Condo assn faces liability for conversation after placing evicted owner’s possessions in storage

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A condo owner acquired title subject to an existing mortgage foreclosure, which he apparently was unaware of,  as he was surprised to find a writ of possession on his door on April 10, 2012.  Also surprising,  the Dade Sheriff executed the writ a mere two days later,  catching the owner with many of his possessions still at the premises.  Rather than let the sheriff remove the owner’s personal possessions to the curb,  the associations property manager took it upon himself to have the property placed in the building’s parking garage,  where he placed yellow barricade tape around it, purportedly to deter theft.

Thereafter the owner’s key card was deactivated and he was refused entry to the condominium to recover his possessions.  Later, the association manager called the owner stating that his possessions had been disposed of.   Subsequently the associations security guard asked if he could have the contents of the owner’s storage unit, and upon the owner’s refusal, he was refused the return of his property.

The owner filed suit for conversion and bailment and it was dismissed on motion of defendant.  On appeal,  the 3rd DCA ruled that bailment was inapplicable as the owner had not entrusted his property to the association.  But conversion was applicable, as conversion “constitutes the exercise of wrongful dominion and control over property to the detriment of the rights of the actual owner.

The associations defense of immunity under §83.62(2) of the landlord tenant statute was rejected as a landlord tenant relationship did not exist between the association and the owner.

Editors note:  §83.62(2) states “neither the sheriff nor the landlord or the landlord’s agent shall be liable to the tenant or any other party for the loss, destruction, or damage to the property after it has been removed.”   Thus,  there may not be immunity in the event that the tenant’s property is not removed upon execution of the writ of possession.

The appellate court also noted that they were not suggesting the owner would prevail,  only that he had a cause of action for conversion of his property.

Ice v. The Cosmopolitan Residences on South Beach  No. 3D15-2787,  Third District Court of Appeal State of Florida December 13, 2017

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Scam Alert: Rash of Section 8 law suits filed against South Florida Realtors

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Broward County added source of income to its list of protected categories  in the County’s human rights ordinance last December to very little fanfare.    This had the consequence of making the refusal to accept section 8 vouchers a putative violation of the ordinance.   A lawyer who had allegedly filed 60 cookie cutter disability lawsuits in the Tampa area, has now struck in Broward with 46 lawsuits, according to The Real Deal,  against realtors and landlords who stated that section 8 vouchers were not accepted in their listings.  The realtors claim they aren’t the ones discriminating,  it is their clients who state that they don’t take section 8.   Nevertheless, the ordinance appears to make it a violation for publishing a discriminatory listing.   All of the lawsuits have the same plaintiff, Christopher Benjamin.  ABC News reported that all of the Tampa Cases settled, with the lawyer raking in $5000  per complaint.  The realtors in Broward said they consider this be be a shakedown at an emergency meeting at the Board today.

The Greater Fort Lauderdale Board of Realtors has updated its listing service to prohibit any commentary regarding section 8 and plans to urge the County Commission to revisit the ordinance.  Apparently, only one law firm ,  Kaye, Bender and Rembaum, saw this coming,  advising in their blog on February 7, 2018 ”

Of particular note in all of the foregoing is the extension of a protected classification to recipients of Section 8 Housing vouchers. As “financial condition” and/or “source of income” has not previously been a protected classification (and is still not one under State and Federal laws), it now has such protection in Broward County.  Board members in Broward County reviewing prospective leasing applications which were previously denied will need to be mindful of this change. If there is ever a question regarding the status of a protected classification, or whether or not the board may disapprove an application for sale or lease, the board should consult with its qualified counsel before making a decision.”

In the meantime at least 46 realtors have 20 days to respond to the law suits and they are not happy.

CS/HB 631: Possession of Real Property passes changing Ejectments, Unlawful Detainers, and restricting local goverments from determining public access to beaches

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After a lot of fighting over public access to beaches in St. John’s, Volusia, and Walton Counties, the legislature has stepped in doing some housekeeping to the ejectment and unlawful detainer statutes and prohibiting local government from determining the right of the public to have beach access without court approval with the passage of SB/HB 631Here is the staff analysis

Changes to the ejectment statute 66.021:

Provides that Plaintiff may not be required to provide any pre-suit notice, such as a demand for possession.  66.021(3)

Provides for joint or several writs of possession and damages. 66.021(6)

Copies of instruments referenced in the chain of title shall be attached 66.021.(7)

 

Changes to  unlawful entry and detainer statute 82.01

Does not apply to residential tenancies under chapter 83, part II [ 82.02(1)] or to possession under Chapters 513 or 723 (Mobile Homes).

Eliminates any pre-suit notice, such as a demand for possession. 83.03(1)

Requires award of double rental value on a finding that entry was “willful and knowingly wrongful” 82.03(2)

Allows for summary procedure on bifurcated possession count,  eliminates three year limitation. 83.03(4)

Allows for service by posting,  adds requirement to mail service to both defendants residential and business address.  82.05

Provides for damages and cost to prevailing plaintiff, and only cost to prevailing Defendant. 82.091 (1)(2).

 

Creates  Section 163.035″Recreational Customary Use.”  Prohibiting local governments from any enacting or enforcing any rule based on customary  use of the beach ( i.e. public access to the beach) above the mean high tide line unless based on judicial declaration affirming recreational customary use.

Provides for procedure, notice, public hearing.  Requires judicial determination in circuit court.  Decrees that the proceeding shall be de novo.  Provides that the government has the burden of proof.

Does not apply to any ordinance enacted before 1-1-2016

 

Dispossession does not moot an appeal

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Fact that tenant was no longer in possession of premises did not render tenant’s appeal of eviction moot.  Trial court erred failing to construe Tenant’s answer and motion as a motion to determine rent and in granting judgment of possession and costs without conducting a rent determination hearing.

Tenant notified the landlord of a rodent infestation.  When the landlord failed to act, tenant spent $50.00  on rodent treatment and deducted the amount from his February rent, paying $450.00  out of the $500 rent due.  The landlord accepted the payment and notified the tenant he was short $50.00.    Then on February 5th, the landlord filed an eviction for holdover alleging he had served the tenant a notice of non-renewal on January 13, effective January 31, despite having accepted a February rent payment.

On February 11,  the tenant filed an “Answer/Request Hearing”  requesting  that the court deny the eviction and argued that “the management company should not be able to hold my security deposit funds, and rent funds in contempt with the court system.” The Tenant  deposited $500 for his March rent in the court registry. On March 19,  the trial court entered an Order Striking Answer and Entry of Default, and judgment for possession and $225 costs, which was “[b]ased upon Defendant’s failure to pay necessary monies into the Court Registry or to file an appropriate motion to determine the amount of rent to be paid into the Court Registry . . . .” The tenant appealed.

The landlord argued the appeal should be dismissed as moot because the tenant had, by then, been evicted. The appellate court ruled that ‘[m]ootness does not destroy an appellate court’s jurisdiction . . . if ‘collateral legal consequences that affect the rights of a party flow from the issue to be determined.’ ” Id. (quoting Godwin, 193 So. 2d at 212) (alteration added). A recent opinion from another Eleventh Judicial Circuit appellate panel determined that “ceasing to reside in [an] apartment does not moot an appeal from an eviction judgment,” since an eviction judgment “may cause collateral consequences such as a negative credit history.” Daniels v. Miami Beverly, Case No. 14-283 AP (Fla. 11th Cir. Ct. Aug. 25, 2017) [25 Fla. L. Weekly Supp. 587c].   In Schweickert, the Fifth DCA found that a case was not rendered moot when a request for attorney’s fees remained pending. Schweickert, 193 So. 3d at 1079. Likewise, the instant case is not moot while the Appellant remains liable for the $225 cost award.

The appellate court noted that §83.60 Florida Statutes “Defenses to action for rent or possession”  provides the tenant has three options to avoid a default: “[a] tenant may: (1) assert payment as a defense; (2) deposit the accrued rent as alleged in the Complaint; or (3) file a motion to determine the amount of rent.” Green v. Liberty City Cmty. Economic Dev. Corp., 21 Fla. L. Weekly Supp. 122a (Fla. 11th Cir. Ct. Nov. 21, 2013).

In the instant case,  the tenant timely filed a pro se “Answer/Request Hearing” asserting that he paid $450 out of $500 for his February rent and that he deducted $50 to cover the rodent control costs. Although the document was not a formal motion to determine the amount of rent, a portion of its title is labeled “Request Hearing,” it states in part that “This letter is to request trial,” it states that “I look forward to the fair trial and hearings to determine this situation,” it argues that the Appellant “should not be financially obligated for this eviction.”

The appellate court noted that it would review requests by tenants liberally as motions to determine rent, including requests included in an answer instead of being filed as a separate pleading. See Daniels v Miami Beverly, Case No. 14-283 AP (Fla. 11th Cir. Ct. Aug. 25, 2017) [25 Fla. L. Weekly Supp. 587c]; Harvey v. Campton Assoc., 22 Fla. L. Weekly Supp. 48a (Fla. 11th Cir. Ct. Apr. 15, 2013). In the instant case, like in the Daniels case, the tenant  placed his request in writing, stated the reasons why he challenged the rent amount, and indicated that he wanted a hearing. In Daniels, the court found that such a request was sufficient for an unrepresented tenant to satisfy the condition that the tenant may file a motion to determine rent in order to avoid a default. Likewise, the tenant in the instant case, who was unrepresented at the time that he filed his “Answer/Request Hearing,” adequately moved to determine rent, so that default should not have been entered against him.   Thus the appellate court reversed the trial courts order striking tenant’s answer granting the eviction and judgment for costs, and further awarded tenant costs and fees for the appeal.  The case was remanded to the trial court to conduct a rent determination hearing.

MICHAEL AARON CALLAHAN, Appellant, v. DAVID OM, LLC, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 16-127 AP. L.T. Case No. 16-2360 CC 05. December 11, 2017. On Appeal from the County Court in and for Miami-Dade County, Florida, Online Reference: FLWSUPP 2511CALL

The grass is always greener on the other side.

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Security deposit — Claim on security deposit denied where landlord failed to present evidence that the property was undamaged at the beginning of the tenancy or prove that tenants breached their duty to maintain.

On April 6, 2016, tenants sued for the return of their $2200.00 security deposit.  Landlord filed a counterclaim for the cost of resodding the lawn,  alleging tenants failed to maintain it.

Paragraph 13 of the lease provided that tenants shall maintain the lawn, but if  landlord is not satisfied with tenants maintenance, landlord may maintain the lawn his self at tenants’ expense.

Paragraph 25 of the lease provided that Tenant shall  surrender the premises in as good condition as at the start of this lease.”

The earliest photograph of the law was taken seven months after the lease began and showed extensive brown spots.  There was further evidence  that the landlord and dug up the lawn to replace the sewer line,  of salt water intrusion, and of  failures of the sprinkler system. The court found that tenants did not breach their duty to maintain the lawn and that landlord had not proven that the lawn was in worse condition at the end of the tenancy than at the beginning.

The court ordered the return of $2100 of the security deposit and denied the landlord’s counterclaim in its entirety.    Landlord appealed.

The Appellate Court noted that the standard of review of the trial court’s finding of facts were that will not be disturbed unless they are clearly erroneous.” State Tr. Realty, LLC v. Deutsche Bank Nat. Tr. Co. Ams., 207 So. 3d 923, 925 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D2328a]; Tampa HCP, LLC v. Bachor, 72 So. 3d 323, 326 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D2350b]; Universal Beverages Holdings, Inc. v. Merkin, 902 So. 2d 288, 290 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D1338b]; see Thorpe v. Myers, 67 So. 3d 338, 341 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1524b] (deferring to the circuit court’s findings of fact when they are based on competent, substantial evidence).

As the trial court’s finding appeared to be based in part on landlord’s  failure to present evidence that the lawn was in a healthier condition when the  tenants moved in and in part because the lawn was generally difficult to maintain due to flooding and damaged by landlord  during the sewer pipe trenching. It was within the trial court’s purview to reach this finding after weighing the testimony and evidence adduced at trial.

Thus, Appellate Court found that the Final Judgment was not clearly erroneous and affirmed.

LAMPROS HAROCOPOS, Appellant, v. ROBERT STEVEN EAST and TARA DAVIS EAST, Appellees. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 16-000045AP-88A. UCN: 522016AP000045XXXXCI. December 7, 2017. Appeal from Final Judgment Pinellas County Court

Online Reference: FLWSUPP 2511HARO

2018 Florida Legislative Session – pending Landlord -Tenant Bills

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SB 612, HB 479 Leases.  Authorizing landlords to perform a level 1 background check on its employees with access to leased premises.  Giving tenants a 3 day right of recession on lease/lease renewal and return of deposits upon failure of employee  screening.

SB 804, CS/HB 631 providing for summary procedure for possession on an ejectment in Circuit Court.

CS/SB 1400, SB 1640: Vacation Rentals:  preempting local regulation of vacation rentals to the State. Requiring licenses,  declaring them to be transient occupancies.

HB 1007, Evictions. Deletes requirement that tenant post rent in court registry within five days.  Requires court to try the case in 30 days.  Deletes requirement that tenant have previously served landlord with 7 day notice to repair before being able to raise repairs as a defense.

 The session is now over and none of the bills passed

TRACKED BILLS

CS/SB 612 (2018) Residential Tenancies

http://www.flsenate.gov/Session/Bill/2018/00612

SENATE – Indefinitely postponed and withdrawn from consideration

SB 850 (2018) Actions for Rent or Possession

http://www.flsenate.gov/Session/Bill/2018/00850

SENATE – Indefinitely postponed and withdrawn from consideration

CS/CS/SB’s 1400 & 1640 (2018) Vacation Rentals

http://www.flsenate.gov/Session/Bill/2018/01400

SENATE – Indefinitely postponed and withdrawn from consideration

HB 301 (2018) Housing Assistance

http://www.flsenate.gov/Session/Bill/2018/00301

HOUSE – Indefinitely postponed and withdrawn from consideration

HB 749 (2018) Residential Tenancies

http://www.flsenate.gov/Session/Bill/2018/00749

HOUSE – Indefinitely postponed and withdrawn from consideration

HB 1007 (2018) Actions for Rent or Possession

http://www.flsenate.gov/Session/Bill/2018/01007

HOUSE – Indefinitely postponed and withdrawn from consideration

SB 850 (2018) Actions for Rent or Possession

http://www.flsenate.gov/Session/Bill/2018/00850

SENATE – Died in Judiciary

CS/CS/SB’s 1400 & 1640 (2018) Vacation Rentals

http://www.flsenate.gov/Session/Bill/2018/01400

SENATE – Died in Appropriations

CS/SB 612 (2018) Residential Tenancies

http://www.flsenate.gov/Session/Bill/2018/00612

SENATE – Died in Judiciary

FLORIDA DISASTER ASSISTANCE MANUAL For Legal Services Advocates

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Below find the residential landlord tenant portion of the 2014 Florida Disaster Assistance Manual for Legal Services Advocates.    This is a summary of residential landlord tenant law as may be applicable in the event of a disaster.  Florida’s toll-free Disaster Legal Services Hotline Number is 866-550-2929.

FEMAManual2014

The entire manual can be viewed here

 

What to do when the leased premises has hurricane damage

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Where the use of the leased premises is “substantially impaired”  by casualty damage,  the tenant, not the landlord,  has sole discretion to terminate the tenancy and vacate the leased premises.

Here is a Tenant Notice of Termination – Casualty

If the tenant elects to continue the tenancy, I recommend that the tenant issue a seven day notice to perform repairs to the landlord.   This will establish a lawful defense to the non-payment of rent if the landlord files an eviction. In this case,  the tenant will have to file a motion to determine rent, an answer and affirmative defenses in five business days of being served.  The court will then hold an evidentiary hearing on the condition of the premises and determine if the rent should be reduced.   The tenant will then have to pay the rent to the court registry as ordered by the court and as it comes due thereafter.   There are no grace periods once the court has ordered the rent paid to the court registry.

The tenant should try to come to an agreement with the landlord about the abatement or reduction of the rent and the repairs.  Bear in mind that the landlord’s legal duty is to act reasonably.  Not all repairs can be completed in seven days.

Note that service of an eviction can be done by posting,  so an eviction may proceed without a tenant having actual notice of it.  You can check to see if an eviction has been filed with the clerk of court.

Here is the link to the Monroe County Clerk of Court https://gov.kofiletech.us/FL-Monroe/disclaimer.asp

After clicking the disclaimer choose “civil”  and type your name.  If a case comes up, click view detail.  You will then see the case information.  At the bottom is the docket, a history of the events in the case.

Condo Association that did not have a landlord-tenant relationship with the tenant did not have standing to evict tenant because of failure to obtain association’s approval for tenant occupancy

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Plaintiff’  Condominium Association filed an eviction complaint because the Defendant never obtained approval from the Plaintiff for tenant occupancy within the association.

The condominium association did not have a landlord tenant relationship with the Defendant who is the tenant of an unnamed landlord/owner

The court ruled that since a landlord tenant relationship did  not exist between the parties, Plaintiff  lacked standing to sue for eviction action pursuant to Chapter 83.  Notwithstanding, the fact that an association can seek rent from a tenant of an owner where the owner fails to pay maintenance under  §718.116(11)(a), Florida Statutes , in which case a tenant failing to pay rent to the association can then be evicted.

PALM LAKE COOPERATIVE INC. vs.  WILSON, . Palm Beach County.  25 Fla. L. Weekly Supp. 194a

7 ways to prevent cyber fraud

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Reprinted from Attorneys Title Fund Services LLC June 29, 2017

The FBI recently issued a PSA on this topic and emphasized the following prevention strategies:

  1. Stay Informed – If you have an increased awareness and understanding of how the scams present themselves, you are more likely to recognize when you have been targeted. So STAY INFORMED. Read the PSA issued by the FBI and other resources that are made available to you on this topic.
  2. Internal Prevention – Strong internal prevention techniques, especially with front-line employees, have been very successful in deflecting attempts to infiltrate your closing and divert monies.
  3. Use Secured Email Service– Avoid free web-based email addresses. Establish a company domain name and use it.
  4. Register Similar Domains – Register company domain names that are very similar to yours to prevent a criminal from doing so. This is a new one to me and sounds like a really good idea!
  5. Use a Landline– Consider being old fashioned and use a landline telephone to communicate with realtors, buyers and sellers.
  6. Use the Forward Button – Instead of responding to an email by using the “Reply” button, use the “Forward” button, which will require you to type in the correct email address for the recipient. This may avoid an accidental reply to a fraudster using a similar (but false) email address.
  7. Verify Funds Transfers – Confirm, confirm and re-confirm requests for funds transfers. Carefully scrutinize all e-mail requests for funds transfers. Use phone verification but make sure you use previously known numbers and not numbers provided in an email request.