Landlord/Tenant Series: My Landlord Issued A Notice of Non-Renewal of Lease/Wants Me To Sign a Lease/Wants to Raise My Rent?

Another common question comes from tenants who are fighting with their landlords over issues when tenant is a month-to-month tenant (under no written lease); or that tenant is under an expiring lease that the landlord will not renew.  The most common questions from month to month tenants are: 1) My landlord is forcing me to sign a lease; and 2) My landlord wants to raise my rent.

Starting with the easiest issue is when the tenant is under a lease and landlord issues a notice of non-renewal.  You need to check your lease as the lease will generally say how much notice time either landlord or tenant must give in the event that either chooses not to renew the lease.  When tenant is a month to month tenant, the necessary notice may be as short as 15 days, while other situations may require 30 days; however, a rental agreement may not require more than 60 days’ notice from either the tenant or the landlord.  Generally it is 60 days for a 1 year lease.

Once you have verified that you received the proper amount of notice time, your next option is to try to talk to the landlord and work something out.  But if landlord is adamant about not renewing your lease, there is nothing further you can do as landlord has no further obligation to you by law.  If you fail to vacate the property timely, you will likely face an eviction lawsuit and have that on your public record making in much harder to rent in the future as the majority of landlords this day and age do background checks and search for prior evictions.

In regards to a situation where the tenant says that my landlord is “forcing” me to sign a lease as a month-to-month tenant, the same as the above applies.  You can sign the lease or landlord will simply issue a 15 day notice terminating your month-to-month tenancy and if you fail to do so file eviction.  Landlord owns the property and sets the rules of the game, and as a month-to-month tenant oyu have little leverage to interject.

The final situation relates to raising the rental price.  As a month-to-month tenant, each month is a new contract with landlord.  Thus, landlord can raise the rent every month if he/she so chooses.  Only a written lease can lock you into a price.  Again, your options as a tenant are to pay the increased amount or move out; or you may face eviction if you fail to timely vacate based on a 3 day or 15 day notice.

Our office represents landlords and tenants throughout South Florida.  Please contact our office at info@JAKLegal.com or 754-800-LAW0 (5290) for a free case review

Landlord/Tenant Series: What Do I Do If My Landlord Isn’t Making Repairs?

It happens often.  You are a tenant and have something break or get damaged in your rental property.  Who is responsible to fix it should be your first question.  This will require you to look to your lease.   There will be a section of your written lease that outlines the duties of both the landlord and the tenant as to repairs. 

Once you determine landlord is responsible for that specific repair, what do you do if landlord won’t fix it?  This will require a 7 day notice.  Calling, emailing and texting your landlord often results in no response, and is not sufficient to satisfy the law.  Florida law specifically requires written notice.

The Florida Statutes require that the tenant send a properly drafted 7 day Notice to the landlord which permits the landlord 7 days to correct/fix the problem.  If landlord does not after 7 days, then tenant has the option to withhold a portion of the rent equal to the loss of use of that area/item in the rental property, or break the lease and move.

All too often tenants give the landlord improper notice which does not begin the clock ticking for landlord to act.  They then improperly withhold rent or move out and find themselves being evicted in court and the judge telling the tenant “too bad so sad” as tenant did not follow the law.

If you need assistance drafting a 7 day notice, please contact our office at info@JAKLegal.com or 754-800-LAW0 (5290) for a free case review.

2nd DCA Rules Notice of Assignment of Mortgage pre FL Statute 559.715 Is NOT A Defense to Foreclosure

In a rather surprising move, the Second District Court of Appeal (2nd DCA) has ruled (full opinion here) that a bank DOES NOT have to send a borrower written notice prior to filing foreclosure of assignment of their mortgage to another bank.

The basis for this argument lies in FL Statute 559.715 which states in part: “. . . the assignee must give the debtor written notice of such assignment as soon as practical after the assignment is made, but at least 30 days before any action to collect the debt. The assignee is a real party in interest and may bring an action to collect a debt that has been assigned to the assignee and is in default.”
In plain English, when a creditor assigns your debt to another creditor, that new creditor is supposed to mail you notice 30 days before filing a lawsuit to collect that debt. Foreclosure defense lawyers have equated this collecting a debt to foreclosing of a mortgage seeking to collect the money on the loan. They have argued that 559.715 should be a condition precedent, a requirement to be done before filing the foreclosure, or else the foreclosure should be dismissed.
The 2nd DCA recently held that 559.715 was NOT a defense to foreclosure and the bank foreclosing is NOT required to send the borrower a written notice of assignment of the mortgage 30 days before the foreclosure is filed.


The Court reasoned that the intent of the statute was to streamline collections of consumer debts that are often sold to debt collectors; to ensure that only one creditor is collecting any one debt.  In this case the Court found that only 1 bank forecloses in foreclosure and do not assign the debt to debt collectors where there could be multiple parties trying to collect.

The court also found that the standard form mortgage states that the bank can assign the note and mortgage without any prior notice to the borrower, and thus the contract already stated the conditions fully.

The 2nd DCA upheld the judgment against the borrowers in this case and the case will return to the trial court for the auction date to continue.

Another Housing Crisis May Be Coming

Federal National Mortgage Association (“Fannie Mae”) is planning to reboot the lending industry which may produce the same predictable consequences of the prior housing crash when the mortgage agency loaned so much money to people who had not enough income or credit to qualify for a traditional loan.

The Obama administration proposes the HomeReady program, a new mortgage program largely targeting high-risk immigrants. This program would allow a borrower to count the income of the entire household rather than solely the borrower(s). Changing the word “subprime” to “alternative” mortgages is supposed to be more acceptable to the public, but no different in essence. 

Traditionally, one’s mortgage worthiness was supposed to be based on the income of the borrower(s), the person or people named on the loan and deed to the property with a personal investment in the property (or at least their credit). Under this new scheme, the combined income of everyone living in the house will be considered for a conventional home loan backed by Fannie. One may even claim income from people not living in the home, such as the borrower’s parents. 

This is purportedly to target non-traditional family types where multiple generations live in one home, such as Hispanic families, but will likely lead to large numbers of defaults when the expected income is not there to pay the monthly payment; or exaggerated by the “borrower(s).”

Under this latest proposal, no credit? No problem. An immigrant can qualify with a credit score as low as 620; a subprime loan at the end of the day. And the borrower has only to put 3% down. 

What could possibly go wrong lending to people with poor credit scores, make up any income they want, and little money down, right?

ALERT- Do NOT Fall for $ For Your House Ads!!

A new trend is occurring at an alarming rate- “investors” offering you money for your house during foreclosure advertising that you can walk away. They advertise that it will “stop foreclosure.” The promise you to walk away free and clear. They litter sites like Craigslist preying on the uneducated in the legal system.  They typically all have the “$” symbol in the ad title as well.
 
RUN!
 
Recently the Florida 2nd District Court of Appeal (DCA) ruled on a case like this. A homeowner sold their house during a foreclosure, likely to one of these “investor scammers.” The third party purchaser tried to substitute in as the real party in interest in the case or to intervene, saying that the homeowner has sold them the property. The court denied this.
 
The court further did not allow this third party purchaser from participating at trial because they were not a party to the case and entered judgment against the likely unsuspecting homeowner.
 
The third party purchaser appealed the judgment and the bank moved to dismiss the appeal. The 2nd DCA found that the appeal must be dismissed because the third party purchaser was not a party and lacked standing.
 
So end result is there is a money judgment, and potential deficiency judgment, against this homeowner who took a few thousand bucks cash and disappeared. This investor likely leased out the property and recouped much more than he/she paid out to the homeowner during the time the case and appeal ran.
 
These types of arrangements are purely scams, do not fall for them. These investors don’t care about you our your home. Their interests are to pay you as little as possible renting out your property and ending up with a net profit at the end of the day when the bank takes your house away; leaving you on the hook for a possible 5-6 figure deficiency judgment.