[RPPTL LandTen] (no subject)

Thu Mar 3 09:22:54 PST 2011

My $0.02.

SB 784

I agree with David about the nightmare of enforcement.  Also, why would the
monies be given to the lender?  If the lender is not the foreclosure buyer,
are they required to hand over the funds to the actual buyer?  Yeah, that
will work.  Maybe we could require that the monies, if not paid into the
court, are then distributed directly to the buyer out of the seller's
proceeds at issuance of certificate of title.

Again, it's a great idea, but horrendous in potential execution.  If it is
in fact the desired policy to protect legitimate deposits, then the
legislature should just state that any proven security deposit will be
credited to tenant's account regardless of whether the foreclosure
buyer/landlord ever received it.  May not be "fair" to buyers, but at least
it's clear, and people can be aware of their risks before they buy.

As to the right of setoff of unreturned deposits by the tenant, I don't
object to it wholesale - in truth it just becomes an additional "lien" or
cost that a foreclosure buyer needs to calculate into his costs when making
a bid - but I'm not so sure that it doesn't also invite a whole new class of
fraud.  But maybe that can be handled by strictly defining proof.

However, "proof" is, in my opinion, the biggest issue here.  The statute
requires evidence, but what is enough?  A receipt from the landlord?  How
will we verify its legitimacy with a landlord that is, in most cases, long
gone?  A cancelled check?  Better, but how do we know what the purpose of
the check was?  It could have just been the tenant's payment of ordinary
rent.  Again, no landlord around to verify.  It just seems to me that this
is pretty much unworkable.

Finally, I do have one added suggestion with respect to the legitimate lease
issue.  Beyond all other limitations, I would like the Act to provide that a
pre-existing lease expires 1 year after foreclosure sale, regardless of the
term of the lease itself. 

However, what this statute has done right is creating the form of the 90-day
notice, which specifically states that rent is payable during the 90-day
period.  That is long overdue.  But I would add one thing - and that is in
order to have the benefit of the full lease term, the tenant must give a
copy of the existing lease, certified (under pains and penalties of perjury)
by the tenant to be a true and correct copy, within 30 days of receiving the
notice.  Otherwise, how will the buyer know what the lease terms are?

SB 738

Just see my comments to 784, with the added comment that this one is not
drafted as well as 784.  So if I had to choose as to which one is closer to
being a workable bill, it would be 784.

All:

Please provide any additional comments to me by end of week so I can compile
them as best I can and forward them up the chain.

Thanks.

Scott A. Frank

Attorney at Law

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From: David Weisman [mailto:David.Weisman at gmlaw.com] 
Sent: Thursday, March 03, 2011 11:47 AM
To: RPPTL Landlord Tenant Committee
Cc: 'Law Offices of Scott A. Frank'
Subject: RE: [RPPTL LandTen] (no subject)

While I like the idea, I think that the proposal in 83.49 is going to cause
more trouble than cash. It is going to have lenders or annoyed tenants
filing criminal charges which will have to be dealt with.

Anyone who thinks that a defaulting property owner will come forward with
the security deposit and advance rent also believes that the same person has
these funds in a separate bank account, probably at the First Bank of the
Easter Bunny.

Rather than make it criminal, why not provide a right of setoff to let the
tenant do what they are going to do anyway.

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

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From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Neil B. Shoter
Sent: Wednesday, March 02, 2011 11:34 PM
To: 'RPPTL Landlord Tenant Committee'
Cc: 'Law Offices of Scott A. Frank'
Subject: [RPPTL LandTen] (no subject)

Our Committee has been asked to provide comments with respect to the
attached proposed Bills.  Senate Bill 738 creates notice prerequisites prior
to termination of residential tenancies by a successor in interest by
foreclosure to harmonize with the Federal Protecting Tenants at Foreclosure
Act of 2009. 

 SB 784  modifies Section 83.49 relating to security deposits in event of
foreclosure and creating Section 83.683 dealing again with notification of
residential tenants prior to termination in foreclosure.  Note the sunset of
this law n 2013.

Please provide any specific comments on these bills by no later than end of
the day on Friday so that they may be passed onto our legislative committee.
You may give comments directly to our Co-Chair Scott Frank.

Thank you.

Neil

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Neil B. Shoter 
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