[RPPTL LandTen] tenants and tax deeds / assessment liens

Mon Sep 5 12:27:25 PDT 2011

Generally, when there is no specific wording that federal law preempts state law both federal law and state law have to be read together. If state law impedes the intent of the federal law, federal law controls. In reading the law, Protecting Tenants at Foreclosure Act (Title VII of S. 896, Pub. L. No. 111-22, §§701 - 704 (2009), I believe the intent is clear.  

First the law states “In the case of any foreclosure on a federally-related mortgage loan . . .”, 

and later states “federally-related mortgage loan (as that term is defined in section 3 of the Real Estate Settlement Procedures Act of 1974 (12 U.S.C. 2602)).   It continues to include “or on any residential real property in which a recipient of assistance under this subsection resides,. . ..”  It is my reading that this refers to section 8 tenants because the law also states  “except that nothing under this section shall affect the requirements for termination of any Federal- or State-subsidized tenancy  . . .”  (section 8).  

So my reading would be that it does not pertain to tax deeds.

  _____  

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Arlene C. Udick
Sent: Thursday, September 01, 2011 3:40 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] tenants and tax deeds / assessment liens

This begs the question whether the federal law trumps or supersedes the state law.  Arlene

Arlene C. Udick, Esq.

Real Estate Law Solutions

P.O. Box 2094

The Villages, FL 32158-2094

(O) 352-391-1888

(F) 352-391-9128

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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Shane Weaver
Sent: Thursday, September 01, 2011 1:38 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] tenants and tax deeds / assessment liens

I’ll defer to Cary’s better knowledge of the tax sale process, but that could be construed as a non-judicial foreclosure. Keep in mind that there are states where all foreclosures are non-judicial, yet the PTFA applies there regardless. It may be possible to argue that a tax lien/sale is merely a type of non-judicial foreclosure that is still subject to the PTFA. (That’s what I’d argue anyway; there’s no case law on the subject.)

As for Fla. Stat. 197.562, that would just be another state possessory law superseded by the federal PTFA, same as 83.62 and the like.

Shane Weaver, Esq.

Legal Aid Society of Palm Beach County

423 Fern Street, Suite 200

West Palm Beach, FL 33401

Tel. (561) 822-9785

Fax (561) 822-9885

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Greg Hass
Sent: Thursday, September 01, 2011 12:55 PM
To: Cary Sabol; RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] tenants and tax deeds / assessment liens

Thanks Shane and Cary.  I’ve been leaning towards Cary’s view since I don’t believe the word “foreclosure” is actually used anywhere in the tax certificate / tax deed statutes.  However, I have seen the “F” word used loosely in old seminar materials I have on the subject.  So while the statute might not describe the process as a “foreclosure”, it does appear to have several characteristics of a foreclosure which lends credence to Cary’s argument.  It will be very interesting to see what a circuit judge will do when faced with a tenant trying to use the PTFA as a shield when the tax deed grantee shows them this statute:  

 197.562Grantee of tax deed entitled to immediate possession.—Any person, firm, corporation, or county that is the grantee of any tax deed under this law shall be entitled to the immediate possession of the lands described in the deed. If a demand for possession is refused, the purchaser may apply to the circuit court for a writ of assistance upon 5 days’ notice directed to the person refusing to deliver possession. Upon service of the responsive pleadings, if any, the matter shall proceed as in chancery cases. If the court finds for the applicant, an order shall be issued by the court directing the sheriff to put the grantee in possession of the lands.

Regards,

Greg

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Thursday, September 01, 2011 11:48 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] tenants and tax deeds / assessment liens

Greg,

My two cents:  I don't believe a Tax Deed Sale is a "foreclosure" as there are no court/foreclosure proceedings required.  It's more of an administrative or levy situation.  From what I know, the Tax Collector sends out Notice and the Clerk holds the public auction, but there are no formal court proceedings or a judgment, so I don't that makes it a "foreclosure."  However, I have been wrong before, so take it for what it's worth (i.e. 2 cents).

Cary 

Cary P. Sabol, Esq.

P.O. Box 15981

West Palm Beach, Florida 33416 

Phone: (561) 281-2744

Confidentiality Notice: This email transmission and any attachments are confidential and may be legally privileged.  If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or use of the information contained herein is STRICTLY PROHIBITED. 

From: Shane Weaver <sweaver at legalaidpbc.org>
To: 'RPPTL Landlord Tenant Committee' <landten at lists.flabarrpptl.org>
Sent: Thursday, September 1, 2011 11:41 AM
Subject: Re: [RPPTL LandTen] tenants and tax deeds / assessment liens

Greg,

Any foreclosure of a dwelling or residential property is subject to the PTFA. The Act does not make any distinctions between bank foreclosures, association liens, mechanic’s liens, etc. So if a tax lien must be foreclosed upon, then it too should fall under the Act. 

Sincerely,

Shane

Shane Weaver, Esq.

Legal Aid Society of Palm Beach County

423 Fern Street, Suite 200

West Palm Beach, FL 33401

Tel. (561) 822-9785

Fax (561) 822-9885

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Greg Hass
Sent: Wednesday, August 31, 2011 3:21 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] tenants and tax deeds / assessment liens

My understanding is that the federal Protecting Tenants at Foreclosure Act does not give any protection to a tenant living in a home that is the subject of a Florida tax deed sale.  However, it does protect the tenant where an association forecloses an assessment lien.  Correct?

Thanks,

Greg

Greg Hass, Senior Counsel

Office of Law & Policy | FloridaRealtors®
7025 Augusta National Drive, Orlando, FL 32822
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