Florida courts have consistently held that “the mere recordation of a forged deed does not affect title to land since the recording statutes apply solely to genuine or lawful instruments” – Wright v. Blocker, 144 Fla. 428 (1940). This principle was reaffirmed in Scheible v. Brown, where the court recognized that a forged quitclaim deed “was void and did not pass title” (Scheible v. Brown, 333 So.3d 726).

Read more: Quitclaim Deed Forgeries

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Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

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Grounds for Challenging Validity

Florida courts recognize multiple bases for contesting quitclaim deeds. A forged quitclaim deed is “absolutely void and wholly ineffectual to pass title” and “creates no legal title nor affords protection to those claiming under it” (Murphy v. Osorio, 299 So.3d 446). The deed must be removed from the chain of title when forgery is established (Murphy v. Osorio, 299 So.3d 446 (2020)).

Challenges based on fraud, duress, and undue influence are also recognized. In one case, a stepmother successfully cancelled a quitclaim deed where “the evidence of fraud and undue influence was sufficient to support that portion of the judgment cancelling the deed” (Passio v. Passio, 309 So.2d 595 (1975)).

Related: What is The Penalty for Falsifying a Quit Claim Deed?

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Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

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Leading up to a major storm or hurricane, one of the biggest questions South Florida foreclosure attorneys hear from their clients is what they should do if and when their home is damaged and they’re unable to work or pay their mortgage in the aftermath.

The Good News

Most banks work with homeowners to provide relief in a variety of ways. Typically, this includes either a temporary forbearance or mortgage payment hold, special financing to rebuild a damaged home, or a temporary freeze on active foreclosures.

Many lenders also will provide a foreclosure moratorium, which generally kicks in for a period of about 90 days in areas where a federal disaster has been declared. A foreclosure moratorium is where a lender halts the commencement of foreclosure proceedings for newly defaulted loans or temporarily halts the progress of an active foreclosure lawsuit.

For homeowners whose loans are serviced through Fannie Mae or Freddie Mac, there are also federal relief programs you may be eligible for if you’re in a declared disaster area. These programs can also suspend the foreclosure process while you’re participating in the program and rebuilding.

The Not-So-Good News

Unfortunately, based on the past foreclosure fraud crisis, real estate lawyers and foreclosure attorneys have discovered that banks and lenders cannot always be trusted when it comes to fulfilling their promises of helping homeowners who have been impacted by a major storm or hurricane. Sadly, there are numerous examples of banks misleading or outright lying to homeowners in the wake of a hurricane—even when they have never missed a payment!

Likewise, the suspension of your mortgage payments does not mean those payments are forgiven. Not at all. In fact, even in cases where the federal government backs the forbearance, the deferred amount will still be owed—often with additional interest! And sometimes, homeowners will be required to repay the deferred payments in one lump sum at the end of the forbearance period!

5 Tips for Avoiding a Foreclosure Before and After a Major Storm or Hurricane

Keep these items in mind as you prepare for a major storm or hurricane.

• Safeguard the Property

Most mortgages have a provision that requires the homeowner to mitigate damages as much as possible. In other words, you can’t just let nature take its course. Before the storm hits, you must actively work to prevent as much damage to the property as possible by boarding up windows, turning off gas and electricity service to the home, and ridding the property of any items that could become projectiles during the storm. For more information about the federal government’s preservation and protection requirements for federally backed mortgages, download Fannie Mae’s “Florida Security Instrument (Form 3010)” and check out Section 7. The pertinent language states:

“Whether or not Borrower is residing in the Property, Borrower shall maintain the Property in order to prevent the Property from deteriorating or decreasing in value due to its condition.  Unless it is determined pursuant to Section 5 that repair or restoration is not economically feasible, Borrower shall promptly repair the Property if damaged to avoid further deterioration or damage.”

• Review Your Mortgage Agreement

It may have been a while since you first bought your home or signed your mortgage agreement with the bank. There are a variety of conditions a bank must satisfy before filing a foreclosure in Florida. Some of these conditions are required by state and federal law, others are often contained in the mortgage agreement itself. Familiarizing yourself with your lending agreement and contacting an attorney about any language you may not understand is extremely helpful prior to a major disaster, especially if you are about to enter default or are on the cusps of a foreclosure action.

• Get in Touch With FEMA

If you or your property are adversely impacted by a storm and are in a federally declared disaster area, your first contact should be with the Federal Emergency Management Agency or FEMA, to get registered for disaster assistance. You can reach out online, in person at a disaster recovery center, or by phone at 800-621-3362.

• Start the Claims Process

Next, you’ll want to contact your homeowners insurance and (if you have it) your flood insurance companies to begin the claims process. Filing a claim can be a lengthy process, as can the investigation, and it might be a while before you or your lender receive reimbursement for repairs or see proceeds for remediation. Consequently, you’ll want to get this process started as soon as possible. See below for additional information regarding how insurance proceeds are handled.

• Contact Your Lender

Once you’re registered with FEMA and have begun the claims process, you’ll need to speak with your lender about a forbearance, whether it’s to temporarily suspend a foreclosure action or defer your mortgage payments. A forbearance generally lasts up to six months and can be renewed for another six months, depending on the lender. While interest will continue to accrue, you’ll be absolved of late fees and won’t have to worry about the lender reporting you to credit bureaus.

• Keep Records

When dealing with your lender, always keep detailed and accurate records of your phone calls and correspondence. Any correspondence between you and your lender should be well-documented in terms of who you’ve spoken with, the date and time you spoke with them, and the subject matter of the conversation. Any written documentation sent to the bank should be signed, dated, and copied for future reference. If there is any type of agreement given to the homeowner from the bank, it should be reviewed by an attorney before it is signed and sent back, especially if it has to do with escrow, taxes, or insurance issues.

• Don’t Fall for Mortgage Scams

Unfortunately, there are unscrupulous entities out there who routinely take advantage of hurricane and storm victims in South Florida by tricking them into paying for mortgage relief that will never come.  Beware of callers claiming to be an agent of the government or a representative of your lender and who is looking for upfront fees to give you a loan or provide a service.

How to Deal with Insurance Payments to Cover Damage Claims

Most mortgage agreements have a provision in them stating that in the event of an insurance claim for major damage after a natural disaster like a hurricane, the check should be made to the homeowner and to the lender. In the event of an insurance payment or claim, the money is to paid to the mortgage company or lender. Again, download Fannie Mae’s Florida Security Instrument for clarity on this issue. The applicable language can be found in Section 5:

… In the event of loss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender may make proof of loss if not made promptly by Borrower. Unless Lender and Borrower otherwise agree in writing, any insurance proceeds, whether or not the underlying insurance was required by Lender, shall be applied to restoration or repair of the Property, if the restoration or repair is economically feasible and Lender’s security is not lessened. During such repair and restoration period, Lender shall have the right to hold such insurance proceeds until Lender has had an opportunity to inspect such Property to ensure the work has been completed to Lender’s satisfaction, provided that such inspection shall be undertaken promptly.  Lender may disburse proceeds for the repairs and restoration in a single payment or in a series of progress payments as the work is completed.  Unless an agreement is made in writing or Applicable Law requires interest to be paid on such insurance proceeds, Lender shall not be required to pay Borrower any interest or earnings on such proceeds.  Fees for public adjusters, or other third parties, retained by Borrower shall not be paid out of the insurance proceeds and shall be the sole obligation of Borrower.  If the restoration or repair is not economically feasible or Lender’s security would be lessened, the insurance proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with the excess, if any, paid to Borrower…

What to Do Now

If you follow these steps and fulfill your obligations according to the terms of your mortgage agreement, you should be able to get the relief necessary to forbear your payments while you rebuild and repair.

Besides a forbearance and disaster assistance through FEMA, there are also other legitmate programs that might be available to assist you with your payments following a natural disaster like a major storm or hurricane. Check out Fannie Mae’s article on the subject, Disaster Recovery Help for Homeowners.

If you’re experiencing difficulty with your lender or you believe the bank is not treating you fairly after a major storm or hurricane, a good piece of advice is to reach out to a knowledgeable, experienced foreclosure attorney like Larry Tolchinsky. Larry has with homeowners experiencing foreclosure for more than two decades and can help you get the relief you need following a natural disaster.

Do You Have a Question?

Please fill out the “Talk With Us” form above to ask a question, or give Larry a call at 954-458-8655. Larry will get back to you promptly if he thinks he can help you with your foreclosure proceeding. Ask now.

Some buyers will consider the real estate professionals involved in the process.  Real estate agents work on commission: can money be saved by limiting their involvement?  Are there other reasons that avoiding a realtor is a good idea for a residential buyer?  Does the buyer really need a real estate agent to help them?

Representation of Home Buyers by Florida Real Estate Professionals

Florida law does not require anyone to shop around and contract with a chosen real estate agent before they buy a home or condo.  In fact, many buyers go through the entire residential purchase without having a real estate professional working solely on their behalf.

1.  Presumption of Transactional Brokerage

Under Florida Statute 475.278, Florida real estate agents work for both the seller and the buyer in a transaction as a general rule.  Legally, this is defined as a “legal presumption.”

The representation itself is called a “transactional brokerage.”  It may seem like this arrangement simplifies things, but be warned.

A transaction broker provides a limited form of representation to a buyer, a seller, or both in a real estate transaction but does not represent either in a fiduciary capacity or as a single agent. Florida Statute 475.278(2).

Transactional brokerages limit the legal liability of the real estate professional.  If something goes wrong, they have less legal exposure than they would under a distinct and defined contract as a “buyer’s agent.”

For details, read: Are There Dangers with a Florida Real Estate Agent Representing Both Buyer and Seller?

2.  Buyer’s Agents

Of course, many home buyers may assume that a real estate agent is working specifically for them, especially when the agent is friendly and hard-working.  This is not true.  The only time that the agent exclusively represents the best interests of the buyer in a residential sales transaction is when there is a specific contract defining the relationship between the Florida real estate agent and the buyer as one where the real estate agent is a “buyer’s agent.”

Here, there must be a signed contract identifying the real estate agent as working solely for the buyer in a “single agency” arrangement.  Florida law mandates that the written contract disclose that the agent works only for the buyer, and that he or she has specific duties as defined by law.  These include:

1. Dealing honestly and fairly;
2. Loyalty;
3. Confidentiality;
4. Obedience;
5. Full disclosure;
6. Accounting for all funds;
7. Skill, care, and diligence in the transaction;
8. Presenting all offers and counteroffers in a timely manner, unless a party has previously directed the licensee otherwise in writing; and
9. Disclosing all known facts that materially affect the value of residential real property and are not readily observable.

Florida Statute 475.278(3)(a).

In Florida, some real estate agents and entire brokerage firms specialize in representing residential buyers.  The National Association of Realtors allows them to earn the distinction of being an NAR Accredited Buyer Representative.

Many will pay rebates to the buyers in the residential sales transaction.  For instance, an online list of Florida buyers’ agents offering rebates is provided by Consumer Advocates in American Real Estate.

3.  No Agent Representation

Even less legal liability will fall upon the real estate professional if the buyer decides to sign a written agreement that the real estate agent is acting solely as the seller’s agent and not in a transactional relationship with the purchaser.

Buyers are able to sign these agreements, of course.  Careful consideration should be undertaken before doing so.  In these situations, the buyer will be experienced and educated on Florida real estate market as well as pertinent Florida real estate law.

For more, read: Duty to Disclose for Sellers in Florida Residential Real Estate Transactions – Are Florida Real Estate Buyers Protected by Florida Law?

Representation of Florida Home Buyers: When Lawyers Are Needed

Florida’s foreclosure fraud epidemic in the 2000s has left its permanent impact on the Florida residential housing market.  Great bargains are available for Florida homes and condos today, because of our past real estate history.

A buyer who wishes to move forward with limited representation by a real estate agent must understand these nuances.  It is very important for this home buyer to know when he needs legal advice regarding the residential purchase and finalizing the deal.  Real estate professionals are legally prohibited from dispensing legal advice.

There are several situations where the buyer is wise to consult a lawyer before buying a Florida residence.  These include:

1. Short Sales

In a short sale transaction, the lender, seller, and buyer all agree to a sale of the home even though the sales price is less than the total debt secured by the bank’s lien against the residence.  The lien holder agrees to take less than the full debt amount in order to get the place sold.  Buyers need legal confirmation that the debt has been cleared from the home. See: Are Florida Short Sales a Favorite With Florida Lenders? Florida Sellers Have Great Deals for Buyers – How Florida Short Sale Lawyers Can Help.

2. Foreclosures

Foreclosed homes are the subject matter of a formal civil lawsuit brought by the lender because of the borrower’s default on their mortgage loan.  They must be dealt with as being a part of a pending (or purported resolved) judicial proceeding.  See our free e-book: A Guide To Foreclosure Fraud.

3. Bank-owned homes (REO)

REO homes are properties where the bank has taken title after obtaining a judgment in a foreclosure lawsuit and is selling the residence as its legal owner.  In Florida, special care must be given to make sure that the lender truly is the clear title owner of that property.

4. Residence Is For Sale by Owner

When the home is “for sale by owner,” it is a situation where the owner is operating without a real estate professional’s representation.  Consider: 10 Reasons To Have A Home Inspection In South Florida.

5. Residence Comes with Offer of Owner Finance

Sometimes, the owner is willing to finance the purchase in order to get the residence sold; he will still take out a lien on the property just like a bank.  Buyers who take on the role of borrower to an individual need to make sure all needed legal protections are in place, because the lending laws applying to financial institutions may not provide the buyer protection against an owner who is providing financing.

6. Lease Option to Buy

Sometimes, an owner will offer a rental property with an option or offer to buy the home after a certain period of time, with a percentage of the rent going toward the purchase price.  This may help the purchaser, particularly a first-time buyer, but it is another case of buyer-beware:  his rights and protections must be clearly defined in the documentation.  What if the renter decides against buying, for instance?  What happens then? Can the tenant be forced to purchase the home?

7. Buying a Florida Condominium Unit

In Florida, condominiums are given special treatment under the law because of their unique legalities.  These include control of the common areas; defined boundaries between common areas and individual units; the ability of the Condo Board to assess fees upon the condo unit owners; and the power of the Condominium Association to institute foreclosure proceedings against an owner even if that owner is current on their mortgage.  See: How Do You Draw the Ownership Line Between Florida Condominium Units and Common Elements?

8. Land Title

In the above situations, it is vital for the buyer to have a lawyer to review how the documents are drafted, particularly insofar as the party identified as the seller or “grantor” in the deal.  Florida land title has become a very complicated issue in many residential transactions because of foreclosure fraud.

Anyone purchasing a home or condo in Florida is well advised to take extra precautions to make sure they are buying with full title and clear title before they finalize the transaction.  For more, read: Will Florida Title Issues Create Lawsuits for Home Owners for Years to Come? Has Foreclosure Fraud and Robosigning Created a Real Estate Title Mess?

Florida Real Estate Lawyer for Residential Real Estate Buyers

If you are considering buying a home or condominium here in Florida, then having an experienced Florida Real Estate Attorney to help you throughout the process, from searching for potential homes through closing, can be invaluable.  For instance, it may be true that most Florida residential sales transactions will have sellers providing standardized forms promulgated by the Florida Realtors and approved by the Florida State Bar.  These cookie-cutter documents may not suit the best interests of the buyer in his particular purchase; an experienced real estate attorney will understand when it is best to deviate from the standardized provisions.

For more, read our discussions in:

• 19 Reasons To Hire a Real Estate Lawyer When Buying or Selling Florida Real Estate; and
• Florida Title Company or Real Estate Lawyer: Who Should Handle Your Closing?

Our offices have a free initial consultation for all residential real estate queries.  Don’t hesitate to give us a call.

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Condo owners may not know their Condo Association may also be held legally liable for personal injury damages resulting from criminal acts on the condominium property.  Crimes on the property may result in significant demands being made against the Condo Association by the crime victim.

Negligent Security Claims against Condominium Associations

Under Florida law, when any individual is a victim of crime at a Florida residential condominium, he or she may have a civil claim for damages against the Condominium Association.  The crime victim, whether or not they are tenants of a condo unit, a condo unit owner, a guest or visitor, may seek justice as defined by Florida’s premises liability laws.

Technically, the crime victim proceeds under an argument of “negligent security,” which is a particular type of Florida Condominium Negligence.

Essentially, the crime victim has a valid claim based upon negligent security against the Condominium Association if the victim can show the Association failed in its duty to provide reasonable and necessary security on the site, and that if the security had been provided, the victim would not have suffered injury.

Read: Tenant Slip And Falls

Foreseeability

As a general rule, the crime must be shown to be foreseeable.  This is the key element to be proven by the crime victim in a negligent security case.  If the event could not have been foreseen by the Condominium Association, then there is no breach of duty and no neglect in providing security to the property.

Whether or not the crime was foreseeable must be determined by the facts of the particular event.  Often, the Condo Association will refuse to admit that the crime could have been foreseen, forcing the case to go to a jury so the jurors can make that determination.

Reasonable Safety Protections

Another important factor here is whether or not the security provided by the Condominium Association was reasonable under the circumstances.  Again, the question of whether or not the safety measures in place at the time of the crime were reasonable to protect against foreseeable criminal activity may be hotly contested.  Jurors may be the decision-maker here, answering the question of whether the Association took reasonable security measures to protect owners, tenants, and guests against foreseeable crime.

For instance, was this a gated community?  If not, should it have had gates installed?  If this condominium is the only condominium property in a five mile radius without security gates, and police records show it is located in an area of high crime (vandalism, prowlers, burglaries, assaults, etc.), then the failure to have gates may be evidence of negligent security by the Condo Association.

What about Security Companies Hired by the Condo Association?

Condominium Associations may contract with security companies to provide protection to the property, its residents and guests.  Any attempt by the Condo Association to avoid legal liability to a crime victim hurt on the Condo property by pointing the finger at the security company will fail, however.

This was attempted in the tragic case of Vazquez v. Lago Grande Homeowners Ass’n, 900 So. 2d 587 (Fla. Dist. Ct. App. 2004).

Murder and Suicide: Who is Responsible When a Security Company is in Place

When the crime in the Vazquez case occurred, the Lago Grande Complex was huge: between 2500 and 3000 residents lived there (some were owners; some rented).  It had over 1000 residential units.

Lago Grande had three entrances, one on S.W. 87th Avenue; another on 122nd Avenue; and a third on 68th Street.  Each entrance to the complex had a guardhouse with 24/7 guard service.  Lago Grande was also surrounded by a 5 – 6 foot wall around the entire perimeter; parts of this wall were made up of six-foot fencing.

In fact, the real estate developer considered these protections a marketing incentive.  It advertised Lago Grande as providing special security benefits.  For purchasing condo unit owners, part of their condominium fee was tagged as paying for these protections.

The Lago Grande Board first hired a company called Florida Patrol to provide security guard services to the complex.  Florida Patrol was instructed by the Condo Board to have its security guards follow certain “Post Orders.”

The Lago Grande Post Orders required the following:

• security guards at all three entrance guard stations to stop everyone entering the complex, whether they were a known resident or unknown visitor, and regardless of whether they arrived in a vehicle or on foot;
• logs kept of the station activities;
• security guards to check the Lago Grande Resident identification cards for all residents;
• security guards to check with residents before allowing any visitor to proceed onto the property; and
• security guards to call police if visitors were denied access by the resident and refused to leave.

In June 1993, Florida Patrol quit.  Lago Grande replaced the company with the next-lowest bidder for the job, Centurion.  The new security company was on the job the same day Florida Patrol left.  Centurion’s contract included its agreement to obey the existing Post Orders.

Things were not the same after Florida Patrol left.

The Condo Association received many complaints from condo residents about Centurion.  Post Orders were not being followed:  visitors were not being logged in.  Many people were entering the property without being authorized to do so by residents.  People on foot were rarely logged into the visitor logs by Centurion.

Centurion asked Lago Grande to hire more security guards.  Centurion also wanted to expand patrols with a second roving guard, and to add a fourth security gate.  Lago Grande responded that it did not have the budget for these requests.

On the night of the tragedy, Centurion had 2 or 3 guards on duty at the north guardhouse at Lago Grande. This north entrance was very close to the unit purchased by resident Carmen Martin.  Ms. Martin had moved to Lago Grande because the complex was “safe, secure and it was gated.”  She enjoyed almost daily visits from her former neighbors, Victoria Valle and her two children, Jaclyn and Andrews.

Sometimes, Victoria’s husband Frank would visit, too.  He came by Ms. Martin’s residence to pick up the kids:  he and Victoria were separated.  Frank and Carmen Martin had some disagreements during these occasions.  After a while, Ms. Martin told Frank he was no longer welcome at Lago Grande.

When Frank still came to the complex, Carmen Martin went to the north guardhouse and told the Centurion security guards that Frank Valle was not welcome at her home, and if he came by that the guards were to call her immediately (which was exactly what they were supposed to do under the Post Orders).

Carmen Martin was clear that she did not authorize Frank Valle’s admittance onto the property. She believed him to be dangerous.

At 7:45-8:00 p.m., on the night in question, Frank Valle freely walked through the Lago Grande north entrance, between the two gates designated for visitors and residents. Witnesses reported he was acting strange.

Frank Valle entered Carmen Martin’s home (the door was unlocked) and after talking with Victoria Valle for around 20 minutes, shot her in the head, killing Victoria.  He then shot Carmen Martin in the leg as she ran out the door, trying to get help.  Finally, with his daughter watching, Frank Valle committed suicide by shooting himself with the same pistol he had just used to kill her mother.

Negligent Security Trial

Both the Lago Grande Condominium Association and Centurion Protective Services were sued for the wrongful death of Victoria Valle and the personal injuries sustained by Carmen Martin.  The jury returned a verdict in favor of the plaintiffs, which was upheld by the appellate court.

The appeals court found that Frank Valle was negligently permitted access to a condominium apartment after the security guards on duty were specifically warned not to do so because of his potential dangerousness.

Foreseeability “Irrelevant” in the Shooting Case

Lago Grande Condo Association and Centurion agreed to exercise reasonable care to prevent any criminal incident from occurring. The duty to protect had already been assumed.

Here, the issue of foreseeability becomes irrelevant and it did not matter that there had been no prior shootings or similar acts on the property.  The Florida court held that contracting for security services was sufficient to impose obligation to protect customers as would reasonable guard under similar circumstances. See Paterson v. Deeb, 472 So.2d 1210, 1215 (Fla. 1st DCA 1985), review denied, 484 So.2d 8, 9 (Fla.1986).

It explained:

While the security company was the entity plainly guilty of “actual” negligence in fulfilling its contractual obligations and those of due care, the condominium association is properly held liable for those actions both (a) because of its own negligence in retaining Centurion after ample notice of its prior security deficiencies, see 2A Fla. Jur.2d Agency and Employment § 263 (1998), and (b) as vicariously responsible for Centurion’s negligence because of its legal inability to delegate the non-delegable contractual duties it assumed in its agreements with its owner-members. See City of Coral Gables v. Prats, 502 So.2d 969 (Fla. 3d DCA 1987), and cases cited, review denied, 511 So.2d 297 (Fla. 1987); Mills v. Krauss, 114 So.2d 817 (Fla. 2d DCA 1959), cert. denied, 119 So.2d 293 (Fla. 1960).

Florida Condo Associations’ Negligence Security Liability to Crime Victims

As the Vazquez case explains, a Florida condominium association cannot pass along its responsibility to protect residents and guests from becoming crime victims by hiring a security company.

Even if the security company is an expert in crime prevention and the Condo Association has little experience or understanding in security matters, Florida law will not allow the association to delegate its contractual duties assumed in its agreements with association members.

Florida Real Estate Lawyer Can Help Crime Victims Hurt on Condo Property

If you have been a victim of a crime that happened on condominium property, then you may have legal claims to assert against the Florida Condo Association among other parties (like any security company hired by the association).

Getting help from an experienced Florida real estate lawyer is important to learn about your legal rights. Most Florida condominium lawyers, like Larry Tolchinsky, will offer a free initial consultation to answer your questions.

Related: Your Legal Rights After a Slip and Fall on Rental Property

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