Generally, when there is no specific wording that federal law preempts state law both federal law and state law have to be read together. If state law impedes the intent of the federal law, federal law controls. In reading the law, Protecting Tenants at Foreclosure Act (Title VII of S. 896, Pub. L. No. 111-22, §§701 - 704 (2009), I believe the intent is clear.

First the law states “In the case of any foreclosure on a federally-related mortgage loan . . .”,

and later states “federally-related mortgage loan (as that term is defined in section 3 of the Real Estate Settlement Procedures Act of 1974 (12 U.S.C. 2602)).  It continues to include “or on any residential real property in which a recipient of assistance under this subsection resides,. . ..”  It is my reading that this refers to section 8 tenants because the law also states  “except that nothing under this section shall affect the requirements for termination of any Federal- or State-subsidized tenancy  . . .”  (section 8).

So my reading would be that it does not pertain to tax deeds.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Arlene C. Udick
Sent: Thursday, September 01, 2011 3:40 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] tenants and tax deeds / assessment liens

This begs the question whether the federal law trumps or supersedes the state law.  Arlene

Arlene C. Udick, Esq.

Real Estate Law Solutions

P.O. Box 2094

The Villages, FL 32158-2094

(O) 352-391-1888

(F) 352-391-9128

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From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Shane Weaver
Sent: Thursday, September 01, 2011 1:38 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] tenants and tax deeds / assessment liens

I’ll defer to Cary’s better knowledge of the tax sale process, but that could be construed as a non-judicial foreclosure. Keep in mind that there are states where all foreclosures are non-judicial, yet the PTFA applies there regardless. It may be possible to argue that a tax lien/sale is merely a type of non-judicial foreclosure that is still subject to the PTFA. (That’s what I’d argue anyway; there’s no case law on the subject.)

As for Fla. Stat. 197.562, that would just be another state possessory law superseded by the federal PTFA, same as 83.62 and the like.

Shane Weaver, Esq.

Legal Aid Society of Palm Beach County

423 Fern Street, Suite 200

West Palm Beach, FL 33401

Tel. (561) 822-9785

Fax (561) 822-9885

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Greg Hass
Sent: Thursday, September 01, 2011 12:55 PM
To: Cary Sabol; RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] tenants and tax deeds / assessment liens

Thanks Shane and Cary.  I’ve been leaning towards Cary’s view since I don’t believe the word “foreclosure” is actually used anywhere in the tax certificate / tax deed statutes.  However, I have seen the “F” word used loosely in old seminar materials I have on the subject.  So while the statute might not describe the process as a “foreclosure”, it does appear to have several characteristics of a foreclosure which lends credence to Cary’s argument.  It will be very interesting to see what a circuit judge will do when faced with a tenant trying to use the PTFA as a shield when the tax deed grantee shows them this statute:

 197.562Grantee of tax deed entitled to immediate possession.—Any person, firm, corporation, or county that is the grantee of any tax deed under this law shall be entitled to the immediate possession of the lands described in the deed. If a demand for possession is refused, the purchaser may apply to the circuit court for a writ of assistance upon 5 days’ notice directed to the person refusing to deliver possession. Upon service of the responsive pleadings, if any, the matter shall proceed as in chancery cases. If the court finds for the applicant, an order shall be issued by the court directing the sheriff to put the grantee in possession of the lands.

Regards,

Greg

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Thursday, September 01, 2011 11:48 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] tenants and tax deeds / assessment liens

Greg,

My two cents:  I don't believe a Tax Deed Sale is a "foreclosure" as there are no court/foreclosure proceedings required.  It's more of an administrative or levy situation.  From what I know, the Tax Collector sends out Notice and the Clerk holds the public auction, but there are no formal court proceedings or a judgment, so I don't that makes it a "foreclosure."  However, I have been wrong before, so take it for what it's worth (i.e. 2 cents).

Cary

Cary P. Sabol, Esq.

P.O. Box 15981

West Palm Beach, Florida 33416

Phone: (561) 281-2744

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.

From: Shane Weaver sweaver@legalaidpbc.org
To: 'RPPTL Landlord Tenant Committee' landten@lists.flabarrpptl.org
Sent: Thursday, September 1, 2011 11:41 AM
Subject: Re: [RPPTL LandTen] tenants and tax deeds / assessment liens

Greg,

Any foreclosure of a dwelling or residential property is subject to the PTFA. The Act does not make any distinctions between bank foreclosures, association liens, mechanic’s liens, etc. So if a tax lien must be foreclosed upon, then it too should fall under the Act.

Sincerely,

Shane

Shane Weaver, Esq.

Legal Aid Society of Palm Beach County

423 Fern Street, Suite 200

West Palm Beach, FL 33401

Tel. (561) 822-9785

Fax (561) 822-9885

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Greg Hass
Sent: Wednesday, August 31, 2011 3:21 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] tenants and tax deeds / assessment liens

My understanding is that the federal Protecting Tenants at Foreclosure Act does not give any protection to a tenant living in a home that is the subject of a Florida tax deed sale.  However, it does protect the tenant where an association forecloses an assessment lien.  Correct?

Thanks,

Greg

Greg Hass, Senior Counsel

Office of Law & Policy | FloridaRealtors®
7025 Augusta National Drive, Orlando, FL 32822
talk: 407.438.1400, ext. 2421
visit: http://www.floridarealtors.org

The Voice for Real Estate® in Florida

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

Probably a stupid question but here goes:

If a residential T vacates the premises voluntarily at the end of the rental agreement, does that constitute a "surrender" as the term is used in Section 83.67 (5)?

In other words, if the lease contains the all caps "legend" found in 83.67 (5), does the LL get the benefit of the release from liability for storage and disposition of T's personal property in a situation where T vacates the premises at the end of the lease term?  Or would the LL in that situation still need to comply with the procedure in Section 715.104?

We're having a debate in my office about whether "surrender" would only apply to a premature exit by T or if it would also encompass a T who just moves out normally at the end of the lease.  Amongst my colleagues we're currently split 3-2 on this.  I couldn't find anything in statutes annotated or Hauser.  For what it's worth, my Black's Law Dictionary (antiquated Sixth Edition) offers the following guidance:  "In landlord-tenant law, surrender exists when the tenant voluntarily gives up possession of the premises prior to the full term of the lease and the landlord accepts possession with the intent that the lease be terminated."

Thanks in advance,
Greg

Greg Hass, Senior Counsel

Office of Law & Policy | FloridaRealtors(r)
7025 Augusta National Drive, Orlando, FL 32822
talk: 407.438.1400, ext. 2421
visit: http://www.floridarealtors.org

The Voice for Real Estate(r) in Florida

[cid:image001.jpg@01C8B0EE.0B556530]

Technically, isn’t the lease an estate in land subject to reversion? I’m with Greg; it is a surrender prior to end of the lease and a termination/reversion of the lease estate at the end.

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Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com
www.RichmanGreer.comhttp://www.RichmanGreer.com

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To ensure compliance with requirements imposed by the IRS, we inform
you that any U.S. federal tax advice contained in this communication (including
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the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii)
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This message contains confidential information and is intended for landten@lists.flabarrpptl.org. If you are not
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From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Greg Hass
Sent: Tuesday, November 08, 2011 1:33 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Surrender as used in 83.67(5)

Probably a stupid question but here goes:

If a residential T vacates the premises voluntarily at the end of the rental agreement, does that constitute a “surrender” as the term is used in Section 83.67 (5)?

In other words, if the lease contains the all caps “legend” found in 83.67 (5), does the LL get the benefit of the release from liability for storage and disposition of T’s personal property in a situation where T vacates the premises at the end of the lease term?  Or would the LL in that situation still need to comply with the procedure in Section 715.104?

We’re having a debate in my office about whether “surrender” would only apply to a premature exit by T or if it would also encompass a T who just moves out normally at the end of the lease.  Amongst my colleagues we’re currently split 3-2 on this.  I couldn’t find anything in statutes annotated or Hauser.  For what it’s worth, my Black’s Law Dictionary (antiquated Sixth Edition) offers the following guidance:  “In landlord-tenant law, surrender exists when the tenant voluntarily gives up possession of the premises prior to the full term of the lease and the landlord accepts possession with the intent that the lease be terminated.”

Thanks in advance,
Greg

Greg Hass, Senior Counsel

Office of Law & Policy | FloridaRealtors®
7025 Augusta National Drive, Orlando, FL 32822
talk: 407.438.1400, ext. 2421
visit: http://www.floridarealtors.org

The Voice for Real Estate® in Florida

[cid:image001.jpg@01C8B0EE.0B556530]

Note that the hold-over provision, Section 67.58, does not state that, in the event that the tenant fails to “surrender” the premises at the end of the leasehold, the landlord may recover possession, etc.; rather it uses the language that, if the tenant “holds over and continues in possession” after the expiration of the estate.  This supports the Black Law Dictionary’s definition that “surrender exists when the tenant voluntarily gives up possession of the premises prior to the full term of the lease and the landlord accepts possession with the intent that the lease be terminated”.

Section 715.104 is a remedial statute, intending to benefit the former tenant.  If the leasehold estate is at its end, the landlord must comply with the notice to the former tenant concerning the latter’s remaining personal property on the premises.  Exceptions to that statute, as contained in Section 83.67, must as a matter of law be narrowly and strictly construed – and limited to the precise conditions that allow non-compliance with 715.104, that is, surrender (prior to the end of the full term of the lease), abandonment or death of the last tenant.  Quincy Corp. v. Aguilar, 714 So.2d 1055, 1060, fn.7 (Fla. 1st DCA 1997); State v. Nourse, 340 So.2d 966, 969 (Fla. 3d DCA 1976) (“Any ambiguity in an exception statute is normally construed in a manner that restricts the use of the exception”).  Absent those precise, narrowly construed conditions, if the tenancy has “terminated or expired . . . through eviction or otherwise”, the landlord must comply with the 715.104 notice to the tenant.

The landlord should comply with the 715.104 notice statute in a situation where the tenant has vacated at the end of the lease term.

Warren P. Gammill, Esq.

Warren Gammill & Associates

Suite 1050, Courthouse Tower

44 West Flagler Street

Miami, Florida 33130

Telephone: 305-579-0000

Telecopier: 305-371-6927

Gammill@MiamiLawOffice.com

Website: www.gammilllaw.com

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach
Sent: Tuesday, November 08, 2011 1:56 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Surrender as used in 83.67(5)

Technically, isn’t the lease an estate in land subject to reversion? I’m with Greg; it is a surrender prior to end of the lease and a termination/reversion of the lease estate at the end.

Image removed by sender.

Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com
www.RichmanGreer.com

Image removed by sender.

To ensure compliance with requirements imposed by the IRS, we inform
you that any U.S. federal tax advice contained in this communication (including
any attachments) is not intended or written to be used, and cannot be used, for
the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii)
promoting, marketing or recommending to another party any transaction or matter
addressed herein.

This message contains confidential information and is intended for landten@lists.flabarrpptl.org. If you are not
landten@lists.flabarrpptl.org you are notified that disclosing, copying, distributing or taking any action in
reliance on the contents of this information is strictly prohibited. E-mail
transmission cannot be guarranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender (MFarach@richmangreer.com) therefore does not accept liability for any errors or omissions in the contents of this message, which
arise as a result of e-mail transmission. If verification is required please request a hard-copy version.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Greg Hass
Sent: Tuesday, November 08, 2011 1:33 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Surrender as used in 83.67(5)

Probably a stupid question but here goes:

If a residential T vacates the premises voluntarily at the end of the rental agreement, does that constitute a “surrender” as the term is used in Section 83.67 (5)?

In other words, if the lease contains the all caps “legend” found in 83.67 (5), does the LL get the benefit of the release from liability for storage and disposition of T’s personal property in a situation where T vacates the premises at the end of the lease term?  Or would the LL in that situation still need to comply with the procedure in Section 715.104?

We’re having a debate in my office about whether “surrender” would only apply to a premature exit by T or if it would also encompass a T who just moves out normally at the end of the lease.  Amongst my colleagues we’re currently split 3-2 on this.  I couldn’t find anything in statutes annotated or Hauser.  For what it’s worth, my Black’s Law Dictionary (antiquated Sixth Edition) offers the following guidance:  “In landlord-tenant law, surrender exists when the tenant voluntarily gives up possession of the premises prior to the full term of the lease and the landlord accepts possession with the intent that the lease be terminated.”

Thanks in advance,

Greg

Greg Hass, Senior Counsel

Office of Law & Policy | FloridaRealtors®
7025 Augusta National Drive, Orlando, FL 32822
talk: 407.438.1400, ext. 2421
visit: http://www.floridarealtors.org

The Voice for Real Estate® in Florida

cid:image001.jpg@01C8B0EE.0B556530