers, 67 So. 3d 338, 341 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1524b] (deferring to the circuit court’s findings of fact when they are based on competent, substantial evidence).

As the trial court’s finding appeared to be based in part on landlord’s  failure to present evidence that the lawn was in a healthier condition when the  tenants moved in and in part because the lawn was generally difficult to maintain due to flooding and damaged by landlord  during the sewer pipe trenching. It was within the trial court’s purview to reach this finding after weighing the testimony and evidence adduced at trial.

Thus, Appellate Court found that the Final Judgment was not clearly erroneous and affirmed.

LAMPROS HAROCOPOS, Appellant, v. ROBERT STEVEN EAST and TARA DAVIS EAST, Appellees. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 16-000045AP-88A. UCN: 522016AP000045XXXXCI. December 7, 2017. Appeal from Final Judgment Pinellas County Court

Online Reference: FLWSUPP 2511HARO