Home Selling in Miami>Question Details

Laura, Home Seller in Miami, FL

Eviction or alternative process in a short sale property, with lease stating it was in short sale.

Asked by Laura, Miami, FL Sun Sep 4, 2011

I have a property that I could not continue paying and went in short sale for a while and now finally have an offer approved. The property has been rented with a lease month to month, even though payments have been most of the time late, and the last month has not been paid. The one year lease is already expired and tenants continue living there month to month. There is a clause in the contract that states this house was in this process of short sale and that tenant should leave in 30 days notice of sale of the house. The notice was given but now the tenant refuses to leave on that date. This is a problem for me since the closing date is in 3 weeks and need the unit vacant. Having this contract signed with that special clause by tenant in the State of Florida what are my options? Can I have a sheriff vacate the unit immediately after the 30 days of the written notice or go to regular eviction process which may take more weeks?

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Laura,

I believe the beast and easy way is to negotiate with the tenants.
1- offer them that you will pay their moving expenses if they cooperate with you and move out.
2- told them that you have a right to start the eviction process against them and it will affect all of them for the next place they would like to rent plus the judge may place a judgment against all rent due.

But you have a common issue, I don't know why tenants act like that, and every day people is careless about credit, records and evictions affecting their credits.

My suggestion is ask them to move out immediately and offer them money or start the eviction process.

Remember you cannot harass them, cut their bills or access the property without their consent.
Also seek for legal advise. they may assist you and tell you what to do.
this is what I actually do with my costumers if it doesn't work. we proceed with attorneys and always remember after the eviction you need to place the judgment. which is the amount due on the rent.
Web Reference: http://www.soldbuyrent.com
1 vote Thank Flag Link Sun Sep 4, 2011
Laura most likely you will have to go through the eviction process which includes a 30 day notice to quit (the eviction tool) if they dont move you can file for a writ of possession. You should seek the advice of a real estate attorney to be sure what FL eviction laws are. You can start by going to google and type in Florida landlord tenant law and read the laws what minimums are required. Good luck with your eviction and short sale
Web Reference: http://www.ScottSellsNH.com
1 vote Thank Flag Link Sun Sep 4, 2011
Florida is a judicial evictions state, which means either you or the new owner has to evict the tenant. It is very unfortunate. Your best bet is to contact an attorney who can try to fast-track the eviction due to mitigating circumstances. One person I have worked with in the past who has been very effective at this is Derek Griffith, at the Griffith Law Group, (305) 779-4828.

You should also put the tenant on notice that as per their lease (atty can help with the wording), they are required to return the property in the condition it was given, and failure to do that may result in civil or criminal action. There is an increasing trend on the part of landlords and REO Banks to pursue owners and/or tenants who steal from properties they are vacating, or vandalize the property. If possible, get someone to photograph the vehicles in front of the house, showing the license tag numbers, so you can build a case if the need arises.

If you do have to evict them, your bank may be willing to extend a week or so to get them out. If you initiate the action, the buyer may be willling to close, and take over the problem.


One other option would be to offer them some money to vacate. S
Web Reference: http://www.myriamshomes.com
1 vote Thank Flag Link Sun Sep 4, 2011
Hi Laura, This is question you really should consult a real estate attorney on. It's so hard to get short sale approvals now a days with most lenders and/or servicers it's a shame the tenants aren't cooperating. There is a good chance the buyers will walk
1 vote Thank Flag Link Sun Sep 4, 2011
Check with a lawyer. You obviously need those squatters out as soon as possible.

One other possibility: Buy them off. Offer them some payment upon moving. You don't pay them UNTIL they've vacated the property.

Good luck.
1 vote Thank Flag Link Sun Sep 4, 2011
Don Tepper, Real Estate Pro in Fairfax, VA
MVP'08
Contact
Laura,
I'm not knowledgeable about Florida law, but banks have found honey works better than vinager. You can pursue eviction, which may take more time than you have. You can also entice them with a benefit. I realize that since you are doing a short sale, you probably don't have funds available to offer cash for keys, but perhaps your agent, the buyer's agent or the buyer or all of you together may come up with a reason and a place for these folks to go.
Cash may work, finding another home for them may work, offering a moving truck or movers may work. It's not fair and you shouldn't have to bribe people to abide with their agreements, but if they don't leave, you may not close and all involved are out.
Bottom line; pursue tracks, legal eviction and acceptable incentive. Let us know how it goes.
0 votes Thank Flag Link Tue Sep 6, 2011
Hi Laura,
And you thought the tough part was getting the contract and short sale approved? We are finding renters who actively seek out properties in foreclosure/short sale specifically so they can be delinquent in their rental payments. They figure the owners are already strapped for cash and most likely will not spend the $$$ required to file an eviction notice. You can try to negotiate "cash for keys" where you pay the renter if he vacates the property. If this does not work, then discuss this with the buyer. If the buyer is getting a really good deal then he may not mind assuming the liability of evicting the tenant after the closing or may agree to split the expense of eviction with you. Otherwise, start the eviction process as soon as possible and get them out. Please fell free to contact me if you need any more info.
Good luck,
Jose I. Gonzalez PA
Xcellence Realty
0 votes Thank Flag Link Tue Sep 6, 2011
Get your Realtor, your Realtor's Broker and an attorney. Your Realtor and Broker may have seen this situation before and have a quick contact or know how it works in the Miami area. If you need to do an eviction process you need to get it going immediately and that would be through an attorney. You may find that the Sheriff can evict them within 5 days the but do not do anything until you find out your legal rights otherwise you could end up at the wrong end of the court system. You also have to be concerned about your buyers since you have a contract with them to be out of the property at a certain date. See if you can postpone the closing for a week or so if necessary. Whatever you do - do it now.
0 votes Thank Flag Link Mon Sep 5, 2011
Get an attorney involved ASAP to get them out quickly, so that your closing is not delayed.
0 votes Thank Flag Link Mon Sep 5, 2011
Hi Laura, no wonder tenant refuses to leave, you should let tenant aware at the time you have the property for short-sale, now and days with the many issues out there, people have plans and 30 days is not enough time, they have to found another place and if they need screening to move into another place, 30 days is not enough. Could you move yourself to a new place in 30 days? How would like to be accommodated if you were the tenant?
0 votes Thank Flag Link Mon Sep 5, 2011
Hello Laura,

If a tenant is not paying his rent the landlord is entitled to file for eviction-However that takes time! usually more than 3 weeks (easily).

Have you spoken to the tenant? Do they realise if an eviction is filed and on their name/record it follows them for a verry long time!? Can you come to terms with the tenant? Forgive that month's rent in exchange for moving out AND not filing for eviction?

You should always consult your attorney for legal advice.
0 votes Thank Flag Link Mon Sep 5, 2011
Laura,

Before you show up and sign at the closing table, make sure you do not end up with a huge IRS debt on your "rental property" debt forgiveness.

You see, on a short sale if the lender forgives you the debt they will likely issue a form 1099 to you and the IRS and you will have to include that amount as ordinary income and pay federal income taxes. Let's say you have a $100k forgiveness, you could end up owing more than $25k to the IRS! So seek advice of a CPA or Tax Attorney before you sign.

Additionally if you are not specifically forgiven "in writing" on the loss then the lenders can allow the short sale and then file a judgement against you and collect 100% of their loss.

If this were your primary residence you may be able to get an exemption from including the amount forgiven on the 1099. If this has always been an investment property and you haven't used that address as your residence on your tax returns, you could end up with a significant tax liability. Oh and if you're planning to file for bankruptcy... you cannot go bankrupt on the IRS unless it's been about 3 years since you filed your return.

Please seek advise from an attorney and CPA before signing.

Hope this helps.

All the best,
Alma
http://www.SoldOnTampa.com
0 votes Thank Flag Link Mon Sep 5, 2011
Good Morning Laura,

Unfortunately, the current real estate market now has a lot more hurdles than there were a few short years ago. Your particular situation is not uncommon these days, as many homeowners that are in foreclosure have rented out their homes, and then have to deal with a tenant that may or may not be cooperative. Even when a tenant knows the home is in foreclosure, they somehow hold on to hope that the process of foreclosure will take longer to get resolved. The short notice to move does present a problem for tenants these days, as rentals are not easy to come by due to the amount of homes in foreclosure. There are also tenants out there that have been caught up in the foreclosure process, not knowing the owners were in default on their mortgages, and then find themselves having to scramble to move before they are evicted, not to mention, losing their rental deposits. Unfortunately, when you rented your home, you were running the risk that this would be a possibility, even though as you indicate you fully disclosed this to the tenant. You will definitely want to seek an attorney that can handle this for you , so that you get this resolved just as quickly as possible. You may also wish to alert you lender that you have run into this situation, and that you will need an extension to get the sale of the home closed. Good luck.
0 votes Thank Flag Link Mon Sep 5, 2011
Laura,

remember that every notification or notification you should documented so you can have proof that at the court.
Also remember that you need to proof that you deliver the 3 day notice (mail certified, or picture with the document)
Web Reference: http://www.soldbuyrent.com
0 votes Thank Flag Link Sun Sep 4, 2011
If the tenant is month to month - either tenant or landlord is allowed to give no less than a 15 day notice to the end of the monthly period. The entire month is the time period so if you noticed the tenant after the 15th of the month then they do not have to vacate until the end of the next month period. When did you give them notice - before or after the 15th of the month? How much longer are they requesting to stay? If its a matter of a few days or weeks then tell the buyer that they are moving and the specific date - make sure the buyer also understands landlord tenant law and that they technically have by Florida Statues to the end of the month if a month to month tenant.

If you have made the request for them to vacate - make it in writing and personally deliver, post on the door, or certified receipt the letter. If they do not vacate you may file a complaint (I suggest using an attorney) - once they are served they will have to respond or they can be evicted.

If you wish to use the fact that they are not paying as your reason to vacate - this may be quicker - send in writing a 3 day notice and personally deliver, post to door, or certified receipt. If they do not vacate or pay you by the 3rd full business day from receipt of the notice - you may have to add up to 5 days to your timeline for mail and if you post it you have to make sure they pick it up and start the day count from the time they pick-up the notice. Most tenants do not want an eviction on their credit report and should leave at the 3 day notice. If they do not vacate file a complaint for eviction (I suggest using an attorney).
0 votes Thank Flag Link Sun Sep 4, 2011
In Florida evictions are faily quick. Go here to find out how to do it yourself or hire an attorney:

http://www.miami-dadeclerk.com/property_landlord_tenant.asp

The 3 day notice to quit or pay rent posted on the front door may be just enough to get them to move out.

You may want to suggest that an eviction on their credit report is also not a good thing. Also I believe if you get an eviction you can also get a judgement against them and attach their wages. May be worth paying an attorney a minimal fee to write them a threatening letter.

Alternatively if the buyer is getting a spectacular deal on the short sale (by the way, don't sign at closing unless you get specific wording in writing that you are forgiven the loss) then tell them it is their problem to evict the tenant. The lenders can get a judgement and go after you for 100% of their loss including attorney fees, late fees, legal costs, etc. so make sure your approval letter specifically says you are forgiven the loss.

One other problem is if you converted your primary residence to a rental property, you could have a significant IRS Tax liability if the lender decides to forgive you the loss. The amount of the loss will be reported to the IRS on a 1099 form and you will have to include that amount as "ordinary income" and pay income tax! If you're being forgiven $100k, you could easily end up with a $30k tax bill!

Hire a CPA to advise before you go to the closing table. You may actually be better off just keeping the house as a rental... sorry to break the bad news..

Hope this helps.

All the best,
Alma
http://www.SoldOnTampa.com
0 votes Thank Flag Link Sun Sep 4, 2011
Hire a real-estate attorney, who specializes in tenant law, now. Have him/her to help you handle the eviction.
0 votes Thank Flag Link Sun Sep 4, 2011
Larua...I don't believe you can evict until the tenants have actually violated the terms of the lease....as you state, the tenant 'should' leave...until they don't leave, I don't believe you can evict....and as you say, that will take about three weeks. The ideaa of providing an incentive to leave is a good one....in effect 'cash for keys'...it it costs you$1000 to get them out, that saves the fees to the courthouse, and buys a lot of time....and a closing in lieu of going through the short sale process....again
0 votes Thank Flag Link Sun Sep 4, 2011
Definitely a legal question. There a many factors involved here and an attorney will be the best place to get answers.

Good luck!
Web Reference: http://www.mysharphomes.com
0 votes Thank Flag Link Sun Sep 4, 2011
Yes you can. Call a real estate atty. They will give you the process for eviction. Best of luck.

Debbie Albert, PA
Keller Williams Treasure Coast
0 votes Thank Flag Link Sun Sep 4, 2011
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