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The homeowners association filed a foreclosure for unpaid assessments on  2-11-10. A tenant, Jannelle Forbes,  was  personally served with the foreclosure summons and complaint on 2-27-10.   The court granted a summary judgment of foreclosure on  9-16-10.    On 10-13-10, a Sherry Rose executed a new lease with the unit owner.   On 10-21-10,  the property was sold at foreclosure auction to the plaintiff homeowners association.   The association received a certificate of title 11-2-10.  On 11-12-10,  the association served the new tenant, Sherry Rose with a 90 day notice to vacate pursuant to the Protecting Tenants at Foreclosure Act of 2009.   Nevertheless, the association filed for a writ of possession on 12-21-10.   The tenant filed for a stay of the writ on 12-23-10, which was granted.

The court ruled that an association lien foreclosure does fall under the Protecting Tenants at Foreclosure Act of 2009.   But the act only protects leases which are an “arms-length” transaction and in which the “The receipt of rent is required by the lease or tenancy in amounts not substantially less than fair market value.”   The lease provided for  rent of $1,000 a month “to be used for the repair to the property.”    The court made a finding that as  the “rent”  was   to be used for repairs and not paid to the landlord,  it failed the test of  “receipt of rent”  under the Act.  Further,  as there was no evidence that the tenants had  paid any money  to move in to the property,  the court found that it was not an arm’s length transaction.   Thus, the court declared that Sherry Rose was not entitled to the protections of the Protecting Tenants at Foreclosure Act of 2009, and the stay of the writ of possession was lifted.

PROVIDENCE COMMUNITY ASSOCIATIONS, INC., , vs. VIDA BIOH, Defendant. SHERRY ROSE, JULIO RAMIREZ, ANTHONY BUSCH, DAVID ORTIZ AND CHARLTON BUSCH, County Court, 10th Judicial Circuit in and for Polk County. Case No. 2010CC-000732, Division Civil M0. February 11, 2011,  18 Fla. L. Weekly Supp. 1036a