The residential leasing market has been dramatically changed due to the Great Recession that has given rise to new laws and regulations promulgated by the federal government.  Now more than ever, residential rental property managers need to be aware of these new laws and regulations to avoid unintended legal consequences for themselves and their clients.

The Fair Credit Report Act was amended to include new identity theft regulations.  Officially titled “Identity Theft Red Flags and Address Discrepancies Under the Fair and Accurate Credit Transactions Act of 2003” (the “Act”), this Act was created to detect, prevent, and mitigate identity theft for all users of credit and other consumer report information.  As this type of information is routinely used by residential property managers to verify the financial ability and background of a prospective tenant, the Act imposes certain requirements on residential property managers to detect, prevent, and mitigate “Red Flags”.  The Act defines a Red Flag as a “pattern, practice, or specific activity that indicates the possible existence of identity theft.”

The Act requires that the residential rental property manager have certain reasonable policies and procedures in situations where the residential rental property manager obtains a prospective tenant’s personal identifiable information from a credit or other consumer report.  These reasonable policies must include the ability to (a) identify relevant Red Flags that may occur when the residential rental property manager obtains the personal identifiable information from the prospective tenant, (b) detect any Red Flags upon review of the provided personal identifiable information from the prospective tenant, (c) appropriately respond to any detected Red Flags, and (d) update the policy to reflect changes in risks to the rental property owner and the residential rental property manager.  It is highly recommended that you document these policies and procedures in writing.

One of the more common Red Flags is an address discrepancy.  The residential rental property manager must have reasonable verification and fraud prevention policies in place to verify a prospective tenant’s identity when there is a discrepancy in the prospective tenant’s address.  In most circumstances, the Red Flag will occur when the residential rental property manager receives a Notice of Address Discrepancy from a consumer reporting agency.  This Notice informs the residential rental property manager that there is a discrepancy between the address found in the tenant’s credit report and the address listed on the rental application.  To comply with the Act, the residential rental property manager may (a) verify the information contained in the credit report directly with the prospective tenant, or (b) compare the information contained in the credit report with other information found in other reports or sources (e.g. drivers license).  The residential property manager, however, does not have a duty to report any discovered fraud.

Fortunately, the date for mandatory compliance for this Act has been extended until June 2010 by the Federal Trade Commission.  This enables the residential rental property manager to have sufficient time to retain the services of a real estate attorney to assist them with the development of these policies to ensure compliance with this Act.

– Henry M. Cooper, Esq., is a shareholder and handles the residential real estate practice of Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida.  He welcomes questions and comments regarding the above and can be reached at hcooper@boginmunns.com.

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information.  You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest, and the firm determines that it is otherwise able to accept the engagement.

On February 11, 2010, the Florida Supreme Court made significant changes to the Florida Rules of Civil Procedure as they pertain to initiating new residential foreclosure actions in Florida’s Courts.  The Court’s opinion follows a series of changes that are being made on the local court level to stave off the glut of residential foreclosure filings that are clogging the court system.

In its recent opinion, the following rule changes are made applicable to new residential foreclosure filings:

• Fla. R. Civ. P. 1.110(b) is amended to require verification of mortgage foreclosure complaints involving residential real property. This means that the lender must swear to, or “verify”, the veracity of the factual allegations being made in the complaint.   The primary purposes of this amendment are (1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded lost note counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations.
• Form 1.924 – Affidavit of Diligent Search, is modified as follows.  First, the form is standardized and thus more user-friendly.  There is a new section for the affiant to insert the “Attempts to Serve Process and Results”.  There is also a “catch-all” section for the affiant to list all additional efforts made to locate defendant.   Furthermore, there is now a section which reads: “I inquired of the occupant of the premises whether the occupant knows the location of the borrower-defendant, with the following results: ________.”   A major change is also that the Affidavit of Diligent Search is now signed by the person who actually performed the search – likely a process server – and not the attorney on the case who may not have personal knowledge of the process server’s efforts.
• The opinion now requires the use of a new form, 1.996(b) – Motion to Cancel and Reschedule Foreclosure Sale.  A party cancelling a foreclosure sale is required to provide a reason for the cancellation.  Said the Court:     Currently, many foreclosure sales set by the final judgment and handled by the clerks of court are the subject of vague last-minute motions to reset sales without giving any specific information as to why the sale is being reset. It is important to know why sales are being reset so as to determine when they can properly be reset, or whether the sales process is being abused. . . . Again, this is designed at promoting effective case management and keeping properties out of extended limbo between final judgment and sale.
• The opinion adopted a new form of Final Judgment of Foreclosure.  This new form has many changes to include clarity, bring the form in line with current statutory provisions and requirements, increase readability, and to conform to prevailing practices in the courts.

These amendments went into effect upon release of the Court’s opinion on February 11, 2010.

So, you allow a friend or family member to drive your car.  This person is involved in an accident with your car and there are personal injuries involved.  It is determined that the person you allowed to drive your car was at fault for the collision.  You are upset about the property damage to your vehicle, and this is the end of your worries, right?  Not so fast my friend.

Many people are surprised to find out that in Florida when your name appears on the title of a motor vehicle as the owner, or as a co-owner, you subject yourself to legal liability if someone operating that motor vehicle with permission causes injuries to another person as a result of such permissive use.   Liability means that you, along with the driver and any other title owners of the motor vehicle, can be sued personally in court for damages incurred by the person(s) injured due to the fault of the driver.  This is what is known as the “dangerous instrumentality doctrine.”

Adopted in 1920 by the Florida Supreme Court, the dangerous instrumentality doctrine imposes strict liability upon the owner of a motor vehicle who voluntarily entrusts that motor vehicle to an individual whose negligent operation causes damage to another.  This type of “strict” liability means that it doesn’t matter that you were not driving the car nor had anything to do with causing the accident.  This liability is based on the theory that the person who allowed another person to operate their motor vehicle is in the best position to ensure that there will be adequate resources with which to pay an injured victim.  You may or may not agree with this theory, but it is the law in Florida, and you must take steps to protect yourself.

So how do you protect yourself from the dangerous instrumentality doctrine?  You must immediately inform your insurance company (or your insurance agent if you have one) of all motor vehicles in which you have an ownership interest. Bodily injury liability insurance is the product that will protect your personal assets. You must confirm that you have adequate bodily injury liability insurance for that motor vehicle.  What is “adequate” is based on your personal situation and should be discussed with your insurance company or agent.

It is also important to point that the dangerous instrumentality doctrine extends to motor vehicles where you appear on the title only because you helped someone with the purchase and financing of the vehicle.  There is a court case in Florida where an aunt helped her nephew like this, and had nothing more to do with the car after the purchase was completed.  However, she was later successfully sued personally as the record title owner.

You need to be careful in becoming an owner of a motor vehicle and allowing other people to operate it.  Don’t get blindsided by the dangerous instrumentality doctrine.

– Barry K. Baker, Esq., is an experienced personal injury attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida.  Mr. Baker works out of the Melbourne office of the firm and welcomes questions and comments regarding the above and can be reached at bbaker@boginmunns.com

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information.  You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest, and the firm determines that it is otherwise able to accept the engagement. The engagement would also be confirmed by a written agreement.

In theory, Florida’s No Fault Automobile Insurance Law was intended to lower the cost of auto insurance by taking small claims out of the court by requiring each insurance company to compensate its own policyholders for the cost of minor injuries regardless of who was at fault in the accident.  However, in Florida this personal injury protection coverage, which is better known by its acronym PIP, has very insignificant limits of $10,000.  This amount is intended to pay not only medical bills, but also wage loss and other “out-of-pocket” expenses, such as mileage to and from healthcare providers.  Clearly, if the injuries suffered requires more than a few visits to a healthcare provider and/or involves a prolonged inability to work, then any amounts not paid by PIP must be recovered from the at-fault driver or the owner of the vehicle driven by the at-fault driver if the injured party is to be made whole.

Economic damages, which may be loosely defined as those actual costs not paid by PIP, may be presented to and recovered from the at-fault parties’ insurance companies.  Unfortunately, however, Florida law does not require an individual to carry bodily injury indemnification coverage.  This means that if the at-fault party does not have bodily insurance coverage, the injured party is left with no practical recourse.  Certainly, the mere fact that a person does not have insurance does not mean that they would not be personally liable to pay damages, but generally speaking, if they cannot afford the basic insurance required by Florida law, in all probability, they probably do not have significant assets in which to satisfy a judgment.

The answer to this situation is Uninsured Motorist Coverage.  If bodily injury indemnification coverage can be thought of as insurance coverage designed to protect strangers from acts of negligence committed by an insured driver, then uninsured motorist benefits can be thought of as insurance coverage designed to protect your family.  That is, it is designed to protect your family from folks who do not have any insurance coverage at all or who have the minimal coverage required under Florida law.

Based on recent reports, Florida ranks in the top five states for the number of uninsured motorists.  According to the Insurance Research Council, in 2007 13.8 percent of all motorists in the U.S. were uninsured, but in Florida it was 23 percent.  Further, the Insurance Research Council found a correlation between unemployment and the rate of uninsured motorists.  Therefore, it stands to reason as well as common sense that as the unemployment rate rises so do the number of uninsured motorists.

Essentially, driving on Florida roads is much like Russian roulette.  Given the statistical odds of being in a motor vehicle collision coupled with the odds that the other vehicle does not have any coverage at all or has only the minimal coverage required under Florida law, the likelihood that an accident is caused by a person without the ability to pay damages or without the ability to satisfy a judgment in court is staggering.  Accordingly, uninsured motorist coverage may be the only avenue to be fully compensated for your injuries.  For that reason, it is perhaps the most important coverage that you may have.

If you have any questions regarding your coverage, we would highly recommend that you contact your insurance carrier or agent immediately to find out for certain whether you and your family are covered by uninsured motorist coverage.  If you would like a brief overview of Florida No Fault Insurance Coverage, we would also recommend that you read our January 6, 2010 blog “Understanding Basic Florida Automobile Insurance Coverage.”

– Scott Zirkle, Esq., is a personal injury attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida.  Mr. Zirkle welcomes questions and comments regarding the above and can be reached at szirkle@boginmunns.com

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information.  You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest, and the firm determines that it is otherwise able to accept the engagement. The engagement would also be confirmed by a written agreement.