Are you facing an eviction? If so, it might feel like you are out of options – or you might think bankruptcy is your only choice.
Here’s what you need to know before you make another legal move:
Many people believe that if a landlord asks a person or family to vacate a property, that is a legal eviction. This is not the case.
Eviction is a legal process. That process begins when the landlord notifies the occupant that they need to vacate. While you may choose to do so if asked, you are not actually legally obligated to until your landlord receives a judgment against you.
In the state of Florida, the length of notice that a landlord must give you before moving forward with an eviction depends on how often you pay rent. Refer to the following if you are not sure that you were given adequate time to make new living arrangements:
Remember, this only applies to tenants who are part of a lease agreement. If you are living at a property without a lease agreement – also known as a “tenant at will” – then you are subject to tenancy termination at any time.
Another exception is the case of a foreclosure on the property. If your current landlord faces foreclosure on the property, they must give you 30 days’ notice before the transfer of the property to a new owner takes place. During those 30 days, you may remain in the residence. After the property is turned over to a new owner, however, that owner can move forward with eviction proceedings if they so choose.
Generally speaking, Florida renters can have their tenancy terminated for any violation of their lease agreement. There are two types of these violations, referred to as curable and incurable.
A curable violation is generally something that the tenant can change right away, or that they can agree not to allow to happen again. This may include not keeping up with yard work, keeping pets outside of their rental agreement, or not maintaining a sufficiently clean home.
If they fix the problem, the landlord may agree to allow them to stay with no further consequences beyond a small fee.
In the instance of an incurable violation – such as destruction, damage, or misuse of property – the landlord owes the tenant no such grace. Likewise, if the tenant has committed more than one curable violation, they no longer warrant that grace, and the landlord can proceed with the eviction process.
Which brings many people to the question: can chapter 7 bankruptcy stop eviction or otherwise slow the process? You may have heard that a bankruptcy will stop an eviction in its tracks, but the truth is that things are not always so black and white.
So, can chapter 7 bankruptcy stop eviction?
The short answer is yes. Chapter 7 bankruptcy can usually halt the eviction process.
Bankruptcy stops the process by employing what’s called an automatic stay. This legal process keeps creditors or anyone to whom you owe money from moving forward with collection attempts.
In many cases, this includes a landlord who is trying to have you evicted from your rental residence.
It is important, however, to remember that in the case of chapter 7 bankruptcy, your goal is a fresh start. If you are walking away from your discharged debts, you are probably walking away from all of them – including your rental agreement.
In this case, you should already be seeking a new place to live. You may not be able to obtain a new lease during this time, so be sure to consult with a South Florida attorney about your options.
While a bankruptcy can put the brakes on an eviction in many cases, there are some exceptions. Understanding those exceptions will help you understand whether you might need additional legal help.
If your landlord already has a judgment against you, filing a bankruptcy will do nothing to slow the process of eviction. Rather, the process will move forward as if you had never filed. It is important to know this, since filing may not be as advantageous for you in this case.
In the instance of a failure to pay rent, this judgment may not be as inarguable as it otherwise would be. While not guaranteed, the judge in your case may allow you to “cure” or repay that outstanding rent. In that case, you would be allowed to remain in the residence.
However, even if you are granted an automatic stay that keeps you in your residence, your landlord can ask the court to lift that stay. If this is granted, you are right back to being in danger of eviction.
Another exception to the “fix” of bankruptcy is the instance of a tenant abusing the rental property. This may include using the property illegally or improperly, using drugs on the property where doing so is illegal or in violation of the lease agreement, and more. Anything that could get you in trouble with the law will also get you in trouble with your landlord – and likely get you legally evicted.
Not every instance of eviction is legal, and not every landlord knows the law. It is important to know what your rights and responsibilities are in the face of eviction, including whether bankruptcy would be an effective way to halt the process.
If you are still struggling with your eviction situation, help is available. Talk to the experienced team at the Van Horn Law Group. We have worked with countless Florida renters to better understand their rights, responsibilities, and how to navigate the eviction process. If you believe that a bankruptcy would be in your best interest – or would like to learn more about the process – give us a call today. We can help you make the right decisions for your family, your finances, and your future!
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