Chapter 15-2 Overview of Right of Redemption

15-2 Overview of Right of Redemption

The right of redemption originated as a common law right in equity and is now codified by statute.⁵ The right of redemption is a valued and protected equitable right of the mortgagor—and those claiming under or through the mortgagor—to reclaim his or her estate in foreclosed property after it has been forfeited, at law, by paying the amount of the debt, interest and costs.⁶ Only the mortgaged property owner and holders of junior interests have the right to redeem.⁷ Lessees are considered to hold a right to redeem under or through the mortgagor's right to redeem.⁸ Lessees do not have an independent right to redeem.⁹ A mortgagor's right of redemption, also termed 'equity of redemption', is considered to be an estate in land.¹⁰

Because the statute governing the right of redemption is in derogation of common law, it is strictly construed.¹¹ The law favors redemption by anyone who has an interest in the mortgaged premises and would be a loser by foreclosure.¹² The right of redemption also applies to foreclosure of homeowner's association liens.¹³

The right of redemption exists as 'an inseparable incident' to all mortgages and cannot be extinguished except by due process of law.¹⁴ Under the doctrine against "clogging the equity of redemption," a mortgagor cannot, by agreement made contemporaneously with or as part of mortgage transaction, bind him or herself not to assert the right or equity of redemption.¹⁵

The right of redemption can be relinquished by subsequent agreement upon further consideration.¹⁶ A mortgagor assigns the right of redemption by conveying all of his or her rights and interest in the property to the owner.¹⁷

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Notes:

^[5] Stovall v. Stokes, 94 Fla. 717 (Fla. 1927); § 45.0315, Fla. Stat. (2020).

^[6] Saidi v. Wasko, 687 So. 2d 10, 11 (Fla. 5th DCA 1996); citing CCC Properties Inc. v. Kanie, 582 So. 2d 159 (Fla. 4th DCA 1991); John Stepp, Inc. v. First Fed. Sav. and Loan Ass'n of Miami, 379 So. 2d 384, 385 (Fla. 4th DCA 1980).

^[7] Cukierman v. BankAtlantic, 89 So. 3d 250, 252 (Fla. 3d DCA 2012) citing § 45.0315, Fla. Stat. (2009); Marina Funding Grp., Inc. v. Peninsula Prop. Holdings, Inc., 950 So. 2d 428, 430 (Fla. 4th DCA 2007); Rooney v. Wells Fargo Bank, N.A., 102 So. 3d 734, 736 (Fla. 4th DCA 2012) (following Cukierman).

^[8] Sedra Family Ltd. Partnership v. 4750, LLC, 124 So. 3d 935 (Fla. 4th DCA 2012).

^[9] Sedra Family Ltd. Partnership v. 4750, LLC, 124 So. 3d 935 (Fla. 4th DCA 2012).

^[10] John Stepp...