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Read my articles for great information on Buying a home in Jupiter Florida.

September 2015 Revised Far Bar As Is

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In September of 2015 the FAR/BAR “AS IS” Residential Contract For Sale And Purchase which is used in 90% of all the transactions in the Jupiter area will be changed to reflect the CFPB regulations impacting the residential lending industry.  These CFPB regulation are scheduled to take effect Oct. 3, 2015.

Click on this AS IS Residential Contract for Sale and Purchase to see the red lined document illustrating where the changes will be made.  Basically though:

  • The expected time for financing approval is now 45 days.  60+ day Closings will now be the norm and the cash offers will look much more appealing to the Seller.
  • The Closing can be extended for 10 days is need be to comply with these new laws.
  • HOWEVER, if the Closing is extended to comply with these new requirements it does not affect the window (7 days prior to the Closing Date) where the Contract may be terminated under Paragraph 8.
  • Title commitment (for financing sales) must now be issued 15 days prior to Closing.  It was always silly to me have the title commitment issued 5 days from the Closing and have a 5 day window for the Buyer to object to same.  The title to the property IS what is being purchased.  It is central to the transaction.  As a practical matter though most title agents send the title commitment long before the deadline anyway.  REMEMBER, the Buyer still only has 5 days after receipt of the title commitment to object to anything contained in it.  Where this will be sent sooner now be sure EVERYONE, the lender and the Buyer and the attorney for the Buyer review it in this time frame.
  • Survey must be done before the Title Commitment.  Makes sense as the title insurance the Lender will require can not have an exclusion for encroachments, thus the title agent needs the survey for this.  Look for the Title Agent to require the Buyer to pay for the survey up front instead of at Closing.

For those seeking a loan after 3 October 2015 you should download and review Your Home Loan Toolkit can be downloaded online through CFPB’s website.

Florida Protecting Tenants at Foreclosure

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The Federal legislation Protecting Tenants at Foreclosure Act of 2009 had a sunset provision built into it.  What this does is that if it it was not specifically extended then it ended on December 31, 2014.  Many laws use this method to automatically end and in general it’s a good thing.  This law stated in essence that if there was an existing lease for market rate rents between the person being forclosed upon and the tenant then this would survive a foreclosure sale.  There were some more caveats, ins and outs to it it but this was the essence.  The point is that this is NO LONGER THE LAW.

However, in June 2015 Governor Rick Scott signed into law Florida statute, 83.561, titled “Termination of rental agreement upon foreclosure” which does NOT require the new owners to honor an existing lease agreement.  However, it does require that the new owner provide any existing tenants at least thirty days to vacate the property.  This law took effect July 1st 2015.

Following a foreclosure sale, only a ‘notice to terminate’ a rental agreement is needed. This notice allows the tenant to remain in the property for 30 days following receipt of same.  If the tenant fails to vacate the property by the end of the 30 day period, the new owner may apply to the clerk of the court for a writ of possession.  Note that the tenant must PAY RENT during this 30 day period to the new owner.  The statute also prescribes the language for the 30-day notice of termination which is as follows:

“You are hereby notified that your rental agreement is terminated on the date of delivery of this notice, that your occupancy is terminated 30 days following the date of the delivery of this notice, and that I demand possession of the premises on   (date)  . If you do not vacate the premises by that date, I will ask the court for an order allowing me to remove you and your belongings from the premises. You are obligated to pay rent during the 30-day period for any amount that might accrue during that period. Your rent must be delivered to   (landlord’s name and address)  .”

Emotional Support Animals in Florida

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I found this interesting at a recent legal symposium.  The discussion was about “emotional support animals” and a new Florida statute in regards to them.  But here’s what we found out.  First, the Florida law applies to ‘Service Animals’ as specifically defined as dogs and certain miniature ponies and more importantly the federal fair housing laws are applicable and thus supercede this state law.

A ‘service animal’  is specifically ONLY a dog or a miniature hoarse.  What we are discussing here is not a “service animal”, nor are they pets and thus they are NOT subject to HOA or Condo restrictions of any sort including breeds, type (cats only), weight restrictions, numbers (<2) etc.  Let’s look at the general HUD anti-discrimination rule. The first of the three HUD regulations implements the Fair Housing Amendments Act of 1988, 42 U.S.C. 3601 et seq. Under the act, discrimination in the sale or rental of a dwelling to a buyer or renter because of a handicap is unlawful. Discrimination includes, under 42 U.S.C. 3604(f)(3)(B), “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.”  The person who is seeking the accommodation needs to show:

  1. That the individual has a disability, as defined in the Fair Housing Act or Section 504.
  2. That the animal is needed to assist with the disability, and
  3. That the individual who requests the reasonable accommodation demonstrates that there is a relationship between the disability and the assistance that the animal provides

Persons who are seeking a reasonable accommodation for an emotional support animal may be required to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that they have a medical disability AND that the animal provides support that alleviates at least one of the identified symptoms or effects of the existing disability.

Mailing a notice for breach of Contract in Florida

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How should I send a notice for breach of a sale (or lease) Contract?

The first thing to remember is that the real estate agents are NOT parties to the Contract between the parties.  Nor are we lawyers and thus we can not create a notice from one party to another.  The notice must come from one party (say the Seller) to the other party (say the Buyer).  That notice must be delivered in accordance with the terms of the Contract between the two parties.  This is why the addresses on the sales Contract are SOOOO IMPORTANT.  These are where the notice should be addressed to the other party.

Now, most of us use the FAR BAR As-Is contract which states:

“Notice and delivery given by or to the attorney or broker (including such broker’s real estate licensee) representing any party shall be as effective as if given by or to that party. All notices must be in writing and may be made by mail, personal delivery or electronic (including “pdf”) media. A facsimile or electronic (including “pdf”) copy of this Contract and any signatures hereon shall be considered for all purposes as an original.”

Thus, what I recommend is that any Notice, say from the Seller to the Buyer for instance, should:

  • Be drafted by the Seller.
  • Be from, and signed by, all Sellers listed on the Contract (John Seller and Mary Seller).
  • Be addressed to the Buyer(s) listed on the Contract (Joe Buyer and Christine Buyer).
  • Be addressed to the Buyer(s) address listed on the Contract.
  • May be sent to the other party via mail which should be done via certified mail AND regular mail which assumes that if it properly addressed is received by the other party 5 days after mailing.
  • May be sent to the other party via personal delivery. If this is used then get the other party to sign for receipt of the Notice.
  • May be sent to the other party via facsimile or e-mail.  If the e-mail method is used then attach the Notice as a pdf and request a read receipt when sending it.
  • May be sent via any of these methods to their attorney, broker, or sales agent of that broker.  As with the methods above you will need the receiving party to acknowledge receipt of the notice.

Be aware that if the Broker (and thus their sales agent) has a No Brokerage relationship (as opposed to Transactional or Single Agency) with their party to the transaction then they are NOT representing them and thus they CAN NOT receive notices for them. This is often the case in a limited services listing and some times the case in a bank owned or REO listing.  Ask your sales agent to verify the Brokerage relationship (Transactional, Single or No Brokerage) of the other sales agent.

Florida lease for more than one year

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OK, So as a Realtor we are only allowed to fill in the blanks on pre-printed forms approved by the Florida Supreme Court.  I know that and the agents should as well.  That being said a Landlord (or a Tenant) may alter or draft any language they both agree upon.  The Florida Residential Lease for Single Family Home or Duplex states that it’s only valid for less than one year.  But why?  Well, I was told at a recent law symposium that the only difference is that in a lease for more than one year the signatures must be witnessed by 2 or more people.

“FS 689.01?How real estate conveyed.—No estate or interest of freehold, or for a term of more than 1 year, or any uncertain interest of, in or out of any messuages, lands, tenements or hereditaments shall be created, made, granted, transferred or released in any other manner than by instrument in writing, signed in the presence of two subscribing witnesses by the party creating, making, granting, conveying, transferring or releasing such estate, interest, or term of more than 1 year, or by the party’s lawfully authorized agent, unless by will and testament, or other testamentary appointment, duly made according to law; and no estate or interest, either of freehold, or of term of more than 1 year, or any uncertain interest of, in, to, or out of any messuages, lands, tenements or hereditaments, shall be assigned or surrendered unless it be by instrument signed in the presence of two subscribing witnesses by the party so assigning or surrendering, or by the party’s lawfully authorized agent, or by the act and operation of law. No seal shall be necessary to give validity to any instrument executed in conformity with this section. Corporations may execute any and all conveyances in accordance with the provisions of this section or ss. 692.01 and 692.02.”

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