Real Estate Frequently Asked Questions

Why Should I Care About Recording The Deed To My New Property?

The deed to real property is the written legal document that transfers the ownership of the property from the seller to the buyer.  In exchange for the purchase price, the deed gives the buyer formal title.  However, the interest in the real property is not completely transferred until the deed is delivered to the buyer and accepted by the buyer.  Once the deed is accepted, it should be recorded as soon as possible.  The deed needs to be recorded with the county clerk in the same county as the property is located as soon as possible.

Recording the deed gives notice to all potential buyers in the future that the buyer has an ownership interest in that piece of real property, and tracks ownership by giving the names of all the buyers and sellers in chronological order.  A search must be performed at the county clerk’s office in order to make sure that a seller has legal ownership of the real property they are attempting to buy.  This search should be done prior to the sale of any real property.  Usually a title insurance agent will conduct the search to find if there has been anything defective in past transfers and conveyances.  Any defects that are found can be excluded from the title insurance coverage, which makes it important for the buyer to review the title insurance.

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How Does A Quitclaim Deed Work?

If the grantor has present interest in the property, a quitclaim deed will “release” (transfer) that interest to the person receiving the property.  It should be noted that a quitclaim deed does not carry any implied or express guarantees or covenants like a warranty deed.  This means that if there is no interest in the property controlled by the grantor, nothing will be conveyed by the quitclaim deed.

What Are Some Common Types Of Property Ownership, And How Are They Different?

Some different types of property ownership can seem very similar to others, so it is important to pay attention to the details in order to find the right one.  Here is a quick synopsis of the most common types:

• Sole Ownership:  The simplest one to define.  This is property completely owned by only one person.  Language used in the deed to establish title as a sole ownership may read (for example), “Michelle Robinson, a single woman.”

• Tenants in Common: This is a type of co-ownership in which property is owned by at least two people at the same time.  There need not be equal proportionate interests or right to possess the property among the tenants.  Upon the death of a tenant, the interest of the decedent will pass to their heirs.  The heirs will then become the new tenants in common among the surviving original tenants in common.  Language used in the deed to establish a tenancy in common may read (for example), “Moses Robinson, Lawrence Robinson, and Jerome Robinson as tenants in common.”

• Joint Tenancy: This type of co-ownership is for when at least two people own the same property, at the same time, with equal shares.  Each joint owner has a proportionate right of equal ownership interest, and an undivided right to possess the whole property.  Upon the death of a joint tenant, their interest will only pass to surviving joint tenants if it is clear that there is a right of survivorship. While this type of property ownership is not available in all states, language used in the deed to establish joint ownership may read (for example), “Julie Robinson and Leonard Robinson, as joint tenants with right of survivorship.”

• Tenancy by the Entirety: This is a type of property ownership reserved specially for married couples, with each person owning 50% of the property.  If one spouse wants to sell the property, the other must give their consent.  This is another type of property ownership that is not available in all states.  In Florida, it is available.  Language used in the deed to establish a tenancy by the entirety may read (for example), “Ralph Robinson and Alice Robinson, husband and wife, as tenants by the entirety.”  If the words “tenants by the entirety” are not in the deed, but “husband and wife” is, a tenancy by the entirety will be assumed.

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What Are The Differences Between A Cooperative (“co-op”) And A Condominium (“condo”)?

When tenants live in a co-op, they do not own their individual apartments.  Instead, they own stock in the corporation that owns the entire building and the apartments therein.  Tenants lease their apartments from the corporation that owns the building.  The management of the building is overseen by a Board of Directors.  The corporation uses a formula to determine the price of the lease based on the size of the apartment.  Since the tenants are shareholders in the corporation, they are given a say in who is elected to the Board of Directors.

When someone buys a condo, they are buying the individual unit within a multi-unit structure of a building.  A tenant will normally have a right to use communal areas such as swimming pools, gyms, hallways, stairs, and other such areas within the structure.   The communal areas are maintained by an “association,” to which the owners pay a monthly fee for the up-keep.  The condo association helps protect the rights of the individual owners by having a complaint process in place, and gives them a way to resolve disputes from within.

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In terms of real estate, what is “Closing?”

In a real estate transaction, the closing is the final meeting among all the parties involved.  Typically, the buyer and the seller meet with attorneys representing the buyer, seller, and the bank to sign the final papers and transfer title over to the buyer.  The title insurance company will have a representative in attendance to facilitate the transfer of title and record the new deed.

How Does A Three Day Notice Work? When Is It Used?

A Three Day Notice is a notice from the landlord to the tenant issued when the tenant has not been paying their rent.  It states that the tenant has 3 days to pay all the rent that is due (as of the date on the notice) or vacate the premises.  Only rent that is already due may be requested in a Three Day Notice.  No other amounts, including the tenant’s next rent payment, may be included.  It is important that the wording used is correct, or it may not be valid in the state of Florida.

Would I Be Held Liable If I Have To Break My Rental Agreement?

I’m in the military and want to rent a house. I’m concerned about entering into a rental agreement in case I am forced to move without a lot of notice. Would I be held liable if I have to break my rental agreement?

Thankfully, Florida understands that service members may not be able to uphold rental agreements so it is important to include a military clause in your lease.  While there are restrictions, Florida Statutes have made some provisions that allow service members to terminate rental agreements prematurely.  Contact an attorney experienced in these matters to discuss the situation.

How Long Does My Landlord Have To Give To Let Me Know They Don’t Want To Renew Our Rental Agreement?

In cases of tenancy at will, both the landlord and the renter are responsible for giving the same amount of notice to the other party when one decides to end the rental agreement.

When tenancy is year to year, no less than 3 months’ notice before the end of the tenancy cycle must be given
When tenancy is quarter to quarter, no less than 45 days’ notice before the end of the tenancy cycle must be given
When tenancy is month to month, no less than 15 days’ notice before the end of the tenancy cycle must be given
When tenancy is week to week, no less than 7 days’ notice before the end of the tenancy cycle must be given

If there is a written agreement, signed by the landlord and tenant, then that agreement could govern the amount of time required to give notice of non-renewal. Remember, it is important to review any written agreement thoroughly to determine if there are notice provisions, and follow those provisions set out in the agreement.

What Is a Tenancy At Will?

A tenancy at will is a rental agreement in which the agreement continues from one rent cycle to the next, until either party decides to end the agreement.  Examples would include a family renting a house from month-to-month, or an apartment from week-to-week.  So long as both parties wish to continue the agreement, the tenancy will continue accordingly.

What Is a Tenancy of Duration?

A tenancy of duration means that in a rental agreement, there is an agreed-upon termination date to the renter’s tenancy.  A simple example would be an agreement to rent a house with a one-year lease, and agreeing to pay rent on a month-to-month basis.  Once the year has concluded, the lease would expire, at such time it would be up to the property owner to decide whether to renew or extend the lease.  Because there is a time-limit on the lease, the renters are agreeing to a tenancy by duration.

Is My Landlord Allowed To Shut Off My Utilities If I Owe Rent Or In An Attempt To Get Me To Move Out?

Absolutely not.  Even if your landlord is the one who pays for certain utilities, they are not permitted by law to shut off or interrupt those services as a means of punishment for past-due rent.  In fact, the tenant may be able to sue for damages if the landlord shuts off utilities without permission from you.  Contact an experienced attorney with any questions.

Can My Landlord Legally Change Locks?

I came home from the store to find the locks changed and all my belongings out by the street. I was never served any type of eviction notice and my rent is up-to-date. Can my landlord legally do this?

No.  A landlord must go through the proper legal channels and lawfully evict a tenant before these actions can be taken.  Contact an experienced attorney right away, as the landlord may be liable for damages.

What Are My Responsibilities And Rights As A Tenant?

Florida law grants tenants certain rights, regardless of whether the landlord is an individual or a corporation, and whether or not there is a written rental agreement.  If there is a written rental agreement, Florida law will be applied to resolve any conflict in terms between the rental agreement and Florida Statutes.  The tenant has the right to live peacefully and have privacy once they rent the property.  If there is ever a court proceeding involving the landlord and the tenant, the tenant has the absolute right to be present, argue their case, and have an attorney represent them.

The most obvious responsibility of the tenant is to pay their rent in full at the agreed-upon time.  The tenant must keep the property clean and in an undamaged condition, save for normal wear and tear, and to maintain the plumbing. It is the responsibility of the tenant to comply with all local housing, health, and building codes.  The tenant may not disturb the peace or violate any laws, nor allow any guests to violate laws or disturb the peace while in the property.

If the tenant moves out and the landlord decides to keep all or a portion of the security deposit, the tenant has the right to object to the landlord’s claim on the security deposit, in writing, within 15 days of receiving the landlord’s written notice that not all of the security deposit will be returned.  If it is found that the tenant should have their security deposit returned in full, they may be eligible to collect interest in addition to the full amount of their security deposit.  The tenant has the responsibility to provide the landlord with an address where the landlord can send the tenant’s security deposit.  If the tenant fails to provide this, they could lose their right to object if the landlord keeps the security deposit due to an inability to return it.

Chapter 83 of the Florida Statutes permits tenants to withhold rent under certain circumstances. The Florida Bar, has noted this right “under certain very aggravated circumstances by the landlord’s neglect,” the right to withhold rent.  The landlord must fail to comply with an important responsibility, and the tenant must have given seven days written notice to the landlord regarding the problem.  Even if the landlord does not get the problem fixed within those seven days, it is important that the tenant save the rent money and get permission from the court to spend the money toward fixing the problem.  If the tenant spends the money to fix the problem without first being granted permission by the court, they could be evicted by their landlord for nonpayment.

Another obvious right of the tenant is the right to move out.  There may be specifications as to when and how much notice needs to be given so review an agreement carefully to ensure compliance.

There are many more rights and responsibilities one has as a tenant.  For a full description of residential tenant rights, see Florida Statutes Part II, Chapter 83: Florida Residential Landlord Tenant Act. In addition, if a tenant lives in rental housing that is federally subsidized, the tenant has certain rights under federal law as well that govern that particular lease.

What Are My Responsibilities And Rights As A Landlord?

First of all, landlords have the right to collect rent for the use of their rental property.  Secondly they have the right to have their rental property returned to them undamaged at the end of the rental agreement, save for everyday wear and tear.  Landlords also have the right to protect the property via inspection, but must give at least 12 hours of reasonable notice.  This last part means that a landlord cannot show up at 2:30am to inform the tenants that there will be an inspection at 2:30pm.  Note that in the case of an emergency, the inspection notice may be shortened or waived entirely.

Several of the most basic duties of the landlord are as follows:

• Provide a safe home that meets the requirements of the local health, safety, and building codes, making reasonable repairs as necessary

• Respect the rights of the tenant

• Respect the tenant’s right to peaceful possession, which prohibits the landlord from entering the property at odd hours, frequently, and/or without notice

• Follow state and local laws regarding the condition and use of the property

Again, these are only a few of the most basic rights and duties one has as a landlord.  Additionally, a landlord must also abide by any conditions set down in the rental agreement.  While the rights and duties of a landlord are enforceable even if there is no written rental agreement, it is strongly recommended to have a written rental agreement to avoid future confusion or dispute.  For a full description of residential landlord rights, see Florida Statutes Part II, Chapter 83: Florida Residential Landlord Tenant Act.  Consult an attorney experienced in Tenant/Landlord Law for any questions regarding the rights of landlords and for assistance in drafting a rental agreement.

Do I Need To Have A Written Rental Agreement, Or Is An Oral Agreement Enforceable By Law?

It depends.  First of all, it is strongly recommended that any rental agreement be written in clear, simple language, as oral contracts are more open to misinterpretation and, honestly, lapses of memory.  Under normal circumstances, oral rental agreements are enforceable as tenancies at will as long as it is for one year or less.  If the rental agreement states that the tenancy is for longer than one year at a time, then the rental agreement must be in writing to be enforceable.  So a rental agreement that states the renter is to pay rent every month may span well past one year without having to be in writing because the term in only one month at a time, but a rental agreement stating that rent is to be paid every 18 months or every 2 years (as examples) must be in writing to be enforceable.

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