Emotional Support Animals in Florida
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:
- That the individual has a disability, as defined in the Fair Housing Act or Section 504.
- That the animal is needed to assist with the disability, and
- 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
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
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.”
Florida Landlord Security Deposits
I will assume here that we are talking about a typical scenario where the the Landlord will not be posting a surety bond.
In Florida, if a Tenant gives advanced rent then only the first and second rental periods (usually months) may be distributed to the Owner and ‘spent’ on the first day of the lease. The third period (month?), fourth etc., last period and security deposits must be held in a separate Florida banking institution. The funds in this bank account must NOT be comingled with other funds of the Landlord. AND, the Landlord must acknowledge the funds being held and notify the Tennant in which Florida banking institution the funds are being held. The following sections of the statute apply:
- ‘FS 83.49?(1)Whenever money is deposited or advanced by a tenant on a rental agreement as security for performance of the rental agreement or as advance rent for other than the next immediate rental period, the landlord or the landlord’s agent shall either:?(a)Hold the total amount of such money in a separate non-interest-bearing account in a Florida banking institution for the benefit of the tenant or tenants. The landlord shall not commingle such moneys with any other funds of the landlord or hypothecate, pledge, or in any other way make use of such moneys until such moneys are actually due the landlord;’
- ‘FS 83.49 (2) The landlord shall, in the lease agreement or within 30 days after receipt of advance rent or a security deposit, give written notice to the tenant which includes disclosure of the advance rent or security deposit.’ And the name and address of the banking institution.
I use the following Notice which incorporates the required language of the statute….
This serves as Notice from the Landlord to the Tenant that the Landlord is holding [$x,xxx.xx] of advance rent or security deposit. These funds are being held in a non-interest bearing account at the following Florida banking institution: [INSERT NAME AND ADDRESS OF THE BANK]
YOUR LEASE REQUIRES PAYMENT OF CERTAIN DEPOSITS. THE LANDLORD MAY TRANSFER ADVANCE RENTS TO THE LANDLORD’S ACCOUNT AS THEY ARE DUE AND WITHOUT NOTICE. WHEN YOU MOVE OUT, YOU MUST GIVE THE LANDLORD YOUR NEW ADDRESS SO THAT THE LANDLORD CAN SEND YOU NOTICES REGARDING YOUR DEPOSIT. THE LANDLORD MUST MAIL YOU NOTICE, WITHIN 30 DAYS AFTER YOU MOVE OUT, OF THE LANDLORD’S INTENT TO IMPOSE A CLAIM AGAINST THE DEPOSIT. IF YOU DO NOT REPLY TO THE LANDLORD STATING YOUR OBJECTION TO THE CLAIM WITHIN 15 DAYS AFTER RECEIPT OF THE LANDLORD’S NOTICE, THE LANDLORD WILL COLLECT THE CLAIM AND MUST MAIL YOU THE REMAINING DEPOSIT, IF ANY.
IF THE LANDLORD FAILS TO TIMELY MAIL YOU NOTICE, THE LANDLORD MUST RETURN THE DEPOSIT BUT MAY LATER FILE A LAWSUIT AGAINST YOU FOR DAMAGES. IF YOU FAIL TO TIMELY OBJECT TO A CLAIM, THE LANDLORD MAY COLLECT FROM THE DEPOSIT, BUT YOU MAY LATER FILE A LAWSUIT CLAIMING A REFUND.
YOU SHOULD ATTEMPT TO INFORMALLY RESOLVE ANY DISPUTE BEFORE FILING A LAWSUIT. GENERALLY, THE PARTY IN WHOSE FAVOR A JUDGMENT IS RENDERED WILL BE AWARDED COSTS AND ATTORNEY FEES PAYABLE BY THE LOSING PARTY.
THIS DISCLOSURE IS BASIC. PLEASE REFER TO PART II OF CHAPTER 83, FLORIDA STATUTES, TO DETERMINE YOUR LEGAL RIGHTS AND OBLIGATIONS.
Florida Property Tax Portability
Here’s a question that most people don’t ask BUT SHOULD: What is property tax portability?
A few years back when values were sky rocketing people who have lived in Florida and had a homesteaded property for a long time would not move as they would see their tax bills go through the proverbial roof. Well, the citizens all got together and amended the Florida Constitution in 2008 which the legislature later codified with FS 193.155. Unfortunately, this all happened just as home prices plummeted and everyone forgot about it. Now however prices are on the rise again and we need to be reminded of this little loop hole. Homesteaded property owners are able to transfer their Save Our Homes (SOH) benefit (up to $500,000) to a new homestead within two years of giving up their previous homestead. This is called Tax Portability
Here’s how it works. Let’s say on January 1st 2015 you owned a homesteaded property with an appraised value (“Market Value”) of 162k but an assessed value (“Taxable Value”) of just 104k. You have 58k (162k-104k) of portable tax savings. You sell this house in July 2015 and buy another house in August 2015 and establish house #2 as your new homesteaded residence. PLEASE keep in mind at this point that although one can file the Homestead Exemption form up to 1 March 2016 however that form states that on 1 Jan 2016 you were a Homesteaded resident of property #2. DON’T wait to change your license, voter registration etc. Also, note that the tax savings are portable for 2 years so you could buy a house in 2016 and use this benefit. For this example, I will assume you buy a house in 2015 and you apply for a new homestead exemption for house #2 as well as file form DR-501T on time.
Now, we go into the next tax year being 2016. In August 2016 you will get a Notice of Proposed Property Taxes which will outline the math. In the first example the market value of house #2 is 300k which is greater than that of house #1 and thus up to 500k in savings is be portable. The 2016 tax value of house #2 is thus 300k – 58k = 242k. This amount less 50k exemption amount is your new valuation used to calculate the ad valorem portion of the tax bill.
OK, but what about if one is downsizing to a home of lesser value of say 125k? If the value of the new home is less than that of the previous homesteaded property then only a percentage of the tax savings is portable. The new Assessed Value is equal to the (Just Value of New Home / Just Value of Old Home) x Assessed Value of Old Home. In this scenario the percentage of portable tax savings is then (125k/162k)*104k = 80,247k. This amount less 50k exemption amount is your new valuation used to calculate the ad valorem portion of the tax bill.
In either case this taxable value of homesteaded properties may only go up after this first year by the prescribed amount being the LESSOR of 3% or the annual change in the Consumer Price Index, whichever is less.
Homeowners may transfer their SOH benefit to a new homestead anywhere in Florida within two years of leaving their former homestead if the new homestead is established by January 1. For example, if you moved during 2014, the exemption remains on your home until December 31, 2014. You have until January 1, 2016 to qualify for a new exemption and port the benefit to a new homestead. This provision applies to all taxes, including school taxes.
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