[RPPTL LandTen] New Case Writ of Possession

Mon Nov 7 08:40:04 PST 2016

Not to disagree with Cary and Dariel, but this case seems to be just a reversal of summary judgment due to the existence of material issues of fact. Is there something more that I’m missing?

Manuel Farach

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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Cary P. Sabol, Esq.
Sent: Friday, November 04, 2016 9:42 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] New Case Writ of Possession

I agree in a broad sense the case is concerning.  However, the opinion is expressly narrowly focused on just the one issue of whether Chapter 83 would apply to a post-foreclosure writ of possession scenario.  I think it's obvious it wouldn't.  In fact, Chapter clearly limits it's applicability to the landlord/tenant relationship.  And since there appears to have been no other defenses raised, this case should be very narrowly limited to that one issue.

However, I have always argued that a Final Judgment of Foreclosure includes not only the real property, but also the personal property located therein.  And upon issuance of the Certificate of Title, all rights given under the FJ would transfer to the purchaser.

I would certainly be interested to hear other opinions on the attached case, as well as the broader issue of a foreclosure sale purchaser's obligations regarding personal property.
Cary
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-------- Original Message --------
Subject: [RPPTL LandTen] New Case Writ of Possession
From: Dariel Abrahamy <Dariel.Abrahamy at gmlaw.com<mailto:Dariel.Abrahamy at gmlaw.com>>
Date: Fri, November 04, 2016 9:08 am
To: "'landten at lists.flabarrpptl.org<mailto:landten at lists.flabarrpptl.org>'" <landten at lists.flabarrpptl.org<mailto:landten at lists.flabarrpptl.org>>
Below is a link to Skelton v. Real Estate Solutions Home Sellers, LLC that came out today from the 5th DCA. Yes, I agree with the Court that 83.62 is in the landlord-tenant section and is entitled to Restoration of Premises to Landlord. But there are many other situations where Writs of Possession are executed where there is not a landlord-tenant relationship, such as ejectment actions under Chapter 66, unlawful detainer and unlawful entry in Chapter 82, pursuant to foreclosure judgments, etc. If a party is only protected from liability for removing personal property pursuant to a Sheriff executing a Writ of Possession under Chapter 83.62 in a landlord-tenant situation, that opens up exposure against real property owners for occupants filing conversion actions after being removed from the premises pursuant to a properly executed Writ of Possession. I find this case a bit concerning. Are there any other arguments or statutes other than under 83.62 to limit liability for removing personal property after executing a Writ of Possession?

http://www.5dca.org/Opinions/Opin2016/103116/5D15-4277.op.pdf

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