Court strikes down ordinances prohibiting short term rentals

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City ordinances which impose escalating fines for violations of city’s ban on short-term rentals of residential properties, beginning with a fine of $20,000 for the first offense, are in conflict with Florida Statutes §163.09(2)(d),  and are therefore illegal and unenforceable.

A Miami Beach property owner filed suit to overturn two Miami Beach Ordinances prohibiting the rental of residential properties for six months or less and imposing a $20,000  fine for the same.  Plaintiff argued that the ordinances conflict with Florida Statute Section 163.09(2)(d), which limits the fines municipalities may levy for code violations to “$1,000.00 per day for the first violation and $5,000.00 per day for repeat violations.”

City Code § 142-905(b)(5), governs short-term rentals of single-family homes.  City Code § 142-111, governs short-term rentals of townhomes, condominium, and apartments. Generally speaking, both ordinances prohibit the rental of properties for terms of six months or less, with limited exceptions that are not pertinent to the issues framed by the pending motions.

If a property owner rents for a period of less than six months and one day — and thereby violates either ordinance — they are subject to escalating fines of $20,000.00 for the first offense, $40,000.00 for the second, $60,000.00 for the third, $80,000.00 for the fourth, and $100,000.00 for all offenses thereafter. City Code §§ 142-905(b)(5)(a) and 1111(e)(1).  A special master, however, has no ability to waive or reduce fines if a violation is found. City Code § 142.905(b)(5) (“the special master shall not waive or reduce fines”).

Article I, Section 18 of the Florida Constitution limits all administrative fines to those authorized by the Florida Legislature,” and no city may “adopt any fines that the legislature has not authorized it to adopt.”  Florida Statute § 162.09 “limits municipal fines to $1,000.00 for the first offense and $5,000.00 for subsequent offenses.”

The Court rejected the City’s argument that the Plaintiff lacked standing to seek declaratory relief because she has not violated the ordinances and been penalized. Plaintiff is a property owner on Miami Beach who has — and wants to continue — leasing her real estate, but she is unable to do so because the challenged ordinances make it illegal. No precedent supports the proposition that she must first break the law and be fined $20,000.00 before she can challenge its legality. The law is in fact to the contrary, as it should be. See, e.g., Lambert v. Justus, 335 So. 2d 818 (Fla. 1976) (property owners had standing to bring “complaint seeking declaratory judgment as to the validity of certain restrictions on the use of their property”). These ordinances are prohibiting Nichols from renting her property now, and unlike the situations presented in the precedent cited by the City, this is not a case where a plaintiff is seeking an advisory opinion on a moot academic issue or a question that may never arise. See, e.g., Santa Rosa County v. Admin. Com’n, Div. of Admin. Hearings, 661 So. 2d 1190 (Fla. 1995) [20 Fla. L. Weekly S333a] (action seeking declaration as to the constitutionality of certain statutes was moot as parties had resolved their disputes by a “stipulated settlement agreement”); Apthorp v. Detzner, 162 So. 3d 236 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D490a] (action challenging the qualified blind trust statute despite the fact that “no public officers” had ever used the type of trust authorized by the law); Florida Dept. of Ins. v. Guarantee Tr. Life Ins. Co., 812 So. 2d 459 (Fla. 1st DCA 2002) [27 Fla. L. Weekly D523b] (action challenging constitutionality of Florida Statute § 627.411 presented no actual controversy because plaintiffs rate filings had never been reviewed or denied “under that provision”).

Does Chapter 162, et. seq. Grant Municipalities the Right to Opt-Out of the Statutory Cap on Fines Imposed by § 162.09

This brings the Court to the only genuine issue: Does Chapter 162 authorize the City to impose fines greater than those authorized by §162.09? The short answer is no.

“[A] municipality cannot forbid what the legislature has expressly licensed, authorized or required, nor may it authorize what the legislature has expressly forbidden.” Rinzler v. Carson, 262 So. 2d 661, 668 (Fla. 1972). For that reason, “[m]unicipal ordinances are inferior to laws of the state and must not conflict with any controlling provision of a statute.” Thomas v. State, 614 So. 2d 468, 470 (Fla. 1993). That does not mean that the state and a municipality may not legislate concurrently. They can. But when a municipality legislates in an area addressed by the legislature, its “concurrent legislation must not conflict with state law.” Id., citing City of Miami Beach v. Rocio Corp., 404 So.2d 1066 (Fla. 3d DCA), review denied, 408 So.2d 1092 (Fla.1981). See also, City of Palm Bay v. Wells Fargo Bank, N.A., 57 So. 3d 226 (Fla. 5th DCA 2011) [36 Fla. L. Weekly D161a] (“[a]lthough a municipality has broad home rule powers to enact local ordinances, the ordinances may not conflict with a state statute”) (internal citations omitted).1

This long-settled rule of superiority/preemption is derived from the plain text of Article I, Section 18 and Article VIII, Section 2(b) of our Constitution. The first provides that no administrative agency — which the City admittedly is — may impose any penalty “except as provided by law.” Article I, Section 18, Fla. Constitution. The second provides that municipalities “may exercise any power for municipal purposes except as otherwise provided by law.” Article VIII, Section 2(b), Fla. Constitution. These provisions, in tandem with the “Municipal Home Rule Powers Act” codified at Chapter 166 of the Florida Statutes, make clear that a municipality “may enact legislation on any subject upon which the state legislature may act unless expressly prohibited by law.” Rocio Corp., 404 So. 2d at 1068; City of Venice v. Valente, 429 So. 2d 1241, 1243 (Fla. 2d DCA 1983) (“. . . a municipality may not exercise any power for municipal purposes which is expressly prohibited by law”). Local ordinances are “expressly prohibited by law” when they conflict with a state statute, and “must fail when [such] conflict arises.” Id. See also City of Kissimmee v. Florida Retail Fed’n, Inc., 915 So. 2d 205 (Fla. 5th DCA 2005) [30 Fla. L. Weekly D2457f] (“[w]hen the legislature enacts a statute, a local government cannot adopt or enforce an ordinance that conflicts with the statute”); Phantom of Brevard, Inc. v. Brevard County, 3 So. 3d 309 (Fla. 2008) [33 Fla. L. Weekly S1002c] (“. . . in a field where both the State and local government can legislate concurrently, a county cannot enact an ordinance that directly conflicts with a state statute”); Hillsborough County v. Florida Rest. Ass’n, Inc., 603 So. 2d 587 (Fla. 2d DCA 1992) (“[i]f [a county] has enacted such an inconsistent ordinance, the ordinance must be declared null and void”); Masone v. City of Aventura, 147 So. 3d 492 (Fla. 2014) [39 Fla. L. Weekly S406a] (“. . . municipal ordinances must yield to state statutes”); Florida Retail Fed’n, Inc., supra, n.1.2

Section 162.09 of the Act — titled “Administrative fines; costs of repair; liens” then caps the fines that may be imposed by a code enforcement board or special magistrate. Section 2(d) — the portion of the Act at issue here — provides:

(d) A county or a municipality having a population equal to or greater than 50,000 may adopt, by a vote of at least a majority plus one of the entire governing body of the county or municipality, an ordinance that gives code enforcement boards or special magistrates, or both, authority to impose fines in excess of the limits set forth in paragraph (a). Such fines shall not exceed $1,000 per day per violation for a first violation, $5,000 per day per violation for a repeat violation, and up to $15,000 per violation if the code enforcement board or special magistrate finds the violation to be irreparable or irreversible in nature. In addition to such fines, a code enforcement board or special magistrate may impose additional fines to cover all costs incurred by the local government in enforcing its codes and all costs of repairs pursuant to subsection (1). Any ordinance imposing such fines shall include criteria to be considered by the code enforcement board or special magistrate in determining the amount of the fines, including, but not limited to, those factors set forth in paragraph (b).

The City — exercising its police power — decided to ban virtually all short-term rentals on Miami Beach. That is a policy decision the Court may not second guess or interfere with. See Benjamin N. Cardozo, The Paradoxes of Legal Science, 125 (1928) (“[w]hen the legislature has spoken, and declared one interest superior to another, a court must subordinate her personal belief to that so declared”); State v. Ashley, 701 So. 2d 338 (Fla. 1997) [22 Fla. L. Weekly S682a] (“. . . we have said time and again, the making of social policy is a matter within the purview of the legislature — not this Court”). But a municipality exercising its admittedly “broad authority to enact ordinances,” City of Hollywood v. Mulligan, 934 So. 2d 1238, 1243 (Fla. 2006) [31 Fla. L. Weekly S461a], may not legislate “in conflict with state law.” Thomas, supra at 470. As our appellate court put it as recently as this August, “although Florida municipalities are given broad authority to enact ordinances, municipal ordinances must yield to state statutes. Florida Retail Fed’n, Inc., supra.

The legislature — in the exercise of its police power — clearly and unambiguously imposed caps on the amount local governments may fine citizens for code violations. § 162.09, Fla. Stat. (2019). Those mandatory caps provide statewide uniformity and limit the exposure a citizen may face for violating local law. The caps set by the legislature, while hardly de minimis, may not in the City’s view be adequate to force (or motivate) Miami Beach’s wealthiest property owners to comply with these ordinances. The City may (or may not) be correct, but that is a matter it must take up in Tallahassee. In the meantime, and unless and until the legislature allows local governments to fine citizens in excess of $1,000.00 per day for code violations, the City must abide by the command of §162.09. See Rocio, supra at 1071 (“. . . the local ordinances must yield to state statutes if stability in government is to prevail”); Thomas, supra at 470 (‘[w]hile a municipality may provide a penalty less severe than that imposed by a state statute, an ordinance penalty may not exceed the penalty imposed by the state”).

The ordinances challenged here are in jarring conflict with § 162.09 and are therefore illegal and unenforceable.

NATALIE NICHOLS, Plaintiff, v. CITY OF MIAMI BEACH, FLORIDA, 27 Fla. L. Weekly Supp. 707a.  An appeal has been filed and is pending.  Case 2018-021933-CA-01  Miami-Dade County

Landlord-Tenant bills filed in the 2020 Florida legislative session

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SB 1528: Landlords and Tenants

GENERAL BILL by Torres

Landlords and Tenants; Deleting a provision providing that the failure to pay rent into a registry of the court under certain circumstances constitutes an absolute waiver of certain defenses and entitles the landlord to a certain default judgment, etc.

SB 1084/HB 209 : Emotional Support Animals

GENERAL BILL by Diaz ; (CO-INTRODUCERS) Montford

Emotional Support Animals; Prohibiting discrimination in the rental of a dwelling to a person with a disability or a disability-related need who has an emotional support animal; prohibiting a landlord from requiring such person to pay extra compensation for such animal; prohibiting the falsification of written documentation or other misrepresentation regarding the use of an emotional support animal; specifying that a person with a disability or a disability-related need is liable for certain damage done by her or his emotional support animal, etc.

SB 274: Residential Tenancies

GENERAL BILL by Rodriguez

Residential Tenancies; Prohibiting a landlord from evicting a tenant or terminating a residential rental agreement because the tenant is a victim of actual or threatened domestic violence, dating violence, sexual violence, or stalking; authorizing a victim of such actual or threatened violence or stalking to terminate a residential rental agreement without penalty by providing written notice of intent to terminate the agreement and to vacate the premises; specifying that a tenant does not forfeit any deposit money or advance rent paid to the landlord for terminating a rental agreement under certain circumstances, etc.

SB 1852: Landlords and Tenants

GENERAL BILL by Rodriguez

Landlords and Tenants; Revising the definition of the term “tenant”; providing requirements for rental agreements; requiring landlords to provide certain information with rental agreements; prohibiting a landlord from evicting a tenant or terminating a rental agreement because the tenant or the tenant’s minor child is a victim of actual or threatened domestic violence, dating violence, sexual violence, or stalking, etc.

HB 1449: Residential Tenancies

GENERAL BILL by Smith, C.

Residential Tenancies;  Requires translation of lease into any language demanded by Tenant;  gives tenant right of first refusal on any sale; Requires an explanation for refusal to renew tenancy;  Prohibits termination of tenancy after without just cause; Tolls eviction proceedings for duration of a national emergency;  Requires 30 days notice of rental increases up to 5%, and 3 months notice of rent increases above 5% with mandatory mediation;  Deletes requirement for tenant to post rent into the court registry in eviction for non-payment; Prohibits landlord from inquiring into tenant’s crimminal history until tenant has been otherwise approved;  Limits application fee to a total of $100  for all applicants to a unit,  which must be refunded if unit is not available.

HB 6069: Landlords and Tenants

GENERAL BILL by Eskamani

Landlords and Tenants; Removes requirement that certain money be paid into registry of court.

My Top 10… No, I have 13 Favorite Clauses in my Lease

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This article is re-posted with permission from the Landlord Protection Agency (LPA)* and written by its President John Nuzzolese

I know many of you have been successfully using the LPA Lease for years, but I like to remind myself and it is good for you to be reminded of the important clauses in our contracts with our tenants once in a while. Often when things go smoothly for a while, we may tend to forget some details and be caught off-guard when tenants start to wander off-track.

The following clauses in the LPA Lease make it possible for me to be an effective landlord and property manager. Each and every one of these clauses have saved me repeatedly from the situations in which they apply. I’ve included links to related articles and forms I use to enforce these clauses.

  1. Late Fees, Added Rent & Bounced Check
    LPA Lease Clause # 3, Late Fees is one of the most active clauses that frequently need to be enforced for most landlords. Without this clause, you are not legally able to enforce collecting a late fee, so it is very important to have in your lease. I am thankful for this clause because it not only covers us for an initial late fee, but it also provides the tenant with an incentive to hurry up and pay the late fee and the rent by imposing a “Daily Late Fee” that starts one or two days after the initial late fee is due.The clause also provides for a “bounced check” or NFS charge, which covers the landlord for fees in the event of a dishonored rent check.

    A very important detail that is often left out of many leases is “Added Rent” or “Additional Rent”. You should always classify unpaid late fees and other charges like bounced check fees as “Added Rent”. That makes makes those charges legally collectible as rent. If you really wanted to, (I’m not saying you should), you can evict a tenant for unpaid late fees classified as “Added Rent” even if they’ve paid the rent each month.

  2. Early Payment Discount
    Many landlords don’t like to give the tenant a discount for paying the rent on time or early. The sentiment is: “Why should I reward the tenant for doing something they agreed to do anyway?” I agree with the sentiment, but I have to disagree with the reality of it. I would rather have the bulk of my rents come in a week to 5 days before the first of the month. I usually build a $5. or $10. early payment discount into every lease.Good responsible tenants want that discount and have a reason to pay early. It sure beats sending late notices and chasing the rent each month. More importantly it saves my valuable time and gives me peace of mind too.

    If you don’t have this clause already in your lease, you can also present your tenants with an Early Payment Discount Voucher.

  3. No Pets
    In the words of the late Nick Koon, a landlord guru and mentor of mine, “No pet ever improved a rental property.” The LPA Lease has a standard No Pet clause.In the event I decide to accept a tenant with a pet, I require a Pet Agreement Addendum to spell out the specific rules of conduct and care needed to protect the rental property. The Pet Agreement explains that the privilege of having the pet may be revoked if the tenant does not uphold his responsibility.
  4. Maintenance & Repairs
    LPA Lease clause #9 instructs the tenant on maintenance and repairs in detail. This clause has saved me many times in various ways. It includes policy concerning how presentable the property must be for the purpose of showing once notice is given to vacate. A messy or damaged property can prevent you from re-renting.The clause also requires the tenant to be responsible for minor repairs under a certain determined amount of money. Painting is not allowed without the owners approval. If I find the tenant is not upholding his responsibilities, I will notify him with a Lease Violation Notice.
  5. Grounds
    Do you maintain the grounds or does your tenant. The Grounds clause makes the tenant responsible for the exterior maintenance of your rental property. Part of being my tenant means taking on many of the responsibilities of a homeowner. Taking care of the property with pride is one of them. The clause states that if the grounds are neglected, the landlord may correct any problems or hire a landscaper at the tenant’s expense.I use the Grounds Violation Notice to enforce this clause.
  6. Appliances
    I am thankful for our appliance clause in the LPA Lease. It makes the tenant fully responsible for all the appliances. This clause has saved me countless time over the years, because appliance are sometimes high maintenance items. Especially washers and dryers! My policy is to explain this clause to the tenants when they sign the lease. I tell them many tenants bring their own appliances. We are not in the appliance business, and all of the appliances are in excellent working order and we expect them to be returned that way. If the tenant wishes to replace our appliance with his or her own, we will remove our appliance and they can take their appliance with them when they leave. Most of the time they leave their appliance. If your lease doesn’t have an appliance clause, The LPA’s Appliance Agreement can come in handy.
  7. Plumbing Stoppages
    A common call you hear from your tenants might be about toilets or plumbing stoppages. I love the plumbing stoppage clause because it has practically eliminated plumbing stoppage calls for us. It is the tenant’s waste in the lines and the tenant should be responsible for keeping the waste lines clean. Even if you don’t use the LPA Lease, the Plumbing Stoppage & Drain Maintenance Notice can be very helpful.
  8. Heating & Cooling
    I am grateful for our heating and cooling clause because the tenant is required to maintain a heating contract on the heating system and not doing so is a lease violation.
  9. Attorney Fees
    It is very important these days to include a clause for attorney’s fees in the event you have to take a tenant to court. The attorney fees are not normally recoverable if you do not have a clause like this. Before starting an eviction, I like to send an Attorney’s Fee Warning Notice to give the tenant one last opportunity to pay and avoid an attorney’s fee before sending the account to my eviction attorney.
  10. Renters Insurance
    I’m glad this is in our lease. I remember an incident years ago when the garage roof leaked during a heavy rain storm. The tenant called threatening to sue us for the damage to his sofa, which he stored in the garage. I was doubly thankful for our clause in the LPA Lease because of a) the Renter’s Insurance clause which makes the tenant obligated to have renters insurance and b) the Maintenance Clause which indicates that garages and basements are not included in the rental, but may be used at the tenant’s own risk.
  11. Service of Process
    This is a clause I’m grateful for when serving an important notice because it gives each person listed on the lease 100% authority to receive or give a notice on behalf of the other tenant(s). Just imagine how difficult it could be if you had to serve eviction papers to multiple tenants who are trying to avoid you!
  12. Illegality
    I once had a tenant’s attorney tell me he was going to have my lease declared “illegal” and the eviction case “thrown out of court” because he thought he could prove one of the clauses were “illegal”. Then I pointed out the Illegality clause which states that if any part of this lease is not legal according to local laws, the rest of the lease agreement will be unaffected. That shut him up and the eviction proceeded without further incident.
  13. No Smoking
    Have you ever painted after smoking tenants? You probably know what I’m talking about. It’s sometimes hard to find non-smoking tenants to rent a property where heavy smokers have been. The LPA No Smoking Notice & Reminder form can be used to inform tenants that they are in violation of their No Smoking clause in the lease agreement. It can also be used a new Notice to initiate a new No Smoking rule for your rental.
    That’s why I’m thankful for the No Smoking clause.

There are many more important elements of The LPA Lease that you should be using! If you’re not, you can easily implement them into your property management.

I hope you have a Happy Successful New Year!

* The LPA has numerous landlord forms, articles, business directories, and  offers background checks

Denial of attorneys fees to prevailing party in suit to recover security deposit due to small claims rules, reversed.

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Tenant sued to recover his $650.00 security deposit and $100 pet deposit among other counts and prevailed.  His counsel moved to tax attorney’s fees, which was granted. However, the trial then court sua sponte set aside the Final Judgment as to Taxing Attorney’s Fees finding that he  had relied on the Small Claims Rules throughout the case, “specifically chose not to file a Chapter 83 County Civil landlord tenant case” and was therefore not able to claim attorney’s fees under Chapter 83.  On appeal the denial of attorneys fees by the trial court was reserved.

A post-judgment order denying a party’s claim for attorney’s fees is an appealable final order, even when the order grants costs without determining the amount; thus, we have jurisdiction. Yampol v. Turnberry Isle, 250 So. 3d 835 (Fla. 3d DCA 2018) [43 Fla. L. Weekly D1533a]. A denial of attorney’s fees based on a conclusion of law concerning the interpretation of statute is reviewed de novo. Country Place Community Ass’n v. J.P. Morgan Mortgage Acquisition Corp., 51 So.3d 1176 (Fla. 2d DCA 2010) [36 Fla. L. Weekly D31a].

The Small Claims Rules do not create a separate court; rather, they create a separate set of rules of procedure when the amount in controversy is less than $5,000.00 exclusive of costs and fees. LaSalla v. Pools by George of Pinellas Cty, Inc., 125 So. 3d 1016, 1016 (Fla. 2d DCA 2013) [38 Fla. L. Weekly D1426a]. Thus, an action filed under the Small Claims Rules is a county civil action, and since the complaint in this case specifically pled relief under §§ 83.49 and 83.50 Fla. Stat., Tenant  did in fact file a Chapter 83 landlord tenant case. Moreover, nothing in the Small Claims Rules prevents an award of attorney’s fees, so long as they are properly pled. See e.g., Dish Network Service L.L.C. v. Myers, 87 So. 3d 72 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D975a] (prevailing party in small claims suit was entitled to statutory attorney fees, but not travel time or multiplier).

CONFORTI, , v. CARR.  Circuit Court, 5th Judicial Circuit (Appellate) in and for Hernando County.   27 Fla. L. Weekly Supp. 571a

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