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Michael J Posner

Michael Posner’s Answers

6 total

  • Please help, I am living with my boyfriend who is threatening on a monthly basis to evict me

    I pay all the household bills with my ssi and after the bills are paid he is alwayd threatening to evict me, I dont recieve enough to pay and save enough to move, I cant afford to move right away van he do thid to me? We do not have a lease or ren...

    Michael’s Answer

    If your boyfriend is the owner and you do not have a lease and pay monthly rent, he can terminate your month to month lease by sending you at least fifteen days notice before the end of any monthly period. So if you paid rent for July which was due on the 1st, he can terminate effective August 31 so long as he sends you written notice by August 15.

    If he is not the owner, then he has no right to evict you, and if he refuses to allow you to stay, you can contact the owner and the police

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  • Landlord won't give back my last months rent nor my security deposit all the rent was paid in full and proper notice give

    Gave proper notice. Have been moved out over 45 days Owner will not give back my last months rent or the security deposit. All the rent has been paid. What recourse do I have?

    Michael’s Answer

    Florida Statute 83.49(3)(a) states: Upon the vacating of the premises for termination of the lease, if the landlord does not intend to impose a claim on the security deposit, the landlord shall have 15 days to return the security deposit together with interest if otherwise required, or the landlord shall have 30 days to give the tenant written notice by certified mail to the tenant's last known mailing address of his or her intention to impose a claim on the deposit and the reason for imposing the claim.

    You should send a written demand to landlord for the return of the deposit and advis ethe landlord that the statute specifically states:

    If the landlord fails to give the required notice within the 30-day period, he or she forfeits the right to impose a claim upon the security deposit.

    Please note that if you terminated early, your lease may specifically state that you forfeit the last month's rent and security. Most leases that have an early termination clause impose some penalty whicg could include both the last month's rent and security. If not, then you should get both back.

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  • Really confused in Florida as to best option for me/family. Fight foreclosure or Foreclosure & BK?

    My story - laid off a great job in 2006 & for over 2yrs been trying to sell a home we've been living in w/ no luck. It's probably worth $200k under what I paid for it. Life savings r gone trying to keep the house and I finally stopped paying in No...

    Michael’s Answer

    Avoiding a deficiency judgment is something you should negotiate with the lender. The best way to do this is through a short sale. It seems that if you have been trying to sell for two years either you are overpriced or have a bad realtor. Get updated comparables, and try to get a pre-approved short sale price from the lender with the agreement to waive the deficiency.

    If the loan was for acquiring or improving your primary residence then the debt forgiveness may qualify for exclusion from ordinary income tax by filing Form 982. Your purchase of a new home may affect this issue. Taxes have a limited discharge in bankruptcy.

    Fighting probably makes no sense since you have moved and delaying only increases the balance due on the loan. However, you can always fight the valuation if the lender seeks a deficiency judgment.

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  • What happens with a Second Deed of Trust when the First Deed of Trust is paid off?

    I have a Second Deed of Trust on an acre of land. "Second Deed of Trust" is clearly stated on the Deed of Trust. Now that the first Deed of Trust is paid off what happens with my second deed ? Will it automatically move to a First based on the fil...

    Michael’s Answer

    A second deed of trust/mortgage is subordinate to the lien of the first deed of trust/mortgage. If that loan is paid off, the second lien moves up into first position and no action needs to be taken to make the second deed of trust a first deed of trust. However, if a new loan is taken and recorded, and the proceeds of that loan were used to pay of the first deed of trust, that new lender may have priority based on equitable subrogation, which literally means that the new lender steps into the shoes of the old lender, thereby gaining priority.

    The amount of the deposit on a land sales contract has no effect on your deed of trust.

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  • Can they legally charge me over $4,000 when they re-rented unit before I moved out + kept my deposit?

    I moved out early breaking agreement. Landlord re-rented unit prior to me moving out so I could not stay after I had a change of heart--because of the penalties they were imposing--over $4,000. They immediately rented unit, kept my deposit and h...

    Michael’s Answer

    The general rule is that a landlord must mitigate their damages by attempting to re-rent the premises. SInce it appears from your question that the landlord did not have have any vacant period, the only amount you should owe would be the damages caused by your breaking the lease. Otherwise the landlord will be unjustly enriched.

    The applicable law is as follows and the key is the duty to mitigate. Use the statute to determine what you owe and ask the landlord for a refund if they took too much money.

    RCW 59.18.310
    Default in rent – Abandonment – Liability of tenant – Landlord's remedies – Sale of tenant's property by landlord.

    If the tenant defaults in the payment of rent and reasonably indicates by words or actions the intention not to resume tenancy, the tenant shall be liable for the following for such abandonment: PROVIDED, That upon learning of such abandonment of the premises the landlord shall make a reasonable effort to mitigate the damages resulting from such abandonment:

    (1) When the tenancy is month-to-month, the tenant shall be liable for the rent for the thirty days following either the date the landlord learns of the abandonment, or the date the next regular rental payment would have become due, whichever first occurs.

    (2) When the tenancy is for a term greater than month-to-month, the tenant shall be liable for the lesser of the following:

    (a) The entire rent due for the remainder of the term; or

    (b) All rent accrued during the period reasonably necessary to rerent the premises at a fair rental, plus the difference between such fair rental and the rent agreed to in the prior agreement, plus actual costs incurred by the landlord in rerenting the premises together with statutory court costs and reasonable attorney's fees.

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  • Under FL landlord tenant laws is there a one year limit to rental leases with a property management company

    I was told by a realtor that in Florida, a rental lease cannot be signed for more than 1 year with a property management company. I cannot however find any statutes that state this. Where can I find this information ?

    Michael’s Answer

    There is no one year limit on rental leases in Florida. However, FS 689.01 specifically requires that leases for a longer than one year must be witnessed by two subscribing witnesses to be valid. This rule is tempered by several judicial decisions that have somewhat waived this requirement if the tenant has already taken possession of the residential rental property.

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