Rights of Tenants under foreclosure

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auction, court, docket, florida, foreclosure, LANDLORD, mortgage, notice, rights, sale, TENANT

I have been getting a lot of questions from tenants whose landlord is in foreclosure what their legal status is.   First you should check the status of the foreclosure on the Clerk of Court’s website.  In Broward that is  http://www.clerk-17th-flcourts.org/ClerkWebsite/welcome2.aspx.

Choose “online Services” and “Civil” as type of case  http://www.clerk-17th-flcourts.org/Clerkwebsite/BCCOC2/OdysseyPA/CaseSearch.aspx?SelectCourt=true&DisplayCitation=no&DisplayType=Civil

to see the status.   You can also try calling the Clerk at 954-831-5745.  Foreclosures generally only have one five minute court hearing called the ” Summary judgment .”  This is where the bank claims that the borrower has raised no defenses and the judge should grant the foreclosure automatically.   When this happens,  the Clerk of Court sets an auction date – generally six to eight weeks later.  After the auction check again to see if the sale went through or  was cancelled.  If the sale went through and the bank was the high bidder (usually the case)   Federal law requires the bank to give the tenant a written 90 day notice to vacate.  If the tenant had a lease that pre-dated the foreclosure,  the bank has to let you live out your lease.

Because there are so  many foreclosures the banks frequently cancel the sale because they do not actually want to come into title on the property yet.  Especially if it is a condo and they would have to start paying the assessments as the new owner.  The judges seem to be willing to let these foreclosures languish in the court system with no activity for years.   So if you are a tenant, a mortgage foreclosure should not be something that  takes you by surprise,  much less actually interferes with your lease.

A bigger  concern to tenant is the landlord’s non-payment of condo assessments for two reasons: First, that the association can be very aggressive about foreclosing on the unpaid dues.  They move much faster than the mortgage companies and can finish their foreclosure within six months.  When the foreclosure is granted your lease is terminated too.  They probably would like to keep you,  but  you will have to renegotiate. The second risk is  that the  condo association can move to seize your rent.  In effect pushing your landlord aside and taking over. Then the landlord is no longer entitled to evict you for non-payment. Unfortunately for the tenant,  the association as landlord has no duties to maintain the property,  so you may not be happy about this change in landlords.  But at least you no longer have to worry that the dues aren’t being paid.

The filing of foreclosures does not eliminate your obligation to pay rent to the landlord until the foreclosure sale takes place or your get the notice of rent seizure from the condo association.  You may be willing to gamble that the landlord will not pay the fees to evict you for non-payment.  That is your call.

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No Self-Help for Florida Landlords

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83.67, constructive eviction, florida, interrupt, LANDLORD, prohibited practices, remove, self-help, TENANT, threats, unlawful eviction, utility

In the case of IRELAND vs. DIAMOND  In the County Court in and for Broward County. Case No. 94-04843. March 30, 1994. [2 Fla. L. Weekly Supp. 223c ]  the  tenant complaint to code enforcement about the condition of the leased premises.  The landlord responded by showing up the  premises, flashing a gun at the tenant, and removing the refrigerator, the stove, two ceiling fans, and an air conditioner.    The tenant filed suit.    The court entered an injunction requiring the landlord to return the items within 24 hours, failing which the landlord would be found guilty of prohibited practices under FS 83.67 and fined 3 month’s rent  per day for each day the violation continued.   The case was continued to consider awarding  the tenant their moving expenses  as well.

Chapter 83.67  specifically prohibits the landlord from causing , either directly or indirectly,  the interruption of any utility service to the tenant,  including heat and refrigeration or  changing the locks,   but has been interpreted by the courts  as prohibiting  the removal of ANY amenity that was part of the original lease.   A fine of three month’s rent is the price for attempting “an out of court settlement.”

Failure to perform repairs costs landlord his lease plus damages to tenant.

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damages, evict, eviction, failure to repair, florida, LANDLORD, lease, notice, plumbing, rent, repairs, section 8, TENANT, violation

The landlord in a section 8 subsidized lease failed to repair leaking plumbing fixtures.  The tenant complained to section 8.  Section 8  issued a demand that the landlord fix the plumbing.   The landlord did not make the repairs.  Section 8 declared the lease to have been breached and ordered the tenant out of the property.   The landlord objected and requested a review with section 8,  but the landlord did not show up at the meeting.   The tenant vacated and then sued the landlord  for their hotel bill while they were waiting for new section 8 housing and for their  security deposit.  The landlord claimed for unpaid  late fees and damage  to the property.   The court ruled that as the landlord was the one that was in breach of the lease  the tenant did not automatically forfeit their security deposit.   As the landlord had make the written claim by certified mail within 30 days and as the tenant had objected in writing within 15 days neither side had waived their claim to the deposit.   The court held an evidentiary hearing as to the damages and ruled that items such as carpet cleaning, driveway and patio cleaning,  and painting  “are in the nature of ordinary wear and tear which are the responsibility of the landlord.”  The court found that the landlord failed to present credible evidence of any other damage,  but noted that the photographs of the premises did support the section 8 finding of failure to repair the plumbing.   As to the late fees,  the lease required that the landlord provide written notice of the assessment of late fees,  which the landlord had not done.  So the late fees were denied, and the Tenant awarded the return of their entire security deposit plus a money judgment for the hotel bills.

BURLEY vs. MATEO. County Court, 17th Judicial Circuit in and for Broward County. Case No. 10-17638 COWE, Division 81. March 2, 2011. Jane D. Fishman, Judge. 18 Fla. L. Weekly Supp. 624a

Court affirms landlord unable to demand rent once the condominium association has demanded it.

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718.116, assessments, condominium association, demand, florida, LANDLORD, TENANT

Section  718.116(11)[i] gives the condominium  association the power to collect to collect unpaid dues directly from the tenant of a delinquent unit  owner by mailing the tenant a written demand.  The statute also provides that  if the owner tries to evict a tenant who has been paying the rent to the association in response to such a demand that  the tenant may raise payment to the association as a defense.   In a recent Orange County case*  the association issued a demand for the rents to the tenant.  Several  months later,  the landlord issued a 3 day notice to the tenant for non-payment of rent and proceeded to file an eviction.   The court dismissed the landlord’s eviction with prejudice  declaring that the landlord’s demand for payment of rent to himself was defective, as the tenant was obligated to pay rent to the association.   Attorneys fees and costs were awarded to the tenant.

*   HURLEY, vs. ODUM,  County Court, 9th Judicial Circuit in and for Orange County, Civil Division. Case No. 2010-CC-019643-O, Div. 73. January 28, 2011. Heather Higbee, Judge. 18 Fla. L. Weekly Supp. 697b.

The treachery of images

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3 day notice, defect, eviction, florida, LANDLORD, notice, rent, TENANT

The Treachery of Images

 

is a painting by the Belgian surrealist René Magritte.  The picture shows a pipe. Below it, Magritte painted, “Ceci n’est pas une pipe”   French for “This is not a pipe.” The painting is not a pipe, but rather an image of a pipe, which was Magritte’s point:

[ for a full analysis of “The Treachery of Images”  click here http://foucault.info/documents/foucault.thisIsNotaPipe.en.html ]

Similarly, a landlord issued a 3 Day notice to the tenant on which he wrote “this is not an eviction notice.”   When the tenant failed to pay the rent after three days,  the landlord filed an eviction in court.   The judge ruled that if the three day  notice stated  it  “is not an eviction notice, “   then it isnt*.   Therefore the landlord  failed to issue an eviction notice,  which is a condition precedent  to filing the case in court.  Judgment was entered for the tenant and the case was didmissed with prejudice.    Surreal  ?   You be the judge.

*THOMAS CALDERON, Plaintiff, vs. BONNIE MURPHY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County, Civil Division. Case No. 2010 21794 CONS. September 21, 2010. Honorable Shirley A. Green, Judge. 18 Fla. L. Weekly Supp. 698a

Landlord waives right to evict by accepting partial payment of rent

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acceptance, florida, LANDLORD, partial, payment, rent, TENANT, waiver

A landlord  issued a 3 day notice  dated January 26, 2009 giving the tenant  until January 30, 2009 to pay $4,800.00.  On February 22, 2009  the tenant paid $2000 of the rent due in cash and obtained a receipt noting a past due balance of $4,350.   Then the landlord filed an eviction action in court.   The court ruled that :  The moment the rent was accepted from the tenant after the giving of the Three-Day Notice and after the giving of the Eviction Notice dated January 26, 2009, the landlord barred himself from commencing this eviction action by virtue of  Section 83.56(5) of the Florida Statutes which provides, “If the landlord accepts rent with actual knowledge  of a non-compliance by the tenant or accepts performance by the tenant. . .the landlord waives his or her right to terminate the rental agreement or to bring a civil action for that non-compliance.” Additionally, the acceptance of rent after a lease expires establishes a new tenancy. The receipt given on February 22, 2009 acknowledges that $2,000.00 rent  was paid in cash and that there is a new rent balance owed by the tenant.

GEORGE POTE & GABE RADI, Plaintiffs, vs. MICHAEL BELL, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 09-01524 COSO (61). April 1, 2009. Arlene Joy Simon, Judge. 16 Fla. L. Weekly Supp. 581a

Chicken or the egg ?

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3 day notice, appeal, broward, cases, court, court registry, florida, LANDLORD, rent, TENANT, volusia

Does the landlord’s defective 3 Day Notice or the tenant’s failure to post the rent decide the case ?

The various county courts of Florida have been in a long and heated disagreement over whether a defective 3 day notice from the landlord,  or the tenant’s failure to post the undisputed rent in the court registry determines the case.  The 4^th District Court of Appeals (Palm Beach County, Broward County, St. Lucie County, Martin County, Indian River County, and Okeechobee County ) recently ruled in Stanley v. Quest International Investment, Inc., 50 So.3d 672 2010,  that where a landlord filed with an allegedly defective 3 day notice,  but the tenant had failed to post the rent into the court registry,  that the landlord was entitled to an immediate default judgment of possession.   More recently a Volusia County Court disagreed.  In Boyles v. Ziegler, County Court for Volusia County 2011 (18 Fla.L. Weekly Supp 912a) the court dismissed the eviction for defective 3 day notice even though the tenant had not posted any rent in the court registry.   The Volusia County Court cited to its appellate district,  the fifth,  ruling in Investment & Income Realty v. Bently,  480 So2d 219 (5^th DCA 1985)  that a statutory cause of action can not be commenced until the claimant has complied with all of the conditions precedent.  I.e. that if the landlord’s 3 day notice is defective he was not entitled to file the eviction case, so it should be dismissed.   The Volusia court also cited to the Florida Supreme Court case of Ferry-Morse Seed Co. v. Hitchcock,  426 So.2d 958 (Fla. 1983) for the same proposition that “an action can not be commenced until all essential elements of the cause of action are present.”    The Volusia court did point out that even though the district courts of appeal had opposite opinions on this,  each county’s  court was obligated to follow their own district court of appeals’ ruling until the state supreme court has decided the issue once and for all.  So, for Broward, Palm Beach , St. Lucie,  Martin Indian River, and Okeechobee Counties at least,  the tenant will automatically be evicted if he does not post the undisputed rent into the court registry within five days of being served.

Property manager does not have standing to file eviction in own name

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83.43, eviction, florida, LANDLORD, property manager, standing, TENANT

In  ALCANTARA, , vs. REYES,  County Court, Orange County,  Case No. 2011-CC-006719-O, Division 72. June 15, 2011 18 Fla. L. Weekly Supp. 903a,  the property manager filed for eviction.   Florida Statutes defines “landlord”  as “the owner or lessor of a dwelling unit.” [§83.43(3)].  The court found that as the plaintiff was not listed as the property owner on the property appraiser’s website and also ruled that if the plaintiff was the property manager,  a property manager may not file an eviction in his own name.  The court further found that as there was no landlord – tenant relationship between the plaintiff and defendant,  the plaintiff was not entitled to file an eviction case.   The defendant was granted a judgment against the plaintiff for fees and costs.

See also: MILLENNIUM HOMES REALTY, vs. DANIEL PASTERNAK & VICTORIA PASTERNAK, County Court, 9th Judicial Circuit in and for Orange County, Civil Division. Case No. 2012-CC-011277-O, Division 73. September 24, 2012. Faye Allen, Judge. 19 Fla. L. Weekly Supp. 1105a