December 29, 2015

WHY TO (almost) NEVER USE A QUIT CLAIM DEED

Q: What is a quick-claim deed?

   I have a dispute over land ownership.

 

A: A Quit Claim Deed is way to transfer property with no warranties. 

   Actually, there is no such thing (at least in Florida) as a "quick-claim" deed, and I hate that name. Mostly, I hate that people call the "quit claim deed" a "quick claim" because it implies that these types of deeds are somehow quicker or cheaper to do. They are not. They cost exactly the same to prepare and to record. In fact, they could end up being much more expensive, as I will explain below. You are not alone in your confusion. Many lawyers who do not practice real estate law (and shockingly, some who do) have no idea what the purpose of a quit claim deed is. I will often hear a colleague or read advice from an attorney telling a person to “just do a quit claim”. Most of the time, they couldn’t be more wrong. There are specific legal situations where the answer is to use a Quit claim Deed, but those situations are very limited. I cannot think of any reason to use them in a typical purchase/sale transaction or even a gift of property between family members.

 

   There are, basically, three types of deeds that are commonly used to transfer property between parties: Warranty Deed, Special Warranty Deed, and Quit Claim Deed. The only difference, other than the language, is what is being promised. When a seller gives a Warranty Deed, it is just like getting a warranty on that new iPhone (or in my case, the much-better-than-an-iPhone Samsung Galaxy). The seller is promising that he is legally allowed to sell the property, that there are no problems in the title, and that there are no liens or responsibilities you don’t know (or should know) about. If you later find out there are any problems, you can sue the seller (or make a claim against the policy if you have title insurance). A Special Warranty Deed is what you will almost always get when buying a new home from a developer. It is still a promise...but not as strong. When transferring the property via a Special Warranty Deed, the seller is saying, "I promise that there have been no problems with the title since I purchased it. I'm not making any promises about what happened before I owned it."  Finally, the Quit Claim Deed is the worst of them all. When transferring a property by Quit Claim, the seller is doing just that -- quitting. He is saying, "I'm out. I am not making any promises about any rights I might or might not have in the property, but whatever I have, it is yours." This is basically, the "as is" type of deal on a new car. "Hey! If it breaks down, don't blame me." If there are any problems found with the title, such as your dispute over who actually owns the land, the receiver of a Quit Claim Deed is unprotected. If the seller had no right to transfer the property, then the buyer never received anything. On top of that, because the seller gave a Quit Claim Deed, he never made any promises that he had anything to give, which means the buyer can't sue him based on the deed (there may be other ways to sue depending on the facts of the case, but not based solely on the Quit Claim Deed).

 

   Here is how taking a Quit Claim Deed could cost you a whole lot more than a Warranty Deed or Special Warranty Deed. Let’s say you took a Quit Claim Deed and found out later that the seller did not really own the property. You did not purchase title insurance (we know this because the title company would have required the seller to give you a Warranty / Special Warranty Deed). The real owner sued you for ejectment, and you lost. At this point you have lost all the money that you spent on the property. You can try to sue the seller, but what if he has no money? What if he has left the country and can’t be found? What if it was a company that is now bankrupt? How are you going to get your money back? Now, let’s look at that same situation, but you received a Warranty Deed, instead. Even though you did not purchase title insurance, let’s say that the seller purchased title insurance. You sue the seller based on his failed promises in the deed (breach of the warranty). The seller has no money to pay you, but he can make a claim on his insurance policy. You are now “bootstrapped” onto his title insurance policy and at least partially protected from losing all your investment.

 

   It is easy to see, then, that as a buyer, you should never accept a Quit Claim Deed without an experienced real estate attorney advising you why it is the right deed for that situation. You can demand a Warranty Deed from almost anyone. Typically, the only ones who will refuse to provide a Warranty Deed are big developers/builders, selling new homes. They are the ones with the negotiating power to do that. If you want to purchase from them, you will have to accept a Special Warranty Deed -- which is still a whole lot better than a Quit Claim Deed.

December 26, 2015

WHO HAS TO REPAIR A MOBILE HOME?

Q: Do I have to make any of these repairs to the mobile home?

   I live in Florida in a mobile home community. My fridge is warm, and not running. Two of the stove coils and burners are not working. The exhaust fan above the stove is broken. Basically, deplorable conditions. They won't replace anything. Management says we're responsible for any repairs or fixings that we do. From plumbing to electrical and flooring. He's a slum lord. We had to throw out all our food due to the compressor not working. Is this even legal? Is the tenant responsible for this or is the manager and owner responsible?

 

A: As always, the good legal answer is....it depends.

   Mobile homes are special creatures. First of all, it might make a difference whether you live in a mobile park community, which is governed by Ch. 723 of the Florida statutes, or if you live in a condominium made up of homes that look like mobile homes, which would be governed by Ch. 718. For that matter, it could be a co-op governed by Ch. 719, a deed restricted community governed by Ch. 720, or even a mixture of those. Additionally, mobile homes are not real property even though they are used for residency. They are personal property and are even registered with the D.M.V., like cars.

   The reason for the confusion is that we have to know what exactly you are renting, and who exactly the landlord is. Because you are expecting the management company to repair the mobile home, I am assuming that you do not own it. If you did, you would know that you have to repair your own mobile home. In mobile home parks, the owner may rent just the lot or he might rent the lot and a mobile home. When just the lot is rented, the mobile home is owned by somebody else, not the park owner. Many times this is the mobile home park tenant, but it might not be. For example, if I rent a lot from the park owner, I can put my own mobile home on that lot. I can live there, or I can rent out the mobile home to somebody else. If I rent out the mobile home to someone else, I am the park's tenant and the person living there is my tenant -- not the tenant of the mobile home park. If my tenants have any problems with the mobile home, they have to address them with me, not the park's management company. The management company just represents the park owner. What confuses things even more is that many park owners rent just lots to some people and also rent lots and homes to other people in the same park. In that case, the park owner / landlord is also the mobile home owner / landlord of those mobile homes he owns. There could also be a rental program of owners who pool together and allow the management company or some other company to manage the lease obligations. As you see, mobile homes can get quite perplexing. 

   The first thing you have to do is look at your lease and find out whether the landlord or the tenant is responsible for making the repairs. Then, if the lease says your landlord has to pay for repairs, you need to figure out who your landlord is and address the problems to the landlord. If the landlord is not the park owner, then the management company has nothing to do with it.

December 15, 2015

POST OFFICE LOSES MAIL - DO I LOSE SECURITY DEPOSIT?

Q: Can I get my security deposit back if I didn't object within 15 days?

      My question relates to a security deposit refund in the state of Florida. I know the landlord is required to notify the tenant within 30 days after moving out if the landlord has any claims against the security deposit. My previous landlord claims to have sent me a letter which I did not receive. He sent me a copy of the form that he sent the letter certified mail. I have a letter from the USPS stating that they could not find the letter and to consider it lost. I notified the landlord several times requesting a copy of the letter and my security deposit refund. I moved out September 1st and did not receive a letter until November 16th. He sent me a copy of the letter via email. When I spoke to him he told me he had no obligation to make sure I receive the letter. I was wondering if he can legally have a claim against my security deposit since I did not receive the letter within 30 days. 

 

A: You can get money owed to you regardless of the time "limits" to object.

      You have a couple of issues here. One is regarding “receipt” of the notice, but the more important one is what the whole “notice of intent to impose a claim” and a tenant’s “objection” really mean. In Florida residential tenancies, if a landlord wishes to withhold some or all of the security deposit, he has to send a notice to the tenant saying so within 30 days after the end of the lease. The tenant then has 15 days from “receipt” of that notice to send an objection. Although the statutes uses the word “receipt” there is another statute that, basically, says that it does not matter if you really receive it or not. A letter sent by certified mail will be “deemed” received 5 days after mailing it. The landlord has proof that he mailed it, so it is deemed “received” 5 days after that. You might be able to overcome that presumption with your letter from USPS admitting that they never delivered the certified letter, but in the end, it really doesn't matter much, as you will see below.

 

      Now, what do all these time limits really mean regarding how much money you are owed? Absolutely nothing! This is probably the most confusing part of this statute. Essentially, the only thing this statue has to do with is the question of what is the landlord allowed to do with the security deposit. Does he have to give it all back, or can he keep some of it? IF the landlord follows the statue and sends the notice within 30 days AND you do not object within 15 days, THEN the landlord may withhold the amount he claims. That is the only way. Any other scenario, and the landlord must return 100% of the security deposit, plus any interest earned. Here is the important part – just because the statue allows him to withhold some of the security deposit that does not mean that the landlord is entitled to keep that money. Likewise, just because the landlord is required to refund you 100% of the security deposit that does not mean that you are free and clear from any debt to the landlord. The statute ONLY deals with what to do with the funds…before anyone argues over what is really owed.

 

      Both the landlord and the tenant are free to sue the other party if they think the amount refunded or withheld is incorrect. It is also important to remember that the loser in such a law suit will probably have to pay the attorneys’ fees and costs of the winner, so make your decisions wisely. The lesson for tenants is not to object to legitimate claims just to get back the full security deposit. You should always ask the landlord to prove the damages and costs of repairs if you have any doubt. Many unsophisticated or ill-advised landlords will attempt to improve their property at the expense of the tenant. For example, they will claim that there is a carpet stain in the bedroom and will charge the tenant for replacing the carpet throughout the whole property or for replacing the bedroom carpet with a higher quality carpet, tile, or wood. The lesson here for landlords is not to inflate the claims. The lesson for both parties is to be fair and reasonable and to try to avoid going to court.

December 11, 2015

CONDO ASSOCIATIONS AND EMOTIONAL SUPPORT ANIMALS

Q: Can an HOA enforce a pet headcount violation after 10 years? If so, what if they are "emotional support dogs"?  

      Background: On behalf of a disabled, senior citizen: I purchased a condominium in 2000 and had 1 small dog (>10 pounds) and was within the 1 dog limit at the time. I added a second small dog in 2005 (again >10 pounds) and this has been common knowledge all along. In 2009, the violation issue was raised and discussed that enforcement after these several years was not reasonable and I should be grandfathered in. There are no written records available at this time to substantiate the boards agreement with regard to grandfathering however, no further enforcement action was taken since then until now. After I complained about the ethics and decisions of the board, all of a sudden they are retaliating and demanding that I get rid of one of my dogs or they will begin fining me to place a lien on my property and take my property from me! I am a disabled, senior citizen and my dogs have been designated by my physician as emotional support dogs.

 

A: The short answer is NO. They cannot force you to get rid of your dogs.

      There are several reasons for this. The first reason is that being prescribed emotional support animals by your physician, they are no longer "pets". No "pet" restriction applies to animals designated as emotional support animals. Additionally, by you being in open violation of the covenant for 10 years with no action against you, the Association has likely "waived" any right that it has to enforce that covenant against you. In layman's terms, the Association has just waited too long to complain, so it would not be fair to allow them to complain now.

 

      It should be noted that when you refer to the "HOA," technically, you mean the "COA," Condomium Owners' Association. It is ok to call it an HOA because everyone knows what you mean, but under Florida law, Condo associations have somewhat different rules than Homeowner associations. In particluar, Condo associations, such as yours, are not allowed to place a lien on a home because of fines, regardless of how much the fine is. The most they can do is to sue you for breach of contract (but remember, if you are not in violation, they can't even do that). Additionally, in your case, the Association might have some legal problems of its own going after you. It could possibly be guilty of extortion for its threat of legal action. If it tries to sue you or discriminate in any way because of your emotional support dogs, the Association might be in violation of the Fair Housing Act. Suing you in retaliation for raising questions or complaining about the board of directors is also strictly prohibited by Florida statute. Furthermore, any attorney who attempts to sue you without legal grounds could be sanctioned by the court and force to pay damages to you, including your attorney fees. Provided your dogs are truly emotional support animals, you have a very strong case.  

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