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The Hillsborough County Bar Association
and
Bay Area Legal Services
No Place Like Home . . . If You
Can Prove Title
CLEARI...
ABOUT THE PRESENTER
JENNIFER LYNN CODDING is an associate lawyer with the law firm of Jonathan James
Damonte, Chartered in...
No Place Like Home . . . If You Can Prove Title
CLEARING MOBILE HOME TITLE DEFECTS PRE-DISASTER
October 2, 2015
What is a ...
Rent a Lot.
Mobile home lot rentals are governed by The Florida Mobile Home Act, Chapter 723 Fla. Stat. In
this instance, ...
owner’shomestead, the owner benefits from the realestatetaxhomesteadexemption, andprotection
against judgments.
The mobile...
signed by the seller along with the Bill of Sale from the seller to the DHSMV for transfer. The
transferee will need to pa...
obtaining title when the title owner is deceased and obtaining Florida titles in general. With a series
of questions, the ...
The mobile home owner starts by sending a letter to the lienholder by certified mail asking for a lien
satisfaction. The l...
contention, but whether he is entitled to a declaration of rights at all. The possibility that the court
will rule adverse...
of a letter sent to the former owner’s last known address via certified mail, return receipt
requested requesting the titl...
WEBSITES AND CONTACTS
Florida MVR Services, Inc. www.flmvr.com
To search for a mobile home title when in possession of the...
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Clearing Mobile Home Title Defects Pre-Disaster 10.2.15

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Clearing Mobile Home Title Defects Pre-Disaster 10.2.15

  1. 1. The Hillsborough County Bar Association and Bay Area Legal Services No Place Like Home . . . If You Can Prove Title CLEARING MOBILE HOME TITLE DEFECTS PRE-DISASTER October 2, 2015 Jennifer Lynn Codding, Esq. Jonathan James Damonte, Chartered 12110 Seminole Boulevard Largo, FL 33778 (727) 586-2889 jcodding@damontelaw.com
  2. 2. ABOUT THE PRESENTER JENNIFER LYNN CODDING is an associate lawyer with the law firm of Jonathan James Damonte, Chartered in Largo. She graduated from the University of New Hampshire with a B.A. in English/Journalism and a minor in Justice Studies in 1994. In 2010, she received her J.D. from the University of New Hampshire School of Law. While in law school, she was admitted to the UniversityofNewHampshireSchoolofLaw’sprestigious DanielWebsterScholarHonorsprogram, a two-year bar practicum. Upon completion of the program, she was certified as having passed the New Hampshire Bar examination and admitted to the New Hampshire Bar. In addition, she is admitted to practice in Florida and is admitted to practice before the United States District Court for the Middle District of Florida. She is a 2014 recipient of the Florida Association for Women Lawyers Leaders in the Law Award and is Immediate-Past President of the Pinellas County Chapter of the Florida Association for Women Lawyers. In 2015, the Pinellas County Chapter of the Florida Association for Women Lawyers nominated her for the Marshall R. Cassedy Sr. Award for outstanding service to a voluntary bar association and for Florida Trend Legal Elite 2015. She currently serves on the Board of Trustees for the Sixth Judicial Circuit's Law Library, and she is a hearing officer for the St. Petersburg Housing Authority. She practices in the areas of real estate transactions, litigation, and community associations law.
  3. 3. No Place Like Home . . . If You Can Prove Title CLEARING MOBILE HOME TITLE DEFECTS PRE-DISASTER October 2, 2015 What is a Mobile Home? A mobile home is a dwelling which is built on an integral chassis in a factory, transportable in one or more sections, and which is eight feet or more in width. All single family mobile homes manufactured since June of 1976 must be built in accordance with the Manufactured Housing Construction and Safety Standards established by the U.S. Department of Housing and Urban Development (HUD), and must display a label certifying compliance. One of every three homes constructed in Florida is a mobile home. What is the difference between a Mobile Home and a Manufactured Home? Mobile homes are also sometimes called manufactured homes. This can be confusing as the term “manufactured”home is also sometimes used to describeFlorida Departmentof CommunityAffairs (“DCA”) Modular Homes, which are built to the Southern Building Code for site-built homes. Modular homes are built in sections at a factory, trucked to and then assembled on the site on a permanent foundation. As of October 1, 2015 modular homes placed on a mobile home lot in a mobile home park, recreational vehicle park, mobile home condominium, cooperative, or subdivision are required to be titled by the Department of Highway Safety and Motor Vehicles (“DHSMV”). Certificates of Title and Proving Ownership to a Mobile Home. In Florida, a mobile home is designated as a motor vehicle and requires a Certificate of Title issued by the DHSMV as proof of ownership, just like a car or truck. There is not a Certificate of Title for any added on “Florida Room”. What are the options for placement of Mobile Homes? 1. Rental Options: a. Rent a lot, own the mobile home. b. Rent both a mobile home and the lot on which it sits. 2. Real Property Options: a. Purchase a mobile home cooperative unit. b. Purchase a mobile home condominium unit. c. Purchase a fee simple lot with a mobile home on it. d. Purchase a cooperative, condominium or fee simple lot with a mobile home on it, the title(s) of which has/have been “retired.”
  4. 4. Rent a Lot. Mobile home lot rentals are governed by The Florida Mobile Home Act, Chapter 723 Fla. Stat. In this instance, the park owner owns the land in fee simple. He or she rents individual lots to mobile home owners. The mobile home owners pay monthly rent to the park owner and must register the mobile home with the DHSMV annually, similar to registering a car. Once registered, the DHSMV will issue a colored sticker for each side of the mobile home, which is/are placed in the front window of the mobile home to evidence proper registration. Registration must be renewed annually and tag fees paid, just like a car. The sticker color changes every year, just like the ones on cars. For mobile home parks containing 26 or more lots, per §723.011 Fla. Stat., the park owner must file aprospectuswith theFloridaDepartmentofBusiness andProfessionalRegulations. Priorto entering into an enforceablerental agreement for a mobile home lot, the park owner must deliver a prospectus to the prospective tenant. Upon delivery of a prospectus to a prospective tenant, the lot rental agreement is voidable by the tenant for a period of 15 days. However, the park owner is not required to furnish a copy of the prospectus if the tenancy is a renewal of a tenancy and the tenant has previously received the prospectus. Rent both a mobile home and the lot on which it sits. Sometimes, in addition to rental lots, a fee simple land owner may have rental mobile homes in his or her inventory. These can be mobiles the land owner obtained through abandonment sales, or even mobiles turned over to the land owner in exchange for being released from any delinquent and subsequent rent obligations. When a land owner rents the lot and the mobile home to a tenant, the tenancyis governedbyTheFloridaResidentialLandlordandTenantAct,Chapter83Fla.Stat.These mobile homes require annual registration and are also issued the colored sticker(s) by the DHSMV. Purchase a mobile home cooperative unit. Mobile home cooperatives are governed by The Cooperative Act, Chapter 719 Fla. Stat. A mobile home cooperative consists of three pieces of property - the share or membership in the cooperative association, the real estate interest in the lot on which the mobile home sits, and the mobile home. The cooperative association owns the land in fee simple. Upon purchasing a cooperative unit, the association issues a share in the association and a long-term leasehold interest in the lot on which the mobile home sits to the purchaser. Generally, share records and transfers are handled by either the association or its share transfer agent. The leasehold interest, which gives the purchaser exclusive use to the lot on which the mobile home sits, is transferred at the County Clerk’s Office in the County where the property is located, similar to a deed. This ownership has a chain of title just like fee simple ownership and parties must pay Florida documentary stamp tax on the total sales price to the State at the time of recording the instrument of transfer pursuant to §201.02 Fla. Stat. The cooperativeunit and mobile home are taxed as real property. Mobile home cooperative owners do not have to pay personal propertytaxes on any attachments to the mobile home. Since the lease is long-term (usually 99 years), if the unit is the
  5. 5. owner’shomestead, the owner benefits from the realestatetaxhomesteadexemption, andprotection against judgments. The mobile home title(s) is/are transferred at the DHSMV. However, since a mobile home cooperative is considered real property, purchasers do not pay sales tax or tag fees to the DHSMV and the mobile home does not need to be registered annually. Rather, the DHSMV issues black real property (“RP”) sticker(s), which cooperative unit owners place in the front window of the mobile home to evidence the mobile is real property. In instances where the owner obtains a loan from a lender, lender will secure the loan with a mortgage on the land, a lien on the mobile home title(s) and a pledge of the share. Purchase a mobile home condominium unit. Mobile home condominiums are governed by The Condominium Act, Chapter 718 Fla. Stat. The association may or may not issue shares. Unlike a cooperative, the land in the condominium is platted and thus condominium owners own the lot under the mobile in fee simple. As with a cooperative unit, the mobile home title(s) must be transferred at the DHSMV, with the DHSMV treating the mobile home as real property and issuing the black “RP” sticker(s). In instances where the owner obtains a loan from a lender, lender will secure the loan with a mortgage on the land, a lien on the mobile home title(s) and a pledge of the share, if applicable. Purchase a fee simple lot with a mobile home on it. If a person purchases a lot in fee simple with a mobile home on it, ownership of the land will be by deed, while ownership of the mobile home will be transferred through the DHSMV. The DHSMV will treat the mobile home as real property and will issue black “RP” sticker(s). In instances where the owner obtains a loan from a lender, lender will secure the loan with a mortgage on the land and a lien on the mobile home title(s). Purchase a cooperative, condominium or fee simple lot with a mobile home on it, the title(s) of which has/have been “retired” pursuant to §319.261 Fla. Stat. If a person purchases a cooperative, condominium or fee simple lot with a mobile home on it, the mobile home title(s) may be “retired.” If the title(s) has/have been retired, then any future transfer of the mobile home and real property will be by deed only. Once “retired”, it is unnecessary to transfer the mobile home title(s) at the DHSMV. As to loans, lender security consists of mortgages. The DHSMV will not recognize the mobile home as a separate security interest and will not allow lenders to place liens on the mobile home title(s). Basic Mobile Home Certificate of Title Transfer. The transfer of mobile home titles at the DHSMV is basically the same as transferring car titles. Upon purchasing a mobile home on a rental lot, the purchaser takes the original mobile home title(s)
  6. 6. signed by the seller along with the Bill of Sale from the seller to the DHSMV for transfer. The transferee will need to pay for the new title(s), sales tax and any registration fees. For transfers of mobile homes that are real property, the purchaser takes the original mobile home title(s) and a copy of the recorded “muniment of title” (i.e. deed, Assignment of Lease, Order of Summary Administration) evidencing that the mobile home is to be taxed as real property to the DHSMV for transfer. In this instance, the purchaser pays for the new title(s) and “RP” Sticker(s) only as there are no sales taxes nor registration fees. In cases where a third party is handling the transfer for seller and purchaser, the DHSMV accepts Powers of Attorney and provides the form for the same. The seller and buyer each need their own individual POA, and there needs to be one for each party for each side of the mobile home. So, if the mobile home is a double-wide, you need two POAs for seller, and two for buyer. The POA form does not require that the seller or purchaser signatures be notarized. However, the third party does have to produce copies of valid government issued identifications for the sellers and buyers. Examples of accepted identifications are driver’s licenses, State issued non-driver identification cards and passports. Searching the DHSMV Database. Florida MVR Service, Inc. www.flmvr.com is an inexpensive search tool for DHSMV titles if you know either the Vehicle Identification Number or Title Number. The company charges $1.50 per search and provides virtually instantaneous results. The FLMVR reports provide you with all identifying numbers to the mobile home, the name, address, birth date and driver’s license number for each owner, the last date of transfer, the status of any liens and the use designation for the mobile home (general property or real property). Practical Tip: In some instances you may have the Vehicle Identification Number and/or Title Number for the mobile, but are unable to find a record of the title in the DHSMV’s system. If this is the case, the title may be stored in the DHSMV’s prior database and a search of the database by a DHSMV employee is required. If you do not have any identifying numbers to the mobile home, you will need to conduct a more extensive search. Our office uses LexisNexis Accurint www.accurint.com for these searches. Accurint allows you to run motor vehicle asset searches through its system by the owner’s name, social securitynumber, address or driver’s license number. The searches currentlyrun around $6.00 per search. However, as the information on the website may not be as up-to-date as that in the FLMVR registry, once you have identified the mobile home it is good practice to run a subsequent search of the FLMVR website to verify the current status of ownership. Common Problems. The DHSMV has several useful resources on its website at www.flhsmv.gov. On the home page, if you click on Motor Vehicles, Tags & Titles, there are Simple Wizards for obtaining duplicate titles,
  7. 7. obtaining title when the title owner is deceased and obtaining Florida titles in general. With a series of questions, the Simple Wizards guide you through the various processes based on your individual circumstances. Also on the website under Resource Center are the DHSMV forms, which can be filled out on line, printed and then taken to the DHSMV. In addition, the DHSMV Procedures Manual is also on the DHSMV’s website. On the home page, click on Motor Vehicles, Tags & Titles, then Motor Vehicle Home, then Manuals and Guides and then DMV Procedures Manual. Practical Tip: If you still need assistance determining how to resolve a title problem, call the DHSMV directly. The DHSMV personnel are generally knowledgeable and helpful. However, be aware that attorneys may have better luck getting information out of the DHSMV personnel than non-attorneys. The following problems apply to mobile homes originally registered in Florida only. When dealing with a mobile home previously titled out-of-state, refer to the Manual for specific instructions. Mobile Home Title Missing - Procedure TL-05 Mobile home titles may be missing for various reasons. If a mobile home owner obtained a loan secured by a lien on the mobile home, then most likely the lender has the original title or the DHSMV issued an electronic title. Of course, a mobile home title may be missing because the mobile home owner misplaced or destroyed the paper title. In this instance, the DHSMV will issue a duplicate title. Persons requesting a duplicate title need to fill out an Application for Duplicate or Lost in Transit/Reassignment for a Motor Vehicle, Mobile Home or Vessel Title Certificate (form HSMV 82101) and pay a fee for the duplicate title. The duplicate title voids the original title, so the DHSMV will not accept the original title for transfer once a duplicate has been issued. Mobile Home Unidentifiable Sometimes a mobile home cannot be identified. This can happen in instances when the Vehicle Identification Number is not locatable, missing or scratched off. If the mobile cannot be identified, the Division of Motorist Services Bureau of Motorist Services Support has inspectors who will go to the unit and attempt to identify the unit for free (813-612-7111). In order to do this, generally the inspector needs access to the inside of the unit. Liens Paid Off But Not Released - Procedure TL-33 When a lien is over 5 years old, has been paid in full and the lienholder can or cannot be located to satisfy the recorded lien, the DHSMV provides for an alternate method for removing the lien.
  8. 8. The mobile home owner starts by sending a letter to the lienholder by certified mail asking for a lien satisfaction. The letter must be mailed not less than 20 days prior to the date of application. If the lienholder returns an original, signed satisfaction, then the mobile home owner submits the satisfaction to the DHSMV for lien removal. If the lienholder does not send a satisfaction, then the mobile home owner must submit proof of mailing (either the original, unopened certified envelope or the original returned receipt card for the certified mail signed by the lienholder, along with the paid receipt for the certified mail and photocopy of the letter that was sent), along with a copy of the lien contract showing the scheduled payoff date to the DHSMV. Note that the payoff date cannot be after the application date. Problems that Must be Resolved through the Court System. Unfortunately, not all mobile home title issues can be resolved through the DHSMV. In the above example, the DHSMV requires that the mobile home owner provide the DHSMV with a copy of the lien contract before it will release the lien. If the mobile home owner cannot provide a copy of the lien contract, then the mobile home owner must obtain a Court Order ordering the DHSMV to remove the lien. Sometimes this only involves a few extra steps. For instance, in cases where a landlord has evicted a tenant and taken title back at an abandonment sale, the landlord can file a motion in the eviction case to order the DHSMV to remove the lien. However, when there is not already a case open, the aggrieved party will likely need to file a Petition for DeclaratoryJudgment. The circuit and county courts have jurisdiction within their respective jurisdictional amounts to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed. §86.011 Fla. Stat. In order to invoke jurisdiction under the Declaratory Judgment Act in the 2nd DCA, the complaint must show: 1. that there is a bona fide, actual, present and practical need for the declaration; 2. that the declaration will deal with present, ascertained or ascertainable state of facts, or present controversy as to a state of facts; 3. that some immunity, power, privilege or right is dependent upon facts or law applicable to facts; 4. that there is some person or persons who have, or reasonably may have, an actual, present, adverse and antagonist interest in the subject matter, either in fact or law; and 5. that the antagonistic and adverse interests are all before the court; and that the relief sought is not merely the giving of legal advice by the courts or the answers to questions propounded from curiosity. City of Sarasota v. Mikos, 613 So.2d 566, 567 (Fla. 2d DCA 1993). The test of the sufficiency of a complaint for declaratory action is not whether the complaint shows that plaintiff will succeed in getting a declaration of right in accordance with his theory and
  9. 9. contention, but whether he is entitled to a declaration of rights at all. The possibility that the court will rule adversely to the plaintiff on the merits does not preclude the right to a declaratory decree. Id. As a practical matter, problems can arise in proving the facts necessary to support a Petition for Declaratory Judgment. As an example, a common problem occurs when a buyer/tenant enters into a rent-to-own agreement with a mobile home park owner who has an open title from the actual mobile home owner, and after the buyer/tenant has made all the payments, he or she discovers that the original mobile home title is missing and the owner is not locatable. In this example, before the Court will consider entering an Order Directing the Department of Highway Safety and Motor Vehicles to Issue a Certificate of Title, the petitioner will likely need to file the following evidence in conjunction with his or her Complaint: 1. Affidavit of Diligent Search for the former owner. The following is a list of actions the court may find are reasonable for the petitioner to take before filing a sworn statement that he or she made a diligent search and inquiry: • Ask the U.S. Postmaster in the cities of the prior owner's previously known residences for a forwarding address under the Freedom of Information Act. • Search phone directories of the cities and towns of the prior owner's possible residence. • Search public real estate and business tax records of the tax collector’s office. • Search public real estate records of the property appraiser’s office. • Inquire of persons in the neighborhood where the prior owner formally lived. • Contact the last known employer of prior owner. • Inquire of regulatory agencies including licensing agencies. • Contact prior owner's relatives. • Search the Social Security Death Index to determine whether the prior owner may have passed away. • Inquire of law enforcement agencies at the last known residential area of prior owner including highway patrol, state police, and the department of corrections. • Use services of private investigation agencies or similar "skip tracing" services. • Search the Internet. • Search the DHSMV records for the prior owner’s address. To do so, complete form HSMV 85054 – Driver License, Motor Vehicle/Vessel Records Request. Use exemption number five stating the record will be used in connection with a civil proceeding for investigation by any person in connection with any filed proceeding. The petitioner must follow through on all leads that he or she discovers in making the search. 2. Copies of the bill of sale, canceled checks, letter, memorandum or some means of proving rights to ownership. 3. If the former owner has moved from the area without leaving a forwarding address, a copy
  10. 10. of a letter sent to the former owner’s last known address via certified mail, return receipt requested requesting the title. To prevent anyone other than the owner from signing for delivery of the letter, the sender should also indicate that the letter be sent by “restricted delivery”. Finally, if the letter is returned unopened, hold the unopened letter in the file. The DHSMV may require you produce the unopened letter at the time of application for Certificate of Title. 4. An Affidavit for Vehicle Title Application. Additional problems can arise regarding service of process. For instance, in cases where there is an open title, the original Certificate of Title is missing, the unit owners are deceased and the heirs have not probated the estate, the petitioner may need to hire a Guardian Ad Litem to locate and represent the heirs. Finally, it is imperative that the petitioner draft the proposed final order so that it identifies the mobile home by year, make and vehicle identification number and so that it contains a clear statement that directs the DHSMV to act. If there are any questions as to what it is the DHSMV is to do, the DHSMV may reject the order. Casualty Damage - Is a Tenant Obligated to Pay Rent to the Landlord Post-Disaster? For persons who rent both the mobile home and the lot, per §83.63 Fla. Stat. if the premises are damaged or destroyed other than bythe wrongful or negligent acts of the tenant so that the enjoyment of the premises is substantially impaired, the tenant may terminate the rental agreement and immediately vacate the premises. The tenant may vacate the part of the premises rendered unusable by the casualty, in which case the tenant’s liability for rent shall be reduced by the fair rental value of that part of the premises damaged or destroyed. However, The Florida Mobile Home Act does not contain a similar provision for mobile home owners who rent their lots. If neither the prospectus nor rental agreement contain language addressing rent payment after a casualty, then arguably in the instance of a total loss caused by a casualty,atenant’srecoursewouldbeterminationoftheleaseundertheprospectus,rentalagreement or statute.
  11. 11. WEBSITES AND CONTACTS Florida MVR Services, Inc. www.flmvr.com To search for a mobile home title when in possession of the vehicle identification number, title number or tag number. Lexis Nexis Accurint www.accurint.com To search for a mobile home title when in possession the owner’s name, social security number, address or driver’s license number. Division of Motorist Services Bureau of Motorist Services Support (813)-612-7111 To request that an inspector go to the unit and attempt to identify the unit. Department of Highway Safety and Motor Vehicles Hillsborough (813) 635-5200 Pasco Dade City (352) 521-4360 Land-O-Lakes (813) 235-6020 New Port Richey (727) 847-8165 Wesley Chapel (813) 235-6020 Pinellas (727) 464-7777

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