Florida Real Estate Law
Frequently Asked Questions about Real Estate Law in Florida
Q: What Happens if There is a Surplus of Proceeds From a Foreclosure Sale?
A: If there is a surplus of proceeds from a foreclosure sale, according to Florida Statues 45.032 and 45.033, you could have the opportunity to claim the extra money on a few conditions. The former property owner is entitled to the surplus money if he didn’t assign his rights to someone else between the time the lispendens, a written notice that a lawsuit concerning real estate has been filed, was recorded and the time of the judicial sale.
The other stipulation is that there are no other junior lienholders, people and companies who are owed money, and who have filed a claim for the funds. If there are no subordinate lienholders filing a claim the property owner receives the money, minus the court’s fees. The property owner is allowed to request the surplus fund within 60 days of the sale.
Q: What happens if someone who claims ownership after the lispendens is recorded makes a claim for the surplus funds?
A: An example of this is that a homeowner received a foreclosure notice and transferred ownership to someone else. In cases like this, the transfer must be deemed voluntary or involuntary. A voluntary transfer would be one made in writing and followed all of Florida Statue 45.044(3) guidelines. An involuntary transfer is one made by inheritance or guardianship. If the court discovers that the transfer does not meet all of the statutory requirements, they can still provide the surplus funds to the transferee if the transfer was made in “good faith”. If this is not the case, the court can give the surplus to the original owner and the transferee would be able to sue the owner for a refund.
Q: What is a Defective 3 Day Notice?
A: Property-owners must give tenants notice to vacate before carrying out an eviction. In Florida, the three-day Notice is the most commonly applied method of serving formal notice to evict when tenants have defaulted on their rent. Any number of things can render a notice defective: if you are demanding an incorrect amount for rent; if the notice includes late fees, but your lease agreement makes no mention of such fees; or if the notice fails to give the tenant proper grace period, your three-day notice is defective.
Recent legislation states that in cases involving a defective notice, landlords may be granted leave to amend the notice and continue eviction proceedings once the notice is revised. All the same, because the burden falls to you (the property-owner), a faulty notice will delay your case and may still end in dismissal, which can result in additional costs exceeding three times the amount of the defaulted rent in damages and legal fees payable to your tenant.
If you are a landlord struggling with a tenant refusing to pay rent, it is wise to seek legal counsel prior to making any moves to evict the tenant on your own. Though it may seem simple, drafting a document which accurately protects your legal interests can be quite complex. Consulting with an experienced attorney will ensure that your three-day notice is legally precise and that your rights are adequately protected.
Q: Can a Landlord Alter or Change a Lease Before it Expires?
A: Florida law dictates that your landlord cannot alter your lease before it expires without a valid reason. Your lease is a legal, binding contract and save for special circumstances, if that contract is valid and has not expired, your landlord generally cannot force you to sign an agreement changing its current terms. As an example, if utilities are included in your rent under the terms of your original lease agreement, your landlord cannot charge additional money to cover utilities while your lease is in effect.
Whether or not your landlord has standing to change your contract may also depend on the nature of your lease. Under a month-to-month agreement, for example, it may be possible for your landlord to amend the terms of your agreement; however, your landlord may not change the terms of your lease without first issuing at least 30 days’ notice. Whether annual or month-to-month, your landlord is unable to make any substantial changes to your lease agreement prior to the contract’s expiration date or without your express consent.
If your landlord has unexpectedly altered the terms of your lease without notice or consent, consult an experienced real estate attorney in order to ensure that you’re being treated fairly and that your rights as a tenant are protected.
Q: Can a Title Company Refuse to Release Funds if You have a Cancellation of Contract Signed by Both the Buyer and Seller?
A: A title company holding escrow cannot refuse to release your buyer’s deposit if the seller has agreed to release and cancel the contract, and under the terms of that contract it is clear that the buyer is entitled to retrieve it.
In real estate transactions, buyers are often expected to include an earnest money deposit with their purchase offer in order to affirm that they are serious about purchasing property. Once an offer is accepted and the purchase contract is signed, the money is deposited in escrow or held by a title company. If all goes well, the money is used for the down payment and closing costs of the sale. Should the deal fall through, however, the title company freezes the funds and then determines whether the buyer gets the earnest deposit back under the terms of the purchase agreement.
If the title company is refusing to release your buyer’s funds, consult with a real estate attorney in order to take legal action and protect the interests of your buyer.
Q: Does a Quitclaim Deed Have to be Recorded to be Valid in the State of Florida?
A: A quitclaim deed allows for the quick and easy transfer of ownership interest of real property or land. While recording the quitclaim deed makes the transfer official in the public record, it does not require recordation in order for it to be valid. However, Florida statute does require notice of the transfer of ownership interest to be recorded in the public record to maintain a proper chain of title, otherwise you run the risk of forfeiting your rights and interests in the real property.
Quitclaim deeds do not require and generally do not involve exchange of money. Unlike a warranty deed, it offers no guarantee that the grantor owns the property outright or that she has the legal right to transfer ownership at all. That means that a quitclaim deed affords the grantee (buyer) very little legal protection. This is why quitclaim deeds are typically used for low-risk, simple transactions such as the transfer of property interests into a trust, inter-family ownership transfers, or to make a gift of property.
For more on Florida conveyance and recording rules, consult with an experienced real estate attorney to review the facts of your case and ensure your interests are protected.
Q: What is a Case Management Conference in the Foreclosure Process?
A: In terms of foreclosure, a case management conference is when both parties meet to talk about the foreclosure case because nothing has changed. This conference will help decide the next step in the foreclosure process, which can possibly be an alternative to a foreclosure such as a deed in lieu, short sale, or mediation. However, you should also be aware that a case management conference could potentially speed up the foreclosure process. You should bring documentation for that explains why you have missed your payments.
In addition, the Case Management Report will touch on the status of related cases, the status for trial, and the record activity. All of these components will help the case management conference run more smoothly.
Q: If You Try to Buy a House from HUD and the Lending Doesn’t Go Through, Are You Still Responsible for the Title, Lien and Survey Search?
A: The answer is that you pay for some pre-paid items and the title company will pay the rest of the costs. So a few things you will have to pay for is the appraisal, any fees paid to the lender for credit reports, and possibly the first year’s insurance premium. Most relators won’t willingly bring up this conversation, so ask them up front about it. If you had any misconceptions or just weren’t sure, they would be able to clear everything up for you. Remember to ask early in the process.
Q: Is There a Rule of Civil Procedure or Florida State Statute That Allows an HOA to Pass on its Co-Defendant Legal Costs to a Homeowner During the Foreclosure Process?
A: Under Florida law, whether through foreclosure or deed-in-lieu, both the previous and the new owner are jointly and severally liable for all unpaid assessments that come due prior to the transfer of title. In a bank foreclosure, the statute’s “Safe Harbor” provision limits your lender’s liability, requiring them to pay the association only up to one year’s worth of past due assessments or 1% of the mortgage, whichever is less, when the foreclosure is complete. When it comes to how and when money is collected from homeowners, your HOA’s authority to make assessments is governed by the HOA’s own declarations and bylaws as well as statutory rules imposed by the state.
Florida statutes entitles HOA’s to collect any late fees, interest accrued and attorney fees incurred as a result of past due assessments; however, your HOA has no statutory basis to collect attorney fees as a result of being a named defendant in your bank’s foreclosure suit. Because associations can potentially file a lien for assessments at any time, lenders routinely name HOA’s as defendants whether or not the association filed a lien against you for past due assessments. There is no statutory law or rule of civil procedure that entitles an HOA to pass on legal fees to a co-defendant.
Unless your HOA’s declaration and bylaws expressly state otherwise, your association cannot legally pass on attorney costs for doing business as usual—that is, being named in a foreclosure suit. If you are up to date on your assessments, but your association has requested that you cover legal costs pertaining to your foreclosure, consult with an experienced real estate attorney in order to examine your association’s bylaws and ensure your interests are being protected.
Q: When Purchasing a Foreclosure Auction Property, How Long Does the Previous Home Owner Have to Vacate and What Can They Legally Take With Them?
A: Purchasing a home at auction can be a profitable investment, but many prospective buyers are not aware that buying property is only the first step to possessing it. If you recently purchased a property at a foreclosure auction, then you may be surprised to find that the previous homeowners have not vacated the premises since the foreclosure sale took place. That’s because under Florida law the homeowner is now your tenant and is not required to move until you begin a formal eviction process.
Ten business days after the foreclosure sale is successful you will receive a certificate of title (which grants you title to the land, the home and anything permanently attached to it), at that time can apply for a writ of possession if you wish to evict the previous owner. Once the writ is granted, a sheriff will notify the previous owner (now technically your tenant) that they’ve been divested of the property and are expected to leave the premises within 24 hours.
The tenants are not allowed to take with them anything that is not considered a personal item from the property. That is, all items that are affixed to the home such as built-in cabinets, permanently attached light fixtures, etc., must remain with the property. Items such as movable furniture and appliances, however, are considered personal property and may be removed by the tenants upon eviction.
The former homeowners are not required to move until the foreclosure is complete and proper procedure has been followed. After the foreclosure sale takes place, the homeowner then automatically becomes a tenant and the new owner must begin the standard eviction process for the state of Florida. Eviction can be a delicate matter and it is important to follow the legal process carefully in order to avoid complications.
Denise Lubliner, a Tampa Florida real estate attorney can assist you through the legal process and determine a positive solution. Contact her at 813. 381.5670.
The opinions listed above are those of the author. This is offered for general information purposes and does not constitute legal advice.