Determining what may be claimed against the security deposit

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A landlord may claim damages to the rent unit by the tenant against the security deposit. Security deposits and the notice requirements are governed by Chapter 83.49, Florida Statutes   Generally, the landlord must make a written claim by certified mail within 30 days of the date the tenant surrenders possession of the leased premises. Click here for the claim form

The landlord may deduct for any damage done by the tenant that exceeds ordinary wear and tear in light of the length of time tenant was in possession. For example, where a tenant in possession for 15 years, the landlord’s claim for replacement of carpeting and worn linoleum floor was denied. Fishbein v. Oslander, 2013. Conn. Super. Lexis 2297 (Conn. Super. New Haven 2013).

 

Ordinary wear and tear: The landlord may not charge for ordinary cleaning or repainting unless specified in the lease.

Routine repainting: Bronxville Props. Inc v. Luyo, 37 Misc 3d, 1214A (Justice Court Westchester County 2012); BURLEY v. MATEO, 18 Fla. L. Weekly Supp. 624a.

Routine pressure washing of driveway / patio: BURLEY v. MATEO, 18 Fla. L. Weekly Supp. 624a.

Carpet shampooing: Love v. monarch Apts., 771 P.2d 79 (Kan 1989)

Rust and grease on stove: Cuccurullo v. Scott, 2011 N.J. Super. Unpub LEXIS 2665 (Super. Ct. N.J. App. Div. 2011)., Bronxville Props. Inc v. Luyo, 37 Misc 3d, 1214A (Justice Court Westchester County 2012)

Rust around sink: Bronxville Props. Inc v. Luyo, 37 Misc 3d, 1214A (Justice Court Westchester County 2012)

Pin holes in walls: Cuccurullo v. Scott, 2011 N.J. Super. Unpub LEXIS 2665 (Super. Ct. N.J. App. Div. 2011)

Burst pipe (not caused by tenant): Miro v. Garner, 52 S.W. 3d 407 (Tex. App. Corpus Christi 2001)

 

Vandals_HouseNot ordinary wear and tear. Broken, stolen, or deliberately damaged items are not considered ordinary and are chargable.

Failure to return keys: Smith V. Niederriter, 18 Fla. L. Weekly Supp. 1051a.

Missing drapes: Smith V. Niederriter, 18 Fla. L. Weekly Supp. 1051a.

Graffiti: Smith V. Niederriter, 18 Fla. L. Weekly Supp. 1051a.

Replace carpet soak in honey from tenant’s beekeeping: Oak Hill Inv Co. v. Jablonski, 605 N.E. 2d 998 (Ohio App . 1995)

Remove abandoned motorcycle. Allowed removal fee, but not storage fee. Berlinger v. Suburban Apt. Mgt. Co., 454 N.E.2d 1367 (Ohio App. 1982)

Removal of authorized improvements / Failure to remove unauthorized improvements: OLDHAM INVESTMENTS, LTD., , vs. LIEBER . Palm Beach County, April 18, 2008. 15 Fla. L. Weekly Supp. 733a

The lease may also specify items to be chargeable.   BERGREN v. WYATT, Hillsborough County. 2004. Marva L. Crenshaw, Judge. 11 Fla. L. Weekly Supp. 407a

The landlord has the initial burden to prove the damage. Then the burden shifts to the tenant to prove that the damage was pre-existing. The evidence should be of damage after the tenant moved out. One court rejected photos of damage because they were taken before the tenant moved out. Wyant v. Catlin, 972 N.Y.S. 2d 147 (Justice Ct. Red Hook, 2013).

The landlord may also provide in the lease that certain deposits are non-refundable, such as redecorating fees, or pet fees. If the lease does not provide the fees are non-refundable, the landlord will have to prove actual damages. The court denied the claim of a landlord for the cost of replacing the carpeting because the tenant had smoked in violation of the lease where not only did the landlord not replace the carpet, but did not even clean the carpet. Vinson v. Henley, 864 So.2d 894 (La. App. 2d Cir. 2004). Likewise, where a landlord charged to replace a lock the tenant has installed that did not match the other units, the court rejected the claim when it turned out the landlord had not actually replaced the lock. Adamsky v. Picknick, 603 A.2d 1069 (Pa. Super Ct. 1992).   The landlord should not charge for expenses not actually incurred.   Receipts for expenses paid will seldom be rejected by a court, as opposed to estimates for work not yet performed.   Remember to use move-in check lists for the tenant to indicate any pre-existing damage at the start of the lease.   Take photographs of all damage at the end of the lease.

When the tenant fails to move in

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no showTenant deposited one month’s rent toward a prospective tenancy. Upon move in, the tenant was to tender an additional two months’ rent plus security, but only showed up with two months’ rent.  The landlord rejected the partial tender and did not allow the tenant to move in. The tenant sued for his deposit.

The tenant argued 1) that the landlord was the one who breached the lease, because he did not allow him a chance to go to the bank and get the missing funds, and 2) the landlord never sent a certified letter claiming the deposit and thus had no right to claim it.

The court rejected both of these arguments 1) finding it was not credible that landlord did not give him a chance to tender the missing deposit, and 2) the requirement to send a certified letter claiming the deposit under Fla. Stat. §83.49(3)(a) did not apply for two reasons: a) as the deposit was a rent deposit, and not a security deposit, and b) because the tenant was in beach of the lease and thus not entitled to a written claim.

Entitlement to rent from a breaching tenant is governed by Florida Statute §83.595. The landlord’s options under the statute were to release the Plaintiffs from liability for any rent, or to hold the Plaintiffs liable for rent until the property is relet.  The landlord argued that he was entitled to keep the entire rent deposit simply because of the breach of lease, but presented no evidence as to if and when the property was relet. As a result, the Court concluded that the landlord had failed to meet his burden of showing entitlement to the deposit and ordered it returned to the tenant.

TAYLOR, vs. EDRI, . County Court, 17th Judicial Circuit in and for Broward County. February 4, 2013. Robert W. Lee, Judge. 20 Fla. L. Weekly Supp. 727c.

The case of the Texas Moon

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Court rules defective notice of lease violation not prejudicial to tenant,  but violations not disclosed in discovery not admissible at trial.

moonBACKGROUND

In January 2002, Nealy entered into a written lease agreement with SPA, a federally subsidized apartment complex regulated by Section 8 of the Housing Act of 1937, 42 U.S.C. § 1437f (2000 & Supp.2005), and Title 24 of the Code of Federal Regulations, 24 C.F.R. § 882.101 (2006). The lease also provided that SPA could terminate the tenancy for (1) a serious or repeated violation of the terms and conditions of the lease or other good cause upon provision of a notice of termination that complied with United States Department of Housing and Urban Development (“HUD”) requirements. See 24 C.F.R. § 882.101 (2006).

On April 28, 2004, SPA sent Nealy a “30 Day Notice to Vacate” the premises and listed two reasons for the notice to vacate: (1) “Owner desires possession” and (2) “Un-desirable tenant behavior.” SPA later filed suit against Nealy, citing “un-desirable tenant behavior” as the sole ground for eviction. During discovery, Nealy served a written interrogatory asking SPA to identify each act of undesirable tenant behavior on which SPA relied for evicting Nealy, including “what was done, by whom and when in breach of the lease.” SPA responded that “Ms. Nealy breached her lease by violating the rules of Southland Palms Apts. because she mooned another tenant.”

At trial, over objection by the tenant, SPA’s manager testified to additional violations,  that Nealy continuously loitered on the premises and rode a four-wheeler or tractor on the sidewalks, nearly hitting children on one occasion, and that Nealy had assaulted other tenants.

NOTICE OF TERMINATION

To terminate a tenancy in federally subsidized housing, federal regulations and due process both require adequate notice detailing the grounds for termination. Moon v. Spring Creek 390*390 Apartments, 11 S.W.3d 427, 433 (Tex. App.-Texarkana 2000, no pet.). The rules and regulations set forth by HUD mandate that the landlord’s termination notice “[s]tate the reasons for such termination with enough specificity to enable the [tenant] to prepare a defense.” 24 C.F.R. § 882.511(d)(2)(i) (2006); see 24 C.F.R. § 247.4(a)(2) (2006) (providing the same)., termination notices have been found to be insufficient when they contain only one sentence, are written in “vague and conclusory” language, or fail to set forth a factual statement of the reason for termination.

In the present case, the notice contained one vague and broad allegation that Nealy engaged in some type of undesirable behavior, but did not set forth the behavior SPA was complaining about. The notice also failed to notify Nealy of the dates of any incidents or of the people involved. Absent any of these details, the notice of termination failed to meet the specificity requirements outlined in the federal regulations and existing case law. We conclude the notice provided to Nealy was inadequate.

The purpose of the notice requirements under HUD is “to insure that the tenant is adequately informed of the nature of the evidence against him so that he can effectively rebut that evidence.” Escalera, 425 F.2d at 862. This purpose would not be served by allowing a tenant to assert that a court has no subject-matter jurisdiction over such an action because of an inadequate notice. For instance, assuming that a tenant received a deficient notice, yet effectively rebutted the evidence and prepared a proper defense, dismissing the case based on subject-matter jurisdiction would fail to serve the purpose of the statutory requirement. We conclude that an inadequate notice does not deprive a court of subject-matter jurisdiction and that a harm analysis better fulfills the purpose of HUD’s specificity requirements.

Nealy did file an answer and pursued pretrial discovery through written interrogatories and requests for production. Neither Nealy nor Nealy’s counsel indicated that they could not prepare a proper defense, and Nealy’s counsel did object to evidence of other alleged lease violations because counsel knew, or was under the impression, that only Nealy’s alleged mooning of other tenants formed the basis for her eviction. Finally, SPA’s manager testified that she actually met with Nealy to discuss Nealy’s undesirable tenant behavior prior to terminating the tenancy. Nealy was not harmed by the inadequate notice. See TEX.R.App. P. 44.1(a).

EVIDENTIARY COMPLAINTS

In discovery the SPA stated that Nealy breached her lease by violating the rules of SPA and by violated the lease addendum. It was reported that Nealy mooned another tenant.

SPA did not amend or supplement this answer prior to trial. At trial, the trial court admitted SPA’s evidence that (1) Nealy and one of her guests were the victims of two separate assaults; (2) Nealy loitered on the apartment’s premises in violation of the lease; and (3) Nealy rode a four-wheeler or tractor on the apartment sidewalks, nearly hitting children on one occasion. At all relevant times, Nealy objected to the admission of this evidence on the ground that these acts were not disclosed in discovery.

SPA was subject to Rule 193.6(a) of the Texas Rules of Civil Procedure. Rule 193.6(a) provides that a party who fails to make, to amend, or to supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, unless the court finds that there was good cause for the failure to make, to amend, or to supplement the discovery response timely, or that the other parties will not be unfairly surprised or prejudiced by the failure to make, to amend or to supplement. Id. 193.6(a). The party seeking to introduce the evidence carries the burden of establishing good cause or lack of unfair surprise or unfair prejudice. Id. 193.6(b). A finding of good cause or lack of unfair surprise or unfair prejudice must be supported by the record. Id.

Thus the trial court abused its discretion in admitting evidence regarding the assaults on Nealy and her guest, Nealy’s loitering on the premises, and Nealy’s driving of the four-wheeler or tractor on the apartment’s sidewalks.

Because the trial court did not find that Nealy actually mooned anyone, we conclude that reports of mooning do not fit within the grounds for evicting Nealy. We also conclude that mere reports of Nealy’s mooning others do not amount to good cause for evicting her. Had the trial court found that Nealy actually mooned others, the analysis would have been different; however, reports are nothing more than allegations, which this Court will not term as “good cause” for evicting a tenant in federally subsidized housing.

Because the reports of mooning do not fit within the grounds for evicting Nealy under the lease, we conclude that Nealy was harmed by the admission of the undisclosed evidence. Accordingly, we reverse the trial court’s judgment and remand the cause for further proceedings.

NEALY, v. SOUTHLAWN PALMS APARTMENTS, 196 S.W.3d 386 (2006), Court of Appeals of Texas, Houston (1st Dist.).

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.

* * *

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

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