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Eviction
Foreclosure and Tenants
A tenant living in a residence that is being foreclosed upon must still pay the rent until the house is actually sold at which time the landlord is no longer the owner of the residence. If the tenant fails to pay the rent he or she could be evicted. Obviously if the written lease is expired or the tenant has an oral lease, the tenant can give proper notice to terminate the lease.
There is also an argument that the tenant can stop paying rent to the landlord once a final judgment of foreclosure has been entered against the landlord.
The tenant naturally does not want to pay and fears not having the security deposit returned.
There is a school of thought that the foreclosure is a breach of the covenant of quiet enjoyment and unless the landlord stops the foreclosure the tenant can get out of the lease.
However, the safest bet is for the tenant to pay the rent until the house is actually sold. In the event of a sale of the house there is a new federal statute that protects the tenant and allows the tenant to finish out the lease if there is one and if there is not one to get at least ninety days notice before the tenant has to vacate.
Foreclosure sale of leased premises does not constitute breach of landlord’s covenant for quiet enjoyment, since such covenant, express or implied, goes only to possession, not of title, and change of title to leased premises is of itself not inconsistent with lessee’s peaceable possession. Hyde v. Brandler, 118 A.2d 398 (Mun. Ct. App. D.C. 1955).
Thus, declaring that there could be no breach of the covenant for quiet enjoyment unless there was an eviction, actual or constructive, the court in Capone v. Hinck (1937) 163 Misc 47, 296 NYS 346, held that a tenant could not recover damages for breach of such covenant because of the institution of an action against him and his lessor to foreclose a mortgage on the leased premises, where it was not shown that there was an actual sale of the premises and a delivery of the referee’s deed to the purchaser. To the contention that the lessee had requested the lessor to defend the action to foreclose the mortgage and that the lessor had refused to do so, and that this constituted sufficient grounds for damages for breach of the covenant of quiet enjoyment, the court pointed out that the foreclosure action never reached a final stage of actual sale of the premises and delivery of the referee’s deed, but was settled by the lessor’s payment of a consideration to the lessee, who then surrendered the lease.
Lessors did not breach covenant of quiet enjoyment, despite lessors’ failure to pay their taxes, where lessees were not evicted, either actually or constructively, but continued to occupy premises through foreclosure sale and beyond. U.S. v. G & T Enterprises, L.C., 978 F. Supp. 1232, 80 A.F.T.R.2d 97-7908 (N.D. Iowa 1997), judgment aff’d, 149 F.3d 1188, 81 A.F.T.R.2d 98-2202 (8th Cir. 1998).
Although an action to foreclose a mortgage resulted in a decree of foreclosure, the court in John R. Thompson Co. v. Northwestern Mut. L. Ins. Co. (1937, DC Ohio) 31 F Supp 399, pointing out that it did not appear that there was a sale under the decree, but, on the contrary, that the mortgage was satisfied and discharged within the period given in the decree, held that the express covenant of quiet enjoyment in the lease was not breached by such proceedings, even if the covenant could be breached by loss of title by the lessor, it being apparent that no title was lost by the lessor under such proceedings.
Draft and Review Leases
Many people especially in the residential scenario do not read their lease before signing it. Also, many landlords write leases that do not protect them properly.
I draft and or review leases that protect the rights of my client, whether the client is a landlord or tenant.
There are certain clauses you should and must have in your lease.
For instance:
BY SIGNING THIS RENTAL AGREEMENT THE TENANT AGREES THAT UPON SURRENDER OR ABANDONMENT, AS DEFINED BY CHAPTER 83, OF THE FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT’S PERSONAL PROPERTY. For the purposes of this section, abandonment shall be as set forth in Florida Statute, 83.59(3)(c).
Termination Notice – by Landlord
Landlords
The termination of a lease by the landlord will often times lead to legal consequences for both the landlord and the tenant. I strongly recommend that landlords first seek counsel from an attorney prior to terminating a lease, especially a long-term, fruitful one.
Tenants
If you’ve received written notice that your landlord terminates the lease, contact my office at 321-757-6848 for a consultation. Whether or not the landlord has a right to terminate a lease, there will be legal consequences. It is valuable to have on your side an advocate like Geoffrey Golub. Reach him at 321-757-6848 or 321-750-1107.
Three & Seven Day Notices
83.56. Termination of rental agreement
(1) If the landlord materially fails to comply with s. 83.51(1) or material provisions of the rental agreement within 7 days after delivery of written notice by the tenant specifying the noncompliance and indicating the intention of the tenant to terminate the rental agreement by reason thereof, the tenant may terminate the rental agreement. If the failure to comply with s. 83.51(1) or material provisions of the rental agreement is due to causes beyond the control of the landlord and the landlord has made and continues to make every reasonable effort to correct the failure to comply, the rental agreement may be terminated or altered by the parties, as follows:
(a). If the landlord’s failure to comply renders the dwelling unit untenantable and the tenant vacates, the tenant shall not be liable for rent during the period the dwelling unit remains uninhabitable.
(b) If the landlord’s failure to comply does not render the dwelling unit untenantable and the tenant remains in occupancy, the rent for the period of noncompliance shall be reduced by an amount in proportion to the loss of rental value caused by the noncompliance.
(2) If the tenant materially fails to comply with s. 83.52 or material provisions of the rental agreement, other than a failure to pay rent, or reasonable rules or regulations, the landlord may:
(a) If such noncompliance is of a nature that the tenant should not be given an opportunity to cure it or if the noncompliance constitutes a subsequent or continuing noncompliance within 12 months of a written warning by the landlord of a similar violation, deliver a written notice to the tenant specifying the noncompliance and the landlord’s intent to terminate the rental agreement by reason thereof. Examples of noncompliance which are of a nature that the tenant should not be given an opportunity to cure include, but are not limited to, destruction, damage, or misuse of the landlord’s or other tenants’ property by intentional act or a subsequent or continued unreasonable disturbance. In such event, the landlord may terminate the rental agreement, and the tenant shall have 7 days from the date that the notice is delivered to vacate the premises. The notice shall be adequate if it is in substantially the following form:
You are advised that your lease is terminated effective immediately. You shall have 7 days from the delivery of this letter to vacate the premises. This action is taken because …… (cite the noncompliance) …….
(b) If such noncompliance is of a nature that the tenant should be given an opportunity to cure it, deliver a written notice to the tenant specifying the noncompliance, including a notice that, if the noncompliance is not corrected within 7 days from the date the written notice is delivered, the landlord shall terminate the rental agreement by reason thereof. Examples of such noncompliance include, but are not limited to, activities in contravention of the lease or this act such as having or permitting unauthorized pets, guests, or vehicles; parking in an unauthorized manner or permitting such parking; or failing to keep the premises clean and sanitary. The notice shall be adequate if it is in substantially the following form: You are hereby notified that …… (cite the noncompliance) ……. Demand is hereby made that you remedy the noncompliance within 7 days of receipt of this notice or your lease shall be deemed terminated and you shall vacate the premises upon such termination. If this same conduct or conduct of a similar nature is repeated within 12 months, your tenancy is subject to termination without your being given an opportunity to cure the noncompliance.
(3) If the tenant fails to pay rent when due and the default continues for 3 days, excluding Saturday, Sunday, and legal holidays, after delivery of written demand by the landlord for payment of the rent or possession of the premises, the landlord may terminate the rental agreement. Legal holidays for the purpose of this section shall be court-observed holidays only. The 3-day notice shall contain a statement in substantially the following form:
You are hereby notified that you are indebted to me in the sum of…. dollars for the rent and use of the premises…(address of leased premises, including county)…, Florida, now occupied by you and that I demand payment of the rent or possession of the premises within 3 days (excluding Saturday, Sunday, and legal holidays) from the date of delivery of this notice, to wit: on or before the…. day of….,…(year)….. (landlord’s name, address and phone number)…
(4) The delivery of the written notices required by subsections (1), (2), and (3) shall be by mailing or delivery of a true copy thereof or, if the tenant is absent from the premises, by leaving a copy thereof at the residence.
(5) If the landlord accepts rent with actual knowledge of a noncompliance by the tenant or accepts performance by the tenant of any other provision of the rental agreement that is at variance with its provisions, or if the tenant pays rent with actual knowledge of a noncompliance by the landlord or accepts performance by the landlord of any other provision of the rental agreement that is at variance with its provisions, the landlord or tenant waives his or her right to terminate the rental agreement or to bring a civil action for that noncompliance, but not for any subsequent or continuing noncompliance. Any tenant who wishes to defend against an action by the landlord for possession of the unit for noncompliance of the rental agreement or of relevant statutes shall comply with the provisions in s. 83.60(2). The court may not set a date for mediation or trial unless the provisions of s. 83.60(2) have been met, but shall enter a default judgment for removal of the tenant with a writ of possession to issue immediately if the tenant fails to comply with s. 83.60(2). This subsection does not apply to that portion of rent subsidies received from a local, state, or national government or an agency of local, state, or national government; however, waiver will occur if an action has not been instituted within 45 days of the noncompliance.
(6) If the rental agreement is terminated, the landlord shall comply with s. 83.49(3).
Eviction of Tenants
There are three ways available to a landlord for evicting a tenant from a residence:
- A three-day written notice for failure to pay rent.
- A seven-day written notice for failing to comply with material provision(s) of the lease or other laws, rules, regulations, etc…
- A fifteen-day written notice no later than 15 day before the end of any month to terminate the tenancy if the tenancy is month to month, a seven day notice if the lease is from week to week, a sixty day notice if the tenancy is from year to year, and 30 days if the lease is quarter to quarter.
NOTE: A lease may lengthen the above days for notice, but cannot shorten them. AND if the tenant pays no attention to the notice a case has to be filed in court to evict the tenant. AND if a tenant wants a hearing in court for failing to pay rent, the tenant must put the rent in the court registry or demand a hearing to determine rent.
If there is no lease then these are the ways to evict a commercial tenant:
83.03. Termination of tenancy at will; length of notice
A tenancy at will may be terminated by either party giving notice as follows:
(1) Where the tenancy is from year to year, by giving not less than 3 months’ notice prior to any annual period;
(2) Where the tenancy is from quarter to quarter, by giving not less than 45 days’ notice prior to the end of any quarter;
(3) Where the tenancy is from month to month, by giving not less than 15 days’ notice prior to the end of any monthly period; and
(4) Where the tenancy is from week to week, by giving not less than 7 days’ notice prior to the end of any weekly period.
83.05. Right of possession upon default in rent; determination of right of possession in action or surrender or abandonment of premises
(1) If any person leasing or renting any land or premises other than a dwelling unit fails to pay the rent at the time it becomes due, the lessor has the right to obtain possession of the premises as provided by law.
(2) The landlord shall recover possession of rented premises only:
(a) In an action for possession under s. 83.20, or other civil action in which the issue of right of possession is determined;
(b) When the tenant has surrendered possession of the rented premises to the landlord; or
(c) When the tenant has abandoned the rented premises.
(3) In the absence of actual knowledge of abandonment, it shall be presumed for purposes of paragraph (2)(c) that the tenant has abandoned the rented premises if:
(a) The landlord reasonably believes that the tenant has been absent from the rented premises for a period of 30 consecutive days;
(b) The rent is not current; and
(c) A notice pursuant to s. 83.20(2) has been served and 10 days have elapsed since service of such notice.
However, this presumption does not apply if the rent is current or the tenant has notified the landlord in writing of an intended absence. value of the rental at the time it became due.
83.20. Causes for removal of tenants
Any tenant or lessee at will or sufferance, or for part of the year, or for one or more years, of any houses, lands or tenements, and the assigns, under tenants or legal representatives of such tenant or lessee, may be removed from the premises in the manner hereinafter provided in the following cases:
(1) Where such person holds over and continues in the possession of the demised premises, or any part thereof, after the expiration of the person’s time, without the permission of the person’s landlord.
(2) Where such person holds over without permission as aforesaid, after any default in the payment of rent pursuant to the agreement under which the premises are held, and 3 days’ notice in writing requiring the payment of the rent or the possession of the premises has been served by the person entitled to the rent on the person owing the same. The service of the notice shall be by delivery of a true copy thereof, or, if the tenant is absent from the rented premises, by leaving a copy thereof at such place.
(3) Where such person holds over without permission after failing to cure a material breach of the lease or oral agreement, other than nonpayment of rent, and when 15 days’ written notice requiring the cure of such breach or the possession of the premises has been served on the tenant. This subsection applies only when the lease is silent on the matter or when the tenancy is an oral one at will. The notice may give a longer time period for cure of the breach or surrender of the premises. In the absence of a lease provision prescribing the method for serving notices, service must be by mail, hand delivery, or, if the tenant is absent from the rental premises or the address designated by the lease, by posting.
RESIDENTIAL
LINK:
A residential tenancy is governed by Florida Statutes 83.40 thru 83.681.
NOTE: A Landlord may not use self-help to remove a client.
83.67. Prohibited practices(SELF-HELP)
(1) No landlord of any dwelling unit governed by this part shall cause, directly or indirectly, the termination or interruption of any utility service furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, elevator, garbage collection, or refrigeration, whether or not the utility service is under the control of, or payment is made by, the landlord.
(2) No landlord of any dwelling unit governed by this part shall prevent the tenant from gaining reasonable access to the dwelling unit by any means, including, but not limited to, changing the locks or using any bootlock or similar device.
(3) No landlord of any dwelling unit governed by this part shall remove the outside doors, locks, roof, walls, or windows of the unit except for purposes of maintenance, repair, or replacement; nor shall the landlord remove the tenant’s personal property from the dwelling unit unless said action is taken after surrender, abandonment, or a lawful eviction.