Florida Estate does not want to pay lease on condo from deceased tenant but wants personal property Personal Rep for Estate is out of town and has never visited the leased condo after tenant deceased. She wants personal property without paying up on the past due rent. Have made a Statement of Claim for monthly lease payments as well as death scene bio hazard clean up. The Estate provided a Release of Right of Possession but has not paid anything. Does the landlord have to give personal property to the Personal Rep of Estate without Estate paying at least the rent balance due if not both the rent plus damages.
If the tenant were alive, you couldn't stop them from taking away their personal property, could you? No matter how overdue the rent was. Nor could you deny them access to the property, except through formal eviction. AFAIK the estate generally has the same rights that the decedent did. So if the tenant would have had the right to remove their property, then their estate should have that same right. I'd be concerned about legal risks to you if you try to withhold it - I wouldn't want to do so without having advice from my lawyer that it was okay. (Answers on this site are not legal advice and most of the users are not even lawyers.) The decendent's personal property should now be part of their estate, so if it has any value, the representative should have to sell it if necessary to settle their debts. Thus even if you release the property, some of its value may still come back to you. Of course, if the decedent had other debts, and their assets don't cover them all, you may not be able to recover everything you're owed - that's one of the risks you run when you decide to become a landlord. In particular, the personal representative is not obligated to pay off the overdue rent out of her own pocket.
Bob's will leaves everything to Abby. Bob has a brokerage account solely in his name with no TOD on the account. Bob then dies. It is my understanding that for Abby to get the money, you have to go through probate. Am I right about that? Yes, this has to go through probate. I have been told that when you are leaving everything to a spouse you can skip probate. I am thinking that is wrong. You are correct. This said, in a very small dollar estate (e.g. $20,000, with the actual dollar amount varying state by state), some states allow you to transfer assets by affidavit rather than via the probate process, if the sold heir at all and will beneficiary are the same and there are no unpaid creditors with a claim against those funds. New Jersey has two sets of small estate procedures for estates under $50,000. The cutoff is sometimes $10,000, sometimes $20,000, and sometimes $50,000 depending upon the circumstances and the nature of the simplified process sought. It isn't clear to me that they apply in cases where the decedent has a will and therefore is not intestate. Small Estates General Summary: Small Estate laws were enacted in order to enable heirs to obtain property of the deceased without probate, or with shortened probate proceedings, provided certain conditions are met. Small estates can be administered with less time and cost. If the deceased had conveyed most property to a trust but there remains some property, small estate laws may also be available. Small Estate procedures may generally be used regardless of whether there was a Will. In general, the two forms of small estate procedures are recognized: Small Estate Affidavit -Some States allow an affidavit to be executed by the spouse and/or heirs of the deceased and present the affidavit to the holder of property such as a bank to obtain property of the deceased. Other states require that the affidavit be filed with the Court. The main requirement before you may use an affidavit is that the value of the personal and/or real property of the estate not exceed a certain value. Summary Administration -Some states allow a Summary administration. Some States recognize both the Small Estate affidavit and Summary Administration, basing the requirement of which one to use on the value of the estate. Example: If the estate value is 10,000 or less an affidavit is allowed but if the value is between 10,000 to 20,000 a summary administration is allowed. New Jersey Summary: Under New Jersey statute, where as estate is valued at less than $50,000, a surviving spouse, partner in a civil union, or domestic partner, may present an affidavit of a small estate before the Superior Court. Upon the execution and filing of the affidavit, the surviving spouse shall have all of the rights, powers and duties of an administrator duly appointed for the estate. New Jersey: New Jersey requirements are set forth in the statutes below. TITLE 3B ADMINISTRATION OF ESTATES–DECEDENTS AND OTHERS 3B:10-3. When spouse, partner in a civil union, or domestic partner entitled to assets without administration. Where the total value of the real and personal assets of the estate of an intestate will not exceed $50,000, the surviving spouse, partner in a civil union, or domestic partner upon the execution of an affidavit before the Surrogate of the county where the intestate resided at his death, or, if then nonresident in this State, where any of the assets are located, or before the Superior Court, shall be entitled absolutely to all the real and personal assets without administration, and the assets of the estate up to $10,000 shall be free from all debts of the intestate. Upon the execution and filing of the affidavit as provided in this section, the surviving spouse, partner in a civil union, or domestic partner shall have all of the rights, powers and duties of an administrator duly appointed for the estate. The surviving spouse, partner in a civil union, or domestic partner may be sued and required to account as if he had been appointed administrator by the Surrogate or the Superior Court. The affidavit shall state that the affiant is the surviving spouse, partner in a civil union, or domestic partner of the intestate and that the value of the intestate’s real and personal assets will not exceed $50,000, and shall set forth the residence of the intestate at his death, and specifically the nature, location and value of the intestate’s real and personal assets. The affidavit shall be filed and recorded in the office of such Surrogate or, if the proceeding is before the Superior Court, then in the office of the clerk of that court. Where the affiant is domiciled outside this State, the Surrogate may authorize in writing that the affidavit be executed in the affiant’s domicile before any of the officers authorized by R.S.46:14-6.1 to take acknowledgments or proofs. amended 1983, c.246, s.1; 2004, c.132, s.77; 2005, c.331, s.24; 2015, c.232, s.1. 3B:10-4. When heirs entitled to assets without administration Where the total value of the real and personal assets of the estate of an intestate will not exceed $20,000 and the intestate leaves no surviving spouse, partner in a civil union, or domestic partner, and one of his heirs shall have obtained the consent in writing of the remaining heirs, if any, and shall have executed before the Surrogate of the county where the intestate resided at his death, or, if then nonresident in this State, where any of the intestate’s assets are located, or before the Superior Court, the affidavit herein provided for, shall be entitled to receive the assets of the intestate of the benefit of all the heirs and creditors without administration or entering into a bond. Upon executing the affidavit, and upon filing it and the consent, he shall have all the rights, powers and duties of an administrator duly appointed for the estate and may be sued and required to account as if he had been appointed administrator by the Surrogate or the Superior Court. The affidavit shall set forth the residence of the intestate at his death, the names, residences and relationships of all of the heirs and specifically the nature, location and value of the real and personal assets and also a statement that the value of the intestate’s real and personal assets will not exceed $20,000. The consent and the affidavit shall be filed and recorded, in the office of the Surrogate or, if the proceeding is before the Superior Court, then in the office of the clerk of that court. Where the affiant is domiciled outside this State, the Surrogate may authorize in writing that the affidavit be executed in the affiant’s domicile before any of the officers authorized by R.S.46:14-6.1 to take acknowledgments or proofs. amended 1983, c.246, s.2; 2004, c.132, s.78; 2005, c.331, s.25; 2015, c.232, s.2. The consent and the affidavit shall be filed and recorded, in the office of the surrogate or, if the proceeding is before the Superior Court, then in the office of the clerk of that court. Where the affiant is domiciled outside this State, the surrogate may authorize in writing that the affidavit be executed in the affiant’s domicile before any of the officers authorized by R.S. 46:14-7 and R.S. 46:14-8 to take acknowledgments or proofs.
I assume you are already living there? No, you can't use that clause, specifically because the &quot;previous renter&quot; is the person(s) who occupied the apartment prior to your moving in (the &quot;start date&quot;, or the first date that your lease is valid). That clause doesn't allow you to break the lease if one of the current renters vacates the apartment and leaves their stuff. This only means that if the apartment was not ready for you to occupy due to the previous tenant not vacating, that you are allowed to walk away from the lease without any payments (other than a credit verification fee). This pretty much requires you to not &quot;move in&quot; in the first place. If you've already moved in, you don't have a legal leg to stand on since you deemed the property fit to move in (and should have done a walk-through prior to accepting the condition of the apartment). If this is you &quot;getting on&quot; the lease, and the lease specifically says that you are being added and your &quot;start date&quot; is some date in the future that you intend to move in, you may have a leg to stand on since this is more like sub-letting individual rooms with a common area. It isn't clear to me if this is the case for you. Once the other person is off the lease they have basically abandoned their property and you may be able to dispose of it, or have the leasing company dispose of it.
No A tenant cannot acquire adverse possession. As describe in the LII Article on &quot;Adverse Possesion&quot;, one of the requirements for establishing adverse possession is that possession must be: Hostile--In this context, &quot;hostile&quot; does not mean &quot;unfriendly.&quot; Rather, it means that the possession infringes on the rights of the true owner. If the true owner consents or gives license to the adverse possessor's use of the property, possession is not hostile and it is not really adverse possession. Renters cannot be adverse possessors of the rented property, regardless of how long they possess it. (My emphasis) This is the classic common law rule. The Justia article on the topic says: The occupation must be hostile and adverse to the interests of the true owner. If a landowner has given a person permission to use the property, the possession is not considered hostile. However, a landowner is not required to have actual knowledge of the occupation, so long as the occupation is adverse to the owner's property interests. For example, a landowner may be unaware that his neighbor's fence extends several feet over his property line. The occupation is sufficiently hostile, however, because the landowner has not given his neighbor permission to encroach upon his property in this manner. The Nolo article on this topic says: Adverse Possession Requires a Hostile Claim The word &quot;hostile&quot; doesn't mean that the trespasser rides in on a horse with six-shooters blazing. Instead, courts follow one of three legal definitions of &quot;hostile&quot; when it comes to adverse possession. Simple occupation. This rule (followed by most states today) defines &quot;hostile&quot; as the mere occupation of the land. The trespasser doesn't have to know that the land belongs to someone else. Awareness of trespassing. This rule requires that the trespasser be cognizant that his or her use of the property amounts to trespassing (meaning the trespasser has no legal right to be on the property). Good faith mistake. A few states follow this rule, which requires the trespasser to have made an innocent good faith mistake in occupying the property in the first place, such as by relying on an invalid or incorrect deed. The Wikipedia article says: In general, a property owner has the right to recover possession of their property from unauthorised possessors through legal action such as ejectment. However, in the English common law tradition, courts have long ruled that when someone occupies a piece of property without permission and the property's owner does not exercise their right to recover their property for a significant period of time, not only is the original owner prevented from exercising their right to exclude, but an entirely new title to the property &quot;springs up&quot; in the adverse possessor. In effect, the adverse possessor becomes the property's new owner. .... Although the elements of an adverse possession action are different in every jurisdiction, a person claiming adverse possession is usually required to prove non-permissive use of the property that is actual, open and notorious, exclusive, adverse and continuous for the statutory period .... Renters, hunters or others who enter the land with permission are not taking possession that is hostile to the title owner's rights.
Assuming you have an assured shorthold tenancy, it's not the landlord himself that can evict you. The process is that he serves you notice, and if you don't move by the time the notice period ends, then he has to go to court in order to obtain a court order to end the tenancy. The landlord must demonstrate to the court that he has properly served notice to the tenant. This is a bit of a grey area, but this article suggests that, to avoid ambiguity, the landlord should either use recorded delivery (which would provide proof as to whether or not the tenant received it), or deliver it by hand with an independent witness present. In the case of a section 21 "no fault" eviction, the only defence a tenant has is that the correct procedure has not been followed. So it is in the landlord's interest to ensure that notice has been received beyond any doubt.
Does Florida state law require that an estate go into probate in the event the seller in a real estate transaction passes away prior to closing? Yes, if the seller is the owner of the property which is not in joint tenancy with right of survivorship or something similar (such as a transfer on death deed). A will is meaningless until it has been admitted to probate (which is a term that in the narrow sense means &quot;validating the authenticity and validity of a will). Likewise, an adjudication that someone had no will cannot be made without a probate proceeding. There is no exception for a clear an uncontested will. &quot;Will&quot; means &quot;probate&quot; pretty much by definition. This doesn't mean, however, that the closing of the property has to waive until the probate proceeding including a full administration of the probate estate and closing of the probate estate is required. Often, a will can be admitted to probate and an executor can be appointed to manage the estate in a matter of a few weeks to a few months if there is no contest to either the validity of the will or the appointment of a particular person as an executor. Generally, once the executor is appointed in the probate case, the real estate closing can go forward, sometimes with some additional uncontested motion practice. Once the property is sold, the proceeds are put in an estate bank account pending further administration of the estate's assets and liabilities. Indeed, even if the will is contested, as long as a consensus can be reached among the interested parties regarding who the executor should be, the real estate closing could go forward despite the fact that the will is contested. Powers of attorney are sometimes granted to real estate agents to complete a transaction in the event of a seller's incapacity. But powers of attorney are void no later than the point at which the person with the power of attorney learns of the death. (The common law rule was that a power of attorney was void at the moment of death, even if no one involved in the transaction knew that fact yet.) The only person with authority to sign the deed to sell the property, if the property is titled in the name of the seller individually, with no co-owner (or with a tenant-in-common co-owner), is the probate estate's executor. The real estate contract is a claim in the probate estate, which the probate estate is required to carry out if it is able to do so. But a real estate contract, in and of itself, doesn't transfer the property by operation of law at closing. Until the probate estate is opened, the buyer doesn't even have anyone who can be sued to demand that the real estate contract be performed.
Absent any new agreement with the tenant, a purchase is normally subject to any existing lease, so you would be renting to the existing tenant until that lease expires, under its original terms, with you having all the rights and duties under it that the previous owner had. In effect, by signing the purchase agreement, you accepted a version of the original lease with your name in place of the former owner's, but with no other changes. You are entitled to the same rent that the previous owner was entitled to, and must make any repairs or perform any services that the previous owner was required to do.
If the landlord gave you a key, and you can not give it back to him he has every right to charge you for correcting the oversight. I put to you that if you can't provide it back to him, he can't be certain that it has not fallen into the wrong hands, and he would be prudent to change the lock - and indeed, he may not even have another copy of the key in which case he really does not have a lot of alternatives. If you look at the section on "Claims for Damages or Loss" pdf there is a section B - Damage which confirms that Loss includes less tangible impacts including "loss of a service or facility provided under the tenancy agreement" Section C of the same document goes on to assert that "The purpose of compensation is to put the person who suffered the damage or loss in the same position as if the damage or loss had not occurred". There is arguably a question of the amount of loss suffered, and they can't sting you for punitive damages, but they can charge you a reasonable amount to get a new key cut (or possibly to replace the lock) - but that was not your question, and would probably arise if the amount he charges was unreasonable in the circumstance. Depending on if he has already taken action - and if not, how much the bill would be - promptly remedying the breach by finding and returning the key or equivalent action might save you some money.