While the concept is not bad in principle, how can a lessor be held to know what the Lender intends to do? The language should simply require a disclosure of whether there is a pending foreclosure or short sale or whether the lessor has received a notice of default from the lender.

What is next, an affidavit of intention to abscond with the rent?

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

Dear Committee Members:

Please see the attached proposed legislation and provide any comments
that you may have.

From: Fields, Alan B [mailto:abfields@firstam.com] 
Sent: Monday, January 05, 2009 10:32 PM
To: BrutonB@gtlaw.com; Michael J. Gelfand; Arthur J. Menor; Neil

B. Shoter
Cc: jbn@floridalandlaw.com; Meyer, George J.
Subject: SB 454

Didn't know if you had seen this bill by Fasano yet requiring

notice of foreclosures and shortsales be given to lessees.

Alan

 

 

Alan B. Fields

Florida State Counsel

First American Title Insurance Company

7360 Bryan Dairy Road, Suite 200

Largo, FL  33777

727-549-3243

877-798-7058

Cell:  727-773-6664

Fax  727-549-3481

abfields@firstam.com 

 

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Two more thoughts:

Should this apply anew to a renewal?

Who gets the "civil penalty?"

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

Dear Committee Members:

Please see the attached proposed legislation and provide any comments
that you may have.

From: Fields, Alan B [mailto:abfields@firstam.com] 
Sent: Monday, January 05, 2009 10:32 PM
To: BrutonB@gtlaw.com; Michael J. Gelfand; Arthur J. Menor; Neil

B. Shoter
Cc: jbn@floridalandlaw.com; Meyer, George J.
Subject: SB 454

Didn't know if you had seen this bill by Fasano yet requiring

notice of foreclosures and shortsales be given to lessees.

Alan

 

 

Alan B. Fields

Florida State Counsel

First American Title Insurance Company

7360 Bryan Dairy Road, Suite 200

Largo, FL  33777

727-549-3243

877-798-7058

Cell:  727-773-6664

Fax  727-549-3481

abfields@firstam.com 

 

CONFIDENTIALITY: Unless expressly stated otherwise, this message

is confidential and may be privileged.  It is intended for the
addressee(s) only.  Access to this e-mail by anyone else is
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Thank you. 

FACLD

IRS CIRCULAR 230 NOTICE:  Pursuant to recently enacted
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of course, there shouldn't be a civil penalty merely for failing to
report a pending foreclosure if there is no eventual foreclosure or
damage to the tenant.

Neil B. Shoter
Partner

Shutts & Bowen LLP
1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL
33401
Direct: (561) 650-8535 | Fax: (561) 822-5525
E-Mail | Biography | V-Card | Website

Please note our new office address above

-----Original Message-----
From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of David
Weisman
Sent: Wednesday, January 07, 2009 12:05 PM
To: RPPTL Landlord Tenant Committee; Arthur J. Menor
Subject: Re: [RPPTL LandTen] FW: SB 454

Two more thoughts:

Should this apply anew to a renewal?

Who gets the "civil penalty?"

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

Dear Committee Members:

Please see the attached proposed legislation and provide any comments
that you may have.

From: Fields, Alan B [mailto:abfields@firstam.com] 
Sent: Monday, January 05, 2009 10:32 PM
To: BrutonB@gtlaw.com; Michael J. Gelfand; Arthur J. Menor; Neil

B. Shoter
Cc: jbn@floridalandlaw.com; Meyer, George J.
Subject: SB 454

Didn't know if you had seen this bill by Fasano yet requiring

notice of foreclosures and shortsales be given to lessees.

Alan

 

 

Alan B. Fields

Florida State Counsel

First American Title Insurance Company

7360 Bryan Dairy Road, Suite 200

Largo, FL  33777

727-549-3243

877-798-7058

Cell:  727-773-6664

Fax  727-549-3481

abfields@firstam.com 

 

CONFIDENTIALITY: Unless expressly stated otherwise, this message

is confidential and may be privileged.  It is intended for the
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Internal Revenue Service regulations require that certain types

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expressly stated otherwise the advice is not intended or written to be
used, and it cannot be used by the recipient or any other taxpayer, for
the purpose of avoiding Federal tax penalties, and was not written to
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discussed herein.

This message may contain confidential or proprietary information

intended only for the use of the
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Thank you. 

FACLD

IRS CIRCULAR 230 NOTICE:  Pursuant to recently enacted
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I think that there definitely needs to be notice given to tenants by the landlord(although details need not be given) that there is pending a foreclosure action/short sale. This will relieve the landlord perhaps of future law suits and massive damage awards. I know I sent several cases to the listserve on how landlords have been made to pay $10,000 plus in damages.

In most cases though now, what is happening is that the Fin.Co/Bank is serving papers at the location where the rental property is and not where landlord is and tenant "gets the shock" and holds these papers hostage in order to bargain for not paying rent or very little rent. Small landlords are the worst hit. Therefore, in the long run it is best that the landlord give notice to the tenant in a general format and avoid the calamity. If the tenant wants to vacate this is a cost to the landlord, but I am sure in the long run, it is better to have a tenant who is willing to take the risk and wait and honor the lease than a tenant who does not and will use every loop hole to harass the landlord.

I also think a civil penalty is appropriate in this case to give some beef to the requirement of disclosure. There have been many, many unscrupuolous landlords around who have actually taken the rent, even though financially able, not paid the mortgage and then the tenants have been forced out without any warning whatsoever. However, the penalty should be reasonable and only if the landlord does not give the notice required in a timely manner.
Roshani M. Gunewardene
Attorney

Windows LiveTM Hotmail®: Chat. Store. Share. Do more with mail.
http://windowslive.com/howitworks?ocid=TXT_TAGLM_WL_t1_hm_justgotbetter_howitworks_012009

Unfortunately, in my humble opinion, we get another example of
legislation that sounds great - and makes those voting feel good about
doing their part for the "little guy" - but comes far short in
addressing any real problems.

As to this legislation, I agree that it is a good idea to require notice
from the landlord if a foreclosure action has been initiated.  But a
representation by the landlord that "to the best of his or her knowledge
and belief, the mortgage lender does not intend to initiate foreclosure
proceedings in the next 12 months"?  Let's just start racking up the
legal fees now, because the only people that will truly benefit from
that provision is us landlord/tenant attorneys.

In this market, many banks who don't want to take back any more
properties have waited 2, 3, 4 months or even more of deficiencies
before filing proceedings.  So if a landlord is 2 months behind, does he
have a reasonable belief that the lender will initiate foreclosure
proceedings in the next 12 months?  What if the landlord has every
intention of coming current in the next couple of months (but doesn't?
If the banks don't know, how can the landlord?  And what is the standard
of reasonableness?  (Okay, now I'm rambling, you get my point).

But all that being said, let us also realize that this statute addresses
one moment in time only - the date of the signing of the lease.  What
happens if foreclosure proceedings are commenced 3 months into a
12-month lease?  Under the proposal, that tenant is out of luck (other
than trying to allege knowledge on the part of the landlord).  Yes, some
of the notices from lenders may be served at the premises, which will
give those tenants the knowledge they need, but such notice is in no way
required.

Next potential problem is the penalty.  Yes, $10,000 seems steep, but
what of rental properties (more likely in the 3-4 unit and up variety)
that are owned by LLCs. S Corps or the like?  Is the threat of a $10,000
civil penalty going to intimidate the principal of such an entity that
is already facing foreclosure (and most likely subsequent bankruptcy)?
I think not.  However, the only alternatives may be to either
statutorily create principal liability, as in payroll taxes and the
like. or to create criminal (misdemeanor) penalties - and I'm not so
sure I want to head down either of those paths.

So the shorthand version of my opinion is that the statute - if you take
out the "best of knowledge" portion - is not bad, and may even help a
few tenants.  But I believe that it will address only a very small
minority of the problem leases, and even with many of those will not
have enough bite to back up its bark.

Thus ends my $0.02.  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

2424 North Federal Highway
Suite 462
Boca Raton, Florida 33431-7735
Phone: 561.322.6900
Fax: 561.322.6940
SAFrank@arnstein.com mailto:SAFrank@arnstein.com

Offices in Illinois, Florida, and Wisconsin

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of roshani
gunewardene
Sent: Wednesday, January 07, 2009 2:11 PM
To: landten@lists.flabarrpptl.org
Subject: Re: [RPPTL LandTen] FW: SB 454 1/7/09

I think that there definitely needs to be notice given to tenants by the
landlord(although details need not be given) that there is pending a
foreclosure action/short sale. This will relieve the landlord perhaps of
future law suits and massive damage awards. I know I sent several cases
to the listserve on how landlords have been made to pay $10,000 plus in
damages.

In most cases though now, what is happening is that the Fin.Co/Bank is
serving papers at the location where the rental property is and not
where landlord is and tenant "gets the shock" and holds these papers
hostage in order to bargain for not paying rent or very little rent.
Small landlords are the worst hit. Therefore, in the long run it is best
that the landlord give notice to the tenant in a general format and
avoid the calamity. If the tenant wants to vacate this is a cost to the
landlord, but I am sure in the long run, it is better to have a tenant
who is willing to take the risk and wait and honor the lease than a
tenant who does not and will use every loop hole to harass the landlord.

I also think a civil penalty is appropriate in this case to give some
beef to the requirement of disclosure. There have been many, many
unscrupuolous landlords around who have actually taken the rent, even
though financially able, not paid the mortgage and then the tenants have
been forced out without any warning whatsoever. However, the penalty
should be reasonable and only if the landlord does not give the notice
required in a timely manner.

Roshani M. Gunewardene
Attorney

know what the Lender intends to do? The language should simply require a
disclosure of whether there is a pending foreclosure or short sale or
whether the lessor has received a notice of default from the lender.

of

for

the

federal

including

and it

any

any

marketing

herein.

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how it works.
<http://windowslive.com/howitworks?ocid=TXT_TAGLM_WL_t1_hm_justgotbetter
_howitworks_012009>

I have several additional questions

1. Does paragraph 1 create an ongoing obligation to advise during the
   entire term of the lease?

2. I understand the issue on foreclosures, why are short sales relevant,
   is it the risk that the tenant will pay the rent to the wrong landlord?

3. What happens if this gets copied into the commercial statute?

The concept of prospective notice of a possible foreclosure of short sale
does not make sense, no one can know what is going to happen. The standard
should be a bright line.

When the foreclosure action is filed the tenant will get notice by being
served. If what is trying to be addressed is tenants who come into
possession after the foreclosure action is filed the notice makes sense.

With regard to the civil penalty actual damages would probably be cost of
relocating early or cost of dealing with foreclosure/new landlord. The
reality is "actual damages" would probably be small where there is an
abundance of units in a market.  They might want to reconsider the measure
of damages.

This email message was sent by:

Lloyd Granet
Law Offices of Lloyd Granet, P.A.
2295 NW Corporate Boulevard, Suite 235
Boca Raton, FL 33431
Phone: (561) 999-9300
Fax: (561) 999-9400
Email: lgranet@granetlaw.com

NOTICE:  IRS Circular 230 Disclosure:  In order to ensure compliance with
IRS Circular 230, we must inform you that any U.S. tax advice contained in
this transmission and any attachments hereto is not intended or written to
be used and may not be used by any person for the purpose of (i) avoiding
any penalty that may be imposed by the Internal Revenue Code or (ii)
promoting, marketing or recommending to another party any tax-related
matter(s) addressed herein.

NOTICE: This communication is: (a) sent by an attorney or his/her agent, (b)
confidential, and (c) intended only for the use of the individual or entity
to which it is addressed. If the addressee is a client, this communication
is also subject to applicable privileges. If you are not the addressee, or
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If you received this communication in error: (a) any dissemination,
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that you immediately notify us at (561) 999-9300 (collect) and destroy this
communication. Thank you.

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Frank, Scott A.
Sent: Wednesday, January 07, 2009 3:05 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] FW: SB 454 1/7/09

Unfortunately, in my humble opinion, we get another example of legislation
that sounds great - and makes those voting feel good about doing their part
for the "little guy" - but comes far short in addressing any real problems.

As to this legislation, I agree that it is a good idea to require notice
from the landlord if a foreclosure action has been initiated.  But a
representation by the landlord that "to the best of his or her knowledge and
belief, the mortgage lender does not intend to initiate foreclosure
proceedings in the next 12 months"?  Let's just start racking up the legal
fees now, because the only people that will truly benefit from that
provision is us landlord/tenant attorneys.

In this market, many banks who don't want to take back any more properties
have waited 2, 3, 4 months or even more of deficiencies before filing
proceedings.  So if a landlord is 2 months behind, does he have a reasonable
belief that the lender will initiate foreclosure proceedings in the next 12
months?  What if the landlord has every intention of coming current in the
next couple of months (but doesn't?  If the banks don't know, how can the
landlord?  And what is the standard of reasonableness?  (Okay, now I'm
rambling, you get my point).

But all that being said, let us also realize that this statute addresses one
moment in time only - the date of the signing of the lease.  What happens if
foreclosure proceedings are commenced 3 months into a 12-month lease?  Under
the proposal, that tenant is out of luck (other than trying to allege
knowledge on the part of the landlord).  Yes, some of the notices from
lenders may be served at the premises, which will give those tenants the
knowledge they need, but such notice is in no way required.

Next potential problem is the penalty.  Yes, $10,000 seems steep, but what
of rental properties (more likely in the 3-4 unit and up variety) that are
owned by LLCs. S Corps or the like?  Is the threat of a $10,000 civil
penalty going to intimidate the principal of such an entity that is already
facing foreclosure (and most likely subsequent bankruptcy)?  I think not.
However, the only alternatives may be to either statutorily create principal
liability, as in payroll taxes and the like. or to create criminal
(misdemeanor) penalties - and I'm not so sure I want to head down either of
those paths.

So the shorthand version of my opinion is that the statute - if you take out
the "best of knowledge" portion - is not bad, and may even help a few
tenants.  But I believe that it will address only a very small minority of
the problem leases, and even with many of those will not have enough bite to
back up its bark.

Thus ends my $0.02.  Thanks.

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

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

2424 North Federal Highway
Suite 462
Boca Raton, Florida 33431-7735
Phone: 561.322.6900
Fax: 561.322.6940
HYPERLINK "mailto:SAFrank@arnstein.com"SAFrank@arnstein.com

Offices in Illinois, Florida, and Wisconsin

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of roshani
gunewardene
Sent: Wednesday, January 07, 2009 2:11 PM
To: landten@lists.flabarrpptl.org
Subject: Re: [RPPTL LandTen] FW: SB 454 1/7/09

I think that there definitely needs to be notice given to tenants by the
landlord(although details need not be given) that there is pending a
foreclosure action/short sale. This will relieve the landlord perhaps of
future law suits and massive damage awards. I know I sent several cases to
the listserve on how landlords have been made to pay $10,000 plus in
damages.

In most cases though now, what is happening is that the Fin.Co/Bank is
serving papers at the location where the rental property is and not where
landlord is and tenant "gets the shock" and holds these papers hostage in
order to bargain for not paying rent or very little rent. Small landlords
are the worst hit. Therefore, in the long run it is best that the landlord
give notice to the tenant in a general format and avoid the calamity. If the
tenant wants to vacate this is a cost to the landlord, but I am sure in the
long run, it is better to have a tenant who is willing to take the risk and
wait and honor the lease than a tenant who does not and will use every loop
hole to harass the landlord.

I also think a civil penalty is appropriate in this case to give some beef
to the requirement of disclosure. There have been many, many unscrupuolous
landlords around who have actually taken the rent, even though financially
able, not paid the mortgage and then the tenants have been forced out
without any warning whatsoever. However, the penalty should be reasonable
and only if the landlord does not give the notice required in a timely
manner.

Roshani M. Gunewardene
Attorney

know what the Lender intends to do? The language should simply require a
disclosure of whether there is a pending foreclosure or short sale or
whether the lessor has received a notice of default from the lender.

including

it

herein.

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