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S. David Cooper

S. Cooper’s Answers

556 total


  • What is quick-claim deed ?

    dispute of land ownership

    S.’s Answer

    Actually, there is no such thing (at least in Florida) as a "quick-claim" deed, and I hate that name. Mostly, I hate that people call the "quit claim deed" a "quick claim" because it implies that these types of deeds are somehow quicker or cheaper to do. They are not. They cost exactly the same to prepare and to record. You are not alone in your confusion. Many lawyers who do not practice real estate (and shockingly, some who do) have no idea what the purpose of a quit claim deed is. There are specific legal situations where the answer is to use a Quit claim Deed, but those situations are very limited. I cannot think of any reason to use them in a typical purchase/sale transaction or even a gift of property between family members.

    There are, basically, three types of deeds that are commonly used to transfer property between parties: Warranty Deed, Special Warranty Deed, and Quit Claim Deed. The only difference, other than the language, is what is being promised. When a seller gives a Warranty Deed, it is just like getting a warranty on that new iPhone. The seller is promising that he is legally allowed to sell the property and that there are no problems in the title and that there are no liens or responsibilities you don’t know (or should know) about. If you later find out there are any problems, you can sue the seller (or make a claim against the policy if you have title insurance). A Special Warranty Deed is what you will almost always get when buying a new home from a developer. It is still a promise...but not as strong. When transferring the property via a Special Warranty Deed, the seller is saying, "I promise that there have been no problems with the title since I purchased it. I'm not making any promises about what happened before I owned it." Finally, the Quit Claim Deed is the worst of them all. When transferring a property by Quit Claim, the seller is doing just that -- quitting. He is saying, "I'm out. I am not making any promises about any rights I might or might not have had in the property, but whatever I have, it is yours." This is basically, the "as is" type of deal on a new car. "Hey! If it breaks down, don't blame me." If there are any problems found with the title, such as your dispute over who actually owns the land, the receiver of a Quit Claim Deed is unprotected. If the seller had no right to transfer the property, then the buyer never received anything. On top of that, because the seller gave a Quit Claim Deed, he never made any promises that he had anything to give, which means the buyer can't sue him based on the deed (there may be other ways to sue depending on the facts of the case, but not based solely on the Quit Claim Deed).

    It is easy to see, then, that as a buyer, you should never accept a Quit Claim Deed without an experienced real estate attorney advising you why it is the right deed for that situation. You can demand a Warranty Deed from almost anyone. Typically, the only ones who will refuse to provide a Warranty Deed are big developers/builders, selling new homes. They are the ones with the negotiating power to do that. If you want to purchase from them, you will have to accept a Special Warranty Deed. If you are in a dispute over the ownership of the land, I strongly suggest you hire an experienced real estate attorney to assist you. You don't want to take a chance on something so important. Do or do not. There is no try.

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  • Do I have to make any of these repairs?

    I live in Hudson Fl. in a mobile home community. My fridge is warm, and not running. 2 of the stove coils and burners are not working. The exhaust fan above the stove is broken. Basically deplorable conditions. They won't replace anything. Managem...

    S.’s Answer

    Mobile homes are special creatures. First of all, it might make a difference whether you live in a mobile park community, which is governed by Ch. 723 of the Florida statutes, or if you live in a condominium made up of homes that look like mobile homes, which would be governed by Ch. 718. For that matter, it could be a co-op governed by Ch. 719, a deed restricted community governed by Ch. 720, or even a mixture of those.

    The reason for the confusion is that we have to know WHAT exactly you are renting, and WHO exactly the landlord is. Because you are expecting the management company to repair the mobile home, I am assuming that you do not own it. If you did, you would know that you have to repair your own mobile home. In mobile home parks, the owner may rent just the lot or he might rent the lot AND a mobile home.

    When just the lot is rented, the mobile home is owned by somebody else. Many times this is the mobile home park tenant, but it might not be. For example, if I rent a lot from park owner, I can put my own mobile home on that lot. I can live there, or I can rent out the mobile home to somebody else. If I rent out the mobile home to someone else, I am the park's tenant and the person living there is MY tenant -- not the tenant of the mobile home park. If my tenant has any problems with the mobile home, they have to address it with me, not the park's management company. The management company just represents the park owner. What confuses things even more is that many park owners rent just lots to some people and ALSO rent lots AND homes to other people in the same park. In that case, the park owner / landlord is also the mobile home owner / landlord of those mobile homes he owns. There could also be a rental program of owner's that pool together and allow the management company or some other company to manage the lease obligations. As you see, mobile homes can get quite perplexing.

    The first thing you have to do is look at your lease and find out whether the landlord or the tenant is responsible for making the repairs. Then, if the lease says your landlord has to pay for repairs, you need to figure out who your landlord is and address the problems to the landlord. If the landlord is not the park owner, then the management company has nothing to do with it.

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  • Laws regarding security deposit in FL

    In Fl, landlord has 15 days to return security deposit or 30 days to notify why they're not returning it? Is that correct? If not what is the law l. Also, if that is the case, what if they exceed the 15 days? For example if they return it on the 3...

    S.’s Answer

    FYI..I agree with Attorney Lampert. He explained that you really would not have any extra damages worth complaining about, so the reality is whether they refund you on day 14 or day 24, there is no real difference. In practice, it is really a 30-day limit to return the money or make a claim. You should keep in mind, however, that even if the landlord must return the full security deposit for failing to notify you within 30 days, he can still sue u for any damages. As you see, this statute really doesn't do a whole lot for tenants most of the time. Typically, the landlord will just withhhold what he feels should be withheld, and the tenant will then have to sue and prove that the landlord withheld too much.

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  • Can i recover my full security deposit?

    Hi My question relates to a security deposit refund in the state of Florida. I know the landlord is required to notify the tenant within 30 days after moving out if the landlord has any claims against the security deposit. My previous landlord cl...

    S.’s Answer

    You have a couple of issues here. One is regarding “receipt” of the notice, but the more important one is what the whole “notice of intent to impose a claim” and a tenant’s “objection” really mean. In Florida residential tenancies, if a landlord wishes to withhold some or all of the security deposit, he has to send a notice to the tenant saying so within 30 days after the end of the lease. The tenant then has 15 days from “receipt” of that notice to send an objection. Although the statutes uses the word “receipt” there is another statute that, basically, says that it does not matter if you really receive it or not. A letter sent by certified mail will be “deemed” received 5 days after mailing it. The landlord has proof that he mailed it, so it is deemed “received” 5 days after that.
    Now, what do all these time limits really mean regarding how much money you are owed? Absolutely nothing! This is probably the most confusing part of this statute. Essentially, the only thing this statue has to do with is the question of what is the landlord allowed to do with the security deposit. Does he have to give it all back, or can he keep some of it? IF the landlord follows the statue and sends the notice within 30 days AND you do not object within 15 days, THEN the landlord may withhold the amount he claims. That is the only way. Any other scenario, and the landlord must return 100% of the security deposit, plus any interest earned. Here is the important part – just because the statue allows him to withhold some of the security deposit that does not mean that the landlord is entitled to keep that money. Likewise, just because the landlord is required to refund you 100% of the security deposit that does not mean that you are free and clear from any debt to the landlord. The statute ONLY deals with what to do with the funds…before anyone argues over what is really owed.
    Both the landlord and the tenant are free to sue the other party if they think the amount refunded or withheld is incorrect. It is also important to remember that the loser in such a law suit will probably have to pay the attorneys’ fees and costs of the winner, so make your decisions wisely. The lesson for tenants is not to object to legitimate claims just to get back the full security deposit. You should always ask the landlord to prove the damages and costs of repairs if you have any doubt. Many unsophisticated or ill-advised landlords will attempt to improve their property at the expense of the tenant. For example, they will claim that there is a carpet stain in the bedroom and will charge the tenant for replacing the carpet throughout the whole property or for replacing the bedroom carpet with a higher quality carpet, tile, or wood. The lesson here for landlords is not to inflate the claims. The lesson for both parties is to be fair and reasonable and to try to avoid going to court.

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  • Secondhand smoking neighbors complaint?

    My neighbor that lives upstairs posted a complain at my door about smoking coming from my unit to theirs , he is threatening to complain to the condominium association and take legal action . Facts : I don't smoke often in my condo , there is n...

    S.’s Answer

    The condo association could have some rules to change my thoughts on this, so no answer is complete without a thorough review of the governing documents; however, it is highly doubtful that he would be successful in a law suit against you for occasionally smoking in your condo or in any place where you are not prohibited to smoke. In cases where cigar shops have been sued for the "nuisance" it is quite clear the level of smoke and aroma (or odor depending on perspective) coming from such a place, constantly, is substantial. Courts in Florida overwhelmingly support the position that people who choose to buy in a condo have to live with a lot of "annoyances". They have held that condo owners have to have "thick skin". Putting up with the occasional cigarette smoke would seem to be such an annoyance, not a nuisance. That said, nothing stops him from filing a suit against you and forcing you to defend it. This would cost you both time and money, as well as add to the stress of being neighbors. You might want to make an accommodation to avoid all that. Quitting is a good solution and the best thing for your health, but of course, that is up to you.

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  • Can an HOA enforce a pet headcount violation after 10 years? If so, what if they are "emotional support dogs"?

    Background: On behalf of a disabled, senior citizen: I purchased a condominium in 2000 and had 1 small dog (>10 pounds) and was within the 1 dog limit at the time. I added a second small dog in 2005 (again >10 pounds) and this has been common know...

    S.’s Answer

    The short answer is NO. They cannot force you to get rid of your dogs. There are several reasons for this. The first reason is that being prescribed emotional support animals by your physician, they are no longer "pets". No "pet" restriction applies to animals designated as emotional support animals. Additionally, by you being in open violation of the covenant for 10 years with no action against you, the Association has likely "waived" any right that it has to enforce that covenant against you. In layman's terms, the Association has just waited too long to complain, so it would not be fair to allow them to complain now. As a side note, condo associations have somewhat different rules than homeowner associations. Condo associations, such as yours, are not allowed to place a lien on a home because of fines, regardless of how much the fine is. The most they can do is to sue you for breach of contract (but remember, you are not in violation, so they can't even do that). Additionally, the Association might be guilty of extortion for its threat of legal action, as well as violating the Fair Housing Act. I highly recommend informing the Community Association Manager and all the members of the Board of Directors what you learn here. If that does not stop them, then I strongly suggest you obtain an experienced HOA lawyer who can put them in their place.

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  • Can apartment complex deny my dog breed?

    Apt complex won't accept my Boxer/lab mix because it looks too much like a 'pit bull' even with paper from the vet that says Boxer mix. I have photographic evidence of actual bully dogs, German shepherds & other restricted dogs that live in this a...

    S.’s Answer

    The short answer is yes. It is their property and discriminating against dogs is not illegal. If for some reason, they deem chihuahuas a dangerous breed, they can say "no chihuahuas". They don't even have to have the same restrictions on all the apartments. They can let you neighbor have a pit bull (assuming it is not against city/county code where you are) and deny you the right to have a boxer. The only time this becomes a legal issue in a LL/T situation is if there is some sort of discrimination against you, the human. For example, if they don't allow your dog that looks like it might be part pit bull (even though it isn't) because you are an ethnic minority but they allow others of different ethnicity to have pit bull looking dogs. Another example, would be if you have disability and the dog is an assistance animal. It would be a violation of the FHA to prohibit the animal because doing so would be discriminating against you, the human. I hope this info is helpful. Essentially, if they won't allow the dog, either find a new place...or a new dog.

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  • Do I need a motion to dismiss a foreclosure by a HOA?

    I have several issues with my HOA. I paid my HOA fees in full before the HOA filed an e-summons on me. I believe the lien is "facially defective" because the lien doesn't have the proper titled owner of the house and the address of the represen...

    S.’s Answer

    I never understand people who risk their home because they want to save a few bucks and try to do it themselves. The country is full of people who did just that ... and are now living in apartments having lost their homes needlessly. If practicing law was as easy as reading articles online and asking others what motions to file, none of us would have gone to law school.

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  • Condo Docs require 50% of Unit Owners to amend; our attorney is stating 50% of members in attendance can amend. Who is right?

    Condo docs state to amend the Condo docs must have "Unit Owners owning in excess of fifty percent (50%) of the Voting Interests represented at any meeting at which a quorum has been attained and by not less than sixty-six and two-thirds percent of...

    S.’s Answer

    Assuming the quoted language is the only language in your governing documents regarding how to amend, I agree with the attorney. Looking at the structure of the sentence, there are 2 requirements. 1) In excess of 50% of the voting interests represented at a meeting. A meeting can only be held if there is a quorum. Thus, in excess of 50% of those voting interests at the meeting. 2) In addition to the 50% plus 1 vote of the members in attendance, 2/3 of the board of directors must agree to the amendment.

    If the the requirement were for more than more 50% of the entire membership, the sentence would not have included "represented at any meeting at which a quorum has been attained".

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  • If a landlord moved your things out of the condo without notice and you had a lease is that considered an illegal eviction?

    My landlord and I got into a discrepancy over paying guys to renovate the condo. He got upset and asked the guys who were doing the floors to move my things and I was forced to pay for a storage unit as they had loaded all of my things onto their ...

    S.’s Answer

    There has to be more to this than what you have stated. Why on EARTH would you pay to install flooring and paint somebody else's property when you say it was fine the way it was before?? You are a Tenant. You have NO ownership rights whatsoever. The value of improvements to the property will benefit the Landlord, not you. That said, IF you had a valid lease, then the Landlord cannot just kick you out. Without a review of your lease to determine its validity, and certain answer on your specifice situation can be given, but it sounds like you might have a case. You should call an attorney to discuss a possible law suit against the Landlord. Save all your receipts from the amounts you have paid. Prevailing party will be entitled to have the losing side pay for the attorneys' fees.

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