Florida Commercial Law

What is a "Collaborative" or Cooperative Divorce?

A collaborative divorce is one that is negotiated in a cooperative manner.  It is different from a litigation-oriented "win-lose" approach which some people have taken.  The goal is to resolve differences peacefully without the need for an adversarial trial.

There are associations of attorneys and mental health professionals who promote collaborative divorce.  Some of these even offer "certifications" in Collaborative Divorce.  This is not the same thing as being Board Certified by the Florida Bar.  The Florida Bar does not offer a collaborative divorce certification.  The Florida Bar only offers a "Family Law" Certification.  Ironically, in order to be Board Certified in Family Law, a lawyer must have fully litigated a number of adversarial divorces completely through a trial.  Thus, if you are seeking an attorney to assist you with your divorce in a collaborative or cooperative manner, Board Certification in Family Law may not be a good indicator of the type of attorney that you are looking for.

In the classic Collaborative Divorce scenario, each party is represented by counsel who is present for all negotiating sessions. Each attorney is trained to focus on the overall well-being of the entire family unit. The attorneys work as a team, seeking to reduce conflict and generate constructive solutions. In a collaborative divorce, the attorney can advocate the client's position within the overall framework of a restructured family because each attorney remains focused on a "win-win" solution.

However, some couples who have resolved many of their financial and parenting issues may only retain one attorney to help with a cooperative divorce.  Under the ethics rules of the Florida Bar, an attorney should not undertake Dual Representation in a divorce.  So, if only one attorney is used, it should be made clear which spouse is actually the attorney's client.  Also, the other spouse should be advised that they can see their own attorney and have their own legal counsel review any documents before they sign them. 

The goal of any cooperative divorce is to resolve issues that arise when a couple decides to separate. The goal of the collaborative process is to offer a couple a structured, non-adversarial process within which to resolve their property, support and parenting disputes. The collaborative approach creates an atmosphere of open communication and cooperation that assists the couple in shaping an agreement that fits the needs of their restructured family.

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How does Collaborative Divorce differ from Mediation?

In mediation, one neutral professional works with the couple to resolve disputes. The mediator assists the parties in understanding each other's points of view and developing settlement options. The mediator cannot give legal advice or advocate for either party.

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What other professionals are involved?

Couples who choose to divorce cooperatively have a wide option of resources upon which they can draw. As their circumstances require, they may choose an accountant, a real estate or business appraiser and a retirement account advisor to be present at their meetings or to provide information to assist in their decision-making process. The couple can share the costs of these third-parties, who will provide neutrally-based information regarding their assets and various methods of valuing and dividing them.

The couple may wish to involve a child psychologist to discuss special developmental or educational issues regarding their child.  The goal is for all professionals to participate in the joint effort to achieve a settlement agreement between the couple.

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What if we have to go to Court?

In the classical collabortive model, the collaborative attorney may not represent the client in Court. However, this does not have to be the way the case is structured.  The parties could work in a cooperative approach, but still allow for a judge to resolve any differences that cannot be resolved between the parties.  Usually, the cooperative approach is successful because the divorce laws are very clear as to the rules for splitting up assets and liabilities as well as child support and time sharing with the kids.  In most cases, the Court system does not become involved in the collaborative process until the final agreement is signed and the couple is ready to submit it to the Court. However, if some issues remain unresolved, it is possible to get agreement on the agreeable issues, and then submit the unresolved issues to the judge for a resolution.  

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How can we collaborate if we aren't getting along?

Many people recognize that the marriage is over, and yet they want a secure and private setting for entering into agreements regarding the parenting of their children and the distribution of their property.

But Collaborative Divorce isn't limited to those individuals. A collaborative attorney is specially trained to address conflict and disagreement in a creative and calming fashion. The team of attorneys works with their clients, individually and in the meetings, to acknowledge fears and concerns, and then focus the client toward a productive, non-adversarial resolution that is acceptable to the client.

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How does a Collaborative or Cooperative Divorce work?

The process itself utilizes a series of informal conferences attended by the attorneys and the clients, as well as any jointly-retained expert. An agenda can be set prior to each meeting, to limit the prospect of a "surprise issue" being raised. Clients work closely with their attorneys prior to the meetings, so that they are familiar with the issues to be discussed and have an understanding of the law in that particular area. All pertinent documentation is available prior to the meetings, to allow ample time for review, discussion and further research. All negotiations are conducted openly and the clients fully participate in the discussions.

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How much does it cost?

There is no set fee for a Collaborative Divorce. Collaborative representation requires a fee agreement between the attorney and client, and time is billed by the hour. Jointly-retained professionals are paid separately. However, the time spent in a collaborative meeting is much more cost-efficient than Court time, in that the attorney's time is solely focused upon resolving the client's case.

In most cases, a cooperative approach to divorce will save thousands of dollars in attorneys' fees when compared with an adversarial litigious approach.  This is probably the major reason that 80% of the divorces that I handle are resolved in a cooperative manner.

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How long does it take to finalize the divorce after we have an agreement on the issues?

The divorce can be finalized with the court in as little as 3 weeks after the spouses have signed a full agreement.

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Why shouldn't I just "do it myself" if my spouse and I can agree on the issues?

Although the Florida law on divorce is very clear on a lot of issues, it is also very complex.  It is often well worth the money to make sure you obtain competent legal advice before agreeing to any divorce proposal.  Additionally, in order to make sure that your agreement with your spouse is legally enforceable, you should have it written and prepared by an attorney.  Finally, it actually takes much longer to get divorced if you "do it yourself."  The Courts have a "Pro Se Family Law Clinic" that you are required to attend and meet with a court employee to review your divorce documents.  This can delay your divorce from being finalized for many months.  Many people are ready to "get it over with," and these additional months of waiting when you already have an agreement with your spouse can seem torturous.  Using an attorney can expedite this process.

If you are interested in consulting with an attorney regarding divorce issues in Florida, call Zana Holley Dupee at Cusumano & Dupee, P.L. at (352) 379-5900 to schedule a consultation.

Bogin Munns Lawyer Steps Out to Open Her Own Firm

Zana Holley Dupee has left Bogin Munns & Munns, P.A., where she was a Board Certified Real Estate Attorney, to launch her own shop, Cusumano & Dupee, P.L. with bankruptcy and probate attorney Barbara A. Cusumano.   Dupee said her practice focuses on real estate and other disputes. She represents owners, developers, builders, contractors and brokers.

"It's always been a dream of mine to go out on my own and offer my services to a wider market," said Dupee, 40, of her decision to open her own firm.  She had practiced at Bogin Munns since 2008. She explained that big-firm billable hours requirements were stressing her out.

She said that she wants to focus on her true passion: helping her clients reach their goals.  Her rates will also be a little lower since she will have lower overhead.  Her new rates range from $250 to $325, depending on the complexity of the legal matter.

"If you want a big-firm-quality lawyer, you're not going to get a better deal," she said.  "It used to be that you went to the biggest firms if you had an important case. Now you have other options. ... There are specialists in smaller firms who can do just as good a job without the overhead and higher rates."

Dupee said she brings "a healthy percentage" of her clients to her new firm, but declined to name them.  If you have a legal matter that you would like to consult with Ms. Dupee, call (352) 379-5900 to schedule an appointment.

Second Wife Loses Homestead Protection Because She Bought Homestead with Proceeds from Property Husband Placed in Trust for Children Prior to His First Wife Dying

By Zana Holley Dupee, Esq., B.S.C.

Board Certified Real Estate Attorney

     The homestead protection that homeowners have in the state of Florida helps prevent Floridians from losing their homes due to debts owed to creditors.  However, Florida law does allow equitable liens to be imposed on homestead property, particularly in cases of fraud.  In the recent case of Hirchert Family Trust v. Hirchert, 36 Fla. L. Weekly D1290 (Fla. 4th DCA 2011), the Florida Appeals Court found that the Husband violated his fiduciary duties as Trustee, so that the beneficiaries of the Trust were entitled to an equitable lien against his 2^nd wife’s homestead property.

     In that case, the Husband and his first wife lived in California. They created two trusts which provided that upon the death of the first spouse, all their assets, including their marital home in California, would be divided into a Survivor’s Trust for the benefit of the 2^nd spouse to die and a Residuary Trust for their children. The first wife died and pursuant to the trusts, the marital home was divided between the two trusts with 75 percent placed in the Residuary Trust for the children and the remaining 25 percent was placed in the Survivor Trust.

     The Husband was Trustee of both trusts, and the Residuary Trust only permitted him to access the earnings of the Residuary Trust, but not the assets held in the trust. He married a second wife and signed a deed transferring the title of the marital home from the Residuary Trust to himself, which violated the terms of the trust.  This transfer was a breach of his fidiciary duty as Trustee.  Later, he sold the home and used the proceeds to purchase a new home with the second wife.  They subsequently sold that property and bought another one in California as joint tenants. The husband died, and his second wife sold their home and used the proceeds to purchase a home in Florida.

     The successor trustee of the residuary trust subsequently filed suit against the second wife to require her to convey to the Residuary Trust 75 percent of the proceeds that the Husband obtained from the sale of the original home.  The court found that the Husband had breached his fiduciary duty as Trustee by conveying the title of the original home from the Residuary Trust to himself and held that 75 percent of the proceeds were traceable to the second wife’s current Florida homestead property.

     The Florida Appeals Court held that the Husband’s breach of his fiduciary duty was “constructive fraud” and thus may form the basis to apply the equitable lien exception to the homestead protection rules. Accordingly, the court held that the second wife’s homestead property was subject to an equitable lien for 75 percent of the proceeds that the Husband had obtained from the sale of the original home.

     If you need assistance with real estate, probate or trust litigation, you can call Zana Holley Dupee to schedule a consultation at (352) 379-5900.

New Homestead Rights for Surviving Spouses in Florida

By Zana Holley Dupee, Esq.

     Effective October 1, 2010, the legislature amended Florida Statute 732.401 to allow a surviving spouse to elect to take a 50% ownership interest instead of a life estate.  This would only apply to situations where the spouse is receiving a life estate in the decedent’s homestead property.  If the spouse elects the 50% interest, then the decedent’s children own the remaining 50% interest.

     Prior to the date that the spouse makes the election, the surviving spouse has a life estate and is responsible for all of the expenses relating to ownership, such as taxes and maintenance costs.  From the date that the spouse makes the election, then she is responsible to pay ½ of the ownership expenses and the children who are co-owners are responsible to pay the other ½ of the ownership expenses. 

     In order to make this election, the spouse must record a Notice of Election in the Official Records of the county in which the homestead property is located.  The spouse must record this notice within 6 months of the date of the decedent’s death, unless extended by law.  The Notice of Election must contain the following information: (1) decedent’s name and date of death; (2) surviving spouse’s name; and (3) the legal description of the homestead property.

     After the spouse makes this election, the spouse and children would be entitled to the remedy of partition.  Partition is a legal remedy which allows a co-owner of property to force the sale of the property and split the proceeds.  Partition is not available to the holder of a life estate or the remaindermen.

     This is a helpful change to Florida’s estate laws because it gives widows and widowers many more choices of how to handle their property when their spouse dies.  However, the surviving spouse must make this choice carefully because the election is irrevocable.  Because of the significant legal implications of this choice, it is highly recommended that you seek the counsel of a qualified attorney in the event that your spouse has recently passed away.

     If you need assistance with real estate, probate or trust litigation, you can call Zana Holley Dupee to schedule a consultation at (352) 379-5900.

More Florida Homestead Law

By Zana Holley Dupee, Esq.

    As written previously in this blog, the homestead is a very valuable asset in Florida.  It enjoys protection from creditors’ claims, and it gets a special tax exemption so less real estate taxes are paid on homestead property.  There have been some new cases decided in Florida courts that further explain homestead rights.

    The first case is DiGiorgio v. DiGiorgio.  This case stands for the rule that your ex cannot force sale of your new Florida residence to pay for past due child support or other money owed from a divorce judgment.  In this case, the wife argued that the ex-husband should not get homestead protection because the Ohio divorce judgment had been awarded prior to the ex-husband moving into and residing on the Florida property.  The court said that she was wrong.  The court determined that the ex-husband is correct that the levy and execution of the parties' property may be barred by the protection of homestead.  If the evidence shows that the property is the husband’s residence, then the property is protected from forced sale to satisfy the divorce judgment.

    The second case is De La Mora v. Andonie.  This case stands for the rule that the property tax appraiser should give a homestead tax exemption to the owners of residential real estate on the basis that their children are U.S. citizens, even if the owners are aliens who don’t qualify for “permanent residence” status that would entitle them to the homestead exemption.  The Florida court stated that the plain language of article VII, section 6(a) of the Florida Constitution provides that an owner of residential real estate in Florida is constitutionally entitled to an exemption from ad valorem taxation—more accurately, a reduction in the assessed value—under either of the following two separate and independent scenarios:   1. Where the owner of the property is a permanent resident on the property, or 2. Where someone legally or naturally dependent on the owner is a permanent resident on the subject property.

    The third case is In Re Williams.  This is a bankruptcy case where the homestead property was owned as a life estate by the mother of the bankrupt.  The bankrupt owned a remainder interest in the property.  The bankrupt lived in the home with his mother and claimed that his remainder should be considered exempt homestead property in the bankruptcy.  The Bankruptcy court found that the remainder interest should receive homestead protection in this case where the bankrupt resides on the property. The court noted that Florida courts consistently hold that the homestead exemption “should be liberally construed in favor of protecting the family home and those whom it was designed to protect.” Southern Walls, Inc. v. Stilwell Corporation, 810 So.2d 566, 569–70 (Fla. 5th DCA 2002). See also Coy v. Mango Bay Property and Investments, Inc., 963 So.2d 873, 876 (Fla. 4th DCA 2007). The purpose of the homestead exemption “is to promote the stability and welfare of the state by securing to the householder a home, so that the homeowner and his or her heirs may live beyond the reach of financial misfortune and the demands of creditors.” Snyder v. Davis, 699 So.2d 999, 1002 (Fla.1997).

    The fourth case is C&M Inv. Group, Ltd. V. Campbell.  This case shows that there is a limit to when the court will protect homestead property.  In this case, the homestead property was purchased by funds that were obtained by fraud.  In this case, the Florida court found that the homestead purchased with fraudulent funds was NOT protected.

    If you have any questions about your homestead rights, or if you need assistance with real estate, probate or trust litigation, you can call Zana Holley Dupee to schedule a consultation at (352) 379-5900.

Each Spouse in a Separated Couple is Entitled to Their Own Homestead Tax Exemption

By Zana Holley Dupee, Esq.

                Sometimes married couples separate, without getting divorced.  Then, they proceed to establish separate households.  The question has come up regarding whether each spouse can claim a homestead tax exemption on separate property.

                Homestead Tax Exemption is one of the many “homestead rights” in the state of Florida.  Florida's homestead tax exemption derives from Article VII, Section 6(a) of the Florida Constitution, which provides that a homestead exemption extends to “[e]very person who has the legal or equitable title to real estate and maintains thereon the permanent residence of the owner, or another legally or naturally dependent upon the owner.” However, section 6(b) directs that “[n]ot more than one exemption shall be allowed any individual or family unit or with respect to any residential unit.” Art. VII, § 6(b), Fla. Const.  

                The Homestead Tax Exemption is financially valuable.  It often reduces annual property taxes by $1,000 or more.  It allows the “Save Our Homes” exemptions to be applied as well.  So, it is not surprising that the taxing authorities in Pasco County wanted to argue that married couples are only entitled to one homestead tax exemption, even if they are separated and living apart.

                However, in the case of Wells v. Haldeos, the Florida courts found that the Pasco County Property Appraiser was wrong.  The appeals court pointed out that the property appraiser was required to follow the Florida Administrative Code rules.  Florida Administrative Code Rule 12D-7.007(7), provides as follows:

If it is determined by the property appraiser that separate permanent residences and separate “family units” have been established by the husband and wife, and they are otherwise qualified, each may be granted homestead exemption from ad valorem taxation under Article VII, Section 6, 1968 State Constitution. The fact that both residences may be owned by both husband and wife as tenants by the entireties will not defeat the grant of homestead ad valorem tax exemption to the permanent residence of each.

                In the prior case of Law v. Law, the court agreed that the husband could not have two homesteads and that a husband and wife in an intact marriage could not have two homesteads.  However, the court held that the husband's homestead could be different from the wife's homestead “where their separation was bonafide,” and it was the intent of the husband to live in his separate home.

                The appeals court in Wells noted that the property appraiser would have to review financial information from the couple in these situations to determine that they are completely financially separated.  The court also noted that the person claiming the homestead exemption has the burden of proving that he or she qualifies for such.

                If you have legal questions regarding your homestead tax exemption, or if you need assistance with real estate, probate or trust litigation, you can call Zana Holley Dupee to schedule a consultation at (352) 379-5900.

 

Homestead Law in Florida

by Zana Holley Dupee

There is a lot of homestead litigation lately producing some interesting court rulings.  This, of course, begs the question as to what "homestead law" is in Florida.  Most people think we are talking about "claiming homestead" on property taxes to get the tax exemption.  That is certainly one meaning of homestead in Florida.  However, the concept of "homestead" in found in various parts of the law in Florida, and it has different implications in different contexts.

In real estate and probate law, lawyers are often more concerned about the Florida Constitutional homestead provisions than about the tax exemption.  The Florida Constitution Article X Section 4 provides:

(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:

(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner's consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner's family;

(2) personal property to the value of one thousand dollars.

(b) These exemptions shall inure to the surviving spouse or heirs of the owner.

(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner's spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.

Based on this Constitutional provision, the homestead is protected from creditors.  This constitutional protection from creditors is inherited by the heirs of the owner.  Also, the spouse has "homestead rights," and they are not allowed to be "disinherited" without their consent.  So, how does this affect real estate and probate?  Well, just because one spouse's name is not on the property does not mean that they don't have rights in the property.  The spouse in title would need the other spouse's signature to deed or mortgage the property.  The spouse in title cannot will the property to someone else unless the other spouse signs a waiver of their homestead rights in the property.  Also, as a related matter, in family law, the marital home is considered to be a part of the marital estate in the divorce context regardless of which spouse's name is on title, unless there is a valid prenuptual or postnuptual agreement changing that.  The homestead is also considered "Exempt" property when qualifying for Medicaid and for bankruptcy.

The bottom line is the "homestead" is a very valuable type of property in Florida which the law goes to great lengths to protect for the owner and their spouse.  Please get a good lawyer to review your situation before you make decisions about your homestead because you may have rights or options that you did not know you had.  Also, you may not be allowed to do certain things without your spouse's consent even if you are the only person in title on the property.

If you have questions about your homestead property and your legal rights, or if you need assistance with real estate, probate or trust litigation, you can call Zana Holley Dupee to schedule a consultation at (352) 379-5900.

MRTA Can Eliminate Subdivision Restrictions

By Zana Holley Dupee

I have been getting many questions about the Marketable Record Title Act (MRTA) and its effect on Subdivision Restrictions lately.  Therefore, I decided to post a quick summary of MRTA and a recent Florida court case that addressed this issue.

The Second District Court of Appeals recently published an opinion in the case of Matissek v. Waller, which addresses the ability of MRTA to eliminate deed restrictions.  Deed restrictions typically restrict the use of property.  An example of this are rules that subdivisions have to ensure that the homeowners maintain their property in an attractive manner.  Some restrictions may restrict what pets the owner can have, what color they can paint their house, what vehicles they can have and how they can be parked, etc.  The restrictions often give the Homeowners Association powers, including the right to assess fees from the owners and the right to foreclose when those fees are unpaid.

What is MRTA?  Florida's MRTA law is found in Chapter 712 of the Florida Statutes.  MRTA extinguishes stale claims to property, with statutory exceptions. A title searcher need only find a root of title at least 30 years old and then search for the presence of statutory exceptions. MRTA has a very powerful effect on determining title as it eliminates the necessity to search title back for hundreds of years. Instead, MRTA only requires that an affected person need search back to the “root of title.”  

Here is how MRTA works:  After determining that none of the exceptions set forth in Fla. Stat. § 712.03 apply, a title examiner reviews a title record to find a “root of title.” Once the root of title is determined, all interests prior to the root of title and not subject to the exceptions of Fla. Stat. § 712.03 are extinguished by operation of law and have no further effect on the real property.  The interests eliminated by MRTA include common law ways of necessity, easements not excepted by Fla. Stat. § 712.03(5), restrictions, claims of the state to non-sovereignty lands, and deed restrictions.

Exceptions to MRTA:  Florida Statute § 712.03 contains a laundry list of interests not eliminated by MRTA. Of particular note is that MRTA does not apply to extinguish claims of the sovereign, either the state of Florida or the United States.

How to avoid having interests eliminated:  MRTA itself contains a provision wherein interests at risk of being eliminated by operation of MRTA can be re-recorded and thus preserved for an additional period of time.

What did the Matissek case hold?  In Matissek, the subdivision was platted and the restrictions were recorded in 1971.  An amendment to the deed restrictions was recorded in 1978.  The Matisseks traced their "root of title" back to a 1974 deed that stated it was subject to "all restrictions and easements of record."  The court held that the 1971 deed restrictions were extinguished and were not properly preserved by the 1974 deed because it failed to identify the restrictions by book and page. The appellate court also held that the 1977 amendments did not survive because the amendments "do not concern a chain of title to any property" and are not muniments of title.

Implications for Subdivisions:  HOAs should consult an attorney familiar with MRTA to determine how to re-record restrictions properly.  HOAs may also consider adopting a rule that Owners must cite to the book and page of the restrictions on their deeds when they convey property.  In addition, whether restrictions have been eliminated must be determined for each individual property in the subdivision.  It is possible for MRTA to eliminate the restrictions in some chains of title but not in others.

If you have legal questions about property in the state of Florida, or if you need assistance with real estate, probate or trust litigation, you can call Zana Holley Dupee to schedule a consultation at (352) 379-5900.

 

Does a Bank have Continuous Coverage under a Mortgagee Title Policy after a Foreclosure?

By Zana Holley Dupee

Many banks are foreclosing on homes or taking ownership of them by a deed in lieu of foreclosure.  One question that has come up is whether the bank has continuous coverage under the Mortgagee Title Insurance Policy from when the mortgage was originated.  This can be important if title problems are discovered after the bank has already taken title to the property.

Paragraph 2(a) of the 1992 ALTA mortgagee policy Conditions and Stipulations states in part:

2. CONTINUTION OF INSURANCE

    (a) After Acquisition of Title.  THe coverage of this policy shall continue in force as of Date of Policy in favor of

    (i) an insured who acquires all or any part of the estate or interest in the land by foreclosure, trustee's sale, conveyance in lieu of foreclosure, or other legal matter which discharges the lien of the insured mortgage; (ii) a transferee of the estate or interest so acquired from an insured corporation, provided the transferee is the parent or wholly owned subsidiary of the insured corporation, and their corporate successors by operation of law and not by purchase ...

The policy language above does tell us that the bank may continued to be insured.  However, there are a few problems that arise: 

One problem is when a bank has a 3rd party bid at the foreclosure sale.  This often happens when the bank's parent or subsidiary company bids at the sale without having an assignment of the mortgage.  If this happens, the property has been acquired by a 3rd party, not the mortgage holder, and the title policy terminates.  So, there is no continued title coverage!!

Another problem is the amount of damages that are available under a mortgagee title policy.  The amount payable under a mortgagee policy is limited to the amount of indebtedness as compared to the value of the property.  So, if the title defect does not diminish the property's value below the amount of principal owed on the mortgage, then there is no payable insurance claim on a mortgagee policy.  In contrast, an owner's policy would pay for the decrease in the value of the property without regard to the balance owed on the mortgage.  This makes a big difference in cases where the mortgage balance has been paid down or where the lender did not loan the full value of the property.

An additional problem that arises is the effective date of the policy.  The effective date of the mortgagee policy is the date that the mortgage was originally recorded.  So, any title defects that arose after that date will not be covered by the existing mortgagee policy.

For all these reasons, banks should consider purchasing an owner's policy when they buy a property at a foreclosure sale rather than relying on continued coverage for title defects under the mortgagee policy. 

If you are a lender in North or Central Florida that needs legal advice regarding real estate issues, please contact Zana Dupee to schedule a consultation.  Zana has significant experience in representing lenders who own properties with title defects, and we would be happy to assist your bank as well.  Often, our fees for fixing title defects are paid from a title policy claim.  If you need assistance with real estate, probate or trust litigation, you can call Zana Holley Dupee to schedule a consultation at (352) 379-5900.

Is the Tenant required to Pay Rent into the Court Registry?

by Zana Dupee, Esq.

In a residential eviction case, if the tenant claims that the Landlord's 3-day notice was defective or non-existent, does the tenant have to pay the undisputed rent into the court registry as set forth in Florida Statute 83.60(2)?  Some might argue that since the notice is required before the Landlord can even file the suit, then the tenent could raise a defective notice as a defense without triggering the statutory requirement to pay the rent into the court registry.  This issue was litigated quite a bit recently and the appeals court ruled that the tenant DOES have to pay the rent before they can raise the defense of defective or non-existent 3-day notice. 

The statute states:

In an action by the landlord for possession of a dwelling unit, if the tenant interposes any defense other than payment, the tenant shall pay into the registry of the court the accrued rent as alleged in the complaint or as determined by the court and the rent which accrues during the pendency of the proceeding, when due. The clerk shall notify the tenant of such requirement in the summons. Failure of the tenant to pay the rent into the registry of the court or to file a motion to determine the amount of rent to be paid into the registry within 5 days, excluding Saturdays, Sundays, and legal holidays, after the date of service of process constitutes an absolute waiver of the tenant’s defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant with a writ of possession to issue without further notice or hearing thereon. In the event a motion to determine rent is filed, documentation in support of the allegation that the rent as alleged in the complaint is in error is required. Public housing tenants or tenants receiving rent subsidies shall be required to deposit only that portion of the full rent for which the tenant is responsible pursuant to federal, state, or local program in which they are participating. Fla. Stat. 83.60 (2).

The court noted the strong and plain language of the statute requiring a tenant to pay rent in the registry of the court if the tenant raises any defense other than payment.  The court also stated that if the tenant does not pay the rent to the court registry, then the tenant has absolutely waived his defenses and the landlord is entitled to an immediate default judgment.

If you are a Landlord in North Florida who needs legal assistance, or if you need assistance with real estate, probate or trust litigation, you can call Zana Holley Dupee to schedule a consultation at (352) 379-5900.