What Are The Repercussions Of Breaking A Lease Agreement?
Video Summary
What are the repercussions for breaching a lease agreement?
Well, let’s first start with the tenant. That’s usually the one that is looking to breach or move out of a lease prior to its expiration or not paying the rent.
So, the most common breach of a tenant of a lease agreement is where they don’t pay the rent. The landlord then has the right under the Florida Landlord Tenant Act to file a three day notice to the tenant telling them that they got three days in which to pay the rent or move out and the landlord can then sue for possession and to have the tenant removed by the sheriff.
That process takes about 30 to 45 days. Also, the landlord can sue the tenant for any damages or any back due rent. Depending upon the lease is how that’s to be calculated and when they calculate it, so those are the usual circumstances whenever a tenant breaches the lease, it’s for non-payment or they may violate some other rule.
Again, the landlord must give the tenant a certain notice, giving them, I believe, it’s seven days in order to correct the deficiency such as if they had a pet in the apartment or the house and it was in violation of the terms of the lease, well, they give a seven day notice and tell the tenant they must correct it in seven days or they’ll evict them and if they do it again, well, they will have a right to evict the tenant.
On the other hand, we have the landlord – let’s say that they have leased the property to the tenant and the tenant is paying the rent – this sometimes rises in the event that the landlord is sued in foreclosure and the tenant is of course sued and then they have – the question is: well, has the landlord breached the lease and the answer is: no, until the final judgement of foreclosure is entered and the property is sold and the tenants are required to leave.
Does the landlord breach the lease? In that event, the tenant does have a cause of action against the landlord. They could sue them for the breach of the lease and their liability for that.
Another circumstance where the landlord has leased the property and has decided to sell the property and the tenant is still in possession. The landlord cannot unilaterally terminate a lease. The tenant has a right to remain in possession and really it’s very difficult for the landlord to show the property, but if they do sell the property, whoever purchases it is bound by the provisions of the lease.
So, the landlord has a hard time breaching it other than it’s the landlord’s failure to possibly maintain the property. In that event, the tenant gives a notice to the landlord of the failure of the landlord to do the repairs or maintain the property and the tenant’s remedy is to terminate the lease and move out.
Again, that requires a seven day notice to the landlord giving them seven days to take care of the problem. If a landlord does not or commence then to fix these problems, well, the tenant can terminate the lease and move out.
So, those are some of the most common examples of and the remedies of both the landlord and the tenant as far as a breach of a particular lease. This has to do primarily with residential tenancies rather than commercial tenancies.
So, if you have any questions about your tenant or your landlord, give me a call at 727-847-2288.
- Published in Real Estate, Videos
Ask Jaleh: Estate Planning Considerations after Medicaid approval.
Video Summary
Estate planning considerations after Medicaid approval.
The legal counsel of your elder law attorney does not end with the Medicaid approval notice. Discussions follow by planning measures should be considered by the single Medicaid applicant as well as the community spouse.
For the single Medicaid applicant family members are generally desirous and have exempt assets inheritable by operation of law. Well, what exactly does this mean?
For example, avoiding probate on the exempt homestead property may be advantageous under many circumstances. After evaluating the family’s dynamics and discussing the pros and cons, an Enhanced Life Estate Deed, also commonly referred to as a Lady Bird Deed may be a suitable planning technique for avoiding probate for real estate owned by the single Medicaid applicant.
In addition, simple convenience measures may be undertaken such as adding the beneficiary to certain designated countable assets such as bank accounts. If your power of attorney is necessary to perform these functions then you must be aware of the changes brought about by the Florida Power of Attorney Act which was effective October 1, 2011.
This is crucial because authority such as the ability to create a survivorship or beneficiary designation must have been expressed in the power of attorney created prior to October 1, 2011.
Furthermore, they must also be specifically enumerated and initialed and powers of attorney’s created after or on October 1, 2011.
In addition to the applicable items previously mentioned, planning for the community spouse and the objective of protecting against future disruption in Medicaid eligibility takes on a level of immediate need and importance.
Once of the first considerations is to ensure that the community spouse completes the asset transfers necessary to conform to the asset criteria for him or her and the institutionalized spouse long before recertification.
In addition, the community spouse should review all beneficiary designations on IRAs and change life insurance policies to ensure that the institutionalized spouse is not the beneficiary of same just in case a community spouse should pass away prior to the death of the institutionalized spouse.
In most cases the community spouse will usually require new estate planning documents because she or he may have named the ill spouse as the primary actor throughout these documents.
It must also be addressed in the estate planning documents that the community spouse may predecease the ill spouse and assets received in any self-settled trust whether it enter via those trust or a living trust will not be protected.
Consequently, a third party trust may need to be created under the community spouse’s last will and testament which will likely include many of the terms and conditions for a qualifying special needs trust and that sort of treatment.
It is also important to have the community spouse consult with an insurance agent regarding the affordability and insurability of a long term care insurance policy to see if this may be a viable planning tool for the future just in case the event does occur that the community spouse will require institutional care.
It is also important to note that Medicaid recovery efforts are governed by Florida Statue 409.910. As a generalization, recovery efforts are predominantly encountered when assets of the deceased Medicaid recipient pass through a probate proceeding.
Recovery is not warranted if the Medicaid recipient is survived by either a spouse, a minor child or an adult disabled child.
If you have any questions regarding a state planning consideration and the interplay with the Medicaid application process and approval, I would love to assist you. Please give us a call here at Waller and Mitchell at 727-847-2288.
- Published in Estate Planning, Videos