LANDLORD ALERT

New Protection for Tenants in Foreclosed Properties

President Obama signed S. 896, P.L. 111-22, on May 20, 2009. this bill includes a nationwide 90 day pre-eviction notice requirement for tenants in foreclosed properties. The provisions of the bill are effective on enactment, May 20, 2009.

Specifically, the new law will require that the immediate successor in interest at foreclosure:

-provide bonafide tenants with 90 days notice prior to the eviction, and

-allow bonafide tenants with leases to occupy the property until the end of the lease term except the lease can be terminated on 90 days notice if the unit is sold to a purchaser who will occupy the property.

A bonafide lease or tenancy is one where the tenant is not the mortgagor or a member of the mortgagor's family. The lease or tenancy is the result of an arms length transaction, and the lease or tenancy requires rent that is not substantially lower than fair market rent or is reduced or subsidized due to a Federal, State, or local subsidy.

For Section 8 tenants, the new law amends Section 8(o) to provide that in the case of an owner who is an immediate successor in interest pursuant to foreclosure during the term of the lease vacating the property prior to sale shall not constitute other good cause, except that the owner may terminate the tenancy effective on the date of transfer of the unit to the owner if the owner: (i) will occupy the unit as a primary residence and (ii) has provided the tenant a notice to vacate at least 90 days before the effective date of such notice. In addition, in the case of any foreclosure on any property in which  recipient of Section 8 assistance resides, the immediate successor in interest in such property pursuant to the foreclosure assumes such interest subject to the lease between the prior owner and the tenant and to the housing assistance payments contract between the prior owner and the public housing agency for the occupied unit.

None of these provision preempt more protective state and local laws and all of these provisions expire at the end of 2012.

Call our office should you have and questions.

FEATURED STATUTE     F.S. 83.53 "ACCESS TO PREMISES"

         Many Landlords make the mistaken presumption that they may enter the tenants premises at any time. This is an inaccurate and potentially costly misunderstanding of the law.

         Florida Statute 83.53 provides the basis upon which the Landlord may obtain access to the premises. The Landlord may enter under any of the following circumstances: 1) with the consent of the tenant; 2) in case of an emergency; 3) when the tenant unreasonably withholds consent; or 4) when the tenant has "abandoned" the premises.

         The Statute provides that the landlord may enter "at any time" to protect and preserve the premises. This primarily applies to emergency situations which fall under either, "water leaks" or "fire". The Landlord may otherwise enter "upon reasonable notice" for the purpose of inspection or repair. The Statute defines "reasonable notice" as, "Notice given at least 12 hours prior to the entry and reasonable time for repair as between the hours of 7:30 a.m. and 8:00 p.m."

         Frequently, even if proper "Notice" is given, a tenant will resist or object to entry by the Landlord. If the purpose is "non-emergency" in nature, the Landlord should not force the entry but after serving the "12-Hour Notice", should then reserve a "7-Day Notice to Cure", followed by a "7-Day Notice to Vacate", should the tenant continue to refuse entry.

         Additionally, it is not advisable to enter a tenants premises without permission and without the tenant being present, as claims may be made as to items claimed to be missing or stolen.

         Please contact our office as to the full text of the Statute and as to any other questions you may have regarding this issue as the facts and circumstances of each situation may differ.

           Here are a few other tips that can save you money and aggravation:

           First, screen your tenants. It is easier to eliminate troublesome tenants before they move in, by checking their criminal history and whether they have been evicted before. (Contact your local County Clerks Office or our offices)

           Second, protect yourself with a large security deposit. When you evict a tenant, even the most rapid case will usually result in a loss of at least a couple of months rent, not to mention probable damage to the unit caused by a disgruntled tenant.

           Third, enforce your community rules and begin your evictions as early as possible. It is amazing how word gets around whether the Landlord is enforcing rules or not. The tenants will conform if you enforce the rules.

           Fourth, in these difficult economic times, be creative with payment plans. Always consult your Attorney to advise you on the effect of applicable law.