Commercial tenant’s refusal to pay a $240.20 late fee ends up costing him $169,297.77 !
The lease terms can not be unilaterally changed in the middle of the tenancy. When the tenancy is up for renewal, however either of the parties may choose not to renew the tenancy, or to change the terms. If the tenancy is month to month, the landlord may terminate the tenancy pursuant to 83.57 F.S. by providing 15 days notice. The notice must be served according to 83.56(4) by mailing or personal delivery, of if the tenant is absent from the premises, by posting. In said notice, the landlord may propose new terms for the next monthly tenancy. The tenant then has the choice to remain, accepting the new terms, or to reject the new terms by vacating at the end of the monthly rental period.
If the notice is not provided, is defective, or not properly served, then the lease is not terminated and no changes have been made.
Here is a form that you can use to change the lease terms.
Florida Statues §83.59(d) provides that if the only tenant has died, the rent is unpaid, and sixty days has elapsed and the landlord has not received a notice of probate, the landlord automatically recovers possession. Abandoned property shall be dealt with as per the lease terms or statute. The law does allow you to execute an abandoned property agreement which would allow you to automatically dispose of the tenant’s belongings. This must be executed as an addendum to the lease.
When you buy a property it is subject to the existing lease.
The new owner steps into the former owner’s shoes and assumes the landlord’s obligations under the lease. If the tenant had made deposits (i.e. last month rent and security deposit ) the new landlord is liable to the tenant for those deposits.
A buyer must require the seller to provide an estoppel letter signed by the tenant verifying the amount of the rent and security deposit and the lease terms. Have the seller provide the tenant’s social security number and date of birth so you can obtain a non-military status affidavit on-line in the event you have to evict the tenant.
The buyer should receive prorated the rent and credit for the deposits from the seller on the closing statement.
The seller must disclose in the sales contract the property is subject to an existing lease, or the buyer could sue for failure to deliver possession at closing.
Section 715.07 http://www.leg.state.fl.us/statutes/index.cfm?mode=View%20Statutes&SubMenu=1&App_mode=Display_Statute&Search_String=715.07&URL=0700-0799/0715/Sections/0715.07.html of Florida Statutes “Vehicles or vessels parked on private property; towing” provides the regulations. If the property is not a single family home or if you haven’t personally notified the vehicle owner, you have to have a proper tow away sign in order to tow.
You have to use a commercial towing company.
A business owner or lessee may authorize the removal of a vehicle or vessel by a towing company when the vehicle or vessel is parked in such a manner that restricts the normal operation of business; and if a vehicle or vessel parked on a public right-of-way obstructs access to a private driveway the owner, lessee, or agent may have the vehicle or vessel removed by a towing company upon signing an order that the vehicle or vessel be removed without a posted tow-away zone sign.
The vehicle’s owner can stop the tow by paying up to one half of the towing fee and has the right to inspect the vehicle before accepting its return.
To prove that the vehicle was parked improperly, take a picture of it.
Where tenant’s response disputed landlord’s charge for cleaning but did not pay any rent into the court registry, the appellate court deemed it to be error to grant landlord a default judgment against tenant
The courts continue to issue differing rulings on how to apply the mailing rule. The basic premise is that five days must be added to the period of time designated for compliance when an act is required to be done by mail. [See Investment and Income Realty, Inc. v. Bentley (citing Fla. R. Civ. P. 1.090(e)).] If the landlord issues a 3 Day Notice and provides the tenant with a PO Box as the address to send the rent, the tenant would have to mail the rent and thus be entitled to the five days for mailing.
Plaintiff tenants were forced to vacate the subject premises when code enforcement ruled the property uninhabitable due to landlord’s failure to maintain the property. The landlord did not return the tenant’s security deposit. In fact, the landlord did not even make a claim against the tenant’s security deposit. After the thirty the thirty days in which to make a claim had elapsed, the tenants sent the landlord a civil theft demand letter. The civil theft statute (Fla. Stat. section 772.11), requires the claimant to send a certified letter to the “thief” giving them thirty days to return the funds claimed as stolen, or face triple damages.
The court ruled that landlord’s failure to make a claim against the tenant’s security deposit constituted a forfeiture of the right to make any claim against the deposit. Further, the court ruled that landlord’s failure to return the deposit after the tenant made a claim for its return constituted conversion of the funds. The court noted that the deposit was not maintained in any kind of a separate account, but had been deposited into landlord’s general operating account. All of these combined to constitute civil theft and entitle the tenants to triple damages under the civil theft statute, plus attorney fees and court costs under the landlord tenant statute.
SIPP v. FIVE STAR OF CENTRAL FLORIDA, INC., a Florida Corporation, d/b/a Daytona Village Apartments, Circuit Court, 7th Judicial Circuit in and for Volusia County. Case No. 2010-33080-CICI, Div. 31. January 6, 2011. Online Reference: FLWSUPP 1811SIPP
3 day Notice using a PO Box for the landlord’s address requires an additional 5 days for mailing.
In Wayne Dickerson v. Joe Ryan England, County Court in and for Seminole County Florida, Case 05-cc-4678 11/17/05, 13 Fla. L. Weekly Supp. 205, the landlord posted a 3 day notice on October 21, 2005, with a deadline of October 27, 2005. The 3 day notice listed the landlord address as a Post Office Box. The tenant did not tender the rent by the 27th, and the landlord filed the eviction suit on October 28.
The tenant defended citing a long line of county and circuit court decisions holding that Rule 1.090 (e) of the Florida Rules of Civil Procedure requires that where a notice demands a response by mail (such as where the address is a PO Box and not a physical address ) you must provide an additional five days to respond. This effectively turns a 3 day notice into an eight day notice, where the landlord uses a POB address on the 3 day notice.
The court in this case ruled that Rule 1.090 (e) requires the addition of five days to a notice only when the notice is mailed to the recipient, and not if the notice is posted. The court stated “logic, common sense, and the principals of statutory interpretation compels this court to hold that Florida Rules of Civil Procedure 1.090(e), as applied here, does not require a landlord, under a Chapter 53.86(3) notice, to either inform its tenant or add 5 days to its 3 day notice whenever the tenants’ response is to a post office box address. To hold otherwise would expand the Rule 1.090(e) prescribed period from 3 to 8 days and, under the line of cases upon which Defendant relies, require the landlord to add and notify the tenant of 5 more days under Rule 1.090(e) to the 8 days noticed, thus extending the prescribed period to 13 days … ad infinitum, with the result rendering any chapter 83.56(3) notice providing a post office box response defective.”
The court ruled that although the tenant must respond by mail where the landlord uses a PO Box address, the tenant must do so within the 3 days. The postage cancellation would be proof of when the tenant responded. But the court then applied Rule 1.090(e) to when the landlord could file the eviction. The court ruled that the landlord had to wait 5 days from the deadline on the 3 day notice to see if the tenant had responded by mail, and that the tenant was not deemed terminated until the 5 days had passed. The court dismissed the landlord’s case, not because of a defective 3 day notice, but because he filed the day after the due date and did not wait the extra 5 days.
Therefore the rule is that if a landlord puts a PO Box address as his address on the 3 day notice, the landlord should post the notice. The due date on the notice is still 3 working days. But now the landlord must wait 5 days to see if the tenant answers, and not file until the 6th day after the due date on the 3 day notice.
If you are that determined not to provide a physical address to the tenant, why not provide your lawyer’s address ?
In order to impose a claim against a tenant’s security deposit a landlord must send a statutory notice to the tenant by certified mail within 30 days.
Florida Statutes Chapter 83.49 govern the rights and duties of landlord and tenant regarding the security deposit [ to view Florida Statutes online go to http://www.flsenate.gov/Statutes/index.cfm ]. One of the purposed of this statutes is to reduce the amount of lawsuits over security deposits, so the legislature established a series of hurdles each party must cross in order to preserve their rights. Because the rules are meant to deny litigants the key to the court house door, they are strictly enforced.
The responsibilities of the landlord and the tenant are determined by whether the tenant vacates:
1. Tenant vacates and the end of a written lease.
In order to impose a claim against the security deposit the landlord must send a notice of intent to impose a claim to the tenant. The notice must:
If the landlord fails to send the notice within the 30 days, or if the landlord sends a defective notice, the landlord forfeits his right to impose a claim against the security deposit. This is regardless of the amount of damage done by the tenants. The landlord may, however, still sue the tenant for damages after returning the entire security deposit.
The notice is to be sent to the tenants last know address. If the tenant did not provide a forwarding address, the landlord should send the notice to the leased premises. A court has ruled that a landlord who did not the tenant’s new address, but did know the tenant’s attorney’s address, was not required to send the notice to the attorney, but was allowed to send the notice to the leased premises [Newman v. Gray 4 Fla Law Weekly Supp 271 (Dade County 1996)].
Once the landlord has send a proper notice of intent to impose claim, the burden shifts to the tenant to send an objection by certified mail within 15 days of receiving the notice. If the tenant fails to do so, the tenant absolutely waives any right to object to the landlord’s claim and the landlord must remit that amount the landlord did not claim within 30 days of the date the landlord sent the original notice of intent to impose claim.
2. Tenant vacates before the end of a written lease or
3. at the end of an oral lease or
4. before the end of an oral lease:
The landlord does not have to send a notice of intent to impose claim on the security deposit unless the tenant first sends the landlord a notice. The tenant’s notice must
If the tenant does not send this notice, the landlord does not have to send a notice. The tenant’s failure to send the notice does not affect the parties’ rights to the deposit money.
Another way of vacating before the end of the lease is when the landlord evicts the tenant. In this case, the landlord should not have to send a notice, but one court ruled that the landlord did have to [Speigner v. Holland 1 Fla Law Weekly Supp 529a (Brevard County 1993)]. I suggest that you send a notice anyway so it is not an issue. To get a “Notice of Intent to Impose Claim on Security Deposit” go to FloridaREI.com, “landlord forms page, “Claim on Security Deposit.”
Also note that when a lease is renewed, any claim on the security from the original lease term must be made within 30 days as if the tenant had moved out. The security deposit “rolled over” into the new lease is considered a new security deposit.