| 1 | A bill to be entitled |
| 2 | An act relating to landlord-tenant relations; amending s. |
| 3 | 45.031, F.S.; requiring the clerk of court to furnish |
| 4 | certain documents and notices to certain occupants of |
| 5 | property involved in a foreclosure proceeding; providing |
| 6 | fees; providing an exception; amending s. 83.49, F.S.; |
| 7 | requiring a landlord to return a tenant's security deposit |
| 8 | after foreclosure sale; providing a penalty; amending s. |
| 9 | 83.50, F.S.; requiring a landlord to provide notice to a |
| 10 | tenant of a pending foreclosure proceeding; amending s. |
| 11 | 83.56, F.S.; providing legislative findings; providing |
| 12 | grounds for termination of a lease upon the initiation of |
| 13 | a foreclosure sale; providing liability of the tenant and |
| 14 | landlord; providing application; providing an effective |
| 15 | date. |
| 16 |
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| 17 | Be It Enacted by the Legislature of the State of Florida: |
| 18 |
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| 19 | Section 1. Paragraph (c) of subsection (1) and subsection |
| 20 | (3) of section 45.031, Florida Statutes, are amended, and |
| 21 | subsection (11) is added to that section, to read: |
| 22 | 45.031 Judicial sales procedure.--In any sale of real or |
| 23 | personal property under an order or judgment, the procedures |
| 24 | provided in this section and ss. 45.0315-45.035 may be followed |
| 25 | as an alternative to any other sale procedure if so ordered by |
| 26 | the court. |
| 27 | (1) FINAL JUDGMENT.-- |
| 28 | (c)1. A copy of the final judgment shall be furnished by |
| 29 | the clerk by first class mail to the last known address of every |
| 30 | party to the action or to the attorney of record for such party. |
| 31 | 2. A copy of the final judgment shall be furnished by the |
| 32 | clerk by first class mail to the address of the property being |
| 33 | foreclosed. The envelope shall be addressed to "Occupant" and |
| 34 | shall have printed, typed, or stamped on its face the statement, |
| 35 | "IMPORTANT--NOTICE OF FORECLOSURE SALE ENCLOSED." In addition to |
| 36 | the copy of the final judgment, the clerk shall attach a |
| 37 | separate page before the judgment that contains the following |
| 38 | statement: "The property you are living in or occupying is |
| 39 | scheduled for a foreclosure sale. A copy of the court order is |
| 40 | enclosed. The sale date is included in the order. The person who |
| 41 | buys the property at the sale may evict you from this property |
| 42 | after the sale. You may wish to contact an attorney regarding |
| 43 | your legal rights." The notice shall include any additional |
| 44 | information as directed by the trial court or the chief judge of |
| 45 | the circuit or as required by the Rules of Civil Procedure. The |
| 46 | clerk shall prepare proof of mailing and place the same into the |
| 47 | court records. The plaintiff shall pay the clerk a fee of $10 |
| 48 | for such mailing, which cost shall include the cost of copying, |
| 49 | postage, notice, and docketing. If the property is a multifamily |
| 50 | or multioccupant structure, a separate fee shall be paid for |
| 51 | each unit and a separate notice shall be mailed to each unit. |
| 52 | 3. Any irregularity in a such mailing required by this |
| 53 | paragraph, including the failure to include a this statement in |
| 54 | any final judgment or order, shall not affect the validity or |
| 55 | finality of the final judgment or order or any sale held |
| 56 | pursuant to the final judgment or order. Any sale held more than |
| 57 | 35 days after the final judgment or order shall not affect the |
| 58 | validity or finality of the final judgment or order or any sale |
| 59 | held pursuant to such judgment or order. |
| 60 | (3) CONDUCT OF SALE; DEPOSIT REQUIRED; NOTICE.-- |
| 61 | (a) The sale shall be conducted at public auction at the |
| 62 | time and place set forth in the final judgment. |
| 63 | (b) The clerk shall receive the service charge imposed in |
| 64 | s. 45.035 for services in making, recording, and certifying the |
| 65 | sale and title that shall be assessed as costs. |
| 66 | (c) At the time of the sale, the successful high bidder |
| 67 | shall post with the clerk a deposit equal to 5 percent of the |
| 68 | final bid. The deposit shall be applied to the sale price at the |
| 69 | time of payment. If final payment is not made within the |
| 70 | prescribed period, the clerk shall readvertise the sale as |
| 71 | provided in this section and pay all costs of the sale from the |
| 72 | deposit. Any remaining funds shall be applied toward the |
| 73 | judgment. |
| 74 | (d) On the day of the sale, the clerk shall furnish by |
| 75 | first class mail to the address of the property being foreclosed |
| 76 | a notice that reads: "IMPORTANT--The property you are living in |
| 77 | or occupying was sold at foreclosure sale. The person who bought |
| 78 | the property at the sale may evict you from this property. The |
| 79 | next notice you receive may be an eviction notice providing you |
| 80 | with only 24 hours to move out and remove your belongings. If |
| 81 | you do not comply with that notice, you may be forcibly evicted |
| 82 | and your belongings removed and destroyed. That notice may be |
| 83 | posted on the door. You may wish to contact an attorney |
| 84 | regarding your legal rights." The envelope shall be addressed to |
| 85 | "Occupant" and shall have printed, typed, or stamped on its face |
| 86 | the statement, "IMPORTANT--NOTICE OF FORECLOSURE SALE ENCLOSED." |
| 87 | The notice shall include any additional information as directed |
| 88 | by the trial court or the chief judge of the circuit or as |
| 89 | required by the Rules of Civil Procedure. The clerk shall |
| 90 | prepare proof of mailing and place the same into the court |
| 91 | records. The plaintiff shall pay the clerk a fee of $5 for such |
| 92 | mailing, which cost shall include the cost of copying, postage, |
| 93 | notice, and docketing. If the property is a multifamily |
| 94 | structure, a separate notice shall be mailed to each dwelling |
| 95 | unit. |
| 96 | (11) WAIVER OF NOTICE.--In a foreclosure of a multifamily |
| 97 | or multioccupant property, the plaintiff may elect to forego the |
| 98 | notice requirements of subparagraph (1)(c)2. and paragraph |
| 99 | (3)(d). In such case, the clerk shall not send notices or |
| 100 | collect the related fees, and the clerk shall not issue a writ |
| 101 | of possession to the purchaser after the sale and within that |
| 102 | foreclosure case. |
| 103 | Section 2. Subsection (7) of section 83.49, Florida |
| 104 | Statutes, is amended to read: |
| 105 | 83.49 Deposit money or advance rent; duty of landlord and |
| 106 | tenant.-- |
| 107 | (7)(a) Upon the sale or transfer of title of the rental |
| 108 | property from one owner to another, or upon a change in the |
| 109 | designated rental agent, any and all security deposits or |
| 110 | advance rents being held for the benefit of a tenant the tenants |
| 111 | shall be transferred to the new owner or agent, together with |
| 112 | any earned interest and with an accurate accounting showing the |
| 113 | amounts to be credited to the each tenant account. |
| 114 | (b) A property owner or agent of an owner whose property |
| 115 | has been sold at a foreclosure sale must return the security |
| 116 | deposits to the tenant within 5 calendar days after the sale is |
| 117 | final or within the time required in this section, whichever is |
| 118 | sooner. A property owner who fails to timely return the deposit |
| 119 | required by this paragraph commits a theft punishable under s. |
| 120 | 812.014. A court of competent jurisdiction shall award the |
| 121 | tenant restitution upon a conviction or plea of a violation of |
| 122 | this paragraph. |
| 123 | (c) Upon the transfer of such funds and records as stated |
| 124 | herein, and upon transmittal of a written receipt therefor, the |
| 125 | transferor shall be free from the obligation imposed in |
| 126 | subsection (1) to hold such moneys on behalf of the tenant. |
| 127 | However, nothing herein shall excuse the landlord or agent for a |
| 128 | violation of the provisions of this section while in possession |
| 129 | of such deposits. |
| 130 | Section 3. Subsection (3) is added to section 83.50, |
| 131 | Florida Statutes, to read: |
| 132 | 83.50 Disclosure.-- |
| 133 | (3) The landlord or the landlord's authorized |
| 134 | representative must inform prospective and current tenants if |
| 135 | the premises is in a foreclosure proceeding. The landlord or the |
| 136 | landlord's authorized representative must inform prospective and |
| 137 | current tenants if there are problems that, to the best of the |
| 138 | knowledge of the landlord or the landlord's agent, may cause the |
| 139 | premises to be subject to a foreclosure proceeding. |
| 140 | Section 4. Subsection (6) of section 83.56, Florida |
| 141 | Statutes, is renumbered as subsection (7), and a new subsection |
| 142 | (6) is added to that section to read: |
| 143 | 83.56 Termination of rental agreement.-- |
| 144 | (6) The Legislature finds that tenants have an expectation |
| 145 | that the landlord will act in good faith, as required by s. |
| 146 | 83.44. The Legislature finds that there has historically been an |
| 147 | implied covenant of quiet enjoyment attached to a lease. The |
| 148 | Legislature further finds that it is appropriate to consider |
| 149 | that the mere setting of a foreclosure sale sufficiently |
| 150 | breaches the covenant of quiet enjoyment and the expectation of |
| 151 | good faith so as to warrant the passage of a law allowing a |
| 152 | tenant the unilateral right to declare that a lease is |
| 153 | terminated once a foreclosure sale of the leased property is |
| 154 | set. Therefore, notwithstanding any provision in a lease |
| 155 | agreement, once a foreclosure sale has been set for the property |
| 156 | rented or leased, the tenant may terminate the lease agreement |
| 157 | upon 7 days' written notice to the landlord. Upon termination |
| 158 | under this subsection, the tenant is entitled to receive a pro |
| 159 | rata refund of advance rents paid. The tenant shall not be |
| 160 | liable for any sum that might be due under s. 83.595, and the |
| 161 | tenant shall not be liable to the landlord for any liquidated |
| 162 | damages, penalties, or early termination fees. Additionally, if |
| 163 | 3 or more months remained in the lease term at the time of |
| 164 | termination and the landlord failed to notify the tenant at the |
| 165 | time of the lease of the pending foreclosure case as required by |
| 166 | s. 83.50(3), the landlord shall be liable to the tenant for all |
| 167 | of the tenant's moving costs, including actual moving costs, |
| 168 | utility installation, lost employment wages, and increased rent |
| 169 | if the new lease is for comparable space, plus court costs and |
| 170 | attorney's fees. This subsection shall not apply if the |
| 171 | plaintiff has elected not to notify tenants of the foreclosure |
| 172 | under s. 45.031(11). |
| 173 | Section 5. This act shall take effect July 1, 2009. |