May 2, 2016
by Roger Bear
Florida Foreclosure Attorneys, PLLC
USFN Member (Florida)
In June 2015 Florida Statute 83.561 was enacted. The statute provides that if a tenant is occupying residential premises that are the subject of a foreclosure sale, upon issuance of a certificate of title (COT) following the foreclosure sale, the purchaser named in the COT takes title subject to the rights of the tenant. The statute specifies that the tenant may remain in possession of the premises for 30 days following the date of the purchaser’s delivery of a written 30-day notice of termination. The statute sets out a form for the 30-day notice of termination, which must be substantially followed. The distribution of the written termination notice shall be by mailing or delivery, or — if the tenant is absent from the premises — by leaving a copy at the residence.
The form of termination notice specified by the statute is set out in the text box below:
[FLORIDA] NOTICE TO TENANT OF TERMINATION
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).
Florida Statute 83.561 does not apply if:
(a) The tenant is the mortgagor in the subject foreclosure or is the child, spouse, or parent of the mortgagor in the subject foreclosure.
(b) The tenant’s rental agreement is not the result of an arm’s-length transaction.
(c) The tenant’s rental agreement allows the tenant to pay rent that is substantially less than the fair market rent for the premises, unless the rent is reduced or subsidized due to a federal, state, or local subsidy.
If any of these three exceptions apply, a termination notice is not required, and upon issuance of a COT following the foreclosure sale, the purchaser named in the COT may immediately seek the issuance of a writ of possession.
Florida is a judicial foreclosure state, and the new statute only applies to foreclosure sales held as part of a judicial foreclosure proceeding. Therefore, the new statute does not apply to properties acquired through a deed-in-lieu of foreclosure.
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Spring 2016 USFN Report