HUD issues new guidelines on tenant screening


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HUDOn April 4, 2016,  the United States Department of Housing and Urban Development Office of General Counsel  issued a “guidance”  effective immediately on permissible housing applicant selection criteria.   This “guidance”  declares what selection criteria will be deemed discriminatory under the Fair Housing Act.   Based on their study of arrest and incarceration rates of blacks and latinos  being disproportionate to their percentage of the general population,  it will now be deemed discriminatory to use arrest records as a criteria for denial of a rental applications.  Convictions, however, may be used as a selection criteria  if  the landlord takes into account the “nature and severity”  of the offense,  and the length of time since the conviction.   HUD recommends that landlords perform an “individualized assessment of relevant mitigating information”  such as the “facts or circumstances surrounding the criminal conduct; the age of the individual at the time of the offense; evidence that the individual has maintained a good tenant history … and evidence of rehabilitation efforts.”

HUD stated that the Fair Housing Act does not prohibit denial of housing based on a conviction for the illegal manufacture or distribution of controlled substances.

Landlords should  update their screening procedures to  disregard the following
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)

Click here to read the entire HUD Guidance Statement.

Comments from attorneys and landlords are encouraged.

Waiver by failure to promptly reject untimely tender of rent


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This Collier County case made three novel rulings:

Defective Posting: May not post 3 day notice until ascertained tenant is absent

The property manager testified she served a 3 day notice  by folding it and placing it in the tenant’s door.  The tenant denied receiving the notice.   The court ruled that while Florida law permits the three day notice to be served to the tenant by leaving a copy of the notice at the residence,  it may be posted only if the tenant is absent from the premises.  Without evidence evidence that the property  manager attempted to determine if the tenant was absent from the premises prior to posting the three day notice,  the posting is defective notice.

Bailment: Rent in possession of landlord, and stolen, is landlord’s loss, not tenant’s.

The three day notice  included $348.00, which represented the tenant’s money orders that were stolen during a theft at the landlord’s office.  That theft occurred while the money orders were in the possession of the landlord.  The court ruled that the fund stolen from the landlord  should not have been counted as rent on the three day notice.


Waiver occurred when the landlord accepted money orders paid by the tenant  (See §83.56(5), Fla. Stat).  Although the landlord ultimately returned the money orders to the tenant, the landlord held them too long. By not returning the payments to the tenant promptly, the landlord is deemed to have accepted them, even if the payments were not credited to the account. See, Belkin v. Robinson, 38 Fla. Supp.2d 188 (Broward 1989). By accepting rent while knowing of a noncompliance, the landlord waived whatever right he otherwise had to evict, pursuant to §83.56(5), Fla. Stat.

HARMONY SHORES MHP, LLC,  vs. OAKLEY, Collier County  Case No. 2015-CC-001599. December 17, 2015. Online Reference: FLWSUPP 2308HARM

Any allegation of ownership by tenant in an eviction action requires an evidentiary hearing.


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Petitioner had been living in a house for over five years under a lease-option  contract which had expired four years ago under which he  claimed to have made a $6000 deposit toward the purchase as well as many improvements.  Respondent filed an eviction for non-payment of rent, to which petitioner responded with a motion to determine rent and a motion to dismiss based on a claim of ownership under the lease option..  The county court granted the eviction without hearing.  Petitioners appealed (which was treated as a petition for a writ of certiori,  as non-final orders from County Court are not directly appealable to Circuit Court).

The Circuit Court reversed, citing Florida Statutes 83.42 Exclusions from application of part. — This part does not apply to:

(2) Occupancy under a contract of sale of a dwelling unit or the property of which it is a part in which the buyer has paid at least 12 months’ rent or in which the buyer has paid at least 1 month’s rent and a deposit of at least 5 percent of the purchase price of the property.

Where a tenant makes a claim of ownership in a landlord’s action for possession, a court errs by ordering an eviction or by ordering rent to be deposited with the court registry without holding a hearing on the tenant’s assertion.  Even though the lease option had expired on its face in 2010,  the court ruled that real estate contracts, under certain circumstances, may be subject to oral modification or extension, as was alleged here.  Therefore the County Court erred by not holding an evidentiary hearing on the claim of ownership.

MORGAN v. HEWITT,  Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County.  Appeal from the County Court for Orange County. August 20, 2015.  Online Reference: FLWSUPP 2307MORG

Companion dogs


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pit bull service animal

Tenant filed a request under the Fair Housing Act for his condominium  to make an accommodation to him to own a Pitt Bull Terrier as a companion animal based on his disability.  The condominium refused based on its no pets policy and the fact that Miami-Dade County bans the ownership of Pit Bull Terriers.

In denying the condominium’s motion for summary judgment against the tenant, the District Court found that changing a no pets policy for an emotional support animal was a reasonable accommodation under the FHA. The court also found that enforcing the county ordinance would violate the FHA by permitting a discriminatory housing practice.

The court noted that emotional support animals do not require task specific training. Particularly, the rule states:”emotional support animals provide very private functions for persons with mental and emotional disabilities. Specifically, emotional support animals by their very nature, and without training, may relieve depression and anxiety, and help reduce stress-induced pain in persons with certain medical conditions affected by stress.”

The court also noted that any threat posed by the Pitt Bull  was also entitled to reasonable accommodation by the Condominium.

Warren v. Delvesta Towers Condominium Association 49 F.Supp.3d 1082 (S.D. Fla. 2014).   Click here to read the full opinion

Where attorney represented tenant in suit for refund of security deposit on wholly contingent basis, contingency risk multiplier of 1.5 is appropriate


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The County Court of Volusha County issued a ruling  detailing the twelve factors to be considered in determining a contingency risk multiplier.

Tenant’s attorney was on a contingency fee basis in suing for the recovery of a security deposit.   The tenant prevailed, obtaining the return of the entire security deposit.

The court stated that the claim for security deposit was a contract case.  Pursuant to Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990); Meli Inv. Corp. v. O.R., 621 So.2d 676, (Fla. 3d DCA, 1993) and Progressive Exp. Ins. Co. v. Schultz, 948 So.2d 1027 (Fla. App. 2007) [32 Fla. L. Weekly D548b], a contract case falls into Quanstrom’s Category II. The Florida Supreme Court has adopted twelve factors that should be considered when determining a reasonable fee: The Court considers those factors and found as follows:

i) Time and Labor Required

The Court found that 40.6 hours was reasonable and necessary.

ii) Novelty and difficulty of the questions

The Court found  that the issues presented in this case were relatively novel and difficult, and required a thorough understanding of not only landlord tenant law but the unlicensed practice of law and the limitations of property managers enacted by the Florida Supreme Court when representing landlords and the related Florida case law.

iii) The skill requisite to perform the legal services properly

The Court found that this case involved a thorough understanding of laws related to residential Tenant’s rights and the proper handling of a Tenant’s security deposit by a property manager, and that without such knowledge, the Plaintiff’s attorney would not have been able to obtain a favorable outcome for the Plaintiff. The Court found that while there are thousands of attorneys in the local market, there are only a handful who have the necessary knowledge and expertise to effectively represent a tenant in a landlord tenant dispute, and who regularly represents tenants in state court matters.

iv) The preclusion of other employment

Plaintiff’s counsel contends that he was slightly precluded from other employment.

v) Customary Fee in the Community

The Court found that the market rate for the hourly fees charged in the greater Central Florida area including Orange County, Seminole County and Volusia County by lawyers of comparable skill, experience and reputation performing similar services as those performed by Plaintiff’s counsel is $350.00 to $425.00 per hour.

vi) Whether the fee is fixed or continent

The Court found that the Plaintiff’s attorney’s fee in this case was wholly contingent.

vii) Time limitations imposed by the client or the circumstances

The Court found that the client imposed some time limitations for a speedy return of her deposit.

viii) Amount involved and results obtained

The amount involved the return of the tenant’s own funds which were returned in full to the Plaintiff.

ix) The experience, reputation, and ability of the attorney

The Court found that the Plaintiff’s attorney has over 15 years of experience in civil litigation in Tenant defense and consumer issues relating to tenants, and has sufficient ability to effectively handle landlord tenant disputes and legal matters.

x) The “undesirability” of the case

The Court found that tenant’s rights cases are generally undesirable cases to prosecute on behalf of the tenants.

xi) The nature and length of the professional relationship with the client

The Court found that this is the only case in which the Attorney had represented the tenant

xii) Awards in similar cases

The Court found that the proposed award of fees is not unreasonable in relation to similar cases, the complexity of this case, and the time during which the litigation was pending. For example, in Lancelot At Winter Park, LLC, vs. Bruce MacDonald And Francis MacDonald, 15 Fla. L. Weekly Supp. 822b, (Orange County Court, 9th Judicial Circuit, 2008), the Court awarded a multiplier of 2.0 to a prevailing tenant. Similarly in a more recent case the Court awarded a multiplier of 2.0 to a prevailing tenant. Florante S Banez, vs. Elizabeth T Banez & Florence T Banez, 20 Fla. L. Weekly Supp. 513a, (Orange County Court, 9th Judicial Circuit, 2013).

It is the intent of the Florida Legislature that consumers be encouraged to retain competent legal counsel to protect their rights as tenants not only for their direct benefit, but for the indirect benefit of all consumers/tenants.


The Court found that it is appropriate to award a risk enhancement multiplier. The Court found that the Plaintiff’s attorney represented the Plaintiff on a contingency fee basis, and that the Plaintiff’s attorney’s compensation was wholly dependent on the outcome of the case. The Court found that it would have been difficult, if not impossible, for the Plaintiff to find proper legal representation in this case without the use of a contingency contract and the application of a fee multiplier. Attorneys of similar skill and experience as that of the Plaintiff’s attorney will not accept a case such as this one without the possibility of a multiplier. The Court found that the Plaintiff’s attorney was unable to mitigate the risk of nonpayment for services rendered and costs incurred on behalf of the Plaintiff if the Plaintiff did not prevail because the Plaintiff could not afford to pay an attorney to represent her.

THE COURT having made the foregoing findings of fact and conclusions of law, and having heard and considered arguments of counsel, and being duly advised in the premises, awards an attorney fee to the Plaintiff’s attorney, to be computed as follows:

Hours reasonably expended by Plaintiff’s attorney are 38.6 hours.

Reasonable hourly rate is $300.00 dollars.

Lodestar $11,580.00 dollars

ENHANCEMENT (Contingency Risk Factor):

Success more likely than not at outset (1 to 1.5)

Likelihood of Success approximately even at outset (1.5 to 2.0)

Success unlikely at outset (2.0 to 2.5)

Enhanced Value (1.5) x (lodestar) $11,580 dollars

Plus Cost of 11.55

FINAL JUDGMENT is hereby entered against the landlord  in the total sum of $17,381. 55


Attorneys fees in claims for security deposit


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Florida Statutes Section 83.49  make the award of attorneys fees to the prevailing party in a claim for security deposit mandatory.   What makes one side the prevailing party?  The case law indicates that if the tenant recovers anything,  the tenant is the prevailing party.   For instance where a tenant sued to recover a $2,200  security deposit, but was only awarded $708,  the tenant was the prevailing party [Rose v. Gaglioti 46 Fla. Supp 2d 19 (11 Cir 1991)].   Likewise when a tenant sued on three counts failure to maintain, habitability, and security deposit, and lost the first two counts, but recovered the deposit,  he was still deemed the prevailing party Bohanan v. Bergman 8 Fla L. Weekly Supp 428a (17th Cir App 2001).

Some cases have reduced the tenants attorney fee award  in proportion the share of the deposit recovered [Stephenson v Cox 13 Fla L. weekly Supp 910b (Broward 2006)].  In a case where the landlord failed to make the required claim, the tenant sued to recover the deposit, and the landlord counterclaimed for damages,  the tenant was awarded the entire deposit and declared the prevailing party.   While the landlord was award damages in the counterclaim,  he was not declared the prevailing party because the damages were less than the deposit he had withheld. Malagon v. Solari 566 So.2d 352 (Fla 4thDCA 1990).  In a similar case  where the landlord’s counterclaim was for unpaid rent,  The tenant was awarded fees for prevailing on the security deposit claim,  but the landlord was also awarded fees for prevailing on the rent claim.   Hicks v. Marchetti 4 Fla L. Weekly Supp 525 (20th Cir App. 1996).

security depositS

As the attorneys fees will usually exceed the amount of the security deposit,  landlords  should exercise discretion  in claiming against the tenant’s security deposit.



Defective complaint does not require deposit rent into registry of court for motion to dismiss


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Landlord filed a complaint naming the defendant  only in the case caption,  whereas an unrelated person is named as the tenant  in body of the complaint.  Defendant was defaulted for failing to post the rent into the court registry and appealed.

The court explained that because a default admits liability only as claimed in the pleading, no liability was stated against  Defendant.  While §83.60(2), Florida Statutes requires the deposit of rent claimed into the registry as a condition to raising any defense other than payment,  the court does not consider Defendant’s defense as contemplated §83.60(2), Fla. Stat., because he was never legally required to raise a defense. Put another way, Defendant’s  challenge would normally be the subject of a motion to dismiss rather than an affirmative defense.

HOUCK, vs. 7402 HERITAGE HILLS, LLC, Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County, Civil Appellate Division. August 24, 2015.  23 Fla. L. Weekly Supp. 306a

Eviction settlement agreement does not survive the renewal of the lease


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Landlord filed an eviction  in July 2012 for breach of the lease by causing a disturbance at the premises.    In December 2012 the parties entered into a settlement agreement whereby Tenant pledged not to cause further disturbances. In February 2013  the landlord served the tenant with a  ten day notice of lease termination for causing a disturbance, and filed  a motion to enforce the settlement agreement.  At the hearing the court ruled that the landlord had not proved a breach, and declared the tenant the prevailing party, and thus entitled to attorney’s fees.    The landlord  argued that  with the settlement agreement still in effect, and thus the original eviction complaint  still pending,  the tenant should not be deemed the “prevailing party.”

In April 2013,  the tenant moved to dismiss the original eviction complaint,  noting the landlord had signed a new lease with the tenant since December 2012.  As the lease that the original eviction was based on had expired,  the court granted tenant’s motion to dismiss the original eviction complaint, and upheld tenant’s award for attorney’s fees.

5800 SW 20 AVENUE HOLDINGS, LLC, vs. WILLIAMS, County Court, 8th Judicial Circuit in and for Alachua County. Case No. 2012-CC-2917, Division V. May 6, 2015 23 Fla. L. Weekly Supp. 261a

Due process violation to evict sub-tenant, who paid rent directly to landlord, in suit only against primary tenant


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BROWARD COUNTY SELF STORAGE, INC.,  is the owner and landlord of a commercial property in the City of Wilton Manors. The property consists of a single roofed building in which are half a dozen businesses are located.  Although the businesses each have their own separate  “unit” in the premises, they all share the same address, with no separate demarked  unit number.  Mail is delivered to a single mailbox, which all occupants share.

Landlord entered into a Master Lease with, Naturally Broward, Inc. which then sublet  separate units to different subtenants. The landlord  did not object to this arrangement and took an Assignment of Rents  and the subtenants paid  their rents directly to the  landlord.

On May 26, 2015, the landlord  served  a 3-day notice to the registered agent of  Naturally Broward, Inc.  The amount claimed on the 3-day notice was Naturally Broward’s  unpaid portion of real estate taxes.

A week later, landlord  filed  an eviction against “Units 1, 2, and 5 as shown on an attached drawing.”  The drawing does not clearly delineate which units are “1, 2, 5.”  On the day the eviction was filed, the subtenants were current in their rent.

A 5-day summons was posted on the premises by a private process server. The return, however, reflects the single address for the property, without any delineation of the precise location or business it was posted.

On June 2, 2015,  sub-tenant in unit 4, CHATEAU D’VINE, INC.,  attempted to tender  June rent to the landlord, who refused it.

On June 26, 2015,  Judge Stephen Zaccor entered a Judgment of Eviction  and  a Writ of Possession was eventually  was posted directly on the business of Chateau D’Vine.   This sub-tenant had  no prior notice of the  eviction.

A friend of the landlord  took it upon himself to contact the  local police  rather than wait for the county sheriff to execute the writ of possession.   An officer of the Wilton Manors Police Department advised Chateau D’Vine that it had until midnight to vacate the premises or it would be removed. Chateau D’Vine did so, feeling reasonably that it had no alternative.

Chateau D-Vine  filed to quash the writ of possession.  On review the court found that there was  substantial doubt that a single summons can be used against an entire parcel of commercial property where there are separately operating businesses.  First, there is some authority that a subtenant in possession is a tenant at sufferance, and as a result, must be served with an eviction summons.  Second, due process dictate that a subtenant who is in possession with the knowledge of the landlord, and is paying rent directly to the landlord at the landlord’s insistence, be provided meaningful notice and an opportunity to heard before being divested of possession.   “[D]ue process is a protean constitutional concept of rule according to law, fairness in the law’s proceedings, and fundamental rights.” J. Lieberman, Evolving Constitution 169 (1992). See Chef’s No. 4, Inc. v. City of Chicago, 117 Ill. App. 3d 410, 414, 453 N.E.2d 892, 895-96 (Ill. App. 1983) (subtenant entitled to notice); Arrieta v. Mahon, 31 Cal. 3d 381, 389 & n.7, 644 P.2d 1249, 1253-54 & n.7 (Cal. 1982) (same).   The writ of possession was vacated.

BROWARD COUNTY SELF STORAGE, INC., Plaintiff, vs. NATURALLY BROWARD, INC., Defendant, and CHATEAU D’VINE, INC., Intervener. County Court, 17th Judicial Circuit in and for Broward County. Case No. 15-13269 COCE 54. July 22, 2015. Robert W. Lee, Judge. 23 Fla. L. Weekly Supp. 184a

New remedy against guests who wont leave


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Until recently,  if you had a guest / boyfriend / girlfriend / relative /friend  who you invited to live with you on a temporary basis, and refused to leave when you asked them to,  the only way to get them out was to file a case against them in court.  Law enforcement would refuse to assist you,  declaring it to be a “civil matter,” and (erroneously)  telling you to evict them.  The correct cause of action is unlawful detainer  not eviction.

Effective July 1, 2015, Florida has a new legal remedy to remove  a transient occupant from residential property.

“Transient occupant”  is defined as an occupation of a residential property for a brief length of time, not pursuant to a lease.    This statute does not apply  to a landlord-tenant relationship.

The new statute, Section 82.045  , provides a remedy to any person entitled to possession of a residential dwelling unit.   So this applies, not only to owner’s,  but also lessees.  Said party entitled to possession may present a sworn affidavit to a law enforcement officer,  requesting said officer to remove a transient occupant.

Once the transient occupant has been asked to leave,  they are unlawfully detaining the property.

The affidavit must set forth the factors establishing that the occupation is transient.

The factors include:

  • No ownership, financial, or leasehold interest in the subject premises.
  • No utility bills in the transients name
  • No government ID with the subject property address
  • No mail with the subject property address
  • Pays nothing, or little, in exchange for the occupancy
  • Does not have their own room
  • Has minimal personal possessions at the subject premises
  • Has a residence elsewhere

Click here to download the affidavit.

Any law enforcement officer, upon receipt of  said sworn affidavit may direct a transient occupant to vacate.   A transient refusing to vacate on the direction of a law enforcement officer is deemed to have committed misdemeanor trespass under §810.08, F.S.    It is not a defense to the trespass charge that the occupant is not a transient.  A person wrongly removed, has no cause of action against the law enforcement officer, absent a showing of bad faith,  but may recover against the affiant.

The statute also provides that if the party in possession files an unlawful detainer action in court, and the court finds the occupant to be a tenant instead,  the case shall not be dismissed,  but may be amended to proceed as an eviction upon the provision of the appropriate notices under chapter 83.

Authors note:  There is no uniformity amongst law enforcement agencies on the enforcement of this statute.  While some have established procedures, Such as the Broward and Monroe County Sheriffs,  others flatly refuse to enforce the statute.  If  you have had an experience attempting to remove a transient by affidavit, please post a comment to this article.TransientHobo


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