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Governor Ron DeSantis issued a FOURTH Executive Order on Florida Evictions and Foreclosures During COVID-19

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On July 29, 2020, Governor Ron DeSantis entered Executive Order #2020-180 extending the foreclosure and eviction moratorium previously ordered on April 2, 2020. However, Governor DeSantis made significant modifications to the moratorium as it relates to mortgage foreclosures and eviction relief.

The Executive Order #20-94, entered at the beginning of the COVID-19 crisis, suspended and tolled “any statute providing for a mortgage foreclosure cause of action under Florida law for 45 days” and “any statute providing for an eviction cause of action under Florida Law solely as it related to non-payment of rent by residential tenant due to COVID-19 emergency….” This language made it much more difficult for mortgage lenders and residential landlords to either initiate actions for foreclosure and evictions, or to obtain final relief from the courts. The moratorium was extended three times since April.

Governor DeSantis’ recent executive order extended the moratorium until 12:01 a.m. on September 1, 2020 but it also amended the moratorium on foreclosure and evictions. As of  August 1, 2020 at 12:02 a.m.,  the Governor suspended and tolled “any statute providing for [a] final action at the conclusion of a mortgage foreclosure proceeding under Florida law solely when the proceeding arises from nonpayment of mortgage by a single-family mortgagor adversely affected by the COVID-19 emergency.” The recent executive order specially states that the executive order does not “suspend or otherwise affect foreclosure proceedings unrelated to non-payment of mortgage” (i.e., tax-lien foreclosures, homeowner’s associations’ foreclosures of claims of liens, etc.). This means that commercial mortgage foreclosures can technically proceed, as can residential mortgage foreclosures where the mortgagor was not adversely affect by the COVID-19 emergency. This also allows for the initiation of actions against residential mortgagors affected by the COVID-19 crisis but limits the ability to bring the case to its conclusion. While the definition of “at the conclusion of the mortgage foreclosure proceeding” is vague, it may allow Florida courts to issue orders on preliminary issues, bringing the case up to the point of issuance of final judgment. Homeowners and lenders will see in the upcoming month how the different circuits choose to implement these changes to the foreclosure moratorium.

As for the moratorium on evictions, while commercial landlords and tenants have technically not been affected by the April COVID-19 emergency executive order, residential evictions have been at a standstill since April. The recent amendment to the April executive order suspends and tolls “any statute providing for final action at the conclusion of an eviction proceeding under Florida law solely when the proceeding arises from non-payment of rent by a residential tenant adversely affected by the COVID-19 emergency.” This change leaves the possibility for residential landlords to initiate cases against tenants who are affected by the COVID-19 emergency, but may limit the ability of the judges or clerks from taking action beyond the issuance of a final judgment. The recent executive order also specifically states that “[n]othing in this Executive Order shall be construed to suspend or otherwise affect eviction proceedings unrelated to non-payment of rent,” leaving open the significant possibility of eviction proceedings against COVID-19 affected tenants who violate the terms of a lease for reasons other than non-payment of rent. These changes may cause a significant uptick in residential evictions filings in the State of Florida in the near future.

Executive Order Number 20-180 also specifically defines the term “adversely affected by the COVID-19 emergency” as: “loss of employment, diminished wages or business income, or other monetary loss realized during the Florida State of Emergency directly impacting the ability of a” “single-family mortgagor to make mortgage payments” or  “residential tenant to make rent payments.” This clarifies previously ambiguous language and gives landlords, lenders, tenants, and mortgagors clarity as to the scope of the application of the Governor’s prior order.

Finally, in the recent order Governor DeSantis specifically amended the April executive order to include that “[n]othing in this Executive Order shall be construed as relieving an individual from his or her obligation to make mortgage payments or rent payments. All payments. including tolled payments, are due when an individual is no longer adversely affected by the COVID-19 emergency.” It appears to send a clear message to residential mortgagors and tenants that although there is some relief for those suffering due to the pandemic, they are ultimately still responsible for paying their lenders or landlords all sums which may have gone unpaid during this moratorium period. Furthermore, this language may provide instruction in subsequent litigation should a party seek to assert a non-payment defense, citing to the COVID-19 pandemic and prior Executive Orders issued by Governor DeSantis.

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