Post-Closing Occupancy Agreements Part II

Enforcement of Seller’s and Buyer’s Post-Closing Nuptials

Often, a title company may provide a basic fill-in-the-blank form for a post-occupancy agreement. Sometimes, the parties write it themselves, and other times a Google search seals the deal. On the odd occasion, a buyer will close and verbally agree to allow the seller to stay on the premises briefly. Berlin Patten Ebling strongly advises the parties to retain a licensed Florida attorney to draft any occupancy agreement and refuse to make any verbal agreements that could become a “buyer said, seller said” occupancy dispute. Why? Specifically, many agreements we see fail to consider Florida law or contradicts Florida law entirely. The problem issues are too numerous to fully discuss herein, but below please find the usual suspects that commonly present themselves with these agreements after closings.

· In Florida, an occupancy agreement is a binding contract, and it may be a license to use the premises or a Florida residential lease. It does not matter how the parties have titled their occupant agreement; it matters on how the agreement reads. This means the contract may be covered under Part II of Chapter 83, Florida Statutes (Landlord and Tenant Act) (hereinafter “LT Act”) or Chapter 82, Florida Statutes (Forcible Entry and Unlawful Detainer) (hereinafter “UD Act”).

· Florida law controls over the contents of the occupancy agreement. Because Florida has passed laws that state certain contractual clauses in leases are unenforceable, many out-of-state buyers/homeowners fail to realize they cannot forcibly remove an occupant from the premises even if the agreement states the homeowner can remove a party that overstays the welcome party. A homeowner’s self-help attempts (disconnection of utilities, change of locks, removal of doors, etc.) to remove an occupant from real property may expose a homeowner to statutory damages even if the occupant is in the wrong.

· If there is a default under the agreement, what happens? Any occupancy covered under the UD Act generally requires only revocation of the agreement. If the occupancy agreement falls under the LT Act, Florida law still requires appropriate cure notice to be provided prior to the termination of the occupancy agreement and any subsequent eviction.

· Now comes the kicker: if there is a dispute between the parties and litigation occurs to enforce the provisions of the agreement covered under the LT Act, the prevailing party to the lawsuit will be entitled to attorney’s fees and costs, even if the parties failed to articulate that in their agreement or if the agreement stated that only the homeowner could recover fees and costs only from the occupant.

Ultimately, the above is simple summarization. If your buyers or sellers need a pre-closing or post-closing occupancy agreement to effectuate the closing, it is highly recommended they seek a local Florida real estate attorney to avoid unwanted and easily foreseeable disputes. A simple consult may save all parties involved a post-closing heartache and thousands of dollars in litigation fees and costs.

Sincerely,
Michael Schuchat, Esq. mschuchat@berlinpatten.com
Berlin Patten Ebling, PLLC

This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.

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