REAL ESTATE LAW

FORECLOSURE

Florida is one of the largest foreclosure markets in the nation. 

Given the same, it’s imperative that you hire an experienced Florida foreclosure attorney to guide you through the strategic and procedural elements of a foreclosure action. 

At torres|benet, p.a. we will force the bank or mortgage holder to prove their case which should provide you with additional time to assess alternatives to foreclosure such as a short sale, loan modification or deed in lieu.

 

Real Estate Law

FORECLOSURE AVOIDANCE

MORTGAGE LOAN MODIFICATIONS

A loan modification is a permanent change of a lender’s loan terms that is utilized to help the delinquent borrower become current, lower the mortgage payment or reduce the principle due and owing on the note. Normally, loan modifications provide the lender and borrower with a less expensive alternative to foreclosure.  Unfortunately, modifications can be difficult and usually involve either an increase in the loan term or loan rate. 

SHORT SALE

A short sale is a change in ownership or sale approved by the bank which allows you to sell your home for a price less than what you owe the bank.  The process is time consuming and requires lengthy negotiation because the bank seldom wants less than what they are owed.  At torres|benet, p.a. we work hard to convince the bank/note holder that taking less is a quicker resolution and more cost-effective measure than a lengthy foreclosure and sale.  Unfortunately, the success of short sale is not on the willingness of the bank to sell for less than it is owed; it is the bank agreeing to write off the difference between what you owe and the sale price, or what is called the “deficiency”.  The process of negotiating a short sale and having the bank waive a deficiency is a lengthy one and usually requires a skilled attorney that is also a skilled negotiator.  The entire short sale process can be taxing and time consuming, it is critical that you find a knowledgeable Real Estate Law Attorneys to assist you.

DEED IN LIEU

A deed in lieu is an option that allows you to voluntarily transfer the property to the bank/lender in exchange for a release of liability on the Note and Mortgage.  When a short sale or other foreclosure avoidance option does not work, a deed in lieu provides you with another quiver in your satchel and may help you avoid foreclosure.  The bank often agrees to forgive the deficiency that remains after the property is sold which as discussed above is the difference between the loan balance and the sale price.  If you’re facing foreclosure, an experienced and aggressive Florida attorney can help you understand the deed in lieu process.  If you’re a Florida homeowner facing foreclosure, the deed in lieu process is one of the many options available which our firm can help you with! 

QUITCLAIM DEED

A quitclaim deed is a legal instrument which is used to transfer interest in real property from one party known as a Grantor to another party known as Grantee. It is often mistakenly referred to as a quick claim deed. A quitclaim deed relieves the Grantor of any liability regarding the ownership of the property. Subsequently, the Grantor of a quitclaim deed is not liable to Grantee, if another party’s claim to the property is later discovered. A quitclaim deed does not guarantee that the Grantor has clear title to the property; It’s simply a relinquishment of any rights a Grantor may have in a property and it is subject to any mortgages and liens on the property.  

BANKRUPTCY

If all else fails and the bank refuses to except any of the above avoidance options, a last resort is to file for bankruptcy.  A bankruptcy, usually under Chapter 13, will allow you to restructure your debt and provide you protection from losing your home.  Bankruptcy allows you to decrease the amounts owed to creditors and extend loan repayment terms.  This restructuring of debts often gives you the ability to continue making mortgage payments.  Bankruptcy is a mechanism used by individuals and businesses alike for a variety of reasons, including and not limited to: dissolution of marriage, business failure, health problems and mortgage distress.  Bankruptcy is often a tactic utilized in foreclosure avoidance negotiations when the bank is unwavering in their stance to provide the homeowner any other foreclosure avoidance tool, however, this option should not be taken lightly and should not be used as a “carrot” unless you are prepared to file for bankruptcy protection; this option and tactic for negotiation should be carefully discussed with legal counsel before it is used.

LANDLORD TENANT LAW

In Florida, landlords are prohibited from certain actions.  Florida law does not allow a landlord to force a tenant out through particular actions, such as: shutting off the utilities or interrupting service of water, heat, light, electricity, gas, elevator, garbage collection, or refrigeration (even if that service is under the control of the landlord or the landlord makes payment); changing the locks or using a device that denies the tenant access; removing the outside doors, locks, roof, walls or windows (except for purposes of maintenance, repair or replacement); and removing the tenant’s personal property from the rented residence.

Tenants are likewise prohibited from certain actions. A tenant may not just withhold rent or terminate the lease because the tenant has a dispute with the landlord; the tenant must first give the landlord an opportunity to remedy the situation. Florida law dictates the manner and procedure the tenant should follow before withholding rent or terminating a lease. Otherwise, if the tenant simply withholds rent or abandons the rented residence, the landlord can file an eviction against the tenant or initiate legal proceedings against the tenant for monetary damages.

Common Landlord duties and responsibilities:

  1. Make sure that the subject property meets all local, county and state codes.
  2. Make sure that the roof, exterior walls, foundations and all other structural components are in good order.
  3. Make sure that all plumbing is functional and in good working conditions.
  4. Make sure that the subject property is otherwise habitable and free of any harmful substances and or dangerous defects.

Common Tenant duties and responsibilities

  1. Comply with all building, housing and health codes.
  2. Keep the dwelling clean and sanitary.
  3. Remove garbage from the dwelling in a clean and sanitary manner.
  4. Keep plumbing fixtures clean, sanitary and in repair.
  5. Not destroy, deface, damage, impair or remove any part of the premises or property belonging to the landlord.
  6. Conduct selves/visitors in a manner that does not unreasonably disturb the tenant’s neighbors or in a manner that does not constitute a breach of the peace.
  7. Operate all electrical, plumbing, sanitary, heating, ventilating, air-conditioning and other facilities in a reasonable manner and maintain the same.

SECURITY DEPOSITS

In disputes involving a security deposit, Florida law dictates the procedures and timelines regarding the return of a security deposit or a landlord’s intent to keep any part or all of a security deposit. After the lease terminates and the tenant moves out, the landlord must return the deposit within 15 days if the landlord does not intend to impose a claim on the security deposit. If the landlord intends to impose a claim on the deposit, the landlord must state in writing by certified mail to the tenant’s last known mailing address within 30 days explaining the claim against the deposit.  If the notice is not sent as required within the 30-day period, the landlord forfeits the right to impose a claim on the deposit.  If the tenant does not object to the landlord’s notice of intention to impose a claim, then the landlord may deduct the claim amount from the security deposit and give the tenant the balance, if any, within 30 days.  If the tenant objects to the landlord’s claim, the tenant should notify the landlord in writing by certified mail that the tenant objects to the landlord’s claim on the security deposit. The tenant may then institute an action in a court to decide the landlord’s right to the security deposit.

EVICTIONS

When a landlord is attempting to evict a tenant, Florida law is very specific as to the steps and procedures that both the landlord and tenant must follow and abide. If the landlord fails to correctly follow the steps and procedures, the eviction may be dismissed by the court. Likewise, if the tenant does not properly follow the procedures and abide by the timelines, the court may find the tenant in default and grant the eviction.

UNLAWFUL DETAINER

Unlike an eviction action, unlawful detainer is a lawsuit filed against a person that you want removed from your property, however, there is no Landlord-Tenant relationship, no agreement to pay rent.  Normally an unlawful detainer action is pursued by parents seeking to remove adult children that refuse to leave after request and after their allowed stay.  An action for unlawful detainer differs from an ejectment action because the individual has no claim to ownership.

EJECTMENT ACTION

Similar to an unlawful detainer action, an ejectment is a lawsuit filed against a person that you want removed from your property, where no Landlord-Tenant relationship and no agreement to pay rent exist.  However, in an unlawful detainer action, the individual the legal owner wants removed via a writ of possession by way of the action claims to have some sort of legal right to the property. 

Landlord/Tenant matters can be complex, it is important to have legal counsel that understands the complexity of the law in these matters, if you require assistance of a well versed and knowledgeable attorney, in any of above matters, contact our offices for a consultation!