8 Big Landlord Tenant Law Misconceptions

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  1.  The landlord has 60 days to return your security deposit

False:  Section 83.49 3 (a) Florida Statute provides that the landlord has 30 days in which to make a claim against tenants security deposit.  The claim must be sent by certified mail.

  1. If it’s in the lease, it’s legally binding

False:  Section 83.47 1 (a)  Florida Statutes provides that no provision of a rental agreement  that waives or precludes the rights, remedies, or requirements of Florida Statutes Chapter 83,  Residential Tenancies, is void and unenforceable

  1.  The landlord can enter your home anytime

Partially True:  Section 83.53, Florida Statutes provides that the landlord may enter the rental unit at any time for the protection or preservation of the rental unit.  Otherwise the landlord may enter upon 12 hours written notice  between 7:30 am and 8:00 pm to make repairs.  The landlord may also enter the leased premises for any other lawful purpose where 1)  the tenant consents, 2)  the tenant unreasonably withholds consent 3) in case of emergency.

  1.  The landlord can evict you for any reason

False:  The landlord may only file an eviction after the rental agreement has been terminated.  The rental agreement is terminated by 1) the expiration of its term 2)Upon the expiration of a 3 day notice demanding payment of the rent 3)  upon the expiration of a 7 day notice to cure a lease violation 4)  at the end of a monthly rental period after either party has served a 15 day notice of intent not to renew a month to month lease.

  1. The landlord can end your lease early to move in family or to sell the property

False:   The landlord has to wait until your rental agreement expires.  The sale of the property does not affect the rental agreement.

  1. The landlord can opt-out of repairs

Partially False:  Section 83.51, Florida Statutes provides that the landlord has to keep the leased premises up to code.  However in a single family home or duplex,  the landlords obligation to repair may be waived or altered in writing.

  1. The landlord doesn’t have to rent to someone recovering from drug abuse or who has been arrested

False:  The Fair Housing Act  protects tenants against discrimination based on a disability — which includes addiction.

HUD guidelines  provide that Landlords should  update their screening procedures to  disregard the following or face charges of discrimination:
1. Arrests
2. Misdemeanor convictions
3. Any adjudication that is other than guilty, such as adjudication withheld, nolle prosse
4. Convictions for possession of drugs or drug paraphernalia.
5. General felony convictions over ten years old ( you should particularize offenses that directly relate to the safety of the leased premises and other tenants)

  1. If you get evicted, you might have to pay a landlord’s court costs

True: Section 83.48, Florida Statues provides that the prevailing party in a landlord tenant suit may recover reasonable attorneys fees and court costs from the non-prevailing party.

There is no cause of action for an eviction for non-payment of rent in tenancy for zero rent

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The Plaintiff’s action in eviction was premised upon the alleged non-payment of rent.  At the hearing to determine rent due, based upon the evidence presented, the court determined that rent in the amount of zero dollars was due each month.  However, the three-day notice  demanded payment of $100.00 in allegedly delinquent rent.

A three-day notice which demands monies other than delinquent rent is defective and fails to terminate the tenant’s rental agreement. See Cappelier v. Mahoney, 17 Fla. L. Weekly Supp. 662a (Fla. 18th Cir. Ct. 2010); Hanna v. Freckleton, 11 Fla. L. Weekly Supp. 967d (Fla. 11th Cir. Ct. 2004); Wright v. Brown, 20 Fla. L. Weekly Supp. 700b (Fla. Orange Cty. Ct. 2013).

The Court acknowledged  that the Florida legislature amended effective July 1, 2013 Sec. 83.60(1)(a) to provide that “[i]n an action by the landlord for possession of a dwelling unit based upon nonpayment of rent. . . [t]he landlord must be given an opportunity to cure a deficiency in a notice or in the pleadings before dismissal of the action.”  But where no rent is due,  it would be impossible for the Plaintiff to cure the defective notice or to bring the action for non-payment of rent [FLWSUPP 2704CHAR].  That is, under the facts of this case, the court finds that the action must have been brought under some legal theory other than the non-payment of rent. It would be errant for the landlord to be given an opportunity to cure a deficiency in a notice or in the pleadings before dismissal of the action. Accordingly, Plaintiff’s Complaint must be dismissed without leave to amend. See Orozco v. Estrada, 23 Fla. L. Weekly Supp. 490a (Fla. Miami-Dade County Ct. 2015); Desha v. Smith 24 Fla. L. Weekly Supp. 238a (Fla. Manatee Cty. Ct. 2016).

Additionally, the three-day notice was also held  facially defective in several other respects.

  1. The notice contained no proof of service rendering it defective. See Dan v. Litt, 14 Fla. L. Weekly Supp. 983b (Fla. Broward Cty. Ct. 2007); Rodriguez v. Serra, 17 Fla. L. Weekly Supp. 129a (Fla. Broward Cty. Ct. 2009).
  2. The notice demanded payment on a weekend rendering it defective. See 2000 Washington, Inc., v. Coaches, 8 Fla. L. Weekly Supp. 581b (Fla. Broward Cty. Ct. 2001); 95-45 Roosevelt Ave Corp. v. Research Sample Bank, Inc., 13 Fla. L. Weekly Supp. 844a (Fla. Broward Cty. Ct. 2006).
  3. The notice did not contain the landlord’s name rendering it defective. See Benoit v. Wilson, 17 Fla. L. Weekly Supp. 224a (Fla. Broward Cty. Ct. 2010); Adkins v. Mompremier, 17 Fla. L. Weekly Supp. 44a (Fla. Broward Cty. Ct. 2009).
  4. The notice did not contain the landlord’s address rendering it defective. See Hulac v. Cox, 19 Fla. L. Weekly Supp. 1105d (Fla. Lee Cty. Ct. 2012); Beapot v. Mccullough, 18 Fla. L. Weekly Supp. 296c (Fla. Osceola Cty. Ct. 2010); Luise v. Flores, 18 Fla. L. Weekly Supp. 295b (Fla. Volusia Cty. Ct. 2010); Jasiurkowski v. Harris, 17 Fla. L. Weekly Supp. 1253a (Fla. Broward Cty. Ct. 2010).
  5. The notice did not contain the landlord’s phone number rendering it defective. See Greenview Apartments v. Roger, 8 Fla. L. Weekly Supp. 513a (Fla. Broward Cty. Ct. 2001); Nadeau v. Solares, 13 Fla. L. Weekly Supp. 502b (Fla. Broward Cty. Ct. 2006).

The eviction was dismissed with the court awarding attorneys fees to the Defendant Tenant.

CHARNESKY v. OREFICE, Defendant. Volusia County. Case No. 2019 13042 CODL, Division 73. June 19, 2019. 27 Fla. L. Weekly Supp. 386a

County Court jurisdictional limit to go up to $30k January 1st

New county court jurisdictional limits.  New law provides for the county courts to have higher jurisdictional limits.   Effective January 1, 2020, the limit is $30,000, which increases to $50,000 on January 1, 2023. Here is a link to the entire bill which contains A LOT OF OTHER STUFF IN IT but just in case you want to verify the amounts

Re-posted from Attorneys Title Insurance Fund 8/23/2019

Melissa Jay Murphy
Executive Vice President, Chief Legal Officer,
General Counsel and Secretary

Using criminal history in evaluating rental applications

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Florida Realtors® reports that a single Orlando law firm has filed 48 lawsuits against Florida property managers for refusing to rent to tenants with prior felony convictions.  They are alleging that refusing to rent to tenants with a criminal history violated the fair housing act.  In 2016, HUD issued guidelines that a blanket policy of  refusing to rent to an applicant with a prior arrest, misdemeanor conviction,  or a felony conviction more than 7 years old had a disparate impact on African Americans and Hispanics according to Department of Justice statistics.  A housing provider must show that its screening policy is necessary to achieve a substantial non-discriminatory interest.  The policy cannot be speculative or hypothetical.  Evidence must exist that supports the screening policy.  The housing provider must prove through reliable evidence  that the policy serves the purpose of protecting the safety and property of the other residents.  Also that there are no  less discriminatory alternatives.

HUD examples:  length of time since the applicant’s conviction.  A good rental history since the conviction.  The circumstances surrounding the criminal conduct.

A housing provider should have a written policy calling for applicants to be evaluated on a case  by case basis.  Document the research done and results found on each applicant.   Make sure the policy is being followed and that it is not resulting in a discriminatory effect.  Make sure the policy is being applied on a consistent basis.   Review the applicants financial qualifications before checking their criminal history, so that a denial on a financial basis is not tainted by criminal history that should not have been considered.  Arrests not resulting in a conviction should not be considered and thus should not by a criteria on the application.     Blanket restrictions on certain convictions or all applicants with a criminal record will be discriminatory. Each applicant must be evaluated on a case by case basis.

Where plaintiff sued under Chapter 83 and defendants prevailed, they were entitled to attorneys fees despite finding of no landlord tenant relationship

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The Plaintiff brought suit against Defendants under Chapter 83, Florida Statutes, seeking unpaid rent. At trial the Court found in the Defendants’ favor, finding that there was no landlord/tenant relationship between the parties, but also finding that if there were such a relationship it was the landlord who breached the agreement by not providing habitable premises.

Defendants moved for attorneys fee under Florida Statute §83.48, which provides in pertinent part, “[i]n any civil action brought to enforce the provisions of the rental agreement or this part, the party in whose favor a judgment [. . .] has been rendered may recover reasonable attorney fees and court costs from the non-prevailing party.”

Plaintiff  argued that once the Court found that there was not a landlord/tenant relationship, the Defendants could not avail themselves of the statute in the Residential Landlord-Tenant Act providing for prevailing party attorney’s fees.  The Defendants responded that the statute does not reference a “landlord” or “tenant,” but rather a “party,” so that whenever  a party, of any characterization,  brings a lawsuit under the Residential Landlord-Tenant Act, entitlement to attorney’s fees may be triggered under §83.48, even if it is determined that the Plaintiff was not a “landlord” and the Defendants were not “tenants.”

Prior to 1983, an award of prevailing party attorney’s fees could be awarded only if the Court determined that the defendant was a “tenant.” In 1983, however, the references in the statute to “landlord” and “tenant” were deleted, and the word “party” used instead. 1983 Fla. Laws 83-151, §4. Based on the unambiguous language of the current version of the statute, the focus is whether the action was brought under chapter 83, not who is bringing the action or who is being sued. In the instant case, the Plaintiff brought the action under chapter 83. When the Legislature deleted the words “landlord” and “tenant,” and inserted the word “party,” the Legislature expressed its intention to expand the scope of the statute. Therefore, when the Defendants prevailed in the instant in this action brought under chapter 83, the possibility of an award of fees under §83.48 was triggered. See Tavares v. Villa Doral Master Ass’n, Inc., 23 Fla. L. Weekly Supp. 685b (11th Cir. App. 2015) (although evidence failed to establish a residential lease, defendant was nonetheless entitled to an award of fees under 83.48 because he was sued in an “action brought to enforce the provisions of [. . .] this part”).

When a party prevails in an action brought under the Florida Residential Landlord-Tenant Act, an award of fees is not mandatory, but rather discretionary because the Legislature used the phrase “may recover” rather than “shall recover.” McWhorter v. Consumers Alliance Corp., 14 Fla. L. Weekly Supp. 1108b (17th Cir. App. 2007) (controlling appellate authority in the 17th Circuit). See also J. Hauser, Fla. Residential Landlord-Tenant Manual §11.02[2][a][i][A] (2007). However, because of the manner in which the Plaintiff “went to the mat” in prosecuting this action for a fairly insubstantial sum, the Court believes an award of fees is warranted. See Progressive Express Ins. Co. v. Schultz, 948 So.2d 1027, 1032 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D548b]. This does not foreclose the Plaintiff’s arguing that any particular time entries sought by Defendants might be unreasonable as to substance or length of time.

WEISS, v. CORAL SQUARE REALTY, INC. Defendants. County Court, 17th Judicial Circuit in and for Broward County. Case No. 17-2400 COCE 53. April 30, 2019. Robert W. Lee, Judge. 27 Fla. L. Weekly Supp. 201a

Dismissal with prejudice where landlord’s notice of termination of HUD lease did not comply with Federal Regulations, regardless of tenant’s failure to post rent

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On August 30, 2018 Landlord filed an eviction for non-payment of rent due August 1st .  The landlord issued a notice of termination of Tenancy on August 8th,  effective August 18th.  The tenant did not post the rent claimed into the court registry and defended based on defective notice.   The lease that attached to the complaint states that it is a subsidized lease pursuant to the federal agency known as Housing and Urban Development (“HUD”) and states in relevant part:

MODEL LEASE FOR SUBSIDIZED PROGRAMS

  1. Termination of Tenancy:

. . .

  1. Any termination of this Agreement by the Landlord must be carried out in accordance with HUD regulations, State and local law, and the terms of this Agreement.

. . .

  1. If the Landlord proposes to terminate this Agreement, the Landlord agrees to give the Tenant written notice and the grounds for the proposed termination. If the Landlord is terminating this agreement for “other good cause”, the termination notice must be mailed to the Tenant and hand-delivered to the dwelling unit in the manner required by HUD at least 30 days before the date the Tenant will be required to move from the unit and in accordance with the State law requirements. Notices of proposed termination for other reasons must be given in accordance with any times frames set forth in State and local law. Any HUD required notice period may run concurrently with any notice period required by State or local law. All termination notices must:

– specify the date this Agreement will be terminated;

– state the grounds for termination with enough detail for the Tenant to prepare a defense

– advise the Tenant that he/she has 10 days within which to discuss the proposed termination of tenancy with the Landlord. The 10-day period will begin on the earlier of the date the notice was hand-delivered to the unit or the day after the date the notice is mailed. If the Tenant requests the meeting, the Landlord agrees to discuss the proposed termination with the Tenant; and

– advise the Tenant of his/her right to defend the action in court.

The notice that Plaintiff attached to its complaint was dated 08/08/2018. The notice stated in relevant part:

10 Day Notice to Vacate – Subsidized Units

Please be advised that Millennia Housing Management, Ltd., the managing agent does hereby terminate your tenancy at this property, . . .

Your tenancy shall be terminated as of 08/18/2018.

 

In accordance with HUD guidelines, Millenia Housing Management Ltd., hereby advises you that you have ten (10) calendar days following the date of this letter in which you may meet with the Site Manager to discuss the proposed termination of your lease, and all charges which are delinquent on your account.

24 C.F.R. 92.253 is a HUD regulation captioned “Tenant protections and selection”. This HUD regulation applies to the lease at issue. 24 C.F.R. 92.253(c) provides:

(c)Termination of tenancy. An owner may not terminate the tenancy or refuse to renew the lease of a tenant of rental housing assisted with HOME funds, except for serious or repeated violation of the terms and conditions of the lease; for violation of applicable Federal, State, or local law; for completion of the tenancy period for transitional housing or failure to follow any required transitional housing supportive services plan; or for other good cause. Good cause does not include an increase in the tenant’s income or refusal of the tenant to purchase the housing. To terminate or refuse to renew tenancy, the owner must serve written notice upon the tenant specifying the grounds for the action at least 30 days before the termination of tenancy.

(emphasis added)

In the instant case, the Plaintiff gave ten days written notice to the tenant that it was terminating the tenancy. The ten-day notice requirement in paragraph 23 of the lease only refers to the right to meet with the Landlord within ten days to discuss the issues related to termination of the tenancy. Paragraph 23 of the lease does not give the Landlord the right to terminate the lease on ten-days notice. Paragraph 23 of the lease provides that notice of termination must be given in accordance with HUD regulations. 24 C.F.R. 92.253 requires that prior to terminating the tenancy, the owner must give 30 days’ written notice to the tenant. Plaintiff failed to provide 30 days notice to the tenant that it was terminating the tenancy.

Defendant argued that the requirement to place funds in the registry of the court in order to defend against the action is preempted by 24 CFR 92.253. In Palma v. JPMorgan Chase Bank, 208 So. 3d 771 (Fla. 5th DCA, 2016) [41 Fla. L. Weekly D2694d], the Fifth District Court of Appeals found that when a contract incorporates HUD regulations, compliance with those regulations is mandatory. Because 24 CFR 92.253 provides conditions precedent to the termination of the tenancy, those conditions precedent were mandatory pursuant to Palma. For this reason, the Court did not reach the issue of Plaintiff’s defense to the motion to dismiss that Defendant did not place any funds in the registry of the Court. Because notice may not be retroactively cured, dismissal with prejudice was ruled appropriate.

FOREST FLA LLC v.  MONTGOMERY.  26 Fla. L. Weekly Supp. 918a.  Brevard County Court.   February 5, 2019

Landlord foiled in attempt to evict tenant fired from the property management company

On or about June 4, 2018, Landlord  filed an eviction action against tenant  alleging, that the termination of tenants employment with landlord’s management company  served as a basis to terminate her lease in a federally subsidized tax credit property.

Tenant had an employment contract with Professional Management, Inc., (PMI) is the property management company hired by the Landlord to manage the property.

The lease is an agreement between  tenant  and Golden Acres Redevelopment Phase II, Ltd., as Landlord.

The court granted summary judgment in favor of the tenant stating  “it is axiomatic that an eviction cannot occur unless there is a lease violation or violation of Chapter 83, Fl. Stat. The cessation of Ms. Coleman’s employment with a third party (PMI) is not a violation of the lease agreement between the Defendants and Golden Acres and as such, Plaintiff cannot proceed with the instant eviction action. Plaintiff is proceeding on a contract that is not relevant or applicable to the lease agreement.”

GOLDEN ACRES REDEVELOPMENT PHASE II LTD, , v.  COLEMAN,   Broward County Circuit Court, 2018.   26 Fla. L. Weekly Supp. 856a.

One day’s notice to cure code violation deemed due process violation

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On July 6, 2017, a code enforcement officer noticed Appellant’s  lawn was overgrown. A Notice of Violation, dated July 12, 2017, was sent via regular mail to Appellant. It required the violation to be corrected by Sunday, July 16, 2017. Appellant’s representative testified that he received the Notice on Saturday, July 15, and immediately alerted the tenant of the property, who cut the grass that day. On Tuesday, July 18, the code enforcement officer found the property was not in compliance because although the front yard was cut, neither the back nor side yard was. The code enforcement officer referred the matter to the Board, and a hearing was held on August 1, 2017. The Board found that as of the date of the hearing Appellant was currently in compliance, but the property was in violation past the July 16 date set for compliance. The Board did not impose a fine, but based on the finding of violation, any repeat violation could be fined at an amount of up to $500 a day.

The court ruled on appeal that in code enforcement cases, the law requires a violator be given “a reasonable time to correct the violation.” See § 22-72, Code; § 162.06(2), Fla. Stat. Such time period shall be no fewer than five days and no more than 30 days.”   Accordingly,  the appellate Court  found that Appellant was not given a reasonable time to correct the violation at its rental property and reversed the order of the Code enforcement Board.

ARL & IL REVOCABLE TRUST, Appellant, v. CITY OF DUNEDIN CODE ENFORCEMENT BOARD, Appellee. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 522017AP000041XXXXCI. L.T. Case No. 17-000041AP-88B. July 23, 2018. 26 Fla. L. Weekly Supp. 700b

Miami-Dade requires associations to act on rental applications within 45 days and state the reason for any rejected application

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Miami-Dade Code of Ordinances Sec. 11A-18.1. – Required notices in connection with application to purchase or rent a dwelling.

(a)  Within fifteen (15) days after receipt of any incomplete or incorrectly completed application (or amended application) to purchase or rent a dwelling, the condominium association, homeowners’ association, or cooperative association shall provide the applicant with written notice specifically identifying any and all items in the application that need to be completed or corrected.

(b) Within forty-five (45) days after receipt of a correctly completed application, the condominium association, homeowners’ association, or cooperative association shall either reject or approve the application and shall provide the applicant with written notice of same. If the application is rejected, the written notice must state with specificity each reason for the rejection.

(c)If the condominium association, homeowners’ association, or cooperative association fails to comply with the provisions of Section 11A-18.1 (a) and (b), of this article, the Director or the Commission may send a demand letter requesting that the condominium association, homeowners’ association, or cooperative association, within ten (10) days after the date of the demand letter, provide to the applicant and the Director or the Commission a written acknowledgement of application receipt, notice of approval or rejection of the application, and notice specifying each reason for the rejection (if applicable). The failure of the condominium association, homeowners’ association, or cooperative association to timely comply with this provision may be considered in determining whether reasonable cause exists to believe the association’s decision or action was discriminatory.

(Ord. No. 14-63, § 1, 7-1-14)

Why Miami-Dade landlords should be worried about their tenants’ dogs, cats, and ferrets

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The Code of Miami-Dade County. Sec. 5-6 (d)(1)  provides that  it is a code violation  to fail to timely vaccinate or re-vaccinate Dogs, Cats, and Ferrets each year and provide proof thereof to the County.  This requirement applies not only to the pet’s owner,  but to the owner of any real property where the animal is maintained. i.e. the landlord ! [Sec. 5-2 (b). Notice is not a prerequisite to enforcement [Sec. 5-6 (d)(1)].  A finding of violation by a court is punishable by a fine of up to $500 or six month’s imprisonment [Sec. 5-2(e)].   A finding of violation by Code Enforcement faces a $50 fine [Sec. 8CC-10].   An order imposing a fine constitutes a lien on all real property owned by the violator [Sec. 8CC-7].

You may want to put a clause in your lease about proof of vaccination…