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Steven Dennis Rubin

Steven Rubin’s Answers

3 total

  • Sellers falsified claims when selling house, any recourse?

    I purchased a house six years ago. The sellers made a big deal about the fact that they replaced all the plumbing in the house. The previous piping was polybeutaine and they knew it was defective, it was a flaw in all the recently built townhomes....

    Steven’s Answer

    A seller of residential real property has a duty not to mispresent to the buyer material facts relating to the home. A seller is liable to a buyer if the seller intentionally or negligently makes a false material statement of fact, the buyer reasonably relies upon the misrepresentation, and the buyer is induced to enter into a contract based upon the misrepresentation. These causes of action are known as common law fraud. In addition, a seller has the duty to disclose to the buyer all facts which are known to a seller which materially affect the value of the property, and which are not readily observable to the buyer. This cause of action is set forth in the Florida Supreme Court case of Johnson v. Davis which was decided in 1985. In addition, the Johnson v. Davis rule is contained in most standard real estate contracts (e.g. the FAR/BAR form Standard W). Thus, a seller who breaches the Johnson v. Davis standard also may commit a material breach of the real estate contract.

    It is certainly reasonable to argue that the seller's representation of the fact that seller replaced the defective plumbing was false ( the seller either knew or should have known that the plumbing had not been replaced), you reasonably relied upon the misrepresenation, and you were induced to enter into the purchase contract. It also appears that you could not have readily observed whether the defective plumbing had been replaced, and the failure of the seller to disclose this fact materially affected the value of the property (although the $2,300.00 repair presents a question of fact as to whether that amount is material - if the purchase price was $10,000,000, $2,300 might not be "material"). In any event, you probably have a meritorious claim against the seller.

    The fact that it has been 6 years since you purchased the home is a relevant issue (statute of limitations). A cause of action for fraud must be brought within 4 years after the action accrues, and a cause of action for breach of contract must be brought within 5 years after the action accrues. The actions probably accrued at the latest when you closed on the home. However, the time for bringing the actions might have been extended (a tolling of the statute of limitations) because you only recently discovered the misrepresentation. You may want to consider sending a letter to the seller demanding reimbursement. If your demand is not met, you may want to consider hiring an attorney, or filing a small claims action yourself against the seller if you cannot afford to pay for an attorney.

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  • Foreclosure papers received when mortgage is paid on time

    Can a bank call a note if it is being paid on time as agreed? (foreclosure papers were delivered with no warning and monthly payments have been drafted each month from checking account)

    Steven’s Answer

    Yes.The borrower's obligation to make monthly mortgage payments is usually only one of many covenants contained in a note and mortgage. The note usually states that a default in the mortgage constitutes a default in the note. Thus, for example, if the mortgage requires the borrower to keep the property insured and the borrower allows the insurance policy to lapse, that would constitute a breach of the mortgage and note and could entitle the lender to declare the entire indebtedness of the note immediately due and payable. Other typical covenants in a mortgage include the obligation of the borrower to pay real estate taxes, asssociation dues, water and sewer fees, and superior mortgages, not to cause damage to the home, and not to transfer the property to another person. So, even if the borrower pays all of the monthly mortgage payments on time, if the borrower fails to timely perform other covenants contained in the note and mortgage, the lender can still declare a default and foreclose. You need to check your loan documents to determine what notice the lender is required to give you before it forecloses, and there may be a statute which requires notice too. It would be very unusual for a lender to file a foreclosure action against the borrower without first having notified the borrower of the alleged default and giving the borrower the opportunity to correct the default. Most institutional lenders do not want to take back the property; they would prefer the mortgage be repaid in accordance with its terms. If the loan documents or applicable statute require the lender to give notice and the lender did not, the borrower could defend against foreclosure by raising this issue as a defense.

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  • Property rights to trim a tree

    We were recently cited with a city code violation for tree abuse. They claimed I "hatracked" the tree in our front yard here in Sunrise, FL. This was a direct result of a city employee who sent code enforcement out to our home because we called ...

    Steven’s Answer

    Every local governemt has a code of ordinances which usually includes standards for maintaining landscaping on private property. Most local governemnts have adopted ordinances which impose trimming requirements and prohibitions, including what is commonly referred to as "hatracking" (as opposed to trimming the internal branches and limbs of the tree, the entire top and sides are cut off forming a rectangular appearance of the tree and making it top heavy and subject to toppling in a storm and more prone to disease). When you were cited, you had the opportunity to contest the citation and appear before the code enforcement board. The board determines whether you have violated the code of ordinances and if so, how much time you have to correct the violation, and if it is not timely corrected, how much of a fine will be imposed on a daily basis until the violation is corrected. The procedures for the board are set forth in the ordinances and in Chapter 162 of the Florida Statutes.
    From your question, it appears that you did not contest the citation to challenge whether you hatracked the tree, if hatracking is indeed prohibited by the ordinances. Thus, you have probably waived any claim you might have had. You could probably still challange the reasonableness of the ordinance in a suit against the City, but that would probably not result in a monetary recovery for you (and you would probably not prevail because arborists are on record as supporting a prohibition against hatracking for the reasons stated above). There was also nothing wrong when the City employee cited you for hat racking when he was called to your property for another matter. There is usually no statute of limitations applied for code violations and a city employee is under an obligation to report code vioaltions when they are observed.

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