Empathy List Archives

FS

Frank, Scott A.

Thu, Jun 10, 2010 2:37 PM

Question for my residential colleagues from this commercial fool.

Grantor owns residential rental real estate with a security deposit and
conveys the property to grantee. However, Grantor freely admits that it
no longer holds the security deposit (spent it) and will not provide for
a credit or other adjustment.

83.49 provides only that the grantor in this situation is released from
liability only to the extent that it conveys the deposit - so they are
not off the hook. But the statute does not reference what limitation,
if any, the grantee has with respect to liability for the deposit. Is
the Grantee then liable for the security deposit to the tenant, if the
grantee did not in fact receive the deposit?

And would your opinion change if this was a deed in lieu, with the
possibility that the grantee may just foreclose anyway?

Your guidance and wisdom is much appreciated.

Thanks.

Scott A Frank
Attorney at Law
ARNSTEIN & LEHR LLP
www.arnstein.com http://www.arnstein.com/

515 North Flagler Drive
Sixth Floor
West Palm Beach, Florida 33401-4323
Phone: 561.833.9800
Fax: 561.655.5551

433 Plaza Real
Suite 275
Boca Raton, Florida 33401-4323
Phone: 561.962.4145
Fax: 561.962.4245
SAFrank@arnstein.com mailto:SAFrank@arnstein.com

Offices in Illinois, Florida, and Wisconsin

This electronic mail transmission may contain confidential or privileged information.
If you believe that you have received this message in error, please notify
the sender by reply transmission and delete the message without copying or disclosing it.

Pursuant to Internal Revenue Service guidance, be advised that any federal tax
advice contained in this written or electronic communication, including any
attachments or enclosures, is not intended or written to be used and it cannot
be used by any person or entity for the purpose of (i) avoiding any tax penalties
that may be imposed by the Internal Revenue Service or any other U.S. Federal
taxing authority or agency or (ii) promoting, marketing or recommending
to another party any transaction or matter addressed herein.

Question for my residential colleagues from this commercial fool. Grantor owns residential rental real estate with a security deposit and conveys the property to grantee. However, Grantor freely admits that it no longer holds the security deposit (spent it) and will not provide for a credit or other adjustment. 83.49 provides only that the grantor in this situation is released from liability only to the extent that it conveys the deposit - so they are not off the hook. But the statute does not reference what limitation, if any, the grantee has with respect to liability for the deposit. Is the Grantee then liable for the security deposit to the tenant, if the grantee did not in fact receive the deposit? And would your opinion change if this was a deed in lieu, with the possibility that the grantee may just foreclose anyway? Your guidance and wisdom is much appreciated. Thanks. Scott A Frank Attorney at Law ARNSTEIN & LEHR LLP www.arnstein.com <http://www.arnstein.com/> 515 North Flagler Drive Sixth Floor West Palm Beach, Florida 33401-4323 Phone: 561.833.9800 Fax: 561.655.5551 433 Plaza Real Suite 275 Boca Raton, Florida 33401-4323 Phone: 561.962.4145 Fax: 561.962.4245 SAFrank@arnstein.com <mailto:SAFrank@arnstein.com> Offices in Illinois, Florida, and Wisconsin This electronic mail transmission may contain confidential or privileged information. If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it. Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

DW

David Weisman

Thu, Jun 10, 2010 3:08 PM

I think that the Grantee is not responsible for money he does not receive, either in cash or via a closing credit. The Tenant must look to the prior owner. No difference if a deed in lieu.

David Weisman
Board Certified Real Estate Lawyer
Greenspoon Marder, P.A.
Trade Center South, Suite 700
100 West Cypress Creek Road
Ft. Lauderdale, FL 33309
Phone 954-491-1120
Toll Free 888-491-1120
Direct Phone 954-343-6941
Direct Fax 954-343-6942

[cid:image001.png@01CB088D.40CB7E40]

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Frank, Scott A.
Sent: Thursday, June 10, 2010 10:37 AM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Question for my residential colleagues

Question for my residential colleagues from this commercial fool.

Grantor owns residential rental real estate with a security deposit and conveys the property to grantee. However, Grantor freely admits that it no longer holds the security deposit (spent it) and will not provide for a credit or other adjustment.

83.49 provides only that the grantor in this situation is released from liability only to the extent that it conveys the deposit - so they are not off the hook. But the statute does not reference what limitation, if any, the grantee has with respect to liability for the deposit. Is the Grantee then liable for the security deposit to the tenant, if the grantee did not in fact receive the deposit?

And would your opinion change if this was a deed in lieu, with the possibility that the grantee may just foreclose anyway?

Your guidance and wisdom is much appreciated.

Thanks.

Scott A Frank
Attorney at Law
ARNSTEIN & LEHR LLP
www.arnstein.com http://www.arnstein.com/

515 North Flagler Drive
Sixth Floor
West Palm Beach, Florida 33401-4323
Phone: 561.833.9800
Fax: 561.655.5551

433 Plaza Real
Suite 275
Boca Raton, Florida 33401-4323
Phone: 561.962.4145
Fax: 561.962.4245
SAFrank@arnstein.com mailto:SAFrank@arnstein.com

Offices in Illinois, Florida, and Wisconsin

This electronic mail transmission may contain confidential or privileged information.

If you believe that you have received this message in error, please notify

the sender by reply transmission and delete the message without copying or disclosing it.

Pursuant to Internal Revenue Service guidance, be advised that any federal tax

advice contained in this written or electronic communication, including any

attachments or enclosures, is not intended or written to be used and it cannot

be used by any person or entity for the purpose of (i) avoiding any tax penalties

that may be imposed by the Internal Revenue Service or any other U.S. Federal

taxing authority or agency or (ii) promoting, marketing or recommending

to another party any transaction or matter addressed herein.

The information contained in this transmission may be attorney/client privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have
received this communication in error, please notify us immediately by reply e-mail.

Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it
cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

I think that the Grantee is not responsible for money he does not receive, either in cash or via a closing credit. The Tenant must look to the prior owner. No difference if a deed in lieu. David Weisman Board Certified Real Estate Lawyer Greenspoon Marder, P.A. Trade Center South, Suite 700 100 West Cypress Creek Road Ft. Lauderdale, FL 33309 Phone 954-491-1120 Toll Free 888-491-1120 Direct Phone 954-343-6941 Direct Fax 954-343-6942 [cid:image001.png@01CB088D.40CB7E40] From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Frank, Scott A. Sent: Thursday, June 10, 2010 10:37 AM To: RPPTL Landlord Tenant Committee Subject: [RPPTL LandTen] Question for my residential colleagues Question for my residential colleagues from this commercial fool. Grantor owns residential rental real estate with a security deposit and conveys the property to grantee. However, Grantor freely admits that it no longer holds the security deposit (spent it) and will not provide for a credit or other adjustment. 83.49 provides only that the grantor in this situation is released from liability only to the extent that it conveys the deposit - so they are not off the hook. But the statute does not reference what limitation, if any, the grantee has with respect to liability for the deposit. Is the Grantee then liable for the security deposit to the tenant, if the grantee did not in fact receive the deposit? And would your opinion change if this was a deed in lieu, with the possibility that the grantee may just foreclose anyway? Your guidance and wisdom is much appreciated. Thanks. Scott A Frank Attorney at Law ARNSTEIN & LEHR LLP www.arnstein.com<http://www.arnstein.com/> 515 North Flagler Drive Sixth Floor West Palm Beach, Florida 33401-4323 Phone: 561.833.9800 Fax: 561.655.5551 433 Plaza Real Suite 275 Boca Raton, Florida 33401-4323 Phone: 561.962.4145 Fax: 561.962.4245 SAFrank@arnstein.com<mailto:SAFrank@arnstein.com> Offices in Illinois, Florida, and Wisconsin This electronic mail transmission may contain confidential or privileged information. If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it. Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. The information contained in this transmission may be attorney/client privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by reply e-mail. Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

CS

Cary Sabol

Thu, Jun 10, 2010 3:11 PM

I would agree with this analysis. Of course, under normal circumstances, the deposits would be dealt with at closing, but I do not know of any case law, statutes, or otherwise that automatically places the burden of returning the deposit on the grantee if he/she/it never received it. I also agree that a deed in lieu should not change that conclusion because a deed in lieu is actually considered to be a transfer for value.

Cary P. Sabol, Esq.
P.O. Box 15981
West Palm Beach, Florida 33416
Phone: (561) 281-2744
Fax: (561) 697-4805

Confidentiality Notice: This email transmission and any attachments are confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or use of the information contained herein is STRICTLY PROHIBITED.

--- On Thu, 6/10/10, David Weisman David.Weisman@gmlaw.com wrote:

From: David Weisman David.Weisman@gmlaw.com
Subject: Re: [RPPTL LandTen] Question for my residential colleagues
To: "RPPTL Landlord Tenant Committee" landten@lists.flabarrpptl.org
Date: Thursday, June 10, 2010, 11:08 AM

I think that the Grantee is not responsible for money he does not receive, either in cash or via a closing credit. The Tenant must look to the prior owner. No difference if a deed in lieu.

David Weisman
Board Certified Real Estate Lawyer
Greenspoon Marder, P.A.
Trade Center South, Suite 700
100 West Cypress Creek Road
Ft. Lauderdale, FL 33309
Phone 954-491-1120
Toll Free 888-491-1120
Direct Phone 954-343-6941
Direct Fax 954-343-6942

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Frank, Scott A.
Sent: Thursday, June 10, 2010 10:37 AM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Question for my residential colleagues

Question for my residential colleagues from this commercial fool.

Grantor owns residential rental real estate with a security deposit and conveys the property to grantee. However, Grantor freely admits that it no longer holds the security deposit (spent it) and will not provide for a credit or other adjustment.

83.49 provides only that the grantor in this situation is released from liability only to the extent that it conveys the deposit - so they are not off the hook. But the statute does not reference what limitation, if any, the grantee has with respect to liability for the deposit. Is the Grantee then liable for the security deposit to the tenant, if the grantee did not in fact receive the deposit?

And would your opinion change if this was a deed in lieu, with the possibility that the grantee may just foreclose anyway?

Your guidance and wisdom is much appreciated.

Thanks.

Scott A Frank
Attorney at Law
ARNSTEIN & LEHR LLP

www.arnstein.com

515 North Flagler Drive

Sixth Floor

West Palm Beach, Florida 33401-4323

Phone: 561.833.9800

Fax: 561.655.5551

433 Plaza Real
Suite 275
Boca Raton, Florida 33401-4323
Phone: 561.962.4145
Fax: 561.962.4245
SAFrank@arnstein.com

Offices in Illinois, Florida, and Wisconsin

This electronic mail transmission may contain confidential or privileged information. If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it. Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. The information contained in this transmission may be attorney/client privileged and confidential. It is intended only for the use of the individual or entity named above. If the
reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have
received this communication in error, please notify us immediately by reply e-mail.

Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it
cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

-----Inline Attachment Follows-----

landten mailing list
landten@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/landten

I would agree with this analysis. Of course, under normal circumstances, the deposits would be dealt with at closing, but I do not know of any case law, statutes, or otherwise that automatically places the burden of returning the deposit on the grantee if he/she/it never received it. I also agree that a deed in lieu should not change that conclusion because a deed in lieu is actually considered to be a transfer for value. Cary P. Sabol, Esq. P.O. Box 15981 West Palm Beach, Florida 33416 Phone: (561) 281-2744 Fax: (561) 697-4805 Confidentiality Notice: This email transmission and any attachments are confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or use of the information contained herein is STRICTLY PROHIBITED. --- On Thu, 6/10/10, David Weisman <David.Weisman@gmlaw.com> wrote: From: David Weisman <David.Weisman@gmlaw.com> Subject: Re: [RPPTL LandTen] Question for my residential colleagues To: "RPPTL Landlord Tenant Committee" <landten@lists.flabarrpptl.org> Date: Thursday, June 10, 2010, 11:08 AM I think that the Grantee is not responsible for money he does not receive, either in cash or via a closing credit. The Tenant must look to the prior owner. No difference if a deed in lieu. David Weisman Board Certified Real Estate Lawyer Greenspoon Marder, P.A. Trade Center South, Suite 700 100 West Cypress Creek Road Ft. Lauderdale, FL 33309 Phone 954-491-1120 Toll Free 888-491-1120 Direct Phone 954-343-6941 Direct Fax 954-343-6942 From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Frank, Scott A. Sent: Thursday, June 10, 2010 10:37 AM To: RPPTL Landlord Tenant Committee Subject: [RPPTL LandTen] Question for my residential colleagues Question for my residential colleagues from this commercial fool. Grantor owns residential rental real estate with a security deposit and conveys the property to grantee. However, Grantor freely admits that it no longer holds the security deposit (spent it) and will not provide for a credit or other adjustment. 83.49 provides only that the grantor in this situation is released from liability only to the extent that it conveys the deposit - so they are not off the hook. But the statute does not reference what limitation, if any, the grantee has with respect to liability for the deposit. Is the Grantee then liable for the security deposit to the tenant, if the grantee did not in fact receive the deposit? And would your opinion change if this was a deed in lieu, with the possibility that the grantee may just foreclose anyway? Your guidance and wisdom is much appreciated. Thanks. Scott A Frank Attorney at Law ARNSTEIN & LEHR LLP www.arnstein.com 515 North Flagler Drive Sixth Floor West Palm Beach, Florida 33401-4323 Phone: 561.833.9800 Fax: 561.655.5551 433 Plaza Real Suite 275 Boca Raton, Florida 33401-4323 Phone: 561.962.4145 Fax: 561.962.4245 SAFrank@arnstein.com Offices in Illinois, Florida, and Wisconsin This electronic mail transmission may contain confidential or privileged information. If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it. Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. The information contained in this transmission may be attorney/client privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by reply e-mail. Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. -----Inline Attachment Follows----- _______________________________________________ landten mailing list landten@lists.flabarrpptl.org http://mailman.fsr.com/mailman/listinfo/landten

HG

Haney, Gregory

Thu, Jun 10, 2010 3:20 PM

Likewise agreed. I've not seen (or looked for) Florida case law on this
issue, but for what it's worth, I have seen this argument made by able
counsel (though in a commercial context). For what it's worth, that
attorney cited Mullendore Theatres, Inc. v. Growth Realty Investors Co.,
39 Wash. App. 64 for the proposition that lease security deposit
obligations do not run with the land. I assume they were unable to find
Florida case law on point and had to go all the way to the other corner
of the country.

And I definitely agree that a DIL situation has no effect on this
analysis.

Gregory R. Haney
Attorney at Law
Shumaker, Loop & Kendrick, LLP
Bank of America Plaza
101 East Kennedy Boulevard
Suite 2800
Tampa, FL 33602
813.229.7600
813.227.2277 direct
813.229.1660 fax
ghaney@slk-law.com
http://www.slk-law.com/

IRS Circular 230 Notice: We are required to advise you no person or entity may use any tax advice in this communication or any attachment to (i) avoid any penalty under federal tax law or (ii) promote, market or recommend any purchase, investment or other action.

Confidentiality Statement: This electronic message contains information from the law firm of Shumaker, Loop & Kendrick, LLP, and may be confidential or privileged. The information is intended to be for the use of the individual or entity named above. If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of the contents of this message is prohibited. If you have received this electronic message in error, please notify the sender immediately by reply e-mail or telephone 800.444.6659.

From: landten-bounces@lists.flabarrpptl.org

[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Thursday, June 10, 2010 11:12 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Question for my residential
colleagues

I would agree with this analysis. Of course, under normal
circumstances, the deposits would be dealt with at closing, but I do not
know of any case law, statutes, or otherwise that automatically places
the burden of returning the deposit on the grantee if he/she/it never
received it. I also agree that a deed in lieu should not change that
conclusion because a deed in lieu is actually considered to be a
transfer for value.

Cary P. Sabol, Esq.
P.O. Box 15981
West Palm Beach, Florida 33416
Phone: (561) 281-2744
Fax: (561) 697-4805

Confidentiality Notice: This email transmission and any attachments are
confidential and may be legally privileged. If you are not the intended
recipient, you are hereby notified that any disclosure, copying,
distribution, or use of the information contained herein is STRICTLY
PROHIBITED.

--- On Thu, 6/10/10, David Weisman David.Weisman@gmlaw.com wrote:

From: David Weisman <David.Weisman@gmlaw.com>
Subject: Re: [RPPTL LandTen] Question for my residential

colleagues
To: "RPPTL Landlord Tenant Committee"
landten@lists.flabarrpptl.org
Date: Thursday, June 10, 2010, 11:08 AM

I think that the Grantee is not responsible for money he does

not receive, either in cash or via a closing credit. The Tenant must
look to the prior owner. No difference if a deed in lieu.

David  Weisman

Board Certified Real Estate Lawyer 

Greenspoon Marder, P.A. 

Trade Center South, Suite 700 

100 West Cypress Creek Road 

Ft. Lauderdale, FL 33309 

Phone 954-491-1120 

Toll Free 888-491-1120 

Direct Phone 954-343-6941 

Direct Fax 954-343-6942 



  



From: landten-bounces@lists.flabarrpptl.org

[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Frank, Scott
A.
Sent: Thursday, June 10, 2010 10:37 AM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Question for my residential colleagues

Question for my residential colleagues from this commercial

fool.

Grantor owns residential rental real estate with a security

deposit and conveys the property to grantee. However, Grantor freely
admits that it no longer holds the security deposit (spent it) and will
not provide for a credit or other adjustment.

83.49 provides only that the grantor in this situation is

released from liability only to the extent that it conveys the deposit -
so they are not off the hook. But the statute does not reference what
limitation, if any, the grantee has with respect to liability for the
deposit. Is the Grantee then liable for the security deposit to the
tenant, if the grantee did not in fact receive the deposit?

And would your opinion change if this was a deed in lieu, with

the possibility that the grantee may just foreclose anyway?

Your guidance and wisdom is much appreciated.

 

Thanks.

 

Scott A Frank
Attorney at Law
ARNSTEIN & LEHR LLP 

www.arnstein.com <http://www.arnstein.com/> 

 

515 North Flagler Drive 

Sixth Floor 

West Palm Beach, Florida 33401-4323

Phone: 561.833.9800 

Fax: 561.655.5551

433 Plaza Real
Suite 275
Boca Raton, Florida 33401-4323 
Phone: 561.962.4145
Fax: 561.962.4245 
SAFrank@arnstein.com

http://us.mc578.mail.yahoo.com/mc/compose?to=SAFrank@arnstein.com

Offices in Illinois, Florida, and Wisconsin 

 

This electronic mail transmission may contain confidential or

privileged information.
If you believe that you have received this message in error,
please notify
the sender by reply transmission and delete the message without
copying or disclosing it.

Pursuant to Internal Revenue Service guidance, be advised that

any federal tax
advice contained in this written or electronic communication,
including any
attachments or enclosures, is not intended or written to be used
and it cannot
be used by any person or entity for the purpose of (i) avoiding
any tax penalties
that may be imposed by the Internal Revenue Service or any other
U.S. Federal
taxing authority or agency or (ii) promoting, marketing or
recommending
to another party any transaction or matter addressed herein.

The information contained in this transmission may be

attorney/client privileged and confidential. It is intended only for the
use of the individual or entity named above. If the reader of this
message is not the intended recipient, you are hereby notified that any
dissemination, distribution or copying of this communication is strictly
prohibited. If you have
received this communication in error, please notify us
immediately by reply e-mail.

Pursuant to Internal Revenue Service guidance, be advised that

any federal tax advice contained in this written or electronic
communication, including any attachments or enclosures, is not intended
or written to be used and it
cannot be used by any person or entity for the purpose of (i)
avoiding any tax penalties that may be imposed by the Internal Revenue
Service or any other U.S. Federal taxing authority or agency or (ii)
promoting, marketing or recommending to another party any transaction or
matter addressed herein.

-----Inline Attachment Follows-----


_______________________________________________
landten mailing list
landten@lists.flabarrpptl.org

<http://us.mc578.mail.yahoo.com/mc/compose?to=landten@lists.flabarrpptl.
org>
http://mailman.fsr.com/mailman/listinfo/landten

Likewise agreed. I've not seen (or looked for) Florida case law on this issue, but for what it's worth, I have seen this argument made by able counsel (though in a commercial context). For what it's worth, that attorney cited Mullendore Theatres, Inc. v. Growth Realty Investors Co., 39 Wash. App. 64 for the proposition that lease security deposit obligations do not run with the land. I assume they were unable to find Florida case law on point and had to go all the way to the other corner of the country. And I definitely agree that a DIL situation has no effect on this analysis. Gregory R. Haney Attorney at Law Shumaker, Loop & Kendrick, LLP Bank of America Plaza 101 East Kennedy Boulevard Suite 2800 Tampa, FL 33602 813.229.7600 813.227.2277 direct 813.229.1660 fax ghaney@slk-law.com http://www.slk-law.com/ -------------------------------------------------------------------------- IRS Circular 230 Notice: We are required to advise you no person or entity may use any tax advice in this communication or any attachment to (i) avoid any penalty under federal tax law or (ii) promote, market or recommend any purchase, investment or other action. Confidentiality Statement: This electronic message contains information from the law firm of Shumaker, Loop & Kendrick, LLP, and may be confidential or privileged. The information is intended to be for the use of the individual or entity named above. If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of the contents of this message is prohibited. If you have received this electronic message in error, please notify the sender immediately by reply e-mail or telephone 800.444.6659. ________________________________ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol Sent: Thursday, June 10, 2010 11:12 AM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Question for my residential colleagues I would agree with this analysis. Of course, under normal circumstances, the deposits would be dealt with at closing, but I do not know of any case law, statutes, or otherwise that automatically places the burden of returning the deposit on the grantee if he/she/it never received it. I also agree that a deed in lieu should not change that conclusion because a deed in lieu is actually considered to be a transfer for value. Cary P. Sabol, Esq. P.O. Box 15981 West Palm Beach, Florida 33416 Phone: (561) 281-2744 Fax: (561) 697-4805 Confidentiality Notice: This email transmission and any attachments are confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or use of the information contained herein is STRICTLY PROHIBITED. --- On Thu, 6/10/10, David Weisman <David.Weisman@gmlaw.com> wrote: From: David Weisman <David.Weisman@gmlaw.com> Subject: Re: [RPPTL LandTen] Question for my residential colleagues To: "RPPTL Landlord Tenant Committee" <landten@lists.flabarrpptl.org> Date: Thursday, June 10, 2010, 11:08 AM I think that the Grantee is not responsible for money he does not receive, either in cash or via a closing credit. The Tenant must look to the prior owner. No difference if a deed in lieu. David Weisman Board Certified Real Estate Lawyer Greenspoon Marder, P.A. Trade Center South, Suite 700 100 West Cypress Creek Road Ft. Lauderdale, FL 33309 Phone 954-491-1120 Toll Free 888-491-1120 Direct Phone 954-343-6941 Direct Fax 954-343-6942 From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Frank, Scott A. Sent: Thursday, June 10, 2010 10:37 AM To: RPPTL Landlord Tenant Committee Subject: [RPPTL LandTen] Question for my residential colleagues Question for my residential colleagues from this commercial fool. Grantor owns residential rental real estate with a security deposit and conveys the property to grantee. However, Grantor freely admits that it no longer holds the security deposit (spent it) and will not provide for a credit or other adjustment. 83.49 provides only that the grantor in this situation is released from liability only to the extent that it conveys the deposit - so they are not off the hook. But the statute does not reference what limitation, if any, the grantee has with respect to liability for the deposit. Is the Grantee then liable for the security deposit to the tenant, if the grantee did not in fact receive the deposit? And would your opinion change if this was a deed in lieu, with the possibility that the grantee may just foreclose anyway? Your guidance and wisdom is much appreciated. Thanks. Scott A Frank Attorney at Law ARNSTEIN & LEHR LLP www.arnstein.com <http://www.arnstein.com/> 515 North Flagler Drive Sixth Floor West Palm Beach, Florida 33401-4323 Phone: 561.833.9800 Fax: 561.655.5551 433 Plaza Real Suite 275 Boca Raton, Florida 33401-4323 Phone: 561.962.4145 Fax: 561.962.4245 SAFrank@arnstein.com <http://us.mc578.mail.yahoo.com/mc/compose?to=SAFrank@arnstein.com> Offices in Illinois, Florida, and Wisconsin This electronic mail transmission may contain confidential or privileged information. If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it. Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. The information contained in this transmission may be attorney/client privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by reply e-mail. Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. -----Inline Attachment Follows----- _______________________________________________ landten mailing list landten@lists.flabarrpptl.org <http://us.mc578.mail.yahoo.com/mc/compose?to=landten@lists.flabarrpptl. org> http://mailman.fsr.com/mailman/listinfo/landten

DD

Drobner, David S.

Thu, Jun 10, 2010 3:22 PM

Why wouldn't the grantee be liable to fully perform under the Lease
contract he assumed, including return of moneys (deposit) at end of
term? He maybe then has a claim against the grantor for his loss in this
regard unless the conveyance included releases? How can the grantee be
relieved of a contract obligation of performance?

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of David
Weisman
Sent: Thursday, June 10, 2010 11:09 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Question for my residential colleagues

I think that the Grantee is not responsible for money he does not
receive, either in cash or via a closing credit. The Tenant must look to
the prior owner. No difference if a deed in lieu.

David Weisman

Board Certified Real Estate Lawyer

Greenspoon Marder, P.A.

Trade Center South, Suite 700

100 West Cypress Creek Road

Ft. Lauderdale, FL 33309

Phone 954-491-1120

Toll Free 888-491-1120

Direct Phone 954-343-6941

Direct Fax 954-343-6942

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Frank, Scott
A.
Sent: Thursday, June 10, 2010 10:37 AM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Question for my residential colleagues

Question for my residential colleagues from this commercial fool.

Grantor owns residential rental real estate with a security deposit and
conveys the property to grantee. However, Grantor freely admits that it
no longer holds the security deposit (spent it) and will not provide for
a credit or other adjustment.

83.49 provides only that the grantor in this situation is released from
liability only to the extent that it conveys the deposit - so they are
not off the hook. But the statute does not reference what limitation,
if any, the grantee has with respect to liability for the deposit. Is
the Grantee then liable for the security deposit to the tenant, if the
grantee did not in fact receive the deposit?

And would your opinion change if this was a deed in lieu, with the
possibility that the grantee may just foreclose anyway?

Your guidance and wisdom is much appreciated.

Thanks.

Scott A Frank
Attorney at Law
ARNSTEIN & LEHR LLP

www.arnstein.com http://www.arnstein.com/

515 North Flagler Drive

Sixth Floor

West Palm Beach, Florida 33401-4323

Phone: 561.833.9800

Fax: 561.655.5551

433 Plaza Real
Suite 275
Boca Raton, Florida 33401-4323
Phone: 561.962.4145
Fax: 561.962.4245
SAFrank@arnstein.com mailto:SAFrank@arnstein.com

Offices in Illinois, Florida, and Wisconsin

This electronic mail transmission may contain confidential or privileged
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the sender by reply transmission and delete the message without copying
or disclosing it.

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any
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be used by any person or entity for the purpose of (i) avoiding any tax
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Pursuant to Internal Revenue Service guidance, be advised that any
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communication, including any attachments or enclosures, is not intended
or written to be used and it
cannot be used by any person or entity for the purpose of (i) avoiding
any tax penalties that may be imposed by the Internal Revenue Service or
any other U.S. Federal taxing authority or agency or (ii) promoting,
marketing or recommending to another party any transaction or matter
addressed herein.

Why wouldn't the grantee be liable to fully perform under the Lease contract he assumed, including return of moneys (deposit) at end of term? He maybe then has a claim against the grantor for his loss in this regard unless the conveyance included releases? How can the grantee be relieved of a contract obligation of performance? ________________________________ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of David Weisman Sent: Thursday, June 10, 2010 11:09 AM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Question for my residential colleagues I think that the Grantee is not responsible for money he does not receive, either in cash or via a closing credit. The Tenant must look to the prior owner. No difference if a deed in lieu. David Weisman Board Certified Real Estate Lawyer Greenspoon Marder, P.A. Trade Center South, Suite 700 100 West Cypress Creek Road Ft. Lauderdale, FL 33309 Phone 954-491-1120 Toll Free 888-491-1120 Direct Phone 954-343-6941 Direct Fax 954-343-6942 From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Frank, Scott A. Sent: Thursday, June 10, 2010 10:37 AM To: RPPTL Landlord Tenant Committee Subject: [RPPTL LandTen] Question for my residential colleagues Question for my residential colleagues from this commercial fool. Grantor owns residential rental real estate with a security deposit and conveys the property to grantee. However, Grantor freely admits that it no longer holds the security deposit (spent it) and will not provide for a credit or other adjustment. 83.49 provides only that the grantor in this situation is released from liability only to the extent that it conveys the deposit - so they are not off the hook. But the statute does not reference what limitation, if any, the grantee has with respect to liability for the deposit. Is the Grantee then liable for the security deposit to the tenant, if the grantee did not in fact receive the deposit? And would your opinion change if this was a deed in lieu, with the possibility that the grantee may just foreclose anyway? Your guidance and wisdom is much appreciated. Thanks. Scott A Frank Attorney at Law ARNSTEIN & LEHR LLP www.arnstein.com <http://www.arnstein.com/> 515 North Flagler Drive Sixth Floor West Palm Beach, Florida 33401-4323 Phone: 561.833.9800 Fax: 561.655.5551 433 Plaza Real Suite 275 Boca Raton, Florida 33401-4323 Phone: 561.962.4145 Fax: 561.962.4245 SAFrank@arnstein.com <mailto:SAFrank@arnstein.com> Offices in Illinois, Florida, and Wisconsin This electronic mail transmission may contain confidential or privileged information. If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it. Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. The information contained in this transmission may be attorney/client privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by reply e-mail. Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

DW

David Weisman

Thu, Jun 10, 2010 3:30 PM

The contract only requires him to return what he has. If he never received it he does not have it.

David Weisman
Board Certified Real Estate Lawyer
Greenspoon Marder, P.A.
Trade Center South, Suite 700
100 West Cypress Creek Road
Ft. Lauderdale, FL 33309
Phone 954-491-1120
Toll Free 888-491-1120
Direct Phone 954-343-6941
Direct Fax 954-343-6942

[cid:image001.png@01CB0890.43B0E390]

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Drobner, David S.
Sent: Thursday, June 10, 2010 11:23 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Question for my residential colleagues

Why wouldn't the grantee be liable to fully perform under the Lease contract he assumed, including return of moneys (deposit) at end of term? He maybe then has a claim against the grantor for his loss in this regard unless the conveyance included releases? How can the grantee be relieved of a contract obligation of performance?

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of David Weisman
Sent: Thursday, June 10, 2010 11:09 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Question for my residential colleagues
I think that the Grantee is not responsible for money he does not receive, either in cash or via a closing credit. The Tenant must look to the prior owner. No difference if a deed in lieu.