Estoppel by chronic lateness


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lateHabitual acceptance of late payments waived right to evict absent advanced notice that late payments would no longer be accepted.

Tenant defended an eviction for non-payment of rent on the basis that landlord’s habitual acceptance of late payments estopped landlord from evicting the tenant without giving an additional notice that late payment would not be accepted.

Testimony revealed that the Defendant consistently made late payments for years throughout the course of her tenancy. Tenant testified that she had received Three Day Notices in the past for failing to pay rent on time but has never been evicted and that late payments were accepted by management on numerous occasions, including accepting payments after the service of three day notices. The landlord did not provide Defendant with additional notice that late payments would no longer be accepted.

Courts have held that if the landlord has a pattern of constantly accepting late payments after giving the tenant notice that late payments would no longer be accepted, then the landlord may be estopped from evicting the tenant without additional notice that late payments will not be accepted. Heggs v. Haines City Community Dev., 2 Fla. L. Weekly Supp. 137a (10th Cir. App. 1994)

The court ruled that the landlord’s actions would cause a reasonable lessee to believe that the lessor did not intend to enforce the default  and that therefore landlord should be “equitably estopped”  from evicting the tenant for late payment of rent.  Vines v. Emerald Equipment Company, 342 So.2d 137 (Fla. 1st DCA 1977).


TIGER BAY OF GAINESVILLE LTR,  vs. OWENS,. County Court, 8th Judicial Circuit in and for Alachua County. Case No. 01-2013-CC-002434, Division IV. November 18, 2013. Phillip A. Pena, Judge.  21 Fla. L. Weekly Supp. 344a

Costs on Appeal


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Prevailing party on appeal entitled to costs and fees

Tenant appealed the denial of her section 8 benefits and won.  Tenant filed for her appellate costs and fees and was denied by the trial court.  Tenant appealed the denial and the  appellate division of the circuit court denied the motion for review, stating that the appellate division had lost jurisdiction once the appellate division had ruled.  Tenant appealed this denial  to the court of appeals.   The court of appeals ruled that as tenant  was the prevailing party in the appellate division of the circuit court, she was entitled to her appellate costs. See Philip J. Padovano, Florida Appellate Practice § 20.2, at 397 (2007-08 ed.).

Under Florida Rule of Appellate Procedure 9.400(a), a party may serve a motion to tax costs within thirty days after the issuance of the mandate. Thus, by its terms, rule 9.400(a) authorizes proceedings for appellate costs to take place after the mandate has issued. Appellate costs are taxed by the lower tribunal.

A party may challenge a denial of appellate costs by filing a motion for review in the appellate court within thirty days. Fla. R.App. P. 9.400(c); Philip J. Padovano, Florida Appellate Practice § 20.7, at 410-11. Tenant  timely filed her motion for review in the appellate division.

The circuit court appellate division had jurisdiction to consider Martin’s motion for review. It was incorrect to deny the motion for review on the theory that the appellate division had lost jurisdiction once the mandate issued.

“[A] party may file a petition for writ of mandamus to correct an erroneous decision that a lower tribunal is without jurisdiction.” Philip J. Padovano, Florida Appellate Practice § 28.2, at 685 (footnote omitted); Pino v. Dist. Ct. of App., Third Dist., 604 So.2d 1232, 1233 (Fla.1992). The appellate division must reinstate tenant’s motion for review, and proceed to consider the motion.

MARTIN v.  HIALEAH HOUSING AUTHORITY, District Court of Appeal of Florida, Third District. January 30, 2008. 972 So.2d 1113. .

Lets dance !


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Lets dance 2When you  “go to the mat”  on trial and on appeal,  you have invited your opponent to “dance” and are subject to all consequent costs for losing both.

At the end of a lease landlord imposed a $4,602.28 claim on tenant’s $7,400.00  security deposit for damage to the rental unit.  Tenant timely objected.  Landlord did not refund the uncontested balance of the deposit.  Tenant sued for the return of their deposit.

At trial the court noted that landlord failed to introduce  evidence from an INDEPENDENT source for any product or service claimed.  The landlord only had estimates,  but no receipts for actual expenditures.  The  landlord had actually not performed any of the repairs or replaced any of the items claimed.  The landlord admitted that all keys and fobs claimed had actually been returned by the tenants.

The trial court ordered the entire deposit refunded to the tenants,  plus their costs and attorney’s fees.

The landlord appealed to the circuit court and lost again.

In determining the total amount of costs and attorneys fees due to the tenant,  the court noted that although this was a County Court case seeking only $7800.00 in damages, because Defendant instigated the appeal and treated this matter without regard to the amount in controversy due to the breadth and length of the appeal, Plaintiffs cannot be penalized by this fact in seeking to recover all of the resultant fees and costs.

The Court should consider the nature of the defense, particularly whether the non-moving party went “to the mat” in the case. See Progressive, 984 So. 2d at 1032. If the defendant took positions and actions to be litigious, it cannot now be heard to complain that it “invited the moving party to dance.” See Roco Tobacco Co. v. Div. of Alcoholic Beverages, 934 So. 2d 479, 482 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D1826b]. Although this case involved a seemingly small amount of damages in relation to the fee sought, the Court notes that the Defendant vigorously defended this case, instituted its own counterclaim, tried the case, and appealed the case with extremely thorough and expansive briefing. Without a doubt, Defendant went “to the mat” in this litigation, so the Court finds that Plaintiffs’ preparation was reasonable.

The case was filed on 7/21/2011 and ended 3/26/2014.  There were 111 docket entries.

The court entered a judgment against the landlord for $34,220.58.

RUBIN vs. GOUDIE, County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 11-10381 CC 05. December 31, 2013. Honorable Gladys Perez, Judge. 21 Fla. L. Weekly Supp. 348b.  Online Reference: FLWSUPP 2104RUBI

Losing Landlord can run, but he can’t hide


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Summary:  Landlord must pay attorney’s fees and costs assessed by court in voluntarily dismissed eviction action before proceeding with any new eviction action for non-payment of rent

dog-bountyIn the case of ORANDELLO, v HOWARD 13 Fla. L. Weekly Supp. 503b,504a,  the landlord, representing himself,  filed an eviction based on  a defective 3-day notice.  Tenant attorney Charles Simon, filed a motion to dismiss the eviction for the tenant.  A few days later,  the landlord, hoping to pull and end run around attorney Simon filed a voluntary dismissal, issued a new 3-day Notice and filed a new eviction case a week later.  Alas, the attempted evasion did not succeed.  The court ruled that  where a plaintiff files a voluntary dismissal, the defendant is entitled to collect his attorney’s fees and costs from the plaintiff.  In fact,  the award of fees and costs is mandatory under the rules of civil procedure.   The court then entered a judgment for tenant’s attorney’s fees against the landlord for $1125.00.  As to the second eviction case the landlord filed,  the court ruled that  if a party who has dismissed a claim in any court, has filed a new case based on the same claim against the same defendant, the court shall order the payment of fees and costs from the previously dismissed claim and shall stay the proceedings in the new case until the plaintiff has paid the fees and costs from the dismissed case.   The court would not allow the new eviction to proceed until the landlord had paid all of the tenant’s attorney fees from the case he voluntarily dismissed.

See also DAYTONA PROPERTY MANAGEMENT, vs. BURNES, Volusia County Court,  Case No. 2013 33831 COCI, Division 84,  December 24, 2013. FLWSUPP 2104DAYT.  New eviction abated until attorneys fees and costs in previous action have been assessed by the court and paid by the plaintiff.

Tenant or Guest ?


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Landlord rented tenant a single family house on an oral month to month lease for $1000 a month.  Some months later, tenant’s boyfriend moved in and paid $500 of the rent.  Tenant direct deposited both portions of the rent into landlord’s bank account.  A couple of years later tenant notified the boyfriend to move out,  which he disregarded.  The landlord and tenant then terminated the rental agreement effective the end of the following month.  The tenant moved out, but the boyfriend stayed.  Tenant terminated the utility service and landlord instructed the utility companies not to restore service.  Landlord then sued the tenant for trespass and tenant counterclaimed for unlawful eviction for the termination of utilities.

The trial court ruled that there was no privity between landlord and the boyfriend and that once the lease with the tenant terminated any sublease or license between the boyfriend and the tenant also terminated.

The case was appealed to the state supreme court which ruled that the boyfriend was a licensee of the tenant, and that his license was terminated when the tenancy was terminated. At common law, a roommate is not considered a sublessee.  In contrast to a lease, a license in the law of real property conveys no estate in land, is not assignable, and is revocable at the will of the licensor.  this court listed several factors that a court should consider in determining whether an agreement is a lease or a license: (1) Most importantly, does the grantee have the right to occupy a distinct and separate part of the premises? (2) Is the grantee’s right to possession assignable? (3) Is the agreement for a fixed term?

A license is revocable at the will of the licensor. Second, a license cannot continue to exist after the licensor’s own interest in the land has been extinguished.  Therefore the boyfriend became a trespasser when tenant revoked lis license to stay there, and certainly when she terminated her lease.  As a trespasser, the boyfriend was not entitled to any notice to vacate from the landlord under the landlord tenant law.

KIEHM v. ADAMS, 126 P.3d 339 (2005) 109 Hawai’i 296.  Supreme Court of Hawai’i.  December 30, 2005.

Up in Smoke


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Tenant’s smoking deemed trespass justifying damages award to suffering neighbor.


Findings of Fact: To start with, the Court believes it appropriate to state what this case is and is not about. This is not a case about secondhand smoke. Rather, as persuasively argued by the Plaintiff, it is about excessive secondhand smoke.

At some time in 2003, the Plaintiff and her family purchased a condominium unit at the Palm Aire Condominium in Pompano Beach. At that time, the Defendant was living in a unit one floor up and one unit over from Plaintiff.  The Plaintiff as well as the occupants directly next to the Defendant’s unit, noticed smoke seeping into their units on a regular basis from the Defendant’s unit. The problem was particularly bothersome in the bathrooms.

The Plaintiff acknowledges that her family is “hypersensitive” to smoke due to a history of respiratory allergies. The smoke caused the family members’ health to deteriorate. In an attempt to ameliorate the problem, the Plaintiff installed air purifiers in her home. The problem was not resolved. At some point, the Plaintiff complained to the Defendant directly, as well as to the condominium association. The smoke got so bad that on several occasions the family had to sleep elsewhere. On one occasion, the smoke caused the Plaintiff’s smoke detector to go off.

At trial, the Defendant’s neighbors testified, and the Court finds their testimony credible. They likewise experienced a smoke problem, although not as serious as the Plaintiff’s. They tried to keep their bathroom doors closed to keep the smoke confined. They were also able to clearly detect smoke when walking on the catwalk adjacent to the Defendant’s unit. As with the Plaintiff, the neighbors’ smoke problem ended when the tenant moved out.

The Plaintiff has brought suit against Defendant for damages under theories of trespass, common law nuisance, and breach of covenant.

A. Trespass

In Florida, to establish trespass to real property, one must show an injury to or use of land of another by one having no right or authority. Winselman v. Reynolds, 690 So.2d 1325, 1327 (Fla. 3d DCA 1997), citing Brown v. Solary, 37 Fla. 102, 112 (1896). See also 55 Fla. Jur. 2d Trespass §4 (2000).

There is no case on point in Florida which addresses whether secondhand smoke is considered a form of trespass onto real property. However, in Florida, the focus of the tort of trespass is the “disturbance of possession.” Id. As pertains to smoke, secondary authority has summarized the status of the law as it relates to trespass as follows: “A trespass need not be inflicted directly on another’s realty, but may be committed by discharging a foreign polluting matter at a point beyond the boundary of such realty.” 75 Am. Jur. 2d Trespass §56 (2005). The Court believes, though, that in Florida common secondhand smoke which is customarily part of everyday life would not be actionable in trespass. See 55 Fla. Jur. 2d Trespass §9. The issue then is whether the evidence in the instant case demonstrates something more than mere custom, giving rise to a “disturbance of possession.” The Court concludes that based on the unique facts of this unusual case, it does.

As far as damages in trespass, Florida law notes that the “object of the law is to place the injured party in an actual [. . .] position financially equal to that which he would have occupied had his injuries not occurred, [. . .] and aside from the fact that one is always entitled to nominal damages for the vindication of his rights.” Id. §13. Nominal damages are awarded when “the evidence is insufficient to reveal the extent of an injury that has undoubtedly been inflicted on the plaintiff.” 17 Fla. Jur. 2d Damages §5 (2004). The Court finds that the evidence establishes that the Defendant is entitled to damages in trespass, as will be set forth hereinbelow.

B. Nuisance

The Supreme Court of Florida has recognized,

An owner or occupant of property must use it in a way that will not be a nuisance to other owners and occupants in the same community. Anything which annoys or disturbs one in the free use, possession, or enjoyment of his property of which renders its ordinary use or occupation physically uncomfortable may become a nuisance. Knowles v. Central Allapattae Properties, Inc., 198 So. 819, 822 (Fla. 1940), quoting Mercer v. Keynton, 163 So. 411, 413 (Fla. 1935).

While there is no case on point in Florida as to whether secondhand smoke is considered a private nuisance, Florida courts have allowed a nuisance action to proceed based on odors created by another party. See 38 Fla. Jur. 2d Nuisances §84 (2005). Additionally, other courts outside the state have addressed this particular issue. The Court of Appeals of Nebraska held that to have the use and enjoyment of one’s home interfered with by smoke, odor, and similar attacks upon one’s senses is a serious harm. Thomsen v. Greve, 550 N.W.2d 49, 55 (Neb. Ct. App. 1996). In Thomsen, the court found that the appellants were affected physically when smoke had entered their home approximately one hundred and forty times over a span of four years. Id.

Although not as egregious as Thomsen, the facts of the instant case demonstrate an interference with property on numerous occasions that goes beyond mere inconvenience or customary conduct. The Plaintiff and her family had recurring illnesses as a result of the smoke, and on several occasions had to vacate the premises.

The availability of damages for nuisance is similar to those available for trespass. See 38 Fla. Jur. 2d Nuisances §84.

C. Breach of Covenant

In Florida, parties living in a condominium are bound by a declaration of condominium which sets forth rights and obligations of the parties which are, in essence, contractual in nature and enforceable by one owner against another. Fla. Stat. §718.303(1)(b) (2004). See Gittelmacher v. Anttila, 595 So.2d 237, 238 (Fla. 4th DCA 1992). The Declaration of Condominium for Palm-Aire contains a covenant of quiet enjoyment. Similar to landlord-tenant situations, the covenant of quiet enjoyment is breached when a party obstructs, interferes with, or takes away from another party in a substantial degree the beneficial use of the property. See Carner v. Shapiro, 106 So.2d 87 (Fla. 2d DCA 1958); 49 Am. Jur. 2d, Landlord and Tenant § 606.

In Florida, while there is no case on point as to whether secondhand smoke is considered a breach of covenant of quiet enjoyment, a housing court in Massachusetts has ruled on this issue in analogous proceedings. In 50-58 Gainsborough Street Realty Trust v. Haile, the defendants failed to pay several months rent due to smoke seeping into their apartment from a downstairs bar. No. 98-02279 (Mass. Housing Ct., Boston Div., June 8, 1998), cited in Donnelley v. Cohasset Housing Authority, 16 Mass. L. Rptr. 318, 2003 WL 21246199 *8 (Mass. Sup. Ct. 2003). The Haile court held that while smoking is legal, secondhand smoke can be considered a breach of the covenant of quiet enjoyment. Id. In Donnelley, the Massachusetts Superior Court distinguished Haile by noting that in Haile the plaintiff was able to establish that “smoke from the nightclub entered the apartment through cracks in the fireplaces and electrical outlets,” which supported the decision against the nightclub. See id. The instant case is similar to Haile in that smoke actually seeped into the Plaintiff’s apartment from Defendant’s apartment on numerous occasions, once causing the smoke detector to sound and several times causing the Plaintiff’s family to have to sleep elsewhere.

D. Damages

While the Plaintiff established that she clearly suffered damages, the Court is, as a result, limited in what it can award. The Plaintiff’s actual damages are likely greater than what the Court is awarding. The Court breaks down the Plaintiff’s damages as follows:

1) medical expenses;

2) loss of use of premises; and

3) remedial expenses.

ORDERED AND ADJUDGED that the Plaintiff shall recover from the Defendant the sum of $1,000.00 and costs in the amount of $275.00, all of which shall bear interest at the rate of 7% per annum.

MERRILL, vs.  BOSSER,. County Court, 17th Judicial Circuit in and for Broward County. Case No. 05-4239 COCE 53. June 29, 2005. Robert W. Lee, Judge. 12 Fla. L. Weekly Supp. 885b

Tenant waived defective notice defense by failing to deposit rent into court registry but was entitled to evidentiary hearing to determine reasonable amount of attorney’s fees and costs


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On April 21, 2008, landlord filed a suit for tenant eviction and damages tenant in County Court. On May 2, 2008,landlord  moved for entry of clerk’s default and default final judgment on Count I for removal of tenant and possession. On May 8, 2008, the County Court entered its Final Default Judgment on Count I for Removal of Tenant and Possession.

On May 19, 2008, landlord moved for entry of clerk’s default and default final judgment on Count II for unpaid rent, attorney’s fees and court costs,  but did not send a copy to the tenant. On May 20, 2008, without holding a hearing,  the County Court granted the landlord’s motion for damages, attorney’s fees, and court costs.

On June 19, 2008,  tenant appealed,  alleging a defective 3 day notice and that he was  entitled to an evidentiary hearing on the damages count and proper notice thereof.

The appellate court ruled that the tenant waived the defense of defective three-day notice by failing to comply with section 83.60(2), Florida Statutes. See § 83.60(2) Fla. Stat. (2008); Stanley v. Quest Int’l Inv., Inc., 50 So. 3d 672, 673 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2636a]. Section 83.60(2), Florida Statutes, plainly requires the payment of rent into the court registry if the tenant chooses to assert any defense other than payment, and failure to make the necessary deposit constitutes an absolute waiver allowing for immediate default judgment in favor of the landlord. See Id. Moreover, in Bell v. Kornblatt, 705 So. 2d 113 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D264a],

As to the damages,  the appellate court ruled that a default admits a plaintiff’s entitlement to liquidated damages under a well-pled cause of action, but not to unliquidated damages, citing  Bodygear Activewear, Inc. v. Counter Intelligence Services, 946 So. 2d 1148, 1150 (Fla. 4th DCA 2006) [32 Fla. L. Weekly D35a]. A defaulting party has a due process entitlement to notice and an opportunity to be heard as to the presentation and evaluation of evidence necessary to a judicial interpretation of the amount of unliquidated damages.1 Id.

The reasonable amount of attorney’s fees and taxable costs to be awarded are unliquidated. Even though tenant  was in default,  he was entitled to an evidentiary hearing and proper notice thereof in order to determine the reasonable amount of attorney’s fees and taxable costs to be awarded. As a result, the County Court’s Final Default Judgment on Count II for Damages for Unpaid Rent must be affirmed in part, as to the total amount of damages for unpaid rent, and reversed in part, as to the reasonable amount of attorney’s fees and taxable costs. See Bodygear Activewear, Inc., 946 So. 2d at 1151.

LEHRER, v. COWEN,  Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 08-028069CACE. L.T. Case No. 08-003610COCE(61). July 23, 2013. Appeal from the County Court for the Seventeenth Judicial Circuit, Broward County, Arlene S. Backman, Judge. 21 Fla. L. Weekly Supp. 137b


1Damages are liquidated when the proper amount to be awarded can be determined with exactness from the cause of action as pleaded, i.e., from a pleaded agreement between the parties, by an arithmetical calculation or by application of definite rules of law. Bodygear Activewear, Inc., 946 So. 2d at 1150. However, damages are not liquidated if a Court must consider testimony or evidence to ascertain facts upon which to base a value judgment. Id.

Loss occasioned by embezzlement of escrowed funds falls upon the party whose funds were stolen, even though the embezzler was the other party’s attorney !


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Volusia County entered into a contract to purchase real estate from Freeman on November 7, 1991.   The purchase price was $893,200.00  with a $100,000.00  initial deposit to be held in escrow by Freeman’s attorney.  A subsequent second deposit of  $346,600.00 was placed in escrow with Freeman’s attorney on January 23, 1992.Embezzler

The closing on the Contract between Volusia County and Freeman occurred on November 6, 1992 at which time the County paid the balance of the purchase price of  $446,600.00 to Freeman’s attorney’s trust account.  The sellers had a mortgage on the property in the amount of $403,000.00 to be paid off.   The seller’s attorney showed the County a copy of an executed warranty deed and an executed satisfaction of mortgage that he said he would duly record.   The deed was recorded on November 10, 1992, the satisfaction of mortgage was not. It subsequently became apparent that Freeman’s attorney had embezzled  the county’s  purchase money from his trust account.   The mortgage was never paid off.   On December 10, 1992  the seller’s attorney  committed suicide.

On December 22,  the County  notified Freeman that as it had fully performed on the purchase contract the seller must pay off  the mortgage on the Property.  A law suit commenced.

The court noted that Freeman was  in no way complicit with the embezzlement by his attorney.    The court stated that it is a general rule of law that if property or money is embezzled or lost by an escrow holder, the loss, as between seller and buyer, falls on the one who owned the embezzled or lost property or money at the time of the loss. Accordingly, if the escrow holder embezzles the purchase price before the time when, under the terms of the escrow agreement the seller is entitled to receive it, the loss falls on the buyer, since it is still the Buyer’s money. Conversely, if the money is embezzled after the time when the seller has become entitled to the money, the loss falls on the seller, since it is considered the seller’s money. Cradock v. Cooper, 123 So.2d 256 (Fla. 2nd DCA 1960); Lipman v. Noblit, 45 A. 377 (Pa. 1900); Paul v. Kennedy, 102 A.2d 158 (Pa. 1954); Asher v. Herman, 267 N.Y.S. 2d 932 (N.Y. 1966); Pagan v. Spencer, 232 P.2d 323 (Cal. 1st DCA 1951); Hilderbrand v. Beck, 235 P. 301 (Cal. 1925); Kelly v. Steinberg, 306 P.2d 955 (Cal. 2nd DCA 1957); Zaremba v. Konopka, 228 A.2d 91 (N.J. 1957); Stuart v. Clarke, 619 A.2d 1199 (D.C. App. 1993); Matter of Berkley Multi-Units, Inc., 69 B.R. 638 (Bkrtcy. M.D. Fla. 1987); Crum v. City of Los Angeles, 294 P. 430 (Cal. 4th DCA 1931); Todd v. Vestermark, 302 P.2d 347 (Cal. 2nd DCA 1956).

Although it seems harsh to conclude that a loss occasioned by the embezzlement by an escrow agent who is also the attorney for one of the parties should fall on the other party, such a rule is founded on the principle that the escrow agent, even if  he is the attorney for one of the parties, is, when acting as the escrow agent, the agent of both parties until performance of the conditions of the escrow. 28 Am.Jur. 2d Escrow, §11. The attorney for one of the parties to a contract may act as the escrow agent in a real estate transaction by mutual agreement of the parties, if his duties as escrow agent involve no violation of duty to his  client and, in his capacity as escrow agent, he acts as an individual and not as an agent of his client. Thus, in this case by agreement of the parties, the seller’s attorney  was free to act in a dual capacity, being both the attorney for the Sellers and the escrow agent, an agent for both parties. 28 Am.Jur. 2d Escrow, §13.

The court ruled that as the mortgage was never paid off,  the closing was not consummated.  The buyer did not have marketable title and the seller was not entitled to the sales proceeds.  Therefore, ownership of or the right to the money remained with the County and under the general rule of law enunciated in Asher and Cradock the loss must fall on the County.

There is a clear exception to this rule where under the circumstances of the escrow agreement, the depositor would not be entitled to the return of the subject matter under any circumstances, irrespective of the performance of the terms of the agreement

It is clear from the facts of this case that the embezzlement of the money took place sometime between January 17, 1982 and prior to the date of closing, November 6, 1992. It was not until November 6, 1992 that the County finally performed its last act under the contract by depositing the remaining $446,600.00. . Therefore, under the rule of law enunciated in Cradock, Lipman, and Paul the loss in this case must, unfortunately, fall on the County. The fact that there was a “closing” is also of no significance. The transaction “closed” with both Buyer and Sellers believing that all of the money was in the trust account. If either of them had known of the embezzlement, , the “closing” would not have occurred.

In this case, the last of the conditions to be performed by the County was on November 6, 1992. The last condition to be performed by the Freemans — delivery of marketable title to the Property has never been performed. Clearly at the time of the embezzlement of escrowed funds the County was the owner of those funds. Therefore the loss of such funds, as a matter of law, must fall to the County. Although this result is harsh, particularly because the County and its legal staff did nothing wrong and were not negligent, the Court must follow the precedents cited herein. Since Foster, in his capacity as escrow agent, was acting as the agent of both parties and since the Freemans would not have been entitled to the escrowed funds at the time the funds were embezzled irrespective of performance of the Contract, the loss must fall on the County since the funds belonged to the County when they were stolen.

THE COUNTY OF VOLUSIA, v. FREEMAN. 7th Judicial Circuit in and for Volusia County, Civil Division. Case No. 93-30154-CI-CI, Division 32. December 3, 1993. Richard B. Orfinger, Judge. 2 Fla. L. Weekly Supp. 111a

Material Breach


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The case of the objectionable wallpaper 


Tenants rented a single family dwelling from the Landlord on December 30, 1999. There was some discussion about the Tenant’s purchasing the home. They began to fix up the home as if they intended to follow through on the purchase. The tenants testified that the landlord said “to do whatever they wished to make them happy.”

The   tenants  painted some of the interior walls and then removed and replaced some of the interior wallpaper in both the living room and in both bathrooms. They also put up a border in the living room, kitchen, and one of the bedrooms.

The landlord  wrote the tenants a letter on or about March 24, 2000  informing them that they had breached the lease and were being given 60 days to vacate the premises. The  landlord claimed that the installation of the wallpaper was  a breach of paragraph #8 of the lease which states in pertinent part: “Lessee shall make no alterations to the buildings on the demised premises or construct any building or make other improvements on the demised premises without the prior written consent of Lessor.”

The court noted that Section 83.56 allows a landlord to terminate a lease if the tenant “materially fails to comply” with section 83.52 or if the tenant fails to comply with “material provisions of the rental agreement.” The question is whether the wallpapering of the residence is a violation of a “material provision” of the lease. A breach of a contract is only material if it goes to the very heart of the contract and defeats the object of the parties in entering into the contract. As there were  no cases directly on point in Florida, the court cited an  Oregon case, McKeon v. Williams, 799 P.2d 198 (Or. App. 1990), where the court ruled that in order for a violation to be a material breach of the lease, a court must consider the following: (1) the extent to which the injured party will obtain the substantial benefit which he reasonably could have anticipated; (2) the extent to which the injured party may be adequately compensated in damages for lack of performance; and (3) the willful, negligent, or innocent behavior of the party failing to perform.” Id. at 200.

The court noted that the landlord has a security deposit against the possible damages to the walls, and found that pursuant to the representations made to the tenants  about making themselves happy and doing what they wished to the residence, the breach was innocent.  Therefore the breach of the lease was not a material breach and that the landlord  not entitled to possession.

GASKIN, vs. JOHNSON.  Civil Division. Case No. 2000-CC-1698. June 28, 2000. Matthew E. McMillan, Judge. 7 Fla Law Weekly Supp. 620a (Manatee county 2000)

Eviction reversed as to installment purchaser in possession


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bewarePlaintiff filed an eviction for non-payment of rent and obtained a writ of possession after defendant failed to post the amount claimed into the court registry.  Defendant vacated,  but later defended against the damages count, alleging that he was not a tenant buy a buyer under an oral installment sales contract.  The evidence showed that  Defendant paid five monthly payments of $461.05 and then stopped making payments because the parties could not agree on a written contract.  The court ruled that purchase contracts are not governed by Florida Statute83.  An installment sale is considered to be a mortgage under Florida Statute 697.01, which states “All conveyances, obligations conditioned or defeasible, bills of sale or other instruments of writing conveying or selling property, either real or personal, for the purpose or with the intention of securing the payment of money, whether such instrument be from a debtor to the creditor or from the debtor to some third person in trust for the creditor, shall be deemed and held mortgages, and shall be subject to the same rules of foreclosure and to the same regulations, restraints and forms as are prescribed in relation to mortgages”.  Consequently,  the court ruled that  the County Court did not have jurisdiction to hear an eviction which should have been filed in Circuit Court as a foreclosure.  As there was no proper cause of action for eviction, there was no requirement for the defendant to post “rent”  into the court registry.  The writ  and and order of possession were quashed,  and  the court ordered possession of the premises restored to the defendant.

TARDIF vs. HAAKE. County Court, 3rd Judicial Circuit in and for Columbia County, Civil Division. Case No. 13-648 CC. October 3, 2013. Tom Coleman, Judge.  21 Fla. L. Weekly Supp. 73a


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