[RPPTL LandTen] HB 454 and related bills 3-5-09

Thu Mar 5 19:16:23 PST 2009

I agree with the below mentioned analysis. I also think that a tenant should be given notice of an impending foreclosure action as soon as the landlord knows about it. Perhaps within 48 hours the latest. Some process servers serve the tenant first and then the landlord and there is no guaranty what could happen.. that is why it is best that the landlord give notice to the tenant even before they know of the pending action(if they know that they are late in paying the mortgage they should realize that they may be foreclosed on) If the landlord gives the necessary notice, at least there would be some relief for the tenant to move out immediately (automatic termination of lease should be considered).  I believe that it is also in landlord's best interest to notify tenants early in the game so as not to incurr further liability... many bills pending are proposing a fine to be assessed. Apart from that I have seen cases where the landlord has had to shell out $10,000 for not notifying about foreclosure(fraud counts). I believe that the notice requirement is just an essential step to avoid undue hardship to the tenant and also further liability to the landlord. In a case where tenant is late on rent, then tenant should be still required to pay all past due rent before leas is terminated. The contours of what should be permitted is of course going to be hotly contested!

I do think that even in a short sale situation a tenant should be notified about it... particularly in one unit landlord situations. Some tenants may not wish to remain in the property. There may be no guaranty that the new owner will even want to lease the property. Therefore, advance notice is not only fair but should be required.

Roshani M. Gunewardene

Attorney

Altamonte Springs, FL

> Date: Wed, 4 Mar 2009 17:57:23 -0500
> From: David.Weisman at gmlaw.com
> To: SAFrank at arnstein.com; ddrobner at carltonfields.com; lgranet at granetlaw.com; roshanigunewardene at hotmail.com; eric at jacobsoffir.com; NShoter at shutts.com
> Subject: Re: FW: HB 454
> 
> We can not legislate dishonesty out of the system. At the risk of turning the world more on its head than it is, we should give the Tenant a right of set off against the Landlord for any security or advance rent if Tenant receives notice of foreclosure. That way, the Tenant is protected when the Landlord runs off with the funds and the tenant has nobody to look to for a return of the deposit. What about the situation where the Tenant is renting a condo unit and the Landlord fails to pay maintenance? The building denies access to amenities to the tenant. Also should be a right of setoff.
> 
> 
> 
> David Weisman
> Board Certified Real Estate Lawyer
> Greenspoon Marder, P.A.
> Trade Center South, Suite 700
> 100 West Cypress Creek Road
> Ft. Lauderdale, FL 33309
> Phone 954-491-1120
> Toll Free 888-491-1120
> Direct Phone 954-343-6941
> Direct Fax 954-343-6942
> 
> 
> >>> "Neil B. Shoter" <NShoter at shutts.com> 3/4/2009 4:09 PM >>>
> did you see this?
> 
> Neil B. Shoter 
> Partner / LEED Accredited Professional 
> ________________________________
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> 
> ________________________________
> 
> From: Meyer, George J. [mailto:gmeyer at carltonfields.com] 
> Sent: Tuesday, March 03, 2009 5:47 PM
> To: Arthur J. Menor; Neil B. Shoter
> Cc: BrutonB at gtlaw.com; mjgelfand at gelfandarpe.com 
> Subject: FW: HB 454
> 
> 
> Art and Neil, can one of you or someone else from your Comm come
> up with a better mouse trap as noted by Burt below?
> 
> As usual, it goes without saying, they need this ASAP. 
> 
> Thanks.
> 
> George
> 
> ________________________________
> 
> From: BrutonB at gtlaw.com [mailto:BrutonB at gtlaw.com] 
> Sent: Tuesday, March 03, 2009 5:30 PM
> To: pete at Penningtonlawfirm.com 
> Cc: mjgelfand at gelfandarpe.com; TreyG at far.org; Meyer, George J.;
> jbn at floridalandlaw.com; abfields at firstam.com 
> Subject: RE: HB 454
> 
> 
> Thanks, Pete--
> 
> George, can you please forward to the landlord/tenant guys to
> see if they can come up with a better solution to the problem that
> concerns the Senator (described by Pete at the bottom of this email)?
> 
> I have a couple of observations:
> 
> 1- "Short sales" are not part of the described problem. In a
> short sale, the landlord does not lose the property to the lender;
> rather the landlord sells it to a buyer, who takes the property with
> notice of the lease if the tenant is in possession of the property.
> Although the lender may write off some debt in a short sale, the tenant
> is in exactly the same position as any other sale of the property-- and
> surely we don't want to create an obligation for a landlord to disclose
> pending property sales to a tenant.
> 
> 2- A really bright line objective test for a landlord with
> lender troubles is whether the lender has recorded a lis pendens for the
> mortgage foreclosure suit. That is one of the purposes of requiring a
> lis pendens to be recorded-- to notify the world (yes, that includes
> tenants too) that the foreclosure suit has been commenced and rights in
> the property are about to change. So let's assume that most residential
> tenants don't do a title search on their prospective new landlords and
> need a little extra help from Big Brother: the statute could require the
> landlord to disclose to prospective tenants the existence of any
> recorded lis pendens to foreclose a mortgage against the property. The
> landlord would know this objective fact (being the defendant in the
> foreclosure suit) and no one would need a crystal ball to determine what
> the lender intends.
> 
> 3- If the real problem is loss of tenant deposits, maybe what we
> really need is some tweaking of the residential L/T statute regarding
> escrows of tenant deposits. Our landlord/tenant folks know these rules
> a lot better than I do, but I believe that there are a number of
> exemptions for smaller landlords who are not required to keep the
> deposits in a special account. Maybe such exemptions could be made
> inapplicable after the filing of a lis pendens for a foreclosure suit
> against the leased property, so that the landlord would be required to
> hold separately any tenant deposits received after the lis pendens is
> filed and for as long as the foreclosure suit is pending. I think there
> are already sanctions in the law for absconding with tenant deposits
> that the law requires the landlord to hold separately, so we wouldn't
> have to invent any new penalties to cover this situation. Of course, a
> little knowledge is a dangerous thing, so I defer to the L/T committee
> experts-- is there a solution here, guys, or is this just BS?
> 
> Just some ideas-- let's see what the landlord/tenant guys come
> up with.
> 
> Burt Bruton
> Shareholder 
> Greenberg Traurig, P.A. | 1221 Brickell Avenue | Miami, FL 33131
> Tel 305.579.0593 | Fax 305.579.0717 
> 
> brutonb at gtlaw.com | www.gtlaw.com <http://www.gtlaw.com/> 
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> 
> From: Peter M. Dunbar [mailto:pete at Penningtonlawfirm.com] 
> Sent: Thursday, February 19, 2009 12:02 PM
> To: Bruton, Burt (Shld-Mia-RE)
> Cc: mjgelfand at gelfandarpe.com; TreyG at far.org 
> Subject: HB 454
> 
> 
> 
> Burt,
> 
> After meeting on this, Trey and I understand a little better
> where the Senator is going. He sees it as abusive when a landlord,
> already in foreclosure, lease a property for a term that will never be
> realized because of the foreclosure. The landlord takes the money,
> pockets it, doesn't pay the lender, and when he loses he property the
> money's gone, the tenant is evicted and there is no remedy. Do you
> think our "landlord/tenant" guys might have any suggestions on how this
> might be addressed?
> 
> 
> 
> 
> ________________________________
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