One day’s notice to cure code violation deemed due process violation

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On July 6, 2017, a code enforcement officer noticed Appellant’s  lawn was overgrown. A Notice of Violation, dated July 12, 2017, was sent via regular mail to Appellant. It required the violation to be corrected by Sunday, July 16, 2017. Appellant’s representative testified that he received the Notice on Saturday, July 15, and immediately alerted the tenant of the property, who cut the grass that day. On Tuesday, July 18, the code enforcement officer found the property was not in compliance because although the front yard was cut, neither the back nor side yard was. The code enforcement officer referred the matter to the Board, and a hearing was held on August 1, 2017. The Board found that as of the date of the hearing Appellant was currently in compliance, but the property was in violation past the July 16 date set for compliance. The Board did not impose a fine, but based on the finding of violation, any repeat violation could be fined at an amount of up to $500 a day.

The court ruled on appeal that in code enforcement cases, the law requires a violator be given “a reasonable time to correct the violation.” See § 22-72, Code; § 162.06(2), Fla. Stat. Such time period shall be no fewer than five days and no more than 30 days.”   Accordingly,  the appellate Court  found that Appellant was not given a reasonable time to correct the violation at its rental property and reversed the order of the Code enforcement Board.

ARL & IL REVOCABLE TRUST, Appellant, v. CITY OF DUNEDIN CODE ENFORCEMENT BOARD, Appellee. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 522017AP000041XXXXCI. L.T. Case No. 17-000041AP-88B. July 23, 2018. 26 Fla. L. Weekly Supp. 700b

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Miami-Dade requires associations to act on rental applications within 45 days and state the reason for any rejected application

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Miami-Dade Code of Ordinances Sec. 11A-18.1. – Required notices in connection with application to purchase or rent a dwelling.

(a)  Within fifteen (15) days after receipt of any incomplete or incorrectly completed application (or amended application) to purchase or rent a dwelling, the condominium association, homeowners’ association, or cooperative association shall provide the applicant with written notice specifically identifying any and all items in the application that need to be completed or corrected.

(b) Within forty-five (45) days after receipt of a correctly completed application, the condominium association, homeowners’ association, or cooperative association shall either reject or approve the application and shall provide the applicant with written notice of same. If the application is rejected, the written notice must state with specificity each reason for the rejection.

(c)If the condominium association, homeowners’ association, or cooperative association fails to comply with the provisions of Section 11A-18.1 (a) and (b), of this article, the Director or the Commission may send a demand letter requesting that the condominium association, homeowners’ association, or cooperative association, within ten (10) days after the date of the demand letter, provide to the applicant and the Director or the Commission a written acknowledgement of application receipt, notice of approval or rejection of the application, and notice specifying each reason for the rejection (if applicable). The failure of the condominium association, homeowners’ association, or cooperative association to timely comply with this provision may be considered in determining whether reasonable cause exists to believe the association’s decision or action was discriminatory.

(Ord. No. 14-63, § 1, 7-1-14)

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…

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