Real Estate – Taking Title To a Home – What To Do With Prior Owner’s Property?

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Cuevas, Garcia & Torres, P.A.

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Andrew Cuevas, Esq. - President
E-mail: [email protected]

Tel: (305) 461-9500/(407) 992-2251
Facsimile: (786) 362-7127

Introduction

Mr. Andrew Cuevas, Esq., is the President of Cuevas, Garcia & Torres, P.A., and Vantage Property Title Company. Cuevas, Garcia & Torres, P.A., provides legal services in the areas of Community Association Law, Corporate Law, Real Estate law, and Business Immigration, including title insurance services through Vantage Property Title Company. If you have any questions regarding this article or any other questions, you may contact Mr. Cuevas at (407) 992-2251 / (305) 461-9500 or via e-mail at [email protected]. If you are interested in reading previous newsletters, please visit www.cuevaslaw.com, select the icon for Newsletters, and then choose the area of law you are interested in.

When you obtain legal title to a home, it can be pursuant to a pleasurable transaction such as a purchase that goes smoothly. Legal title to a home can also be obtained through litigation which results in a foreclosure sale. This article briefly analyses what to do with personal property found in a home when you obtain title pursuant to an association foreclosure action.

In the case of Cohen v. Banon5, LLC, 252 So. 3d 298 (Fla. 3rd DCA, July 18, 2018), Banon5 purchased a condominium unit at a foreclosure sale. After Banon5 obtained a writ of possession, the police were brought to the unit to dispose of the prior owner's personal property. The Prior Owner sued Banon5, its agent and the condominium association for civil theft, conversion, replevin and negligence alleging they did not allow the Prior Owner a reasonable time to remove the personal property from the unit after the writ of possession was obtained. The trial court dismissed Prior Owner' complaint and the Prior Owners appealed to the Florida Third District Court of Appeal.

The Court of Appeal reversed the lower court's dismissal of Prior Owner's Complaint. The lower court (trial court) was correct in that the Landlord Tenant Act, Florida Statutes §83.62 did not apply to the instant action since the right to obtain possession was not based on an eviction. Section 83.62 allows for the landlord or an agent of the landlord to "remove any personal property [of the tenant being evicted] found on the premises to or near the property line." When that procedure is followed, "neither the sheriff nor the landlord or the landlord's agent shall be liable to the tenant or any other party for the loss, destruction, or damage to the property after it has been removed. F.S §83.62. However the lower court was incorrect in dismissing Prior Owner's Complaint because the Banon5, obtaining title, did not have the right to dispose of the personal property as it saw fit, as discussed below.

In the instant matter, the writ of possession was not issued as a result of an eviction but instead of a foreclosure action. The Final Judgment of Foreclosure issued by the court solely addressed taking possession of the real estate by the new title holder, but did not address how to handle the personal property located within the real estate. Even though the mortgage may have addressed the management of the personal property within the real estate, the concept of "legal merger" eliminated the enforceability of the mortgage upon the entering of the Final Judgment, which means that the Final Judgment became the enforceable document once it was issued by the Court.

Since the Landlord Tenant Act did not apply, and since the Final Judgment did not address the disposition of personal property located within the real estate, the Appellate Court ruled that the case should be remanded for further proceedings because the Prior Owner was not allowed access to the unit to remove their personal property after the writ of possession was issued. Therefore the trial court should have further proceedings to analyze the claims of civil theft, conversion, replevin and negligence by Banon5 and the condominium for not caring for Prior Owner's personal property within the unit. In other words, the foreclosure sale which resulted in Banon5 obtaining title to the unit only included the unit that was sold, not the personal property within the unit.

The moral of the story is that possession is not always 99% of the law. The person who lost possession to the real estate might have some surviving rights to their personal property within a unit after a foreclosure sale. This would lead to further analysis of issues of bailment and storage of property - an issue for a later newsletter.

This article is solely a partial explanation of all the issues related to the topic of this newsletter, and is not to be considered legal advice. Associations should seek legal advice for all issues related to this article. This Newsletter is for informational purposes only and should not be relied upon as a legal opinion.