Borrower bankruptcy filed after the expiration of the redemption period acts neither to stay the issuance of the certificate of title, nor writ of possession.

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bankruptcy, certificate of sale, foreclosure, post redemption period, stay, writ of possession

In a residential foreclosure, a third party purchased the property at auction. On July 11, 2013, the Clerk of Court issued a Certificate of Sale.  On September 26, 2013 Defendants filed bankruptcy.  On October 8, 2013, the clerk issued a  Certificate of Title. On January 6, 2014, the  Court,  issued a writ of possession.  Thereafter, Defendants filed to reverse the sale and stay the writ.

The court noted that the redemption period set forth in § 45.0315, Fla. Stat., is “the later of the filing of a certificate of sale . . . or the time specified in judgment, order, or decree of foreclosure . . . .” See, e.g., Matter of Sarasota Land Co v. Barnett Bank of Sarasota, NA., 36 B.R. 563, 566 (M.D. Fla. 1983) (holding that because the debtor/mortgagor failed to exercise his right of redemption within the statutory period, his interest in the property was permanently foreclosed and the issuance of the Certificate of Title was proper); In re Trust No. 101B, 77 B.R. 973, 975 (S.D. Fla. 1987) (reaching the same conclusion as Sarasota Land and holding that the purchaser at the judicial sale “is now entitled to receive a Certificate of Title pursuant to Florida law without the need for further proceedings.”).  In this case, the foreclosure judgment is silent on the issue and the Certificate of Sale was filed months prior to the bankruptcy filing.   Therefore,  as defendants redemption period had expired,  they had no remaining interest in the property, and the bankruptcy could act neither to reverse the sale or stay the writ of possession.

WELLS FARGO BANK, N.A,  v  OSBORNE, et al.,. Circuit Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2011-3143 CA 01 (11). February 24, 2014. 21 Fla. L. Weekly Supp. 519b

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Rent due on illegal dwelling unit

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damages, granny flat, illegal dwelling unit, in-law apartment, LANDLORD, TENANT, zoning violation

Landlord rented Tenant an “in-law” studio apartment attached to a single family home.  After several disagreements regarding the apartment,  tenant called the Code Enforcement Board (“CEB”) to complain about the condition of the apartment. 

While the CEB officer found that the apartment was clean, he also found that the apartment was in violation of applicable zoning laws prohibiting two dwelling units on the property.  Landlord terminated the tenancy effective  June 30^th,  but the tenant held over.  Landlord issued a 3 day notice on July 9^th,  and then filed an eviction for non-payment of rent.  On August 4th, tenant  vacated the premises. On August 11, 1997, the trial court entered final judgment in favor of  landlord and  damages in the amount of $1,000.00 for July and August rent due at $500.00  per month.

Tenant appealed.   The appellate court ruled that to permit the landlord to receive a full month’s rent  for August  when she would not otherwise be able to rent the apartment would create a windfall for her. However,  the landlord is entitled to be compensated for tenant’s  use and occupancy of the premises through August 4th. See generally Morris Investment Partnership v. Figueroa, 698 So. 2d 288 (Fla. 3d DCA 1997).  Therefore the appellate court awarded July rent and prorated rent for August.

Author’s Note: by issuing a 3 day notice after the date of lease termination,  landlord reinstated the month to month tenancy and forfeited the remedy of double rent per diem for the holdover.

MORRIS, v. WAGNER,  9th Judicial Circuit in and for Orange County. Case No. CVA197-59. April 22, 1999.  6 Fla. L. Weekly Supp. 451b.

Advanced rent not refundable on lease termination

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advance rent, Depierro, LANDLORD, TENANT, termination of tenancy, unjust enrichment

Landlord and tenant entered into a lease for residential real property on the following terms:  First months rent $5500,  Advance rent for 11 months $60,500, Security Deposit $5,500, Pet Deposit $500.  All payable at lease inception.

Four months into the lease,  landlord received complaints from neighbors about a wild party and inspecting the property found significant damage to the rental unit.  Landlord issued a notice of lease termination and tenants vacated.  The landlord did not return any monies to the tenant and the tenant sued for their security deposit and  for the return of “advance rent”  paid to landlord.   The trial court found that the $38,500 of the rent paid for the balance of the lease term was “advance rent”  and refundable, and that as the landlord had not made a written claim on the security deposit,  that too was refundable.  The court awarded landlord a setoff for $3,524.15 in damages to the unit.

On appeal,  the court ruled that there was no “advance rent,”  but rather the parties had entered into an annual  lease with one annual payment.  Section 83.43(9) defines “advance rent” as “moneys paid to the landlord to be applied to future rent payment periods, but does not include rent paid in advance for a current rent payment period.”  The court went on to state that  “even if this were advance rent, the landlord still would have been entitled to retain the unused portion of the money.   In Florida, if a lessee pays rent in advance and the lease is properly terminated by the lessor, then the lessor is not required to return the advance rental payment, citing Wagner v. Rice, 97 So.2d 267 (Fla.1957).

The appellate reversed the refund of the $38,500  advance rent back to the tenant,  but  upheld the return of  the security deposit less damages.

ATLANTIS ESTATE ACQUISITIONS, INC., v. DePIERRO,  125 So.3d 889 (Fla 4^th DCA 2013)