[RPPTL LandTen] N-1003 - Landlord Tenant Committee: Getting past title problems related to FS 713.10 recorded memoranda

Fri Dec 7 05:42:41 PST 2012

If you can comply with the requirements of 713.10 for the general notice it is a better option. 

As a general rule as a landlord we try not to record memorandum of leases as they do create title issues down the road.  

In our discussions we take the position that being in possession effects notice so it is the same as recording, so the tenant does not need the memorandum to protect its rights unless there will be a long period between signing and possession.  

If we are forced to record a memorandum of lease (usually by a national), we try to insert the following language

	All persons may conclusively rely upon any affidavit of the Landlord executed by one or more of its representatives, that the 	Lease has been or is terminated and that all rights and options to extend the term (if any) are likewise terminated, providing that 	at the time of the making the affidavit, the Tenant is not then in open and notorious possession of the Premises, and the 	affidavit so states.

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-----Original Message-----
From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Haney, Gregory
Sent: Thursday, December 06, 2012 11:44 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: N-1003 - Landlord Tenant Committee: [RPPTL LandTen] Getting past title problems related to FS 713.10 recorded memoranda

Jeff -

Are you referring to recording a memorandum of lease as to that specific transaction instead of a simpler notice of limited interest per 713.10?  Seems like the latter would not cause any leasehold interest exceptions down the road (other than the usual general leasehold exception which is going to appear on most commercial commitments regardless until you get them to delete or modify it for specific tenants).  My general form of notice of limited interest does not refer to any given lease specifically.  I think that may be your solution, versus a memorandum of lease which begs the question as to whether a given tenant's leasehold interest has since expired.

Or is the title company saying that a reference to the owner granting leases AT ALL would cause some sort of title issue?  Seems like an odd position with commercial properties, which of course often involve leasehold interests being granted.

Either way, I don't see what the big title issue is.  I don't know what there is to "write over".  Either there is an outstanding leasehold interest or there isn't.

Gregory

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Gregory R. Haney
Attorney at Law
Shumaker, Loop & Kendrick LLP
Bank of America Plaza
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Tampa FL 33602
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-----Original Message-----
From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Jeff Mazor
Sent: Thursday, December 06, 2012 11:18 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Getting past title problems related to FS 713.10 recorded memoranda

A client wants to lease some commercial space to a new tenant and avail himself of the protections afforded by Florida statute section 713.10.

However, he's been told by his title insurance company that if he records such a memo, down the road he may have trouble getting clean title and getting the title insurer to write over the recorded memo.

They suggested that, at the time he enters into the lease, he not only secures the detective's signature on the memorandum, but that the tenant also execute some kind of release or acknowledgment that the tenant has no claim against the real estate, under the memorandum terms or otherwise, and that the landlord should hold that document in escrow until such time as the tenant vacates.

At that point, the landlord could record the new document, thus initiating the original memorandum and presumably eliminating any title objection.

Can it really be that simple?

Jeffrey R. Mazor, Esq.
J. R. Mazor & Associates, P.A.
Presidential Circle Building
4000 Hollywood Blvd.,  Suite 265-s
Hollywood, FL 33021
Phone: 954-962-3500
Fax:       954-962-3560
Email:   JMazor at Mazor.com

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