Page 87 - Akerman | 2016 Guide to Doing Business in Florida

Florida Residential Landlord Tenant Act imposes duties both on the landlord and tenant;
provides for the termination of a lease and removal of a tenant; provides conditions for holding
and returning security deposits; and sets forth a number of rules that alter common law.
Certain residential tenancies are not covered by the Florida Residential Landlord Tenant Act,
including: (a) residency or detention in any facility incidental to receiving health, educational,
counseling, religious, or similar services; (b) occupancy under a contract of sale of a dwelling
unit or the property which it is a part; (c) transient occupancy in a public lodging or mobile
home park; (d) occupancy by a lessee of a proprietary lease in a cooperative apartment or by
an owner in a condominium unit. Further, in certain tenancies, such as rentals of single homes
or duplexes, statutory provisions may be altered by written contract.

9.5.2 Commercial
Commercial tenancies in Florida are generally governed by Chapter 83, Part I (§§ 83.001-
83.251), Florida Statutes, and common law. Further, Florida sales tax is due on the total rent
paid for the right to use or occupy commercial real property (including rents as well as
payments made by a tenant on behalf of the landlord such as ad valorem taxes, insurance,
etc.), unless the rent falls within certain exemptions. Without limitation, rentals, leases, and
licenses to use or occupy real property by related “persons” as defined in § 212.02(12), Florida
Statutes, (including, but not limited to, a parent corporation to subsidiaries and
individual/shareholder to a corporation) are also subject to sales tax.

9.6 The Foreclosure Process

Unlike most states, Florida does not allow non-judicial mortgage foreclosures. All mortgage foreclosures
in Florida must be filed and prosecuted as civil law suits, usually in Florida’s Circuit Courts, which are the
state trial courts with general jurisdiction over disputes where the amount in controversy exceeds
$15,000.00. However, if the requisites for diversity jurisdiction and amount in controversy are present, a
mortgage foreclosure may be prosecuted in federal district court. In general, a mortgage foreclosure
action is treated no differently than any other type of civil suit. Because of this, mortgage foreclosure
actions are subject to the same rules governing discovery, including depositions, that apply to all other
civil actions in Florida. Parties to a foreclosure action are also subject to normal motion practice,
affirmative defenses, counterclaims, trial and appeals as could be expected in other civil actions. A
hotly contested mortgage foreclosure in Florida can take more than a year to resolve, not including any
subsequent appeal.

The plaintiff in a Florida mortgage foreclosure is the owner and holder, or the non-owner holder with
rights of enforcement, of the mortgage and the underlying promissory note or other debt obligation
secured by the mortgage. The identities of the defendants to the suit are usually determined by a title
search, typically called a foreclosure title commitment, obtained from a title insurance agency. The
commitment identifies many of the parties required to be named as defendants in the foreclosure suit,
which include the owner(s) of the property, the borrower(s), if different from the owner(s), any guarantors,
all junior lienholders, and those tenants whose leasehold or possessory interests arose after the
mortgage and whose leasehold or possessory interests the plaintiff wishes to eliminate. If the identified
defendants are named and served and the foreclosure is prosecuted to judgment in accordance with
Florida law, the title insurance company providing the commitment will then issue an owner’s title policy
to the plaintiff if the plaintiff, or plaintiff’s assignee, is the winning bidder at the foreclosure sale.

Once the suit is filed, it is prosecuted to judgment in the normal fashion of any other Florida law suit.
That is, the judgment is obtained either after a trial, after a hearing on a motion for summary or default
judgment, or via a stipulation by the defendant(s). In addition to the standard procedure, plaintiffs in a

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