Error to deny request for jury trial on eviction action absent waiver

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12Landlord brought an action for residential eviction and damages against Tenant. Tenant’s answer sought a jury trial, claimed the 3 day notice was defective, and counterclaimed for damages. The trial court denied tenant’s request for a jury trial; found the three-day notice sufficient; entered a judgment for possession and damages against Tenant and dismissed the counterclaims for lack of subject matter jurisdiction.

The tenant appealed. The appellate court reversed, stating that jury trials were available at common law in actions for possession of real property. Baldwin Sod Farms, Inc. v. Corigan, 746 So. 2d 1198 (Fla. 4th DCA 1999). The right to a jury trial on an eviction action is preserved, absent waiver. Art. I, §22, Florida Constitution; Remax East Realty, Inc. v. Goodco Properties, 481 So.2d 1281 (Fla. 4th DCA 1986). The record fails to disclose a waiver of the right to a jury trial. Consequently, it was error to deny Ms. Lederer’s request for a jury trial.   The tenant was also awarded fees and costs for the appeal under Fla. Stat. §83.48; Rule 9.400(a), Rules of Appellate Procedure.

LEDERER, Appellant, vs. FRAVEL, Appellee. Circuit Court, 15th Judicial Circuit (Appellate-Civil) in and for Palm Beach County. Case No. AP-00-10985-AY. October 21, 2002. Appeal from the County Court in and for Palm Beach County. 9 Fla L. Weekly Supp. 822a.

Author’s note:  you can insert a jury trial waiver clause into your lease.

Protecting Tenants Under Foreclosure Act does not provide for attorneys fees

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wolfThe MEEKS were tenants of a property that was foreclosed. A Certificate of Title was issued on December 17, 2013 to RYAN HENSON #10 LAND TRUST which filed a Motion for Writ of Possession on December 20, 2013.   MEEKS, filed an Emergency Motion to Quash the Writ of Possession on January 3, 2014.

The Court issued a Final Order Quashing Writ of Possession on January 28, 2014 holding that MEEKS were bona fide tenants in possession and must be given a ninety (90) notice to vacate the property pursuant to the PTFA. Thereafter, Tenants, MEEKS, filed a Motion to Determine Entitlement to Attorney’s Fees seeking attorney’s fees pursuant to §83.48, Florida Statutes.

The Court ruled that the Emergency Motion to Quash was not based upon enforcement of any provisions of the rental agreement. The Florida Residential Landlord and Tenant Act only allows for recovery of attorney’s fees by the prevailing party in a civil action brought to “enforce the provisions of the rental agreement or this part” [ Section 83.48, Florida Statutes] .

The Emergency Motion to Quash was based solely upon the PTFA. The court ruled that the PTFA does not provide for any award of attorney’s fees. The tenant’s motion for attorney’s fees was denied.

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CITIMORTGAGE, INC., vs. LUTZ, et al,. Circuit Court, 7th Judicial Circuit in and for Volusia County. Case No. 2009 35312 CICI, Division 31. April 7, 2014. Terence R. Perkins, Judge. 21 Fla. L. Weekly Supp. 647b

Court rules that e-mail satisfies statutory mailing requirement

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emailTenant occupied landlord’s premises under an oral month to month lease. On February 13 landlord e-mailed tenant a 15 day notice of non-renewal effective March 1 pursuant to 83.57 F.S. When the tenant failed to vacate, landlord filed for eviction and tenant defended on the basis that 15 day notice had not been “mailed” to him. The trial court ruled that the e-mail transmitted by landlord to tenant and acknowledged by tenant through a return e-mail satisfied the requirement set forth in §83.57 Fla. Stat. of 15 days notice to vacate by “mailing or delivery of a true copy” of the notice as set forth in §83.56(4), Fla. Stat.

§83.56(4) F.S. specifies that delivery of written notices shall be by mailing or delivery of a true copy thereof, or, if the tenant is absent from the premises, by leaving a copy thereof at the residence.

The tenant appealed and the appellate court found that the term “e-mail” is considered to be a form of “mail,” and is included within the definition of “mail” in Black’s Law Dictionary, Eighth Ed. (Thomson West, 2004): “mail, n. … 3. One or more written or oral messages sent electronically (e.g., through e-mail or voicemail).” Id. at 972, citing Cases: Telecommunications [key no.] 461.15. C.J.S. Telegraphs, Telephones, Radio, and Television §221.]

Accordingly, the court held that e-mail constitutes a mailing sufficient to satisfy a statutory requirement of a mailing of written notice, whenever a contract or course of dealing between parties establishes e-mail as a permissible means of notice, or whenever it is shown that the recipient received actual and timely notice through e-mail which is substantially the same notice as would have been provided in a writing mailed through conventional means.

Editor’s Note: if a 3 Day Notice is “mailed,” the recipient is entitled to respond by mail. Rule 1.090(e), Florida Rules of Civil Procedure provides the recipient five additional days to accomplish the mailing, which should be added to the due date on the “3 Day Notice.”  See Post office box rule  and Post office box rule revised

HARARI, vs. WHITFORD. Circuit Court,15th Judicial Circuit (Appellate) in and for Palm Beach County. May 25, 2007. Appeal from the County Court in and for Palm Beach County, Judge James L. Martz. 14 Fla. L. Weekly Supp. 701a.

Appellate court rules addendum containing liquidates damages clause enforceable even if the provision is not in the lease.

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reversalfortuneOn June 20, 2014 the 5th District Court of Appeals answered a question certified by the Brevard County Court as a matter of great public importance.

The query posed is: “[w]hether an addendum, providing for liquidated damages or an early termination fee, as provided in the rental agreement, in the form set forth in § 83.595(4), Fla. Stat., constitutes a valid, binding obligation, where the parties’ lease, in the form approved by the Florida Supreme Court and The Florida Bar, omits any reference to liquidated damages or an early termination fee.”

The county court answered “No,” concluding that a liquidated damages clause has to be in both the lease and the addendum.

The appellate court rejected this and stated that “the law is well established that two or more documents executed by the same parties, at or near the same time, and concerning the same transaction or subject matter are generally construed together as a single contract.” “This rule bears the moniker “contemporaneous instrument rule.”

The appellate court expressed its belief that the addendum was signed at the same time as the lease and also noted that it was described as “page 7 of 7” of the lease.

The appellate court held that “when a tenant and the landlord execute an addendum choosing the remedy of liquidated damages or an early termination fee pursuant to section 83.595, the remedy is enforceable if the addendum is executed at the same time as the lease (which does not make provision for the remedy) as part of the same transaction.”

RAISSA WILSON, Appellant,v. WILLIAM TERWILLINGER, Appellee.  Case No. 5D13-1478 DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT. Opinion filed June 20, 2014

Liquidated Damages clause enforced in real estate contract providing for choice of remedies

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The Florida 3rd District Court of Appeals (Dade) appears to have departed from the rule that a seller can not keep the buyer’s deposit for breach if the contract also gives him the remedy of specific performance. Continue reading

Fraud Alert: forged deeds on REO properties

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fraudAttorneys Title Fund Services LLC  reports in the May 2014 issue of “The Fund Concept”  that  there is a spate of forged deeds on REO properties.  These are foreclosed bank owned properties that have been sitting vacant for months or even years.   The scheme is that the fraudster will forge a deed from the bank  to himself.   Then the fraudster will contract to sell the property at a bargain price.

Red Flags on the grantor’s deed:

Minimum documentary stamps on the fraudsters deed.   Florida taxes deeds at $0.70  per $100 of sales price.  This tax is printed on the deed with the recording information.  If the tax paid is $0.70,  then the sales price was $100  or less.  In a real REO sale by a bank full documentary stamps would be paid.

The deed is handwritten.

The deed does not show the scrivener (person who prepared the deed)  in the top left corner,  or shows the grantee is the scrivener.   A bank would never have the buyer prepare the deed.

The grantor bank is out of state,  but the deed was notarized in Florida

Red Flags in your transaction:

There is no realtor.

The seller has no documentation of his purchase other than the recorded deed. i.e.  no owner’s title insurance policy, no settlement statement,  etc.

You are dealing with a middleman other than the record title holder.

Borrower bankruptcy filed after the expiration of the redemption period acts neither to stay the issuance of the certificate of title, nor writ of possession.

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bankruptcyIn a residential foreclosure, a third party purchased the property at auction. On July 11, 2013, the Clerk of Court issued a Certificate of Sale.  On September 26, 2013 Defendants filed bankruptcy.  On October 8, 2013, the clerk issued a  Certificate of Title. On January 6, 2014, the  Court,  issued a writ of possession.  Thereafter, Defendants filed to reverse the sale and stay the writ.

The court noted that the redemption period set forth in § 45.0315, Fla. Stat., is “the later of the filing of a certificate of sale . . . or the time specified in judgment, order, or decree of foreclosure . . . .” See, e.g., Matter of Sarasota Land Co v. Barnett Bank of Sarasota, NA., 36 B.R. 563, 566 (M.D. Fla. 1983) (holding that because the debtor/mortgagor failed to exercise his right of redemption within the statutory period, his interest in the property was permanently foreclosed and the issuance of the Certificate of Title was proper); In re Trust No. 101B, 77 B.R. 973, 975 (S.D. Fla. 1987) (reaching the same conclusion as Sarasota Land and holding that the purchaser at the judicial sale “is now entitled to receive a Certificate of Title pursuant to Florida law without the need for further proceedings.”).  In this case, the foreclosure judgment is silent on the issue and the Certificate of Sale was filed months prior to the bankruptcy filing.   Therefore,  as defendants redemption period had expired,  they had no remaining interest in the property, and the bankruptcy could act neither to reverse the sale or stay the writ of possession.

WELLS FARGO BANK, N.A,  v  OSBORNE, et al.,. Circuit Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2011-3143 CA 01 (11). February 24, 2014. 21 Fla. L. Weekly Supp. 519b

Rent due on illegal dwelling unit

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Landlord rented Tenant an “in-law” studio apartment attached to a single family home.  After several disagreements regarding the apartment,  tenant called the Code Enforcement Board (“CEB”) to complain about the condition of the apartment. grannyflat

While the CEB officer found that the apartment was clean, he also found that the apartment was in violation of applicable zoning laws prohibiting two dwelling units on the property.  Landlord terminated the tenancy effective  June 30th,  but the tenant held over.  Landlord issued a 3 day notice on July 9th,  and then filed an eviction for non-payment of rent.  On August 4th, tenant  vacated the premises. On August 11, 1997, the trial court entered final judgment in favor of  landlord and  damages in the amount of $1,000.00 for July and August rent due at $500.00  per month.

Tenant appealed.   The appellate court ruled that to permit the landlord to receive a full month’s rent  for August  when she would not otherwise be able to rent the apartment would create a windfall for her. However,  the landlord is entitled to be compensated for tenant’s  use and occupancy of the premises through August 4th. See generally Morris Investment Partnership v. Figueroa, 698 So. 2d 288 (Fla. 3d DCA 1997).  Therefore the appellate court awarded July rent and prorated rent for August.

Author’s Note: by issuing a 3 day notice after the date of lease termination,  landlord reinstated the month to month tenancy and forfeited the remedy of double rent per diem for the holdover.

MORRIS, v. WAGNER,  9th Judicial Circuit in and for Orange County. Case No. CVA197-59. April 22, 1999.  6 Fla. L. Weekly Supp. 451b.

Advanced rent not refundable on lease termination

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Landlord and tenant entered into a lease for residential real property on the following terms:  First months rent $5500,  Advance rent for 11 months $60,500, Security Deposit $5,500, Pet Deposit $500.  All payable at lease inception.

wild partyFour months into the lease,  landlord received complaints from neighbors about a wild party and inspecting the property found significant damage to the rental unit.  Landlord issued a notice of lease termination and tenants vacated.  The landlord did not return any monies to the tenant and the tenant sued for their security deposit and  for the return of “advance rent”  paid to landlord.   The trial court found that the $38,500 of the rent paid for the balance of the lease term was “advance rent”  and refundable, and that as the landlord had not made a written claim on the security deposit,  that too was refundable.  The court awarded landlord a setoff for $3,524.15 in damages to the unit.

On appeal,  the court ruled that there was no “advance rent,”  but rather the parties had entered into an annual  lease with one annual payment.  Section 83.43(9) defines “advance rent” as “moneys paid to the landlord to be applied to future rent payment periods, but does not include rent paid in advance for a current rent payment period.”  The court went on to state that  “even if this were advance rent, the landlord still would have been entitled to retain the unused portion of the money.   In Florida, if a lessee pays rent in advance and the lease is properly terminated by the lessor, then the lessor is not required to return the advance rental payment, citing Wagner v. Rice, 97 So.2d 267 (Fla.1957).

The appellate reversed the refund of the $38,500  advance rent back to the tenant,  but  upheld the return of  the security deposit less damages.

ATLANTIS ESTATE ACQUISITIONS, INC., v. DePIERRO,  125 So.3d 889 (Fla 4th DCA 2013)

Transient or non-transient, that is the question

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yorickThe Florida landlord tenant statute excludes “transient occupancy in a hotel, condominium,  motel, rooming house, or similar public lodging, or transient occupancy in a mobile home park.”  F.S. 83.42(3) from the act.   But courts have held that if  an occupant stays in a hotel long enough he is transformed into a tenant.

In  FLEMING vs. KIRTIBHAI HARIBHAI MASTER, a/k/a Harry Master and LAXMI PARTNERSHIP,  Court, 4th Judicial Circuit in and for Duval County. Case No. 2011-SC-1400, Division D. June 7, 2011  18 Fla. L. Weekly Supp. 688a,   Fleming resided at the Scottish Inn in Jacksonville for almost two years.    The Scottish Inn was a Hotel and regulated under Chapter 509.   Fleming  originally paid by the day, and then changed to paying two weeks in advance.  On February 18, Flemming fell behind on the rent and the management deactivated his key card so that he could not access his room or recover his possessions.

Fleming sued the Inn under the landlord-tenant statute for unlawful eviction.  The court stated that the Chapter 509, a summary procedure locking out guests only applies to a transient occupancy.  When it is the intention of the parties that the occupancy will not be temporary  it is  “non-transient.” There is a rebuttable presumption that, when the dwelling unit occupied is the sole residence of the guest, the occupancy is nontransient.” § 509.013(15), Fla. Stat. In this case, Room 123 at the Scottish Inn was Fleming’s sole residence for almost two years. In addition, the Scottish Inn was aware of his long term status as they had stopped charging sales tax after six months.  The court found that Fleming was a “nontransient” occupant at the Scottish Inn and not subject to the summary removal procedures of Chapter 509.

In housing non-transients, hotel  owners are placed under the same obligations as a residential landlord  even in the absence of a written lease for a specific period. E.g. § 83.57, Fla. Stat. (requiring advance written notice before ending a tenancy of indeterminate length). Failure  to comply with the procedures of Chapter 83 for removal of a non-transient occupant will result in the damages of 3 months rent for a lockout  under  Section 83.67, Florida Statutes, Prohibited Practices.

In  CHANDLER, v.  CONE,  Broward County. Case No. 95-11412 (56) COCE. July 28, 1995, 3 Fla. L. Weekly Supp. 369a,   an occupant of sixteen months paying week to week  in a licensed hotel was also declared to be non-transient as  she  “considered it her home.”  The court stated that the term “transient” is defined as “occupancy when it is the intention of the parties that the occupancy will be temporary.’

In another case a hotel employee  who had resided at a hotel as part of the compensation of her employment  for only a month was held to be a non-transient because her intention was to reside there as her sole residence indefinitely.   FREPPON, , vs. LAKELAND HOSPITALITY INC. d/b/a CROSSROADS MOTOR LODGE, County Court, 10th Judicial Circuit in and for Polk County. Case No. 2005CC-000230-0000-00. May 13, 2005. 12 Fla. L. Weekly Supp. 783a.

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